Examination of Witnesses (Question 20-36)
WEDNESDAY 9 JANUARY 2002
(Mr Ainsworth) No, I have not, not yet.
21. Would you consider doing that, Minister,
in the short time available?
(Mr Ainsworth) Is the honourable Member concerned
22. I am thinking of the comment we heard this
morning from another member, Mrs Dunwoody, that there are concerns
across the floor of the House that raise a number of issues. Am
I not right that it is one of your members of the European Parliament
who is rapporteur on this. From my experience when I was rapporteur
or spokesman for the Conservatives, I was always very flattered
when the Minister sought me out to explain some of the concerns
that we had at home. Would you consider that this was a useful
course of action?
(Mr Ainsworth) If there are concerns about the Framework
Decision itself, yes, most certainly that should happen. As I
say, there is an amount of detail that needs to be settled and
we are free to settle it within the national legislation that
we plan to bring forward, and that is a matter for the House to
23. Just to enable him to read the note that
has just been passed to him, could I ask, following on from that,
about one of the detailed concerns that was clearly felt by the
Committee this morning which is the specific issue of dual criminality.
What assurance can you give us today on the issue of plane spotting,
for example? Clearly plane spotting is considered legal in this
country and we had an incident recently whereby 12 or 13 British
citizens were imprisoned for a considerable period of time and
now face returning to Greece to proceed this, and there is a concern
that that is just the type of issueand perhaps euthanasia
is another one to which Mr Cash referredthat many of us
had not thought that we might be or one of our constituents might
be subject to an arrest warrant for extradition. Have you considered
how Article 2(2) can be tightened up to remove any such situation?
Minister, you must agree that it is an alarming situation whereby
the Greek authorities have still not produced anybody who is charged
with the murder of the Defence Attaché in Athens some considerable
time ago. We now have a situation where people that were engaged
in what is considered an innocent activity in this countryplane
spottingare imprisoned without charge, which would certainly
not be the case in this country, and now face charges being laid
against them any time shortly. What immediate plans have you to
tighten up Article 2(2) to make sure that innocent activities
in this country will not mean that our constituents face prosecution
in a country like Greece once these provisions come into effect?
(Mr Ainsworth) There is no requirement in the Framework
Decision for the British Government to remove the dual criminality
requirement for anything other than those areas covered in Article
2(2) and covered by length of sentencing in 2(2). Whether or not
we do go further than that is a matter for us, it is a matter
we have said we will come back to the House on, and we will reflect
upon it before we bring in further legislation. So the only area
where we are obliged by the Framework Decision and where at the
moment we are able to remove the dual criminality provisions are
those areas that are covered by the list and those areas that
are covered by the minimum sentences, nothing else.
24. Minister, may I refer to your letter of
13 September to those who attended the debate in Standing Committee
B on 10 December. In Standing Committee you said that it had been
agreed that future texts of Article 5 would guarantee a retrial.
Yet within a day a further text was produced by the Presidency
which contains no such guarantee. Can you explain why the UK did
not insist on a text corresponding to the agreement you mentioned
in Standing Committee?
(Mr Ainsworth) Can I say to you, Chairman, and to
the Committee, that there was no intention to deceive Committee
B. The text going into various meetings did have that provision
within it, and I was trying to keep the Committee aware of a moving
situation, as we are required to do under scrutiny arrangements,
and to do our best not to hide the latest situation from the Committee.
I attempted to bring the Committee right up-to-date with what
the current situation was, and the text going into those meetings
required a retrial in those terms. You will see and you will be
aware that that wording changed. It would be helpful if I were
able to explain to you exactly why that changed but it was a negotiation
and I am not able to do so. What I am able to do and what I have
done in writing to the Committee is give a very clear indication
that it is our intention when bringing forward the legislation
to bring it forward in such a way that it makes it very, very
clear that where we are talking about a decision taken in absentia,
there will be, where it is required, a requirement to guarantee
a retrial, and we believe that we are fully able to do that within
the wording within the Framework Decision. If we did not believe
that we would challenge the situation, but that is our intention.
We see no reason to backtrack from that and that is a very clear
assurance that I can give to the Committee and to the House.
25. I can only press the point that you have
just made, Chairman, and thank the Minister for the response he
has already given. Just for my simplistic mind, the Government's
position is that it will impose this higher condition than exists
at the present time in the Framework Document and that the Government
believes that it will be able to sustain that higher condition
even though the present Framework Document only refers to the
exercise of a right of appeal. The Government's lawyers are quite
clear, are they, that we can sustain that position?
(Mr Ainsworth) You can see the new wording that emerged
from the latest document. The person who is subject to a European
arrest warrantthis is where an in absentia decision
has been takenwill have an opportunity to lodge an appeal
or opposition in the issuing State and to be present at the judgment.
We would have been far more comfortable if it had said clearly
and explicitly a retrial. I say again that it is our intention
within our legislation to use those words and to put those words
in. We see no way that that can
26. Those words being a retrial?
(Mr Ainsworth) A retrial. We do not believe that is
challengeable within the Framework Decision, and so that is a
clear commitment we can give the House and that is our intention
with regard to the legislation.
27. Could you tell us whether or not the UK
Government has made or will actually make an interpretive statement
in the Council itself that it will not surrender persons convicted
in absentia without the guarantee of a retrial?
(Mr Ainsworth) If we thought it was necessary we would
28. That has not been done yet?
(Mr Ainsworth) We have not done that and we do not
believe that is necessary. We believe we have the ability to bring
in legislation within this Framework Decision that uses those
terms and gives that assurance, and that that is sustainable.
If we are given any advice that is not so then we would have to
do something else, but that is not the advice that I am given.
The advice that I am given is that it is sustainable that we bring
in legislation that guarantees a retrial and that is our intention.
29. I want to pursue this. Just to be clear,
what was said earlier was that the United Kingdom would bring
in legislation, that is not just bring in legislation that anyone
extradited to the United Kingdom who had been tried here in
absentia but that anyone extradited from the United Kingdom
would not be sent back unless there was a guarantee of a retrial.
That is the position of the government.
(Mrs Tayler) That is the position. That is the issue
that people are concerned about. We are not concerned about people
coming here, are we, we are concerned about the situation where
people have been tried in absentia abroad and are potentially
sent back without the right of a full retrial.
30. What sticks clearly in my mind is it was
quite clearly stated by yourself in Committee B, "it has
been agreed that future text will guarantee a retrial if a person
is absent for the original trial". Exactly who was it agreed
with and who represented the United Kingdom and was present at
that agreement? In other words, where did that fact that you stated
then come from and why has it changed since? It does seem to me
when a minister says "it has been agreed having been to the
appropriate council", they are talking about a factual incident,
something that will be minuted somewhere with the consent or agreement
of the people on the committee. If that has been overturned it
would appear to me that that is what the United Kingdom government
should be challenging, the right of the Belgium Presidency to
overturn that agreement. If there was not, in fact, an agreement
then clearly there has been a misunderstanding of what went on
before the text was written by the Belgium Presidency?
(Mr Ainsworth) Let me be clear about that, that was
the wording of the documentation going into the last negotiation.
31. That is not what it says there. It says,
"it has been agreed that future text will guarantee it".
It does not say that the document had this in it.
(Mr Ainsworth) As I said, there was no intention on
my part to deceive anybody. I was trying to reassure people about
the direction in which the negotiations were moving. I was aware
that the document was written in that way. I was aware that a
meeting was about to start in Brussels. I made the Committee aware,
or I attempted to make the Committee aware, that that was the
wording contained within that documentation. By the end of that
negotiation, this was not an imposition of the Belgium Presidency,
the wording had changed. I immediately wrote to the Committee
to make them aware that the wording had changed and to give them
the assurance that I am now giving to this Committee that it is
our intention to frame our legislation in that way. If the words
I used were misleading I can only apologise for that, I was attempting
in a very fast moving situation, where there were continued discussions,
where documentation was being pushed through, we were trying to
get them to scrutiny committees as quickly as possible so that
they can follow the drift of those negotiations. I was trying
to keep them as up-to-date as possible.
32. I asked an earlier question on the same
issue, this is not an attempt to assist the minister, far be it
from me to do that, it is my understanding from your answer to
me earlier that when you made your statement in the Standing Committee
you thought that that was what was going to be agreed, at that
time that was the document going to the presidency. When you made
that comment at the Committee, from when you had that in your
mind, it was changed by the Presidency.
(Mr Ainsworth) Chairman, I have no problem with you
trying to assist me at all, if you want to do that you will get
no objection from me. I was asked to go in front of the Scrutiny
Committee and I was happy to do so. We were going into a meeting
at the time and they were concerned about the documentation that
had actually been laid and was therefore under scrutiny. The wording
in the documentation left a bit to be desired. I was aware that
there was new documentation, there was a new meeting taking place
and in that documentation it did say that there would be a guarantee
of a retrial. I made the Committee aware of that. By the time
those negotiations finished, which was only a day or so later,
that had changed. I wrote to the Committee straightaway to tell
them, "I am sorry, I have effectively misled you", because
this was the wording that came out of that Committee. If we are
going to have effective scrutiny and if you want me to make documentation
available to you quickly and repeatedly those kind of issues are
going to arise. I hope you would not want the Home Office to say,
"we will let you see it at the end of this process",
you would hope we would be open as the process is on-going and
try to keep you as up-to-date as we have now. Effectively we gave
a reassurance that was not worth anything at the end of the day
in that arena. We are now making certain that we are making it
clear to the Committee what our intentions are, and are our intentions
are to use those words.
33. There is no intention on my part to make
any point against the minister. I have been on this committee
long enough, and previously served on the directive sub committees,
to understand the shifting nature of European legislation and
negotiations. What I am concerned about is when the United Kingdom
thought it had an agreed position that position was the right
position for the EU, not just for the United Kingdom, that people
should not be extradited without the guarantee of a retrial if
they had been tried in absentia. That was for the whole
of the EU. I just do not happen to think it is sufficient for
the United Kingdom to say, it is all right, we will write it into
our legislation that we will not send anybody back to any country.
The point is that we did think we had negotiated an EU-wide agreement.
I think it is beholden on the United Kingdom government, because
it is supposed to influence the EU in a correct way, to go back
and argue that position for everyone in the EU. No one in the
EU should be extradited to another country where they have been
tried without the guarantee they will have a retrial and proper
legal representation. Anything else is a breach of justice. It
does seem to me the minister would have an opportunity, or the
United Kingdom government would have an opportunity, to go back
and renegotiate the final text so that the guarantee of a retrial
is EU-wide. Is the minister saying he has abandoned that strategy
or does he think the government are still willing to argue that
(Mr Ainsworth) I accept what my learned friend says.
In an ideal world that would be so, we would be very comfortable
with that going in. Members will be aware that before that meeting
there was not agreement across the EU and there was not likely
to be agreement across the EU. There was negotiation and numerous
things changed. As I tried to say to the Committee, I cannot pin
down exactly why that particular wording changed. If we thought
that there was a chance of getting agreement, and this needs to
be unanimous across the board, with that wording in we would be
going back and doing exactly what you are suggesting and trying
to achieve exactly that. If we were not comfortable with our ability
to be able to enshrine those words in our own legislation we would
be doing what was suggested over here, and that is making a statement.
We are comfortable with our ability to be able to do that. With
regard to our own citizens we are able to give that reassurance.
We are confident we are able to give that reassurance. We do not
think there is anything to be gained by attempting to reopen the
Mr Connarty: That is a very sad reply.
34. Are you seeking to assure us that in Article
5(1), where it does not specifically mention retrial, it is the
intention of the United Kingdom government to ensure that any
of his citizens who are aggrieved by any decision taken will have
a right of retrial when you bring the legislation about to assure
(Mr Ainsworth) It is my understanding that we are
able to do that. We are able to do that within the Framework Decision
and we intend to do that. If I have doubt about that I would tell
the Committee whether I have doubt about that, but I do not.
35. It is all very well, Minister, for you to
take advice and to come to a conclusion on the basis of that advice.
I do not want to go into the pre-history of this because I am
aware that these things can happen. What I am more concerned about
actually is the substantive question, which is whether in fact
in the Extradition Bill it is going to be possible in a way that
it will stand up, if and when it ever came before a court of justice,
that this interpretation that you are telling me you have been
advised of would be realistic and would actually be sustainable?
I am, therefore, going to ask you quite clearly whether we can
see the advice that you were given. One of the problems in this
whole arena of European scrutiny is that whereas we would be able
to draft our own legislation and make it quite clear, as you obviously
intended when you went into that meeting, that you would guarantee
a retrial, in practice, for reasons which are obscure to me, other
countries did not want that and, therefore, you were put in an
impossible situation. I am not going to criticise you for that.
What I am saying is, we want to be guaranteed when this Bill comes
out it has provisions which do stand up in relation to the Court
of Justice so it cannot then be overridden, like the Merchant
Shipping Act, and we then get told, "that is what we thought
on advice would be all right but in practice it was overtaken
by the courts and the Court of Justice. So would you be good enough
to let us have a copy of that advice?
(Mr Ainsworth) I think you are over-dramatising it
when you say that I was put in an impossible position. I was responding
to questions of scrutiny, I was attempting to keep the Committee
as up-to-date as I could, and subsequently the wording was changed
and I told the Committee of the change and made them aware of
it. I can only tell you that it is not normal for Ministers to
publish advice. I can only say to you that I have satisfied myself
that our intention in the way in which we intend to bring this
Framework Decision into being in this particular area of decisions
in absentia, and the right of a retrial in those circumstances,
is not challengeable in the actual legislation itself, and I have
satisfied myself that that is not so, and that there is no ability
to overturn particular decisions and that that is not going to
be a real situation. If I were worried about that, we would be
looking to change the words, but that is our intentionto
make it very clear, enshrined in British legislation that where
a sentence has been given in absentia, the person will
have a guaranteed retrial if sent back to the issuing state, and
I see no way that is going to be overturned.
36. Can I apologise for leaving the meeting
for another meeting briefly and this point may have been covered
while I was away. Can you tell me, Minister, which countries have
an objection to retrial and what the rationale behind that objection
is? I know it is not your responsibility to speak for them but
just as matter of interest.
(Mr Ainsworth) I would like to be able to but, as
I say, there were lots of changes to the wording in order to get
agreement across the 15 countries and this was one of them. If
I were able to clarify the position for the Committee as to exactly
why these words were chosen against those which we were far more
comfortable with, I would be happy to clarify the position, but
we did have the agreement of 14 countries going in and we had
the agreement of 15 countries coming out. There have been substantial
changes in different areas and it is not possible for me to be
able to say to you exactly why that was changed. The only guarantee
that I can give to you is if we thought we could get it reinstated
that would be something we would be looking at, but we do not,
so I would not support the point that Mr Connarty was making as
to why are we not going back and trying to get this for all of
our European citizens across the piece. We do not think that that
is realistic. This was the end result of the negotiations that
was reached in unanimity, but we do feel we are able to give a
guarantee with regard to our own citizens in these circumstances.
Chairman: Minister, thank you very much for
coming along this morning. It has been very interesting and we
will now thank you and allow you to get on to your next meeting.