WEDNESDAY 9 JANUARY 2002
Mr Jimmy Hood, in the Chair
MR BOB AINSWORTH, a Member of the House, Parliamentary Under-Secretary of State (Anti-Drugs, Co-ordination and Organised Crime), MS FENELLA TAYLER, Extradition Bill Team, and MS LESLEY PALLETT, Head of the European and International Unit, Home Office, examined.
(Mr Ainsworth) Thank you, Chairman, for attempting to accommodate me. We had no idea how long your proceedings would take having never appeared in front of you before and I thank you for the opportunity of coming and trying to explain the current situation with regard to the arrest warrant. With regard to your question on Article 1, the procedures are to be between judicial authority and judicial authority with only assistance in terms of administrative assistance from any central authority and, as you quite rightly say, it is now spelt out in Article 1 that it is to be a court decision to be taken. I know there were some initial concerns raised by Members I think of both Houses that potentially these warrants could be issued by police authorities, but that is not the case. Clearly it must be a judicial authority and we anticipate the same judicial authorities that are currently applying for extradition within the European Union will be using the powers of the European arrest warrant and it will be a court decision taken, judicial authority to judicial authority. In England and Wales the judicial authority will be the Bowe Street Magistrates' Court as it is currently.
(Mr Ainsworth) Well, the judicial authority will be designated by the issuing State, but it will have to be that, a judicial authority and a court, so it will not be for the British authorities to say what is and is not a court in another European State, but it will not be possible for authorities that clearly are not courts, that are not judicial authorities to issue requests for European arrest warrants as they will not be recognised.
(Mr Ainsworth) Well, the whole thing will need to be spelt out within the Bill. I think that it is now clear within the Framework Document where you will see in later Articles that it says that the requirement is between the judicial authority in the issuing State to the judicial authority in the executing State and quite rightly Article 1 says that the European arrest warrant shall be a court decision. I am not certain there is any further clarification and I am happy to try and understand concerns that there may be remaining, but it appears to me that it is very clear that this cannot be a police authority, but it must be a court, a judicial authority.
(Mr Ainsworth) Mr Cash, I would be very surprised if I were able to satisfy you on all of these issues. I am not trying to be in any way provocative in saying that, sincerely I would be very surprised. Throughout the document, in every Article you turn to, you will see that the "judicial authority" is referred to in the executing state and in the issuing state. We already have extradition arrangements with all European countries and we look at extradition in the individual cases with those authorities. Yes, there are different legal systems that apply in different parts of the European Union, but there are clear judicial authorities who apply for extradition and who will be the authorities that have the power to apply for a European arrest warrant. Those judicial authorities will be reported under the Framework Agreement, they are the judicial authorities that will have that power and it is clearly stated in the Framework Document that it will be a court decision. You will need to spell out what your fear is.
Mr Cash: No, I am afraid that will not be the way round, Minister.
(Mr Ainsworth) As I say, I think it is pretty clear that we are talking about judicial authorities and only judicial authorities will be able to apply. We are not talking about accession states by the way, we are only talking about Members of the European Union. Yes, at some time in the future those accession states will potentially become full members and they will have to comply with all the provisions of the ECHR and then they will be accepted into these arrangements and recognised as such.
(Mr Ainsworth) Can I try to satisfy you in saying that I do not think there is any doubt that the British judicial authority, for example, Bow Street Magistrates' Court in the case of England and Wales, will not only not have the ability but will certainly not execute a European arrest warrant that comes from anything other than a judicial authority in another European state.
(Mr Ainsworth) I could provide you with a list of all the different authorities who have looked at extradition arrangements over many years.
Mr Cash: We know what the arrangements are here in the UK.
(Mr Ainsworth) The principle, Chairman, which we are accepting - and if members demur
from that principle then there is not going to be any way of satisfying them - is that the countries with whom we are about to enter this arrangement have all signed up to the ECHR, they are all our European Union partners, and there are huge benefits that can flow from mutual recognition of their systems, and there is not the necessity for ourselves to vet every aspect of those partners' procedures. If there are members who, as I say, demur from that, they are not going to be happy with this direction, but that is the position of the Government.
(Mr Ainsworth) We are working with and trying to assist all of the accession states to come up to the kind of standards that are going to be required of them to have access to the Union and access to the kind of facilities that we are bringing in here. So we would not accept that there are going to be countries that will continue to have lower standards of justice than that required by the ECHR and which are normal within the European Union and yet have access to the use of the European arrest warrants.
(Mr Ainsworth) I am not sure about the situation as regards military courts.
Mr Connarty: I think that should be clarified in the Bill.
(Mr Ainsworth) I think quite the reverse actually. In the modern age we have a clear choice about where we go with regard to future recognition and judicial co-operation with our European partners. We either stick with the kind of cumbersome, and there is no doubt about it, antiquated system that we have at the present while we recognise that there is increasingly free movement of their nationals within our country and our nationals within their countries and we just accept that it can take years and be a very long process and often a process that thwarts the ability to apply justice where someone has crossed the border, or we go down the road of mutual recognition, or the other alternative is to try to establish some body of European law. I would have thought that it is far more acceptable to our citizens that we go down the road of mutual recognition in order to provide adequate justice in that modern situation, in that modern setting, rather than attempting to invent some kind of European law that applies to all the countries. So I see mutual recognition as an alternative to that which you describe. When we turn to the generic list I understand some of the concerns that arise from the list. The arrest warrants themselves will not be able to be framed in the terms of that list, they will have to be framed as a specific offence in the issuing country. So, therefore, let's say in the area that comes under swindling, no-one will see a European arrest warrant that says "this person is accused of swindling". They will see a European arrest warrant from another country or from this country going abroad which says that "this person is accused of counterfeiting documentation in order to allow them to access somebody else's bank account." It will have to be framed in terms of a specific offence that falls within those terms, and the warrant will only be accepted if it is framed in such a way. If we were to try to identify every single offence rather than have these broader descriptions, then it would be a very long list indeed, and it would be tantamount to trying to encapsulate dual criminality in a massive list that covered every single situation. I do not really know what the choice is and whether we could have a framework list that says only in these areas is dual criminality abolished.
(Mr Ainsworth) There is no intention to deceive. It is an arrest warrant. Let us say if we are applying for someone's return from Germany who committed a crime in this country, the offence that is described on the arrest warrant will fall within that area, it will name a specific offence that is relating to a crime with that minimum sentence within that threshold sentence. It will only be valid if it does name a specific offence in British law in order to have that person returned to this country. Those generic terms are there in order to tell people in what category they can frame those requests. The actual arrest warrants that are sent or received will have to name a specific offence that falls within that area.
(Mr Ainsworth) Our procedures, as they apply at the moment, apply to our European partners as well as other countries and are extremely cumbersome and they take many, many years, which is a deterrent for application in the first place. We are not the easiest country from which to get extradition and we have not got an exceptional record in this regard. We often get criticised by other countries for our refusal to extradite people in other countries. We have a difficulty with criminals living in other European countries who are accused of committing crimes here. It is bound to be a far more streamlined situation, it cuts out the involvement of the executive. It cuts out political involvement. It recognises judicial authority and a request for a return of an accused person. That is going to be a much faster procedure and it is going to be far more difficult, I think, for people to, therefore, escape justice by merely crossing a border which is freely and easy crossable in the modern age. That is the whole purpose to the arrangement at the moment. We have situations with extradition requests for European partners currently on-going that have been dragged out for years by constant judicial challenge and delaying tactics, and that cannot be in the interest of justice.
(Mrs Tayler) This particular paragraph in this article did go through numerous redrafts because it is an extremely complex and an extremely difficult concept to frame. Particular wording here was, indeed, supported by the United Kingdom.
(Mrs Tayler) The reason it is framed in a rather complicated manner is it is trying to do two things, it is trying to prevent an injustice on the one hand but capture the situation where extradition would be right. An example of preventing an injustice is where a United Kingdom citizen, somebody who is in the United Kingdom, is carrying out something in the United Kingdom which is legal here but in another country, another member has extra-territorial jurisdiction, where it is an offence in that country and they want to extradite the return of a person from the United Kingdom to that country. This will prevent that, it is clearly a case of an injustice. The other limb of that is not to prevent extradition where it would be right to extradite the person where the country has extra-territorial competence.
Mr Connarty: I look forward to seeing the draft Bill.
(Mr Ainsworth) Your description of the facts do not fit the facts as I see them at all. We announced the intention to modernise our extradition arrangements going back some long time. We issued a consultation document back in March of last year. That consultation document spelt out our intention to streamline our extradition arrangements, not only with our European partners but with other states. Yes, of course, the events of September 11 gave some focus and some impetus to get this agreed and I think that if there are any members of the House trying to suggest that effective extradition is not relevant to action against international terrorism that is a very strange position, indeed, that is not the origin of these proposals. Why on earth should it be limited to simply terrorism, the intention was there? It is a public document and if there are any members who want to check that out it was made public in March. The responses to the consultation were published and placed in the library and are available on the Home Office website. It is not correct to say that the origin of these proposals was 11 September.
(Mrs Tayler) We said that we have given commitments to committees of the House in response to the scrutiny process that we are looking at. We will address those issues of conscience and come back to the House in the framework legislation. This is a Framework Document. It does not dictate in every detail how we frame the legislation that we bring forward to the House. Yes, the legislation must comply with the Framework Document, but there is no requirement on us to go further than that, and the terms of the legislation will be subject to scrutiny in the normal way, so the issues that the honourable gentleman raises are not being forced on us by the European Union, they will be decisions that will be taken by this House when we come to deal with the detail of the legislation that we bring forward.
(Mr Ainsworth) We are expecting them to report back in February but there is no definite time.
(Mr Ainsworth) Have I taken the opportunity to talk to members personally?
(Mr Ainsworth) No, I have not, not yet.
(Mr Ainsworth) Is the honourable Member concerned about it?
(Mr Ainsworth) If there are concerns about the Framework 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 do so.
(Mr Ainsworth) There is no requirement in the Framework Document for the British Government to release the dual criminality requirement for anything other than those areas covered in 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 Document and where at the moment we are able to release 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.
(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 Document. 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.
(Mr Ainsworth) You can see the new wording that emerged from the latest document. The person who is subject to a European arrest warrant - this is where an in absentia decision has been taken - will 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 ---
(Mr Ainsworth) A retrial. We do not believe that is challengeable within the Framework Document, and so that is a clear commitment we can give the House and that is our intention with regard to the legislation.
(Mr Ainsworth) If we thought it was necessary we would do that.
(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 Document 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.
(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.
(Mr Ainsworth) Let me be clear about that, that was the wording of the documentation going into the last negotiation.
(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 thrown, 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.
(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 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.
(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 issue.
Mr Connarty: That is a very sad reply.
(Mr Ainsworth) It is my understanding that we are able to do that. We are able to do that within the Framework Document 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.
(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 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 intention - to 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.
(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 reinstituted 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.