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Lord Wedderburn of Charlton: I have an amendment in my name and that of my noble friend Lady Turner which has been grouped with the amendment that we are discussing. My amendment is put forward very hesitantly but also in a probing spirit. What the noble Lord has just said must surely be right in certain respects. We hope that the Minister will reassure us on the matter.

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The issue that we are discussing must surely be a matter for a United Kingdom constable. That matter should be cleared up. If the Government intend the measure to include a Belgian constable, they had better say so. But I believe that everything the Government have said so far indicates that they intend a United Kingdom officer to be involved. That should be stated in the Bill.

The modern habit of Ministers saying, "Oh well, it is not down on paper but we shall give you a Pepper v. Hart assurance that you can quote in the courts"—after that famous decision which enabled Ministers to be quoted in the courts—is being rather strained these days. Ministers should not delight in giving Pepper v Hart assurances; they should be ashamed of doing so, because it means that there is something wrong in the drafting that must be cleared up. Surely "United Kingdom" should somehow be included in the Bill.

We are then left with the problem of "constable". Like most ancient offices, from Lord Chancellor onwards, there is something hazy about "constable" and there is always something hazy about its reform. I fully support the noble Lord in his tabling of Amendment No. 31 as a probing amendment to get the matter out in the open and have it properly discussed, as, so far, it has certainly not been.

I tabled an amendment about a specific matter regarding prison officers about which I am slightly hesitant. I can quickly summarise my train of thought as follows: in litigation in 1994, it was discovered—by people, like me, who were ignorant of the matter, at any rate—that prison officers, because they had the powers of a constable, could not form a trade union. At that point, they were regarded as falling within the prohibition of the police and constables to form trade unions. I have put the matter very broadly, but that is the nub of it. The issue was, in a sense, cured in the Criminal Justice and Public Order Act 1994, in which Section 126 provides that,

    "employment legislation shall have effect as if an individual who as a member of the prison service acts in a capacity in which he has the powers . . . of a constable were not, by virtue of his so having those powers . . . to be regarded as in police service"—

for any provision of that legislation.

Although prison officers are not regarded as being "in police service", the Act deprived them of their right to strike anyway, which is a fashionable idea these days. Unless I am wrong, in the light of the definitions that the noble Lord has read out, which exclude prison officers, they appear still to have the powers of a constable. If I have overlooked anything, my amendment is unnecessary. But there are people around who have the powers of a constable. It would not be impossible for a court to regard someone who has the powers of a constable, whether or not in the police service for various purposes such as forming trade unions, as falling within the definition.

I referred to a prison officer in my amendment. It states:

    "'constable' does not include a prison officer or any other person who has only the powers of a constable".

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If there are such people around, and if prison officers are among them, they should clearly be excluded here from the definition, because it would be absurd for them to serve European arrest warrants.

I therefore support what has been said on the other amendments moved by the noble Lord on the Opposition Benches and press the Government to consider the one in my name.

4.30 p.m.

Baroness Turner of Camden: I attached my name to my noble friend's amendment because the question of who may execute a warrant is very important. Clause 3 stipulates who may do so: a constable or customs officer. It is important that there be a measure of trust in the person carrying out the function. A prison officer does not seem appropriate to carry out an arrest in this context, even though he may be regarded as a constable. For that reason, and because it is a probing amendment, I hope that the Minister can give us a reasonable response, as it is important.

Lord Bassam of Brighton: As ever, I am grateful to all Members of the Committee who were involved in the discussion. I am also grateful to the noble Lord, Lord Hodgson, for tabling the amendment so that we can go through the issues still obviously causing concern to Members who were unclear about some of the points after they were debated in another place.

The issue is who may carry out an arrest in this country in an extradition case. Various rumours flew about to the effect that foreign police officers would be allowed to come to Britain and carry out arrests on the basis of a European arrest warrant. So far as we are concerned, nothing could be further from the truth.

It was certainly an interesting experience to see first hand the degree of paranoia that the issue has raised. The Government have absolutely no plans—

Baroness Anelay of St Johns: Perhaps I may assist the Committee, as we said earlier that we were trying to move on. That argument was deployed in another place but not here. The Minister has no need to try to respond to an argument that has not been made. My noble friend has tabled some very important probing amendments. I would be grateful if he could address those.

Lord Bassam of Brighton: I appreciate entirely that point. I am not trying to be disrespectful, but the matter stimulated debate earlier. I wish to make clear on the record that the Government have no plans to allow foreign police officers to exercise powers of arrest in this country. We recognise that there was something to be said for putting the matter beyond all doubt. Accordingly, the Bill was amended in another place, as has been acknowledged on Report, to make it clear that the only people with powers of arrest in Part 1 are United Kingdom police officers, United Kingdom customs officers and United Kingdom service police officers. That is clearly set out in Clauses 3 and 5.

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A service police officer is defined in Clause 3(6), and again in Clause 5(5). I hope that there is no suggestion of any outstanding ambiguity about that. It may not have been noticed that in Clause 203(6), which defines a customs officer, there is no ambiguity and no possibility of a foreign customs officer being included.

On the term "constable", the office of constable is established in common law. On appointment, every constable in the police force must,

    "be attested as a constable by making the appropriate declaration".

Thus the Royal Parks Police are covered by the relevant provisions in the Bill as drafted as are the British Transport Police, the City of London Police and all the bodies that the noble Lord, Lord Hodgson, read.

The use of the phrase "a constable" is common in other legislation; for example, the Police and Criminal Evidence Act 1984, the Terrorism Act 2000 and the Anti-Terrorism, Crime and Security Act 2001. No foreign police officer could make the necessary declaration or be attested so there can be no possibility of a foreign police officer falling within the term "constable". Equally, the term "constable" does not encompass prison officers, so I hope that I can set at rest the mind of my noble friends Lord Wedderburn and Lady Turner on that point. I suggest that the amendments are unnecessary. Furthermore, if we seek to give a statutory definition to the term "constable", we could call into question all the other legislation where the term is used and the basis of the common law definition.

I shall refer briefly to Part 2, in which the powers of arrest are conferred on a constable or any person to whom a warrant issued by a UK judge is directed. There is one simple reason why we have adopted this formulation. It is the tried and trusted one, and the wording is virtually identical to that in Section 8(5) of the Extradition Act 1989. Members of the Committee should be familiar with the wording. Again, the amendments to Part 2 are, I suggest, unnecessary and potentially harmful for the reasons that I have already given. We have amended the Bill to make clear that no one other than UK law enforcement officers may carry out arrests in this country.

I wish to clarify something that I said earlier in case I have left any doubt. I said that all the people that the noble Lord, Lord Hodgson, mentioned would fall within the definition of "constable". For the purposes of this legislation, the exceptions are the police officers of Jersey, Guernsey and the Isle of Man. They are considered a constable only when acting in their jurisdiction. That clarification is important.

The omission of "customs officer" in Clauses 70 and 72 is dealt with by amendments in the name of my noble friend Lady Scotland, which appear on today's Marshalled List. They are numbered as 148A, 152A, 169A, 180A and so on. They put beyond doubt the issue that the noble Lord raised.

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I think that I have covered all the issues raised during that debate. I apologise to the noble Baroness, Lady Anelay, for causing any offence by suggesting that paranoia was present in this room. I can feel that it is not.

Lord Wedderburn of Charlton: I, for one, am extremely grateful to my noble friend, with the footnote exception of his reference to paranoia, which, with the greatest respect, is perhaps best forgotten. But I was too slow to understand exactly what he said about the reason for not inserting a definition. He told Members of the Committee that "constable" would not include anyone with the powers of a constable. It might avoid litigation if that were stated in the Bill.

If I am wrong, Hansard will prove me so, but I think that I am right in saying that his reason for not including a definition was that it might call into question the common law definition or definitions already in existence in other statutes. Could the Minister expand on that? That would be the case only if somehow the Government got the definition wrong under the common law tests and in other legislation.

The Minister is asking us to accept that "constable" must be understood through legislation by implied reference to definitions in common law and other statutes. So when I am arrested—I heartily hope that it does not happen—and I ask the gentleman presenting me with the necessary documents, "Who are you?" and he says, "I am Plod. I am a constable", and I ask, "A constable?" and he says, "I am a tested constable" and I ask, "What is that?", he would have to reply, "Ah, I cannot tell you that. You will have to look up the common law and the other relevant statutes". If there were a definition, he could say quite reasonably, "Just look at Section 3(9). There is a list, and I am one of those"—that is, a constable of the Royal Parks Police, the Transport Police or any of the other headings that there ought to be.

If the Government do not have those headings, how can they expect an ordinary citizen to understand whether someone is really a constable within the purposes of the Bill? I am entitled to know who is arresting me and whether he is the proper person. The Government have shown that that is correct, because, quite rightly, they have at least included an understandable point of reference for customs officers. What they have done for customs officers proves that they can do it for constables. It is very reasonable to give us a precise explanation of who is the customs officer who can act under the Bill. However, the Government will not do the same thing for constables. They tell us that we must understand that by the ether and osmosis of constitutional understanding that is supposed to afflict every ordinary citizen.

I press the Minister that perhaps that is an unreasonable position, and one that certainly does not justify the absence of a definition in the Bill, in view of all the many uncertainties displayed in the debate.

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