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Lord Rooker: My Lords, the European arrest warrant system will work only after charges are laid. People cannot be extradited for the pursuit of inquiries. Therefore, it is not as though one is jumping the gun. Some 32 serious offences are now on the list, including trafficking in human beings, arson, rape and a whole host of other crimes. If charges are made against people in relation to those offences, then the extradition process will follow. But it should not necessarily follow that the process will be dragged out over years and years.
Lord Strabolgi: My Lords, is my noble friend aware that one of the people arrested is the wife of one of the plane spotters, who said that she is not in the least interested in plane spotting and went along only to keep her husband company?
Lord Rooker: My Lords, noble Lords are asking me to comment on a case on which the judges have delayed until tomorrow their final decision. I have nothing to say about the case of the plane spotters in Greece. That would be inappropriate, even though I might want to make a few choice remarks about the tourist industry between our two countries.
Lord Pearson of Rannoch: My Lords, given that, like all dictatorial regimes, the European Union is legislating in secret on this matter, are the Government aware of a leak by the Greek Justice Minister published in a Greek Sunday newspaper known as XFree Press" to the effect that the warrant, even in its present form, would allow British subjects to be extradited from this country for a crime which carries a prison sentence of one to three years in the issuing country, even if that is not a crime in this country? In those circumstances, can the Government give the House an undertaking that they will respect their promise to Parliament and will not agree this measure in Laeken or anywhere else until the scrutiny reserve has been lifted by your Lordships' Select Committee?
Lord Rooker: My Lords, it is right that scrutiny must be carried out. I understand that tomorrow the Minister concerned, Bob Ainsworth, will appear before your Lordships' scrutiny committee as he did before the Commons yesterday. Let us not assume, as some noble Lords do, aided and abetted by XThe Forgers' Gazette"—the media in this country—that this issue is current legislation; it is not. It will be subject to primary legislation in an extradition Bill. That will not be rushed through or done behind closed doors. It will be done on the Floor of this House and in the other place.
Lord Wallace of Saltaire: My Lords, does the Minister accept that those of us who recognise that
serious crime in this country is often aided by the ability to escape to other EU countries and fight extradition for prolonged periods nevertheless have some questions about the European arrest warrant in terms of dual criminality? We should very much like the British Government to be tougher on that issue than they appear to have been so far.
Lord Rooker: My Lords, the issue of dual criminality is sensitive as regards matters which are not crimes in this country but are crimes elsewhere. Different countries have different processes. Some areas of dual criminality have not been finalised. I refer, for example, to the issues of euthanasia and abortion. I know nothing about the legislative process in other countries, but both those issues are free vote issues in this Parliament. While all laws are equal, issues passed on free votes must carry a greater force. No decisions have been taken. But all these matters will be debated in terms of the law of this country in primary legislation in a Bill to be brought before Parliament relating to extradition in the early part of next year.
Lord Howell of Guildford: My Lords, it sounds as though the extradition Bill will be a large new Bill. When it comes before this House and the other place, will we in practice have any opportunity to alter it or will it all have been sewn up in prerogative treaty form so that there is not much room for amendment? For instance, will we be able to amend the crimes listed for this process? Will there be any freedom at all or is this just a rubber stamp on a matter which will be agreed in the Council of Ministers and which we shall have little opportunity to alter?
Lord Rooker: My Lords, I freely admit that there will be an international treaty obligation. The list of crimes referred to currently stands at 32. That has changed in the past few days. I do not know whether that will be the final list, nor how big the extradition Bill will be. However, no one can claim that it will come as a surprise. It will be the result of a consultation document published this year. There has been a review of extradition law over a period of time following recent high profile cases. It is no surprise that there will be an extradition Bill. However, it is a fact that, as regards the European arrest warrant, an extradition Bill is a better vehicle for legislating for it. I do not know how flexible the legislation will be. However, the primary legislation will be debated and, I presume, amended at each stage of the process in both Houses before a final Act of Parliament is passed.
Lord Stoddart of Swindon: My Lords, I do not know whether my noble friend the Minister has cleared up the matter. If an agreement is reached at Laeken and the matter is brought before Parliament for primary legislation, will it be possible for that agreement, whether or not it is a treaty, to be altered by Parliament—by the House of Commons or the House of Lords or by both acting together? That is what we want to know. If such primary legislation goes through the House of Commons on a guillotine Motion, so
leaving little time for individual clauses to be debated, will this House be able to debate it properly and not be insulted when it makes reasonable amendments to what might not be a satisfactory Bill?
Lord Rooker: My Lords, in answer to the second part of my noble friend's question, I do not know in which House the Bill will be first introduced. Therefore, I shall not speculate about how each House will deal with the matter. As regards the first part of his question, I cannot add to what I have said. I do not know what will be the nature of the Bill. Work is being conducted at present. An agreement on the European arrest warrant has not yet been reached at a political level in Europe. Until it is, we are speculating in hypothetical circumstances.
Lord Goodhart: My Lords, would the Minister be prepared to consider supporting the Eurobail system, which would enable people charged in one country of the Union to be released on bail to return to their home countries pending the hearing of a case? Would not that have enabled the plane spotters in Greece to be released on bail pending a decision taken by the Greek courts on whether they were to be proceeded against?
Lord Rooker: My Lords, it might have done. However, if charges are to be made by another country with which we have an extradition treaty, there is a due process. The idea of the European arrest warrant is to speed up the process so that we do not have months and years of delay during which time alleged criminals seek to avoid justice. There is nothing new intrinsically. Extradition laws are old, almost 19th century legislation. We are trying to modernise them so that people cannot play off one country against another depending on where the crimes are committed.
Business
Lord Carter: My Lords, at a convenient moment after 3.30 p.m., my noble and learned friend Lord Falconer of Thoroton will, with the leave of the House, repeat a Statement being made in another place on the local government White Paper.
Anti-terrorism, Crime and Security Bill
3.7 p.m.
Clause 26 [Certification: review]:
Lord Goodhart moved Amendment No. 1:
- Page 14, line 24, after Xthat" insert Xat the time of the review"
The noble Lord said: My Lords, in moving Amendment No. 1, I shall speak also to Amendments Nos. 2 and 3. These amendments are based on the 5th report of the Joint Committee on Human Rights, which was published last week. Clause 25(2)(a) of the Bill provides that on appeal, SIAC must cancel a
certificate issued by the Home Secretary under Clause 21 if it considers that there are no reasonable grounds for believing that the appellant's presence in the UK is a threat to national security or there is no reason to suspect that he is a terrorist. Under Clause 25(2)(b) SIAC must also cancel the certificate if it considers for some other reason that it should not have been issued. For example, that could be relied on in a case where there has been a procedural irregularity in the issuing of the certificate.I turn to Clause 26, which deals with SIAC's powers on review, as opposed to an appeal. On review, SIAC can cancel a certificate only if there are no reasonable grounds for the belief that the appellant's presence in the UK is a threat to national security or that there is no reason to suspect that he is a terrorist.
SIAC has no power to cancel a certificate for any other reason.
Clause 26 raises two problems that were considered by the Joint Committee on Human Rights. First, it is not clear that SIAC can cancel a certificate if the Home Secretary had a reasonable belief or suspicion at the time he issued the certificate but subsequently new information shows that that belief was mistaken. That difficulty is covered by Amendment No. 1. It makes clear that the reasonableness of the belief or suspicion must be based on facts as known at the time of the review and not simply on the information available at the time of the certificate.
Secondly, SIAC cannot, on a review as opposed to an appeal, cancel the certificate on the basis of a procedural irregularity, which means that the certificate was not validly issued, even though it would have been cancelled if the proceedings had been by way of appeal rather than review. There seems to be no logical reason for distinguishing between the powers of SIAC on an appeal under Clause 25 and on a review under Clause 26. The Joint Committee on Human Rights rightly considered that the powers on review should be brought into line with those on appeal.
Amendment No. 3 covers a different point. It was raised by the Joint Committee on Clause 27(9). At present it states:
- XCancellation by the commission of a certificate issued under section 21 shall not prevent the Secretary of State from issuing another certificate, whether on the grounds of a change of circumstance or otherwise".
- XThis could result in cases being batted backwards and forwards indefinitely between the Secretary of State and the Commission, and would not offer adequate protection for detainees against arbitrary interference with their right to liberty under Article 5 of the ECHR".
I go back to the report on the issue. It states:
- XWe believe that it should be possible to amend clause 27(9) in a way that will reflect the Government's intentions, which seem to now to have been spelt out sufficiently clearly to enable a satisfactory amendment to be drafted. The Secretary of State could be enabled to issue a new certificate if, and only if, (a) there is fresh evidence, (b) the original certificate was quashed on technical grounds rather than because there were insufficient grounds for making it, or (c) there has been a material change of circumstances justifying the making of a new certificate. We still consider that the sub-clause as currently drafted does not provide adequate safeguards against arbitrary detention".
Amendment No. 3 achieves the objectives pointed out by the Joint Committee. New paragraph (a) allows a new certificate to be issued where SIAC cancelled the original certificate on technical grounds but does not allow a new certificate to be issued where SIAC disagreed with the Home Secretary's conclusion that reasonable grounds for the relevant belief or suspicion existed. New paragraph (b) covers the case of new evidence or some other change of circumstances.
We want to hear what the Government have to say on these issues. These are obviously issues which would have been better brought up at an earlier stage in the passage of the Bill through the House. However, owing to the extremely tight schedule that has been imposed on your Lordships' House, that has not been possible. I hope that, even at this late stage, the Government will be prepared to accept these uncontroversial amendments. If they need drafting improvements those can be provided in the other place. I beg to move.
3.15 p.m.
Lord Lester of Herne Hill: My Lords, I am sure that the Joint Committee, of which I am a member, will be grateful to my noble friend Lord Goodhart for drafting the amendments in accordance with the recommendations of its report. My noble friend has put the matter so clearly that I wish to add only a couple of additional points.
First, given that this is a derogation from the fundamental right to liberty and that the European convention requires the Government to demonstrate that the derogation is strictly necessary to meet the exigencies of the situation, the Joint Committee in both its reports attached particular importance to there being adequate safeguards against abuse of these wide powers. One of the ways in which it sought to do that is by narrowing the otherwise broad words in the way that these three amendments seek to do.
At the back of the Second Report of the Joint Committee on Human Rights there is the evidence given by the Home Secretary, David Blunkett. If Members of the House are interested and look at col. 5, question 34 onwards, that is where the matter of Clause 27(9) is dealt with. Vera Baird, a Labour MP, who is a member of the committee, asked the Home
Secretary questions about the vagueness and unsatisfactory nature of Clause 27(9). The Home Secretary said:
- XI am, unusually for me, pausing because the intention is that there would have to have been a change in circumstances or material evidence that has not previously been available, in circumstances where I would take the case back to SIAC having failed".
- XWe did consider the question of whether a certificate could be issued by any Home Secretary in circumstances where it was necessary to override such a judgement. I adduced that that would be a breach of human rights and would not be an acceptable process, nor did I think that it would accord with the terms of the derogation which were envisaged by those who drafted the Convention".
- XSo I am prepared to look at the term 'otherwise'".
- XOne of the reasons for the words 'or otherwise' is to deal with the case where SIAC cancels a certificate on appeal, but the Secretary of State appeals that cancellation in a court of law and wins that appeal in a court of appeal. In that type of case he might wish to issue a fresh certificate".
- XWe need to make sure that we make that absolutely clear then, because we are otherwise asking for the appeal to go back to SIAC".
- XThank you very much",
We took that to be very encouraging. It shows, in the words that the noble Lord, Lord Rooker, has used several times, that this is a listening government; that they are open-minded; and that, on the crucial question of safeguards against abuse, they are willing to write them into the Bill. Therefore, we very much hope that that can now be done, even at this late stage, in order to produce a wide consensus and make it less likely that lawyers will successfully challenge the compatibility of the measure as applied before British courts or before the European Court of Human Rights.
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