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Lord Goodhart: My Lords, will the Minister say whether that principle would extend even to a case where, for instance, a foreign country sought the extradition of a national for undergoing an abortion, which is not an offence in this country?

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Lord Rooker: My Lords, I shall have to add that to the letter that I shall write. It is a fair question, but I am not in a position to give the noble Lord a straightforward answer.

Bob Ainsworth undertook to write to the noble Baroness, Lady Park, and I understand that he will do so before the end of this week.

The noble Lord, Lord Lamont, asked about heads of state. I understand the background, although I am not as familiar with it as he is. I cannot give an answer today on the position of heads of state, which is covered by the law on sovereign immunity and is not in the framework decision. I understand why the noble Lord raised that point. International conventions on genocide are moving towards extra-territorial consideration. There will be tribunals for Rwanda and the Former Republic of Yugoslavia, showing a development towards greater international jurisdiction for those crimes rather than retaining national tests of dual criminality.

The noble Lord, Lord Lamont, also asked about racism and xenophobia, which are examples on the list. I understand that most of the crimes on the list are straightforward; we recognise these types of crimes. Questions of interpretation are agreed or defined at EU level and are then placed in the national framework of national law. I do not have an answer on the xenophobia issue, especially on the argument of someone writing something in this country, which one noble Lord described as fanciful. The question deserves an answer, and I shall seek to put it in writing.

Lord Lester of Herne Hill: My Lords, I am grateful to the Minister. He may come to my question in his reply, in which case I am being premature, but before he passes on from the concerns that were raised earlier, will he deal with two important matters? The first relates to the Bob Ainsworth letter. I said that there seemed to be a contradiction on double criminality and the speciality rule. Is it the Government's position that someone could be extradited without double criminality for crime A and then prosecuted in the requesting state for a wholly different crime?

Secondly, is it the Government's position that the state that is being requested can refuse to give effect to the request if there is cogent evidence that an unfair trial will take place in the requesting state?

Lord Rooker: My Lords, the answer to the second question is yes—I certainly hope that it is—because we should not send people to courts where we are not satisfied they will receive a fair trial. As to the first question, I believe that the noble Lord, Lord Lamont, quoted Article 22.1. However, he did not go on to quote Article 22.2 which provides that people who are surrendered pursuant to a European arrest warrant in the issuing state may be prosecuted, sentenced or detained for an offence other than that for which the warrant was issued. However, if the offence is one of those referred to in Article 2.3—major terrorist offences—any such prosecution, sentence or detention is subject to the agreement of the competent authority

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in the executing state. Therefore, there is an attempt to reach agreement, even if the original charge and arrest have been extended to something else.

Lord Lamont of Lerwick: My Lords, with great respect to the Minister, if he consults Hansard he will see that I did quote the second part. I do not remotely complain about that. Perhaps I may return to the question of Article 2 offences. I am grateful to the Minister for agreeing to write to me about the question of xenophobia which was dismissed so airily by the noble Lord, Lord Goodhart. As a general principle, he must be able to answer the question whether the offences listed in Article 2 are extraditable if committed in this country.

Lord Rooker: My Lords, I cannot do so because if those offences are committed in the UK most of them are prosecutable here. We are talking about extortion, murder, money-laundering and everything else. Those offences committed here would be subject to our jurisdiction. I shall take advice and write if we can think of examples where an offence committed in this country is extraditable to another country. That appears to be a contradiction in terms. The argument about xenophobia is the only one that comes to mind. On the other hand, I do not want to think on my feet. Most of the offences on the list, if committed in this country, should be prosecutable here. Nevertheless, I shall seek to provide as detailed an answer as I can.

Lord Pearson of Rannoch: My Lords, does the Minister agree that, although it is good of him to put what he can in writing in response to my noble friend Lord Lamont and other noble Lords on the question of what "xenophobia" means, it is very important to have a clear definition before we come to primary legislation? The alternative is to leave the definition to the Luxembourg court in due course, which I believe all noble Lords would find unacceptable.

Lord Rooker: My Lords, I would find it difficult to come to the House with the legislation next year if I did not have answers to the questions raised tonight, all of which are legitimate. We must have answers. Noble Lords may not like the answers, or disagree with them, but the points deserve a response. I shall not put myself in that uncomfortable position.

I promised my noble friend the Whip that I would sit down promptly in 16 or 17 minutes, to which he replied, "Thank you very much". I shall try to stick to that.

Lord Cope of Berkeley: My Lords, the Minister is doing extremely well in attempting to answer our questions. I do not believe that he should be borne on too heavily by his colleague the Lord in Waiting. I believe that the House would wish that he does his best to respond, albeit succinctly.

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Lord Rooker: My Lords, I shall try to keep up the pace.

Lord Goodhart: My Lords, I believe that it would be helpful if the Minister kept going for at least another seven or eight minutes.

Lord Rooker: My Lords, I made that mistake the other week but no one told me about it. I must complete the debate.

The noble Viscount, Lord Bledisloe, raised very important issues. The European arrest warrant is not a terrorism measure. We agree. We are not proposing it necessarily as part of the anti-terrorism package. In some ways it is a good thing that most of it is divorced from the emergency Bill in any event because it relates to other offences.

However, it has to be realised that terrorists and their supporters are involved in other crimes to finance their terrorist activities. The European arrest warrant is about co-operating more effectively in bringing the criminals, including terrorists, to justice more rapidly.

As regards the lack of fairness, is it right that by escaping across a border someone should have greater protection than if they had not tried to evade justice? I know that we are not completely in a federal state, but we are trying to work together with our partners. One state will be played off against another by organised international criminals unless we take these steps. That is the basis of our approach.

It will be for the requesting country to determine whether its national offence comes within the description contained in the list, which is to be converted from the framework into national legislation. Only the requesting country can decide that. I hope that the noble and learned Lord, Lord Fraser of Carmyllie, did not think that I misled him. I was half correct. I have given these answers before. The extradition legislation is nothing new. It was planned. There are three Bills following the emergency. They were not originally in the gracious Speech and I appreciate that. There is the current legislation in the other place, the extradition Bill, and in the spring there will be the asylum and immigration legislation, which all flow from having to rewrite the rule book following 11th September.

The Government plan to use the secondary legislation route to implement EU conventions on extradition from 1995 and 1996 where it has been agreed as part of the terrorism road map. They should be ratified by the end of this year. As everyone knows, we intend a comprehensive overhaul of extradition—hence the consultative paper last year. In looking at the European arrest warrant, it seems sensible to us for it to be part of the Bill so that we have a coherent package for extradition to put before both Houses of Parliament. I hope that we shall have that agreed by the end of this year with the legislation being introduced, I believe, in January.

The point of the Bill at a later stage does not override the EU commitment to adopt the measure in December, but it is essential that we have an agreed

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EU text as the basis for developing our national legislation. We have to reach agreement at EU level before we can plan and prepare the detail. We are going to convert what was agreed at EU level into our national legislation.

The noble Lord, Lord Pearson, referred to the question he asked me last week. The answer is still the same. The death penalty is not a bar to extradition to the United States; otherwise we would never have extradited people for major offences. I believe we have also done that since 11th September. The proviso is that we get an assurance that, whatever the outcome of the trial, the person concerned will not be executed. That is the central issue. The United States has been more than content to comply with that requirement. I suspect that it has been required by every EU member state and every signatory to the EU convention over the years. The death penalty is not widely available in the United States now. Several states still have it.

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