---

9 Dec 2002 : Column 53—continued

Ian Lucas (Wrexham): The right hon. Gentleman has stressed the importance of using terms exactly. When he referred to English officers, did he mean British officers?

Mr. Letwin: For the purposes of English law and in England, they would be English officers. Presumably for the purposes of Scottish law and in Scotland they would be Scottish officers. My unionism is still strong enough for me not to worry too much about that distinction, although I am immensely concerned about the prospect of an officer from another EU country coming to the United Kingdom because he has been designated by the Secretary of State. I take the Minister's statement at face value, and if he says that the intention is to specify only law enforcement officers in our jurisdiction, that is what the Bill should say.

Mr. Hogg: I am sure that that is the answer we shall be given in the Minister's winding-up speech, but somewhere down the track there may well be an agreement between EU interior Ministers that each will enable the other to authorise, by some designation procedure, the officers of the other to execute the law in the United Kingdom.

Mr. Letwin: I agree. I must not have made myself clear. I do not mean that it would be acceptable for the Minister to keep saying, on the record, that he intends the clause to be used only in regard to English officers; I mean that part 1 would only be remotely satisfactory if it specifically precluded the least possibility of anyone other than an English law enforcement officer carrying out such procedures in England. That is why I say that the Bill must mean what the Minister says he wants it to mean, and not something else. I do not want to live in an Alice in Wonderland world of legislation.

Annabelle Ewing : May I take up the point made by the hon. Member for Wrexham (Ian Lucas)? I speak as a Scots lawyer and the representative of a constituency controlled by the Scottish National party.

The right hon. Gentleman will know that Scotland has a separate criminal legal system—fortunately—with separate rules and regulations governing our police force. It would help if he was specific when referring to the territorial make-up and the various component parts of the United Kingdom in that context.

Mr. Letwin: In the presence of the hon. Lady, I would be terrified to make the slightest statement except in relation to English law and its enforcement in England. I am sure she will tell us what she thinks about Scotland, and we can discuss it further in Committee. I would rest content if it were the case, which it is not, that part 1 was satisfactory from an English point of view.

Tony Cunningham : Does the right hon. Gentleman have a problem with the drafting, or does he oppose part 1 in principle?

Mr. Letwin: Both.

9 Dec 2002 : Column 54

My second objection is this. We now come to the first of the issues of principle. Part 1 would not be acceptable even if it meant what the Minister says he means it to mean. The Xlist of offences", for instance, is not a list of offences, as my hon. Friend the Member for Aldridge-Brownhills (Mr. Shepherd) pointed out with his usual perspicacity. It is, in fact, a mechanism whereby a set of representatives of executive powers—of Governments—in the European Union will decide what, from time to time, they wish to be the list of offences. The Minister told the House that it was far better to ensure that it was done by the unanimous decision of the Council of Ministers rather than by some other mechanism, but what does he mean by the unanimous decision of the Council of Ministers? He means that the Governments of the member states would get together and change the framework directive, and thereby change the list of offences.

Again, the Bill may not mean what it is meant to mean. Perhaps it is meant to mean just the current list; if so, let us include the current list, to which I shall shortly object in any event, and not a mechanism that seems to the ordinary reader to permit the list to be enlarged further. In fact, I believe it to be the intention of Her Majesty's Government to allow the list to be enlarged. I think that Parliament will be consciously sidelined as we proceed, with a larger and larger list of offences specified.

The list is already deeply obnoxious. It contains the arguable offence of xenophobia, which is an offence in some countries but not in ours, in a most bizarre and ambiguous form. Clause 13 specifically provides one of the few bars to extradition under part 1. For example, extradition would be barred if a person found that the warrant had been issued for the purpose of prosecuting or punishing him on account of

Xhis race, religion, nationality or political opinions".

I do not know what an English judge would do when faced with one clause that tells him that he cannot extradite someone if the extradition relates to the person's political opinions, when another clause tells him by the roundabout route of the framework directive that the person can be extradited if the charge is xenophobia. I do not know how an English judge could be expected to adjudicate on that appropriately. It is not clear from part 1 whether the English judge will or will not—there are two contrary suggestions within the drafting—be able to look at whether the charge of xenophobia is ipso facto a charge that relates to the political opinions of the person in question.

I do not suppose the Minister has the slightest idea what the answer to that question is. The framework decision has been adopted lock, stock and barrel, and a group of people has got together to put back, through the bars in clause 11, a few constraints designed to ameliorate a set of draconian measures.

Mike Gapes: May I take it from the right hon. Gentleman's comments that he would be perfectly happy if neo-Nazi groups in one European Union state were able to use computers, the internet and publishing material to undermine laws on incitement to racial

9 Dec 2002 : Column 55

hatred or xenophobia such as exist in this country and in Germany without any possibility of action being taken against them?

Mr. Letwin: I am not sure that I have ever heard quite such a confused intervention. The difference between the offence of xenophobia, which we do not have, and the offence of incitement to racial hatred, which we do have, is the very difference that we are discussing. Of course, if the test of dual criminality continued to apply as it should—it does not under the Bill—one could continue to extradite those who were engaged in incitement to racial hatred, which is a criminal offence in this country, but not those who were accused of xenophobia, which is not an offence in this country.

Mr. Denham: The right hon. Gentleman has given his views on xenophobia. What is his view about a British citizen who commits a tax evasion offence in this country but is able to escape with impunity to another European Union country? Is he happy that there should be no extradition powers because no dual criminality exists?

Mr. Letwin: Given that we are talking about an extradition procedure that, in total, currently covers about 50 people a year, some 25 or 30 of whom come from the European Union, the idea that one would prejudice the fundamental liberties built into the fabric of our laws for the sake of the possible extradition to this country of perhaps one person every two or three years is not proportional. I should say now—I will deal with the matter in more detail in a moment—that we accept that, in the sole case of terrorism, the dangers to this country are so great that something similar to what is in part 1 might be thinkable. However, that is an altogether different level of threat.

Mr. Burnett: Does the right hon. Gentleman agree that the Minister is perhaps not being as—

Mr. Hogg: Candid?

Mr. Burnett: No, not candid. Does the right hon. Gentleman agree that the Minister is not being as resourceful as he could be? Tax evasion is also fraud, and presumably fraud is actionable in both states.

Mr. Letwin: The hon. Gentleman has the great advantage of knowing something about English law, and of being a canny lawyer. I have no doubt that the British state could—and indeed does—arm itself with canny lawyers who could make such an argument. That illustrates very well why we ought not to seek to avoid the need for ingenuity, and why we ought not to adopt instead draconian measures that have real effects on civil liberties in this country, when the gains are so slight.

I turn briefly to the issue of the fair trial, which is of immense importance and also reflects on the Criminal Justice Bill. There has been a misunderstanding between Opposition Members and those on the Treasury Bench about the meaning of a fair trial, and of the term Xpresumption of innocence"; the Minister's remarks brought that out interestingly and powerfully. He

9 Dec 2002 : Column 56

pointed out that one of the bars to extradition under part 1 is any failure to comply with human rights, and in that he was absolutely right. There is no doubt that clause 21 unambiguously applies the European convention on human rights, and even if it did not I do not suppose that it would make the slightest difference under the Human Rights Act 1998. In any event, it is unambiguously present in the Bill.

Paragraph 2 of article 6 of the convention, which is properly headed XRight to a fair trial", states:

XEveryone charged with a criminal offence shall be presumed innocent until proved guilty according to law."

That is the paragraph on which the Minister was hanging his hat. In many of the jurisdictions to which part 1 applies—in all of them, I believe—the ECHR is either incorporated into, or de facto a part of, law through the monistic theory. One way or another, the meaning of article 6 is therefore already being applied in those countries, many of which have inquisitorial systems of justice. In such a system, the examining magistrate begins with the assumption, let us say, that the person whom he or she is investigating deserves to be investigated, and seeks to find out whether there was a reason why the person should not have been investigated. I would call that an assumption of guilt, to be disproved by the investigation. Call it what one may, the process is utterly different from the dialectical process in an English court of law, whereby the accused is presumed by the jury to be innocent, and the duty of the prosecution is to prove beyond reasonable doubt that the presumption of innocence was false. Those are different systems of justice.

---