Mr. Hawkins: That seems to be entirely satisfactory. It is what I expected the Minister to say. My hon. Friend the Member for Upminster and I agree that that assistance from the Minister was helpful. We will not seek to pursue the matter further.
Question put and agreed to.
Clause 194 ordered to stand part of the Bill.
Clauses 195 to 198 ordered to stand part of the Bill.
Form of documents
Question proposed, That the clause stand part of the Bill.
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Mr. Hawkins: I want to raise briefly an important point about clause 199. The shortest clauses often hide a multitude of potential sins, and I have a nasty suspicion that that is true of this clause, which will give the Secretary of State an extraordinarily wide and unfettered power. It states:
''The Secretary of State may by regulations prescribe the form of any document required for the purposes of this Act.''
The Minister may say that such a phrase is common in legislation, but at least some of the documents required should be subject to parliamentary scrutiny. Will the Minister say, first, whether those regulations will always be debated in the House? If the answer is yes, there will be some parliamentary scrutiny, but if the clause gives the Secretary of State a general regulation-making power, which means that a document can be set up in the form that he or his officials want, without it coming before Parliament, it is a matter of concern.
We have already discussed the fact that the form of the European arrest warrant—a six-page example was sent to me—does not fit with the traditions of UK law. Will this little clause give the Secretary of State the power to rewrite a document because the authorities in Brussels or Strasbourg decided that they wanted a different kind of warrant, for example? If so, he could decide to sign up to it in the same way as the Government signed up to the original framework decision, without any consideration by Parliament of the form of the document. That worries me. My hon. Friends the Members for Henley (Mr. Johnson) and for Upminster and many others share my concern about the Secretary of State having carte blanche, in the most literal use of that phrase—he will be given a white card.
A future Secretary of State could decide to use a form that was very different from anything in current law on extradition. A responsible Government would not behave in a way that was alien to the traditions of UK law, but I am always worried about open-ended, widely worded clauses, because Governments cannot bind their successors. If a future Government wanted to make some radical changes to extradition law, they could say, ''All we are doing is using the power given to the Secretary of State by the Extradition Act 2003''.
The Minister can reassure us by telling the Committee that any regulations made under the clause will have full parliamentary scrutiny and will be subject to the affirmative procedure, not go through on the nod.
Mr. Ainsworth: The clause is necessary. It enables the Secretary of State to devise and issue standard documents such as certificates and part 3 warrants. Without the clause, it would be unclear to what sort of standard documents the Bill refers.
The Secretary of State will make the regulations by statutory instrument, which will be subject to the negative procedure. The hon. Member for Surrey Heath wants every dot and comma to be scrutinised in every instance and every statutory instrument to be subject to an affirmative resolution but the clause refers to the form required for standard
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documentation. The negative procedure is used for such measures, and the relevant precedents lead one to believe that it is appropriate.
Clause 199 deals specifically with forms and documents and is purely administrative. No great questions of principle are involved, but we must be able to specify what forms are needed and there should be some parliamentary accountability for the content of those forms. As I said, it is our intention that the negative procedure should be used for the approval of the orders, which is an appropriate level of scrutiny.
Mr. Hawkins: The Minister has come part of the way towards us by acknowledging that there will be parliamentary scrutiny. I do not think that every regulation must go through the affirmative procedure, but any new forms relating to something as major and crucial to the liberty of the subject as extradition should be subject to it.
Having put the point on record, I will not divide the Committee on the clause. The Minister has reassured me to a certain extent, although I hope that he will at least consider what I have said. He has already undertaken to consider whether other provisions in the Bill should be subject to affirmative resolution, and I hope that he will add the clause to his list. He may find that in another place the Government will be looking for matters on which they can offer reassurance to show that they have listened to some of our arguments. Clause 199 could be one such matter.
I do not think that it will be a huge inconvenience, but we are talking about changing forms in relation to a matter of principle as important as extradition. We all know that cases often turn on the documentation, so it is important. I am sure that the Minister, like me, will have seen plenty of cases involving extradition to the Republic of Ireland. When I practised at the Bar, I used to work on such cases, which involved special branch officers sitting at the back of the court. Many cases fell apart because Governments of both parties—I am not making a party political point—failed to provide the Irish courts with proper documentation. As the Minister acknowledges, documentation is important in extradition, so its form is crucial.
I am not making a silly point. There are good reasons why any change in the forms under a general order-making power for the Secretary of State should be considered in Parliament. With the best will in the world and however carefully Home Office officials try to draft something, they might miss a certain point, so the forms should come before Parliament for proper scrutiny. Parliament has many Members of both parties who have served as Northern Ireland Ministers, and they might be able to suggest changes based on what went wrong before. That is just one example. Cases of extradition to other countries will undoubtedly have gone wrong under pre-existing law because of documentation problems.
The point should be considered. I will not divide the Committee, but I hope that the Government will consider it seriously instead of just batting away our objections.
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Question put and agreed to.
Clause 199 ordered to stand part of the Bill.
Clause 200 ordered to stand part of the Bill.
Schedule agreed to.
Question proposed, That the clause stand part of the Bill.
Mr. Hawkins: We are coming towards the end of the Committee, and we now have the question of commencement. On this occasion, I am indebted to the important organisation Liberty for suggesting an amendment. I tabled an amendment about transitional provisions whose inclusion Liberty proposed in place of clause 201, but I realised that that amendment could not be selected because we wanted to delete the clause and replace it with another. The debate technically has to be on clause stand part.
For the benefit of the Committee and the Minister, in case he did not look at our original amendment, we wanted to say that all the provisions of the Bill up to and including clause 200 would apply only to conduct committed after Royal Assent. We are now into our regular argument about whether legislation should have retrospective effect. I am sure that the Minister will immediately stand up and say that if we do this, there is a great danger that people will slip out of criminal proceedings that they should rightly face. I understand those concerns, but existing legislation will cover any offences committed before the Bill receives Royal Assent.
I quote what Liberty said to us, and, no doubt, to the Liberal Democrats and others:
''We urge the Government to take advantage of the transitional provisions allowed for in Article 32 of the European Arrest Warrant (EAW) Framework Decision by making a statement to the effect that it will continue to deal with requests relating to acts committed before the specified date''—
Liberty chose the date of the framework decision, 7 August 2002; I suggested instead going on to the date of Royal Assent to the Bill—
''in accordance with the extradition system applicable before January 2004. There is nothing in the Bill that indicates that it will not be retrospective and we would urge the government to incorporate such a statement in the Bill''.
I have not had the opportunity or resources to check, but Liberty understands that the Governments of France, Italy and Austria have already made similar statements of non-retrospectivity, if I may put it that way. I do not know whether the Minister and his civil servants can confirm or deny that, but I am prepared to take Liberty's word for it because in my experience it always checks matters carefully.
Liberty's briefing continues:
''Retrospective application of the Bill may lead to situations where requests are received which apply to people who may have been involved in past conduct''
which will not be properly covered by the Bill. All members of the Committee are familiar with the argument about retrospectivity. I have placed the issue
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firmly before the Committee. Liberty does not necessarily have the perfect wording, but it has suggested a substitution. I do not suggest that I have the perfect wording, but I want to raise the issue because those in another place who are experts on extradition law might want to discuss it in more detail than we have time for this afternoon.