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Lord Davies of Oldham: I am grateful to the noble Baroness for introducing this amendment because it gives us a chance to clarify the position. I should like to reassure her that the concept of "with specified modifications" is very minor in the context of the Bill. The noble Baroness is right to query the point as, indeed, did the Delegated Powers and Regulatory Reform Committee, although it is important to point out that the Committee's comments were made in respect of a completely different part of the Bill which we have yet to reach. We regard the issues in this part of the Bill as very minor indeed.

Clause 170 allows for some specific provisions in the Police and Criminal Evidence Act and its Northern Ireland equivalent to be applied in extradition cases. The power to apply these provisions with specified modifications is necessary simply to take account of the fact that we needed to distinguish between extradition cases and normal domestic ones. All these sections in PACE and the Northern Ireland equivalent refer repeatedly to the terms "offence" and "serious arrestable offence". Sections 54(4)(c), 52(6)(a), 58(a), (b) and (c) of PACE are just a few examples.

One of the key findings in the judgment of Rottman, which is the case that has caused us to spell out police powers on the face of the Bill, was that PACE in its unmodified form could refer only to offences committed in the UK or over which the UK takes extra-territorial jurisdiction. A reference to an offence in PACE cannot refer to offences committed overseas.

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Accordingly, unless we make these minor modifications, these sections of PACE cannot apply in extradition cases, which would deny important safeguards to fugitives, as the noble Baroness indicated.

That is why we believe that we need the power to apply the relevant sections of PACE with specified modifications. However, I can reassure your Lordships that we will be applying the appropriate sections with only the minimum of modifications required to make them work in the extradition context. I can say that with considerable confidence because if your Lordships care to look at the police code of practice which we put out for consultation earlier this month, you will see that all of it is covered in Chapter 1.

The draft codes cover all these areas—including the right to have a person informed when arrested and the right to legal advice—in considerable detail and mirror very closely what happens in domestic cases. We would, of course, welcome any comments on the draft code, but I hope that the Committee will be reassured that by the inclusion of the words "with specified modifications", we are not seeking to make any substantive changes.

The sections in PACE and the Northern Ireland equivalent that we are talking about provide important safeguards for those arrested. The right to legal advice and the right to have a person informed of your arrest are clearly very significant. Similarly, it is very important that all searches—intimate or otherwise—are conducted in accordance with approved procedures, and that a proper record is kept of them.

It would be a pity if these provisions could not apply in extradition cases. That would be the position unless we could make the necessary modifications. I hope the Committee will therefore see why the amendment is not attractive. Nevertheless, it has given me the opportunity to clarify the position, I hope to the satisfaction of the Committee.

4 p.m.

Baroness Anelay of St Johns: I am grateful to the Minister for casting some light on that and, in particular, for giving the commitment that the Bill means that the Government would not be making, as he said, substantive changes while providing the protections required. That is important. He referred to Chapter 1 of the code of practice. I will not respond to that at the moment, as we deal with the code of practice as a separate matter in the next amendment. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 170 agreed to.

Clause 171 agreed to.

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Clause 172 [Codes of practice]:

Lord Filkin moved Amendment No. 247A:

    Page 94, line 29, at end insert—

"(8) If the Secretary of State publishes a draft code of practice in connection with a matter specified in subsection (1) before the date on which this section comes into force—
(a) the draft is as effective as one published under subsection (2) on or after that date;
(b) representations made to the Secretary of State about the draft before that date are as effective as representations made to him about it after that date;
(c) modifications made by the Secretary of State to the draft in the light of any such representations before that date are as effective as any such modifications made by him on or after that date."

The noble Lord said: I hope that this will be seen as an utterly procedural amendment by the Government. Its purpose is to provide that the consultation exercise on the code of practice on police powers in extradition cases will be valid even though it will have taken place before Royal Assent. When the Bill was debated in another place, the Official Opposition spokesman asked that publication of the code of practice be as early as possible, and we were certainly pleased to make it so. The code was published on 9th June and has been distributed widely for comment to every police force, the Court Service, the Bar Council, the Magistrates' Association and others. The consultation closed two days ago on 8th September, although as discussed we have 12 weeks for people to comment.

The thrust of the purpose of the amendment is to put beyond doubt that the consultation and the draft code of practice are still valid, even though they took place before Royal Assent. The amendment is no more and no less than that. I beg to move.

Baroness Anelay of St Johns: I certainly welcome the amendment and, of course, the publication of the draft codes that took place this summer. As the Minister stated in his letter of 4th June, that meets the requests made by my honourable friend Nick Hawkins. It is right that the codes should be ultimately subject to affirmative procedure when they come before this House. I am glad that the Government have made that clear.

The Minister mentioned that the consultation finished on 8th September, two days ago. I understand from the Government's press releases and the draft code of practice itself that the Government's response is expected to be published in October. Is that still the Government's intention? Obviously, it would be very helpful to the Committee to know that the Government will give a response before the Bill leaves this House, because we will be able to take that into constructive consideration before it passes to another place.

In the meantime, might the Minister be able to answer one or two administrative questions on the code of practice that occurred to me as I read through it this summer in our so-called holiday, before we came back to the joy of this Bill? When will the responses of the consultees be made available on the Internet? I confess that I have not looked today, so they may

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already be there and I shall be given good news. I notice that, as always in these cases, the Government made it clear that if any consultees did not wish their responses to be made public they should so signify. Are the Government able to tell us whether any consultees have given that indication, or whether we are likely to see all the responses?

I was intrigued by some of the questions in the code of practice, particularly that on clarity on page 8. The Government said that they would welcome comments on whether the distinction between,

    "investigation of the extradition offence",


    "obtaining evidence for the prosecution of the extradition offence",

in Chapter 2, paragraph 1.4, needs further explanation. That is in respect of search-and-seizure warrants and production orders. Paragraph 1.4 states that:

    "Searches under warrant should only be conducted for the purposes of obtaining evidence for the prosecution of the extradition offence and officers may not conduct searches which in any way constitute investigation of that offence".

The Minister will be well aware that I raise the matter because of the strong discussions that we had on the point earlier in the Bill, when Members of the Committee expressed concerns about it. The way in which Clause 2 is drafted makes it possible for proceedings to be launched when the overseas authority seeks extradition for a process that in this country would not readily be recognised as one where the accused faces charges. To us it always appears as though there is an ongoing investigation. That lack of certainty of prosecution has been translated into the consultation document, we think, in Chapter 1, paragraph 2.1.ii, which states that an officer may make an arrest under Section 4 where the warrant contains information that the person has been accused or convicted of an offence in the category 1 country.

The whole point at issue, both in another place and here, has been that more than accusation must be required. That is a detailed query on the code of practice. I raise it now because we are in Grand Committee, where we can probe. I do not expect the Minister to give me a full answer today. I do it because we have a two-week break in which I hope that his Bill team can consider the matter. I am certainly not doing it simply to prove that I have read the document during the lovely summer holiday, but it is something that we will need to consider very carefully when we come back to such matters on Report.

I wonder whether the Minister will be able to indicate—it is unlikely today, but at a later stage and before October—what the response has been to the issue in chapter 2, paragraph 1.4, regarding the clarity of the difference between obtaining evidence of prosecution as opposed to investigation, and whether responses have acknowledged the different systems of judicial procedure overseas in that respect. That is

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something that we will need to home in on when we come to Report. However, I repeat the welcome that I gave to the amendment.

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