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Baroness Ludford: My Lords, I apologise to the noble Lord and I thank him for giving way. I also apologise to the House. As regards a fair trial, I am anxious to clarify a point with the noble Lord before he sits down. In reply to my noble friend Lord Lester, the Minister said that he hoped there was a power to refuse to extradite if there was a belief that a person would not get a fair trial. However, I have searched in vain the text of the decision. Can the Minister confirm, first, where in the decision is the power to refuse to extradite on the ground that there would not be a fair trial?

Secondly, in his response to my noble friend Lord Lester, the Minister appeared to suggest that the UK Government would never apply intentionally the dual criminality provision. Would that extend to the offences listed under Article 2.4—abortion, euthanasia, morality, sexuality, freedom of expression and association—so that we would not apply the dual criminality test; namely, by taking advantage of the article? Have I understood that correctly?

Lord Rooker: My Lords, I must tell the noble Baroness that, on her final point, I shall respond in writing. I am not going to answer that off the top of my head. My own interpretation of this is that it is too sensitive and too important for me to respond immediately.

On the noble Baroness's first point, I think I am right to say that this relies on ECHR case-law. I am told that the case of Soering—I would swear that all noble Lords in the Chamber are familiar with the case, but I learnt about it only at the weekend when reading through the Box—states that a decision to surrender a fugitive by Bow Street Magistrates Court may involve the magistrate taking a decision which breaches the ECHR. This is on the basis that a decision to extradite an individual to where he would receive ECHR non-compliant treatment is regarded in certain circumstances as a breach of the ECHR itself. We therefore cannot exclude the possibility that the magistrate might refuse a request for surrender on

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ECHR grounds to avoid such a breach. It is implied in case-law that circumstances could arise where the judicial authority at Bow Street could say no. The magistrates themselves would not extradite because they would not feel that the action was ECHR-compliant

Lord Scott of Foscote: My Lords, I simply wished to point out to the Minister that I believe he is referring to the situation as it is at present under extradition law. I understand that that will no longer be the position if the new measure is reflected in a new Act. However, I accept that that is the position at present.

Lord Rooker: My Lords, I am reading only part of the briefing material and I am conscious that I have gone way over my time. I shall have to come back to the noble and learned Lord on the matter.

Given that we have signed the ECHR, and knowing that good evidence is in place, I cannot see how we could allow it, knowing that for various reasons a fair trial would not take place. I have to say that. It must be the case. In a sense it is like Article 3. We would not knowingly send someone back to another country in breach of Article 3. It is sacrosanct and there is no way around it. If we know that someone will not be given a fair trial in another member state, from our point of view that would be a serious state of affairs for the judicial process of another EU state. I do not say that it is inconceivable that that could happen; there must be circumstances where it could come about.

Lord Mayhew of Twysden: My Lords, I am so grateful to the noble Lord. All his decent instincts are coming out. He has said engagingly that he certainly hopes that some means are available by which we shall be able to avoid sending someone back in such circumstances.

In order genuinely to try to help the noble Lord, perhaps I may revert to the point that I tried to make some time ago; namely, that it would be far safer, far easier and far surer if there was written into the body of the decision—when it reaches its final form—an express prohibition that it shall be open to any person whose extradition is sought, to raise the issue and make the complaint that he will not be given a fair trial or will not receive any other fundamental right. How else shall we be certain that he will be given that protection?

Lord Rooker: My Lords, yes. The noble and learned Lord, Lord Mayhew, has caught me bang to rights. Over the past four years as a Minister, it has been a problem when confronted with dodgy circumstances, to think only: "Head down, read brief". I do not do that.

It is clear, as a result of our serious debate, that fundamental issues have been raised as regards what is to be done with people who are charged and required for prosecution abroad. Those questions deserve an answer. I am not drafting the Bill which will come before this House, but I believe the suggestion of the

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noble and learned Lord, Lord Mayhew, is eminently sensible. I cannot think of an argument against such a suggestion. With that, I shall now sit down.

Viscount Bledisloe: My Lords, before the noble sits down, he has candidly and charmingly said that there were a large number of points he could not answer; that he might have to think about them and write. There are now 17 days until this matter apparently has to be decided. Is not this total state of uncertainty yet a further reason why the decision must be postponed?

Lord Rooker: My Lords, I do not accept that. Although there are only 17 days, the UK Government will interpret the EU-wide agreement to our own national circumstances and bring a Bill to this House. That is when the real debate will take place.

Lord Kingsland: My Lords, I am grateful to the Minister for giving way. That is where the European Court of Justice comes in. The Minister said that we can interpret this legislation in the way that we want. However, as I understand it, the European Court of Justice will have overarching responsibility for the interpretation of the decision. It may well come up with a decision which we do not like. That is one of the reasons why I mentioned that issue in my speech. I am not suggesting that the Minister should answer me now; but I hope he will bear that matter in mind over the next 17 days.

Lord Scott of Foscote: My Lords, perhaps I may conclude the debate by thanking all noble Lords who have spoken. Their contributions have underlined the concerns that many people feel in regard to the European arrest warrant provisions. A number of new concerns have also been raised. I thank the Minister for the spirit in which he has responded to them.

Speaking for myself, there are two particular concerns I wish the Minister to take away with him. The first—which, I confess, I had not previously been struck by but which I believe to be a valid point—was raised by the noble Lord, Lord Lamont, in regard to jurisdiction. The double criminality requirement under present arrangements—that an offence be criminal here as well as in the requesting country if extradition is to be ordered—applies also to jurisdiction. We would not extradite if the requesting country is claiming a jurisdiction which we in this country do not claim for ourselves.

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All countries these days claim a certain amount of extra-territorial jurisdiction—we do and everyone else does—but an exorbitant claim to jurisdiction which no one else claims would not ordinarily be recognised here. I fear that under the measure as it stands, that would not be the case. An arrest warrant for a criminal offence which fell within one of the listed descriptions—even if we regarded it as a claim to exorbitant jurisdiction—would, if the legislation followed the lines of the proposed measure, have to be executed. An example was laughingly given of someone trying to prosecute the editor of the Sun. If that was in relation to an offence committed here, it would be a claim to exorbitant jurisdiction which we plainly should not permit.

The Government are going back to the Council of Europe in order finally to agree the terms of this measure. It has been rightly said—I cannot remember by whom—that the Government do not have to agree. This issue cannot be decided by qualified majority voting; it requires unanimity. There are a number of points that the Government can and, I believe it is the feeling of the House, should insist upon. For example, as the noble and learned Lord, Lord Mayhew, said, it would be easy to write into the measure a provision that a ground for refusing extradition would be that evidence had been produced that a fair trial would not be had in the requesting country.

The position at the moment under this measure—if the legislation follows this line—is that the magistrate would not allow that evidence to be given because it would be irrelevant. There has got to be a possibility of that evidence becoming relevant, and that requires an appropriate provision in the measure itself.

I am sure that the Government will take these important points to the next meeting of the Council at which the terms of these measures must be finalised. The Government will, of course, be accountable to Parliament and to the country for the agreement they reach on that occasion. These are very serious matters. I am sure that the Government will take them into account and insist on the measure being in a form that will correspond with our notions of human rights requirements and of requirements of fairness to individuals who are arrested under these warrants. I commend the Motion to the House.

On Question, Motion agreed to.

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