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Lord Goodhart: My Lords, I would like to echo the noble Lord, Lord Kingsland, in a number of respects, the first of which is the very well-deserved tribute

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which he paid to the noble and learned Lord, Lord Brightman, for the work that he has done on this and other matters.

Secondly, I should like to add to the noble Lord's appeal for consolidation legislation. The legislation dealing with enfranchisement, extended leases and so on, is in an absolutely hideous mess at the moment. It is virtually impossible for anybody to find their way through it, and I believe that it is important to try to get this in a comprehensible form. That clearly requires consolidation legislation.

I would also like to join the noble Lord, Lord Kingsland, in his tribute to the members of the Chancery Bar, who have been very helpful in many respects and have achieved a number of amendments to this Bill, and indeed also to the Law Society for its comments on the Bill.

Finally, I would like to say that most of us—I am sure the noble Lord, Lord Kingsland, and my noble friends Lady Hamwee, Lady Maddock, Lord Jacobs and I—will be more than glad to see the back of this Bill. We have spent an enormous amount of time on it: a great deal more than any of us expected when we started on our deliberations. Although it is not fundamentally controversial, it has thrown up a perhaps surprisingly large number of issues of no little importance. As it is, the Bill is not perfect, in our view, but I believe that it will move English property law forward in the right direction.

I wish it well in the other place and, apart from what I expect will be a brief revisit when we come to the consideration of the Commons amendments, I think that we are all glad to see the back of this Bill.

The Earl of Caithness: My Lords, just in case anyone believes that this is just a lawyers' Bill, we have been helped by a wide range of practitioners outside the House.

Baroness Scotland of Asthal: My Lords, I thank all those who have participated so energetically—I emphasise that word—in the perfection of the Bill. It has been a united effort. We are very conscious of the great compliment paid to us by the noble and learned Lord, Lord Brightman. We are sensible of it and we hope that this will be emulated, to his satisfaction, by many others who follow us. I do not exclude anyone. Everyone in the House today has toiled hard to make the Bill the perfect instrument that it should be.

On Question, Bill passed, and sent to the Commons.

European Arrest Warrant: EUC Report

7.50 p.m.

Lord Scott of Foscote rose to move, That this House takes note of the Report of the European Union Committee, Counter-Terrorism: The European Arrest Warrant (6th Report, HL Paper 34).

The noble and learned Lord said: My Lords, I am grateful to the authorities—I am not certain who they are, but I hope that your Lordships will forgive me for

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not identifying them—for making time available this evening at short notice to debate some important matters of concern arising out of two draft framework decisions that have recently emanated from Brussels. One is the draft framework decision on the European arrest warrant and the other is the draft framework decision on combating terrorism.

I shall start with a little background. The two framework decisions, with several others, form part of the intended legislative response of the European Union member states to the horrors of 11th September and to the growing realisation of the problems of terrorism that member states, as well as the United States of America and other western countries, face.

In putting forward the draft proposals, the European Council has set a timetable—a so-called road plan—for dealing with these and the other measures to which I have referred. The tightness of that timetable is no doubt a reflection of the urgency with which a response to the events of 11th September is viewed. The timetable requires a final decision to be taken on these two measures on 6th or 7th December. Bearing in mind that the original proposals were received for scrutiny only at the end of October, your Lordships will understand the difficulty that the timetable has placed on those whose responsibility it is to try to scrutinise them and see whether changes should be recommended.

The Select Committee has obtained some written evidence from Fair Trials Abroad and Statewatch and on 7th November, at very short notice, Mr Bob Ainsworth, the Home Office Minister, appeared before the committee to answer questions and give us some valuable information, elucidating the Government's intentions with regard to the measures. We are very grateful to him for coming at such short notice, but plainly problems remain.

In the meantime, since 7th November, the target for scrutiny has been a moving one. That is not surprising, given the shortness of time in which the matters can be considered. A number of amendments have already been made to the original proposals, which have removed some of the objections that had been identified to some of the articles in the draft. No doubt there should and will be further amendments, but time is short. The purpose of this debate is to give your Lordships an opportunity to express the concerns that remain on some of the provisions.

I draw your Lordships' attention to those parts of the current proposals that seem to me to be of concern and to warrant some comment. Despite the title, the combating terrorism measure presents fewer problems of principle and worry than does the European arrest warrant proposal. The proposed measure on combating terrorism identifies a number of offences under national law—it does not purport to create any new offences—that are committed with a terrorist aim, as defined. They are then to become terrorist offences and will attract higher penalties than they would attract if committed without that terrorist aim.

The terrorist aim is fairly broadly defined. Your Lordships will find it in the draft, so I need not take up time by reading it. Like most readers of the original

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proposal, my particular concern was that it should not impinge on the rights of association and of peaceful demonstration that we all believe that those who live in a democratic country under the rule of law are entitled to expect.

In its original form, there was considerable room for concern that the impingement was beyond what was reasonable, but my view is that the document in its present form has satisfactorily met those worries. In its present form, I do not think that it will allow interference with rights of peaceful demonstration or of association in support of causes, no matter how unpopular those causes may be. Once demonstrations or associations begin to have a terrorist aim, as defined, they rightly move into a different bracket and will attract the proposed higher penalties.

I find the European arrest warrant proposal much more worrying. Its purpose is to replace the current extradition procedures between member states with a much speedier summary procedure. Most people with experience of extradition procedures would agree that, at present, they are unacceptably drawn-out and that there is considerable room for simplification and improvement. That is particularly so for extradition between the United Kingdom and other member states in whose judicial systems and procedures, broadly speaking, we in this country have confidence.

However, we have to remember that everyone in this country, including those regarded as fugitives from justice in other states, are entitled to the protection of our laws while they are in this country and entitled to be protected by reference to the standards that we believe are appropriate. In principle, we should not send people to be tried abroad unless we can be satisfied that they will receive a fair trial and unless there is a proper case for them to answer in the foreign country that seeks to try them.

Our present extradition procedures have three important built-in safeguards. One is the so-called double criminality rule. We do not extradite people to face trial on charges that we do not recognise as offences. We would not extradite someone to face charges of homosexuality that would not be criminal in this country or to face blasphemy charges. Many examples can be found.

Secondly, there is a requirement that before a person is to be extradited, it must be shown that there is a proper case for him to answer. That is colloquially called the sufficiency test—there must be a sufficient case. We would not extradite if, by our standards, there was no proper case to be answered.

Thirdly, extradition under current procedures is, in the last resort, subject to a political decision to be taken by the responsible Minister—the Home Secretary—as to whether the individual should be sent to the country that has requested him for trial. That, too, constitutes a safeguard. I do not believe that the Minister would give his consent to the extradition of someone to a country which did not guarantee by our standards that that person would receive a fair trial.

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The proposed European arrest warrant makes substantial inroads into each of those three safeguards. I invite your Lordships in considering the proposals to take account of the following points. First, although the European arrest warrant is being dealt with as one among several counter-terrorist measures resulting from the awful events of 11th September, it is only marginally concerned with terrorism. The arrest warrant procedure will apply to every crime which commands a sentence of 12 months' imprisonment or more. It will apply to every person who, having been convicted, has absconded but who has been sentenced to four months' imprisonment or more. We are speaking of relatively trivial offences. Of course, a sentence of 12 months indicates a certain seriousness, but we are not speaking of terrorist offences; we are speaking of offences across the whole spectrum of the criminal law that attract these, relatively speaking, not very condign sentences on conviction.

That being so, and given that the concept of a European arrest warrant has been around for some time—I believe a consultation on the subject took place in March this year or at around that time—it is difficult for me to understand why it has been thought necessary to deal with this particular matter with the strict timetable that is being applied to all the genuinely counter-terrorist measures that are emanating from Europe. This is a matter where in my view considered opinion and considered judgment should be brought to bear. It will be highly regrettable if we bring into effect legislation which is insufficiently considered and is subject to all the defects that insufficiently considered legislation brings with it.

It is perfectly true that the framework decision, if it becomes final in this form on 6th or 7th December, will not as such be of direct effect in this country. There will still need to be primary legislation. But the Government will be under an obligation to member state partners to bring into effect legislation which corresponds to the decision which they will, on that hypothesis, have agreed. The scope for manoeuvre will not be broad. I urge the Government to take great care that the final decision is not hastily reached, that proper in-depth consideration to some of the concerns that have been expressed is given and that the bandwagon that is carrying along the bulk of the counter-terrorist measures does not, willy nilly, and to the detriment of the public in all member states, carry with it this measure before it is ready.

So much for the timing of the extradition arrest warrant measure. As to dual criminality, Article 2 of the measure lists a whole raft of offences where the double criminality safeguard will no longer apply. These are broadly—I emphasise the word "broadly"—offences which are common to all member states. However, some of the descriptions of the offences in the list in Article 2 are extremely broad and it is not possible to be sure how the offences in particular member states are framed. For example, one of the listed items comprises "racism and xenophobia". I ask myself what offence is that. One can immediately think of football hooligans waving Union Jacks or chanting slogans at some football match in some foreign capital.

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But what offence in this country would fall within the category of racism and xenophobia and what kind of offences might foreign countries have which would fall within that kind of description? We simply do not know.

Counterfeiting the euro is also listed. It is notable that the dual criminality safeguard is not removed from the offence of counterfeiting sterling, but it is in the case of counterfeiting the euro. What is "swindling" supposed to cover? A swindler is a term of abuse. What is the offence? What kind of offence may foreign countries have which could fall under the generic description of swindling which we would then have to recognise without applying a dual criminality safeguard? I suggest that a little more precision may be needed in the compilation of the list of measures which will lose the double criminality safeguard.

The European arrest warrant procedure will, of course, start with the arrest of the subject who is named in the arrest warrant. There will then be a hearing before a person described in the measure as the "executing judicial authority". The executing judicial authority will, of course, have to be satisfied that the right person has been arrested. There will be a hearing at which the individual arrested can deny that he is the person named in the warrant. There may be an issue as to his age as no one will be required to extradite someone who by their domestic standards is not of the age of criminal responsibility. The terms of the article in question that is supposed to achieve that—Article 3.3—leave a great deal to be desired. If your Lordships read it you will see that it more naturally includes geriatrics rather than children. It refers to people who are no longer of the age of criminal responsibility, which does not sound to me as if it is apt to cover children, but it is certainly intended to cover them.

As regards the executing judicial authority, in a letter of 6th November to Mr Jimmy Hood MP, the chairman of the scrutiny committee in the other place, the Minister stated that the executing judicial authority for the United Kingdom would be the Bow Street magistrate. I hope that the reference to the United Kingdom was a mistake and that the letter meant to refer to England and Wales. There surely is no reason why someone arrested in Scotland should not be dealt with by an executing judicial authority in Edinburgh, or why someone arrested in County Down should not be dealt with by an executing judicial authority in Belfast. At the moment, however, the only statement as to who is to be the executing judicial authority that I have seen is the letter from the Minister that I mentioned which identifies the Bow Street magistrate as the authority for the United Kingdom. I suggest that that matter requires some attention.

The information that must accompany the arrest warrant includes a description of the circumstances of the offence. That, of course, is only fair to the person arrested. However, there will no longer be any sufficiency test. It will be no function of the magistrate of the judicial authority before whom the arrested person will appear to consider whether those circumstances by our standards warrant a trial.

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That brings me to another point of concern. It was made clear by the Minister when he appeared before us to give evidence that it was not proposed that the arrest warrant should be available to carry someone off to the member state in question for the purposes of interrogation. It is intended to produce someone for trial. However, the investigative process in a number of European countries is carried out under the aegis of a judicial officer, the investigating magistrate, the juge d'instruction. That is not a procedure we have in this country. It is not at all clear at what stage in his investigation the investigating magistrate will be able to issue an arrest warrant to bring before him from this country or any other member state an individual where he is not yet satisfied there should be a trial but requires more information from the individual in question.

I refer to Article 1 of the proposed measure. The extradition will have to be confined to the suspect. It will not apply to someone who is simply a material witness. However, it is difficult to see how it will not allow a warrant to be issued to require production in the foreign country of the suspect for the purposes of getting further information for the trial rather than for the trial itself. That is a consequence of the removal of the sufficiency test. Perhaps that is intended. But if it is, that must be faced up to. There will be an element of interrogative purpose behind the new proposal.

The timetable that must be followed where the arrest warrant has been issued is very tight. After the arrest in this country of the individual concerned, there is a period of only 30 days before a final decision must be taken. The measure provides for there to be simply one single appeal. Therefore, the arrest takes place, and the individual, if he is in England or Wales, is brought before the Bow Street magistrate. There is then an opportunity for one appeal. Whether it is to the Divisional or the High Court does not matter; there is one appeal only.

Therefore, what of the emerging issues of law that may arise or that may need to go to a higher court—that is, to the Appeal Court or even to this House? There is no provision for that. The individual must be extradited. If the final decision is that he should not have been extradited then I suppose that we must rely on the country concerned to send him back. Where there is a serious issue of law as to the scope or the applicability of the arrest warrant procedure that has arisen, there is no flexibility to allow postponement of the removal of the individual.

I believe that the bail provision also requires attention. When individuals in this country are arrested, there is a presumption in favour of bail. I respectfully suggest that a similar presumption should be made where individuals are arrested pursuant to a European arrest warrant. Of course, if there is a proper case for keeping the individual in custody, he will be kept in custody. But, in my view, the language of Article 12, which deals with this matter, is not apt to make it clear that the same presumptions will apply in relation to arrests under the European arrest warrant as apply in relation to ordinary domestic arrests.

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The expression "specialty" has a particular meaning in extradition law. It means that once a person who is being extradited for one offence has been detained by the foreign country, he cannot then be tried on a whole raft of different offences for which he would not have been extradited. That is dealt with in the proposed measure simply by saying that, where a person has been removed to the requested country under the European arrest warrant, he cannot be tried for an offence that is not one of the listed offences without the agreement of the competent authority. I take it, although it is not clear, that the competent authority in this country will be the Home Office.

A political decision will then be made as to whether it is right to allow the individual to be tried on another offence. There will not be an opportunity for the matter to be tested judicially; it will simply be an executive, political decision. I suggest that that is also a matter of concern. I do not know whether that is the intended result but it certainly appears to me to be the result of the measure as drafted at present.

Overriding all those points are the European Convention on Human Rights concerns. I should like it to be the case that if an individual could bring before the magistrate firm evidence justifying the belief that he would not receive a fair trial in the extraditing, or requesting, country, that would be a reason not to allow the warrant to be executed by his removal.

Of course, every country that is a member of the European Union is a signatory to the ECHR. But the fact that a country is a signatory to the ECHR is a guarantee only that later a complaint may be made about treatment to the court at Strasbourg. It may be some years after the event before that is dealt with. In my respectful opinion, it is a necessary safeguard for individuals who are the object of European arrest warrants to be able—by all means let the onus be on them—to satisfy the magistrate that, for whatever reason, if they are taken abroad they will not have a fair trial. If they can satisfy the magistrate of that, I do not believe that they should be extradited and I do not believe that it would be consistent with our standards of jurisprudence that they should be.

Those are my concerns in relation to the measure. In my view, the two greatest are that which relates to extradition for the purpose of interrogation and that which relates to the ECHR. I beg to move.

Moved, That this House takes note of the Report of the European Union Committee, Counter-Terrorism: The European Arrest Warrant (6th Report, HL Paper 34).—(Lord Scott of Foscote.)

8.14 p.m.

Lord Mayhew of Twysden: My Lords, having already backed the Government tonight in their application for an immediate derogation from Article 5 of the ECHR, I do not find myself as yet in the grip of a new habit. I agree with everything that the noble and learned Lord, Lord Scott of Foscote, has just said.

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I believe that, as a new member of Sub-Committee E of the European Union Committee, I should be appropriately brief.

Perhaps I may take up and endorse, in particular, two points made by the noble and learned Lord. They relate, first, to dual criminality and, secondly, to the ECHR point—that is, the need for confidence that a warrant that is sought to be backed in this country will not, if executed, lead to treatment in the requesting country that would be in breach of that convention.

With regard to the question of dual criminality, perhaps I may refer to what the noble and learned Lord said about juge d'instruction in certain continental jurisdictions. He rightly said that juge d'instruction is connected with the prosecution and may very well either demand extradition or continue detention under extradition for the purpose of interrogation. I have had some experience of how that can protract matters before a suspect is brought to trial, if, indeed, he ever is.

Noble Lords will remember the case of the "Eksund" ship that was arrested by the French off the coast of western France and found to have on board arms intended for the IRA. I believe that I am right in saying that, following the detention of the suspects on that ship, four years passed without a trial occurring. That was perfectly all right by the ECHR. For was it not a judicial authority that was in charge and supervising the arrangements? Therefore, for reasons given by the noble and learned Lord, I believe that we are entitled to seek to look behind the form and examine the likely substance.

I also have some experience of an agreement between two countries. Our own country and the Republic of Ireland agreed to back each other's warrants. It worked very well while it lasted, and it lasted for a long time. The reason that it worked well was because each country had confidence in the judicial and justice arrangements of the other. Therefore, there were no qualms as to what would happen in that context if a warrant were executed in this country and people were sent to Dublin or vice versa.

It worked very well but, unfortunately, Dublin resiled from it unilaterally after Ireland had ratified the European Convention on the Suppression of Terrorism. At the time, I believed that that decision derived from political considerations rather than from any objective lack of confidence in our arrangements here. However, whatever the reason, it meant that a great deal of trouble was involved in trying to make the new system work, and some pretty ghastly results were experienced to start with.

Under the proposed framework decision, which we are discussing, we are offered another backing of warrants agreement. The difference is that our confidence in the arrangements of each and every foreseeable requesting country is a good deal less than fervent. In the course of our hearing, which the Minister was good enough to attend, on the occasion referred to by the noble and learned Lord, Lord Scott, the Minister gave at least me—and, I suspect, most, if

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not all, of us—the impression that he believed that ratification of the ECHR, which membership entailed and which would have to occur if membership was to be granted, would by itself ensure that all justice arrangements in the requesting country would be reassuringly compatible with the convention. I think that that is essentially the Government's position, having read the Minister's response to the letter from my noble friend Lord Brabazon of Tara, who was chairman of the committee. If so, surely no member state could take offence if it were proposed that there should be written expressly into the decision a provision that made it perfectly clear that a requested state would be able to withhold execution if there were sensible grounds for doubt about whether there would be a proper delivery of ECHR standards in the requesting country if the warrant were executed. I cannot see that there would be grounds there for taking offence.

However, the Minister said, "You do not really need to worry about the matter"—I paraphrase in the interests of time but I hope that I do so fairly—"because written into the preamble are relevant provisions". However, a paragraph in a preamble to a decision of this character is generally less certain in its effect than is an express provision clearly written into the main body of the instrument. I do not find paragraph 11 of the preamble to the draft decision, which is set out in the Minister's letter of reply, to be an exception to that rule. It is designed on the face of it to restrict the possibility to refuse the execution of the European arrest warrant. It says that that is to ensure the effectiveness of the procedure. That is made subject only to the condition that the execution of the warrant does not lead to a violation of fundamental rights. That leaves the matter entirely in the air when it could perfectly easily and without the prospect of causing offence have been made absolutely clear if a provision had been written clearly into the instrument.

However, the Government rely on the preamble to sustain their comfortable response to the criticisms that we thought it right to put at the hearing. They have been put more forcibly and eloquently by the noble and learned Lord, Lord Scott, than I could do. I am afraid that the response, intended to comfort as it was, fails sufficiently to comfort me.

8.22 p.m.

Lord Lester of Herne Hill: My Lords, I, too, had the privilege of serving on the committee, which was chaired by the noble and learned Lord, Lord Scott of Foscote. I believe that this is his first report as the new chairman. It was a pleasure to serve under him, as it was to serve under his predecessor, the noble and learned Lord, Lord Hope of Craighead.

The noble and learned Lord, Lord Scott, summarised the committee's central concerns, and I shall not repeat them. The noble and learned Lord, Lord Mayhew, made a speech with which I entirely agree. Again, I shall not repeat anything that he said. I want to say a few words about the objectives of the Euro-warrant draft directive, the counter-terrorism proposal and human rights.

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I make it clear that I strongly support the objectives of both of the measures. That is implicit, if not explicit, in what was said by our chairman, the noble and learned Lord, Lord Scott, in his introduction. It is very good news that there will be Europe-wide moves within the EU to counter terrorism effectively and to make it much easier for fugitives to be extradited from one member state to another to face a fair trial. It is also clear, as has already been said, that existing extradition procedures are antiquated and need to be streamlined.

I do not regard the three traditional safeguards, which were referred to by the noble and learned Lord, Lord Scott—the double criminality safeguard, the sufficiency test and the political decisions of the Home Secretary—as being necessary safeguards within the context of the EU. However, it is essential that there should be safeguards for the effective protection of the fundamental rights of everyone within what is called in the jargon "the European judicial space" so that they have equal protection throughout every member state of the EU. That is particularly important in the context of the enlargement of the EU because new states with totalitarian political backgrounds and traditions that did not involve an independent judiciary or legal profession are likely to be admitted to the EU sooner rather than later—and there will be more or less effective monitoring of standards before they are admitted. If such measures are introduced, we have to bear in mind that they will apply not only to the existing member states of the EU but, as membership increases, to candidate states.

What protections are given within the Euro-warrant draft framework directive for basic human rights and freedoms? There is, as the noble and learned Lord, Lord Mayhew, said, paragraph 11 of the preamble. However, that is a very soft and unsatisfactory safeguard. There is also Article 24, but that contains, as it were, a nuclear deterrent—it is so radical that it is most unlikely ever to be exercised in practice. It allows a member state to decide to suspend the application of the framework decision with regard to another member state in the event of a serious and persistent breach or violation of fundamental human rights, as is provided for in Article 6 of the Treaty on European Union. It is hard to imagine circumstances in which one state will ever exercise that option unless something very extreme indeed has happened. Noble Lords may note that the provisions apply only in respect of a serious and persistent breach. In other words, one unfair trial does not matter and several unfair trials do not matter; there has to be a serious and persistent breach of such gravity that the state exercises the option under Article 24.

Otherwise, the only safeguards lie in the specificity with which particular articles of the framework decision have been drafted. The noble Lord, Lord Brabazon of Tara, expressed our concerns about that in detail to the Home Office. A reply was given by the Parliamentary Under-Secretary of State, Mr Bob Ainsworth, in a letter dated 16th November 2001. To be more precise, his reply is contained in two letters—one undated and the other dated, and they differ. The

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dated letter was signed on behalf of the Under-Secretary of State, and we are meant to treat it as the final letter; the undated letter is an earlier version. I mention that because in the earlier version we were promised "primary legislation" to implement the directive. I should be grateful if the Minister could make it clear that we will get primary legislation, not subordinate legislation, in relation to the implementation of the directives.


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