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Baroness Anelay of St Johns: That is where I should conclude my remarks. As the Minister said, we shall return to the debate on dual criminality, the list of 32 offences and how effective and appropriate they are in reflecting the implementation of the European arrest warrant.
I want to refer to one further matter, which arose from a comment made by the noble Lord, Lord Wedderburn, when he questioned the Government about the reference to Holocaust denial. I was concerned when the Minister sought to reassure noble Lords that perhaps prosecutions would not be brought forward against UK citizens. I shall examine his response carefully as it was given about an hour and a half ago. However, I have a note to the effect that the Minister appeared to say that the German authorities are not the most zealous in following up such
prosecutions. The fact that the prosecuting arm of a state does not prosecute is not the best argument for saying that it does matter and we should have the offence there anyway. I shall carefully consider the Minister's remarks before considering in what form I need to bring back amendments relating to this subject. I beg leave to withdraw the amendment.Amendment, by leave, withdrawn.
Clause 2 [Part 1 warrant and certificate]:
Baroness Anelay of St Johns moved Amendment No. 12:
- Page 1, line 15, leave out second "an" and insert "a judicial"
The noble Baroness said: I shall speak also to Amendments Nos. 45, 46, 113 and 138. Amendments Nos. 46 and 138 are government amendments. I shall refer to them in passing and look forward to their presentation by the Minister. It looks at though they will probably meet most, if not all, of my objections. I do not wish to remove the ground from under my own feet before I go any further, so I shall naturally wish to hear his explanation; it looks, however, as though the Government have gone a long way to meet the issues that we raised on Second Reading.
Both here and in another place, the issue had loomed large as to which authorities should be competent to issue a Part 1 warrant. Clause 2 requires that a Part 1 warrant must be issued,
- "by an authority of a category 1 territory".
That change has brought about more protection for British citizens. Our amendments build on the principle introduced by the changes made to the Bill in another place. They seek to clarify and emphasise that the issuing authority must indeed be a "judicial" one. That is in line with Article 6 of the framework decision, which states:
- "The issuing judicial authority shall be the judicial authority of the issuing member state which is competent to issue a European arrest warrant by virtue of the law of that state".
We believe that the "judicial" nature of the issuing authority should be stated clearly in Clause 2(2) when describing a Part 1 warrant and not simply be left until subsection (7), which deals with the grounds for which the designated British authority must certify the warrant. This, we believe, would reinforce the point that no warrant should be issued by any authority other than a judicial one, irrespective of whether the warrant reaches the stage of certification.
I thank the Minister for the apparent movement on the matter. He wrote to me on 28th May. I understand that a copy of his letter has been placed in the Library, so I hope that all Members of the Committee have been able to read it.
Now that the Government have conceded on the principle of stating in the Bill that the issuing authority must be judicial, it makes sense to make clear in Clause 2(2) that no Part 1 warrant is valid unless it has been issued by a judicial authority.
That is all the more the case in relation to Clause 5. My noble friend Lord Hodgson will deal with Clause 5 in more detail later. The clause states that,
- "A constable, a customs officer or a service policeman may arrest a person without a warrant if he has reason to believe . . . that a Part 1 warrant has been or will be issued in respect of the person by an authority of a category 1 territory, and . . . that the authority has the function of issuing arrest warrants in the category 1 territory".
Lord Filkin: In response to representations by the Official Opposition in another place, we introduced an amendment on Report to make it absolutely clear that all European arrest warrants must come from a judicial source. The relevant provisions can be found in subsections (7) and (8) of Clause 2.
However, we have since realised—I am not surprised that the noble Baroness recognised this—that there are a couple of other references to the issuing authority and that we therefore need to insert the "judicial" stipulation there as well, which is the purpose of the amendments standing in my name.
We are sure that the government amendments achieve exactly the same purpose as those of the noble Baroness. I hope that on that basis she will agree to withdraw hers and to support those that I have proposed, which I hope respond to the point fully and satisfactorily.
Lord Wedderburn of Charlton: My noble friend advances the thesis that Amendments Nos. 46 and 138 achieve the same purpose as the amendment that is being pressed on him. But there is one big difference. The amendment proposes that, right from the outset, there should be absolutely no doubt that a judicial authority—I believe a ministerial statement once indicated that that means a court—must be the source of the warrant. Under the terms of the amendment that would be stated right at the beginning, on page 1.
The Government made a mistake. They began with "an authority", and have had to go on fiddling about with the Bill, inserting "judicial" where they could find it—and there are two cases where they have failed find it until today.
What on earth is the Minister's objection to setting out this point on page 1? It would be clear and straightforward: there would be no doubt at all that
the warrant must be issued by a judicial authority. Why bother with bits and pieces, giving rise to the need to continue amending the Bill? On Report, the Minister may find another instance where that has been left out. He would not have to deal with the matter quite so badly if he were straightforward and said: "Page 1—that's it".
Lord Filkin: As ever, I shall reflect on what my noble friend says. If, on reflection, there are better ways of dealing with the issue, we shall not be churlish or obdurate for the sake of it in resisting such amendment. But Clause 2 is quite clear as it stands. A warrant is valid only if it is certified by the UK certifying authority. The UK authority can certify the warrant only if it comes from a judicial authority, as set out in subsections (7) and (8) of Clause 2.
Lord Stoddart of Swindon: Then why not say so?
Lord Filkin: That stipulation could hardly be closer to the beginning of the Bill. Nevertheless, I shall not be churlish. I shall consider and reflect. I do not believe that there is any issue of principle here. We are absolutely clear about that, and I have been happy to respond positively to the request of the Official Opposition in this respect.
Baroness Anelay of St Johns: I am grateful to the Minister for his careful and considered response and for saying that he will re-examine the issue. The noble Lord, Lord Wedderburn, made an important intervention. He is attempting to assist the Government in obtaining the greatest clarity in the Bill's drafting. Not only those reading the Bill now but those who will put it into practice in future need as much clarity as possible. If we can make it clear from the start that the authority must be a judicial one, it will be of great assistance.
I am glad that the Minister has agreed to re-examine this issue. In that spirit, I beg leave to withdraw my amendment, while welcoming the Government's amendments.
Amendment, by leave, withdrawn.
Baroness Anelay of St Johns moved Amendment No. 13:
- Page 1, line 16, at end insert "in ordinary language"
The noble Baroness said: In moving this amendment, I shall speak also to Amendment No. 155. They deal with an issue which I believe is of central importance to all criminal proceedings and, not least, to extradition.
To be faced with a warrant that orders one's extradition to a foreign country to face prosecution—to face charges, as the Bill now states—is a daunting prospect for anyone, whatever his or her nationality. My amendments state simply that the warrant for the person's arrest, whether issued by a Part 1 or Part 2 country, should provide a statement of the crime involved and, in the case of category 1 countries, the necessary information in addition to that "in ordinary language".
The issue of language arises in a number of later amendments to which my noble friend Lord Hodgson will speak. They have purposely not been grouped with this one because they address the separate issue of interpretation and translation. Here, in using the phrase "ordinary language" I refer to the clarity of the language.
I am slightly disappointed that my protagonist, the noble Lord, Lord Clinton-Davis, is momentarily not in his seat—or perhaps in "ordinary language" I should say "for the moment". When I raised a similar amendment in relation to the Crime (International Co-operation) Bill, the noble Lord took me somewhat to task and asked me what on earth "ordinary language" was, saying that I ought to be able to define the phrase. On that occasion I had not done my homework well enough. I thought that it might be clear to all what "ordinary language" was; therefore, I did not proceed in as forceful way as I might have done. I have tried to catch up this time.
"Ordinary language" is not an ambiguous phrase. If it were, the Government would themselves be guilty, as they have used the phrase in recent circumstances. I understand that Sections 46 and 47 of the Criminal Justice and Courts Services Act 2000—fairly and squarely on this Government's patch—introduce new sections into the Powers of Criminal Courts (Sentencing) Act 2000, telling the court to explain to offenders "in ordinary language" the effect of exclusion orders and draft abstinence orders. Section 65(5) of the Crime and Disorder Act 1998 states that a constable should explain the effect of reprimands and final warnings "in ordinary language" to the offender or appropriate adult.
The important point is that the Extradition Act 1989—passed by the Conservative government and on which the Bill builds—uses the phrase "ordinary language". So there are ample examples of the use of that phrase. I refer the Committee to Sections 11 and 13 of the 1989 Act. I shall not take time to read them out, but I am sure that the Committee will want to examine them closely. The killer blow is that the precedent exists also in this Bill. Clause 91(2) states:
- "The judge must inform the person in ordinary language that ... he has a right of appeal to the High Court".
The principle is right: we need clarity and particularly as regards this matter. I beg to move.
5.30 p.m.
Lord Filkin: I am grateful to the noble Baroness and the noble Lord for tabling these amendments that draw our attention to the content of a Part 1 warrant. A considerable amount of time was devoted to the issue in another place. The Government also tabled amendments, which were generally welcomed.
As a consequence, Clause 2 is very explicit on what a Part 1 warrant must contain. I invite the Committee to look at Clause 2(4), which I suggest is clear and comprehensive. Nevertheless, the Official Opposition have made a number of suggestions to improve it, which no doubt have been made in good faith.
Amendments Nos. 13 and 155 would provide that all information in a warrant must be provided "in ordinary language". That opens up a debate as to what "ordinary language" means, how those words are defined and who decides whether or not a warrant contains it. It opens up the potential for much legal process of inquiry by the fugitive's lawyer to get a warrant struck down on the grounds that the language in it is not ordinary enough.
One item that the warrant naturally must contain is the details of the offence of which the person stands accused. However—if the Committee considers the issue for a moment—the formulation of some offences in English law are hardly in plain or simple language. In fact, they are as the statue was drafted.
While it may appear attractive to seek to translate offences in English statutes into what we might think is plain, ordinary or simple language, there are obviously certain risks in so doing. One does not actually capture exactly what the legislation intended and therefore a risk of challenge is opened up. Therefore, the answer to this must be that the offence should be listed in the warrant exactly as specified by the relevant legislation. The fugitive, against whom the extradition request is made, should be properly legally represented and legally advised so that he is advised by his lawyer of what the understanding is of the offence with which he is charged, as specified by the relevant statute.
If there are occasions in British law when it is not easy or simple to understand in ordinary or plain language exactly what the legislation says without legal advice, the same must be true for the legislation of other European Union member states. Therefore, although the argument is seductive, it opens up the risk of finding failures of interpretation of exactly what a specific statute quoted—on which the offence has been levied—means or does not mean.
There is a remedy for that. It is important that there is a remedy, which is that by the Government's insistence—a matter to which we shall turn later—people so charged have access to legal advice. That seems to be a proper and safe course of action. Therefore, a person can actually understand the meaning of the warrant as it is specified.
For those reasons, without in any way wishing to be obdurate, we think this is the right and safe course of action. It reaches the same effect sought by the noble Baroness, Lady Anelay, which we share, that a person understands with what he is being charged. The way to do that is by specifying in the warrant exactly what the charge is and by then having legal advice to interpret that in a way that the person who is so charged can understand.
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