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Baroness Anelay of St Johns: I am simply trying to ask the Government whether they are making an intentional change to existing law. From the nods behind the noble Baroness, that is the case. The Government's argument so far has been that the changes that they are making are allied to the fact that they need to have the framework list and all the extradited procedures in relation to the European arrest warrant. However, in these provisions, they seem to be making extradition easier even in cases where dual criminality is required.
I wanted confirmation as to whether the Government are trying to change from what has been the ECE existing 12-month level. In the past, the Government said, "Don't go for three years. We have always had 12 months". Now they are saying, "We've always had 12 months, but we're still going to change the 12 months and the way it applies".
Baroness Scotland of Asthal: Members of the Committee will see that the way in which we have structured the arrangement complies with the requirements of the framework decision. The new positionthat there has to be a criminal offence in both countries punishable by at least one year's imprisonment in the requesting stateis what the framework decision provides. That is why the arrangements are expressed as they are in the Bill. It differs from how provisions were framed before, but reflects the agreed position among all our EU partners. That is why it is expressed as it is in relation to Part 1.
Viscount Bledisloe: I find the amendment unattractive. What the noble Baroness, Lady Anelay, is suggesting is that I can stand up in the extradition court and say, "Yes, I knew this conduct was an offence, and I did it over there. But I knew that I could get only nine months for it if I did it over here. Therefore there was no harm in me doing it in the other country although it gives 18 months for it". It seems rather unattractive to be able to say, "Oh well, I'll go round misbehaving in foreign countries provided the offence wouldn't attract quite as much as 12 months over here". Is that really the policy of the Conservative Party?
Baroness Anelay of St Johns: It may be an appropriate time for me to finish the debate, but I should say that it is not our policy to encourage people to commit crime. I am trying to elicit from the Government why their arguments have not been logical in their own way. They have attacked us in the past for our amendments, saying, "You don't need to worry about going down to 12 months. So far as we're concerned, we've always operated 12 months". I am pointing out that the Government are inconsistent, because in Clause 63(3) they are moving away from what has been the ECE position.
I suspect that we shall come back to the clause in great detail. Perhaps we shall not do so in September, as the noble Lord, Lord Goodhart, optimistically thought. From the views put to me by government business managers in this place, we may not do so until quite late in October, so we will have much time for good and fertile thought. I beg leave to withdraw the amendment.
Clauses 63, 64 and 65 offer us the interpretation of what constitutes an "extradition offence". On that basis, I thought it would be right to ask the Minister for some more details about a phrase used in the clauses, which is,
Lord Bassam of Brighton: I am grateful to the noble Baroness for having tabled the amendment, and I shall explain a little later why that gratitude is rather more generous than usual. We think that the Bill must retain the flexibility to cope with other countries that may use different legal terminology from our own. The amendments refer to the important area of interpreting an extradition offence and, more specifically, to the description in other EU member states of the concept of imprisonment or detention.
Clause 63 gives the definition of an extradition offence in Part 1 accusation casesthat is, cases where the fugitive is sought for prosecution and has not yet been convicted. Clause 64 gives the definition of an extradition offence in Part 1 conviction casesthat is, cases where the fugitive has already been convicted and is being sought for the execution of the sentence imposed. In each case in Clause 63 where the dual criminality requirement is applied, the conduct has to warrant a penalty of imprisonment or another form of detention of 12 months or more, however it is described in that law.
As the noble Baroness explained, the amendments are probing and have highlighted the relevant words in each case. We believe that those words are necessary. They enable us to deal with cases where our extradition partners use different language or terminology to describe the concept of imprisonment or detention. It would be most unfortunate if we ever found ourselves in a position where we were unable to extradite simply because another country, although clearly recognising and operating the notion of imprisonment, described it in a different way in its law.
That is not about allowing people to be extradited to face indefinite detention or imprisonment that has not been properly sanctioned by a court. Members of the Committee would be right to ask how I can say that with such confidence. The answer is very simple. The words that the amendments seek to remove are not new, as I think that the noble Baroness had twigged. They have been copied almost exactly from the Extradition Act 1989. No doubt she is very familiar with that piece of legislation. If Members of the Committee care to look at Section 2(1)(a) of that Act, they will see that it refers to an offence punishable with imprisonment for a term of 12 months or any greater punishment, and which, however described in the law of the foreign state, Commonwealth country or colony, or of the Hong Kong special administrative region, is so punishable under that law.
I have dealt with the amendment to Clause 63, but it would be remiss of me if I did not say something further about Clause 64, which deals with conviction cases, as I explained. Howeverthis is where we own up to somethingowing to an unfortunate error, the drafting of Clause 64(6) deals with accusation cases. An amendment to rectify that will be required, so I shall bring one forward. I want to put on record my apologies to the Committee for the error. In our defence, numerous people who have studied the Bill, including Members of another place, failed to spot it.
Doubtless the error would have remained but for the noble Baroness and the amendments that she tabled, which caused us to look at Clause 64(6) with what my notes tell me was renewed vigour. We are grateful, first, for the tabling of the amendmentit enabled me to make an explanation that I hope was clearand, secondly, because we shall be able to correct an error before it has been writ large in statute.
Baroness Anelay of St Johns: I am grateful to the Minister for his helpful explanation. It is always useful to know that Opposition amendments cause the Government to look with renewed vigour at their own
The noble Baroness said: In moving Amendment No. 125, I shall speak also to Amendment No. 136. Again, these are probing amendments. I wanted to ask the Minister to give reasons for the distinction made in Clauses 63(8) and 64(8) to matters relating to tax and duty. Earlier in our consideration of the Bill, I spoke in the stand-part debates on the clauses, but they were to do with completely different matters. I did not then have the opportunity to ask these questions, as I otherwise would at clause stand part. Hence the need for the amendments.
Will the Minister expand on that explanation? The Explanatory Notes are intended to be helpful, and it is excellent that they are now printed so early. However, so often as a member of the Opposition one looks at the Explanatory Notes and finds that they are simply a repeat of what is in the Bill. That is not always as helpful as it might be.
Will the Minister tell us why the tax issues merit special and alternative arrangements in relation to the paragraphs to which I referred? I find nothing in the framework decision to suggest that the exception stems from that document. I can only assume that there is some other provenance. I may have missed it in the framework document, but I looked through it to check and could see nothing that was directly related. I beg to move.
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