---

Lord Mayhew of Twysden: My Lords, does the Minister accept that the terms of the extradition Bill will have to be governed by the terms of the framework decision when they are finalised? That is the immediacy of the issue that the committee and noble Lords this evening are pressing. Do the Government accept the necessity of ensuring that the framework decision makes it explicit that the required state shall have the right to question whether ECHR provisions will or will not be met by the requiring state? It is no good saying, "We should wait and see. All will be revealed when the Bill is published, when we can look at the Explanatory Notes". There will have to be consistency with the framework decision; otherwise our own courts, due to the Human Rights Act, will have a duty to strike them down.

Lord Rooker: My Lords, our courts have a duty to operate the Human Rights Act on behalf of our citizens as well. We should not beat about the bush. That is the primacy in this matter. The Human Rights Act is there to defend individual citizens. The courts also have that duty to consider.

I stick to the line that there are still policy decisions to be taken; I am not in a position to announce a series of policy decisions tonight. I am not in any way opposed to any debate in Parliament on any subject; far from it. However, sometimes the timing of debates can be a bit of a problem in the sense that one cannot make all of the announcements that one would wish.

Lord Lamont of Lerwick: My Lords, since it did not involve a policy matter, I wonder whether the Minister might answer the question that I raised.

Lord Rooker: My Lords, I can answer that, in the sense that I shall write to the noble Lord. I have been advised on this. I would not be able to answer his question from the Dispatch Box. I shall put the answer in black and white on paper. I apologise that I cannot answer his question now. The question is too difficult and complicated to answer from the Dispatch Box.

I understand why the noble and learned Lord, Lord Mayhew, pressed me on this matter. I am not in a position to go further than I already have, save in one area. In our first debate, in November, the question that the noble Lord, Lord Goodhart, asked about abortion and related issues gave me the greatest concern because I did not fully understand it. The issue was not clear.

The issue of dual criminality is set out in Article 2(2), but Article 2(4) of the framework decision allows the existing member state to decide whether to apply the dual criminality test. I said in our earlier debate, and we have said since—in correspondence and in the evidence that we have given before committees—that the Government have reflected on whether they should

23 Apr 2002 : Column 233

retain the dual criminality test in respect of certain moral issues, such as abortion or homosexuality. While the Government remain committed to the abolition of dual criminality within the European Union, we have come to the view that it would be right to make use of the safeguard that is provided for in Article 2(4) of the framework decision in respect of such conduct. Accordingly, we intend to apply the dual criminality test for non-list offences. I make it absolutely clear that we anticipate that the overwhelming majority of requests will relate to the list in Article 2(2).

However, where we receive a request relating to an offence falling under Article 2(4), the district judge will be required to impose a dual-criminality requirement; in other words, he will need to establish whether the UK Parliament has taken a view as to whether the conduct in question should be considered illegal. If the test is satisfied, the warrant can be executed. If those requests do not pass the test, the district judge must refuse to execute the warrant. All that will be contained in the legislation which will give effect to the European arrest warrant. As I said, the extradition issues go beyond that.

With regard to the issue of racism and xenophobia, I want to help noble Lords as much as I can because it is a thorny subject and one which is often raised. The tabloids love it. That is not a criticism of noble Lords who may raise it, but the way in which the tabloids play it knocks it on the head.

I shall place this on the record for the avoidance of doubt later. A proposal for a Council framework decision on combating racism and xenophobia was published on 28th November and deposited for scrutiny on 17th December last year. The purpose of the framework decision will be to combat racism and xenophobia in the European Union by approximating the laws and regulations of the member states regarding racist and xenophobic offences and facilitating and stimulating co-operation among member states to combat those offences. It will, of course, be subject to the usual parliamentary scrutiny procedures. The types of offence listed in the framework decision go somewhat further than those found in UK statute. The deadline for full implementation of the framework decision is 30th June 2004.

The annex to COPEN 79—that is, the framework decision on the European arrest warrant—states that in order to make the European arrest warrant operational throughout the Union for racism and xenophobia offences, member states should be guided in their definition of such offences by reference to the joint action of 15th July 1996. Once the framework decision on racism and xenophobia has been adopted, this will supersede the joint action of 1996.

I shall put one more question and answer on the record concerning how the Government define the crime of xenophobia as listed in Article 2(2) of the framework decision. If the UK were making an extradition request for offences under the heading of "racism and xenophobia", we would do so in terms

23 Apr 2002 : Column 234

of our law on incitement to racial hatred, racially aggravated offences, and racial discrimination under the Race Relations Act. Execution of the warrant would, of course, be subject to the threshold that a sentence of at least 12 months should apply to the offence in the issuing state.

I realise that there will be a good deal of debate about this issue, and rightly so. But it will have to rest on our proposals—that is, the proposals that the Government bring to Parliament. We are not in a position to do so now, towards the end of April, but we shall do so before the Summer Recess. I regret that I cannot be more specific than that in respect of the date, not least because I do not know the date of the Summer Recess. We shall produce the draft Bill which, of course, can, and I have no doubt will, be subject to debate in the country as well as in Parliament, perhaps before we even reach the point of publishing the formal legislation to bring before Parliament.

That said, I am extremely grateful for the work that the committee has done and for the way in which the noble and learned Lord, Lord Scott, introduced the debate.

Lord Pearson of Rannoch: My Lords—

Lord Rooker: My Lords, I shall never be able to answer the noble Lord's question but I shall give him a chance.

Lord Pearson of Rannoch: My Lords, the Minister has been very kind in telling us how the United Kingdom would regard an extradition request for racism and xenophobia. However, he has, I believe, given me no fewer than two Written Answers to the effect that, when a foreign country issues the arrest warrant, the crime of racism and xenophobia, and indeed all the others in the list, will be defined purely by the issuing country.

That leads me to a final question to the noble Lord, both as regards the directive which attempts to define the crime of xenophobia and racism and, more importantly, as regards the framework decision itself. How deeply enmeshed are we in this particular Eurobog in Brussels? When the noble Lord is good enough to publish his draft Bill, what powers will this House and the other place have to change that? Can we change it or are we already committed, and if so to what extent, particularly on the framework decision?

Lord Rooker: My Lords, I am unable to answer the question in a way which would satisfy the noble Lord. The powers of Parliament are to pass or reject the proposals put to it by the Government. In saying that I do not make a point either way. However, that is the only answer I can give. The Government will present a Bill to both Houses. We cannot get Royal Assent to the Bill and operate what would then be an Act unless both Houses agree to the final terms of the legislation, as in the normal parliamentary process.

I realise that to those who take a principled position on anything which contains the word "Europe", that is not a satisfactory answer because they will list, chapter

23 Apr 2002 : Column 235

and verse, the things about which they are not happy which Parliament has approved. However, that is where I rest my case. Parliament will have approved it.

Lord Pearson of Rannoch: My Lords, the Minister has not quite answered the question, which was: to what extent are we inevitably committed to this legislation in Brussels and to what extent have the Government already sold the pass? How relevant is what we agree here and send to Her Majesty for signature and so forth? How deeply enmeshed are we in this? Can we change it? Is what we decide in Parliament the end of the matter or are the Government already compromised by decisions taken in Brussels?

Lord Rooker: My Lords, I had sat down. I do not accept the pejorative terms in which the question was asked as regards selling the pass and the Government being compromised. I rest the case on the answer I gave originally. I have now concluded.

---