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Baroness Anelay of St Johns: My Lords, I am grateful to the noble Lord for giving way. He is leading me to develop the bad habit today of intervening during Second Reading speeches. I was very careful not to draw conclusions from the fact that only 25 per cent of the Bill was debated in another place. I am grateful to him for drawing to the House's attention the Written Answer in response to a Question on that very matter. I think it was planted by the Government. There are many reasons why only 25 per cent of the Bill was scrutinised in another place. One reason why more of it will be scrutinised here is that the House of Lords does a better job anyway.
Lord Corbett of Castle Vale: My Lords, I am grateful to the noble Baroness; I am not arguing about that. I clearly misunderstood her. Now that she has explained her comment, I think that she meant it as a compliment.
It is understandable that, when this House considers criminal justice matters, it should, quite properly, be cautious, sensible and sensitive about the rights of defendants. The most basic human right of citizens of EU member states and elsewhere is the right to live in peace and security in and around their own homes and communities. Our justice system rests upon the critical importance of that. It is for juries to decide guilt beyond reasonable doubt.
It is too often forgotten that the criminal justice system is not onlyor, dare I say, mainlyabout the defendant; it is about the victim. Over the years, the victim has tended to be sidelined in the judicial process.
Present extradition arrangements across the EU are unfair to victims who are citizens of the countries making up the European Union. I do not think that any noble Lord has gainsaid that extradition procedures in Britain are notoriously slow. I was an unwitting party to the outcome of one casealthough it was not my intention at the startwhere someone sat in gaol on remand for, I think, eight years, resisting attempts to have him extradited to Hong Kong to answer serious criminal charges there.
As the Minister said, some EU countries now simply refuse to extradite their own nationals, even if suspected of committing the most serious crime in Britain. That is absolutely astonishing. Other EU states refuse to extradite for fiscal offences. That means that UK criminals who have stolen public moneythat is what fiscal crime is often aboutthrough VAT fraud or major tax evasion can sit in the sunshine while the rest of us foot the bill for what they have stolen. I cannot believe that anyone will defend that.
Much was made in another place of not allowing extradition for UK nationals to another EU state for an alleged offence that is not an offence here. How on earth is that expected to meet the right of all citizens of all EU states for justice? I do not understand it. Is it really argued that a victim's access to justice will be determined by differing national views on what constitutes a criminal offence? Are we really offering to play host to suspected criminals from other EU states merely because their criminal justice system is different from that of their home country? It is not so much a victim's charter as an offender's charter. Never mind all the paraphernalia of the law. If one goes along with this argument, seemingly all a suspect must do is cross a frontier to avoid justice. Where is the justice in that for a victim?
It is argued that our district judges should not sanction a European arrest warrant unless there is prima facie evidence to support the extradition request. Why? The Minister reminded the House of that. It has been more than 10 years since we thought it necessary to make that judgment. Surely, from the victim's point of view, the issue of a suspect's guilt or innocence is a matter for the courts of the requesting country. What is the relevance of our views on their criminal justice system?
The European arrest warrant does something else that victims should welcome. It will provide that extradition in response to a request from one of our EU partners is for decision by the courts and not by politicians. I was amazed to hear from the Opposition Front Bench the argument that the decision was far better left to politicians, who can make all sorts of judgments for all sorts of reasons, than to an independent judiciary. I find that remarkable. No doubt we will have some very interesting debates on the matter in Committee.
Given that all EU member and candidate states are signed up to the European Convention on Human Rights, it is reasonable to assume that their justice systems operate fairly. I shall come to a qualification on that in a moment. If that is not generally the case, what on earth are they doing as members of the European Union? There are various chapters that must be negotiated, ratified and put in place before countries can join. One of the requirements is that they satisfy the European Commission and those doing the negotiation that their criminal justice system qualifies them to sign the European Convention on Human Rights.
Lord Corbett of Castle Vale: My Lords, the noble Lord anticipates exactly what I was going to say. I wanted to refer to the points made by the noble Lord, Lord Lamont of Lerwick, about the availability of bail, the availability of legal aid, the problems with interpreting services and the problems with affordable access to properly qualified and trained lawyers. Given all those things and the practices and procedures of some courts, it is right that your Lordships should look for better assurances from the Government than we have had. I take that point absolutely.
The plane-spotters' case is not the only one. If I may delay your Lordships for a moment, I can tell the House of an acquaintance of minean international lorry driverof some years' standing. He dropped off a load in Spain, and the lorry was re-loaded to go elsewhere in Spain. Normally, he would oversee the loading of the lorry. But, at the depot in Spain where it was being re-loaded, when he said that he would stay around and see that everything was OK, they said, "No, no. It's quite all right. We shall be an hour and a half at least. Go down the roadthere is a lovely little café thereand have a meal. We'll see you at four o'clock". Back he comes, and, quite coincidentallyI assumeabout 10 kilometres into the journey to the new drop-off point, he is stopped by the Guardia Civil. The lorry is impounded. It is broken down, and there, right in the middle of the lorrynoble Lords are ahead of meis a substantial quantity of drugs.
It was the driver's case that he knew nothing about it. I believe that. Perhaps, it is by the by, but, given my personal knowledge of the driver, I believe the man. After a long delaymore than two yearshe was brought before the courts and found guilty. At times, he behaved in a robust manner, and he constantly bombarded a series of incompetent lawyers and people
We have a duty to victimslet alone defendantsto speed up, simplify and make more effective the extradition arrangements throughout the EU and with other mature criminal justice systems, such as those of some Commonwealth countries. If it is not thought right that we should do that by respecting criminal justice systems throughout the European Union, the only other route to achieving it would be to have a single judicial system throughout the European Union. My hand would not go in the air for that, and I am not sure that any other hand in your Lordships' House would either.
Lord Kingsland: My Lords, first of all, I thank the noble Lords, Lord Goodhart and Lord Clinton-Davis, very much for their extremely kind remarks. In turn, I express my admiration for the clearly and incisively expressed speeches that they delivered today.
Unfortunately, I shall not be able to be with your Lordships during the Committee and Report stages of the Bill, so, rather than dwell on some of the particular issues to which the Bill gives rise, I shall reflect on two more general issues that lurk behind the Government's approach to the framework decision and the Bill itself.
The first question is whether the Bill is really a piece of primary legislation or whether it is delegated legislation disguised as primary legislation. The second question is whether the Government have understood the doctrine of mutual recognition that they claim to have applied in their approach to the Bill.
Your Lordships' House is about to embark on detailed scrutiny of the Government's proposalsrightly so. The trouble is that your Lordships are undertaking the task at the wrong time: it should have been undertaken before the framework decision was made. There is no reason why that should not have been so. Unlike so many decisions in the European Community, those taken by the Council of Ministers, under the third pillar, are taken not by majority vote but by unanimity. In other words, the Government had the power of veto throughout the framework decision procedure. The Government could have used that power to include some of the welcome elements in the Bill itself that were not included in the framework decision; but they failed to do so.
I ask myself, "Why was that so?". I suppose that an uncharitable response would be to say that the whole process under the third pillar takes place in secret. The initial draft is considered first by civil servants behind closed doors. It then goes to the ambassadors, also meeting behind closed doors. Finally, it goes to the Council of Ministers, also seated behind closed doors. At no stage is there any parliamentary participation, either by the European Parliament or by any domestic legislature.
However, I want to be charitable to the Government, so I will say rather that the Government did not, for example, seek to include in the framework decision a clause like Clause 21 of the Bill and did not fight for the doctrine of speciality before the framework decision was taken because they believed that, under pillar three, they had a bigger margin of manoeuvre in crafting domestic legislation than they had under pillar one.
Is that really so? It is true, under pillar three, that the framework decision has no direct effect. It is also true under pillar three that, unless the Government make a declaration, they are not obliged to accord to a domestic court the right to refer to the European Court of Justice, for a preliminary interpretation, a matter concerning either the construction of the framework directive itself or any conflict between the framework directive and the domestic Act.
However, several other member states have made such a declaration. Sooner or later, issues such as the relationship between domestic legislation implementing the framework directive or the interpretation of the framework directive itself will come before the European Court of Justice. The court will express a view, and, once it has done so, it will be hard for judges in the United Kingdom to act in a way that contravenes it, even though that view was not a consequence of a case heard in the United Kingdom.
So, in the end, the Government cannot escape the fact that the final decision on what is in the Bill, and subsequently in the Act, is really going to be a matter for the European Court of Justice. As the noble Lord, Lord Lester, has constantly reminded your Lordships' House over the years, the European Community has still failed to adhere to the European Convention on Human Rights. There is no mention of the European Convention on Human Rights in the framework
This is a rather dusty submission, and many of your Lordships who are also lawyers may disagree with it; but, in my view, although we are acting in the guise of primary legislators, we are really implementing a Community decision that has been made wholly behind closed doors without any participation of any democratic legislature whatever.
I hope that your Lordships will be sufficiently incensed to attend the debate that your Lordships' House will have next Friday, 9th May, on how your Lordships' House deals in future with European Community legislation. Although only a very small percentage of the time of your Lordships' House is devoted to these matters, about 50 per cent of the law that appears on the statute book each year originates in the European Union. Your Lordships spend nothing like 50 per cent of your time dealing with these matters which are just as important in terms of the obligations imposed on citizens as primary legislation.
So I should like to hopeperhaps rather boldlythat, next Friday, your Lordships will agree to a radically changed way in which your Lordships deal with third pillar legislation. There are, as I said, three stages to the legislative processif you can grace it with that expressionfor third pillar matters: the first is the civil servants; the second, the ambassadors; and the third, the Ministers. I should like to hope that your Lordships will decide to have a debate at each stage, on the Floor of the House, perhaps under the canopy of the European Union Scrutiny Committee, where Ministers report to your Lordships about the progress made at each stage of the third pillar process; and, at the end of that process, before there is a final vote in the Council of Ministers, initiate a vote in your Lordships' House about the measure under review. Otherwise there will, indeed, be a democratic deficit between the way in which domestic legislation is made and the way in which legislation emanating from the European Community is made.
I must confess that the third pillar was an invention of the Conservative government. It was intended to get round what was seen as the increasing encroachment of the European institutionsthe European Parliament, the European Commission and so forth. In fact, under the third pillar, we have the worst of both worlds. We have neither the participation of the European Parliament and the conciliation process, on the one hand, nor the participation of national parliaments on the other.
The second observation I should like to makeand I shall be a good deal briefer in making it than I was on the firstis on the issue of mutual recognition. I was particularly struck by a response made by Mr John Denham, who answered a question posed by Mr Douglas Hogg in another place. My right honourable friend wanted clarification on whether a
The doctrine of mutual recognition was developed as part of, and indeed ultimately underpinned, the rules that led to the single market. It is perfectly true that one component of mutual recognition involved the recognition of the validity of other states' laws about the production, marketing and exporting of particular products. However, as the noble Lord, Lord Clinton-Davis, will well recall, it also involved, before that recognition took place, the harmonisation at Community level of certain fundamental minimum standards. In the case of the single market, those usually involved the safety of products, the environmental standards applied to those products, and other matters connected with financial and commercial probity.
In the case of the framework directive here, the doctrine of mutual recognition may well have been applied by the Government; but in my submission that has been done wholly improperly. It was not preceded by any process of minimum harmonisation of standards to protect individuals in the judicial process.
If the Government get their way on the Criminal Justice Bill, that point may, of course, be made against us by other countries. We must wait and see what the outcome of that process is in your Lordships' House.
Nevertheless, to the extent that the Government were influenced by the doctrine of mutual recognition as a way of opposing the encroachment of the threat of corpus juris, they have, in my view, wholly misunderstood what the nature of the doctrine of mutual recognition is about. To that extent, the proposals that are before your Lordships' House today are, at best, wholly premature.
In rising briefly to comment on the Bill, I feel somewhat inadequate in that I am not a lawyer, do not have the expertise of other speakers and am not able to dissect the Bill's clauses as other noble Lords have done. However, for many years I have had a layperson's interest in our criminal justice system. I have tried to approach the Bill from the viewpoint of the average layperson. I hope that I have succeeded. If I have not, I am sure that my noble friend will correct me in his summing up.
I am a member of Sub-Committee F of the European Union Committee. Among other matters which the committee has recently considered is the question of cross-border criminal activities. During our work we have met a good number of international organisations including the police and border guards in a number of countries. All those organisations emphasise that international crime is increasing and is of major, major concern to them. They believethe committee agrees with themthat currently they are able to deal only with the tip of the iceberg of such crime and that international crime has expanded into areas not previously involved, in particular trafficking of drugs and of children and women for the purpose of prostitution and other even worse fates.
There is no doubt that our current extradition laws are inadequate and in urgent need of reform. With the average time for carrying out a normal contested extradition case currently being 18 months, that appears rather obvious. The possibilities of prevarication and delay are notorious. Defendants can raise the same delaying points time and time again, making numerous challenges to the requested extradition. My noble friend the Minister gave an example of the person wanted by the French police for trafficking cannabis. As my noble friend outlined, that case took six years of court wrangling before the man was eventually sentenced to four years' imprisonment plus a fine. That occurred at considerable cost to the British taxpayer. His detention costs alone were well over £120,000.
The Government listened carefully in another place to points raised by their own Back-Benchers, the Opposition parties, the chair of the Home Affairs Committee, Chris Mullin, and the chair of the Joint Committee on Human Rights, Jean Corston. As a result, important amendments were made to the Bill which my noble friend outlined earlier and which I shall not repeat.
I wish to add one or two points. I am trying desperately not to repeat what other noble Lords have said. I believe that it is right for those who have allegedly committed a crime to stand trial in the country in which the crime was committed. It seems to me that that must simplify matters. It must lead to better justice to have the trial close to where the alleged crime took place, not least because I would think that local witnesses are more likely to come forward, either for or against the defendant, if they know that they do not have to travel to another country, especially if they fear repercussions from being a witness.
A number of points in the Bill are aimed at speeding up the current processes. Many of our citizens, especially those who have been the victims of crime, cannot understand why it takes so long currently to bring criminals to justice. Under those circumstances any measures to speed that process and to ensure that justice is not only carried out but is seen to be carried out must be welcomed.
For the past 100 years we have believed in extradition as a vital part of our justice system. That, I believe, should apply whether it is a matter of extraditing a British citizen suspected of a crime to another country or of extraditing someone to this country to face our justice system. The Bill levels the playing field in that respect. I also believe that we should expect our citizens to behave themselves in other EU countries. We should surely not be seen as giving sanctuary to criminals. People should not be able to avoid justice simply because they have been able to cross a border before the police could catch or arrest them.
The noble Lord, Lord Corbett of Castle Vale, "beat" me to the matter of the victims of crime who are often forgotten when legislation is drawn up. I am sure we all agree that it is vital that justice is seen to be done. That applies to the victims of crime just as much as to the perpetrators. The current system is often seen from the victims' viewpoint as not assisting them. Indeed, some believe firmly that it does them a grave disservice.
When a victim sees prevarication and delay and has to wait many, many months for the perpetrator to be extradited, it is bound to have a depressing and debilitating effect upon them and often upon their friends and family. They cannot get beyond that stage in their lives when the crime was committed and nor can their loved ones. Their future is "on hold" until such matters are finally settled. The Bill should shorten the current proceedings. Surely that must be better for all concerned.
Finally, I want to refer to two speeches made in another place during the debates on the Bill which I think sum it up well. The first is an extract from the speech made by Lady Hermon, the Member for North Down, who at one period of her life taught European and constitutional law at Queen's University, Belfast. In welcoming the Bill she said,
Lord Carlisle of Bucklow: My Lords, I shall start by associating myself with the remarks made by the noble Baroness, Lady Gibson, with regard to my noble friend Lord Kingsland. It was a delight to hear him speak in this House again. Perhaps I may say that I was sorry to hear that he felt he would be unable to take part in the Committee and Report stages. I fear that we will miss his experience, his erudition and, in particular, the succinct way in which he always puts his case.
I agree with much that has been said in the debate, both by the noble Baroness who has just spoken and by the Minister in his helpful exposition of the contents of the Bill when opening the debate. As the noble Baroness pointed out, crime is becomingly increasingly international. That is particularly the case with regard to serious crime, whether it involves acts of terrorism, major fraud or, in particular, drug trafficking. We have to accept that there is a vast international element growing in those kinds of crime.
I also accept that today it is easier for those who commit crime to attempt to avoid arrest, trial and convictionto avoid being brought to justiceby crossing borders into other countries. To combat this problem, it is necessary that we should have, as far as possible, international co-operation in the fight against crime. I think the Minister will agree that that was part of the purpose of the Crime (International Co-operation) Bill, with which some of us were recently involved. If I may put it in general terms, the Bill dealt with improving the powers of hot pursuit so as to ensure that criminals do not disappear or avoid being watched.
I accept that a speedy and effective system of extradition to effect the return of an alleged offender to the country in which his crime was alleged to have been committed is of great importance. Of equal importance is the need for us to be able to extradite into this country those who may have committed crimes here and who have attempted to avoid justice by moving elsewhere.
At present, as has already been pointed out, all this is covered by the Extradition Act 1989, whether one is dealing with cases of extradition from other European countries, from other Commonwealth countries or from those various parts of the world with which we
We are justified, therefore, in looking to see whether it is possible to speed up and simplify the extradition procedure, whether it concerns extradition out of the United Kingdom into other countries or extraditing people back into this country. I agree with the fundamental principle of the Bill; namely, the attempt to speed up, clarify and simplify that law.
If I may make an ironic remark, I am bound to say that it is rather typical that we should be starting our consideration of a Bill that runs to 213 clauses and covers 116 pages for the purpose of simplifying one Act of 38 clauses that covered 33 pages. That is meant to be a serious point. When one looks at, for example, the Sexual Offences Bill and sees the enormous complication and length of such Bills, it says a lot about the change in parliamentary draftsmanship. I accept that it is not all one party's fault. We invite the government of the day, on whichever side they are, to put things into Bills, which in itself extends their length. It is remarkable how much longer it now apparently takes to simplify a procedure that was succinctly contained in one earlier Act.
Surely it is absolutely vital that, although desiring a speeding-up and simplification of extradition, we must always remember, as the noble Lord, Lord Clinton-Davis, urged, that extradition is in fact a judicial procedure, the purpose of which is not only to return the alleged offender to the country in which he is alleged to have committed his crime, but to ensure that proper safeguards exist for the individual. The noble and learned Lord, Lord Donaldson, made that point. Those safeguards must ensure that British nationals, or others who may have sought refuge in this country, are not unduly and unjustly extradited to other countries where the rules of law may be somewhat different from what they are here.
The Bill divides extradition into two parts, depending on the country from which the request for it comes. As the Minister said, category 1 countries are basically the European countries, and category 2 covers the rest of those countries with which we have extradition procedures. If I understand it correctly, Part 2 appears to make little change to the existing law, although it attempts to use the procedure to speed up the carrying out of that law. The context of the law is probably not greatly changed.
On the other hand, Part 1 seems to take away two safeguards that have been vital for the protection of the individual. First, it removes the role of the Secretary of State in being able to approve or refuse to approve extradition in all circumstances in which he thinks it right or wrong to do so. Secondly, for some 32 types of offences, it does away with the rule of dual criminality under the European arrest warrant, so that
I accept again that the Bill contains safeguards. Clause 11 sets out the bars to extradition. The Government appear to have accepted some of the arguments put forward in another place to strengthen those bars. They have accepted the bar of speciality, so that people can be tried only on the case on which they have been extradited. Clause 21 brings in the whole question of the right of the judge to see that European human rights are taken into account when deciding whether extradition should take place. However, I see no real justification for changing still further and making new reductions in the vital safeguards that we have.
On the executive right of the Home Secretary to have the final decision in extradition matters, I want to remind the House of what Liberty said in its briefing to Members. It said that the European arrest warrant is based on the presumption that European Union countries all have fair and equal systems of justice, which should remove the need for any other country to scrutinise the fairness of extradition to such a country.
As I believe my noble friend Lord Lamont showed very potently, that presumption is seriously open to question. In the 13 years since the Extradition Act 1989 was enacted, UK courts have intervened to refuse extradition following habeas corpus or judicial review proceedings in a significant number of EU cases. The Home Secretary has also refused to extradite in a significant number of other cases where extradition would plainly have been wrong and unjust. At this stage, are we right to remove the Home Secretary's role in that matter and to rely merely on Clause 21 of the Bill?
The removal of the necessity to prove dual criminality will cover a very wide area of offences. The 32 categories in the European arrest warrant are all of a wide nature. I suspect that, when dealing with serious crime within those categories, the test of dual criminality would, if it remained, be met and there would be little difficulty in meeting it.
What is worrying to me is that the removal of the requirement for dual criminality may mean that people can be extradited from this country back to other countries on, to some extent, minor matters, which, as has been said, had they been committed in this country would not have been crimes at all. I do not consider that the abolition of dual criminality will have any effect so far as concerns serious crime because I believe that in serious crime cases the test would always be met. The danger lies in the greater use of requests for extradition from category 1 countries in areas where the offences are of a less serious nature and, indeed, concern matters not even of a criminal nature in this country.
Finally, I want to make three major criticisms of the proposals as they stand. With regard to the first, I do so rhetorically. Am I right in understanding, as has been said, that the provisions which seek to do away with dual criminality act retrospectively? If they do, it
Secondly, since the European arrest warrant framework document itself provides in relation to the 32 scheduled types of offence that the removal of the need for dual criminality should apply only if the minimum sentence is three years, why in this legislation are we reducing that to 12 months? Again, it seems that that is more likely to catch the minor rather than the serious case.
Thirdly and perhaps most importantly, is it right to give to the government of the day the power to add other countries to the list of category 1 territories merely by Order in Council without reference to parliamentary scrutiny? It seems to me that there is a grave danger that category 1 territories will be extended to meet countries outside the European Union without Parliament being able to scrutinise whether or not the methods of justice in those countries justify the removal of the safeguards that currently exist.
I listened to what was said by the noble Lord, Lord Corbett, and I accept the argument about people being concerned when others are seen to commit crimes in this country and then disappear to, say, Germany, from where they cannot be extradited. Am I right in understanding that to date we are the only country which has attempted to implement the European framework document into our law? If so, the passing of this Bill will not affect in any way what was said by the noble Lord, Lord Corbett. The abolition of the rule of dual criminality will apply on applications to this country to extradite to others. The law will not change in those other countries until they choose to implement the European framework document so their rules on dual criminality will still apply when applying for extradition from those countries.
Lord Stoddart of Swindon: My Lords, by this stage of the debate, probably everything has been said and said well. But there are one or two points I want to make and on which I seek clarification. First, I must point out that whenever a Bill of this kind comes before us, I always sit down and think what the Labour Party would have done in opposition if the Tories in Government had introduced it. I have been a Member of this House for 20 years and I was a Member of another place for 13 years, so I know the Labour Party a little by now. My guess is that its reaction to Part 1 would have been one of absolute outrage. Mr Blunkett would probably have been jumping up and down with rage that something of this kind should have been brought forward.
That would have been a correct attitude because Part 1 ensures that British subjects can be extradited to foreign countries without normal judicial processes for acts which are not offences in the United Kingdom and without the provision of prima facie evidence. That is a huge step. We should remind ourselves that last year, when the world was worried about terrorism, the United States wanted to extradite a British person who it thought was guilty of terrorist offences. But it had to provide prima facie evidence to our courts and they were not satisfied that that evidence was provided. They refused to extradite the British person who, had he been extradited, could have been subject to the most severe penalties. We should consider that aspect very seriously indeed.
The noble Lord, Lord Filkin, listed some of the benefits of Part 1 of the Bill, one such benefit being speed. Speed can be very dangerous, not only on the roads. Speed in legislation has been found to bring about peculiar results. Certainly, in the matter of justice it can bring about some very baleful results. What is necessary when we are discussing extradition or anything else for that matter which might involve a person being imprisoned, fined or whatever is not that the matter is dealt with speedily but that it is dealt with justly. I thought that that is what British justice is about. However, there is a danger in Part 1 that speed will be considered more important than justice. In my book that is completely wrong.
The noble Lord, Lord Kingslandlike all noble Lords, I am glad to see him back in his place in fine fettle and voicemade a very important point. He said that the question of the European arrest warrant had been considered too quickly, in secret and without any input from national parliaments. That is the essential point about the European arrest warrant: that it has not been discussed properly. Indeed, one of the reasons that it was not considered as it should have been was the twin towers outrage. This is myth 5 of the Home Office paper with which I shall deal. Undoubtedly, advantage was taken of the twin towers outrage to push this reactionary legislation through the EU institution and to extend proposals on terrorism to cover virtually every offence under the sun contained in that list of categories of offence.
My views about the European Union are well known. But there can be no doubt that the European arrest warrant is yet another step towards the creation of a single European legal space. The noble Baroness, Lady Anelay, is right about that. There are people who want to do this and they say they want to do it. They have been saying it for a long time. That is why corpus juris was produced. It is all there. The European arrest warrant will be seen as part of that plan.
Indeed, if it were not so the Bill would be in one part. There would not be a Part 1; there would be only a Part 2. That is all that is necessary to deal with modernising the extradition system which, as the noble Baroness, Lady Gibson, said, has been around for 100 years. Therefore, that can be done without the introduction of the European arrest warrant. Part 2 would suffice for what most noble Lords want to do.
I turn now to the briefing note sent out by the Home Office. I do not know why it did that. It is completely unnecessary. We could have dealt with all this in Committee, and most of it we shall. However, I want to look at a couple of the subjects. Myth 1 states:
We are pleased that that amendment has been made. I hope that the noble Lord, Lord Filkin, will confirm absolutely that the Bill now precludes any possibility of foreign police officers being able to arrest British subjects in Britain. I hope that he will give us that assurance.
The noble Lord surely must have noticed that the convention president, Mr Giscard d'Estaing, is calling for a European public prosecutor; that he believes there should be qualified majority voting for justice and home affairs. Surely he must know that Mr Denis MacShane, the Minister for Europe, has stated that the Government are in favour of communitising the European legal system. No wonder
I hope that the noble Lord, Lord Filkin, realises that some of what he terms myths are not myths at all but are opinions based on facts; facts which have sometimes come out of the Government of which he is part.
I hope that we shall have some very good discussions on the Bill in Committee and on Report. I sincerely hope that a large number of amendments will be made to Part 1. I say nothing about the second part. I do not believe Part 1 is necessary and if it is to go through at all, it needs to be amended very thoroughly.
Lord Pearson of Rannoch: My Lords, I take as my text a beautiful extract from the Home Office's briefing note sent to us by the Minister entitled, "The EAW and the Extradition Bill: Myths and Facts". I will come back to other nuggets in this breathtaking document, but the quote with which I start goes as follows:
I join others in welcoming back to your Lordships' House my noble friend Lord Kingsland. It gives me special pleasure on this occasion because, I think for the first time, I have been able to agree with every word he said in a speech on the European Union. He, along with my noble friends Lady Anelay and Lord Lamont, probed the Minister as to how we got to where we are with this Bill and exactly what our powers are. What would happen if Parliamentand by that I mean, lest
I have no doubt that we shall receive a silken reply from the Minister, who will do his best to reassure us without actually answering the question. After all, that is what always happens when we ask the Government to come clean on the extent to which we are already enmeshed in the tentacles of the corrupt octopus in Brussels. The Minister already went some way towards that end today when my noble friend Lord Lamont pressed him on whether we were free to reject the Bill. He said that it was a framework decision and therefore the expectation was that member states will enact it. He then said that further issues would arise if we were in breach of our treaty obligations. My question is "What further issues?"
In order to assist the House and, I hope, the Minister in his reply, I fear it would be helpful if I placed on the record the salient words of Sections 2 and 3 of the European Communities Act 1972. That Act took us in to what was then the European Economic Community and still governs our relationship with what has become the European Union. Some noble Lords may be aware that I placed these momentous words on the record in your Lordships' House during the debate on the British constitution in the name of my noble friend Lord Norton of Louth, on 18th December last year at col. 679 of the Official Report. That debate was answeredor, as usual in my case, not answeredby the noble and learned Lord the Lord Chancellor, and I suspect that the vital quotation is gathering dust somewhere in the recesses of his ample department. However, this is a Home Office debate, so I hope that it will be helpful if we start at the beginning and remember how this Parliament, without the consent of the people, started to give away so much of their sovereignty to Brussels.
Those words mean, as I mentioned on 18th December, that once the executive or the government of the day have agreed or been outvoted on a new law in Brussels, this Parliamentthe supreme guardian of our democracymust enact that law. We can scrutinise it for as long as we like, we can debate it ad nauseam, but we must enact it. Thus, the supreme guardian has become a rubber stamp.
I understand that this Bill arises as an obligation on us under the treaties because the Home Secretary, Mr Blunkett, agreed the relevant framework decision, on 13th June 2002 in the Council of Ministers. If that is so, my first specific question to the Minister is whether it is true that the decision was taken as what is called an "A" item on the agenda. In other words, was it a decision about which there was no debate in the Council; one that went through on the nod? If that is so, I have little doubt that the Minister will say that it is entirely acceptable, because Parliament's scrutiny reserves had been lifted and the arrest warrant had been agreed by all the internecine and labyrinthine EU committeesCOREPER and so onin Brussels.
That may be technically true, but if so it merely demonstrates yet again the ineffectiveness of the scrutiny reserve system. I say that because of your Lordships' last debate of the European arrest warrant, on 23rd April last year, after which the scrutiny reserve was automatically lifted. Such is the system. Yet none of your Lordships who spoke in that debate supported the arrest warrant, as later agreed by the Home Secretary. Similar disquiet was expressed in another place. As other noble Lords have said, and as usual with European legislation, no vote was taken in either House as to whether the United Kingdom should suffer the EU arrest warrant before the executive signed up to it.
The point is that, if the arrest warrant went through the Council of Ministers on the nod and, as usual, in secret, that rather undermines the position of those who claim that democracy in the European Union is safeguarded because all the decisions are taken by the Council of elected Ministers. So I await the Minister's reply with interest.
Could the Minister clarify under which treaty the obligation to pass the framework decision arises and what penalties might we face if we do not? My understanding is that the obligation arises out of the Treaty on European Union: the TEU or so-called Maastricht Treaty. If so, that might be helpful. I believe that it means that the United Kingdom would not be subject to unlimited fines in the Luxembourg court if Parliament rejects or amends the decision, as we would be if the warrant had emerged from the Treaty Establishing the European Communities or TEC. So far as I can see, we do not face any penalties, even if we reject the Bill altogether, let alone if we amend it substantially. Surely all that would happen is that Mr Blunkett would merely have to return to the Council of Ministers and agree to abandon the whole project or make changes. I know that that agreement would have to be unanimous, but so is everything that is passed in the areas of justice and home affairsat least until the convention's dark cloud has dropped its fatness upon us.
I join with my noble friend Lord Carlisle in asking how the other European countries are faring with ratification of that decision. If none of them has done anything about it, it is not of great inconvenience to Mr Blunkett to return to the Council and to say that we wish to think again.
Perhaps we could come to a separate accommodation with the Government over genuine terrorism. The Government have tried to mislead us into believing that the arrest warrant is all about that, and one does not want to be difficult. What precisely happens if we refuse to rubber-stamp the Bill? What is the meaning of the Government's assurance that we in this Parliament have the final say?
I turn to the famous list of crimes that are set out in Article 2.2 of the framework decision and to the Government's grotesque attempt to defend their importation into British law, as set out in the Home Office's briefing note which was mentioned earlier. To put the Government's sleight of hand into clear perspective, will the Minister confirm a Written Answer that I received during the scrutiny period of the arrest warrant? The Question asked the Government for their definition of racism and xenophobia. The Government's Answer was that the crime of racism and xenophobia will be what the extraditing magistrate says it isno more and no less.
My third and last question to the Minister is whether that is still the position. Will the crime of xenophobia be defined by the Belgian, Italian, German or whatever magistrate? If so, how can the Government possibly defend their dismissal of at least three of their so-called myths?
Surely, the Minister must agree that all these so-called facts or justifications are swept aside if it is true that it will be the foreign magistrate who decides whether or not the crime of xenophobiaor indeed any of the other crimes on the listhas been committed. That is, if the foreign magistrate defines the offence. It is not just the crime of xenophobia. One could go through many crimes on the listas other noble Lords have indicatedgiven their breadth. What about environmental crime, including the illicit trafficking in endangered plant species and varieties? There are a number of plants growing on Rannoch Moor which are fairly common there, but they are extremely rare in Belgium. Who decides whether or not the plant is endangered?
The British court does not have to be convinced even of prima facie evidence, as other noble Lords have said. The British subject is simply bundled off to stand trial under an alien system. So I reach perhaps the biggest deception of all, which I have already quoted in myth number nine. It is:
I end by saying that I really would be grateful if the Minister could answer my three very simple questions. In debates on European matters I have grown used to not receiving an answer to my questions. However, as we start our way down the road of considering the Bill, and, as I say, with the shadow of the Giscard convention hanging over us, the three simple questions are as follows. First, was the arrest warrant passed without debate in the Council of Ministers? Secondly, is the framework decision taken under the TEU? If so, what penalties would we face if we reject or substantially amend it? If there are no physical penalties, what happens? Are we merely cast into the outer darkness of failing on our treaty obligations or can Mr Blunkett return to the Council of Ministers and say, "I am awfully sorry, we have come unstuck in the British Parliament on some of these aspects". Thirdly, will the definition of "xenophobia" and other crimes in the list be defined by the extraditing magistrate? If not, by whom will they be defined? I look forward to the noble Lord's reply.
However, general approval for an improvement in extradition proceduresand even, perhaps, a measure of acceptance of the two-category approachdoes not involve an uncritical acceptance of everything in the Bill. Like many other speakers, and other persons previously, I have serious concerns about the provisions that give effect to the European arrest warrant. Those concerns have been voiced in many quarters during the past year or two, not least in two reports from your Lordships' Select Committee, of which I was then a member, and in the debates that have taken place following those reports.
The Minister sought to suggest that the matter had been approached carefully and thoroughly. But he cannoteither by what he said today or by a document that claims to rebut myths but which does so mainly by creating other mythsget away from the fact that the arrest warrant was rushed through by Brussels on the coat-tails of the events of 11th September, even though, in fact, it has nothing to do with terrorism or anti-terrorism.
Indeed, the Minister, Mr Ainsworth, candidly admitted when he appeared before the sub-committee that he could not give a single example of how the European arrest warrant would have been of use since 11th September. It is unfortunate that the Government did not heed the warnings and that they have now signed up to the framework decision. Unfortunate it may be, but it is a fact. I therefore have specific questions for the Minister about the Bill as drafted.
The first concerns the designation of countries as category 1 countries. Will designation or continuance as a designated country depend on genuine mutuality? In other words, will we recognise as a category 1 country only a country that has and genuinely operates an equal facility for deportations to this country? Or shall we blindly categorise as category 1 countries all countries in the European Union, even though they may not have given effect to the framework measure in any way or not be operating it at all effectively?
Secondly, can, and, much more importantly, will, the Government be minded and able to revoke the designation of a countryI of course include a country within the European Unionif, for example, there is in future real evidence that its procedures and courts do not, or no longer, deliver fair and unbiased justice, or is the unfortunate situation that once a European Union country is designated, it remains designated forever?
Clause 13(b) of the Bill bars extradition if the arrested person can affirmatively show that his trial might be prejudiced by reason of his race, religion, or so on. That may be difficult to establish if, at the time, the country's methods are genuinely arbitrarynot anti-Jew or anti-homosexual; just very prejudicial and arbitrary. It would also be wholly wrong to place on
We should not have category 1 relations with a country whose regime is no longer just. Some noble Lords, particularly the noble Lord, Lord Lamont, indicated ways in which, at present, certain EU countries do not meet the requirements for a fair trial. But, even if one glosses over that, it is obviously highly possible for a country's regime to change completely. If the Bill had been introduced in the 1920s, we might have accepted Germany as a country that had fair trials. But that would not have been appropriate in the mid or late 1930s.
What happens if a country in the European Union slips into a regime that no longer holds fair trials? Can it be de-designatedif such a nauseating word exists? In those circumstances, will the Government undertake to exercise the power of de-designation? As the noble Lord, Lord Lamont, said, the Government's answer tends to be that the countries are subscribers to the European Convention on Human Rights. It would be wholly wrong if a regime became unjust but we continued to give it preferential extradition arrangements until it was expelled from the European Union.
My next point is a request for enlightenment. We are told in the Bill that a person cannot be extradited for conduct that takes place solely in the United Kingdom if that conduct is not an offence in the United Kingdomso far, so good. But what if that conduct is not wholly, but largely, within the United Kingdom? What is the position if the conduct is spread over several countries? Take, for example, the controversial topic of racism and xenophobia. Let us suppose that I publish an article in an English magazine in terms quite acceptable under English law, but a relatively small number of copies of the magazine are sold in various countries in the European Union. The article is said to offend the criminal law of one of those countries. The country wishes to prosecute me as the author or publisher of the article. Can I be extradited in those circumstances? I recognise that the answer to that question is governed by Clause 63. But, having studied the clause, I am not clear on the answer. Unless it is a very clear "No", that is a very serious defect in the Bill.
Unlike some noble Lords, I accept that it is perfectly reasonable that, if I choose to go to a foreign country, I must obey its criminal law and must be punished for conduct that breaches its criminal law, even if it is not an offence here. I do not honestly see why I should not be extradited for such conduct. But the position is wholly different if I am in England, regulating my
It is noticeable that in many speeches, particularly those made by the noble Baroness, Lady Gibson of Market Rasen, and the noble Lord, Lord Corbett of Castle Vale, it has been assumed that the victim and the witnesses will all be local to the court that is extraditing. If there is a rape in Belgium, Belgium is obviously the sensible place to try the case. It is not the sensible place to try me for something that I did in England just because a few copies of my article or the financial consequences of my conduct spread into Belgium. I should not be extradited for that.
There is a similar, but different, question. It also seems that a country can issue a valid arrest warrant, although the relevant misconduct did not take place in that country, if it is an offence under the extra-territorial jurisdiction of that country. Certain countriesI think of Spain and the case of General Pinochetexercise extra-territorial jurisdiction. We shall assume that the conduct that is being complained of is an offence in this country but is not one for which we would venture to exercise extra-territorial jurisdiction. In those circumstances, can I be extradited to that country, which has no connection with the offence, merely because it has a wide view of extra-territorial jurisdiction?
Finally, there is the point made by the noble and learned Lord, Lord Donaldson of Lymington. I fully accept that it should no longer be necessary for the intending prosecutor to demonstrate affirmatively that there is a proper case to answer. However, what about a situation in which the accused can show conclusively that he cannot be guilty? We might imagine that an arrest warrant had been issued by some foreign country against the noble and learned Lord, Lord Irvine of Lairg, in respect of a criminal act that happened at 2.30 p.m. on a Tuesday. It would be demonstrable that, at that time, the noble and learned Lord was seated on the Woolsack in the House, seen there by 200 people and, more importantly, by the Officers of the House, who are, I am sure, more reliable witnesses than most of your Lordships. None the less, the noble and learned Lord has been described in the arrest warrant, and there can be no question that it is he who is described, not a Mr Andrew Smith, who might be anybody, for there is only one Lord Irvine of Lairg. He has been described in the arrest warrant but can demonstrate conclusively to the court that he was not present. Must he still be extradited?
Again, the answer may lie in Clause 7(2). The judge must decide whether the person brought before himLord Irvineis the person in respect of whom the warrant referred to in subsection (1)the foreign warrantwas issued. It may be arguable that the warrant was issued not just in respect of the person named in it but in respect of the person who might have committed the crime and that, therefore, the court could say, "No". However, it is outrageous that, without some way in which the court can, in those
As he is now back in his place, I shall conclude by adding my expression of great pleasure at seeing the noblealbeit, technically, not learnedLord, Lord Kingsland back among us. I express my delight at his speech, which was delivered, in his customary style, with no notes. It threw an interesting and different light on the matter.
Baroness Park of Monmouth: My Lords, I am grateful for the opportunity to speak in the gap. My question has essentially been put far better already by the noble Viscount, Lord Bledisloe. It is whether there will be provision in the Bill to allow this country not to execute an extradition warrant because the right judicial requirements to ensure justice are not yet in place in the country which is issuing the warrant.
Let us consider Bulgaria and Romania, two candidate countries. In the report on the accession partnerships through which the EU helps candidate countries to prepare to comply with the acquis communautaire which qualifies them for membership, we read the following on Bulgaria. The section on the rule of law, reviewing the judicial system, requires Bulgaria to,
In the Romanian document there are similar concerns, and concerns also about corruption, the independence of the judiciary and the need to revise the penal code dealing with "offence against authority" to ensure that it complies with the convention on human rights. Noble Lords will be glad to hear that the Romanian document also requires the necessary steps to implement mutual recognition and eventually the European arrest warrant.
This judicial programme of reform to meet the acquis is only a small part of an immense burden of new legislation on these candidate countries. They are required to make a general reform of everything, from the law to fiscal policy to fisheries to education. The list is endless, and the judiciary is only one part of it. Does the Bill ensure that being admitted to the EU will not automatically be regarded as having created the right conditions for extradition to those countries? The sheer weight of what has to be done is bound to cause great problems of delivery everywhere. I fear that political correctness will cause governments not quite to like to say that they do not think that the situation is as it should be in that country.
We are going to have to have moral courage. But it seems that we are going to have something in the law that requires us to exert that moral courage. Of course, everything I have quoted on those two countries is true in spades of Turkey.
Baroness Ludford: My Lords, I should first declare an interest as a patron of Fair Trials Abroad and as a Member of the European Parliamentone of the tentacles, I suppose, of the "Brussels octopus" cited by the noble Lord, Lord Pearson, although not, I hope, corrupt.
From these Benches we agree on the need to simplify the present cumbersome and outdated procedures to ensure that fugitive offenders are returned to face trial while at the same time ensuring their right to be properly protected. One important right is that of citizens to live in a safe society free from crime. Liberal Democrats support the principle of the European arrest warrant. The question is whether the Bill strikes the right balance between the needs of law enforcement and the defendant's right. We welcome many of the changes, although my noble friend Lord Goodhart has expressed our reservations.
There are those who make exaggerated protests against the very existence of the European arrest warrant. We are entitled to ask whether they actually want to catch the Ronnie Knights as well as the Ronnie Biggses of this world. I thought that the Tory party used to be the law and order party and the Daily Mail the law and order paper. So it is not appropriate to huff and puff about the prospect of Brits having to face the music abroad. What about football hooligans who kill or injure in drunken brawls? What about the M25 murderer, Kenneth Noyes? Should he still be swanning round the costa del crime? Surely, Eurosceptics want those "cheese-eating surrender monkeys"to quote the current delightful insult to our French friendsto have to surrender to a judge if necessary.
The fact is that the European arrest warrant is a big step forward in cross-border law enforcement. It is right that in the EU, which is creating an area of freedom, security and justice, we should not allow major criminals to ignore borders in their operations while we let borders impede co-operation.
One advantage of the EAW is that it works in favour of granting bail for, say, a British defendant charged abroad. A court faced with a defendant from another member state who wants to return home pending trial may be more inclined to grant bail as it will be aware that if the offender fails to return it will be far easier to compel him to do so by issuing an EAW. It may also reduce the tendency to demand large bail bonds. The British plane-spotters in Greece had to put up £9,000 each which they are only just getting back six months after their convictions were quashed. I noted what the noble and learned Lord, Lord Donaldson, said on that.