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25 Mar 2003 : Column 246—continued

5.51 pm

Mr. Letwin: I thank the Minister for the significant progress that was made, not by me, of course, but by my hon. Friend the Member for Surrey Heath (Mr. Hawkins), the Minister himself and others in Committee. Clearly, some of the technical deficiencies in the Bill from part 2 onwards were altered and removed, which is much to the Minister's credit. I am particularly glad that the change to the Bill that was required, as I noted in my speech on Second Reading, to ensure that a British police officer would be involved in any arrest has been made today.

The Minister is right that the Bill, from part 2 onwards, could command support. We are now on the threshold of the Bill moving to another place, however, and he will be aware that we will ask our colleagues in the Lords—with considerable support, I suspect, from

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other parts of the House—to fight a sustained campaign radically to change part 1. It is therefore important briefly to rehearse the structure of the argument as we see it in relation to that part of the Bill, and, more importantly, to lay the groundwork for what I suspect, by the time we discuss the matter again—when the Lords, I hope, send the Bill back—will form the majority of our consideration.

As regards the substance of the argument, the Minister has just exposed the intellectual deficiency of the position that he and the Home Secretary have taken. He argued a moment or two ago that if we are to maintain a proper relationship between this country and our fellow members of the EU, and an effective, efficient and modern system, we need part 1 of the Bill. He is promoting a Bill, however, that contains part 2. I therefore presume that the Government regard part 2 as an appropriate method of dealing with extradition in relation to the rest of the world. It is extremely difficult to understand what is the material and operative difference, for the purposes of the Bill, between other countries that are members of the EU or that are within the Schengen area, and other jurisdictions that have established civilised and proper systems of jurisdiction. It is extremely difficult to understand what the basis for part 1 can be, other than the fact that the Home Secretary, among others, signed a framework directive that effectively compels part 1 to be introduced in this country, when those who had in mind a new evolution of EU competence saw their opportunity in the aftermath of 11 September. I do not know what the Minister believes, but I do not believe that in the absence of 11 September and the rush that it precipitated to a framework directive we would be discussing part 1. Instead, the Government would have favoured part 2 and we could have all supported the Bill.

What makes it imperative that the part 1 procedure applies to Austria but not to Canada? We have not heard Ministers give a coherent explanation for that today, in Committee, on Second Reading or in public. The Minister just explained—I do not know whether he realised quite what he was saying—that the discrepancy was brought about by the exigencies of travel. He argued that we need part 1 to deal with our relations with the EU because people travel around Europe a great deal in this modern world, and that part 2 is sufficient for everyone else. He cannot for a moment think that that is the determining difference, however, because people travel enormously to the rest of the world as well. The problem cannot be as a result of a difference that is located in the alignment and propriety of legal systems. Many Anglo Saxon juridical systems are vastly better aligned with our own than our continental partners' on the mainland of Europe.

We have yet to hear a coherent explanation of the need to have part 1 and part 2, save the one that I advanced: that the Home Secretary found himself in the odd position of rushing helter-skelter to sign something because we faced the ghastly realities of 11 September.

Mr. George Howarth: Even the right hon. Gentleman must recognise that there is a crucial and immense

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difference. Those countries covered by part 1 are subject to the European convention on human rights and the framework directive.

Mr. Letwin: The framework directive is the problem. It is because the Home Secretary signed it in the aftermath of 11 September that part 1 exists. The ECHR is a red herring. We could import ECHR constraints into part 1. I know that, because the Minister has imported them into part 2. There is no reason to apply part 1 to countries that are signatories to the ECHR, and part 2 to those that are not, because the Minister has devised an escape route by importing the ECHR into part 2. The hon. Member for Knowsley, North and Sefton, East (Mr. Howarth) is right to mention the framework directive, however. It was foisted on the Home Secretary—or perhaps he lunged for it—because we had gone through the trauma of 11 September and a group of people in other European countries and the Commission saw it as a golden opportunity to advance the cause of the EU's juridical competence.

My hon. Friends and I have to an extent accepted that the awful realities of 11 September live with us. That is why, clutching ourselves, pinching our noses and worrying, we have accepted part 1 in the sole case of terrorism, but we will not go beyond that.

Mr. Bob Ainsworth: I think that the right hon. Gentleman was present when we discussed that earlier. Does he accept that his proposal to single out terrorism as the only offence to which part 1 would apply is not workable and would reintroduce dual criminality across the board?

Mr. Letwin: As the Minister knows, and, indeed, as he has said, we have the most profound differences of view about dual criminality, quite beyond the question of Parliament. None the less, my hon. Friend the Member for Surrey Heath has tabled perfectly workable amendments. We do not accept that a definition in terms of the Government's legislation of the nature of terrorism is unworkable.

Mr. Ainsworth: It is a British definition.

Mr. Letwin: It is indeed a British definition, and is none the worse for that. The Minister will certainly not make headway against me by suggesting that there is some imperfection in this Parliament defining those things for which this Parliament will allow people to be extradited. To us, that seems a perfectly proper method of proceeding.

Lady Hermon: Will the right hon. Gentleman address the particular circumstances in Northern Ireland, which is part of the United Kingdom? Paramilitary terrorist organisations, both loyalist and republican, smuggle weapons, fuel and cigarettes. Given that the paramilitary terrorism that we have had to confront is so closely tied to other very serious offences, his proposal to narrow the definition to terrorism would do a great disservice to people of the United Kingdom.

Mr. Letwin: I do not think that that would be the case, although I would be delighted to discuss the matter with the hon. Lady. If part 2 were applied to the Irish

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Republic, for example, in respect of offences that are not covered by the definition of terrorism in the Terrorism Act 2000, it would work perfectly well. The oddity of the Minister's logic is that his remarks about part 1 undercut his case for part 2. If part 2 is, generally speaking, effective and modern as a means of extradition, why will not it work in the case of Austria? If it works for Canada, why will not it work for southern Ireland? I cannot see the logic in that.

I want to put on record what I think will be the crux when the Bill, as I hope, returns to this place. In contrast to the overwhelming forces which, with a notable exception recently, the Minister can normally carry into the Lobby, it is likely that in another place matters will be far more evenly balanced. I anticipate that, when the Minister's noble Friends on the Treasury Bench scent the possibility of defeat, they will argue that the House should not be irresponsible and that it should take into account the fact that the Home Secretary has already given the game away—in short, the framework directive is compelling. I do not know whether they will argue that, but I want to do my best this evening to ensure that they do not. If I fail in that endeavour, I want at least to ensure that we have a firm platform on which to erect the arguments that we will then want to make if the Bill returns to this House as a result of messages from the other place.

I do not know how it came about that when Parliament won the civil war, it lost the peace. I do not know how it came about that the prerogative power was not properly constrained in this country. That power is not unique, but it is most unusual. We are the only sophisticated democracy of which I am aware in which a Government can sign such things and incorporate them into our domestic law without proper parliamentary scrutiny other than that of other members of the European Union. How we allowed that to evolve is a matter for deep historical investigation, but this case is perhaps more poignant than any other, because huge endeavours were made in the House to ensure that the third pillar was different and that the prerogative power could not have such an effect on our criminal law. If our constitution, or what passes for it, has any meaning—in my more pessimistic moments, I doubt that it has—it is that under the third pillar the prerogative power does not have the capacity to bind Parliament. I do not otherwise know what the third pillar is. If the Home Secretary took it into his head to sign the framework directive after 11 September under conditions that, we are all aware, were extremely emotionally charged, that is a problem for him, not Parliament. Nobody in the Commons or the other place should listen to the argument that this country is bound by the framework directive. If the judgment of Parliament when we come to the end of this process is that part 1 should not apply, or should not apply except in the case of terrorism, or should otherwise be modified, its will should prevail and the Home Secretary should be asked to unsign the framework directive and seek to renegotiate it to conform with the will of Parliament.

I do not know whether our hon. Friends in the Commons or our noble Friends in the other place will be able to achieve that. I do not know whether negotiations between the Commons and the other place, should it come to that, would accomplish that, but I am extremely keen to ensure that no one says to us in the Commons or

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our noble Friends in the other place that we have in any sense conceded the principle that the framework directive dictates an outcome in British law. I hope that Ministers will confirm that that is their understanding, and that we have not in the past few months gone through a charade in relation to part 1. I hope that they too believe that the Commons and the other place, gathered together as the Parliament of this country, have the power to decide what our British criminal law is, notwithstanding the Home Secretary's actions in the days succeeding 11 September.

That principle is vastly more important than any other that we are going to encounter in the Bill. It goes to the root of the relationship between our Parliament and our Executive, as well as the relationship between our Parliament and the Executives of the countries with which we are in partnership in the European Union. When people look back at the Bill and consider the debates that took place on Second Reading and in Committee, as well as those that will take place in another place, they will see much more clearly whether the Bill set that precedent or whether it set a contrary precedent and established that once a Minister went to Brussels and signed such a directive he compelled Parliament to take a particular position. That is the crux of the matter—it is the item that history will judge us by. I hope profoundly that, on that matter at least, we shall find that we are at one with the Government.

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