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Lord Wedderburn of Charlton: I am grateful to the noble and learned Lord, but as a matter of fact I would not accept that. There are problems about the meaning

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of "judicial process" in our partner countries in Europe. I know only a little about the Italian system, but I have no doubt that my Italian friends would understand the notion of coming to a judicial decision, which means at least considering the issues and coming to a decision impartially. Wording such as "a judicial process" might have its own problems.

I hesitate to refer to the academic literature, of which I am sure that the Government's advisers are well apprised. However, there is a long and honourable history to the discussions of what is and what is not a judicial process and a judicial decision. I am particularly struck that that causes no problem with our European partners. That is why they put "judicial decision" in the framework decision. It is understood that the body must consider the issues and come to a decision for itself, not merely at the request of some other organ of the state authority. That is what is at stake. If such a case arose, the Bill would allow that to cause someone's liberty to disappear, and he would end up abroad in a foreign gaol.

I do not understand the Government on this issue. If they have a better phrase—a better hole to go to—by all means let them go there. Before doing what I inevitably have to, in an executing manner in this Grand Committee, I urge the Minister to think again about the matter. There could be a case tomorrow in which someone is whisked off, with the British court being able to do nothing about it, because of what the Minister has put in his Bill, with no judicial process or decision having been undertaken abroad. All I can say is that I hope the Minister will return on Report with further thoughts on the matter. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 25 not moved.]

Baroness Anelay of St Johns moved Amendment No. 26:

    Page 2, line 45, leave out subsections (9) and (10) and insert—

"(9) The designated authority is the National Criminal Intelligence Service in England and in Scotland the Crown Office.
(10) For the purposes of subsection (9), further designated authorities can be designated if necessary."

The noble Baroness said: In moving the amendment, I shall speak to Amendments Nos. 27 and 29. I note that Amendment No. 28, tabled by the noble Lord, Lord Wedderburn, is grouped with these.

The amendments focus on the authorities in the UK that are designated to receive Part 1 warrants and certify them if they are satisfied that the conditions in subsections (7) and (8) have been met. That is clearly a vital role.

We have just had a long and fruitful discussion on the amendment tabled by the noble Lord, Lord Wedderburn, on how we can be satisfied that the issuing authority in the category 1 country is a bona fide judicial authority acting in a judicial way and making a judicial decision. The designated authority in this country has the crucial role of making the decision, checking the authenticity of the Part 1

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warrant and signifying approval by certificating the warrant, thereby allowing the extradition request to proceed to the next stage in the process. Yet we are not told in subsection (9) what authorities in the UK are to undertake this role, only that they will be designated by Order in Council. Subsection (10) sheds little more light, merely telling us that there may be more than one authority and that there may be different authorities for different parts of the UK.

I believe that the two subsections are unnecessarily obscure. Our amendments give two alternative versions, for clarity. Amendment No. 27, along with Amendment No. 29, which is consequential on it, would allow the authority to certify Part 1 warrants to reside in the Secretary of State alone. I set out under a previous amendment the arguments which we believe support the involvement of the Secretary of State in each and every extradition request. The amendments would not have to cause the delays which currently proceed. Other changes under the Bill make sure that the process for a Part 2 request will be cleared in six months. Moreover, the number of extradition requests is not considerable—usually no more than 100 a year and often a great deal less.

Under the EAW, we lose the dual criminality and prima facie requirements. In that way, we lose the safeguard of the Secretary of State's ultimate discretion in taking the decision. The Secretary of State is still the authority in Part 2, so I believe that our amendment is robust enough to withstand criticism, as it seeks to put a politician in ultimate control of a judicial decision. That may not be quite the case—but if it is good enough for Part 2 it should be good enough for Part 1.

I thought that the Government might object to the Secretary of State being there, but I tabled the alternative amendment so that we could have a full debate in Committee. When I looked at the Explanatory Notes, I saw that the Government themselves had provided an explanation. The notes state:

    "The authority for the UK is intended to be the National Criminal Intelligence Service and, additionally in Scotland only, the Crown Office".

Having seen that in the notes, I pulled it out and put it into my amendment.

Subject to what the noble Lord, Lord Wedderburn, might be about to say, I support Amendment No. 28, which would insist that any designation of the appropriate authority through Orders in Council be done only by the affirmative procedure. That seems a welcome development.

The Scottish Law Society has approached us, but it is more appropriate that I leave any comments on Scotland to my noble friend Lady Carnegy. I beg to move.

Lord Wedderburn of Charlton: Amendment No. 28 has been grouped with the amendments tabled by the noble Baroness, Lady Anelay, which is perhaps another example why one should get up early in the morning and have a look at the draft groupings. I was prevented from getting to the House in time to do so.

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I considered what the Minister said about affirmative resolutions on the first day of the Committee proceedings, and wondered whether his logic should lead him to look favourably on the notion of affirmative resolutions in this part of the Bill—and, if not, why not. I hope for a favourable reply.

Lord Pearson of Rannoch: I would like some clarification. As I understand the matter, the designated authority is merely designated by Order in Council. Exactly how wide could that designation range? Who or what are the possible bodies that could be included? To put it at its strongest, is there anything that would stop Europol being designated, or possibly the European Union itself? That ties in with Amendment No. 10, which I moved earlier. What exactly is on offer here?

Lord Filkin: Again, these amendments are concerned with important issues—the receipt of incoming requests in Part 1 cases. Clearly, in any extradition case we need to be sure that an incoming request has come from a bona fide source before any action is taken on it. For that reason, the Bill creates a role for a designated authority to check that the warrant has indeed come from a recognised source in the requesting state and that it contains all the required information. As the noble Baroness, Lady Anelay, correctly said in relation to the Explanatory Notes, our intention is that NCIS should be the UK's main designated authority, with the Crown Office additionally performing the role in Scotland.

It makes good sense for NCIS to perform that role as it will be the home of the UK's Schengen bureau and we expect most requests to be transmitted by the secure Schengen system. NCIS will therefore be well placed to certify that the request has come from a bona fide source.

Similarly, it is entirely appropriate for the Crown Office to perform that role in Scotland, providing administrative assistance to the judiciary north of the Border. Designating an additional authority for Scotland will allow swifter transmission of the relevant warrant where it is known that, for example, the individual being sought is actually in Scotland.

That being so, I do not have any great problem of principle with Amendment No. 26, which seeks to put on the face of the Bill the requirement that those two bodies will perform that role, because that is our intention. My difficulty is one of practicality. By being that specific on the face of the Bill, we would limit our ability to cope with changes in the future. What would happen if either NCIS or the Crown Office were to be abolished in the future or changed their name? What would happen if either of them merged with another body or split into two or more separate bodies? In each of those cases, primary legislation would be required to revoke the status of NCIS or the Crown Office as a designated authority. We have no intention of doing so. Having said that, who knows what may be needed to be done in the future? The Bill is therefore drafted in such a way as to allow for any change in structure

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or any renaming that may occur in the coming years. I do not believe that we should jettison that flexibility, which is neither sinister nor malign.

As I have sought to explain, the role of the designated authority is essentially an administrative one, important though that is. I cannot see any need to make the orders which will designate the bodies concerned subject to the affirmative resolution procedure, as suggested by the amendment standing in the names of my noble friends Lord Wedderburn and Lady Turner. The Delegated Powers Committee, which examined the Bill carefully, did not consider that that would be necessary and I do not believe that it would be appropriate to set such a high level of scrutiny for a procedure such as that.

Amendments Nos. 27 and 28, from the Official Opposition, seek to make the Secretary of State responsible for certifying an incoming Part 1 request. As the noble Baroness, Lady Anelay, said, we discussed those issues earlier in Committee. Members of the Committee are well aware that doing that would undermine Part 1 because the extradition laws are outdated and in need of urgent reform. The intent is to simplify and make appropriate expedition for the handling of requests from all the UK's extradition partners. As I sought to explain previously, there really is no case to try to re-involve Ministers in what should be an entirely administrative and judicial process.

As I explained, the role of the designated authority is to confirm the source of the request and to check that it has been properly filled in and that all the relevant necessary information, as is specified in the Bill, has been supplied.

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