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Baroness Anelay of St Johns: I added my name to Amendment No. 143 to support the noble Lord, Lord Goodhart. As he mentioned, Amendment No. 269 is my amendment to his Amendment No. 268. Like him, in one sense one regrets that we have to complicate matters by having the two debates together, but I am afraid that that is how things had to fall within the context of how the Bill is drafted.

My original notes refer to the fact that there are a number of very important matters in this group of amendments, and that I shall take some time to set out my argument. I am changing that, as I shall not take some time. The noble Lord, Lord Goodhart, has more than adequately covered not only the principles but many of the arguments that have to be made. He said admirably much of what I would say, and I agree with him substantially.

I shall skip some of my remarks and refer to what was said by the noble Lord, Lord Goodhart, towards the end of his remarks. He raised the issue of definitions of xenophobia and racism, pointing out that either we should define what these offences are or there ought to be a list of offences by which we can recognise them, thus introducing clarity. He is quite right; I do not argue in any way that people from this country should be able to travel elsewhere and make what I would consider to be serious xenophobic comments. While I understand that, having watched England play and having drunk a few too many beers, someone might make certain unwise minor remarks, I certainly would not commend any comments such as those made by Signor Berlusconi, or anything of that ilk.

We need further clarity in this area, and it is because of that concern for clarity that I turn to the shadowy list of 32 offences not currently included on the face of the Bill. Not all of those offences are yet clear and, of course, not all are offences in this country. The issue here is that, although it grieves us, we would rather see the list set out in the Bill than introduced off the face of the Bill, if only so that others can see exactly what we are being saddled with. So although we do not like

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the list and we shall never like it, while we are being forced to accept all 32 offences, we see merit in what the Liberal Democrats are trying to achieve.

I recall, when reading the Hansard report of the debate in another place, that the Minister said in response that if, between the Bill leaving another place and being debated here, concerted pressure to see the list was maintained, the Government would consider again whether the list should be put in the Bill. I hope that, when she responds to the amendments, the Minister will be able to bring us up to date on the Government's consideration of this matter.

The noble Lord, Lord Goodhart, has already quoted extensively from the House of Commons Home Affairs Select Committee. Like him, I agree entirely with those views, in particular, for the sake of reference, with what is set out in paragraphs 53 to 56 of the proceedings.

I turn now to the issue of xenophobia itself. I noticed that the noble Lord, Lord Goodhart, was unhappy with my Amendment No. 269 as it stands. Of course I have tabled it as a tool with which to open consideration of the general issue of xenophobia. In any case it must be in the nature of a probing amendment since we are debating it in Grand Committee. I want to make it clear that whatever the Government's response, I shall want to consider my position on the matter of xenophobia in that light before we return to the matter on Report to consider how the Bill might be amended.

At this point it is right that I should put on the record the fact that we support the thrust of Amendment No. 142 tabled by the noble Lord, Lord Goodhart, which, as he explained, would place a form of embargo on including the offences of racism and xenophobia in the list until the member states of the European Union have adopted a framework decision on them. The noble Lord has made an important point and I am grateful to him for today putting on the record what he understands is the updated status of the debate on those matters. It is important that we learn from the Minister how far those discussions have progressed.

3.45 p.m.

The Minister of State, Home Office (Baroness Scotland of Asthal): I am grateful to both the noble Baroness and the noble Lord, Lord Goodhart, for tabling these amendments, thus giving us the opportunity to consider again—as the noble Baroness has invited us to do—how we define what would constitute an extradition offence under Part 1. I believe that I am in a position to give noble Lords some good news as regards including the list of generic offence categories on the face of the Bill.

As the noble Baroness has just indicated, this is a topic which has been raised a number of times during the passage of this Bill through another place and in this House. There is no doubt it is clearly and rightly a matter of considerable interest. Perhaps I may first consider the effect of Amendments Nos. 140, 143, 145, 263 and 268 which pertain to the list of offences as set

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out in Article 2.2 of the framework decision on the European arrest warrant. I intend then to turn to Amendments Nos. 142 and 269, which focus specifically on the racism and xenophobia offence categories. I understand that there is great interest in these matters and therefore I shall seek to explain fully our reasoning in relation to the amendments. In that way I hope to satisfy the probing nature of the amendments and to give both the noble Baroness and the noble Lord no just cause to return to these issues on Report.

The effect of the first of these amendments is relatively clear. They import the list of 32 generic offences categories set out in Article 2.2 of the framework decision on to the face of the Bill and provide that any changes to those categories would be subject to approval by both Houses under the affirmative resolution procedure. As I am sure your Lordships are aware, these changes were recommended by the Home Affairs Select Committee and were tabled in similar terms for debate in another place. It has been our contention that the Bill makes it clear that the list of offence categories to which the dual criminality test is sometimes disapplied is contained in Article 2.2 of the framework decision. Clause 65 makes this quite clear, and we do not believe that it gives rise to confusion or ambiguity.

Furthermore, we want to ensure that the Bill contains the necessary flexibility to deal with any changes in the list. Although there are no plans afoot to alter the list, it is worth stressing that any changes would require a unanimous decision of the Council. That has been mentioned, rightly, by the noble Lord, Lord Goodhart, and noble Lords will know that that means each and every state being in agreement. I do not think there is any danger that changes which would add items to the list which were contentious or trivial would come about with any degree of ease. Nevertheless, we recognise that there are strong feelings on this matter. In the light of that, we intend to bring forward government amendments, at a later stage, which will set out on the face of the Bill the 32 offence categories listed in the framework decision. We will also need to find some way to accommodate any changes to the list—unlikely though I believe such changes to be—without the need for further primary legislation. We are still considering how best this can be achieved. I hope that noble Lords will welcome this as good news.

I should now like to turn briefly to Amendments Nos. 142 and 268 which seek to amend the racism and xenophobia category. I am very grateful to the indication given by the noble Lord, Lord Goodhart, that he is not hostile to the inclusion of xenophobia in this clause per se.

The list is significant, for it sets out the categories of offences—and they are broad headings, not specific crimes—for which the dual criminality test is disapplied. This is in line with one of the fundamental principles of Part 1—that a person should not be able to escape justice just because they manage to skip

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across the border. I was very grateful to hear that echoed in the comments of the noble Baroness, Lady Anelay.

I recognise, as did the noble Lord, Lord Goodhart, that the United Kingdom does not use the term "xenophobia" in its legislation. However, I respectfully suggest that it is not for us to pass judgment on the type of offences contained in other EU countries' legislation. That is not in the spirit of mutual recognition and co-operation. We have traditionally respected each other's cultures, laws and traditions and have understood why things are framed differently.

Removing xenophobia from the list, as Amendment No. 269 would do, reinstates the dual criminality test for offences classed as xenophobic in other member states. This means that a person who has committed a xenophobic offence such as Holocaust denial in Germany could not be extradited because that is not recognised as an offence in this country. We really do not see why that should be so.

Before any noble Lord seeks to pick me up for drawing on the example of Holocaust denial, which I shall be using again in a moment, perhaps this might be a convenient moment to draw your Lordships' attention to the annexe to the report of the Home Affairs Committee on the Bill, which was published last December. It contains the Government's response to some questions which the Committee had earlier sent. Included in these is the list of responses from certain other EU member states to the question of which offences in their countries fell within the definition of racism and xenophobia. I think noble Lords will find it quite illuminating.

It also explains why we so often draw on the Holocaust denial example. There are quite simply very few offences in the racism and xenophobia category that we would not recognise under our own law. We call the offences by a different name, but the substance of the issues are very clearly spelt out in our legislation. It is right to remind ourselves that in relation to racism and issues involving culture of that nature, Britain has a very proud tradition and a very fine legislative framework with which to deal with them.

Amendment No. 142 seeks to restrict the removal of dual criminality for racist and xenophobic crimes to those covered by the framework decision on combating racism and xenophobia when it is approved. In the mean time, all offences which fall under the racism and xenophobia category will be subject to a dual criminality test. While I can appreciate that it is desirable to seek some measure of commonality in law on racism and xenophobia across the EU, the framework decision on combating racism and xenophobia is a separate instrument from the framework decision on the European arrest warrant, which I think the noble Lord, Lord Goodhart, fully recognised. Not only that, but the framework decision is designed to set only some minimum standards. If a member state feels the need for a law which goes above and beyond those covered by the framework decision on combating racism and xenophobia and a British

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citizen goes to that country and, while there, commits the offence, he or she should not be exempt from extradition.

I am sure all Members of the Committee can understand why, for all sorts of historical reasons, Germany feels that it must have an offence of Holocaust denial on its statute book when most of the rest of Europe does not. If a British person goes to Germany with deliberate intent to deny the Holocaust—and we can all think of a certain historian, although I use that term in the loosest possible sense, who might want to do that—I see no reason of principle why we should refuse extradition if he manages to come back to Britain before the German police can arrest him.

In addition, I fear—and this has been hinted at by the noble Lord, Lord Goodhart—that there is a logjam on the measure to combat racism and xenophobia and progress could be stalled indefinitely. I made reference to this at Second Reading. That being the case, I am sure noble Lords will agree that it is not desirable to reinstate the dual criminality test for all offences which fall under the racism and xenophobia heading on the off-chance that a separate EU instrument may be approved.

No doubt we shall return to these issues, but in the mean time, I repeat that we intend to bring forward amendments to put the list of 32 generic offences categories on the face of the Bill. I hope I have said enough about the clauses in relation to xenophobia to reassure your Lordships in relation thereto.

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