HL Deb 30 October 2003 vol 654 cc375-419

11.6 a.m.

Lord Bassam of Brighton

My Lords, I beg to move that the Bill be now further considered on Report.

Moved, That the Bill be further considered on Report.—(Lord Bassam of Brighton.)

On Question, Motion agreed to.

Clause 95 [Death penalty]:

Lord Goodhartmoved Amendment No. 235:

Page 50, line 9, leave out subsection (3).

The noble Lord said: My Lords, I can be brief in dealing with the amendment. I am glad to see that the Minister has attached her name in support, and so the Government accept it.

The amendment relates to Clause 95, which states in subsection (1): The Secretary of State must not order a person's extradition to a category 2 territory if he could be, will be or has been sentenced to death for the offence concerned in the category 2 territory".

Subsection (3) states: Subsection (1) does not apply if the person has consented to his extradition under section 127".

Under Clause 127, consent, once given, is irrevocable. Without the amendment we would be faced with the possibility of extraditing someone to a jurisdiction in which the death penalty can be imposed even though that person has changed his mind and is unwilling to go to that territory. We do not believe that that situation ought to be allowed to happen.

Of course it should, and will, remain possible for someone who is determined to go to stand trial in a country in which conviction of the offence will carry the death penalty to do so of their own free will. That is obviously a right that they should have. But, in a case of that kind, we believe that it should be their own decision up until the last minute when they board the aeroplane or whatever is taking them to the overseas territory in question. At no stage before then should there be any compulsion on them to accept extradition. I beg to move.

The Minister of State, Home Office (Baroness Scotland of Asthal)

My Lords, I thank the noble Lord, Lord Goodhart, for tabling the amendment. It was supported on the previous occasion by my noble friend Lord Clinton-Davis, who suggested that this provision should be removed. We were so impressed with the argument on that occasion that I have put my name to the amendment. I am delighted that the noble Lord moved it with such eloquence.

On Question, amendment agreed to.

Clause 96 [Speciality]:

Lord Bassam of Brightonmoved Amendment No. 236:

Page 50, line 28, at end insert— (d) an offence in respect of which the person waives the right that he would have (but for this paragraph) not to be dealt with for the offence.

The noble Lord said: My Lords, this is a minor drafting amendment which allows a person to waive speciality protection; that is, the right to be tried only for the offence for which he was extradited. The amendment will enable us to achieve a position equivalent to that in Part 1 of the Bill. I beg to move.

On Question, amendment agreed to.

Clause 100 [Time limit for order for extradition or discharge]:

Baroness Scotland of Asthalmoved Amendments Nos. 237 and 238: Page 51, line 32, leave out subsection (2) and insert— (2) If the person applies to the High Court to be discharged, the court must order his discharge.

Page 51, line 35, leave out subsections (4) to (9).

On Question, amendments agreed to.

[Amendment No. 239 not moved.]

Clause 101 [Information]:

[Amendment No. 240 not moved.]

Baroness Scotland of Asthalmoved Amendment No. 241: After Clause 102, insert the following new clause— The appropriate day

  1. (1) This section applies for the purposes of sections 94 and 100 if the appropriate judge sends a case to the Secretary of State under this Part for his decision whether a person is to be extradited.
  2. (2) If the person is charged with an offence in the United Kingdom, the appropriate day is the day on which one of these occurs—
    1. (a) the charge is disposed of;
    2. (b) the charge is withdrawn;
    3. (c) proceedings in respect of the charge are discontinued;
      4. 377
    4. (d) an order is made for the charge to lie on the file, or in relation to Scotland, the diet is deserted pro loco et tempore.
  3. (3) If under section 98(3) or 99(2) the Secretary of State defers making a decision until the person has served a sentence, the appropriate day is the day on which the person finishes serving the sentence.
  4. (4) If section 126 applies in relation to the request for the person's extradition (the request concerned) the appropriate day is—
    1. (a) the day on which the Secretary of State makes an order under that section, if the order is for proceedings on the other request to be deferred;
    2. (b) the day on which an order under section 182 is made, if the order under section 126 is for proceedings on the request concerned to be deferred and the order under section 182 is for the proceedings to be resumed.
  5. (5) If section 181 applies in relation to the request for the person's extradition, the appropriate day is—
    1. (a) the day on which the Secretary of State makes an order under that section, if the order is for proceedings on the warrant to be deferred;
    2. (b) the day on which an order under section 182 is made, if the order under section 181 is for proceedings on the request to be deferred and the order under section 182 is for the proceedings to be resumed.
  6. (6) If more than one of subsections (2) to (5) applies, the appropriate day is the latest of the days found under the subsections which apply.
  7. (7) In any other case, the appropriate day is the day on which the judge sends the case to the Secretary of State for his decision whether the person is to be extradited."

On Question, amendment agreed to.

Clause 103[Appeal where case sent to Secretary of State]:

Lord Bassam of Brightonmoved Amendment No. 242: Page 53. line 38, at end insert—

  1. (a) subsections (6) and (7) do not apply;
  2. (b) no appeal may be brought under this section if the High Court has made its decision on the appeal."

The noble Lord said: My Lords, in moving Amendment No. 242, I shall speak also to Amendment No. 243.

I appreciate that, at first glance, it is not at all clear what the amendments seek to achieve. However, as I shall seek to demonstrate, their purpose is fairly simple. As your Lordships may be aware, the multiple avenues of appeal are one of the failings that bedevil our present extradition arrangements. There are, quite simply, too many opportunities to appeal and, as a result, too many unnecessary appeal hearings. That is why the Bill provides that there should be a single appeal hearing before the High Court.

However, on very close examination we discovered that there might be a loophole. If in a Part 2 case the district judge sends the case to the Secretary of State, the person whose extradition is sought might want to appeal against that decision. If the Secretary of State then decides to throw out the case, the requesting state may wish to lodge an appeal. Both of these appeals would be to the High Court but, as the Bill is currently drafted, they could be heard at different times.

That does not seem entirely sensible. We believe that it would be far better for the High Court to deal with both matters at the same time in order that all the factors relating to a person's case can be considered and taken together. That is what the amendments allow for, in particular by preventing the person waiting for the outcome of the requesting state's appeal before submitting their own appeal.

I hope your Lordships will agree that this is a sensible rationalisation which will help all parties. I beg to move.

On Question, amendment agreed to.

Lord Bassam of Brightonmoved Amendment No. 243: Page 53, leave out line 42 and insert "or (4) of the order he has made in respect of the person

On Question, amendment agreed to.

Clause 113[Appeal to High Court: time limit for start of hearing]:

Baroness Scotland of Asthalmoved Amendments Nos. 244 to 246:

Page 58, line 21, after "period" insert "(the relevant period) Page 58, line 23, after fourth "the" insert "relevant

Page 58, line 23, at end insert— (2A) 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. (2B) The power in subsection (2A) may be exercised even after the end of the relevant period."

On Question, amendments agreed to.

Clause 119 [Undertaking in relation to person serving sentence in United Kingdom]:

Baroness Scotland of Asthalmoved Amendment No. 247: Page 62, leave out lines 28 and 29 and insert—

  1. "(5) Subsections (6) and (7) apply if the Secretary of State makes an order for extradition subject to a condition under subsection (2).
  2. (6) If the Secretary of State 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 High Court to be discharged, the court must order his discharge.
  3. (7) If the Secretary of State receives the undertaking before the end of that period—"

On Question, amendment agreed to.

Clause 121 [Position where asylum claimed]:

Baroness Scotland of Asthalmoved Amendments Nos. 248 to 250: Page 63, line 24, 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 63, line 26, after "if" insert "there is such a right but Page 63, line 39, leave out subsection (9).

On Question, amendments agreed to.

Clause 122 [Withdrawal of request before end of extradition hearing]:

Baroness Scotland of Asthalmoved Amendment No. 251:

Page 64, line 14, at end insert "as soon as practicable

On Question, amendment agreed to.

Clause 124 [Withdrawal of request while appeal to High Court pending]:

Baroness Scotland of Asthalmoved Amendment No. 252:

Page 64, line 40, at end insert "as soon as practicable

On Question, amendment agreed to.

Clause 125 [Withdrawal of request while appeal to House of Lords pending]:

Baroness Scotland of Asthalmoved Amendment No. 253:

Page 65, line 21, at end insert "as soon as practicable

On Question, amendment agreed to.

Clause 126 [Competing extradition requests]:

Lord Bassam of Brightonmoved Amendment No. 254:

Page 65, line 39, after "account" insert "in particular

The noble Lord said: My Lords, these amendments have been brought forward in response to a point raised by the noble Lord, Lord Hodgson, in Grand Committee. They are concerned with the issue of competing requests, which is where we get two or more requests in respect of the same individual. I hasten to stress that competing requests are not at all common. Nevertheless, we need some means to determine which should receive priority.

The Bill provides just such a mechanism in three different places to cope with the three possible scenarios— two competing Part 1 requests, two competing Part 2 requests and a competing Part 1 and Part 2 request. In each case, the Bill sets a list of factors which the person making the adjudication needs to take into account—the seriousness of the offence, the place where the offence was committed, the date of the request and whether it is an accusation case or a conviction case.

I think it would be fair to say that we had an interesting discussion in Grand Committee about what should be on the list. I have no wish to go over that ground again since it is beyond the scope of these amendments. However, what did emerge was that the noble Lord, Lord Hodgson, was very concerned that the list should not be seen as exhaustive so that the person deciding between the competing requests could take into account any other relevant factors.

We have looked at this again, we agree, and we have looked at the drafting of the Bill. Clause 43, which deals with competing Part 1 requests, provides that the judge making the decision must take into account, in particular, the matters in the list. That makes it crystal clear that he can also consider other matters. By contrast, the words "in particular" do not appear in Clause 126, which relates to competing Part 2 requests, and Clause 181, which deals with competing Part 1 and Part 2 requests. These amendments rectify that omission and I hope they find favour with the noble Lord, Lord Hodgson. I beg to move.

11.15 a.m.

Lord Hodgson of Astley Abbotts

My Lords, I thank the Minister for his explanation. We had two concerns— that the wording between Clauses 43, 126 and 181 was not consistent, and that the precision of the wording might inhibit the powers of the Secretary of State. We are grateful to the noble Lord, Lord Filkin, for having followed up his agreement to have another look at this point. We are happy with the amendments.

On Question, amendment agreed to.

Clause 127 [Consent to extradition: general]:

The Earl of Mar and Kelliemoved Amendment No. 255:

Page 66, line 39, at end insert— ( ) In the application of this section to Scotland, "counsel" includes a solicitor who has the right of audience in the High Court of Justiciary under section 25(a) (right of audience in various courts in the High Court of Justiciary) of the Solicitors (Scotland) Act 1980 (c. 46).

The noble Earl said: My Lords, Amendment No. 255 is, once again, inspired by the Law Society of Scotland. The amendment is relevant only in Scotland, and would be a useful and necessary clarification.

I suspect that the comparatively recent development of the solicitor-advocate and the associated right of audience in the High Court of Justiciary may have been forgotten. The amendment would ensure that everyone understands that the definition of being legally represented before the appropriate judge extends to and includes solicitor-advocates. At present, the Bill makes no provision by which a solicitor could instruct a solicitor-advocate to represent his client. It is not clear whether a solicitor-advocate is acceptable within Clause 127(9).

Solicitor-advocates came into being under the Solicitors (Scotland) Act 1980. In other legislation, it has been thought necessary to make express provision for solicitor-advocates—for example, in the Criminal Procedure (Scotland) Act 1995, as amended by the Sexual Offences (Procedure and Evidence) (Scotland) Act 2002 and in the Criminal Procedure (Amendment) (Scotland) Bill currently before the Scottish Parliament.

This amendment seeks only to clarify and include, not to alter the Bill. I beg to move.

Baroness Carnegy of Lour

My Lords, I have added my name to the noble Earl's amendment. I moved a similar amendment in Committee and thought I was satisfied with the Minister's apparently confident response at that time until the Law Society of Scotland came back this week with new information that is hot off the press, as the noble Baroness, Lady Scotland, probably knows.

It seems that the Scottish Executive has been following our Grand Committee proceedings. It has been convinced, as the Home Office has not so far been convinced, of the need in a similar context to make specific provision for solicitor-advocates. It has done it, as the noble Earl said, in a new Bill—the Criminal Procedure (Amendment) (Scotland) Bill which was introduced in the Scots Parliament just three weeks ago, on 7th October. The terms used in that Bill are similar to those in our amendment, which refers to the fact that "counsel" includes a solicitor with extended rights.

It is good to think that this House's discussions have apparently assisted the Scottish Executive and the Scots Parliament. But now, for the clarity of Scots law across two Bills, should the Home Office perhaps follow it? I should add that the noble and learned Lord, Lord Cameron of Lochbroom, has written a letter which I have just received saying that had he been here, he would have supported this amendment. He feels that the clarity would be a good thing, although he appreciates the point which was brought out in Grand Committee that solicitors have extended rights in England and Wales too, and that there is no mention of that in the Bill. But from the point of view of Scotland, he thought this was a good amendment, so I support it.

Baroness Scotland of Asthal

My Lords, I hope that I shall be able to reassure the noble Earl and the noble Baroness that the amendment is not needed and that we have taken the change into consideration. Because the matter has caused a bit of confusion, I shall take a little time to explain why we believe that to be so, so that the Law Society of Scotland will be more content.

I am grateful for the amendment, which relates to the important issue of consent to extradition and, more specifically, the legal advice that is available to a person in such circumstances, as the noble Earl said. I know that he is particularly concerned about how the provisions relate to Scotland. As the noble Baroness said, the matter was debated in Grand Committee.

Under Part 2 of the Bill, the appropriate judge is able to accept the fugitive's consent to extradition only if the fugitive is legally represented before the judge, if the fugitive has refused or failed to apply for legal aid, or if any application was refused or legal aid withdrawn. In Clause 127(9), a person is defined as being legally represented if, he has the assistance of counsel or a solicitor to represent him". The noble Earl's amendment would ensure that the definition of being legally represented extended in Scotland to being represented by a solicitor advocate. A solicitor-advocate is a solicitor who, under Section 25A of the Solicitors (Scotland) Act 1980, has rights of audience in the High Court of Justiciary, as well as in the District and Sheriff Courts. I am sympathetic to the motivation behind the amendment, which seeks to ensure that those who wish to consent to their extradition are given appropriate legal representation in order to understand the full implications of giving consent.

Happily, I can reassure the noble Earl, Lord Mar and Kellie, and the noble Baroness, Lady Carnegy, that there is nothing to worry about. A solicitor-advocate who has extended rights of audience in the High Court is still a solicitor within the meaning of the provisions, despite the wider scope of his role. As a solicitor, he is therefore caught by the reference to "solicitor" in subsection (9) of Clause 127. In any event, a person consenting to his extradition in Scotland is required to do so before the Sheriff of Lothian and Borders. There is absolutely no question that a person would consent under Section 127 before the High Court of Justiciary. The issue of extended rights of audience is, therefore, irrelevant.

I hope that I have reassured your Lordships that a solicitor in Scotland who has extended rights of audience would be entitled, as a solicitor, to represent a fugitive at the time of his giving consent to extradition before the Sheriff. I hope that with that even the Law Society of Scotland will be content.

Baroness Carnegy of Lour

My Lords, the Minister has not answered the new point that I made. The Scottish Executive has stated in the new Criminal Procedure (Amendment) Bill that the term "counsel" includes a solicitor with extended rights. Would it not be desirable for the two Acts, which will come into law at a similar time, one in Westminster and one in the Scots Parliament, to match?

Baroness Scotland of Asthal

My Lords, the Scottish Parliament or Executive have decided to make it clear in their Bill that "counsel" includes a solicitor with extended rights because there is a difference between counsel and a solicitor. The extended rights of audience allow solicitors to have rights that they did not have hitherto. Our legislation encompasses both counsel and/or solicitor, so the two terms—solicitor and counsel—are already there. That is why we do not need it in this Bill, although I understand why the clarification may have been thought necessary in the other legislation, which previously referred only to counsel and not to solicitor. I hope that I have been sufficiently clear.

The Earl of Mar and Kellie

My Lords, I am grateful to the Minister for her extended answer and to the noble Baroness, Lady Carnegy of Lour, for having rather hotter information than me.

I tabled the amendment to seek clarity, which I think I have got from the Minister, provided that this type of activity does not spill over into the High Court of Justiciary on some sort of appeal. At this point, I shall rely on the Minister's insistence that that is all implicit. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 129 [Consent to other offence being dealt with]:

Baroness Scotland of Asthalmoved Amendments Nos. 256 to 260:

Page 67, line 16, leave out "category 2" Page 67, line 19, leave out "category 2 Page 67, line 21, at end insert— (2A) The Secretary of State 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 67, line 25, at end insert—

Page 67, line 28, at end insert ", 96 or 97"

On Question, amendments agreed to.

Clause 130 [Consent to further extradition to category 2 territory]:

Baroness Scotland of Asthal moved Amendments Nos. 261 to 265: Page 67, line 35, after "territory" insert "(the requesting territory) Page 67, line 41, leave out "category 2 territory referred to in subsection (l)(a)" and insert "requesting territory Page 68, line 2, at end insert— (2A) The Secretary of State 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 68, line 6, at end insert—

Page 68, line 9, at end insert ", 96 or 97

On Question, amendments agreed to.

Clause 131 [Consent to further extradition to category I territory]:

Baroness Scotland of Asthal moved Amendments Nos. 266 to 268: Page 68, line 16, after "territory" insert ''(the requesting territory) Page 68, line 22, leave out "category 2" and insert "requesting Page 68, line 24, at end insert— (2A) The Secretary of State 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.

On Question, amendments agreed to.

Clause 132 [Return of person to serve remainder of sentence]:

[Amendment No. 268A not moved.]

Baroness Scotland of Asthal moved Amendment No. 269: Page 69, line 6, at end insert—

  1. (a) the person was extradited for the purpose of being prosecuted for an offence, and
  2. (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 2 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 par: 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.

Clause 136 [Documents sent by facsimile]:

Baroness Scotland of Asthal moved Amendment No. 270: Leave out Clause 136.

On Question, amendment agreed to.

Clause 137 [Receivable documents]:

Baroness Scotland of Asthal moved Amendment No. 271: Leave out Clause 137.

On Question, amendment agreed to.

Clause 138 [Persons serving sentences outside territory where convicted]:

Baroness Scotland of Asthal moved Amendment No. 272: Page 72, line 12, leave out from "section" to "after" and insert "86(5) has effect as if

On Question, amendment agreed to.

Clause 140 [Extradition offences: person sentenced for offence]:

Baroness Scotland of Asthal moved Amendment No. 273: Page 74, line 44, 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 2 territory in respect of the conduct;

On Question, amendment agreed to.

Clause 144 [Issue of Part 3 warrant]:

Baroness Scotland of Asthal moved Amendment No. 274: Page 77, line 10, leave out subsection (8).

On Question, amendment agreed to.

Clause 148 [Dealing with person for other offences]:

Baroness Scotland of Asthal moved Amendment No. 275: Page 79, line 14, leave out paragraph (d).

On Question, amendment agreed to.

Clause 154 [Remission of punishment for other offences]:

Baroness Scotland of Asthal moved Amendment No. 276: Page 82, line 26, after "from" insert "—

  1. (i) a category 1 territory under law of the territory corresponding to Part 1 of this Act, or
  2. (ii) "

The noble Baroness said: My Lords, the amendment makes a minor correction to the Bill. Clause 154 covers a situation in which a person has an outstanding UK sentence but is extradited for a different offence. By virtue of the role of speciality, we can punish the person only for the offence for which he was extradited.

An example may help to illustrate what I am saying. Let us say that a person is serving a three-month prison sentence in the UK for theft. He escapes from prison and, in the course of doing so, murders a prison officer. He flees to Canada, and we seek his extradition in respect of the murder, which is clearly the most serious crime that he has committed. When we get him back we cannot seek to punish him for theft or enforce the outstanding prison sentence, because that was not the crime for which he was extradited.

Clause 154 provides that in such a situation the punishment must be treated as remitted, but for all other purposes—for example, in criminal records—it must be treated as a conviction. However, the clause applies only in cases in which the person has been extradited to the UK from a category 2 country. Clearly the situation could equally well arise in cases involving extradition from a Part 1 country. The amendment simply amends the clause so that it applies whichever country the person was extradited from. I am sure that your Lordships see the sense of that. I beg to move.

Lord Hodgson of Astley Abbotts

My Lords, I am grateful to the Minister for that information. Clearly, to treat category 1 and 2 countries differently would be illogical and we are content with the amendment.

On Question, amendment agreed to.

11.30 a.m.

Clause 155 [Return of person acquitted or not tried]:

Baroness Scotland of Asthal moved Amendment No. 277: Page 83, line 5, after "that" insert— (a)

The noble Baroness said: My Lords, in speaking to the amendment, I shall speak also to Amendments Nos. 278 to 282. The purpose of these amendments is simple. Clause 155 of the Bill is very similar to Section 20 of the Extradition Act 1989. It provides that if a person is extradited to the United Kingdom and then acquitted or not put on trial, he is entitled to be returned to the country from which he was extradited at public expense. These amendments provides that a person who wants to have his return travel paid must apply within three months of becoming eligible. This is designed to prevent the situation where a person who has been extradited to the UK and then acquitted decides to spend many months visiting friends and family in the UK before applying for his publicly funded trip back to his country of origin. A three-month period in which to apply seems perfectly reasonable. I hope that it will find favour with your Lordships. I beg to move.

Lord Hodgson of Astley Abbotts

My Lords, I understand the purpose behind the amendments. If I may, however, I should like to ask a couple of questions on how it will work. In her remarks a moment ago the Minister talked about "becoming eligible". The Bill refers to a "required period" of six months following which there is a three-month window of opportunity to make a claim. Is that required six-month period fixed? For example, if the Secretary of State were to decide after one month not to proceed and the person was on bail at that point, would the three-month clock start ticking at that point or would it start at the end of the six-month period? If it is the former, would the Secretary of State have a duty to notify the person that the three-month clock had started ticking and that he had 90 days or whatever in which to make an application before losing eligibility? We are not disagreeing with the principle of the provision. We simply wonder how in practice the person will be kept informed that his opportunity for fare repayment is gradually slipping away.

Baroness Scotland of Asthal

My Lords, if I may, I shall give the noble Lord my understanding of how the provision will work. If my remarks are in any way inaccurate I am sure that I can write to him and clarify the position.

Your Lordships will know that all those who will be in this position will be legally represented. Time will start to run as soon as the proceedings come to an end and the defendant is told, "We are no longer proceeding with these proceedings. You are in effect free to go". In accordance with good practice, not only should the lawyers representing the defendant be able to apprise him of that fact, but there will, I am sure, be guidance on these matters. I should expect that the person will be told, "You now have three months to apply for your ticket to return". That is how I think it will work. If any of that is incorrect, I shall certainly write to the noble Lord and clarify the position.

On Question, amendment agreed to.

Baroness Scotland of Asthal moved Amendments Nos. 278 to 282: Page 83, line 7, at end insert'", and (b) before the end of the period of 3 months starting immediately after the end of the required period the person asks the Secretary of State to return him to the territory from which he was extradited.

Page 83, line 8, after "that" insert— (a)

Page 83, line 9, leave out "these provisions" and insert "the provisions specified in subsection (3A), and (b) before the end of the period of 3 months starting immediately after the date of his acquittal or discharge the person asks the Secretary of State to return him to the territory from which he was extradited.

(3A) The provisions are Page 83, line 16, leave out ", if asked to do so by the person, Page 83, line 20, leave out "subsection (4) applies" and insert "subsections (2)(b), (3)(b) and (4) apply

On Question, amendments agreed to.

Clause 158 [Search and seizure warrants]:

Lord Bassam of Brighton moved Amendment No. 283: Page 84, line 14, at end insert— (d) that material, or material of that description, is believed to be on the premises.

The noble Lord said: My Lords, I am pleased to be able to bring forward this amendment which responds directly to a point raised by the noble Baroness, Lady Anelay, in Grand Committee.

Clause 158 is concerned with search and seizure warrants and subsection (2) is concerned with what an application for such a warrant needs to contain. It provides that such an application for a search and seizure warrant must state the premises that it is proposed should be searched and the material that it is hoped to find. I think that it was already implicit that the material in question had to be located on the premises in question. Any other interpretation would have been perverse in the extreme. Nevertheless, the noble Baroness asked us to make it absolutely explicit on the face of the Bill and we are happy to accommodate that sensible suggestion.

Accordingly, this amendment provides that any application for a search and seizure warrant has to state that the material in question is believed to be located at the premises in question. 1 trust that the noble Baroness will welcome it. I am sure that your Lordships will welcome it generally. I beg to move.

Baroness Anelay of St Johns

My Lords, indeed I do welcome this, as the noble Lord has said. It is important that it is explicit in the Bill that, before a search is carried out, there is at least some kind of belief that the items searched for might be on the premises. It is a common or garden matter that, before signing a search warrant in an ordinary case, magistrates ask whether the police believe that the items are on the premises. It is a matter of good practice that the Government have agreed to make the matter explicit in the Bill. I am pleased to see that.

On Question, amendment agreed to.

Clause 161 [Computer information]:

Baroness Anelay of St Johns moved Amendment No. 284: Page 87, line 9, after "visible" insert "comprehensible

The noble Baroness said: My Lords, in moving this amendment I shall speak also to Amendment No. 285. These amendments return to what might be considered a rather arcane point which I raised in our debate in Grand Committee on the matter of computer information. While we were probing the details of that clause, I asked questions about the definition of "visible" and "legible" with regard to the production of information on a computer for a constable to take away. At the time I was really just trying to establish whether information would have to be printed out or whether a CD-ROM, floppy disk or whatever would be considered sufficient. The Minister's answer to that question spurred me on to table this amendment. The noble Lord, Lord Filkin, who was then answering on these matters, said that the information would be either, printed out in comprehensible form for the constable to take away or it could be provided on a CD-ROM disk which could be taken away for analysis, and so forth".—[Official Report, 10/7/03; col. GC 152.]

As I remarked at the time, it was the use of the word "comprehensible" that I found intriguing. I appreciate that that may just have been a natural, human, honest response, as we always expect from the noble Lord, Lord Filkin. However, I thought that it was also an important matter. These are complex issues. Just what format will the information be in? "Comprehensible"— is that the case? If so, "comprehensible" to whom? I have tabled these amendments essentially to give the Government an opportunity to elaborate on what may have been just a slip of the tongue of the noble Lord, Lord Filkin, on that occasion. I beg to move.

Lord Clinton-Davis

My Lords, I rise rather reluctantly because I am always rather reluctant as far as the noble Baroness is concerned. However, I do not think that the word "comprehensible" should be included in the statute. The words "visible" and "legible" are perfectly readily understood. However, the word "comprehensible" could mean everything and anything to the person concerned. I think that it is completely different from the words "visible" and "legible" which have been quoted. For the most part, people will be advised by a competent person. I think that the word "comprehensible" does not add greatly to what is already said. As I have already intimated, I think that we should be very wary of introducing words into the statute that may have a variable meaning. Although the word "comprehensible" is understood by Members here, I do not think that it should be included in the Bill. However, advisers will readily understand what is being produced. I think that that is all that matters.

Lord Bassam of Brighton

My Lords, I am most grateful to the noble Baroness, Lady Anelay, for explaining her amendment again. I shall have to thank my noble friend Lord Filkin for inspiring her to table it.

As the noble Baroness said, the amendment provides us with the opportunity further to spell out what we mean. 1 hope that I can be brief but also demonstrate that there is not a great division of principle between us.

Let me start at the beginning. Part 4 of the Bill is concerned with the powers available to the police in extradition cases. For the first time this is being set out unequivocally in statute and I trust that all of your Lordships will welcome that.

The Bill confers powers of search and seizure on the authority of a UK magistrate if there is believed to be material which is relevant to the offence in respect of which extradition has been sought.

In certain circumstances a circuit judge may make a production order requiring a person to hand over certain specified material which is either special procedure material—that is to say, journalistic material or held in an official or professional capacity—or excluded material, which covers items such as personal records held in confidence. Clause 161 of the Bill concerns such material that may be held on a computer, as the noble Baroness said, or otherwise stored in electronic form. It provides that the person who is required to hand over the computer information does so in "visible and legible" form.

I am sure that your Lordships will appreciate why this is necessary. It would clearly be pointless for the judge to order a person to hand over computer information if it was encrypted and could not be read by anyone other than its originator. This amendment seeks to insert an additional condition—that the information in question must be "comprehensible". Clearly, there can be no great objection to that suggestion, which I am sure, knowing the noble Baroness, has been designed to be helpful. At the same time I query whether it is necessary. The phrase "visible and legible" is an exact replica of what is found in Section 20 of the Police and Criminal Evidence Act 1984. By the same token, exactly the same words are found in paragraph 7.6 of Code B made under PACE.

The Government, like the Opposition, want our legislation to be effective and clearly if there are problems with the wording of PACE, we should not be afraid to depart from it. However, in regard to this matter, I can advise your Lordships' House that there have been no problems. The words "visible and legible" have been clearly understood by all concerned. As the noble Lord, Lord Clinton-Davis, said, they are well understood. We are not aware of any cases where information has been provided in an incomprehensible form. That being so, while I am grateful for the sentiments which lay behind the tabling of the amendments, I do not believe that there is any need to depart from a well established, tried, trusted and successful formula.

I fancy that what provoked the amendment was my noble friend Lord Filkin trying to elaborate on the explanation that was provided when the debate was originally stimulated by the noble Baroness. I would guess that he was trying to elucidate further. I hope that the noble Baroness will now feel comforted and able to withdraw the amendment.

11.45 a.m.

Baroness Anelay of St Johns

My Lords, the noble Lord is right to say that there is no division between us on these matters. I agree with the noble Lord, Lord Clinton-Davis, about the difficulties regarding the word "comprehensible". It is not one that I would have considered putting on the face of the Bill. As I mentioned in my opening remarks, it was tabled only because I thought that the noble Lord, Lord Filkin, had added an important new aspect to the debate regarding the format in which the information would be provided.

The noble Lord, Lord Bassam, is right to say that the words "visible and legible" have been carried on from previous legislation. I was trying to point out that sometimes one has to consider social changes in attitudes towards people who practise particular professions. Some while ago people with sight limitations may not have acted as solicitors, barristers, court clerks or magistrates. Nowadays, as discrimination is declining, although, sadly, it still exists, professions are more open to such people.

I still have a slight reservation that the material should be both "visible and legible". I was trying to broadcast more widely the fact that "visible" does not necessarily refer to the printed word. There are ways in which computer information can be presented so that it is accessible to those with sight limitations. One is not just asking for material to be produced in Braille as that is not read by all with sight difficulties.

I am grateful for the noble Lord's response but 1 thought that it was important to revisit the matter today so that it is more widely known that this information will be clearly available. I agree with the noble Lord, Lord Clinton-Davis, that the word "comprehensible" would cause more problems than it is worth. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 285 not moved.]

Clause 166 [Entry and search of premises after arrest]:

The Earl of Mar and Kellie moved Amendment No. 285A: Page 91, line 42, leave out "Subsections (9) and" and insert "Subsection

The noble Earl said: My Lords, Amendments Nos. 285A and 285B deal with the Scottish context for search. The police must operate under the direction of the Crown Office and Procurator Fiscal Service but the Bill is silent about this supervision in Clause 166(11). By contrast, in England and Wales the Bill gives a degree of supervision in Clause 166. Written authorisation for search must be given by an inspector or more senior rank.

In Grand Committee the Minister said, first, that the Crown Office and Procurator Fiscal Service would have a supervisory role in all aspects of extradition law in Scotland and, secondly, that a warrant for arrest would be executed only on an instruction from the Crown Office. As drafted, the Bill provides for the entry and search of premises as part of the arrest warrant. No reference is made to the police acting under further instruction from the Crown Office. It is not clear whether the arrest power will include the power of search. In order to control searches, I believe that the arrest warrant should contain specific provision for powers of search. The Crown Office would, therefore, be considering both arrest and search and instructing both. As a result, similar provision would be made for Scotland as is made for England and Wales. Extradition procedure in Scotland would be clearer. Do the Government not want that? I beg to move.

Baroness Carnegy of Lour

My Lords, this is an interesting point. I understand that when a policeman enters and searches premises in Scotland it will probably be a local policeman accompanied by a Lothian and Borders policeman. It would cause a bit of a stir if this happened, particularly in some of the remoter parts of Scotland. It will be very important indeed that it is absolutely clear that those policemen are entitled in law to do so. The idea that the warrant might contain the permission to enter and search—if that is likely to be necessary—is a helpful one because a policeman could show the warrant to prove he had permission. It will be interesting to hear the Minister's reply.

Baroness Scotland of Asthal

My Lords, of course I understand the concern raised by the noble Earl, Lord Mar and Kellie. I hope that I shall be able to explain why these provisions fit ill within the Scottish context. Both the noble Earl and the noble Baroness know well that Scots criminal law differs significantly from our own.

We do not believe that a Scottish code of practice is necessary. I shall try to explain why Scotland is currently excluded from the scope of Clause 175.

Baroness Carnegy of Lour

My Lords, we are not debating the amendment about a code of practice. That is the next group.

Baroness Scotland of Asthal

My Lords, I am grateful for that indication and apologise. The amendments merge together, as do ones that we dealt with earlier. The first two points are still correct, because Scottish criminal law makes these amendments unnecessary. I shall explain why.

As noble Lords are aware, Clause 166—I think that that is the clause about which we are speaking—gives police officers in England and Wales the power to enter and search premises after a person has been arrested. However, subsection (9) provides that those powers may be exercised only if a police officer of the rank of inspector or above has given authorisation in writing. As the Bill is drafted, that requirement does not apply to Scotland. The amendments seek to alter that position. However, they would introduce an unnecessary layer of supervision into the operation of entry and search-and-seizure in Scotland.

In Scotland, all cases where the powers to search are exercised are exercised by Scottish police officers under the guidance of the procurator fiscal and/or the Crown Office. No search can take place: without their instruction. That is the procedure that now prevails in Scotland, and it will apply in extradition cases, too.

Let us imagine, for example, that a person is arrested under Part 1 as the result of a PNC check, and that a search of premises needs to be conducted without delay after arrest. In such cases, the first step which an officer in Scotland must take is to contact the Crown Office to obtain instructions about further action. Those instructions will relate not only to arrangements for bringing the person before the court, but to the search of any premises. The Crown Office also has responsibility for supervising all aspects of extradition law and will necessarily be involved in all extradition cases.

The amendment would require the procurator fiscal, on learning of the arrest and proposed search from the Crown Office, to apply to a sheriff for written authorisation for a constable to enter and search the premises after arrest. That adds an additional procedure which is unnecessary and not in keeping with normal procedure in Scottish criminal law.

I hope that, by that example, I have demonstrated that in Scotland the operation of police powers of entry and search-and-seizure are governed by judicial safeguards. The practice in England and Wales of obtaining authorisation from a more senior officer in such circumstances is essentially a PACE convention. We do not believe that it would be appropriate to import it into Scottish practice, where the current safeguards are robust and the practices well established. On that basis, I respectfully invite the noble Earl to withdraw the amendment.

The Earl of Mar and Kellie

My Lords, once again I am grateful to the Minister for detailing the procedures in the Scottish jurisdiction and for the praise offered to that institution—a pre-Union institution, I remind noble Lords. I also thank the noble Baroness, Lady Carnegy of Lour, for her support. As someone who used to work in the criminal justice and social work arena in Scotland, I know that making certain that there were no unlawful fishing trips by search was always important on the ground. The Law Society of Scotland, in particular, will be interested to read the Minister's answers so that it, too, can understand why the amendment is not necessary. In the meantime, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 285B not moved.]

The Earl of Mar and Kellie moved Amendment No. 285C: After Clause 175, insert the following new clause—

"CODE OF PRACTICE IN SCOTLAND

  1. (1) The Scottish Ministers must issue codes of practice in connection with—
    1. (a) the exercise of the powers conferred by this Part;
    2. (b) the retention, use and return of anything seized or produced under this Part; and
    3. (c) access to and the taking of photographs and copies of anything so seized or produced.
  2. (2) If the Scottish Ministers propose to issue a code of practice under this section, they must—
    1. (a) publish a draft of the code;
    2. (b) consider any representations made to them about the draft; or
    3. (c) if they think it appropriate, modify the draft in light of any such representations.
  3. (3) The Scottish Ministers must lay the code before the Scottish Parliament, and when they have done so they may bring the Code into operation by order.
  4. (4) The Scottish Ministers may revise the whole or any part of a code issued under this section and issue the code as revised; and subsections (2) and (4) apply to such a revised code as they apply to the original code.
  5. (5) A code issued under this section is admissible in evidence in proceeding under this Act and must be taken into account by a judge or court in determining any question to which it appears to the judge or the court to be relevant.
  6. (6) The power conferred by subsection (3) above on the Scottish Ministers to make orders shall be exercisable by statutory instrument.
  7. (7) A statutory instrument containing an order under subsection (3) above shall not be made unless a draft of the instrument has been laid before, and approved by resolution of, the Scottish Parliament."

The noble Earl said: My Lords, the amendment deals with whether Scottish Ministers should be required to issue a code of practice for extradition in Scotland. That would give general guidance to practice and run in parallel with the specific instructions of the Crown Office and, of course, the Lord Advocate. The code of practice and the specific instructions would have a similar relationship to that of the Highway Code and the Road Traffic Act. The process would be similar to Section 24 of the Regulation of Investigatory Powers (Scotland) Act 2000 and to the Police Act 1997. The code of practice would provide an accessible reference point. The Lord Advocate would find it useful and beneficial if he were required to use it. I beg to move.

Baroness Carnegy of Lour

My Lords, this is, again, a matter that I raised in Grand Committee. At that time, the noble Lord, Lord Filkin, replied that it was for the Scots to decide whether they required a code of practice in this context. He argued that it would be inappropriate to provide for a code in the Bill, because in Scotland the police operate under the Crown Office, not under Scottish Ministers and, in any case, only one Scottish police force would be involved.

As the noble Earl said, the Law Society of Scotland continued to query that. It has pointed out that there is a requirement in the Regulation of Investigatory Powers (Scotland) Act 2000 for Scottish Ministers to issue a code of conduct for anyone undertaking surveillance. It suggests that police behaviour is a matter for Ministers, whereas the operation is a matter for the Crown Office.

I have received a contrary argument, which may support the argument that the noble Baroness is about to deploy on behalf of the Government. The noble and learned Lord, Lord Cameron of Lochbroom, who was of course a distinguished Lord Advocate and judge in Scotland, points out that in a later clause the Bill makes the Lord Advocate responsible for immigration cases. He can give directions to those in his own department—the Crown Office—both generally and specifically. He also has statutory powers in the Police (Scotland) Act 1967 and can give directions to the police, at least so far as a prosecution of crime is concerned.

As a previous Lord Advocate, the noble and learned Lord tells me that he feels that the Lord Advocate would prefer to be in control of police activity on the matter. He is a Minister, so Scottish Ministers could include the Lord Advocate, but if further clarity were required it might be preferable that the matter be dealt with in the clause defining the power of the Lord Advocate rather than in this context. Therefore, although I have put my name to the amendment, I am now a little less full-hearted about it.

Noon

Lord Bassam of Brighton

My Lords, I believe that much of the ground relating to this issue was covered in the previous debate. I am persuaded by the noble Baroness's argument—indeed, it reflects the argument that we laid out previously. However, it is perhaps worth saying a few words on the matter.

The amendment would try to transport into the Scottish system codes of practice which are more familiar to us within PACE. That is the essence of what the noble Earl, Lord Mar and Kellie, seeks to achieve. As we made plain previously, we do not believe that Scottish codes of practice are necessary and I shall try to explain why.

First, I believe that the tradition in Scotland is that codes of practice are rarely issued in relation to criminal matters or proceedings. The police in Scotland look to the Criminal Procedure (Scotland) Act 1995 to provide them with the basic procedural rules and framework within which they carry out their normal procedures of searching and fingerprinting and the usual mechanics of gathering evidence.

Secondly, as my noble friend Lady Scotland explained earlier, all police powers in Scotland, including those contained in Part 4 of the Bill, are exercised under the direction of the Crown Office and Procurator Fiscal Service. Section 17(3) of the Police (Scotland) Act 1967 makes it clear that police officers must comply with the lawful instructions of the procurator fiscal in the investigation of crime. Indeed, it is the procurator fiscal who must apply to the sheriff for a warrant to search under Clause 158 and who is responsible for the decision to deliver up evidence seized to the requesting state.

Also, by virtue of Section 17 of the Police (Scotland) Act 1967, in directing the constables of a police force in relation to the investigation of offences, the chief constable of any area must comply with the lawful instructions of the procurator fiscal, who is effectively the local representative of the Lord Advocate. Those instructions can be very specific and reflect the fact that the procurator fiscal has responsibility at local level to direct all stages of the police in the investigation of crime.

We believe that a code of practice issued by Scottish Ministers to the police in relation to the investigation of substantive crime could be seen as interference in the role of the Lord Advocate. We consider that to be an unnecessary interference with Scots criminal law. Therefore, we see no reason to differ from what I believe can be safely described as existing, accepted, trusted and well tried ways of working and, more importantly, of safeguarding the operation of police powers and procedures in Scotland.

Therefore, we believe that this is an unnecessary amendment and that it would unnecessarily complicate matters in a situation where there is already clarity and understanding in relation to the way in which police operations are guided.

Baroness Carnegy of Lour

My Lords, before the noble Lord sits down and with the leave of the House, does he accept, despite his reply, that the Lord Advocate is a Member of the Scots Parliament and a Minister? Therefore, the distinction is not as clear as it might be in these matters.

Lord Bassam of Brighton

My Lords, I am at one with the noble Baroness in her understanding of the situation. I quite agree.

The Earl of Mar and Kellie

My Lords, I am glad that the noble Lord is coming round to accepting that the Lord Advocate is a Scottish Minister. I thank the noble Baroness, Lady Carnegy of Lour, for her two-handed support—it feels neutral from where I am standing. Can the Minister clarify that nothing in the Bill would prevent the Lord Advocate or Scottish Ministers issuing a code of practice if they wished to do so? I am not certain what indications I am receiving from the noble Lord.

Lord Bassam of Brighton

My Lords, it is the case that the Criminal Procedure (Scotland) Act 1995 provides the Lord Advocate with the power to issue instructions to chief constables. That, in itself, is a form of guidance and I believe that it provides the procedural and constitutional safeguards which I suspect the noble Earl seeks to put on to the face of the Bill.

The Earl of Mar and Kellie

My Lords, I am grateful for that clarification and beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 181 [Competing claims to extradition]:

Baroness Scotland of Asthal moved Amendment No. 286: Page 100, line 14, after "account" insert "in particular"

On Question, amendment agreed to.

Clause 182 [Proceedings on deferred warrant or request]:

Baroness Scotland of Asthal moved Amendments Nos. 287 and 288: Page 100, line 33, at end insert— (1A) The judge may make an order for proceedings on the deferred claim to be resumed. (1B) No order under subsection (1 A) may be made after the end of the required period.

Page 100, line 36, leave out subsection (3) anc insert—

  1. (a) the required period has ended, and
  2. (b) the judge has not made an order under subsection (1A) or ordered the person's discharge."

On Question, amendments agreed to.

Clause 183 [Proceedings where extradition deferred]:

Baroness Scotland of Asthal moved Amendments Nos. 289 and 290: Page 101, line 9, at end insert—

(1A) The judge may make an order for the person's extradition in pursuance of the deferred claim to cease to be deferred. (1B) No order under subsection (1 A) may be made after the end of the required period.

Page 101, line 12, leave out subsection (3) and insert—

  1. (a) the required period has ended, and
  2. (b) the judge has not made an order under subsection (1A) or ordered the person's discharge."

On Question, amendments agreed to.

Clause 188 [Asylum appeal to High Court where extradition ordered]:

[Amendments Nos. 290A and 290 B not moved.]

Baroness Scotland of Asthal moved Amendment No. 291: Leave out Clause 188.

On Question, amendment agreed to.

Clause 189 [Asylum appeal to House of Lords where extradition ordered]:

[Amendments Nos. 291A to 291G not moved.]

Baroness Scotland of Asthal moved Amendment No. 292: Leave out Clause 189.

On Question, amendment agreed to.

Clause 194 [Crown Prosecution Service: role in extradition proceedings]:

Baroness Scotland of Asthal moved Amendment No. 293: Page 107, line 29, leave out from "Director)" to "give" in line 32 and insert— in subsection (2) after paragraph (e) insert— (ea) to have the conduct of any extradition proceedings; (eb) to

The noble Baroness said: My Lords, as noble Lords will know by now, extradition involves various legal proceedings. The fugitive is invariably legally represented, which means that the other side—the requesting state—also needs to be legally represented. The normal practice in England and Wales is for the Crown Prosecution Service to represent the requesting state, with the Lord Advocate performing a similar role in Scottish cases and the Crown Solicitor in Northern Ireland cases.

However, we realised that nothing in the statute governing the CPS—the Prosecution of Offences Act 1985—explicitly conferred that role on the CPS. There was concern that a challenge might one day be mounted to the CPS's involvement in an extradition case. The same was true for the relevant authorities in Scotland and Northern Ireland. Therefore, on the last day of Grand Committee, we made amendments to put the matter beyond doubt and to make it clear that the relevant prosecuting authorities can act in extradition proceedings. Those amendments were welcomed by the noble Lord, Lord Hodgson, and we were very grateful for that.

The amendments were phrased in terms of a power to act in extradition cases. However, on further consideration and following discussions with the CPS, we now believe that it would be better to express it in terms of a duty. We submit that the reason for that is simple enough. If there is any suggestion that the prosecuting authorities have a discretion on whether to act, fugitives may seek to mount a legal challenge to their decision to act in a particular case. All the available evidence suggests that fugitives will use any available legal avenue, however improbable it may sound.

We doubt that any such challenges would succeed. Nevertheless, they would entail time and expense. Accordingly, we have brought forward the amendments to impose a duty on the CPS and the Lord Advocate to handle extradition cases within their jurisdictions. The duty does not apply where the requesting state wishes to make its own arrangements for legal representation. In that case, it does so at its own expense. On that basis, I hope that noble Lords will be content to agree with the amendment. I beg to move.

Lord Hodgson of Astley Abbotts

My Lords, we share the overall view that extradition processes are now unduly prolonged and elongated, often by those who seek to make mischief. As the noble Baroness explained, the amendment responds to concerns voiced by the CPS. It appears to us to be reasonable in that it will cut down unreasonable delays.

On Question, amendment agreed to.

Baroness Scotland of Asthal moved Amendment No. 294: Page 107, line 35, at end insert— (2A) In section 3 after subsection (2) insert—

  1. (a) in a case where the proceedings are under Part 1 of the Extradition Act 2003, the request is made by the authority which issued the Part 1 warrant in respect of the person;
  2. (b) in a case where the proceedings are under Part 2 of that Act, the request is made on behalf of the territory to which the person's extradition has been requested.""

On Question, amendment agreed to.

Clause 195 [Lord Advocate: role in extradition proceedings]:

Baroness Scotland of Asthal moved Amendments Nos. 295 and 296: Page 108, line 5, leave out "may" and insert "must Page 108, line 9, at end insert—

  1. (a) in a case where the proceedings are under Part 1, the request is made by the authority which issued the Part 1 warrant in respect of the person;
  2. (b) in a case where the proceedings are under Part 2, the request is made on behalf of the territory to which the person's extradition has been requested."

On Question, amendments agreed to.

Baroness Scotland of Asthal moved Amendment No. 297: After Clause 196, insert the following new clause—

"PARTIES TO INTERNATIONAL CONVENTIONS

  1. (1) A territory may be designated by order made by the Secretary of State if—
    1. (a) it is not a category 1 territory or a category 2 territory, and
    2. (b) it is a party to an international Convention to which the United Kingdom is a party.
  2. (2) This Act applies in relation to a territory designated by order under subsection (1) as if the territory were a category 2 territory.
  3. (3) As applied to a territory by subsection (2), this Act has effect as if—
    1. (a) sections 72(4), 74(5), 75(10)(b),85(7), 87(7), 139 and 140 were omitted;
    2. (b) the conduct that constituted an extradition offence for the purposes of Part 2 were the conduct specified in relation to the territory in the order under subsection (1) designating the territory.
  4. (4) Conduct may be specified in relation to a territory in an order under subsection (1) designating the territory only if it is conduct to which the relevant Convention applies.
  5. (5) The relevant Convention is the Convention referred to in subsection (l)(b) which is specified in relation to the territory in the order under subsection (1) designating it."

The noble Baroness said: My Lords, this new clause will preserve the status quo. Section 22 of the Extradition Act 1989 is concerned with extradition to parties to international conventions and the effect of the proposed new clause is no different to that provision.

The United Kingdom has full extradition relations with approximately 120 countries, which generally means that we are able to extradite to and from those countries for the full range of extradition offences; that is, offences attracting penalties of more than 12 months' imprisonment. However, in addition the United Kingdom is a party to a number of international conventions, mostly made under the auspices of the United Nations. The full list is contained in Section 22 of the 1989 Act, as amended.

A feature of those conventions is that they require those countries which have ratified them to extradite to other such countries for the offences in question, even though the countries concerned do not have general extradition relations. So, for example, the United Kingdom has ratified the 1963 convention on offences committed on board aircraft, known as the Tokyo Convention. So have many other countries. The vast majority of signatories are countries with whom we have general extradition relations. However, among the countries which have ratified the Tokyo Convention are China, Niger, the Philippines and Upper Volta, which are not full extradition partners.

Our ratification of the Tokyo Convention obliges us to have in place a mechanism to enable us to extradite to those countries which have also ratified it, with which we do not have full extradition relations. Exactly the same is true for all the other conventions. I hope that with that outline noble Lords will feel able to agree the amendment. I beg to move.

12.15 p.m.

Lord Hodgson of Astley Abbotts

My Lords, we have no problem with the principle of the amendment. As the Minister points out, it replicates Section 22 of the Extradition Act 1989. Perhaps a small question mark forms at the back of our mind as to why this was not picked up at an earlier stage of the Bill, but never mind. The Minister has been kind enough to give in a letter a detailed explanation of the background to the amendment and, indeed, has given further explanation from the Dispatch Box today.

I would ask the Minister to confirm two matters. The first concerns the nature of the offences covered. She referred to the convention on offences committed on board aircraft. It is clear that this is a ring-fenced activity. There is no question of speciality being involved here. She mentioned Niger as a country with which we do not have extradition arrangements. There is no question of people being able to be extradited under that convention and then charged with something else in Niger. Speciality does not apply.

The second matter on which I should like confirmation is the nature of the categories into which these conventions fall. We now have a new system with category 1 and category 2. The letter from the Minister made clear that these conventions will be treated as if they are a Part 2 country. It would be helpful to have that confirmation on the record again now so that it is clear and beyond peradventure.

Finally—this may be an unfair question—the Minister stated in her letter that she did not expect the provision to be much used. Does she have any information about how much it has been used as it replicates an Act which has been in existence for some 13 years? Subject to satisfactory answers to the first two points concerning ring-fencing and the fact that these are category 2 territories or will be treated in the procedure as category 2 territories, we an; content with the amendments.

Baroness Scotland of Asthal

My Lords, I thank the noble Lord for referring to the letter, which I believe is in the Library. I am happy to clarify the points he raised. I shall try to short-circuit them but it may be important that I make three points. First, our obligations extend only to the offences covered by the convention. For example, another Tokyo Convention country can make an extradition request to us only for an offence committed on board an aircraft. Similarly, the extradition obligations imposed on us by the UN convention on the protection of nuclear material extends only to the illicit handling and trafficking of nuclear material.

Secondly, I confirm that extradition requests made under conventions are, as noble Lords have indicated, very rare. We can trace only a small handful in the past 15 years, none of which has been successful. That brings me to a third and very important point. Conventions provide a mechanism for the request to be made. They do not oblige the United Kingdom to act on such requests. Any request is still subject to all the normal safeguards which the Bill provides. Earlier I mentioned the four countries which had ratified the Tokyo Convention with which we do not have full extradition relations. Without wanting to pre-empt a decision of the courts, it seems to me that if we did receive a request from one of those countries it is not impossible—I put it no stronger than that—that it might fall foul of the human rights protections in the Bill.

This new clause enables the Secretary of State to designate by order convention countries as extradition partners for the purposes of the offences covered by the relevant convention. For the avoidance of doubt I should make clear that any requests will be treated as Part 2 requests and will always require prima facie evidence to be provided. I would expect that as now, such requests will be few and far between. I hope that I have dealt with all the issues raised by the noble Lord, Lord Hodgson.

On Question, amendment agreed to.

Clause 197 [Special extradition arrangements]:

Lord Goodhart moved Amendment No. 298: Page 109, line 9, leave out "the Secretary of State believes that

The noble Lord said: My Lords, Amendment No. 298 relates to Clause 197 of the Bill, which deals with special extradition arrangements where there is a bilateral agreement with a country that is not a regular extradition partner of the United Kingdom and is neither a category 1 or 2 territory. That agreement concerns the extradition of a person to that territory in special circumstances.

Clause 197(1) states: This section applies if the Secretary of State believes that—

  1. (a) arrangements have been made between the United Kingdom and another territory for the extradition of a person to the territory, and
  2. (b) the territory is not a category 1 territory or a category 2 territory".

Subsection (2) then goes on to state that the Secretary of State may issue a certificate that those conditions are satisfied. Subsection (3) states that where a certificate has been issued, the territory is deemed for the purposes of that extradition to be a category 2 territory. Subsection (5) then goes on to state that the certificate issued under subsection (2) is conclusive evidence that the conditions are satisfied.

The point that struck me on reading that clause is why it is necessary to refer to the belief of the Secretary of State. The purpose of the amendment is to remove the words, the Secretary of State believes that", so that the section applies if arrangements have been made and the country is not a category 1 or 2 territory.

One would have thought that extradition arrangements either have or have not been made. The Secretary of State will know, not just believe, that they have been made. The Secretary of State will certainly know whether the territory is a category 1 or 2 territory. Indeed, if arrangements have not been made it would appear that it would be ultra vires and beyond the powers of the Bill to order extradition. The effect of Clause 197(1) as it now stands and of the word "conclusive" in subsection (5) is that the conditions must be treated as satisfied even if they are not.

The only circumstance of which I have been able to think in which it might be relevant to refer to the belief of the Secretary of State is where the Secretary of State believes that arrangements have been made but is not absolutely certain whether the persons with whom the arrangements have been made in the foreign territory have the authority to make those arrangements on behalf of that territory. That is a possible scenario.

However, if there is real doubt over the existence of that authority, the matter should be investigated before extradition is ordered. Under those circumstances the issue ought to be raised and the Secretary of State's view may amount to prima facie evidence. Certainly it should not be conclusive. I beg to move.

Baroness Scotland of Asthal

My Lords, I am grateful to the noble Lord for tabling the amendment, which follows on from our interesting debate on this matter in Grand Committee. Clause 197 enables the United Kingdom to respond to ad hoc extradition requests from countries with which we do not have general extradition arrangements. The clause is modelled closely on Section 15 of the Extradition Act 1989, as I am sure the noble Lord will have recognised, and designed to serve exactly the same purpose. Such ad hoc requests are very rare and successful requests even more so. We can find no record of a successful ad hoc request made to the United Kingdom. There are obvious reasons for that because the UK has general extradition relations with over 100 countries, so there are not that many countries which would ever need to use the ad hoc procedure. The countries with which we do not have general extradition arrangements are, if I may be blunt, often the kind of countries where we might be unable to extradite for human rights reasons.

Nevertheless, it is important to preserve our ability to deal with ad hoc requests. One reason is that we cannot rule out the possibility that we will receive ad hoc requests in respect of a serious criminal, on which we would want to be able to act. Additionally, being able to point to a facility in our legislation allowing us to deal with ad hoc requests increases the chance that any ad hoc requests that the UK might make to a country will be successful. Even though we know of no instances of a successful ad hoc request made to the UK, we can point to at least one case where an outgoing ad hoc request was successful. We were able in 1999 to secure the return of a person accused of multi-million pound fraud from Morocco.

Therefore, I emphasise that the clause simply replicates the current situation. Ad hoc requests must always be accompanied by prima facie evidence. That is the background. I now turn to the amendment.

Clause 197 applies if the Secretary of State "believes" that an ad hoc arrangement has been made with another country. If so he may issue a certificate to that effect. The amendment removes the reference to the Secretary of State's belief. I am not sure of the difference that would make or the advantage that would bring. That is why the noble Lord, Lord Goodhart, might have noticed that I looked a little puzzled. I was trying to work out what was the real difference. If a state with which we do not have general extradition relations wants to make ad hoc arrangements, it would need to approach us through diplomatic channels. Ministers would have to decide whether we should agree to the request for such ad hoc relations. If, and only if, Ministers decide that we should make ad hoc relations in a particular case can the request proceed and be considered by the courts in the normal way.

I do not think that the Secretary of State will ever be in any doubt as to whether special extradition arrangements have been made. Nor, more importantly, for the purposes of the amendment, could he ever certify that such arrangements existed when they did not. Given that this would occur through diplomatic and political channels, there is no way that the Secretary of State could ever hold the "belief that special arrangements were in place unless that was the case. Looking at the question of "belief, the Secretary of State is always in the position of saying, "On the information presented to me it is my belief that this is so", bearing in mind that the Secretary of State is not able independently to ratify that those matters are proven that he is told are proven. He or she is always reliant upon the information to form that belief.

I do not see that the amendment is necessary. There is not a gap or a loophole that we need to plug. Where problems do not exist, we should not be amending the Bill for the sake of it. If we were to change the Bill I can foresee a large number of carefully planned submissions about teasing out on what basis the Home Secretary said that he "knew", as opposed to "believed", that the facts were indeed as they were described to him. The current wording will do well, because that is the way it has worked so far.

Lord Goodhart

My Lords, I remain entirely unpersuaded by the Minister. It is undesirable as a matter of drafting to refer to the Secretary of State's "belief on matters which can be established one way or another—not simply as a matter of belief. The fact that the wording is based on previous wording which has been used only on a very few occasions is no reason why it should be repeated in the Bill. I suggested one circumstance to the noble Baroness—when there is uncertainty about the authority of the officials acting on behalf of the other state to enter into an agreement. There could then be genuine grounds for challenging the Secretary of State's belief that arrangements have been made. However, this is a matter that is unlikely to give rise to issues of importance. Somewhat reluctantly, I take the view that I should not take up the time of the House by calling a Division. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 203 [Appeal against grant of bail]:

Lord Bassam of Brighton moved Amendment No. 299: Page 114, leave out lines 23 and 24.

The noble Lord said: My Lords, I am endeavouring to set a record for brevity in moving this and the following amendments by saying that they simply tidy up definitions in the Bill. I beg to move.

On Question, amendment agreed to.

Lord Bassam of Brighton moved Amendment No. 300: Page 114, line 26, at end insert— '"magistrates' court" and "court' in relation to extradition proceedings means a District Judge (Magistrates' Courts) designated for the purposes of Part 1 or Part 2 of the Extradition Act 2003 by the Lord Chancellor;

On Question, amendment agreed to.

Lord Bassam of Brighton moved Amendments Nos. 301 to 303: After Clause 204, insert the following new clause—

"RECEIVABLE DOCUMENTS

  1. (1) A Part 1 warrant may be received in evidence in proceedings under this Act.
  2. (2) Any other document issued in a category I territory may be received in evidence in proceedings under this Act if it is duly authenticated.
  3. (3) A document issued in a category 2 territory may be received in evidence in proceedings under this Act if it is duly authenticated.
  4. (4) A document issued in a category 1 or category 2 territory is duly authenticated if (and only if) one of these applies—
    1. (a) it purports to be signed by a judge, magistrate or other judicial authority of the territory;
    2. (b) it purports to be authenticated by the oath or affirmation of a witness.
  5. (5) Subsections (2) and (3) do not prevent a document that is not duly authenticated from being received in evidence in proceedings under this Act."

After Clause 204, insert the following new clause—

"WRITTEN STATEMENTS AND ADMISSIONS

  1. (1) The provisions mentioned in subsection (2) apply in relation to proceedings under this Act as they apply in relation to proceedings for an offence.
  2. (2) The provisions are—
    1. (a) section 9 of the Criminal Justice Act 1967 (c. 80) (proof by written statement in criminal proceedings);
    2. (b) section 10 of the Criminal Justice Act 1967 (c. 80) (proof by formal admission in criminal proceedings);
    3. (c) section 1 of the Criminal Justice (Miscellaneous Provisions) Act (Northern Ireland) 1968 (c. 28) (proof by written statement in criminal proceedings);
    4. (d) section 2 of the Criminal Justice (Miscellaneous Provisions) Act (Northern Ireland) 1968 (proof by formal admission in criminal proceedings).
  3. (3) As applied by subsection (1) in relation to proceedings under this Act, section 10 of the Criminal Justice Act 1967 (c. 80) and section 2 of the Criminal Justice (Miscellaneous Provisions) Act (Northern Ireland) 1968 have effect as if—
    1. (a) references to the defendant were to the person whose extradition is sought (or who has been extradited);
    2. (b) references to the prosecutor were to the category 1 or category 2 territory concerned;
    3. (c) references to the trial were to the proceedings under this Act for the purposes of which the admission is made;
    4. (d) references to subsequent criminal proceedings were to subsequent proceedings under this Act."

After Clause 204, insert the following new clause—

"BURDEN AND STANDARD OF PROOF

  1. (1) This section applies if, in proceedings under this Act, a question arises as to burden or standard of proof.
  2. (2) The question must be decided by applying any enactment or rule of law that would apply if the proceedings were proceedings for an offence.
  3. (3) Any enactment or rule of law applied under subsection (2) to proceedings under this Act must be applied as if—
    1. (a) the person whose extradition is sought (or who has been extradited) were accused of an offence;
    2. (b) the category 1 or category 2 territory concerned were the prosecution.
  4. (4) Subsections (2) and (3) are subject to any express provision of this Act.
  5. (5) In this section "enactment" includes an enactment comprised in, or in an instrument made under, an Act of the Scottish Parliament."

On Question, amendments agreed to.

12.30 p.m.

Clause 206 [National security]:

[Amendment No. 304 not moved.]

Lord Bassam of Brighton moved Amendment No. 305: After Clause 208, insert the following new clause—

"SERVICE OF NOTICES

Service of a notice on a person under section 53, 55, 57, 129, 130 or 131 may be effected in any of these ways—

  1. (a) by delivering the notice to the person;
  2. (b) by leaving it for him with another person at his last known or usual place of abode;
  3. (c) by sending it by post in a letter addressed to him at his last known or usual place of abode."

On Question, amendment agreed to.

Lord Hodgson of Astley Abbotts moved Amendment No. 306: After Clause 208, insert the following new clause—

"COMPATIBILITY WITH THE CRIME INTERNATIONAL (CO-OPERATION) ACT 2003."

The Secretary of State shall certify that the provisions of this Act are compatible with the provisions of the Crime International (Co-operation) Act 2003.

The noble Lord said: My Lords, Amendment No. 306 re-tables a new clause which we put forward in Grand Committee. We had a useful debate then about the crossover between the Crime (International Co-operation) Bill and this Bill before your Lordships' House today. Both Bills are progressing through Parliament at the same time. It seems clear that the Crime (International Co-operation) Bill will achieve Royal Assent before the Extradition Bill. The provisions in both Bills are sufficiently close for your Lordships to have concerns about their compatibility.

The Crime (International Co-operation) Bill allows policemen to pursue criminals in this country for up to five hours for the purposes of surveillance. The Extradition Bill allows an arrest warrant to be issued by a foreign authority for the arrest of a criminal who has crossed over into the United Kingdom.

In Grand Committee, the noble Lord, Lord Davies of Oldham, speaking for the Government professed to be puzzled by our amendment. He commented that, Acts of Parliament are necessarily compatible with each other. Any later legislation would amend that which preceded it, were there to be any incompatibility".—[Official Report, 10/9/03; col. GC 36.]

That may be true, but in the circumstances it is misleading. The Minister was talking about compatibility on paper. No Act of Parliament can undermine or reverse another without stating so on the face of the Bill by making the required amendments. We were talking about the interaction of the powers provided by the two Bills in practice. Essentially, it is a question of workability.

My noble friend Lady Carnegy of Lour spoke about the fact that both Bills are about the same conduct; that is, the pursuit by foreign policemen with a view to the potential arrest of a criminal who has strayed on to our shores. In Grand Committee she asked, can the Government assure us that there is no circumstance in which a person could use the powers in one Bill for the purposes of the other?".

In response, the Minister claimed that he was, "not really in the right position", to answer her concerns, and said that the Government would, reflect on that representation and look very carefully at the matter".—[Official Report, 10/9/03; col. GC 37.]

Encouraged by that positive response, we have therefore tabled the amendment again on Report, to find out how the Minister has considered the point and what response the Government have. I beg to move.

Baroness Carnegy of Lour

My Lords, I, too, look forward to the Minister's reply and hope that he will be able to enlighten us on my question to him in Grand Committee.

Baroness Scotland of Asthal

My Lords, I am happy to do so. I hope that the noble Baroness will already have been enlightened from the contents of the letter I wrote to noble Lords. I am grateful for this opportunity. I hope that I can be brief, as we previously covered these issues when they were raised in some detail.

The noble Lord, Lord Hodgson, is right to say that when the amendment was raised in another place the focus of the debate was a somewhat—if I may say so— fanciful anxiety about foreign police officers coming into this country to make arrests using European arrest warrants. The Bill was amended on Report in another place to make it absolutely clear who can execute a European arrest warrant. I was pleased to note that during our debate on the issue noble Lords opposite accepted unequivocally that foreign police officers will not be carrying out extradition functions in this country. Indeed, the noble Lord, Lord Hodgson—and with delight, I quote him—said: It is clear beyond peradventure that the Minister and his colleagues elsewhere in government do not wish non-UK constables to arrest people in this country".—[Official Report, 18/6/03; col. GC306.] So I hope that we can all agree that this issue provides no cause for bringing back the amendment.

However, when we discussed the amendment in Grand Committee, as the noble Lord indicated, the noble Baroness, Lady Carnegy of Lour, sought an assurance that, there is no circumstance in which a person could use the power in one Bill for the purposes of the other".—[Official Report, 10/9/03; col. GC37.] We are able, with great pleasure, to give such an assurance. As I say, that was contained in a letter I wrote to the noble Baroness, Lady Anelay, on 22nd September, and which I hope was copied to all noble Lords who participated in Grand Committee.

The letter said that, there would be no circumstances in which the powers conferred in one Bill—the Extradition Bill or the Crime (International Co-operation Bill)—"— which came into being today on achieving Royal Assent— could be used for the purposes of the other Bill". The letter continued by reiterating the fact that both Bills are compatible and that nothing in the Extradition Bill draws upon powers granted in the C(IC) Bill, nor does the C(IC) Bill use powers under the Extradition Bill. Acts of Parliament are by necessity compatible with each other. Later legislation amends that which precedes it, should there be any incompatibility. The only complication arises when two or more pieces of legislation which cross-refer to each other are passing through Parliament at the same time and it is not known which will receive Royal Assent first.

We shall shortly turn to a government amendment which is designed to deal precisely with that eventuality. I do not want to pre-empt discussion of that amendment, although I should make it clear that it is designed to deal with the overlap between this Bill and the Criminal Justice and Courts Bill rather than the Crime (International Co-operation) Bill. I can assure your Lordships that the two Acts, as we hope they will become, with which the amendment is concerned will be compatible with each other as they will with all other Bills which have been or are being passed through Parliament this Session. I really cannot see that there is any necessity for this amendment or what it would achieve. Having read, most fulsomely I hope, all the reassurances into the record, I would invite the noble Lord to withdraw his amendment.

Lord Hodgson of Astley Abbotts

My Lords, as ever, we are grateful to the noble Baroness for her reply. I was struggling with my papers to see whether I had received the letter. Perhaps I have, but I was not aware that we had been written to on this specific point, at least I have not received a copy. That is probably my fault and not that of the officials. I am happy to beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Hodgson of Astley Abbotts moved Amendment No. 307: After Clause 208, insert the following new clause— Annual report

For the first five years after the commencement of this Act, the Secretary of State shall publish and lay before both Houses of Parliament an annual report on the operation of the provisions of the Act.

The noble Lord said: My Lords, we listened carefully to the debate which took place on the point in Grand Committee. I take the opportunity to thank the noble Lord, Lord Filkin, in particular, for the constructive attitude with which he approached the amendment.

We made very clear at that stage our belief that there should be an annual report in view of the unprecedented nature of the new overhauled extradition procedure, especially taking into account the implementation for the first time of the European arrest warrant. We have been told repeatedly that the new system will speed up processes, that the time limits in the Bill are appropriate and that the new procedure will lead to a more efficient system of surrender, in particular, with category I states. All we ask is that a report should be published which gives us the required information and statistics to see whether the operation of the Act in practice delivers its promised results.

In Committee, the Minister intimated that he saw some merit in analysing and monitoring the performance of the Bill for a limited period after its enactment and in making sure that this information was placed in the public domain. That is clearly a progressive and big step forward. We thank the noble Lord for agreeing that there is something to be said for keeping track of the performance of the legislation in its early years. He mentioned keeping a record of such data as the number of requests received, the operation of the time limits, especially in Part 1, and the time each extradition request takes to be processed in its entirety as well as some other statistics.

We, of course, welcome the Government's commitment to put such information before Parliament. We have tabled the amendment today in order to try to elicit from the Minister any further thoughts the Government might have had on the form such information would take, or the time period during which it would be provided. On reflection, and following the comments made in Committee, we have concluded that an annual report for an indefinite period of time was too much to ask for.

We have, therefore, limited our request to an annual report for the first five years of the Act's operation. That would be a sufficient period for the Act to overcome any teething troubles and to settle down into our national legislation. It is also likely that most of the transitional provisions for dealing with outstanding requests under the old system would have been cleared up in the first year or two and, therefore, data on the operation of the Act would be more accurate and representative. I beg to move.

Lord Bassam of Brighton

My Lords, I am grateful to the noble Lord for tabling the amendment and speaking to it with such clarity. I was expecting the noble Baroness to speak to it, as she loves annual reports, but I shall not dwell on that. The amendment has been tabled in different guises at regular stages during the Bill's progress through Parliament. Noble Lords opposite will not be too surprised to hear that the Government could not advise your Lordships' House to support the amendment. However, I wish to make a positive response and to build on what my noble friend Lord Filkin said in Grand Committee.

It is right that there should be continued interest in the operation of this and all legislation once enacted. Home Office Ministers are, and will continue to be, ready to respond to Questions on the operation of the legislation, giving details of numbers of cases, time taken to process cases and other important information. But, as I am sure the noble Lord would expect, we would resist commenting on specific cases.

There is no need for a formal annual report. Reports on the operation of legislation are not a common feature. There is no such requirement for existing legislation, and we are not convinced that the requirement to publish an annual report is a desirable precedent to establish in this context. It has been claimed that the Bill is a radical departure from existing procedures and legislation and that it therefore merits greater scrutiny and accountability. The Bill is a clear change from current arrangements, as are many Acts of Parliament, but radical change alone does not necessarily warrant a statutory requirement for an annual report.

In this context, it might be worth considering where annual reports are most commonly used. The most obvious example is in terrorism and security legislation, which often deals with matters and procedures conducted in secret. In those circumstances, it is obviously right that an independent commissioner should consider their operation and produce a report to Parliament.

Although the Extradition Bill may be technical and complex at times, its provisions are thorough and transparent, at each stage of the process, on what is to happen and how. The intention behind the proposal is that the annual report would look into the operation of the legislation, with particular emphasis on those points where it differs from the old system.

Lord Clinton-Davis

My Lords, is it not perfectly possible for anybody in this House to table a Question, orally or in writing?

Lord Bassam of Brighton

My Lords, the noble Lord is right. That is one of the points that we have made previously on the issue.

We would not expect a report to cover individual cases or to make assumptions about how cases would have been resolved under the old system. It would not be able to go usefully beyond the statistical information that would be available, in any event, through Questions in your Lordships' House. It could not reveal, for example, whether dual criminality was an issue in a case, or indicate what effect the absence of the Secretary of State's role had in Part 1. The first would involve looking at individual cases and the second would be pure conjecture. There are therefore good reasons why it would be undesirable to impose a formal statutory requirement to provide an annual report.

Having made all those negative remarks, I recognise that there is, properly, real interest in the operation of the legislation. I therefore echo what my noble friend said in Grand Committee: the Government will place in the public domain information about the operation of the new system. We envisage doing that once the new legislation has had time to bed down—probably after it has been operating for a year or so.

The information that we have in mind is: the number of requests that we have received, both Part 1 and Part 2, and the countries from which they have come; the proportion that have been successful; the average length of time taken to complete a case; the number of outgoing requests that the UK has made and their success rate. As the noble Lord will appreciate, it is not an exhaustive list; it could probably be expanded. The Government will be interested to hear from the noble Lord about other ideas and subject headings that he might wish to see covered. Anything that we publish will not contain details of individual cases; nor can it contain any comparison, other than a purely statistical one, with the existing system.

We are still considering how best to put that information into the public domain. The most obvious way would be an arranged Parliamentary Question or a written Ministerial Statement in another place, but we have not taken a final view on that; nor have we taken a view on regularity. I hope that noble Lords will welcome the Government's clear commitment to publish information about the operation of the new system so that they, and everyone else with an interest in the subject, can judge whether it has lived up to its promise of expediting and simplifying our existing and future extradition procedures. On that basis, I hope that the noble Lord will feel able to withdraw his amendment.

12.45 p.m.

Lord Hodgson of Astley Abbotts

My Lords, I am grateful to the Minister for his response. I was disappointed that he fell straight back on to the old chestnut of Written Questions. Officials who deal with Written Questions are expert at glancing it down to long leg for a single. Trying to get information out of a Written Answer is very difficult—it is not debatable either. We argue that this is a distinctively different type of legislation because it includes the European arrest warrant.

Lord Clinton-Davis

My Lords, I thank the noble Lord for giving way. He is quite wrong about not being able to debate the issues. If, for example, the reply is unsatisfactory, what is wrong with a debate during the dinner hour? That is perfectly possible, is it not?

Lord Hodgson of Astley Abbotts

My Lords, of course it is possible, but it is a question of having enough information gathered together from Written Questions, putting it together in a comprehensible form and finding a slot in the dinner hour for the debate to take place. That is quite a major effort. We argue that this is a distinctively different type of legislation because of the European arrest warrant.

Although the noble Lord, Lord Bassam, said that annual reports were not a common feature, he was good enough to say that the contents of this legislation represent a radical departure. We can argue about the European arrest warrant, and we have done so, but there is public concern about it. We think, therefore, that it is a sufficient break with past practice for it not to be unreasonable for us to ask the Government to have a check for the first five years—we accept the argument against a longer period. It should not be a check that must be dug out by a series of Written Questions; it should be a proper check in the form of an annual report. I am afraid that I do not find the Minister's response convincing, so I wish to test the opinion of the House.

12.48 p.m.

On Question, Whether the said amendment (No. 307) shall be agreed to?

Their Lordships divided: Contents, 56; Not-Contents, 128.

Division No. 1
CONTENTS
Ackner, L. Knight of Collingtree, B.
Allenby of Megiddo, V. Laird. L.
Ampthill, L. Liverpool, E.
Anelay of St Johns, B. [Teller] Masham of Ilton. B.
Astor, V. Molyneaux of Killead, L.
Astor of Hever, L. Montrose, D.
Attlee, E. Mowbray and Stourton, L.
Bowness, L. Newton of Braintree, L.
Brougham and Vaux, L. Noakes, B.
Burnham, L. Palmer, L.
Byford, B. Park of Monmouth, B.
Campbell of Alloway, L. Patten, L.
Carnegy of Lour, B. Peel, E.
Chorley, L. Pilkington of Oxenford, L.
Courtown, E. Plumb, L.
Crathorne, L. Plummer of St. Marylebone, L.
Dixon-Smith, L. Rawlinson of Ewell, L.
Dundee, E. Renton, L.
Elles, B. Rotherwick, L. [Teller]
Elton, L. Saltoun of Abernethy, Ly.
Flather, B. Selsdon, L.
Freeman, L. Stoddart of Swindon, L.
Glentoran, L. Strange, B.
Higgins, L. Swinfen, L.
Hodgson of Astley Abbotts, L. Vivian, L.
Howe, E. Walpole, L.
Kimball, L. Wedderburn of Charlton, L.
Kingsland, L. Wilcox, B.
NOT-CONTENTS
Addington, L. Bernstein of Craigweil, L.
Ahmed, L. Blackstone, B.
Amos, B. (Lord President) Bradshaw, L.
Andrews, B. Brett, L.
Archer of Sandwell, L. Brooke of Alverthorpe, L.
Avebury. L. Brookman, L.
Bach, L. Burlison, L.
Bassam of Brighton, L. Campbell-Savours, L.
Carter, L. Maclennan of Rogart, L.
Christopher, L. McNally, L.
Clark of Windermere, L. Maddock, B.
Clarke of Hampstead, L. Mar and Kellie. E.
Clinton-Davis, L. Marsh. L.
Corbett of Castle Vale, L. Massey of Darwen, B.
Crawley, B. Merlyn-Rees, L.
Dahrendorf, L. Miller of Chilthorne Domer, B.
David, B. Mitchell, L.
Davies of Oldham, L. [Teller] Morgan, L.
Desai, L. Morris of Aberavon, L.
Dholakia, L. Morris of Manchester, L.
Dixon, L. Murray of Epping Forest, L.
Dubs, L. Northover, B.
Evans of Parkside, L. Oakeshott of Seagrove Bay, L.
Evans of Temple Guiting, L. Patel of Blackburn, L.
Falkland, V. Phillips of Sudbury, L.
Farrington of Ribbleton, B. Pitkeathley, B.
Faulkner of Worcester, L. Ponsonby of Shulbrede, L.
Filkin, L. Radice, L.
Gale, B. Ramsay of Cart vale, B.
Gavron. L. Randall of St. Budeaux, L.
Gibson of Market Rasen, B. Razzall, L.
Goldsmith, L. Redesdale, L.
Goodhart, L. Rendell of Babergh, B.
Gordon of Strathblane, L. Rooker, L.
Goudie, B. Roper, L.
Gould of Potternewton, B. Sainsbury of Turville, L.
Grabiner, L. Sandberg, L.
Grocott, L. [Teller] Sandwich, E.
Harris of Richmond, B. Scotland of Asthal, B.
Harrison, L. Scott of Needham Market, B.
Haskel. L. Sharp of Guildford, B.
Hayman, B. Sheldon, L.
Hilton of Eggardon, B. Shutt of Greetland, L.
Hogg of Cumbernauld, L. Simon, V.
Hollis of Heigham, B. Smith of Clifton, L.
Hooson, L. Stern, B.
Hoyle, L. Sutherland of Houndwood, L.
Hughes of Woodside, L. Symons of Vernham Dean, B.
Judd, L. Taverne, L.
Kennedy of The Shaws, B. Thomas of Gresford, L.
Kilclooney, L. Thomas of Walliswood, B.
King of West Bromwich. L. Thomson of Monifieth, L.
Kirkhill, L. Tomlinson, L.
Lea of Crondall, L. Tope, L.
Linklater of Butterstone, B. Turnberg, L.
Listowel, E. Turner of Camden, B.
Livsey of Talgarth, L. Wallace of Saltaire, L.
Lockwood, B. Walmsley, B.
Ludford.B. Warner, L.
McCarthy, L. Whitaker, B.
Macdonald of Tradeston, L. Whitty, L.
McIntosh of Hudnall, B. Williams of Elvel, L.
MacKenzie of Culkein, L. Williamson of Horton, L.
Mackenzie of Framwellgate, L. Worcester, Bp.

Resolved in the negative, and amendment disagreed to accordingly.

12.59 p.m.

Baroness Scotland of Asthal moved Amendment No. 308: After Clause 211, insert the following new clause—

"EUROPEAN FRAMEWORK LIST

  1. (1) The European framework list is the list of conduct set out in Schedule (European framework list).
  2. (2) The Secretary of State may by order amend Schedule (European framework list) for the purpose of ensuring that the list of conduct set out in the Schedule corresponds to the list of conduct set out in article 2.2 of the European framework decision.
    3. 412
  3. (3) The European framework decision is the framework decision of the Council of the European Union made on 13 June 2002 on the European arrest warrant and the surrender procedures between member states (2002/584/JHA)."

On Question, amendment agreed to.

Clause 212 [Other interpretative provisions]:

Baroness Scotland of Asthal moved Amendments Nos. 309 to 312: Page 120, line 8, at end insert— (2A) References to the designated authority must be read in accordance with section 2(9). Page 120, line 12, at end insert— (5A) "Asylum claim" has the meaning given by section 113(1) of the Nationality, Immigration and Asylum Act 2002 (c. 41). Page 120, line 16, leave out subsection (7). Page 120, line 31, leave out "and 211" and insert "to (European framework list)

On Question, amendments agreed to.

Clause 215 [Amendments]:

Baroness Scotland of Asthal moved Amendment No. 313: Page 121, line 4, at end insert—

  1. "(2) The Secretary of State may by order make—
    1. 3 (a) any supplementary, incidental or consequential provision, and
    2. (b) any transitory, transitional or saving provision,
  2. (3) An order under subsection (2) may, in particular—
    1. (a) provide for any provision of this Act which comes into force before another such provision has come into force to have effect, until that other provision has come into force, with such modifications as are specified in the order, and
    2. (b) amend, repeal or revoke any enactment other than one contained in an Act passed in a Session after that in which this Act is passed.
  3. (4) The amendments that may be made under subsection (3)(b) are in addition to those made by or under any other provision of this Act."

The noble Baroness said: My Lords, it gives me pleasure to move this series of amendments and I will briefly explain the nature of them. I hope not to take too long, but it is important to explain to the House how these amendments fit in. I crave your Lordships' patience.

Amendment No. 313 should not come as too much of a surprise, because provisions with virtually identical wording can be found in the Courts Bill and the Criminal Justice Bill. The amendment is necessary because all three Bills are going through at the same time. They contain various cross-references to each other, but we do not know in which order they will receive Royal Assent.

For example, the Criminal Justice Bill refers to extradition under the Extradition Act of 1989. That reference needs to be updated, but that cannot be done until this Bill has been enacted. This amendment allows us to make the necessary minor and consequential amendments to other pieces of legislation being enacted in the same parliamentary Session. As I said earlier, the other relevant pieces of legislation contain something in similar vein.

As your Lordships will be aware, at almost the same time that we began Report stage last week, the Select Committee on Delegated Powers and Regulatory Reform published its supplementary report on the Bill. I am pleased to say that, generally, government amendments were given a clean bill of health. However, the Committee made a specific recommendation in respect of Amendment No. 313. It suggested that the power to amend other Acts should be subject to the affirmative resolution procedure. As we have already demonstrated in connection with this Bill, we attach very great importance to the views and recommendations of that committee. Accordingly, despite the rather short notice, we have brought forward amendments to give effect to the committee's recommendation. Amendments Nos. 321A to 321C will replace Amendment No. 321, which I shall not be moving. Their effect is to make orders under the new Clause 215(2) inserted by Amendment No. 313 subject to the affirmative procedure if they contain provisions amending or repealing an Act.

I am sure your Lordships will welcome that important extra safeguard, and I hope that having it means that the noble Baroness, Lady Anelay, will see no need to press her Amendment No. 314 which would remove the reference to "supplementary" changes. I beg to move.

Lord Hodgson of Astley Abbotts moved, as an amendment to Amendment No. 313, Amendment No. 314: Line 3, leave out "supplementary,

The noble Lord said: My Lords, the Minister has given us a very detailed and careful explanation of the complexities and we are grateful to the Government for their reaction to the Select Committee on Delegated Powers and Regulatory Reform. We were concerned about the need for the word "supplementary", because "incidental" and "consequential" covered everything that the Minister was talking about and "supplementary" seemed to take it a touch wider, especially when read in conjunction with line 6 "for giving full effect". That gave us cause for concern. However, given her explanation, if she could reassure us on that point, we would not press our amendment. We would be happy with her explanations and her amendment as currently drafted. I beg to move.

Baroness Carnegy of Lour

My Lords, as a member of the Delegated Powers and Regulatory Reform Committee, I am extremely glad that the Minister accepted our suggestion. However, in relation to subsection (3) of Amendment No. 313, I was at school so long ago that I learned to parse sentences. I challenge the Minister to parse the sentence in subsection (3). It is all one sentence. It is extremely difficult to understand. I know that lawyers must ensure that other lawyers are necessary, but for an ordinary human being it is really extremely difficult to understand that sentence. Does the noble Baroness agree?

Baroness Scotland of Asthal

My Lords, I had better declare an interest as a lawyer. In terms of parliamentary draftsman-speak, the amendment is drafted in a clear and proper way. I understand what the noble Baroness says. The only comfort I can offer is that it is likely that the people who will be most used to construing the provisions will be lawyers and at least they will understand the language.

In relation to the comments made by the noble Lord, Lord Hodgson, any supplemental, incidental or consequential provision will arise as a result of the changes in the respective Bills and how they impact upon each other. It will not be supplementary for any other reason. I hope that, by also adding the provision that that will be done by the affirmative procedure, that gives us "belt and braces". If there is any unhappiness, we have an opportunity to tease it out and put it to rest. With that explanation, I hope that the noble Lord will be content.

Lord Hodgson of Astley Abbotts

My Lords, I am grateful to the Minister for her reply. As I said, we wanted to explore the use of the word "supplementary". We are perfectly happy with her explanation and I beg leave to withdraw the amendment.

Amendment No. 314, as an amendment to Amendment No. 313, by leave, withdrawn.

On Question, Amendment No. 313 agreed to.

[Amendments Nos. 315 to 317 had been withdrawn from the Marshalled List.]

Clause 219 [Orders and regulations]:

Lord Hodgson of Astley Abbotts moved Amendment No. 317A: Page 121, line 29, at end insert— (4A) An order under section 217 which makes provision for any or all of the provisions of this Act to have effect in relation to any extradition proceedings that were commenced when the Extradition Act 1989 (c. 33) was for the time being in force, shall not be made unless a draft of the order has been laid before and approved by a resolution of each House of Parliament.

The noble Lord said, My Lords, this amendment inserts a new subsection into Clause 219, which lays down procedures for the regulations that will establish the detailed procedures governing the operation of the Bill. The amendment is designed to clarify beyond peradventure the procedures with regard to cases that are in progress at the time of the commencement of the Act. The issue caused some concern in Committee and, to be candid, the noble Lord, Lord Filkin, was not as persuasive or as clear as he normally is. It is vital that any confusion about under which system—old or new—a particular case falls should be eliminated.

We have received notes from Mr Clive Nicholls QC, an expert in the field of extradition. Much of what I say is dependent on his expertise, because he too is confused by the way in which the provisions are currently laid down. Clause 217 is a Henry VIII clause, leaving the Secretary of State to make provision for commencement. It is to be contrasted with an Act making express provision for commencement. In the debate in Grand Committee on 10th September, the noble Lord, Lord Filkin stated: Clearly, the new legislation should apply to all requests".— [Official Report, 10/9/03; Col. GC 44.]

Baroness Scotland of Asthal

My Lords, I hope that I will be able to give the noble Lord some pleasure and be able to foreshorten what he was about to say. I know that there was confusion about this matter, but I believe that I can make a welcome announcement to your Lordships that will obviate the need for this amendment. I should say at the outset that the Government's position is that the new legislation should apply to all requests received after the point at which the new Act conies into force. I rose to my feet because I know that the noble Lord may have wished to explore in some detail the reason why there needs to be clarity. I just want to share with him that we agree.

Lord Hodgson of Astley Abbotts

My Lords, I am grateful to the noble Baroness for those comments. The question on receipt is whether the request is received at the Foreign Office or the Home Office or at the time when the Secretary of State issues his authority or is ordered to proceed, signifying that he has received the request.

The concern has been made clear to us that some injustice and prejudice could be caused to an accused if there were a delay between these two events. I am not saying that it is necessarily deliberate—it might be, but it might be an administrative delay. Therefore, one was trying to ensure that there would be no delay of any kind. Perhaps the noble Baroness could clarify her definition of "received". I beg to move.

Baroness Scotland of Asthal

My Lords, I know that it is unusual, but perhaps I may now explain the Government's understanding. The noble Lord will be able to hear it and consider whether he is content with our proposals.

The Government's position is that the new legislation should apply to all requests received after the point when the new Act comes into force. Therefore, if, as we hope, the new Act comes into force on 1st January 2004, a request received on 30th December 2003 will be handled under the 1989 Act procedure. A request received, for example, on 5th January 2004 will be handled under the new procedure.

I turn to the specifics of the amendment. Its effect would be to provide that any order which has the effect of transferring existing cases already in the system to the new arrangements should be subject to the affirmative resolution procedure. I understand why the noble Lord's amendment was tabled. The Government are on record as saying that we might want to transfer a small number of cases already in the system to the new arrangements when they come into force. This power would have been used only sparingly and where it was in the interests of justice. Of course, the person concerned would have had the opportunity to mount a legal challenge to use it. Therefore, "received" means the first point when it is received by any UK authority.

Nevertheless, it became clear that the possibility of a case being transferred was causing a considerable amount of disquiet, of which this amendment is the latest manifestation. The Government have therefore reflected further on the matter and I am now in a position to give your Lordships the outcome of those deliberations. We have decided that no existing cases will be transferred to the new arrangements and that all cases already in the system when the new Act comes into force will continue to be dealt with under the 1989 procedures. I hope that that statement is unequivocal and unambiguous. I hope, too, that noble Lords will welcome it as a helpful clarification.

Under the terms of the Bill, the case transfer could have been achieved in one of two ways; by using a commencement order or by using a designation order. In either case, an order would have been necessary. It could not have been achieved purely administratively. So your Lordships need not fear that we might try to get away with any case of that kind. It would require an order and no such order will be made. I hope therefore that the noble Lord will feel that it is not necessary to pursue his amendment and that as a matter of general policy, it would be an unusual amendment to make. As I am sure your Lordships are aware, making commencement orders subject to affirmative resolution procedure would be virtually unprecedented.

I hope that I have said enough to make the noble Lord feel comfortable, but if he needs further clarification, I shall be happy to give it.

Lord Hodgson of Astley Abbotts

My Lords. I thank the Minister for that helpful reply. I am comforted by the fact that she has defined "received" as being by any UK authority, so there is no question of any administrative slip-up. She has also given the commitment that no existing cases will be transferred from one procedure to the other. Given those two assurances, I am happy to beg leave to withdraw Amendment No. 317A.

Amendment, by leave, withdrawn.

Baroness Scotland of Asthal moved Amendment No. 318: Page 121, line 30, leave out subsection (5).

On Question, amendment agreed to.

[Amendment No. 319 had been withdrawn from the Marshalled List.]

[Amendment No. 320 had been re-tabled as Amendment No. 317A.]

[Amendment No. 321 had been withdrawn from the Marshalled List.]

Baroness Scotland of Asthal moved Amendments Nos. 321A to 322: Page 121, line 33, after "order" insert "mentioned in subsection (6A)

Page 121, line 33, leave out "under section 144(10) or 175(4) Page 121, line 35, at end insert—

  1. (a) an order under any of these provisions—
  2. (b) an order under section 215(2) which contains any provision (whether alone or with other provisions) amending or repealing any Act or provision of an Act."

Page 121, line 35, at end insert—

  1. "(7) A statutory instrument is subject to annulment in pursuance of a resolution of either House of Parliament if it contains subordinate legislation other than an order mentioned in subsection (6A) or an order under section 217.
  2. (8) A territory may be designated by being named in an order made by the Secretary of State under this Act or by falling within a description set out in such an order.
  3. (9) An order made by the Secretary of State under section 1(1) or 70(1) may provide that this Act has effect in relation to a territory designated by the order with specified modifications."

On Question, amendments agreed to.

Clause 220 [Orders in Council]:

Baroness Scotland of Asthal moved Amendments Nos. 323 and 324: Page 122, line 2, leave out "any provision of this Act other than section 218" and insert "section 179 or 180 Page 122, line 9, leave out subsections (3) and (4).

On Question, amendments agreed to.

Clause 222 [Extent]:

Baroness Scotland of Asthal moved Amendment No. 325: Page 122, line 19, leave out "and 175" and insert ", 175 and (Written statements and admissions)

On Question, amendment agreed to.

Schedule 1 [Re-extradition: Modifications]:

Baroness Scotland of Asthal moved Amendments Nos. 326 and 327: Page 123, line 21, leave out paragraph 8. Page 126, line 37, leave out paragraph 38.

On Question, amendments agreed to.

Baroness Scotland of Asthal moved Amendment No. 328: After Schedule 1, insert the following new schedule—

"EUROPEAN FRAMEWORK LIST

  1. (1) Participation in a criminal organisation.
  2. (2) Terrorism.
  3. (3) Trafficking in human beings.
  4. (4) Sexual exploitation of children and child pornography.
  5. (5) Illicit trafficking in narcotic drugs and psychotropic substances.
  6. (6) Illicit trafficking in weapons, munitions and explosives.
  7. (7) Corruption.
  8. (8) Fraud, including that affecting the financial interests of the European Communities within the meaning of the Convention of 26 July 1995 on the protection of the European Communities' financial interests.
  9. (9) Laundering of the proceeds of crime.
  10. (10) Counterfeiting currency, including of the euro.
  11. (11) Computer-related crime.
  12. (12) Environmental crime, including illicit trafficking in endangered animal species and in endangered plant species and varieties.
  13. (13) Facilitation of unauthorised entry and residence.
  14. (14) Murder, grievous bodily injury.
  15. (15) Illicit trade in human organs and tissue.
  16. (16) Kidnapping, illegal restraint and hostage-taking.
  17. (17) Racism and xenophobia.
  18. (18) Organised or armed robbery.
  19. (19) Illicit trafficking in cultural goods, including antiques and works of art.
  20. (20) Swindling.
  21. (21) Racketeering and extortion.
  22. (22) Counterfeiting and piracy of products.
  23. (23) Forgery of administrative documents and trafficking therein.
  24. (24) Forgery of means of payment.
  25. (25) Illicit trafficking in hormonal substances and other growth promoters.
  26. (26) Illicit trafficking in nuclear or radioactive materials.
  27. (27) Trafficking in stolen vehicles.
  28. (28) Rape.
  29. (29) Arson.
  30. (30) Crimes within the jurisdiction of the International Criminal Court.
  31. (31) Unlawful seizure of aircraft/ships.
  32. (32) Sabotage."

The noble Baroness said: My Lords, I beg to move Amendment No. 328.

Baroness Anelay of St Johns had given notice of her intention to move, as an amendment to Amendment No. 328, Amendment No. 329: Line 22, leave out "and xenophobia

The noble Baroness said: My Lords, the amendment has not been spoken to and it would not be customary to speak again, although we have every right to do so. However, it may be for the convenience of the House if I indicate that since looking again at the Minister's answer when we debated these matters on a previous day, I shall not be returning to this matter at Third Reading.

[Amendment No. 329. as an amendment to Amendment No. 328, not moved.]

On Question, Amendment No. 328 agreed to.

Schedule 2 [Amendments]:

[Amendment No. 330 not moved.]