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Baroness Anelay of St Johns moved Amendment No. 6:
- Leave out Clause 1.
The noble Baroness said: My Lords, in speaking to the previous group of amendments, I made it clear that I was putting forward to the House my arguments for both that group and this one, led by Amendment No. 6. This group seeks to delete from the Bill the whole of Part 1. I have given my arguments about why we feel that the European arrest warrant is not acceptable in its present form. When I have given the Minister the opportunity to speak, I will respond to her remarks, but I will not test the patience of the House further at this stage. I beg to move.
Baroness Scotland of Asthal: My Lords, everything has been said in relation to this matter. I regret that I am unable to accept the amendment moved by the noble Baroness and do not intend to trouble the House by saying any more.
Baroness Anelay of St Johns: My Lords, I do intend to trouble the House by testing the opinion of the House.
5.13 p.m.
On Question, Whether the said amendment (No. 6) shall be agreed to?
Their Lordships divided: Contents, 96; Not-Contents, 165.
Anelay of St Johns, B.
Arran, E.
Astor, V.
Astor of Hever, L.
Attlee, E. [Teller]
Blackwell, L.
Bridgeman, V.
Brooke of Sutton Mandeville, L.
Brougham and Vaux, L.
Caithness, E.
Campbell of Alloway, L.
Carlisle of Bucklow, L.
Carnegy of Lour, B.
Crickhowell, L.
Cumberlege, B.
Denham, L.
Dixon-Smith, L.
Donaldson of Lymington, L.
Dundee, E.
Eden of Winton, L.
Elton, L.
Ferrers, E.
Fookes, B.
Gardner of Parkes, B.
Geddes, L.
Gilmour of Craigmillar, L.
Glentoran, L.
Hanham, B.
Hanson, L.
Hayhoe, L.
Higgins, L.
Hooper, B.
Howe, E.
Howell of Guildford, L.
James of Holland Park, B.
Jopling, L.
Kimball, L.
King of Bridgwater, L.
Kirkham, L.
Knight of Collingtree, B.
Lamont of Lerwick, L.
Lane of Horsell, L.
Lang of Monkton, L.
Lindsay, E.
Lucas, L.
Luke, L.
Lyell, L.
McColl of Dulwich, L.
Mancroft, L.
Marlesford, L.
May of Oxford, L.
Miller of Hendon, B.
Monro of Langholm, L.
Monson, L.
Montrose, D.
Murton of Lindisfarne, L.
Naseby, L.
Noakes, B.
Norton of Louth, L.
O'Cathain, B.
Park of Monmouth, B.
Pearson of Rannoch, L.
Peel, E.
Peyton of Yeovil, L.
Plumb, L.
Plummer of St. Marylebone, L.
Rawlings, B.
Reay, L.
Rees, L.
Renton, L.
Renton of Mount Harry, L.
Roberts of Conwy, L.
Rogan, L.
Rotherwick, L.
Ryder of Wensum, L.
Saltoun of Abernethy, Ly.
Sanderson of Bowden, L.
Seccombe, B. [Teller]
Selkirk of Douglas, L.
Selsdon, L.
Sharples, B.
Shaw of Northstead, L.
Shrewsbury, E.
Skelmersdale, L.
Stevens of Ludgate, L.
Stewartby, L.
Stoddart of Swindon, L.
Strathclyde, L.
Swinfen, L.
Thomas of Gwydir, L.
Trumpington, B.
Ullswater, V.
Waddington, L.
Wakeham, L.
Wilcox, B.
Wolfson, L.
Acton, L.
Addington, L.
Alton of Liverpool, L.
Amos, B. (Lord President)
Andrews, B.
Archer of Sandwell, L.
Ashton of Upholland, B.
Avebury, L.
Bach, L.
Barker, B.
Barnett, L.
Bassam of Brighton, L.
Berkeley, L.
Bernstein of Craigweil, L.
Billingham, B.
Blackstone, B.
Bledisloe, V.
Borrie, L.
Boston of Faversham, L.
Bradshaw, L.
Brennan, L.
Brett, L.
Brooke of Alverthorpe, L.
Brookman, L.
Campbell-Savours, L.
Carter, L.
Chan, L.
Christopher, L.
Clark of Windermere, L.
Clement-Jones, L.
Clinton-Davis, L.
Colville of Culross, V.
Corbett of Castle Vale, L.
Crawley, B.
Dahrendorf, L.
David, B.
Davies of Coity, L.
Davies of Oldham, L. [Teller]
Desai, L.
Dholakia, L.
Dixon, L.
Donoughue, L.
Dormand of Easington, L.
Dubs, L.
Elder, L.
Evans of Parkside, L.
Evans of Temple Guiting, L.
Falconer of Thoroton, L. (Lord Chancellor)
Falkland, V.
Farrington of Ribbleton, B.
Faulkner of Worcester, L.
Filkin, L.
Finlay of Llandaff, B.
Fitt, L.
Gavron, L.
Gibson of Market Rasen, B.
Golding, B.
Goldsmith, L.
Goudie, B.
Gould of Potternewton, B.
Graham of Edmonton, L.
Greengross, B.
Grocott, L. [Teller]
Guildford, Bp.
Harris of Haringey, L.
Harris of Richmond, B.
Harrison, L.
Haskel, L.
Hogg of Cumbernauld, L.
Hollis of Heigham, B.
Holme of Cheltenham, L.
Hooson, L.
Howie of Troon, L.
Hoyle, L.
Hughes of Woodside, L.
Hunt of Kings Heath, L.
Irvine of Lairg, L.
Islwyn, L.
Jay of Paddington, B.
Jones, L.
Jordan, L.
King of West Bromwich, L.
Kirkhill, L.
Lester of Herne Hill, L.
Levy, L.
Linklater of Butterstone, B.
Lipsey, L.
Livsey of Talgarth, L.
Lofthouse of Pontefract, L.
Macdonald of Tradeston, L.
McIntosh of Haringey, L.
McIntosh of Hudnall, B.
MacKenzie of Culkein, L.
Mackenzie of Framwellgate, L.
Mackie of Benshie, L.
Maclennan of Rogart, L.
Mallalieu, B.
Mar and Kellie, E.
Marsh, L.
Mason of Barnsley, L.
Massey of Darwen, B.
Merlyn-Rees, L.
Methuen, L.
Miller of Chilthorne Domer, B.
Mitchell, L.
Morris of Aberavon, L.
Morris of Manchester, L.
Newby, L.
Nicol, B.
Oakeshott of Seagrove Bay, L.
Parekh, L.
Patel, L.
Patel of Blackburn, L.
Pendry, L.
Pitkeathley, B.
Plant of Highfield, L.
Prys-Davies, L.
Puttnam, L.
Radice, L.
Ramsay of Cartvale, B.
Randall of St. Budeaux, L.
Razzall, L.
Rea, L.
Redesdale, L.
Rendell of Babergh, B.
Rennard, L.
Richard, L.
Rodgers of Quarry Bank, L.
Rooker, L.
Roper, L.
Russell-Johnston, L.
St. John of Bletso, L.
Sandberg, L.
Scotland of Asthal, B.
Sharman, L.
Sharp of Guildford, B.
Sheldon, L.
Shutt of Greetland, L.
Simon, V.
Smith of Clifton, L.
Smith of Gilmorehill, B.
Smith of Leigh, L.
Stallard, L.
Strange, B.
Symons of Vernham Dean, B.
Taylor of Blackburn, L.
Temple-Morris, L.
Thomas of Gresford, L.
Thornton, B.
Tope, L.
Turner of Camden, B.
Varley, L.
Walmsley, B.
Walpole, L.
Warner, L.
Warwick of Undercliffe, B.
Watson of Invergowrie, L.
Weatherill, L.
Wedderburn of Charlton, L.
Whitaker, B.
Whitty, L.
Wilkins, B.
Williams of Elvel, L.
Winston, L.
Woolmer of Leeds, L.
Resolved in the negative, and amendment disagreed to accordingly.
5.24 p.m.
Baroness Anelay of St Johns moved Amendment No. 7:
- After Clause 1, insert the following new clause—
The noble Baroness said: My Lords, Amendment No. 7 would introduce a new clause after Clause 1 entitled "Authority to proceed". Its objective is to provide a backstop power in instances in which extradition is requested for an offence that is not an offence in the United Kingdom.
At Second Reading and in Committee, I rehearsed the reasons why we thought that this aspect of the Bill—the removal of the dual criminality requirement for the 32 generic offences set out in the European framework list—was of most concern to British citizens. I shall not repeat the arguments. In brief, we have a dual criminality requirement in Part 2 and a requirement for the involvement of the Secretary of State in every decision on extradition. That is the appropriate procedure for Part 2, but it should also apply to Part 1.
As the Government will note, the amendment has changed substantially since Grand Committee. We listened to the criticisms made by some Members of the Committee. In particular, the noble Lord, Lord Filkin, criticised the fact that, under our amendment, it would be the National Criminal Intelligence Service or, in Scotland, the Crown Office that would decide whether the warrant had been issued for an offence that had an equivalent in the UK. The noble Lord said:
We took both those points into consideration when we drafted the amendment. Noble Lords will appreciate that the key alteration that we have made is that every extradition request received by NCIS or the Crown Office must be referred to the High Court or, in Scotland, to the Court of Session. The court will then decide whether dual criminality applies and will grant authority to proceed. If dual criminality does not apply, the court may still allow the request to proceed, if it deems that that would be in the interests of justice, as subsection (3) says. The amendment picks up the wording employed in the Extradition Act 1989.
The flexibility that the amendment would give the High Court would be a welcome addition to the Bill. It has been recommended to us by specialist extradition lawyers whom we consulted in the interim between Grand Committee and Report. In subsection (4), we have also added a provision that states that the final decision made by the High Court will not be subject to judicial review or appeal. We hope that that might counter the argument that any decision made about proceeding with an extradition request could fall foul of judicial review, causing further delay.
Because of that new procedure, it is right that we should keep an annual report in the Bill. That forms part of the amendment. The onus would be on the Lord Chancellor or whoever replaces him to provide details of how that aspect of the Bill works. That would not be too hefty a task; there are roughly 100 extradition requests every year. Even with the increases that the Government anticipate, as a result of the simplification and extension of surrender procedures, it should not cause too great a problem for the Department for Constitutional Affairs or whoever takes on the work.
Although the number of extradition requests is relatively small, it is right to get the procedure as good as it can be. That is why we have tabled an amendment that is different from the one that we tabled in Committee. We hope that it might find favour this time round. I beg to move.
"PART 1 WARRANT: AUTHORITY TO PROCEED
(1) When the designated authority receives a Part 1 warrant it shall make an application to the High Court or, in Scotland, to the Court of Session, for authority to proceed with the warrant under this section.
(2) The court must make an order giving authority to proceed with the warrant under this Part if it is satisfied that the person in respect of whom the warrant is issued faces charges, or has been convicted of, an offence in a category 1 territory which involves conduct which, if it occurred in or outside the United Kingdom, would constitute an offence under the law of the United Kingdom.
(3) In any other case, the court may make an order giving authority to proceed with the warrant under this Part of this Act if, having regard to all the circumstances, it is satisfied that it is in the interests of justice to do so.
(4) A decision of the High Court in an application, or the Court of Session in an application, to make an order giving authority to proceed under this section shall be final and shall not be subject to appeal.
(5) A person shall not be dealt with under this Part of this Act except in pursuance of an order made under subsection (2) or (3).
(6) The Lord Chancellor shall make an annual report to both Houses of Parliament on the cases in which the High Court has exercised its discretion under subsection (3) to make an order giving authority to proceed.
(7) The following provisions of this Part are subject to the provisions of this section."
"So we have a dual criminality test that was previously a matter for the courts being applied by NCIS—or the Crown Office, in Scotland. That seems slightly curious".—[Official Report, 9/6/03; col. GC 5.]
Secondly, the noble Lord, Lord Filkin, had trouble with the referral to the Secretary of State of any extradition request to which dual criminality did not apply. His criticisms were based on the fact that it was unclear in what circumstances the Secretary of State would refuse such a request and that his decision would be subjective and could be subject to judicial review, something that we all try to avoid.
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