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Lord Wedderburn of Charlton: Before the Minister replies, in view of the most important strengthened assurance that he has given today—I believe that he had already agreed to reconsider some of the wording—to view them with care, would he note that the phrase is in a sense even weaker than the case put by the noble Lord, Lord Lamont? It is a warrant issued not merely

"with a view to his arrest",

but,

"with a view to his arrest . . . for the purpose of being prosecuted".

If the clause said,

"a warrant issued with a view to prosecution"

at least that would—

Baroness Turner of Camden: It states:

"for the purpose of being sentenced".

Lord Wedderburn of Charlton: No, that is another measure. I am discussing Clause 2(3)(b). I apologise to my noble friend but I think that is correct. As I say, Clause 2(3)(b) states:

"with a view to his arrest . . . for the purpose of being prosecuted".

That does not guarantee anything. When the Minister is considering that matter and thinking of a change in the wording—which I very much hope he will do—will he also consider the evidence provided by Fair Trials Abroad on the new electronic means of communication? That body mentions a number of cases where people have been kept—in some cases incommunicado—without being prosecuted.

If my memory is right, there is clear evidence of people who were arrested, interrogated and were about to be prosecuted but then were not. The clause would obviously cover that. Meanwhile, they can be interrogated on anything, unless, of course, you are the Prime Minister of Italy in which case at the moment you cannot be charged with anything at all. In my

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respectful submission the Minister must consider what the words actually mean. If he is going to consider—as I hope he will—giving a British judge the power to look at the relevant words and decide whether they are valid, he must look at the words even more carefully because, as they stand, a British judge would not have a chance of knowing whether the subjective test would be met.

Lord Filkin: I shall not weary the Committee by repeating several times the commitments I have already given as that would be tedious. In general terms, international agreements on extradition operate on a basis of an assumption of trust and honour between member states. They have to do so.

In the circumstance that was instanced of a member state acting in breach of the agreement—I believe the example was given of 12 such occasions—and that claimed to be extraditing someone for prosecution but was in fact extraditing that person for interrogation, that state would be in breach of the agreement. Those would be issues that at one level the relevant state would take up with the other member state. I am sure that the district judge would be informed of the matter when he or she exercised their discretion and considered whether ECHR tests would be met as part of their decision to extradite or not to extradite. We believe that they have a locus and a leverage in that respect. But let us not debate the matter further now. I have given an undertaking to reconsider the issue and to respond on it.

Clause 2, as amended, agreed to.

The Deputy Chairman of Committees: I apologise for having interrupted the noble Lord, Lord Lamont, in the midst of his speech. I was merely conscious of the fact that there are some 208 further clauses to be dealt with. If everyone can speak as briefly as they can manage, we might get there before we are too old to listen. It does not affect me personally but it does affect the Members of the Committee.

Clause 3 [Arrest under certified Part 1 warrant]:

Lord Hodgson of Astley Abbotts moved Amendment No. 31:

Page 3, line 26, at end insert—

"( ) For the purposes of this section—
"constable" shall be a constable of the United Kingdom including a constable of the Royal Parks Police, and
"customs officer" shall be a United Kingdom customs officer."

The noble Lord said: We come to Clause 3 which is concerned with the arrest under a Part 1 warrant. There are grouped with Amendment No. 3 a series of other amendments which are consequential. Amendment No. 47 is concerned with provisional arrest. Amendment No. 152 is concerned with arrest under a Part 2 warrant. Amendment No. 169 is concerned with provisional arrest under a Part 2 warrant. They all address the same issue in different parts of the Bill.

I appreciate the clarification which the Government gave at Report stage in another place when they tabled an amendment which removed the ambiguous phrase

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"appropriate person" from Clause 3, which deals with those people in the UK who may execute a certified Part 1 warrant. The Government then limited the ability to execute a Part 1 warrant to a constable, customs officer or service policeman in any part of the United Kingdom.

However, I feel that this particular issue needs more scrutiny. I have tabled these amendments for three reasons. First, I am unclear as to whether the drafting of Clause 3(2), as amended in another place, really achieves what the Government intended to do. The subsection reads:

"The warrant may be executed by a constable or a customs officer in any part of the United Kingdom".

In my understanding that means that a constable, be he French, English or Dutch, who is in any part of the United Kingdom may execute the warrant. In fairness to the Government, they have made it very clear that only British personnel should be able to make an arrest under a warrant. The then Minister Mr Ainsworth said in Standing Committee in another place:

"No foreign law enforcement officials will be designated to execute a European arrest warrant in this country. That is not what the Government want or have ever intended".—[Official Report, Commons, Standing Cttee D, 9/1/03; col. 64.]

But perhaps the Minister would agree that the subsection that we are discussing could be better drafted to reflect that point specifically.

Secondly, there are the problems of different types of police. When Mr Ainsworth was initially challenged in another place about the appropriate person who could execute a warrant, he responded by saying that no other person other than a constable would be able to execute a European arrest warrant. He then went on to say that Customs and Excise and various service police forces were significant players in the area and that it was those "sort of people" whom the Government viewed as "appropriate". Mr Ainsworth said:

"Constables, Customs officers and members of service police authorities are the only sort of people who we foresee in the role".—[Official Report, Commons, Standing Cttee D, 9/1/03; col. 65.]

Lord Clinton-Davis: Why has the noble Lord omitted constables from the Transport Police? I believe that there are others who should be included.

Lord Hodgson of Astley Abbotts: I am grateful to the noble Lord for those comments. We shall discuss that issue in a second. The amendment we have tabled is probing and is intended to explore whether Royal Parks Police and other such personnel are included. Would they be the sort of people that the Minister's colleague, Mr Ainsworth, had in mind?

When I tabled the amendment I was reminded by my noble friend Lord Bridgeman that the Police Reform Act 2002 has a long list of different types of police. Section 86(3) reads:

"A person meets the requirements of this subsection if he is attested or sworn as a constable and—

(a) he is a member of a police force maintained under section 2 of the Police Act 1996;

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(b) he is a member of the metropolitan police force or of the City of London police force;

(c) he is a regular constable within the meaning of the Police (Scotland) Act 1967;

(d) he is a member of the Police Service of Northern Ireland;

(e) he is a member of the National Crime Squad;

(f) he is a member of the Ministry of Defence Police appointed on the nomination of the Secretary of State under section 1 of the Ministry of Defence Police Act 1987;

(g) he is a member of the British Transport Police Force;

(h) he is a member of the States of Jersey Police Force;

(i) he is a member of the salaried police force of the Island of Guernsey;

(j) he is a member of the Isle of Man Constabulary; or

(k) he is engaged with NCIS on a period of temporary service".

Will the Minister clarify whether or not all those different types of police are included in the phrase,

"constable, customs officer and service policeman"?

Thirdly, as regards Amendment No. 152, despite the changes made to Clause 3(2) in another place on Report, there appears to have been no such alteration in Part 2 of the Bill. Clause 70(5) states:

"A warrant issued under this section may—

(a) be executed by any person to whom it is directed or by any constable".

Perhaps the Minister will explain why the wording is not the same for Part 2 as for Part 1 in that respect? For my part, I do not believe that "any person" should be permitted to execute a Part 2 warrant. Indeed, the use of the words "any person" seems to be even more dangerous than "appropriate person", which was previously found to be unsatisfactory.

Further, why the phrase "any constable" in Part 2 and "a constable" in Part 1? Amendment No. 152 addresses those issues in respect of a Part 2 arrest and Amendment No. 169 in respect of a provisional warrant under Part 2.

Finally, perhaps for the convenience of the Committee, the Minister could address one other inconsistency. That is the omission of the phrase "the customs officer" in Part 2 whereas it appears in Part 1. Clause 3(2) reads:

"The warrant may be executed by a constable or a customs officer",

but Clause 70(5) reads,

"by any person to whom it is directed or by any constable".

There is no mention of the customs officer.

This is an issue which much concerned the Committee in another place. We would benefit from some tidying-up of the drafting or at least some clarification from the Minister. I beg to move.

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