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Lord Donaldson of Lymington: I certainly agree that English law—at least as I know it—would not pass that test, and reasonably not. But why should the examining judge not be allowed when asked to extradite someone to consider whether bail had been unreasonably refused? Or, let us put the matter within the judge's remit. I have not worked out the appropriate wording, but that would be better than the flat-footed amendment that has been tabled—although I of course understand that it has been tabled merely to edge the Government towards Eurobail.

Lord Filkin: That is an interesting and complicated discussion but, as I shall seek to demonstrate, one for another time.

Bail in the context of extradition cases is something that the Government take seriously. Indeed, for the first time, the Bill extends the presumption in favour to cover extradition cases—accusation only—in this country. The presumption, which would normally apply in criminal proceedings in the UK, is extended to extradition proceedings in this country by virtue of Clause 193. We shall come to that due course.

I appreciate the sentiments behind the amendment and the considerable knowledge about and involvement in the issue of the noble Lord, Lord Goodhart, and of Fair Trials Abroad. I am delighted to put on the record that the Government commends the work of Fair Trials Abroad on the issue and on many other topics with which the noble Lord is closely involved. Of course, that does not mean that we automatically agree with them in every respect. Nevertheless, they must be listened to.

I believe that the amendment is aimed at ensuring that any person extradited under Part 1 has access to equal consideration of bail, pending prosecution. I hope that I have correctly interpreted the objective of the amendment in that summary, although I think that the noble Lord was also speaking more widely about the benefits of Eurobail as a system. The Government could not disagree with the former view—not that we would ever want to.

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When taking a decision on bail, to discriminate on the basis of a person's race, religion, nationality and so forth, would clearly be unacceptable. Such discrimination is prohibited by the Human Rights Act 1998, as it is by the corresponding legislation in all other member states' law. However, residency is not one of the factors on which discrimination is prohibited. I should explain that, were the amendment to be accepted, exactly as the noble Viscount, Lord Bledisloe, said, we judge that no country, including even ours, would qualify to be in category 1.

The reason for that is as follows. Let us take a judge in this country, for example. As the noble Baroness, Lady Anelay, so personally and graphically illustrated, one of the judge's primary considerations must be how likely is the person in front of him or her to adhere to the conditions if bail is granted. Naturally, that applies in all types of jurisdiction when provisional liberty is being decided on.

When considering bail, courts will take into account factors that would contribute to the probability of the person adhering to the conditions of bail, such as having a fixed abode, employment, family ties, and so forth. A non-resident is inevitably less likely to meet those tests and, consequently, may in some circumstances be less likely to be granted bail. But he is not being discriminated against purely on the basis of his place of residence. His likelihood to comply with the conditions of bail is being assessed, to which the effects of non-residence are one of range of factors that will be considered.

We have already touched on the fact that extradition concerns serious criminal offences. By definition, extradition is likely to become an aspect of a case only when the person accused of the crime has fled from the place where it was committed. We need to view the matter in that context.

I turn to Eurobail. With the greatest respect to the noble Lord, Lord Goodhart, Eurobail goes beyond the scope of the Bill. The principle of Eurobail as outlined by Fair Trials Abroad is that a person should be sent to his home country pending the start of his trial, so that the bail decision can be taken there.

Whatever may be the general merits of Eurobail, it would be especially inappropriate for extradition. Let me explain why. No doubt the noble Lord, Lord Goodhart, will respond if he feels that to be appropriate. If a British citizen committed a crime here and then fled to France, we would submit an EAW to France. Under a system of Eurobail, he would be returned here until the extradition hearing, whereupon we should have to return him to France, so that they could consider whether to return him to Britain to stand trial. That does not seem to us a sensible way to proceed in practice.

I hear the arguments about whether a person abroad is more likely not to be bailed for the reasons on which the noble Baroness, Lady Anelay, touched in her case. All that I can say is that there is no change as a consequence of the Bill. It does not change that, for better or for worse.

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The Eurobail system is separate from extradition. However, I was invited to set out our position on it. I hope that we keep an open mind on all potential European Union measures, although we would start from a position that may disappoint the noble Lord, Lord Goodhart, of being sceptical about whether the approximation of criminal procedures is a road down which we want to travel very far. So we start from a position of scepticism. However, currently, no negotiations are in process or planned on Eurobail in the Justice and Home Affairs Committee. As I said, for reasons in both principle and practice, I hope that the noble Lord will feel minded to withdraw the amendment.

Lord Wedderburn of Charlton: Do I understand my noble friend to mean that the Government will not reconsider the impact of bail on the European arrest warrant?

Lord Filkin: Our position is that Eurobail and bail is a separate matter from that of the European arrest warrant. That is the current position; we have no current plans to change the system of bail. There is no change to the current position of people who are subject to extradition requests into this country; there is nothing worse nor better than the current position as a consequence.

Lord Goodhart: I am grateful to Members of the Committee who have supported the principle of Eurobail and that behind the amendment. The noble Viscount, Lord Bledisloe, is right in his criticism of the amendment; indeed, I am well aware of that. It is not a satisfactory substitute for a proper Eurobail system, and was never meant to be. It is mainly a peg on which to hang this debate; I am glad that we have had the debate.

I also accept what the Minister says: that Eurobail is, on the whole, something rather different from extradition, because the Eurobail system would mainly apply in cases in which someone was believed to have committed an offence in, let us say, France, was arrested in France, and then a question arose whether he or she should be bailed in order to be allowed to return to the United Kingdom. So the question of extradition would not enter into that unless and until we reached the stage where, having been granted bail, the person, when back in the United Kingdom, refused to return to France, in which case France could instigate extradition proceedings to return the person.

But what I frankly find disappointing is the negative attitude to the whole concept of Eurobail and the fact that the Government appear to have no intention to proceed any further with it. The present position causes serious hardship, not to a large but to a significant number of people, which should be considered. It should not be left as it is. I therefore regret that the Government have not seen fit to signal that they will take the matter any further. I shall have to consider whether I can take any further action on Report; I may well not be able to. However, I shall think about that, and, in the meantime, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 9 not moved.]

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7.15 p.m.

Lord Pearson of Rannoch moved Amendment No. 10:

    Page 1, line 11, at end insert—

"( ) The EU or any of its institutions may not be designated for the purposes of this Part."

The noble Lord said: I trust that it is clear that the amendment looks forward to the time when the European Union has its own legal personality. There appears to be little doubt that the EU is about to acquire legal personality, because that seems to have been generally agreed—including by Her Majesty's Government—in Mr Giscard d'Estaing's Convention on the Future of Europe.

That acquisition of legal personality by the EU does not appear to have been fully thought through by those who support it. For instance, the EU flag will presumably acquire the status of a national flag, whereas, at the moment, as perhaps not all Members of the Committee may be fully aware, it is merely an advertising gimmick, requiring a local authority licence before it is displayed in this country. Beethoven's "Ode to Joy" will presumably suffer the ignominy of becoming the new EU mega-state's national anthem.

The main aim of the amendment is therefore to ensure that the EU itself will never be able to extradite a British citizen, especially for the highly controversial crime of xenophobia. If some Members of the Committee feel that such a prospect is far-fetched, I refer them to an answer given to my noble friend Lord Howell of Guildford by the Minister, the noble Baroness, Lady Symons of Vernham Dean, in debate on a Starred Question tabled in my name earlier this year. The noble Baroness said:

    "Conferring a single personality on the Union would give it the capacity to act within the legal system distinctly from the states that are its members. The noble Lord is quite right. In practice that would mean that the EU would have the capacity to make treaties, to sue and be sued, and to become a member of international organisations".—[Official Report, 20/3/03; col. 377.]

So why should it not issue arrest warrants for xenophobia? I remind the Committee that Article 9 of the Giscard draft constitution, entitled,

    "Application of fundamental principles",


    "The Constitution, and law adopted by the Union Institutions in exercising competences conferred on it by the Constitution, shall have primacy over the law of the Member States".

I remind your Lordships that Article 11 of the draft constitution defines the competencies, or powers, that are to be exclusively granted to the EU, giving it complete power over the member states. Article 11(2) states:

    "The Union shall have exclusive competence for the conclusion of an international agreement when its conclusion is provided for in a legislative act of the Union, is necessary to enable the Union to exercise its competence internally, or affects an internal Union act".

I appreciate that those clauses have not yet been agreed by the next intergovernmental conference, but the signs are that they will be. If they are, the concession made earlier today by the Government to

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the effect that new entries to the category 1 territories will have to be approved by affirmative resolution may not afford much protection.

I raised the prospect of the EU issuing its own arrest warrants with the noble Baroness, Lady Symons, in our debate on 2nd April this year on the Convention on the Future of Europe in the name of my noble friend Lord Blackwell. I asked her specifically whether the Government could give a clear assurance that when the EU had legal personality, and after Parliament had rubber-stamped this outrageous EU arrest warrant—which is, of course, what we are doing now—whether one would be committing the crime of xenophobia if one insulted the European Union, perhaps while in Brussels or in another member state, or even in this country. Could calling it "the corrupt octopus in Brussels" or worse—perhaps much worse—lay one open to extradition and prosecution abroad?

The noble Baroness was good enough to answer my question as follows:

    "Perhaps I may tell the noble Lord, Lord Pearson of Rannoch, that he will be able to continue to speak with his customary gusto on all matters European, without any hint of sedition or treachery, and that we would all wish to protect his rights to free speech".—[Official Report, 2/4/03; col. 1388.]

Of course I am grateful for that answer, especially as the Government often never really attempt to answer questions I put to them on EU matters. But I think noble Lords will agree that the answer does not quite hit the spot. I was not asking about sedition or treachery, as defined in British law. I was asking about racism and xenophobia, which is not a crime here, as defined by a foreign magistrate. I was also asking about British rights to free speech which are rather different from those in Germany, where to deny the holocaust is a crime, or in France, where to insult the President is also an offence, believe it or not. My noble friend Lord Lamont mentioned today that whistling during the French national anthem is either a crime or becoming one.

Furthermore, noble Lords may remember the recent judgment of the EU Advocate General in the case of Mr. Bernard Connolly, a senior Commission official, who had been sacked for writing a seminal and revealing book entitled, The Rotten Heart of Europe. Mr. Connolly claimed that his right to free speech had been violated. The so-called judge dismissed his case, of course, telling Mr. Connolly that free speech was not an absolute right. It could not be used to justify certain offences, such as criticism of the EU, which he put into the same category as blasphemy.

So I confess that I tabled the amendment against the background of the deep apprehension with which I and many others view the path being taken by the European Union. Many of us see it as clearly undemocratic and corrupt, and we fear that it may be on the way to becoming a dictatorial unitary state. There are signs that, consciously or unconsciously, it is already setting in place the instruments of control, as that great Soviet dissident, Vladimir Bukovsky, has so expertly analysed.

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One instrument was exposed by the redoubtable Conservative MEP, Daniel Hannan, in the Sunday Telegraph two days ago, when he revealed that the EU is proposing legislation which could bar Euro-sceptic parties from the European Parliament. This is, of course, one of the principal methods by which the Soviets controlled their Union. They did not ban elections—they merely banned the dissidents from contesting the elections. Parties were initially banned as being fascist, but before long this description applied to everyone except the communists.

As some Members of the Committee may remember, article 58 of the Soviet penal code went further than that. Anyone who spoke against the Soviet system was clearly mad, so mad that they had to be confined for eight years in the gulag, with its famous psychiatric hospitals, to straighten them out. That is the system which sent Solzhenitsyn and Bukovsky and millions of other to the camps, which very few survived.

I am not sure whether I mention this in jest, but the recent editor of the BBC's flagship political programme, "Today", has publicly revealed that the BBC's hierarchy regards me and others as mad, because we believe that the European Union is developing into a colossal mistake, and that the United Kingdom would be very much better off out of it.

Be that as it may, I trust the Government will be able to assure your Lordships that the EU will not be able to go down the path I have indicated, whether it wants to or not, and that they can therefore accept the amendment. I beg to move.

7.15 p.m.

Baroness Anelay of St Johns: I thank my noble friend for taking us into more general waters. He has put the Bill against the background of a very important issue as we see the development of the European Union over the coming year. I was particularly struck that he asked during his peroration whether the safeguard the Government are offering us of having the affirmative statutory instrument as a designation of countries will be sufficient. That is something that I want to consider.

My noble friend referred again to the fact that crimes in other jurisdictions would not be considered crimes here. He said that in France, whistling during the national anthem is about to become an offence. In defence of football in this country, perhaps it is just as well, because France will certainly never be able to hold the World Cup there again.

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