Extradition Bill

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Mr. Tom Harris (Glasgow, Cathcart): Will the hon. Gentleman give way?

Mr. Hawkins: I shall in a moment, but I want to make one further point, which is the final point from my hon. Friend's speech on Second Reading.

My hon. Friend also had a grave concern about the former Soviet or Warsaw pact states that may accede to the EU, which have no tradition of liberty of the subject. Many judges previously operated in the communist state, which had no tradition of the freedom of the individual. My hon. Friend noted that if the Bill is passed unamended, once again there will be no parliamentary scrutiny and those countries will have the same rights as current EU countries to issue arrest warrants without any British court being able to protect the liberty of the subject.

Mr. Harris: I am disappointed that the hon. Gentleman sees the enlargement of the EU as a negative move about which we should be careful. Does he not understand and agree that, with the enlargement of the EU, the Bill will enable us to tackle crime, especially given the international nature

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of crime and the number of criminals from this country who currently live abroad, not only in the EU, but in the accession countries?

5 pm

Mr. Hawkins: I do not want to give the hon. Gentleman the impression that I am against the expansion of the EU. Far from it. I am simply pointing out and I should have thought that he would be concerned about it on behalf of his constituents, that some of the countries that may be joining the EU simply do not have our traditions of the protection of the subject. Throughout my ten and a half years in the House and for many years before that, I have known that Labour Members are concerned about civil liberties and the freedom of the individual. That is quite right. If they are so concerned, they should consider having proper parliamentary scrutiny over which countries will be allowed to operate the provisions before us.

It would be quite different if we were talking only about terrorists. The threat from terrorism is so exceptional that one could just about accept draconian powers. But we are faced with a vast undefined list of vague offences. There are 32 categories of offence, many of which are not offences under UK law, and we are talking about courts that have no tradition of the protection of the subject. I am sure that if the hon. Gentleman asked his constituents, he would find that they share our concerns.

Mr. George Howarth (Knowsley, North and Sefton, East) Is not the difference between European states and, for example, Australia the fact that the European states signed up to the European convention on extradition in 1991, when we had a Conservative Government? Whatever the workings of the courts in individual nation states, the principles in the convention govern the way that they must deal with extradition. That is the difference between those states and Australia.

Mr. Hawkins: On paper, they do. I do not know whether any of the hon. Gentleman's constituents were involved in the appalling Kalamata British plane-spotters case. [Interruption.] He shakes his head. If his constituents had been involved, I doubt whether they would have been terribly happy with the protection that they felt they were given by the Greek courts. Yet Greece is one of the EU countries that have signed up to all the principles in the convention. The British citizens who were quite improperly arrested were acquitted in the end, but only after 37 days during which they had to be in Greece, either in custody or waiting for the case to be concluded. I do not think that those people would be at all happy at the thought that Greece having signed up to anything would provide them with sufficient protection.

Mr. Harris: Is the hon. Gentleman saying that he and his party are now opposed to the European convention on extradition, which a Conservative Government signed in 1991, or are they simply opposed to the new measures in the Bill?

Mr. Hawkins: We oppose the Bill because it combines the draconian measures of a vague, undefined list and provides an opportunity to allow a

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whole raft of new countries in without proper parliamentary scrutiny or judicial protection for the subject. We certainly do not resile from the previous convention, but it operated in a different climate of opinion.

Mr. Ainsworth: Surely the hon. Gentleman is aware that the 1991 legislation, agreed to by his Government, did away with any ability to examine a prime facie case with regard to those countries. He has said that he is happy with that and does not demur from that at all.

Mr. Hawkins: The Minister is trying to disguise the very different effect of the Bill. If we were talking simply about the Bill's restating what has operated in the past under the 1991 provisions, we would not have a problem. The Minister knows perfectly well, and need only read the Select Committee's severe criticisms to remind himself, that the Bill contains far more draconian proposals. That is why the Select Committee is so unhappy about it. Those draconian provisions could apply to a whole raft of new countries without proper parliamentary scrutiny, and the Minister knows that as well as I do.

Amendment No, 116, tabled by the Liberal Democrats, would have a similar effect to amendment No. 90, which is supported by the Law Society. It appears to show that, unlike those of us on the Conservative Benches, the Liberal Democrats believe in the concept of the European arrest warrant. We shall hear from the hon. Member for Torridge and West Devon (Mr. Burnett) whether that is correct, but I am surprised that he has tabled his amendment in those terms.

Amendments Nos. 68 and 75 are intended to introduce two crucial safeguards by making the requirement for senior judicial scrutiny in the requesting country apply at least to the equivalent of a High Court judge. One problem that arose with the British plane-spotters and the magistrates in Greece, and with the Spanish magistrate or junior judge in the Pinochet case—one of the more embarrassing cases in this Government's dealings with the law in European matters in recent years—was that no one equivalent to a British High Court judge carried out the judicial scrutiny. One issue raised by the Home Affairs Committee, and by me and other hon. Members with the Under-Secretary of State during various Standing Committee debates on the European arrest warrant, was that if British subjects are to feel they have the right degree of protection, a senior legal figure in the requesting country must look at the request. That provision would provide a degree of protection. The Bill needs all the other safeguards we have already talked about, but the procedure would be safer for British subjects if there were senior judicial scrutiny. In attacking the Government's proposals, commentators have concentrated on the vagueness of the words ''judicial authority''. The Minister has come under criticism from the Select Committee for failing to deal with that point, as he promised to do.

I hope, Mr. O'Hara, that you will bear with me if I touch briefly on clause 2. Paragraphs 58 to 63 of the Home Affairs Committee's report are phrased in strong terms. The report states that the way in which the Bill is drafted

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    ''appears to be incompatible with undertakings given to the European Scrutiny Committee by the Parliamentary Under-Secretary at the Home Office, Mr. Bob Ainsworth MP, in January 2002.''

Paragraph 59states that the European Scrutiny Committee inferred from what the Minister had said that

    ''the 'judicial authority' would have to exercise recognisably judicial functions in an independent manner.''

The Minister, according to paragraph 60,

    ''gave similar assurances to European Standing Committee B.''

Those assurances were actually given to me because I was the shadow Minister. The Minister confirmed that under the Extradition Bill the UK judicial authority will not only 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.

The amendment does not seek simply a judicial authority—the Home Affairs Committee pointed out that that was not required as clause 2 would require a non-judicial authority—but the equivalent of a High Court judge. That is an important safeguard.

The second safeguard in amendments Nos. 68 and 75 would be to reintroduce the requirement for a possible sentence—for an offence for which someone is to be extradited—to be a minimum of three years. We should recognise that it always used to be three years: that was the minimum sentence specified in the framework directive. Instead, the Government want the sentence to be 12 months in accordance with previous extradition legislation, but the comparison is false because the previous extradition legislation was less draconian.

Members of the Home Affairs Committee and various Labour speakers, such as the hon. Member for Clwyd, West, referred on Second Reading to gold plating. He said that the Government had gold-plated what the framework decision wished to do. The framework decision called for extradition under the EU arrest warrant only if the sentence were for at least three years—in other words, for serious offences. In changing it back to 12 months, the Government are trying to have the best of both worlds. They want to introduce a more draconian regime, while keeping the 12-month sentence as the lower limit in accordance with earlier less draconian legislation. Many Labour Back Benchers and members of the Select Committee feel strongly that that is wrong.

Paragraph 51 of the Select Committee report appears in bold type as a firm recommendation:

    ''We can see no justification for eroding the basic level of protection provided by the framework decision and we are dismayed that the Home Office is seeking to do so. We recommend that the three-year limit specified in the framework decision should be retained in UK domestic law.''

A Labour-dominated Select Committee could not get much firmer than that. It believes that what the Government are trying to do is simply wrong. It wants the level of protection to be a three-year sentence—and so do we.

As to the dual criminality threshold, the Select Committee said in paragraph 45 that

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    ''Article 2.2 of the framework decision provides that surrender of a suspect under a European Arrest Warrant will not be subject to the dual criminality requirement where the offence for which extradition is sought . . . falls into the list of 32 offences, and . . . carries a maximum penalty of at least three years' imprisonment in the issuing state.''

Paragraph 46 shows that

    ''Clause 63(2)(c) of the Bill requires only that the offence be punishable under the law of the issuing state with imprisonment or another form of detention for a term of 12 months or more. Consequently, Clause 63(2)(c)'',

which I want to amend,

    ''lowers the maximum penalty threshold from the three years specified by the framework decision to 12 months.''

The Select Committee continues in paragraph 47:

    ''This significantly reduces a protection provided for by article 2.2 of the framework decision. The dual criminality requirement provides an important protection for a suspect in respect of whom an extradition request has been made. It ensures that the UK will scrutinise the fairness or otherwise of any request for extradition. Article 2.2 is careful to provide that, if an offence falls into one of the 32 categories of offence, then the dual criminality requirement ceases to apply only if the offence is punishable by imprisonment for a maximum period of at least three years.''

The ''at least three years'' requirement was put in italics to emphasise the point. The report continues:

    ''By reducing the maximum period from three years to 12 months, the Bill disapplies the dual criminality safeguard in relation to a number of considerably less serious offences.''

The Select Committee also points out, and I have had personal experience from submissions to confirm it, that:

    ''Both JUSTICE and Liberty expressed serious concern about this proposal. JUSTICE supported the three-year maximum penalty being retained, on the grounds that 'this would go some way to avoid the abusive use of the coercive measure of extradition for minor offences that do not constitute crimes in this country.' Liberty pointed out that, in the 13 years since the Extradition Act 1989 was enacted, UK courts have intervened to refuse extradition in a significant number of EU cases''.

In other words, that has happened in cases in which the extradition request came from fellow EU countries, which have also signed up to the European convention on human rights. That relates to the intervention made by the hon. Member for Knowsley, North and Sefton, East (Mr. Howarth). The paragraph adds that

    ''the Home Secretary has refused to extradite in a significant number of other cases where extradition would have been plainly wrong or unjust.''

Under the previous regime, EU countries, in which people are supposed to have all the protections to which the Minister refers, made requests that our courts turned down for proper reasons.

The report further notes:

    ''We asked the Home Office why they proposed to reduce the dual criminality protection threshold. In response, they told us that they believed that applying a 12 month threshold is appropriate because the threshold is still sufficiently high to ensure that the conduct in question must be regarded as a matter of some seriousness in the criminal justice system of the country making the request.''

The phrase

    ''a matter of some seriousness''

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does not strike me as strong enough for these incredibly draconian powers. We should be talking about terrorist offences to justify such powers, not simply about matters ''of some seriousness.''

5.15 pm

The Committee said:

    ''We consider that the Home Office's response fails to deal with the obvious point that, although a 12-month threshold may ensure that the offence is a matter of 'some seriousness', the framework decision clearly envisages that only offences serious enough to warrant a three year maximum penalty should be exempt from the dual criminality requirement.''

I strongly pray in aid the Labour-dominated Home Affairs Committee, the members of which have expressed their views in very strong terms about how much the Government have got this wrong.

Amendment No. 74—and amendment No. 83 to clause 64, which is to similar effect—seeks to allow judicial discretion. We say that a British judge should consider how other countries' laws interact with ours, which is vital. It is crucial to preserve the so-called dual criminality test, and I hope that, even if the Government do not accept something similar to our amendments, they may be persuaded to do so in response to views that will no doubt be expressed by Law Lords and others in another place. They may end up having to introduce amendments of their own that are similar to ours.

Amendment No. 85 to clause 65 brings us to the crucial point about European framework decisions. We do not want our laws simply to refer to what is set out in a framework decision. I am not sure whether the Minister will be able to say that there are any precedents for that, but it seems to us and to organisations across the political spectrum, such as Justice, Liberty, the Freedom Association and the Democracy Movement, that it is completely inappropriate for the Government to propose corpus juris by the back door and not include such matters in the Bill.

We believe that there should be only one category—terrorism for part 1—and not 32, but if the Government are going to introduce corpus juris by the back door and have a list of 32 offences, they should be listed in the Bill. The British people should be able to see clearly what the Government are up to. Vague headings such as xenophobia and computer-related crime, which are not crimes under British law but are listed in the framework, should be specified in the Bill. It is outrageous—I use that word carefully—that the Government are not including them. They are increasingly treating this sovereign Parliament as a rubber stamp.

We want everything to be included in the Bill. It is not good enough for the Government to say that there has been a European framework decision and we shall simply go along with it. That framework might be expanded in the future, which will would simply be passed on the nod. It is because of the incredibly strong feelings on this matter across the political spectrum that we have had such strong support from organisations as varied as Liberty and Justice on the one hand, and the Freedom Association and the Democracy Movement on the other. That is what

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Parliament is for. I cannot stress too greatly how strongly my hon. and right hon. Friends and I feel. If Parliament is not going to be able to scrutinise such proposals because they are not in the Bill, there is not much point in having a Parliament.

The Minister is extremely diligent and tries hard to get on top of his brief, but I wonder whether in the long watches of the night he sometimes asks himself what he is opening the floodgates to when he is asked by his lords and masters at the top of Government to introduce something to allow a framework decision that is not included in the Bill to be expanded in the future after going through on the nod without affirmative resolutions of both Houses or interventions by British judges to protect British people. That is not what Parliament is for.

 
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