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Lord Filkin: We are still receiving some responses but they have slow delivery dates. As is usually the way, one is not officious about those things. They will therefore be available on the Home Office website by the end of September.

To date, we have received about 22 responses and given what I have just said that number may have risen. Of those, two have stated that they wish to preserve their confidentiality.

With regard to the noble Baroness's last point—I have sufficient recollection of the issues which arose before the summer holidays—it was rightly an important one in Committee. We are concerned that officers do not conduct fishing trips or investigations, as we have signalled. We recognise that this requires further clarification. Almost all respondees have requested this. We will certainly give the matter consideration. I am therefore pleased to accept the thrust of the noble Baroness's questioning, to take it away and to come back when we produce the draft. We should be able to show our likely responses before the Bill leaves the Lords, which I hope will be helpful.

On Question, amendment agreed to.

Clause 172, as amended, agreed to.

Baroness Carnegy of Lour moved Amendment No. 248:

(1) The Scottish Ministers must issue codes of practice in connection with—
(a) the exercise of the powers conferred by this Part;
(b) the retention, use and return of anything seized or produced under this Part;
(c) access to and the taking of photographs and copies of anything so seized or produced.
(2) If the Scottish Ministers propose to issue a code of practice under this section, they must—
(a) publish a draft of the code;
(b) consider any representations made to them about the draft;
(c) if they think it appropriate, modify the draft in light of any such representations.
(3) The Scottish Ministers must lay the code before the Scottish Parliament.
(4) When they have done so they may bring the code into operation by order.
(5) The Scottish Ministers may revise the whole or any part of a code issued under this section and issue the code as revised; and subsections (2) and (4) apply to such a revised code as they apply to the original code.
(6) A code issued under this section is admissible in evidence in proceedings under this Act and must be taken into account by a judge or court in determining any question to which it appears to the judge or the court to be relevant.
(7) The power conferred by subsection (4) on the Scottish Ministers to make orders shall be exercisable by statutory instrument.

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(8) A statutory instrument containing an order under subsection (4) shall not be made unless a draft of the instrument has been laid before, and approved by resolution of, the Scottish Parliament."

The noble Baroness said: We have been discussing Clause 172, which requires the Secretary of State to issue codes of practice relating to this part of the Bill. But elsewhere, the Bill states that Clause 172 does not apply to Scotland. I can find no explanation of that either in the Government's Explanatory Notes on the Bill as a whole or in the Home Office notes on Scotland which the Minister kindly supplied for us.

The Law Society of Scotland feels that there should be a code in Scotland in much the same way as for the rest of the United Kingdom. I expect that the Minister may refer to the reply he gave at the end of business on the eighth day at col. GC164. He explained in another context that in all cases other than under Clause 5, police officers will be required to act directly under the instructions of the Crown Office and the procurator fiscal and that that will include questions of search.

If that explanation were part of the Minister's reply today, I feel that the Law Society of Scotland must be aware of it. I had not spotted his answer until recently because I had gone home and my noble friend Lady Anelay moved the amendment. However, the Law Society may feel, as do I, that it might be helpful for the police in Scotland to have a code of practice in their hand when dealing with this part of the Bill.

There is no reason why a code of practice should not exist. Obviously, it would not be that which appears in the amendment, because that assumes that the supervision is not carried out by the procurator fiscal. Is it impossible to require a code of practice under the circumstances prescribed in the Bill for Scotland? In such a tricky operation, the police will need something to refer to. I shall be interested to hear the Minister's reply. I beg to move.

The Earl of Mar and Kellie: In the context of devolution, it is becoming increasingly important to make certain that everyone knows exactly what is to happen. It is not directly relevant to extradition, but I cite the false crisis that has blown up over the use of Dungavel House, part of the Home Office's immigration system and a former semi-open prison now used as—I think this is the terminology—a removal centre. In the past fortnight or so, many Scottish parliamentarians have clearly got themselves into a considerable tangle about that.

Hoping that we will not get ourselves into a tangle over the Bill in future, I think that it would be very useful if a code of practice had to, first, be constructed for Scottish use and, secondly, go through the Scottish Parliament. That would mean that there was less chance of muddle, misunderstanding and false crises in future.

[The sitting was suspended for a Division in the House from 4.12 to 4.22 p.m.]

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Lord Filkin: In practice, this is a matter for the Scots. Under the devolution settlement, it is for them to decide how they want to undertake these issues.

The fuller answer is that Clause 172 extends only to England, Wales and Northern Ireland for that reason. In Scotland, the power in Part 4 of the Bill will be exercised under the power of the Crown Office and the procurator fiscal service. Section 17(3) of the Police (Scotland) Act 1967 makes it clear that police officers must comply with the lawful instructions of the procurator fiscal in the investigation of crime. The procurator fiscal must apply to the sheriff for a warrant to search under Clause 155 and is responsible for the decision to deliver up any evidence seized to the requesting state. By virtue of Section 17 of the Police (Scotland) Act 1967, the chief constable of any area, in directing the constables of the police force in relation to the investigation of offences, must comply with the lawful instructions of the procurator fiscal.

Secondly, Section 48(5) of the Scotland Act provides that any decision of the Lord Advocate, in his capacity as head of the system of criminal prosecution is to be taken by him independently of any other person. Therefore, there might be an area of debate about whether a code of practice issued by Scottish Ministers to the police might be seen as an interference in the role of Lord Advocate.

At the practical level, I should signal that there are relatively few extradition requests to Scotland. For that reason, the tendency has been that the Lothian and Borders Police Force carries out the work for all of Scotland. One can see the sense in that: one force develops out of a limited case the experience and expertise in the matter.

In short, the issue is one for the Scots to decide whether a code of practice is necessary. We have received no indication that they think that, but no doubt this debate will alert them to consider the matter. I would doubt that that were the case.

Baroness Carnegy of Lour: I thank the Minister for that answer. This is an interesting issue. As my noble friend Lord Mar and Kellie said, devolution is gradually being worked through and that involves tight, complicated arrangements.

I am a little surprised to learn that the Lothian police will search a house in North Uist. I am not sure whether that is the case, but perhaps it is.

Lord Filkin: I am so advised.

Baroness Carnegy of Lour: That is interesting. I had not caught on to that point. It is understandable because in law the arrangements of the police in these and most circumstances are made by the Crown Office through the procurator fiscal. That clears up the matter.

I would like to go back to the Law Society of Scotland to see why it put forward the amendment. It may believe that the police, whoever they are, may need a code of practice. However, it sounds as though it should not be prescribed in the Bill. I shall return to

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them and if there is a further issue to raise I shall do so on Report. In the meantime, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clauses 173 to 175 agreed to.

4.30 p.m.

Lord Davies of Oldham moved Amendment No. 248A:

    Before Clause 176, insert the following new clause—

(1) This section applies in relation to extradition—
(a) from a British overseas territory to a category 1 territory;
(b) from a British overseas territory to the United Kingdom;
(c) from a British overseas territory to a category 2 territory;
(d) from a British overseas territory to any of the Channel Islands or the Isle of Man.
(2) An Order in Council may provide for any provision of this Act applicable to extradition from the United Kingdom to apply to extradition in a case falling within subsection (1)(a) or (b).
(3) An Order in Council may provide for any provision of this Act applicable to extradition from the United Kingdom to a category 2 territory to apply to extradition in a case falling within subsection (1)(c) or (d).
(4) An Order in Council under this section may provide that the provision applied has effect with specified modifications."

The noble Lord said: In moving government Amendment No. 248A, I shall speak also to Amendment No. 248B and explain why we seek to remove Clauses 176 to 180 from the Bill.

These are drafting amendments. At present, Clauses 176 to 180 provide for extradition arrangements between British Overseas Territories and the rest of the world. The effect of these amendments is to replace five clauses with two. I can assure the Committee that in seeking to make these changes we are not in any way changing the policy or effect of the legislation as it would apply to the overseas territories.

For the record, I should explain the policy. Gibraltar, as a party to the European arrest warrant, will apply Part 1 procedures. All our other overseas territories will apply Part 2 in all their extradition arrangements, including those with the UK. We simply concluded that, in the name of clear and concise drafting—which I am sure the Committee will appreciate—what was already in the Bill could be improved upon. This is the result of our improvement. I beg to move.

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