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Lord Filkin: All I was seeking to indicate was that, if I was not able to give as full a response as possible, I would not ignore it but return to it at the earliest opportunity.

Lord Lamont of Lerwick: I am grateful.

The Minister said that three months is the time period. If, as I understood it, that meant three months from the time of arrest to the time of extradition, that is a very short period. It does not seem to indicate a lengthy court case. Unlike other Members of the Committee, I know nothing about that; I am simply asking as a layman. However, three months seems an extraordinarily short period. It seems to indicate that the actual court case will be extremely quick and limited. Although we are not debating a one-year period against a three-year period or the possible length of sentence if a person is found guilty, that is part of the interaction of all the other issues. We are not talking about offences of murder but about offences that could carry a one-year sentence. It seems that people could be whisked out of the country after a very fast hearing. The Minister may correct me on that.

The Minister did not list the grounds on which extradition can be resisted. It can be resisted because of mistaken identity. As the Minister said, it can also be resisted because the crime was not committed in the country requesting extradition. Although we will want to probe the point, I should jolly well hope that one cannot be extradited to a country requesting extradition if the crime was not committed in that country. That is not much to be grateful for. Within the context of the European Union and its current

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membership, I do not expect that the human rights in Clause 21 could be invoked on many occasions. So what are the grounds on which extradition can be resisted?

Lord Hodgson of Astley Abbotts: We have had a—

Lord Lamont of Lerwick: Is the Minister going to reply to that?

Lord Filkin: I thought that we had addressed many of those issues on Second Reading. However, the first ground goes to the heart of the issue. If a judge thinks that Clause 21 is not satisfied, he or she will refuse extradition. That could not be clearer. It is essentially putting in the hands of a British judge the power to decide whether the test in Clause 21 is met. We will undoubtedly discuss that matter in detail when we reach Clause 21. It gives the judge an extremely important and strong power. Many other tests have to be met in the hearing before the judge, but I shall not weary the Committee now by going into all the details. We will come to those when we come to them. In essence, we believe that the arrangements are necessary to ensure a fair hearing for an individual whose extradition is sought while not allowing that individual so to protract the process that he or she can effectively avoid coming to justice. I hope that for now the noble Lord, Lord Lamont, will accept that that is the position.

Lord Hodgson of Astley Abbotts: We have had a very interesting debate. I am grateful to Members of the Committee who have spoken in support of the principle behind the amendment. I make it clear that I am wedded not to the precise wording but to the principle that legislation should carry a clear explanation of the proposals and their implications.

I am grateful to the Minister for his very full reply. However, 45 minutes ago, when initially replying to the amendment, he seemed to be arguing that the Bill "already makes it clear". I think that was the phrase he used. He went on to say that the Bill "makes it clear" in Clauses 63 to 65, 142 and 207. With the greatest respect, members of the public are not able to thumb through such a range of clauses. We owe it to them to provide greater clarity about what the legislation seeks to achieve.

The Minister also said that I was endeavouring to raise the spectre of the creep to corpus juris. I was not really. I was merely quoting from the framework decision, to which we are signed up, in relation to abolishing extradition and replacing it with surrender. All I am saying is that if that is what the framework decision says, surely we should be telling our fellow citizens that that is happening. A balance may be struck, but it is none the less a balance. If they do not realise it, should we not bring it to their attention? As the noble Lord, Lord Stoddart of Swindon, said, we should also make it clear that there are two distinct parts to the Bill—Part 1 and Part 2, one of which is about changing extradition and replacing it with surrender, the other of which is to do with extradition.

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I am not stuck on the precise wording, but I am fairly stuck on the principle. I felt that my noble and learned friend Lord Mayhew hit the nail on the head when he asked whether there is a downside to having a purpose clause. It can do no harm and it may help enlighten readers, the public and our fellow citizens. For the time being, I beg leave to withdraw the amendment. However, I will probably want to reflect and bring it back for further consideration.

Amendment, by leave, withdrawn.

4.30 p.m.

Clause 1 [Extradition to category 1 territories]:

Lord Hodgson of Astley Abbotts moved Amendment No. 2:

    Page 1, line 6, leave out "in Council" and insert—

"( ) No order may be made under subsection (1) unless a draft of the order has been laid before Parliament and approved by a resolution of each House."

The noble Lord said: In moving Amendment No. 2, I want to focus particularly on Amendments Nos. 2 and 261. My noble friends tabled some of the other amendments in the group, which are consequential on Amendments Nos. 2 and 261. I do not think that their amendments contain any differences in principle or approach. The noble Lord, Lord Goodhart, has tabled various amendments in this group. They seem to have the same target albeit they approach it from a slightly different angle. I look forward to hearing his views.

This group of amendments deals with the procedures for the designation countries in either category 1 or category 2 and the procedure by which Orders in Council throughout the Bill are made. I tabled Amendments Nos. 2 and 261 in a positive, even anticipatory frame of mind. In his helpful post-Second Reading letter, the noble Lord, Lord Filkin, said:

    "my Ministerial colleague Bob Ainsworth said in Commons Committee Stage that he recognised that there were strong feelings on this point and that we would be prepared to consider using the affirmative resolution procedure for designating extradition partners if a strong case for doing so could be made. I have no doubt we shall have a lively discussion on this point during our own Committee stage".

We are grateful to him for that statement.

Before I attempt to make that case, and before the affirmative resolution procedure, I should like briefly to mention the rationale behind the drafting of the amendments. Amendment No. 2 probes the Government on the reasoning behind providing for designation of countries to be made by Order in Council. The Bill does not lay down any principles or guidelines governing the choice of territories to be designated category 1 or category 2. However, given the differences between Part 1 and Part 2 which we have just been discussing, surely it is vital that either the Bill explains the basis on which decisions are taken by the Secretary of State or Parliament is allowed a close scrutiny of the decision process. I would like the Minister to explain why such a fundamental decision is subject to Order in Council by the negative procedure.

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What would be the difference between having an order rather than an Order in Council as Amendment No. 2 proposes?

Both amendments, one providing for an order by designation, the other providing for an Order in Council, insist on the affirmative procedure. That is a point of principle, judging by the debate on Second Reading, when there was clearly some support from all parts of the House. We have drafted Amendment No. 261, which covers Clause 210 on Orders in Council, to cover all the changes from negative to affirmative procedures, in that way meeting the recommendations of the Delegated Powers Committee.

The noble Lord, Lord Goodhart, has taken the alternative route and has tabled amendments in each instance, to provide affirmative procedures in Clauses 1, 68 and so on. We have the same aim in mind, however. We chose our drafting to facilitate debate in Grand Committee, where we cannot vote, but we recognise the advisability of tabling separate amendments to each of the pertinent clauses, as the noble Lord has done, when it comes to considering the issues on Report.

Having clarified the drafting, I shall state the case for the need for the affirmative procedure. As we noted in the first debate, extradition is a matter of striking a balance between what we receive and what we give up in return. I accept that my party's radical approach to Part 1 does not commend itself to all Members of the Committee. However, even the most hardened advocate of the new procedures for the European arrest warrant in Part 1 must accept that it represents a substantial change. None of us can foretell for certain whether the balance that we are striking is the right one. Moreover, there is that other joker—the law of unintended consequences. Quite often, as successive governments have learned to their cost, legislation does not operate exactly as planned. That is why we need high levels of parliamentary scrutiny and, in turn, why we need the affirmative resolution procedure.

That is the case "for". Let us now look at the Government's defence to date. First, it depends on precedent. The 1989 Act, in terms of designation, proceeds by Order in Council laid before Parliament after being made. The Government argument seems to be that we have had no scrutiny previously, so why start now? The answer to that seems perfectly straightforward: previously we did not have a system in which one category contained significantly fewer procedural safeguards and protections than the other. Indeed, as my noble friend Lord Lamont drew out of the Minister, the whole purpose of the Bill is to reduce the opportunities for delay currently available to the extraditee. A precedent of that type should not be followed when the system itself is being so transformed by the implementation of the European arrest warrant.

Secondly, the Government argue that to introduce the affirmative procedure would reduce what they describe as "flexibility". How often is the procedure going to be used? "Very rarely", the Minister has said, so the loss of flexibility can hardly be great. What is

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certain is that using the affirmative procedure would put people's minds at rest about other countries being slid into categories unheralded and unnoticed.

The third point that the Government bring up is that we should not be suspicious of the negative procedure since,

    "we have no plans to designate any non-EU countries, other than possibly Norway and Iceland, as part 1 countries".

That is a quote from the letter from the noble Lord, Lord Filkin, on 12th May. However, as the Home Affairs Committee report pointed out, the Bill effectively enables any country to be designated as a category 1 or category 2 territory. Consequently, there is nothing to prevent territories other than EU member states from being designated as category 1 territories. We have no reason to doubt the assurances of the present Government, but situations change. Present procedures do not provide sufficient guarantee for the future.

Fourthly, as my noble friend Lady Park pointed out on Second Reading, deep concern exists about the accession states. The noble Lord, Lord Filkin, made it clear that while accession to the EU would not bring with it an automatic change from category 1 to category 2, it was largely expected that such a transition would take place. I, for one, am deeply concerned at the idea of accession territories becoming category 1 territories without proper scrutiny and almost as a matter of course.

The problem lies with what the Government like to call the mutual recognition of judicial spheres, which is enshrined in Part 1 of the implementation of the European arrest warrant. Stephen Jakobi, the director of Fair Trials Abroad, said:

    "I must conclude by giving a solemn warning. In 2004 ten countries will join the Union. Public concern has been expressed by the Commission about corruption in some of them. What evidence we have suggests that this corruption extends to their judicial system. In 2007 Bulgaria and Romania are scheduled to join. There is clear evidence of corruption and third world standards in their criminal justice systems. The principle of mutual recognition of judgements, of which the arrest warrant is but a high profile example, will to some extent export Bulgarian and Romanian standards of justice to all parts of the Union".

Part 1, and the implementation of the European arrest warrant, is a wholly new step forward, as we would all agree. I see no harm in allowing Orders in Council for designation to be by affirmative procedure; I see, however, a great many dangers in allowing designation without any clear criteria being carried out without parliamentary scrutiny. I beg to move.

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