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Lord Rooker: My Lords, for the avoidance of doubt, I have absolutely no intention of addressing that question.
Lord Pearson of Rannoch: My Lords, that must cast some doubt on the words of the noble and learned Lord, Lord Donaldson, but it must come out in the wash as we move towards the intergovernmental conference in 2004. It is unhelpful of the Minister to say that. We had from the noble Lord, Lord Stoddart—who follows these matters closely—a clear indication of how this particular arrest warrant fits with the whole European judicial ambition of corpus juris. We already have the European police force, which has immunity collectively and individually against all its actions.
We are clearly moving down that road. We look to the intergovernmental conference to set the debate in a wider context. We have the charter of fundamental
rights, which will clearly give the European Union a constitution. We have the army on the way, common foreign and security policies and all the rest of it. For the Minister to say that he is not going to answer as to whether the Government will reveal their views on legal personality is unhelpful. Given the Government's slavish obedience to the wishes of the people in Brussels, I am not surprised.9.25 p.m.
Lord Goodhart: My Lords, I should start by declaring my interests. I am vice-chairman of the Council of Justice and a trustee of Fair Trials Abroad, both of which organisations have, among other things, submitted evidence to the committee of the noble and learned Lord. I thank the noble and learned Lord and his committee for the report, which is valuable and important. This evening it has led to an interesting, although I have to say somewhat one-sided, debate.
I have few problems with the European arrest warrant as an ideal at which to aim. As crime becomes increasingly international and criminals find it easier to move both themselves and their assets across national borders, so it is increasingly important to make extradition procedures simple, swift and effective. Frankly, the ideal is to make it as simple to enforce in the United Kingdom an arrest warrant issued in another member state as it is to enforce in Scotland a warrant issued in England. Most of the safeguards built into existing procedures are due to lack of trust in the judicial process of other countries. They would be unnecessary if mutual confidence did in fact exist.
In looking at the European arrest warrant, therefore, I think that there are two tests. The first is whether there is anything inherently wrong with the actual framework decision, if one assumes that it is entered into by states which have full confidence in each other's judicial processes. The second is whether that confidence is justified in respect of the member states of the European Union, including the candidate states.
Where trust exists, I see no need for the required country to investigate whether a prima facie case exists. After all, that is immensely expensive and time-wasting because it involves two separate trials—or at least one-and-a-half trials. Where trust exists, I see no need for a speciality rule. Such a rule stipulates that the requiring country cannot try the defendant for any offences other than those for which the defendant has been extradited. That is necessary to protect defendants from any abuse of the extradition procedure by a country getting the defendant back and then charging him with offences for which extradition would have been refused. If we are confident that abuse would not take place, I see no need for the rule.
Where trust exists, I believe that the dual criminality rule can be greatly restricted. People have a duty to observe the laws of the place where they are for the time being, provided that those laws are properly democratic and fair. If people commit breaches of those laws, I do not see why they should be entitled to
escape the penalty for those breaches through the refusal of extradition, even if what they have done is not criminal in the required country. If the law they have contravened is oppressive or unjust, or contrary to human rights, then of course dual criminality must be applied and it must be retained for that purpose.However, to cite a case which has been in the news over the past two days, for myself I would not find it offensive if the law required us to extradite to the USA someone accused in that country of serious breaches of its anti-trust laws, even if a breach of anti-trust law is not a criminal offence in the United Kingdom.
On the first question of the two that I have posited, my criticisms are limited. Of course the inclusion of "racism and xenophobia" in Article 2(2) of the list has attracted a great deal of controversy. I have my doubts whether it would be appropriate to include it. But they are doubts and certainly not convictions. People who go abroad to stir up racial hatred should know what penalties they face and should not use extradition as a shield behind which to hide.
There is, of course, an English crime of incitement to racial hatred, and I believe that what we would see under the general heading of racism and xenophobia in the Article 2(2) list would be broadly the foreign equivalence of that crime. Frankly, I believe that this issue has been exaggerated and I do not entirely agree on that with the noble and learned Lord. Nor is his highly critical view fully reflected in either the first or second reports of the committee. The second report appears to ignore it and the first takes a less controversial view. It is also true that under the present law of the United Kingdom the distribution of racist literature is an offence.
But there is a very important safeguard here. Law which criminalises racist literature or speech is a restriction on freedom of speech and therefore must satisfy the criteria in Article 10 of the European convention. That means, for example, that it must be a restriction which is necessary in a democratic society. Given the form in which the restrictions in Article 10 are expressed in the convention, I do not believe that Mr David Yelland has anything very serious to fear.
However, there are a number of other serious problems with the framework decision and they have been expressed by a number of speakers, particularly by the noble Lord, Lord Hunt of Wirral, with whose comments I am in very close agreement. First, I believe that there should be express provision in the body of the framework decision that extradition can be refused on European convention grounds. The nearest we get to that is Recitals 12 and 12A, which I believe are inadequate.
Secondly, Article 5(1) does not guarantee retrial for a person convicted in absentia but merely gives a right of appeal. That is a very serious defect in the framework decision. Apparently it was the Government's intention that there should be a right of retrial but for some mysterious reason it disappeared. Thirdly, the time limit for the execution of the warrant under Article 17 is 90 days, which is inadequate to allow the appeal process which would be necessary in
the requested country in order to provide what I agree is necessary. That is an appeal process in the requested country and not just an appeal to Strasbourg.Fourthly, the framework decision does not provide for all states to be bound by the jurisdiction of the European Court of Justice, which is desirable in cases where I believe there is a great risk of conflicting interpretations of the framework decision by national courts.
Fifthly, it should be made clear that the European arrest warrant cannot be used to detain suspects for investigation purposes. I recognise that there are a number of very serious defects in the framework decision as it now stands.
I now turn to the second and even more difficult question. Even if one accepts, as I do, that we ought to aim at the objective of the European arrest warrant, can we have sufficient confidence in the judicial process in other member states to justify giving up the traditional safeguards in the extradition process to the extent which the framework decision requires of us? In the case of some member states the answer is yes. It would be wrong to claim that our own procedures are the best in the world. Others may be our equals and in some cases perhaps better than ours, but not all. Italy is notorious for its delays. The system of criminal administration in Belgium is so bad that it has caused a national scandal. Several countries continue to have standards for legal aid which we would regard as significantly too low.
It would have been desirable, as Justice has suggested, to have had an EU framework decision on minimum standards of criminal procedure to go along with the European arrest warrant. Minimum standards of criminal procedure should contain a right to legal representation of the defendant's choice and legal advice at all stages of the proceedings where it is needed, including, of course, the extradition proceedings.
The minimum standard should include a right to legal aid to pay for the necessary representation and advice. There should be a right to an interpreter if the defendant is not fluent in the language in which the proceedings are being conducted. Article 12(2) of the framework decision provides to some extent these rights but not necessarily adequately and it does not guarantee an adequate standard of legal aid.
We need something similar to habeas corpus to ensure that detention has legal justification and that defendants are released from custody where there has been excessive delay in bringing them to trial. An agreement on minimum standards should contain a presumption of the right to bail, an issue for which Fair Trials Abroad has been pressing for a long time. That presumption should extend to people who live outside the country where the proceedings are conducted and should be backed by a system of Euro bail providing for an automatic return of bail absconders. This would remove one of the main problems faced today, which is the tendency of national courts to refuse bail to non-residents because of the difficulty of ensuring their return to face trial.
If such a framework decision was adopted and observed, I would feel far less concerned about the European arrest warrant. As it stands, it is essential that courts in the United Kingdom which are asked to give effect to the European arrest warrant should be satisfied that standards of fair trial under Articles 5 and 6 of the European convention will be applied in the requiring state. I would not object to a presumption to that effect, but it must at least be a rebuttable presumption.
I accept that allowing courts in the required country to consider standards of procedure in the requiring country could involve significant delay and expense in enforcing the European arrest warrant, but that is a price which has to be paid for ensuring that defendants are not returned automatically to states whose standards do not match those of the European convention. It would also act as a lever in raising standards in states where standards are not yet acceptable.
The adoption of the European arrest warrant has been an example of the flaws in the legislative process of the Council of Ministers. The framework decision has gone through many variations and even now it is not clear that it is in its final version—or, indeed, that the latest version in the Library dated 10th December 2001 is the current version. This is because the process is secret and we do not know the arguments behind the changes or who pressed for them.
Paragraphs 21 to 32 of the report of the House of Commons European Select Committee on the arrest warrant show an extraordinary situation. In this country, and, indeed, almost certainly in any other member state, there would have been far more transparency if the legislation was being passed through our Parliaments. Again because this is a third pillar issue rather than a first pillar issue, the European Parliament has a relatively minor role.
When we get the new extradition Bill in the next Session, we will be faced with either adopting a European arrest warrant without the additional safeguards we believe are needed or reneging on commitments entered into by our Government. Both alternatives are deeply unsatisfactory.
9.40 p.m.
Lord Kingsland: My Lords, first, I should like to congratulate the noble and learned Lord, Lord Scott of Foscote, on a speech which was as perspicacious as it was comprehensive. Having heard the debate, I can say that it would have served equally well in winding it up.
Unlike the noble and learned Lord, I shall not make a speech which covers all the issues. Indeed, I shall address myself to only one of them—the issue which involves the Opposition's central criticism of the Government's conduct of the negotiations with regard to the framework directive. Our central criticism is that the Government failed to achieve incorporation of Articles 5 and 6 of the European Convention on Human Rights into the directive itself.
I wonder how seriously the Government tried to do that. I have been looking at a letter printed in the 16th Report from the Select Committee on the European Union, Session 2001-02, dated 26th February 2002. The report contains a letter from Mr Bob Ainsworth MP to my noble friend Lord Brabazon of Tara, in which Mr Ainsworth says the following:
- "The Government does not see the need to include in the Framework Decision explicit grounds for refusal on ECHR grounds. A Framework Decision provides a broad commitment which is to be implemented in detail in national law. It will be for the Government to consider whether UK legislation should contain an express reference to refusal on ECHR grounds. It is significant that we believe that the Framework Decision would not prohibit such a reference".
If that is so, is the Minister prepared to give a commitment to your Lordships' House tonight that the Government will include in the forthcoming Bill an explicit guarantee that our courts can apply Article 5 and Article 6 to these proceedings at Bow Street? The Minister has not responded to my question now. He may well respond affirmatively later when he replies to the debate.
- "However, it should be stated that it is not the intention that, as a matter of routine, the Bow Street District Judge should look at the motivation behind the request or the nature of the trial on return. These are extradition proceedings to a fellow EU Member State. Protection for the individual is contained in the domestic incorporation of the ECHR into the requesting state's criminal justice system, not before the District Judge at Bow Street".
But supposing that I am wrong about this, and that when the Bill comes along the Government do everything in their power to ensure that these protections are provided—will that work? Probably not, because somebody is bound to make a complaint to the European Court of Justice about the United Kingdom providing such additional protection to those who come before its courts. Although the framework directive has no direct effect in our legal system, it would be perfectly possible for a complainant to go to the European Commission, which could then bring infraction proceedings against the United Kingdom Government.
As a consequence of those proceedings, the European Court of Justice might well say that the practice reflected in the extradition Act, as it would then be, was illegal, because it was not provided for in the framework directive. The current wording of the framework directive makes no express reference to these ECHR protections. It refers to the EU provisions on fundamental rights, but not expressly to the ECHR protections. The noble and learned Lord, Lord Scott of Foscote, made that point very clearly.
What conclusions can we reach about this sad affair? The first is that your Lordships' House must take early steps to ensure that, in future, draft legislation at European level negotiated exclusively between governments does not get far before your Lordships' House is involved. This legislation was
passed in three stages: first by groups of national civil servants meeting in secret; then by the permanent representatives of the European Community meeting in secret; and then by the Council of Ministers meeting in secret. It was only by accident that your Lordships discovered the true content and import of the framework directive in time to debate it.There is perhaps an even wider issue here. I do not think that my learned friends behind me would ever accuse me of being a Euro-sceptic; but I believe that the European Union is making a serious mistake in extending the terms of the arrest warrant beyond the issue of terrorism. A nation state's criminal law goes deep into its history and traditions, reflecting individual moral values, which often differ widely between nations because the history of the member states of the European Community differ widely. To try to harmonise those matters is deeply dangerous and could provoke a strong adverse reaction from the citizens of this country and from others. I hope that I am wrong about that, but I fear that I shall be proved right.
9.48 p.m.
Lord Rooker: My Lords, I shall do my best to answer some of the questions that have been raised, but I fear that I shall disappoint many noble Lords for reasons that will become obvious. In some ways, the noble Lord, Lord Kingsland, has just given the game away. He asks me to say whether something will be in the Bill, but says that if I say yes it will not work anyway. I cannot satisfy him however I answer. He will have to wait for the Bill to find the answer.
I am very grateful to the noble and learned Lord, Lord Scott of Foscote, for the way in which he introduced the debate. It might be useful to put on the record that we are not inventing extradition. Anyone would think that it did not currently take place. I asked the other day for the figures to update your Lordships' House since we last debated the subject in November last year. Since then there have been 26 surrenders of fugitives from the United Kingdom to other countries, of which 15 have been to our European partners. Twenty fugitives have been returned to the United Kingdom, of whom 14 were returned by our European partners.
Among those surrendered by the United Kingdom in the intervening period was a case which took almost three years from provisional arrest to the conclusion of surrender. The person in that case was not being surrendered to a third world country with a questionable human rights record but to another EU member state. Nevertheless, I accept that it is being said explicity in the debate that some EU member states probably have third world legal systems. That was clearly the import of some noble Lords' comments.
One point not made by noble Lords—although it was raised in a question from the noble and learned Lord, Lord Donaldson—is the requirement for prima facie evidence. As I understand it, no EU state is currently required to provide prima facie evidence
when seeking extradition from the UK, and it is not being proposed that that should be changed. In fact, no party to the European Convention on Extradition—which includes EU applicant states as well as some others—has to provide prima facie evidence. That is the current EU position.The noble Lord, Lord Lamont, asked a question to which I think he probably knew the answer. Sometimes it is wise to ask only questions to which one knows the answer; otherwise one might be surprised. I assure him that no one will be extradited because of conduct occurring in the United Kingdom that is not contrary to UK law. I am happy to place that on the record and I hope that it reassures him.
In answering a question from the noble and learned Lord, Lord Scott, I rest on the wording of the framework document. For the avoidance of any doubt, I should add that my copy of the document is dated 10th December. In relation to people giving evidence, we rely on Article 1 of the framework decision—which, in my non-legal way, I do not believe could be clearer. In no way could anyone read Article 1 and infer that someone could be extradited for the purpose of giving evidence as part of an investigation. I do not think that anyone could interpret the article in that way. As there is no ambiguity, we see no need to make the type of statement that has been made in Ireland.
I come to the implementation date, although I shall return in a moment to future events. On 14th February my right honourable friend the Home Secretary joined Ministers from Spain, France, Belgium, Luxembourg and Portugal in announcing their wish, if possible, to operate the European arrest warrant between participating member states within the first three months of 2003. However, I can assure noble Lords that no declaration to that effect has been signed. The United Kingdom's ability to meet that objective will also be entirely dependent on agreement of the framework decision and passage of the extradition Bill by Parliament.
The noble Lord, Lord Lamont, asked which other member states still have parliamentary scrutiny reserves in place. I can confirm that he is correct in stating that, in addition to the United Kingdom, Ireland, Sweden and Denmark still have such reserves. He is also correct in noting that Austria will not be required to surrender its own nationals until at least 1st January 2009 at the latest.
I am extremely grateful for noble Lords' comments. I believe that back in November I responded to two debates on the same day. One concerned the European arrest warrant and the other concerned a matter the nature of which escapes me. In preparing for the two debates I believed that the European arrest warrant debate would be the easier debate. However, I reported back to the Home Office the next day that I had been knocked all around the Chamber. Things have changed, of course, since then, I am pleased to say. I believe that at that time we had just published the emergency anti-terrorism legislation and we intended
to legislate on this matter in a certain way. However, we did not do so at the end of the day. That matter greatly annoyed noble Lords.I address the issue of parliamentary scrutiny, which has been the subject of voluminous correspondence between my ministerial colleagues and the committee and, indeed, myself on occasion although in much less detail. The European arrest warrant is now inextricably tied up with the issue of the review of extradition. I hope that noble Lords will take that on board. We are not dealing with the narrow single issue here. As noble Lords know, the Government set out their thinking on a streamlined extradition system in March 2001. That review was widely circulated and consulted on. The majority who responded supported the review's proposals.
One of the main purposes of the review was a fast-track extradition system between England and the United States. That in the event was overtaken by progress on the framework decision on the European arrest warrant. So far, the Government have deposited three texts and three explanatory memorandums on the draft framework decision. Ministers have appeared before Sub-Committee E of the European Union Select Committee on two occasions and written to the Select Committee five times. We are now engaged, of course, in a second debate on the European arrest warrant. In the other place Ministers have appeared once before the European Scrutiny Committee, have written to the committee five times and have participated in a debate in Standing Committee B. However, that is not the end of the opportunities that are available. That is central to the debate today and one of the reasons I cannot answer all of the detailed questions.
We announced in February that the Government would publish a draft extradition Bill. We shall do so before the Summer Recess. It was pulled out of the programme for this year. I am not announcing anything new. The Government intended to proceed with an extradition Bill in this parliamentary Session. However, the Home Office has three Bills this Session that were not announced in the gracious Speech last year and had to drop at least one criminal justice Bill. It was thought that once the decision was taken to introduce the European arrest warrant in primary legislation, the obvious vehicle for that was the extradition Bill.
As I say, we shall publish a draft extradition Bill, complete with notes on clauses, before the Summer Recess. That in itself will involve a detailed consultation process by which Members of both Houses and those outside who watch our proceedings closely, and are affected by them, will be able to see the Government's full decisions. There are still policy decisions to be taken on these matters. I am not in a position to comment on those policy decisions. That is why I did not respond to the noble Lord, Lord Kingsland. However, all will be revealed in the draft Bill. I asked the other day whether that would be a full draft Bill, not simply a "50 per cent" draft Bill, of which the rest would be filled in later on. I was assured
that it would be a full draft Bill, with Notes on Clauses, so that people can see exactly what is proposed. I hope that that makes for a mature debate in this country and an extremely well-informed debate in both Houses of Parliament.
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