|Previous Section||Back to Table of Contents||Lords Hansard Home Page|
Lord Rooker: My Lords, for the avoidance of doubt, yes, there will be primary legislationan extradition Bill will be brought before Parliament early next year. It will contain this measure once it is finally agreed. It will be done in no other way than through primary legislation.
Lord Lester of Herne Hill: My Lords, I am grateful for that assurance. The counter terrorism Bill gives power to do that by subordinate legislation which is why I mentioned it. If that power is not to be exercised, that is reassuring.
Lord Kingsland: My Lords, I am most grateful to the noble Lord for giving way. In the light of the narrow scope that national parliaments will have to alter the decision, does the noble Lord consider that, in the circumstances, primary legislation is a great advantage? I fully support primary legislation, but given the extremely constrained circumstances in which our Parliament will operate following the decision, does he agree that the protection of primary legislation is more of a chimera than a reality?
Lord Lester of Herne Hill: My Lords, I agree with the noble Lord, Lord Kingsland, that in so far as influence on the framework decision is concerned, primary legislation is irrelevant. On the other hand, it is always reassuring that we have full scrutiny in this House and in the other place of legislation that deals with fundamental rights, freedoms and duties.
The more I read Mr Ainsworth's reply, the more puzzled I am about what all this means. As it has not been analysed in previous speeches, perhaps I can make clear some of my concerns. The issues were clearly formulated by the noble Lord, Lord Brabazon, and in the letter of reply the Minister correctly says:
In reply to that concern we are told, first, that there is paragraph 11 of the preamble and, secondly, that the Government are satisfied that decisions made under the framework decision will be ECHR compliant. That may be true of compliance in this country, but I do not understand how they can be satisfied that they will be ECHR compliant in other member states. Within the framework decision we legislate for all member states.
As regards bail, which has already been dealt with in previous speeches, we are given no satisfaction as to whether Article 5 of the ECHR, presumption in favour of bail, is or is not to apply to the framework decision. In so far as reliance is placed upon the European Court of Human Rights as the ultimate guardian of human rights, and for that matter the Court of Justice in Luxembourg, I simply draw to the attention of the House the important report by the evaluation group to the Committee of Ministers of the European Court of Human Rights of 27th September of this year, where
It is clear from the evaluation group's report that we cannot rely upon the Strasbourg court, with the long delays in its procedures, with its huge over-burden of caseload, with the lack of resources and so on. We cannot rely upon that court to come to the rescue of the framework decision. We have to rely upon national courts and upon the safeguards that are written in. The one safeguard, above all, that needs to be written in is a safeguard that every decision taken by prosecutors or judges in the requesting state or the sending state, must be compliant with the ECHR. Without that kind of safeguard I fear that this will, understandably, remove existing safeguards, but not put anything in their place that will give the necessary assurance and protection to the citizens of Europe.
Lord Monson: My Lords, before the noble Lord sits down perhaps I may put a question to him as I believe him to be an expert in such matters. Suppose an individual in Pennsylvania commits a minor crime with a maximum sentence of 12 months imprisonmentnot a federal crime but a crime according to the laws of the state of Pennsylvaniabut before he is brought to trial he absconds to, say, Wyoming. Is it not the case that he can be extradited from Wyoming to Pennsylvania only with the greatest difficult, if at all?
Lord Lester of Herne Hill: My Lords, I believe the answer is that it depends upon whether it is a state offence or a federal offence. I do not want to cause shortening of life to eurosceptic noble Lords with what I am about to say, but effectively the framework decision recognises that there are some kinds of offence that are federal so it is easy to transfer someone across member states, and there are other offences that are not federal, but state offences, for which it would be much more difficult to do so if the states of the European Union so consider.
Viscount Bledisloe: My Lords, I am sure that the last words of the noble Lord, Lord Lester, will have raised the blood pressure of the noble Lord, Lord Pearson of Rannoch. I start by expressing my thanks to the noble and learned Lord, Lord Scott of Foscote, for bringing this matter before the House and for explaining it with his customary clarity.
Primarily, I want to concentrate on the way in which these measures, in particular the measure on the arrest warrant, are being pushed through with a haste which, in my view, is wholly unnecessary and seriously
Secondly, if one has to legislate in haste it is normally desirable that such legislation should be temporary, allowing for calmer and more thoughtful consideration before it becomes embedded in the statute book. The arrest warrant measure dismally fails to pass either of those tests.
In the wake of the events of 11th September, the Council has proposed a raft of measures which it asserts are necessary or desirable to deal with terrorism and which it insists should be decided in early December of this year. Some of thosethe terrorism measure is onetruly relate to terrorism. But others, and particularly the proposal on the arrest warrant and on surrender procedures, do not in any way relate to the events of that date. Indeed, the Minister candidly admitted to the committee that he could not give a single example of how this measure would have been of any particular use between 11th September and today.
Further, as the noble and learned Lord, Lord Scott, has said, this arrest measure is not one to deal with terrorism. It applies to all criminal offences for which a sentence of one year's imprisonment can be imposed. It is not for an offence which will in fact get a sentence of one year, but for which the maximum penalty is one year. That includes driving offences, shoplifting and all kinds of matters that are a long way from being terrorism or anything like it.
These proposals on what really one might call "automatic extradition without safeguards" have been around for a considerable period. The Minister, in his letter and in his evidence, suggested that the fact that they have been around for some time is a point in favour of now dealing with them rapidly. The reason why they have been around for a long time and have not been enacted is because there are very valid objections to them which have not yet been satisfied, and not just because they have been sitting indefinitely in someone's in-tray.
Therefore, I, and I suspect others, inevitably feel that this arrest measure has been hitched to the bandwagon of 11th September in order to smuggle it through in the wrappings of anti-terrorism when normal and more deliberate consideration would have allowed time and scope for proper consideration of the major alterations that it will make to our entire system of extradition. Like others, I accept that there is a good case for some alteration to and simplification of the extradition system. It is a slow, cumbersome and over-elaborate system. But the fact that it needs some
It is not an exaggeration, as the noble and learned Lord pointed out, to say that the measure provides a completely new regime under which warrants from any country in the enlarged Community are executed almost automatically and where the role of a British court and a British Minister is almost entirely removed. It will apply to any country which has signed up to the Community unless it has behaved so badly, as the noble Lord, Lord Lester, said, that it has virtually been expelled from the system. It will not enable someone to say, "Well, granted the system in that country is very good for most things, but it is totally unfair to me as a gypsy or a homosexual and I won't get a fair trial". There are a number of other serious defects to which the noble and learned Lord referred.
The Minister expressed hope that some of these concerns may be allayed by further changes. But those hopes are not achievements. The unnecessary haste involved here is not just a question of inconvenience or a requirement on the scrutiny committee and so on to work harder and more quickly; it genuinely virtually nullifies the whole process of scrutiny and the opportunity of the relevant organisations to make useful representations and to warn of the dangers.
Perhaps I can illustrate the point. The sub-committee questioning the Minister had been given an English text of the proposal upon which it had framed its thoughts. Shortly before it met it received an untranslated French text which made major changes. The noble and learned Lord was either modest or honest enoughI know not whichto say that he was not able to make much use of that. Certainly, I was able to make none. But that was not the end of the matter because in the course of our questioning it turned out that that the French text with which we had been supplied was even, by then, out-of-date. The Home Office had yet a further French text which had been deposited that very day and which none of the committee had seen.
This travesty of the legislative process does not originate from Her Majesty's Government. The timetable is the work of the Commission or of the presidency or suchlike. I feel strongly that the Government have gone along with the timetable far too readily. I urge the House to express the same sentiment. I hope that even now the Minister will be able to tell us that the Government will insist on having enough time for proper deliberation of this important and controversial matter.
Lord Lamont of Lerwick: I, too, am grateful to the noble and learned Lord, Lord Scott, and the Select Committee for enabling this debate to take place. I feel considerable diffidence as a non-lawyer entering into an argument with so many distinguished lawyers who are much more experienced in these matters than I, but I feel that the issues raised in the proposed European arrest warrant are extremely important. They affect the rights of individuals. At the very least, they are a significant change in the legal procedures that would apply before extradition. That is why I speak, and for no other reason.
Because the issue is so serious, I entirely agree with what the noble Viscount, Lord Bledisloe, said about its timing and handling. The impression has been given, although the Government may not have intended it, that the provision is linked to 11th September. I accept that the issue of the European arrest warrant has been under consideration for a long time. But it seems that what is proposed goes beyond the conclusions of the 1999 Tampere European Council. It was there specified that the European arrest warrant would apply only to the most serious offences.
What is proposed in the framework document does not apply only to the most serious offences. If it was about only the most serious offences, would it apply to illicit trafficking in plants? If it was about only the most serious offences, would it apply to notions of xenophobia, which is not even a crime in British law? If it was about only the most serious offences, why, under Article 1, could someone be extradited who has been sentenced to only four months in prison? Extraditing people sentenced to four months in prisondoes that really cover only the most serious offences?
The Government's reply is that all that will be covered because the countries will sign up to the European Convention on Human Rights. They may do so; I am sure that they will, but that will not guarantee that their legal systems are free of corruption. A country may well appear to have more harmonious relations with its ethnic minorities, freedom of the press and a parliamentary system, but that does not guarantee that its judicial system is one to which we should impart all our trust.
Perhaps Mr Ainsworth might also like to consult the more than 300,000 people who demonstrated a few years ago in the streets of Brussels against their judicial system, because they strongly suspected that Mr Doutroux, who had escaped from prison after being been sentenced on a paedophile charge, was enjoying protection from among the elite in the judicial and political system. The Belgian Government was forced to try to introduce measures to ensure that, in future, judges would not be political appointees. Of course, it would take years for that situation to be wholly rectified.
Or perhaps Mr Ainsworth might like to read the words of Mr Strauss-Kahn, the former Finance Minister of France, who has recently been found not guilty of forgery. He had this to say about the French legal system:
I make those points not because I seek to argue for one minute that there should not be extradition. I do not seek to argue that there should not be improvement and speeding up of the system. I am saying that it is wrong that one should not be able to examine the prima facie evidence in a case before extradition or to raise the issue of whether a fair trial is likely.
One of the major concerns highlighted by the noble and learned Lord, Lord Scott of Foscote, is the principle of double jeopardy. That is an important principle, because it means that the law of another country cannot be applied extraterritorially in the UK. It cannot be right for someone to face trial for something that our Parliament has not made criminal. The latest draft of the framework decision is an improvement in that Article 2 now includes a positive, rather than a negative list. But that still leaves grave cause for concern.
It is argued that because all the categories of offence are, broadly speaking, offences in all the signatory countries, there need not be verification of double jeopardy. It is therefore claimed that double jeopardy is not really being abolished. Surely, that depends on the detail. Different offences may be defined in different ways in different countries.
For example, in a charge of fraud, which is an offence listed under Article 2, intention to defraud has to be shown in Britain, but not in other countries. The offences of racism and xenophobia have already been referred to. As far as I know, there is no such offence as xenophobia in British law. Of course, there are laws against racial incitement and we know that the Home Secretary has proposed a new law against religious hatred. As I read it, Article 2 permits that a British citizen could be extradited for an alleged offence of xenophobia committed in this country. I may be wrong about that, but that is an extremely important point on which I hope that the Minister will comment.
Could people be extradited for offences listed in Article 2 if they were committed in this country? That appears to be the casenot just for xenophobia but other offences listed in Article 2. I hope that we will not find the editor of the Sun, the admirable Mr Yelland, extradited for xenophobia after a few provocative articles and editorials arguing against European integration. To my mind, xenophobia is a much overused phraseespecially in the European Union.
It is easy to envisage several complicated situations. In some EU countries, it is an offence to sell Nazi insignia. French courts have been trying to extend their jurisdiction even to the United States to cover people trying to sell such insignia there. I wonder whether the director would allow an Internet provider to be extradited if a site were offering details of insignia.
The speciality rule was referred to by the noble and learned Lord, Lord Scott, and that is extremely important. And it is extremely important if it is true, as the Government have claimed, that one cannot be extradited only for interrogation purposes. They claim that that is the case, although as the noble and learned
It is true that the article then goes on to qualify that reference by reference to Articles 2.3 and 2.4 and the question of whether the offence was committed in this country. If that were so, it would be necessary to have the consent of this Government for a prosecution. However, it appears from Article 22 that a person might be extradited for one offence and then charged with another.
Perhaps I may ask the Minister to comment on one important point which I shall attempt not to labour. It is the question of sovereign immunity, state immunity and international crimes against humanity. Broadly, they are the kind of crimes raised in the case of General Pinochet. Your Lordships will be pleased to know that I have no intention of going into that case, but it is directly relevant to the issue of the European arrest warrant. We must know whether such cases involving former heads of state arriving in this country will be subject to a streamlined procedure, which would not have been the case prior to the creation of the European arrest warrant.
I know that some members of the Government thought that the case of General Pinochet illustrated a need to accelerate extradition procedures. I drew the opposite conclusion but we need to know the direction in which the Government are going. I could find no reference in the documents to crimes against humanity, torture, genocide and so forth. They are possibly covered by the references in Article 2.2 to murder and grievous bodily harm, but it is important to know. If the answer is that the Government have moved in the direction of speeding up extradition for such cases, I am bound to say that I believe they are making a profound mistake.
I do not believe that the world can live with a system in which any middle-ranking judge in any country can decide to prosecute a former head of state for an offence wherever it was committed. Judge Garzon has tried his hand at Mr Berlusconi, the Argentinians and the Peruvians. He tries to extend his reach all over the world. There is an argument for an international criminal courtit is not one I sharebut there is no doubt that it is a recipe for chaos to give junior judges such powers. I believe that one day former Presidents Bush, Carter and Clinton and possibly even our present Prime Minister will come to rue it if that is the direction in which we are moving.
Baroness Ludford: My Lords, I shall concentrate on the European arrest warrant rather than on the definition of "terrorism". However, I share the fears expressed about the suppression of legitimate protest. The European Parliament is doing its bit to try to improve the definition.
When the first European Union summit on justice and home affairs took place in Tampere two years ago, the heads of government expounded on what an area of freedom, security and justice, as proclaimed in the Amsterdam Treaty, would consist of. Many of us in the European Parliament then expressed concern that the member states would cherry-pick the security agenda and not equally emphasise the freedom and justice aspects. I believe that our citizens could appreciate the need to cut the bureaucracy and delays in classical extradition procedures. I recall a case a year or so ago of a British student murdered by being thrown off a train in France. The way in which the problems of extradition were batted between France and Portugal illustrated some of the problems.
Our citizens could appreciate that need to speed up the process but would not appreciate cutting corners as regards the protection of fundamental citizens rights. There is in principle a strong justification for a European arrest warrant to stop the delayswhat the EU Justice and Home Affairs Minister, Antonio Vitorino, has called "the tyranny of technocracy"but we need to have parallel measures to protect legal rights.
The elimination of the role of executive authorities for most aspects of the surrender procedure and the streamlining of those procedures would be a step forward in stopping criminals being able to play off one jurisdiction against another and escape scott-free. If governments and parliaments do not pool sovereignty in this area, I fear that the terrorists and criminals will be sovereign.
The problem with the proposal of a European arrest warrant is that the ministries of the interior are running the show, not ministries of justice. The development of such an internal market for policing and prosecution must respect two fundamental parameters if it is to be acceptable. It must ensure basic civil rights and it must be agreed democratically. I would feel more reassured if there were recognition by our own Government of a twin-track approach that mutual recognition must be accompanied by a programme of ensuring common minimum judicial standards and safeguards. But the answer of the Parliamentary Under-Secretary of State at the Home Office, Mr Ainsworth, to a suggestion by my noble friend Lord Lester of Herne Hill in the course of his inquiry was less than encouraging.
My noble friend Lord Lester suggested that proper standards of protection for basic rights and freedoms should be written into the decision itself so that they could be monitored by the European Court of Justice and national courts. In response, the Minister made it clear that he saw the mutual recognition of prosecution efforts and efforts to have similar judicial
There needs to be a simultaneous programme of legal rights simultaneously with European warrants and other cross-border criminal co-operation measures to ensure that the rights guaranteed under the European Convention on Human Rights are respected in practice. I am very much indebted to the organisation, Fair Trials Abroad, which is an admirable organisation run on modest resources, I regret to say, but which does excellent work. It highlighted some of the issues in evidence to the committee. The organisation carried out some research into legal aid and the availability of competent legal advice and the representation on criminal matters for non-Greek citizens arrested in Greece. It shows that such availability for people with little or no financial means was uncertain. The main cause was that public funds for payment for lawyers were non-existent or derisory. There is evidence that the same is true in Italy, Portugal and Spain. Fair Trials Abroad said that competent lawyers would expect reasonable payments by the states involved. On the question of real access to justice through translation and interpretation facilities, a survey on provision was carried out on the criminal justice system of five EU member states. The findings show an unacceptable gap between existing legislation and practice. There was a lack of recognition by justice systems of the fundamental right to understand and to be understood and an absence of recognised training programmes or clear professional standards of competence. Above all, there was a lack of adequate remuneration. Those are practical problems and although the proposal mentions access to legal aid and interpretation, if there is no substance given to it by real effort and common agreement among member states, those rights will be regarded only in their breach.
Furthermore, as has been mentioned, there needs to be a presumption of bail, which is absent in the proposal. Fair Trials Abroad makes an interesting suggestion for a body that is similar to Eurojust, which facilitates interstate prosecution. One could have a body called Eurorights to facilitate interstate protection of citizens and monitor the workings of criminal jurisdictions in the European legal area. That is an interesting suggestion.
Reference was made to a monitoring system set up by the Council of Europe in 1998 to examine the national justice systems of all EU member states. A shortlist of problems included political interference in the administration of justice, corruption, shortage of resources, delays and a prosecution that was too close to the judiciary. One is in a slightly difficult position in mentioning all those problems. It is not to sound superior or to think that everything is wonderful at
The situation when enlargement takes place to include eastern and central Europe will be even more worrying. One need look only at the report produced last week by the European Commission on progress on enlargement. Some of the problems reported include low prison standards and corruption in the justice system. There is much support throughout the EU for harmonisation in external border controls, so I fail to see why we cannot aim for an approximation of defence rights on a similar principle.
Another step that could be taken to entrench fundamental rights in this context would be to incorporate the EU Charter of Fundamental Rights into EU law, which would mean European Court of Justice competence.
I referred earlier to the problem of the rights of people who are arrested abroad and I mentioned Greece. I wish to raise the case of a dozen British and a couple of Dutch plane-spotters who have been arrested and imprisoned in Greece on charges of espionage. Some of these people are my constituents as I am a Member of the European Parliament. I understand that there is to be a magistrates' hearing tomorrow. I appeal to the Greek authorities to grant bail to those defendants. It appears that, although they have been nai ve, they have not been spying; they just have a passion for their hobby of plane-spotting. There are disturbing reports of very poor prison conditions. I have heard their Greek lawyer on the radio and have no reason to doubt his competence or that of the magistrate, but it makes the concept of a European arrest warrant more difficult to sell if EU citizens in another member state appear to be treated unfairly.
EU justice and home affairs measures are agreed under the Third Pillar according to the EU treaty, which essentially means intergovernmental co-operation. The European Parliament is merely consulted. We have the impression that usually we are ignored, but we work assiduously to deliver our opinions in order to substantiate our claim to joint legislative authorityco-decision with the councilas soon as possible, but that is not yet the case. Therefore, there is a democratic deficit in Brussels. But why do the Government propose to make it worse with the democratic deficit in Westminster? The proposed enabling power to implement by statutory instrument EU agreements in the field of justice and home affairs means that these measures would escape democratic accountability anywhere.
The example of other precedents is misleading. Areas such as the environment or the internal market are examined and scrutinised properly in the European Parliament in Brussels because there is co-decision. The justification put forward for secondary legislation to implement Third Pillar measures in a timescale which meets the current requirements will not wash. Once in force this emergency provision may well become permanent and be used to enact other measures agreed under the Third Pillar. Even for anti-terrorist measures it is inappropriate.
I conclude that if we are to have a system of European arrest warrants there must be a system of guarantees of due process to parallel the Euro-warrant scheme so that individual rights are protected. I concur with many of the observations raised earlier in this debate.
Baroness Park of Monmouth: My Lords, I speak as a member of the Select Committee who had the privilege to attend Sub-Committee E when the Minister gave evidence on these issues. I have two causes for concern. One is the general concern, which I believe is shared by most if not all members of the committee, that the events of 11th September are being used by the European Union to push through further powers in haste and without due scrutiny. The doubts expressed by those who understand the legal issues much better than I do suggest that the urgent wish of Ministers to show solidarity could end in bad decisions.
For example, we are asked to accept extradition to another country whose criteria for terrorism might include such things as putting up a poster saying "Free the Kurds" and whose normal procedures for interrogation before trial could include torture, or at the least undue pressure, and the removal of a statutory right to habeas corpus. A number of countries whose standards of legal procedure are very different from own await entry to the EU as part of enlargement.
The Foreign Affairs Committee in another place, discussing the Commission's own report of November 2000 under the Copenhagen criteria, said that this acknowledged progress in the candidate countries in adopting the acquis but questioned their capacity to implement and enforce it. I do not believe that when it comes to it the EU will refuse entry on those grounds, so we may in future have some very difficult decisions and situations to face.
The European arrest warrant covers not only terrorism. It does not seem right that there should be hasty and in effect irrevocable decision-making on such a vital and broad issue just because we are apparently driven by the single issue of terrorism. Moreover, I have a strong suspicion that another and wholly indefensible reason for the tight timetable, with its virtual failure to allow scrutiny, is the determination of the Belgian presidency to be seen to have done something significant. Incidentally, with its reported refusal to allow the FBI access to suspected terrorists held in Brussels it cannot be said that the Belgian Government have demonstrated commitment to the spirit of the projected legislation to combat terror. We appear to be in a situation in which it is too late to argue and we shall have no choice but to implement the framework decision by primary legislation, despite the fact that it will have the effect of abolishing many traditional grounds for refusing extradition.
My chief concern, however, is the council framework decision for combating terrorism which is associated with the decision on the European arrest warrant and is subject to the same urgent timetable. The small print contains some vital and disturbing measures and initiatives to be followed as part of the action plan decided on 21st September by the Council of Ministers. These are listed in a so-called "Road Map". They include decisions that every EU intelligence and security agency shall be required to pass on to Europol all relevant information they hold on terrorists. The council also approved the creation of a Europol intelligence unit to be staffed forthwith by intelligence officers. It is that very intelligence which is one of our most valuable contributions as a country both to military operations and the fight against terrorism.
What are we to make of such entries in the Road Map, under "progress already made", as a first meeting chaired by the head of national security held on 11th and 12th October when instructions were given by the president of the Council by a letter dated 10th October to the heads of all intelligence services to provide him with concrete proposals in the very near future for co-operation and exchanges of information between all intelligence services, regular meetings of heads of intelligence services, strengthening co-operation between police services including Europol and intelligence services and the setting up of a team of anti-terrorist specialists within Europol? The body responsible is to be the member states and the Europol management board. Who are they?
The president has, according to the Road Map, sent a letter to his colleagues "insisting" on the presence of liaison officers from the intelligence services. By 15th October most of the member states, according to the Road Map, would have sent specialists to Europol. The team was to be operational by November of this year and it must report to the Council in March 2002 on progress made and problems encountered. There is to be peer assessment of national arrangements for combating terrorism and an unspecified number of working parties.
Finally, a delegation made up of representatives of the Ministry of the InteriorI take that to be the Belgian Ministry of the Interior at the momentincluding the Department for State Security and the Ministry of Justice, and the police services of the present and incoming presidencies, the Commission, the Council secretariat, and Eurojust, all to travel to Washington on 18th October to discuss arrangements for working parties in terrorism troikas every six months and for the Europol team of counter-terrorism specialists (sic) to work with American counterparts and so on and so on.
Have we gone mad? Who is going to do all this and to what good end? Has the Intelligence Committee been consulted both on the issue of the effective protection of any intelligence that we might be mad enough to hand over and the effect all this feverish activity will have on our very effective intelligence
These decisions will have the most serious consequences. We already have carefully monitored arrangements with NATO to protect intelligence fed in there. Europol, on the other hand, is known to be a very leaky sieve, even in dealing with its present work on organised crime. There has been at least one case of a Europol official selling information culled from its computer. I shall not mention the nationality of the person concerned, but it is quite well known.
Intelligence is not just information, it is an aspect of defence and as such should have the protection of the veto. Will it do so? Above all, there is no threat to the security of delicate information so serious as a proliferation of amateur, uncontrolled and unprofessional bodies with access to intelligence. There is little point in trying to safeguard intelligence passed to NATO and the ESDP if it is to flow out of the back door.
The Minister who was before the committee, Mr. Ainsworth, was kind enough to say, when I asked him about the Road Map for intelligence, that although it lay outside the remit of our discussions on the arrest warrant on that day, he would write to me. However, I felt obliged to raise the matter on the Floor of the House tonight because of the urgency of the timetable of events. Therefore, I hope that he will not think me discourteous to do so. The issue will come up again when we deal with Part 8 of the Anti-Terrorism, Crime and Security Bill. It would be helpful to know what the position is by then. I shall add only that the intelligence services may have better things to do than to send people with real work to do to attend the European equivalent of a tupperware party and not just one but dozens of working parties, troikas and, no doubt, focus groups. I recognise that I have a certain déformation professionelle in approaching these matters. Perhaps a more apt metaphor might be that we are likely to see a great many busy chickens sitting on a great many addled eggs.
Baroness Stern: My Lords, I, too, speak as a member of the European Union Committee who was privileged to attend the meeting of Sub-committee E where the Minister gave evidence. I wish to highlight a number of matters of concern, in particular as regards the framework decision on combating terrorism. I am grateful to the noble Baroness, Lady Ludford, for reminding the House that the European Parliament is also working on the decision.
Many noble Lords have raised anxieties about the speed with which such major changes are being introduced. I echo those concerns, as do a number of international human rights organisations. The head office of Human Rights Watch is on the 34th floor of the Empire State Building in New York and therefore could not be accused of being out of touch with the need to combat terrorist attacks. It has stated that,
As I understand the framework document, it contains proposals for new law with new offences, new maximum penalties and new definitions of both aggravating and mitigating circumstances. The framework raises a large number of questions, yet it is to be agreed by 6th December.
Much is heard about the "democratic deficit" within the European Union. By "democratic deficit", presumably we mean that many decisions are taken at European level that the people of Europe have not heard about, their representatives have not been consulted on, interested groups have not been able to comment on, and which then affect the lives of all of us. Does the Minister consider that the democratic deficit will be reduced by the process we are going through here?
Certainly, it is reasonable to assume that the citizens of Europe expect to be protected from terrorism. They want their governments to take the right measures to do so. How can they make a judgment on the proposals? How can they evaluate the claims being made for them? In what discussions can they participate as regards the possible courses of action, the alternatives and the evidence that support the course of action we are discussing today rather than other possible paths that might be taken?
I shall move on to make a point about the definition of terrorist offences in the Council framework decision. I refer to the latest text from the Council of the European Union, the 26th October version. It sets out what will be defined as "terrorist offences". The latest version is clearly an attempt to tighten up the definition and to answer criticisms on its catch-all character. I am somewhat reassured by the comments of the noble and learned Lord, Lord Scott of Foscote. But for further reassurance I should like more clarification.
On the basis of that, I should like to put the following scenario to the Minister in the hope that he can resolve some of the problems I have had in understanding the document. Imagine a rather lonely 18 year-old in his first year at university who meets up with a group called, purely for the sake of argument, the "Anti-globalisation Coalition for the Destruction of Multinational Exploiters", or some such title. The members of the group persuade him that he should join them and go out to fight multinational companies and the policies of, perhaps, the World Trade Organisation that encourages them because, the group claims, they exploit workers in the third world. So the group decides to organise a sit-in of the local office of such a multinational company, which involves breaking in.
This young man is convinced by their arguments; he is glad to have some friends. So he joins and goes around the town putting up posters about their sit-in. Is it possible that once these proposals are law, anyone in this country or any EU country could define those activities as a terrorist offence? If this young man were charged with such an offence, is he likely to be punished with a prison sentence of eight years? Noble Lords may find this rather far-fetched, but there are stateseven EU candidate states, perhapswhere putting up a poster in certain circumstances is a terrorist offence, and the penalty can be a substantial prison sentence.
When I arrived at the House today, I received a reply from the Minister, Mr Bob Ainsworth, to the noble Lord, Lord Brabazon of Tara, about the committee's report. In regard to the definition of terrorism, the Minister states:
There are wider implications. Up until now the European Union has been a force for great good in the world, working for the abolition of the death penalty, supporting the United Nations human rights machinery and supporting the activities of many organisations working for democracy and human rights throughout the world. By taking such precipitate and questionable action, the European Union puts in question its sincerity and credibility in promoting human rights observance in other parts of the world.
Lord Fraser of Carmyllie: My Lords, undoubtedly, since 11th September there has been a very real mood of revulsion against terrorism across Europe. In so far as the Government seek to seize the moment and secure across Europe a greater determination in the combating of terrorism, no right-thinking person could do anything other than support that most worthy of objectives. As the noble and learned Lord, Lord Scott, indicated, although there may be issues around the exact definition of terrorism, the basic intention of the framework document demands the support of a great number of people.
Looking at the document that has helpfully been provided, I am puzzled when I relate it to Clause 110 in Part 13 of the Bill dealing with the implementation of the third pillar. The explanation of the clause includes the statement:
The noble Viscount, Lord Bledisloe, indicated that some of those crimes might be pretty minor. Under the law of Scotland, the crime of breach of the peace technically attracts a sentence of life imprisonment. Breach of the peace is the charge that the Procurator-fiscal in Glasgow uses when he has an unpleasant young man urinating up closes and using loud and abusive language to people who are otherwise peaceful.
I am not suggesting that the authorities in Scotland would be so dumb as to utilise extradition back warrants to secure the return of people who have committed offences of that limited character, unpleasant as they may be. But we must not get ourselves into the frame of thinking that when we deal with these proposals we are dealing only with what are necessarily the most serious crimes in the calendar. The crimes are extremely wide-ranging, and that needs to be clearly understood.
I have less difficulty with those provisions relating to extradition which might relate to terrorist offences. But I am strongly opposed to a broadening of the provision, in a way that appears to me to be surreptitious, under the cloak of the present concern and revulsion in relation to terrorism, so as to unpick what has been an extremely complicated system of extradition across Europe. I have considerable sympathy for what I understand to be the Government's description of our existing arrangements as outdated, cumbersome and slow. If my confidence were such as to believe that, by the introduction of these changes, we would sweep away all those difficulties and I felt that there was a real, careful and proper protection of the rights of individuals, again, what right-thinking person would wish to object to these changes?
The position is far from that, however. It has been extremely difficult, as a number of those who have sat on the Select Committee have identified, to follow exactly what has been the Government's thinking. The first text we had was in French. I am sure that there are other members of the Select Committee whose French is perfect, but I have to confess that I had some considerable difficulty in understanding fairly significant passages within that directive. It is only today that I have managed to lay my hands on what I understand to be the up-to-date version of the draft in English.
What is more misleading than anything else is that I have also today, for the first time, managed to lay my hands on what were the responses to the Government's document on their proposals for extradition reform. These were set out in what I understood to be a review document, described as The Law on Extradition: A Review, published in March 2001. What perplexes me is that, in the letter from the noble Lord's ministerial colleague in the Home Office, he says, under paragraph 9 of his letter of 15 November:
It seems to me, from what is only a relatively cursory examination of those responses to the document, that no unanimity or agreement is achieved following on that review. Indeed, if we take even the designated district judges at Bow Street Magistrates' Court, what they seem to see as a greater priority than any change within Europe is the desperate need to modernise the treaty with the United States of America.
There are a number of other very telling criticisms made in the responses that were received. The one that caught my eye most vividly was the case of Gale v. Governor of HMP Holloway. Mrs Gale's extradition was requested by Portugal for money laundering offences. If a warrant for her arrest were to be sought under the proposed draft, money laundering could be included in that list. However, as is narrated in their submission:
With the greatest respect to Lord Justice Laws, he is unnecessarily restrained in his judicial language. It would be plain daft to return someone under an extradition arrangement, or under a warrant, to a court in circumstances when one knew that she could not be brought to trial.
Let me get away from Bow Street magistrates, who may have many such applications to deal with and who may be very expert. Let me take the luckless sheriff at Edinburgh, who would deal with these matters in Scotland. Is he to know that under the procedural rules of Portugal, a signatory to the European Convention on Human Rights, once an arrest warrant has been issued by a public prosecutor there is no power to stop the proceedings going to trial, because her husband had, in this case, been tried and acquitted? He cannot possibly be expected to know the detail of procedural law across the European Union even at the momentand even less so once the Union is extended.
In such circumstances, provision will inevitably have to be made for some judicial examination of what is to be donewhether the arrest warrant is to be allowed. Once that is in place, all the unnecessary delays and bureaucratic complications that we are seeking to set aside will come back into place by another route. That is why we need to have a more protracted debate to understand exactly what improvements the Government believe will be brought about by the changes.
We are grateful to the Government for agreeing to have this debate this evening. I had understood that urgency was part and parcel of our deliberations and that we had gone at the issue so quickly because it was going to be in the anti-terrorism Bill. If the Minister is now telling us that there will be an opportunity for an extradition Bill at a later stage, I earnestly request that we take our time over it to ensure that we do not allow sets of circumstances to emerge that will be more complicated or will do nothing to improve the current position. I look forward to the Minister's response.
Lord Pearson of Rannoch: My Lords, the noble Viscount, Lord Bledisloe, was good enough to suggest that my blood pressure and that of other Euro-sceptic Peers might have been somewhat raised by the answer
What is, of course, typical of the EUbut so typical as not to raise one's blood pressureis that these advances in its power were, in effect, stolen under the cover of the darkness of the events of 11th September. The EU always seeks to advance its powers. The ratchet in its progress to total domination of Europe has never gone into reverseindeed, the treaties prohibit that. However, it is deeply depressing that the Government have fallen for such a ploy on this occasion.
I shall repeat a question that I put to the Minister last Thursday, 15th November, at col. 680 of the Official Report, because I did not get a satisfactory reply. Have we really come to such a pretty pass, thanks to our subservience to the so-called courts in Strasbourg and Luxembourg, that Her Majesty's Government could not extradite Mr Osama bin Laden to stand trial in the United States of Americain the courts of our greatest allybecause he might face the death penalty, whereas British subjects now face the prospect of being arrested on the say-so of a Belgian magistrate to stand trial in Brussels without habeas corpus or trial by jury? Have we really gone so mad? I should like the Minister to say yes or no to that if he can.
I have three quick questions slightly more targeted on the framework directives. First, I am serious in pressing the noble Lord on the meaning of "xenophobia" in Article 2 of the arrest warrant directive. What exactly is the crime here? I fear that we really must have an answer on that, if only because some of us Euro-sceptics are already accused of xenophobia, sometimes even by Members of your Lordships' House, just because we believe that the Treaties of Rome and pretty well everything that pours forth from Brussels are hopelessly misguided and fundamentally dangerous for the democracies of Europe. One problem here may be that the Government in their wisdom gave jurisdiction over racism and xenophobia to the European Union under the Amsterdam Treaty, so their room for manoeuvre may be limited. But at least the Government should say what they think that crime is. Can the Minister give a clear, irrevocable assuranceI hope that he is listening as this is an important questionthat I will not eventually be sent to the Gulag for eight years without the option just for believing and saying that the sooner the United Kingdom gets out of the European Union the better?
The second question on which I wish to press the Minister is whether these directives would have made any difference at all to the events of 11th September. As I read it, when the Minister went before your Lordships' Select Committee on 7th November he could not think of how that might be. However, I
Finally, and most importantly, can the Minister tell the House what is the Government's room for manoeuvre on these directives? Leaving aside whether or not they want to, can the Government block them, or are we caught in some way by some ghastly form of majority voting sewn into the treaties? I should be most grateful for an answer to that. Can we block this legislation or must we agree it and must we in the end put it into our domestic legislation in pretty well pure form?
Lord Goodhart: My Lords, I start by declaring an interest in this matter in that I am a vice-chairman of the council of Justice and I also have a relationship, though a somewhat looser one, with Fair Trials Abroad.
Until the general election I served on Sub-Committee E of the European Union Select Committee and I am very pleased to see that the report continues to follow the high standards followed under the noble and learned Lord, Lord Hope of Craighead, who was the chairman of the sub-committee during most of my period on it.
The draft framework statements have had a universally bad reception from everyone who has spoken this evening. That applies not only to the usual suspects such as the noble Lord, Lord Lamont, but also to those who are known in your Lordships' House for their support for the European ideal such as my noble friend Lady Ludford. Therefore, clearly something is badly wrong.
I start with the framework decision on terrorism which was mentioned by two speakers, the noble Baronesses, Lady Park and Lady Stern. That was important as it emphasised that it is not only the European arrest warrant that has to be looked at but also the framework decision on terrorism. I was particularly struck by the comments of the noble Baroness, Lady Park, who knows a great deal more about intelligence than most of us and her concern about the possible impact of the decision on intelligence gathering, if it is implemented in its present form. I think that it is justifiable for Europol to have its own intelligence capacity though it would plainly be highly desirable that there should be some degree of democratic accountability for Europol if that were to happen.
But certainly, if indeed it is true that there is an obligation on national intelligence services, including our own, to pool their intelligence with Europol with the increased risk of leaks that that involves, that is obviously a matter which any government of the United Kingdom would wish to consider very seriously. I certainly hope that the present one will, and I await with interest what the Minister has to say about it.
One of the safeguards to which the noble and learned Lord, Lord Scott of Foscote, referred was the present requirement for a political decision by a responsible Minister. If we were satisfied that the trial in the country to which the accused could be extradited met fully the standards required by the European Convention on Human Rights, I should certainly consider that it was no longer necessary or desirable to include a political decision before the extradition could take place.
I believe that there are many disadvantages in involving a political decision in this field. The issue that perhaps tempted me most strongly to support the existing European arrest warrant was the suggestion that it could be used to extradite the editor of the Sun to France or Germany next time that newspaper, on the eve of a big football match, published another article about "Frogs" and "Huns".