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9 Dec 2002 : Column 64—continued

The Parliamentary Under-Secretary of State for the Home Department (Mr. Bob Ainsworth): We will want to discuss in Committee how the rule of speciality applies. There is clearly the issue—it is not hidden—of the dropping of dual criminality for those offences on the list. The hon. Gentleman claims that other safeguards will be removed, but surely he recognises that the proposals in the Bill do not change anything to do with extradition to countries with the death penalty or with the bar relating to politically motivated prosecutions.

Mr. Burnett: I am grateful for that intervention. I am not suggesting what the Bill will do but merely giving an exposition of what I believe the current law to be. I was interested by what the Minister has just said and by what the Minister for Policing, Crime Reduction and Community Safety said earlier about his mind not being closed to amendments. I was glad to hear that.

Other principles are worthy of mention, and they include legal representation, abuse of triviality, consular access, availability of interpreters, habeas corpus and no undue delay. Some of them are unfortunately absent even in countries that are signatories to the European convention on human rights. As the hon. Member for Perth (Annabelle Ewing) pointed out, we should expect minimum standards. We do not want to put the cart before the horse. It is a shame that the Government have signed up to the framework decision before securing those minimum standards in the European Union itself. The first is that a suspect or defendant must be able to understand and contribute to the legal process. If he or she cannot, there can be no effective participation. Such impediments, whether linguistic, physical or mental, must be overcome. That means having adequate interpreters, legal representation and consular access.

Unfortunately, some member states do not have legal aid—I understand that Greece is one—and cannot provide proper legal support. We need effective participation in the legal process, and it will be denied if the apparatus, such as access to interpreters, is not in place. Furthermore, rights that we believe are fundamental, such as the presumption of innocence until proven guilty, the right to bail if appropriate and the right against self-incrimination, should be expected from all jurisdictions to which a person is extradited. Not only have the Government precipitately signed the

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framework decision, but the Bill takes the provisions further, as the hon. Member for Sunderland, South stated.

Our main objection to the framework decision is the fact that the principle of dual criminality is surrendered if the offence falls within one of the 32 offences listed in article 2.2 of the framework decision, or if the offence carries a maximum penalty of at least three years' imprisonment in the issuing state. To say that some of those offences are nebulous is an understatement. Some of them are certainly not capable of definition and many are capable of distortion, as the Home Affairs Committee points out. Swindling and xenophobia are difficult to define under the current law in EU member states, including this country. There is no way of knowing how those offences may be defined in future. Offences such as participation in criminal organisations, corruption and fraud are extremely broad, as the Select Committee states in paragraph 26 of its report.

Dr. Nick Palmer (Broxtowe): Does the hon. Gentleman agree that the distinction that he is trying to draw implicitly challenges the principle of XWhen in Rome, do as the Romans do"? The offences for which one might be extradited would, with rare exceptions, be those that are committed on the soil of the country where the law applied. Unless the hon. Gentleman wishes to change that, he must accept that it is possible to be arrested on the spot. We are debating only whether a person could be arrested if he flees the country before the authorities catch up with him.

Mr. Burnett: I understand the hon. Gentleman's point, but we had a short debate on that earlier. As I said when I intervened on the right hon. Member for West Dorset (Mr. Letwin), it is clear that, with some resourcefulness, one can invariably match up the crimes and there is no problem with dual criminality.

If we are asked to execute a European arrest warrant, our courts will not be able to refuse to do that on the ground that we disagree with the legal classification of the offence. We will be bound by the classification made by the issuing authority.

Tony Cunningham: Does the hon. Gentleman oppose the European arrest warrant in principle, or is it the detail or the drafting that causes him problems?

Mr. Burnett: I do not oppose it in principle, but there have to be minimum safeguards and conditions. That is what I am trying to advocate.

Regrettably, we are committed to those provisions, and they sweep away the crucial safeguard of dual criminality. That long-standing and powerful principle is a protection against abuse. The Home Affairs Committee helpfully recommends in paragraph 31 that, in each case, a district judge should look at the terms of the offence specified in the European arrest warrant and state whether dual criminality applies. If the offence is not a crime in the United Kingdom, the decision should be referred to the Home Secretary. I am anxious to know what practical steps are needed to achieve that important amendment.

Clause 12 is not sufficiently tight in relation to double jeopardy, which occurs from time to time throughout Europe. Lorry drivers are particularly vulnerable as

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they can be charged on the same facts in more than one country, but with different offences. Like most hon. Members, we are concerned about the Executive's wide discretion to designate states as category 1 or 2 territories. The Bill provides that that can be done by an Order in Council. It does not provide for guidance covering the choice of territories and the Order in Council is subject only to annulment by negative resolution of the House. Again, as the Home Affairs Committee points out, it enables any country to be designated a category 1or 2 territory. There is nothing to prevent an Order in Council from designating a country that has not signed up to the framework decision as a category 1 territory, so a highly unsuitable country may be promoted for a pragmatic reason. I hope that the Government will table amendments in Committee along the lines suggested in paragraphs 41 and 43 of the Select Committee's report.

I believe that a prima facie case should be made. I am aware that changes to that were made some time ago between EU countries, as the Minister explained, but it should be preserved for category 2 territories. Furthermore, the rule of speciality should be preserved in all respects for all extraditions. That means securing that a requesting state proceeds against an individual only on the facts and for the offence for which he or she is sought for extradition. I agree that for that reason clause 53 should be deleted in its entirety.

Finally, there is no justification for extending category 1 status to any country that maintains the death penalty. That is because the clause 15 bar is not absolute. As the Home Office admitted, it will be possible to designate non-EU countries as category 1 countries and it is conceivable that such a country would retain the death penalty on its statute book. That is reason enough to justify the proposition that part 1 should not be extended to include any countries that still use the death penalty as a form of punishment.

We have reservations about many other matters, although they are more appropriate for deliberation in Committee. My colleagues and I thought long and hard about our attitude to Second Reading. As I said, there are practical reasons why the extradition system should be less bureaucratic and swifter, but on no issue and in no circumstances can we justify reducing the proper judicial safeguards and other safeguards to which all citizens are entitled. There is a case for reforming extradition law, but not for abandoning the safeguards to which I referred.

The Bill has fundamental flaws that must be remedied in Committee. I am glad that the Minister has not closed the door on amendments. I was also pleased to hear the Under-Secretary's comments. However, unless there is root-and-branch change, we shall vote against the Bill in future proceedings in this House and the other place.

6.8 pm

Ross Cranston (Dudley, North): The Bill is long overdue, but I have several concerns on which I hope to be reassured in the winding-up speech and during the Bill's progress through the two Houses.

The Government's approach has been to expose the Bill to criticism. A draft Bill was prepared on which the Joint Committee on Human Rights produced a report and the Home Affairs Committee, chaired by my hon.

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Friend the Member for Sunderland, South (Mr. Mullin), commented. That is all to the benefit of the House. Too often, Bills are presented to us and we do not have the time to consider them properly. In this case, the approach has been correct. There may be disagreements about what we should do about the Bill but at least we know the issues because they have been exposed.

There is no doubt that the law of extradition is out of date. To some extent, it dates back to 1870, when the law divided the world into the empire and the rest. Although there have been changes since then, the case for updating the law is strong.

There are practical difficulties with the administration of extradition law at present—my right hon. Friend the Minister mentioned its cost. The procedures are often dragged out and too much time is taken. In addition, with cross-border crime, we need a law that more readily addresses the issues. My hon. Friends have raised international drug dealing and trafficking in children.

Concerns have been raised about part 1. There are advantages in its drafting because considerable safeguards have been inserted. The bars to extradition are flagged up in clause 11 and developed in later clauses. The provisions mean that we shall not automatically extradite to category 1 countries. There are bars on double jeopardy. In response to an intervention, my right hon. Friend said that the provisions would have to take into account the Criminal Justice Bill. That is not a major problem, but he gave a welcome reassurance.

Clause 13 refers to extraneous circumstances. We shall not extradite people where they might be pursued for political or religious opinions. That is a good thing. There is, of course, the question of definition. In the Shayler case, the French court refused to extradite Shayler to this country on the ground that it was a political offence, so there can be disagreement about what extraneous circumstances might entail. However, there is a valuable barrier that will operate in our domestic law.

The barrier imposed in respect of the death penalty has already been mentioned. Both my hon. Friend the Member for Sunderland, South and Liberty have raised issues about the assurance that we shall have to receive, and to what extent it will be carried out in practice. We already have considerable experience of that issue in extraditions to the United States. As the Bill is considered, it will be helpful to hear how in practice the provision will operate with countries other than the United States.

The hon. Member for Torridge and West Devon (Mr. Burnett) mentioned speciality, which is a valuable barrier that will operate on extradition. There are other barriers. into which I need not go, that relate, for example, to persons who have been convicted in their absence and are being pursued by the requesting state.

There are two concerns that I should raise. The first involves the list of offences. It goes without saying that I would have preferred the list to be in the Bill. In a way, we are being asked to approve a Bill when we do not know, without referring to another document, what we are voting for. However, I understand the difficulties. It

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would be necessary to produce a composite definition involving offences in all the jurisdictions in the European Union in relation to the list. There is great merit in the Home Affairs Committee's recommendation in paragraph 55 of its report: if the list is to be extended in any way, Ministers should explain to the House when countries are being added to category 1.

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