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Baroness Carnegy of Lour: I have given the Minister notice and I hope that the Committee will forgive me if I take a moment to raise a question about bail. It is mentioned in Clause 7(9) and I want to clarify how differences in Scots law bail procedures are allowed for in the Bill.

Recently, the noble Lord, Lord Filkin, was kind enough to convene a meeting at which Scottish officials and the Ministers in the Home Office agreed to meet noble Lords who were interested to look at the Government's proposals in the Bill for bringing Scots

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law into line. Many useful points were made and afterwards a note was sent to those present summing up what had been said.

One of the matters dealt with was provision for bail. Bail procedures are different in Scotland from the rest of the United Kingdom. My understanding is that under the Bill, Scotland will continue to operate its own bail arrangements and that this is made possible by Clause 194. The clause includes an order-making power which allows Scottish Ministers to amend the Criminal Procedure (Scotland) Act 1995 as is necessary for the purposes of the Bill. I speak as an amateur having studied the notes.

My question is simply this. Does Clause 194 bring the bail arrangements in Scotland in line with the Bill for the whole of the Bill's provisions? If so, a number of amendments I have on the Marshalled List, which began with the Law Society of Scotland, will be unnecessary. If I can have such an assurance, we shall be able to save the time of the Committee and remove them.

Lord Filkin: Not for the first time I thank the noble Baroness, Lady Carnegy, for the skill and vigour with which she probes Scottish matters in our deliberations—that is an important role—and for the way in which she has addressed this issue.

Let me put on the record that Clause 194 will modify the bail provisions in the Criminal Procedure (Scotland) Act 1995 by inserting a new section specifically relating to bail in extradition proceedings. The new section will ensure that existing Scots law on bail applies to persons facing extradition in so far as that is consistent with the Bill. I can confirm that Clause 194 applies to the whole of the Bill.

I want to make two points about Scottish bail provisions. Unlike in England and Wales, the police in Scotland have no power to grant bail. However, the Lord Advocate has the power to grant bail to any person charged with any crime or offence. The new section makes it clear that the Lord Advocate can exercise that power in relation to a person subject to extradition proceedings.

Secondly, the new section also includes an order-making power to enable Scottish Ministers to amend the bail provisions in the Criminal Procedure (Scotland) Act 1995 in so far as is necessary or expedient for the purposes of Clauses 9(2) and 76(2), which relate to the powers of the judge at the extradition hearing. I hope that that is helpful.

Lord Wedderburn of Charlton: Perhaps my noble friend could clarify an issue within this context. It will save time both here and on Report. On our first day in Grand Committee on 3rd June, the Minister said:

    "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".—[Official Report, 3/6/03; col. GC174.]

I appreciate that naturally he did not refer to the position under Clause 195 and we now know that the Bill provides for matters in Scotland. It is also true that the answer he gave was in the context of a discussion

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on Eurobail. However, looking ahead not merely to the proceedings of this Grand Committee but also to the Report stage, it is important to know whether in putting aside Eurobail the Government's position is that apart from Scotland, which is provided for, bail is a matter separate from the European arrest warrant and cannot be dealt with under the Bill.

Previous discussions show that bail arises in a large number of matters, not only here but also in respect of courts in jurisdictions which will issue demands for—I use the word which I know the Minister does not like but which is in the framework decision and its description—surrender. This is a scheme of surrender and therefore the occasions on which bail might or might not be granted either in this jurisdiction or in that of an issuing authority concerns some of us greatly.

I appreciate that the Eurobail project is a more general issue. Nevertheless, do I take it from what we have heard that the Government would not have a "NO", written in capital letters, to amendments and issues raised here and on Report concerning bail in the context of the European arrest warrant?

Lord Filkin: The Bill changes domestic law on bail but does not affect the bail law of other countries or impose a system of Eurobail. I stated the Government's position on Eurobail on 3rd June and there is no change to that. As ever, I promise to reflect on what has been said by the noble Lord, Lord Wedderburn, and see whether it requires any further clarification on Report. At this point, the position is exactly as I said on 3rd June and I do not expect it to change.

Baroness Carnegy of Lour: Perhaps I may assist the noble Lord, Lord Wedderburn. I was merely talking about amendments which make it possible for Scotland to use its own bail system in the normal course of the Bill. It did not relate to the points that he raised, which I fully understand.

Clause 7 agreed to.

Clause 8 [Remand etc.]:

Lord Hodgson of Astley Abbotts moved Amendment No. 55:

    Page 5, line 34, leave out paragraph (c) and insert—

"(c) ensure that the person has received independent legal advice about the implications of giving or withholding consent to extradition;"

The noble Lord said: Before I speak to this group of amendments, perhaps for the convenience of the Committee I may say that we shall be changing the batting. My noble friend Lady Anelay will not be moving two amendments tabled for debate today. This is an effort to save a little time. They are Amendment No. 60, grouped with Amendments Nos. 60A, 61 and 187 to 189, and Amendment No. 76. At a future date we shall be grouping Clause 21 stand part with Amendments Nos. 84 and 85.

I make that clear because the group beginning Amendment No. 60 is the point at which the batting changes. My noble friend would have to begin by not moving some amendments.

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I turn to Amendment No. 55, dealing with the initial hearing and legal advice. Amendment No. 55 deals with a Part 1 warrant. Amendment No. 164 deals with extradition to a category 2 country. Amendment No. 176 relates to a provisional arrest. Amendment No. 179 is a consequential amendment and Amendment No. 217, at Clause 125, relates to the consent to extradition (general) where the Secretary of State is involved. My noble friend Lady Carnegy has tabled Amendment No. 218, which concerns the Scottish dimension.

The amendments focus on the provision of legal advice on the subject of consent. The irrevocable nature of consent and the serious consequences it entails, including in particular the waiver of the specialty rule following extradition, make the provision of free legal advice prior to such consent indispensable. It appears that the Government conceded on this principle at Report stage in another place. We welcomed the words of the Minister, Mr Ainsworth, that amendments would,

    "ensure that the right to legal aid that is enshrined in the Access to Justice Act 1999 applies to the issue of consenting to extradition. They provide that, before a judge accepts a fugitive's consent to extradition, he must check that the person had the opportunity to receive independent legal advice".—[Official Report, Commons, 25/3/03; col. 168.]

The principle of legal advice prior to consent has therefore been accepted by the Government. I want now to focus on what our amendments aim to do specifically.

Amendments Nos. 55, 164, 178 and 179 focus on the same point. The Government amendments at Report in another place made some progress by ensuring that the judge cannot accept someone's consent unless he has checked the person has had access to independent legal advice prior to consent. This focuses on the consent clauses—that is, Clause 44 in Part 1 and Clause 125 in Part 2. Our amendments would require the independent legal advice to be introduced at an earlier stage; that is, when the judge first mentions consent at the initial hearing in Clauses 8, 71 and 73 for Parts 1 and 2 respectively.

Clause 8, which deals with the remand stage of the initial hearing, requires the judge to give the person the required information about consent as set out in subsection (1)(c). We think that inherently unsatisfactory from the point of view of both the person concerned and the judge. Our amendment is designed to replace the role of the judge with that of an independent legal adviser who would explain not only about the right to give or withhold consent but, perhaps more importantly, the implication of so doing.

There is an important difference between having an independent legal adviser at this stage, rather than just at the giving of consent stage of Clauses 44 or 125, as the latter might well not allow the person time to think, consult and reflect on which course he should best take. Clauses 44 and 125 appear only to ensure that the

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person is legally represented at the time he gives consent and that he knows about his rights to apply for legal aid.

Amendment No. 217 focuses on Clause 125, the Part 2 consent clause. On a probing basis, we propose replacing subsection (3)(b), which says that consent is irrevocable, with the provision that consent is valid only if the person has had access to independent legal advice. In view of the support he has given me so many times in our last two sittings, I do not wish to pre-empt the noble Lord, Lord Wedderburn, who, from the look of Amendment No. 56, which is grouped separately, is keen to have a debate about whether consent should be irrevocable. The amendment is merely an alternative way of drafting the independent legal advice provision into Clause 125.

Amendment No. 97, tabled by the noble Lord, Lord Goodhart, raises an interesting point about whether, under the circumstances, an application for legal aid would have been refused or withdrawn. I look forward to hearing from the noble Lord, Lord Goodhart, and to the Minister's reply.

To summarise, the provision of legal aid prior to consent is a matter of the utmost importance. In order for consent to extradition to be informed, an individual should have received independent legal advice. As the Law Society of Scotland has stressed, a judge may be able to provide an explanation of consent but he cannot provide the necessary legal advice. The amendments have been tabled in an effort to ensure the inclusion of such a provision in the Bill so that this procedure takes place at an early stage of the proceedings, thus meeting the standard in terms of fundamental legal rights which our fellow citizens require and are entitled to expect. I beg to move.

4.45 p.m.

Lord Goodhart: Amendment No. 97 in the group stands in my name. It is proposed by Justice and would amend Clause 44, which provides that the person may not give his consent under the section unless he is legally represented before the appropriate judge at the time he gives consent or if subsection (6) applies. Subsection (6) applies if the person has been informed of his right to apply for legal aid and has had the opportunity to apply but has refused or failed to apply. That is understandable. Incidentally, I think I have just spotted a defect, in that "section" in subsection (6) should instead be "subsection". The Government might wish to take that up. Subsection (6) also applies if a person has applied for legal aid but his application has been refused or if he has been granted legal aid but it was withdrawn.

Amendment No. 97 would remove paragraphs (b) and (c) from subsection (6). This is a probing amendment and has been proposed by Justice. It is plainly desirable that the subject of a warrant should be advised before consenting to extradition and should be properly represented at the court hearing at which the extradition is ordered. One cannot force a person to be represented if they are legally competent and they

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refuse to instruct a lawyer to represent them. But it is hard to see any other ground on which the court hearing should be held without representation.

Paragraphs (b) and (c) exclude the need if legal aid has been refused or, having initially been granted, has been withdrawn. The lack of means is no longer a bar to grant of criminal legal aid. We assume that representation under Clause 44 will be treated as criminal legal aid for this purpose, although we would like assurance on that point.

The merit test would, it seems, of necessity be satisfied at the court hearing. Therefore, the question arises: what are the circumstances in which either paragraph (b) or (c) of subsection (6) might need to be relied upon? If the Minister can produce an example in which it might be necessary and reasonable to rely on paragraphs (b) and (c), I will happily withdraw the amendment and not bring it back. But I would like to know the kind of circumstances in which it is contemplated that paragraphs (b) and (c) might need to be relied upon.

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