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Standing Committee D
Thursday 9 January 2003
[Miss Anne Begg in the Chair]
The Chairman: I welcome hon. Members back. We have a great deal of work to get through this afternoon. Could I remind the Committee that the knife comes into operation on Tuesday morning at 11.25 am. A large number of clauses and amendments remain to be debated.
Arrest under certified Part 1 warrant
Mr. Nick Hawkins (Surrey Heath): I beg to move amendment No. 14, in
The Chairman: With this it will be convenient to take the following amendments: No. 118, in
clause 3, page 2, line 26, leave out from 'constable' to end of line.
No. 16, in
clause 3, page 2, line 29, leave out subsection (3).
Mr. Hawkins: We are surprised not to have seen any Government amendments to the clause in view of what the Minister for Policing, Crime Reduction and Community Safety said in an exchange with my right hon. Friend the Member for West Dorset (Mr. Letwin) on Second Reading. The amendment seeks to introduce political accountability so that there can be parliamentary scrutiny of the procedures in the Bill. We also suggest that a senior British police officer should take an active part in the scrutiny. Amendment No. 118 has a similar purpose. The Liberal Democrats obviously do not like, any more than we do, the vagueness of the phrase ''an appropriate person''. Amendment No. 16 seeks to delete subsection (3) because we believe that it should be put on the face of that Bill that only British police officers should have the powers to use the warrant.
I should like to refer back to what was said on Second Reading to reinforce our surprise at the absence of Government amendments. My right hon. Friend the Member for West Dorset asked:
''The Minister said that only a British constable would exercise the warrant. Does that mean that he accepts that we need to amend clause 3, which allows the Secretary of State to designate absolutely anyone as an appropriate officer?''
The Minister of State responded:
''I said that it is the Government's intention that only British law enforcement personnel would be permitted to execute a European arrest warrant in this country. That means the police, but it could also include Customs and Excise. There are plenty of legal precedents for using the term 'appropriate person', including in legislation adopted by the Conservatives when they were in government to deal with powers of stop, search and entry that
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gave an even wider range of discretion to the Home Secretary. Given the point of principle that I have outlined, I have no doubt that the precise wording can be considered in Committee.''
That is what we are doing. My right hon. Friend the Member for West Dorset then intervened again and said:
''It would be helpful if I could take it that the Minister is willing to redefine the clause so that it clearly applies to British law enforcement officers.''
The Minister replied:
''I am saying that there is plenty of precedent in almost identical circumstances in which Governments, including Conservative Governments, have restricted a power to British law enforcement personnel even though they have used the term 'appropriate person', or something similar, in legislation. That should give the House sufficient confidence in this Government's intention to use the Bill in the same way. I have no doubt that the matter will be considered in Committee.''—[Official Report, 9 December 2002; Vol. 396, c. 42–43.]
After that exchange, in which my right hon. Friend expressed serious concerns about what should be in the Bill, which many outside commentators and bodies share, I was reasonably confident that the Government would clarify the matter by tabling their own amendments to specify a British police officer or a member of Customs and Excise. They have not done so, and as a result the Bill remains defective. It is not good enough for Ministers in the future to have the power to designate anyone to be an appropriate person. It should be stated in the Bill, and I hope that the Minister will undertake to keep the matter under consideration. There may be precedents in other legislation, as the Minister said, in which the phrase ''appropriate person'' has been used, but in this case the Government are introducing new and much more draconian powers. Therefore, British citizens need the protection of knowing exactly who will be able to use the powers. It should be just a British police officer or a member of Customs and Excise and the Bill should state that.
Mr. Alistair Carmichael (Orkney and Shetland): As the hon. Member for Surrey Heath (Mr. Hawkins) said, the same thinking is behind amendment No. 14 and the amendment No. 118 that my hon. Friend the Member for Torridge and West Devon (Mr. Burnett) and I have tabled. I have some reservations about the manner in which the Conservative amendment would achieve the Home Secretary's intervention through a senior police officer of chief inspector rank or higher. It seems an unnecessarily cumbersome and prescriptive way to achieve that end, but as regards what it seeks, there is not a great deal between us.
Like the hon. Member for Surrey Heath, I have considerable concerns about the phrase ''appropriate person''. I should be interested to hear who the Minister thinks is an appropriate person if it is not a constable. I take the point made by the hon. Member for Surrey Heath that members of Customs and Excise would routinely execute warrants in the course of their duties and they might well fall within the ambit of consideration, but I can see no reason why such people should not be specified in the Bill. The only other people I can think of who would execute warrants are constables in the Transport police, who would probably be included in the term ''constable'' in any event.
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With regard to subsection (c), which one of the amendments would delete, I am curious to hear why the Minister thinks that it is necessary to include it in the Bill. We are dealing with a situation that is outwith the ambit of the normal execution of warrants. Clause 2 deals with the information provided on the certificate. The Government have already included in the certificates a fair degree of detail about the identity of the person in respect of whom the warrant is sought. Having an arrest warrant at least in the possession of an arresting officer would be a useful device for avoiding any possible claim of wrongful arrest. I am interested to hear why the Minister feels that such a protection is unnecessary. The provision takes us outwith the ambit of what is normally acceptable in terms of an arrest warrant.
The point about deleting subsection (3) is much the same as the point about deleting the reference to ''an appropriate person''. I cannot think off the top of my head who the appropriate person would be, and I do not understand why the terms of the Bill are left so vague. This part of clause 3 seems to proceed on the basis that the law relating to the execution of arrest warrants is somehow easy, but the Minister should know from the substantial body of case law that that is not so. Not having that protection in the Bill leaves considerable scope for misunderstanding, miscommunication of identification and all the rest of it. Unless there is a good reason for not having such a protection, I see no reason why the amendment should not be accepted.
Mr. John Burnett (Torridge and West Devon): I have not had a chance to welcome you to the Chair, Miss Begg, although you had a watching brief during yesterday morning's sitting—[Interruption.] I mean Tuesday morning; I lost a day because I returned to my constituency to give prizes at a school last night, and I am slightly worn by the cares of time and distance. Nevertheless, I am delighted to welcome you as Chairman.
I wish to add a few points to those made by the hon. Member for Surrey Heath and my hon. Friend the Member for Orkney and Shetland (Mr. Carmichael). Will the Minister be so kind as to say who he believes will be the appropriate person? The provision is particularly nebulous and unsatisfactory in our view. The people and agencies involved in this important task should be defined in primary legislation. Increased numbers of civilian members of the police and other bodies—for example, the security services—are executing a power of arrest. To deprive a person of his liberty is a significant matter, so there should not be scope to allow the power for persons not currently authorised to arrest. Liberal Democrats and, I believe, Conservative Members look forward to hearing the Minister say exactly whom he believes will be authorised as an appropriate person under the clause.
The Parliamentary Under-Secretary of State for the Home Department (Mr. Bob Ainsworth): I will happily do that. Under the Bill, a European arrest warrant may be executed—that is to say, a person arrested—by a constable or an appropriate person designated for
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the purpose by an order passed through the House of Commons by affirmative resolution. That is a well established formulation, for which there are ample precedents.
I invite members of the Committee to consider section 7 of the Criminal Justice (International Co-operation) Act 1990—they should remember who was in power at the time—which confers powers of entry, search and seizure. It provides that
''the Secretary of State may by order direct that any of those powers shall be exercisable by a person of any other description specified in the order''.
That was passed by members of the Conservative party in government. It was adequate for them then, but in opposition the reference to an appropriate person to be designated by an order passed by affirmative resolution has become unacceptable. My only fear in changing the words is that we would pander to blatant Euroscepticism in so doing. There is an important difference: the order made under the 1990 Act was subject to the negative resolution procedure. We are proposing the affirmative resolution procedure. No one other than a constable will be able to execute a European arrest warrant unless there has been a positive vote in both Houses of Parliament.
The hon. Member for Torridge and West Devon asked whom I regarded as an appropriate person. There is no contradiction between what I and my right hon. Friend the Minister for Policing, Crime Reduction and Community Safety said on that point. Customs and Excise and various service police forces are significant players in the area, given the number of military personnel who seek service overseas. Those are the sort of people who we see as appropriate.
We have no plans to designate any other persons or bodies, but we need to retain some flexibility as the structure of British law enforcement changes. It changed recently when we established the National Crime Squad, which did not previously exist. It would be ridiculous for us to have to return to primary legislation in such circumstances.
No foreign law enforcement officials will be designated to execute a European arrest warrant in this country. That is not what the Government want or have ever intended. Hon. Members should stop reading certain sections of the press, or at least stop believing them. Having set out why we believe that the current formulation of the Bill is appropriate, I turn to the detail of the amendments. Their effect would be to make it impossible to designate any individual law enforcement officers committed to execute a European arrest warrant. The Opposition propose instead that each time a person other than a constable wants to execute a warrant, he will need the Home Secretary's permission on a case-by-case basis. Let us suppose that a Customs officer investigating a domestic case stalls a foreign individual subject to a European arrest warrant. If these amendments were passed, the Customs officer could not arrest or even detain the person until the Home Secretary had personally given him his permission. If the Home Secretary happened
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to be unavailable, that would just be bad luck and the suspect would go free. I hope that the hon. Gentleman will not therefore press for what would clearly be a ridiculous set of arrangements.