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Baroness Anelay of St Johns: My Lords, I added my name to the amendments and I strongly support them. I agree with the noble Lord, Lord Goodhart, that they are of crucial importance. They respond properly to the criticism made of the Government's proposals in this part of the Bill by the Home Affairs Committee in another place and organisations such as Liberty and Justice.

We find further disagreement about the whole issue of dual criminality but, if we are going down that route, the amendment offers the minimum requirement of protection. As the noble Lord pointed out, by accepting the amendment we would do nothing to contradict the framework decision itself. He brought forward a very strong and convincing argument, so I do not intend to repeat the excellent case made for the amendments.

Lord Clinton-Davis: My Lords, I worry about the attitude that my noble friend will take. The case argued by the noble Lord, Lord Goodhart, and emphasised by the briefing from Liberty and Justice—I have not seen that, but he referred to it—is very persuasive. Twelve months is much too short. It indicates that the Government do not really think that the issues are very serious, but they are.

The amendment suggests that we have a period of three years as a break-off point. The Government should contemplate that. I hope that my noble friend

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will say that she and her officials will think again about the matter. It is not an issue of enormous importance, but it is of some.

A provision in the Bill states,

    "for a term 12 months or a greater punishment".

My noble friend can refer to that. However, I am worried about a period of only 12 months. That gives the wrong signals. I would prefer to see the amendment accepted by my noble friend.

I am not sure about the second amendment; nor has the noble Lord made a strenuous case for it. While I remain to be persuaded about that, it is important to go back and see what Amendment No. 161 stands for. The noble Lord has made a potent case for it. The least that I would expect my noble friend to say, here and now, is that she is willing to think again about it.

6.30 p.m.

Viscount Bledisloe: My Lords, am I right in thinking that "gold-plating downwards"—if one can do that—is unilateral and that the territory in question can ask us to extradite a man for a non-dual-criminality offence because its maximum penalty is 15 months, but that if we ask that territory to extradite in similar, non-dual-criminality circumstances, it could say, "Oh, well, we only extradite in those circumstances for a three-years' offence"? If it is unilateral in that way—I see the noble Baroness nodding—why on earth are we being so unilaterally generous?

Baroness Carnegy of Lour: My Lords, the amendment of the noble Lord, Lord Goodhart, attempts, at least partially, to alleviate the fear of the public about Part 1 of the Bill. I regard that as one of our main aims on the Opposition Benches. The public—at least those who have thought about it—fear that people may be extradited for an offence that they did not know was an offence when they committed it. The noble Lord, Lord Goodhart, made the simple point that an offence which has a penalty of three years is less likely to give rise to that misapprehension than would one of 12 months. An offence that has a threshold of three years is serious. People are more likely to realise that they are committing a serious offence, even if they are not aware that it is an offence in this country or know that it is not.

It is an important and helpful amendment. I hope that the Government will accept it or say that they will draft a similar one. The House of Commons should certainly recognise that point as it represents members of the public who have those fears. I therefore hope that the Government will accept the amendment.

Lord Stoddart of Swindon: My Lords, the noble Baroness will understand that some of us at least are completely opposed to the European arrest warrant and to Part 1 of the Bill. I am amazed that the Minister, having recommended the framework directive, then "unrecommends" it by adopting something different.

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The noble Lord, Lord Goodhart, has made the case for his amendment extremely well and I do not wish to elaborate on it too much. As he said, Article 2.2 of the framework agreement applies to offences of three years or more. I simply do not know why the Minister and the Government should want to go beyond that. It puts the citizens of our country in a worse position than that of other countries. I would not have thought that that is what the Government wanted to do; nor would I have thought that the Government wanted to confirm everybody's suspicions about virtually every European directive; that is, that the Government and the Civil Service in this country take the opportunity to "gold-plate" it and make it far worse for our citizens than for those of other countries.

Therefore, I hope that if the noble Baroness does not accept the amendment, she will at least say that the strength of feeling for the amendment, and against what the Government are proposing, is such that, before Third Reading, she will look at it again and come back with her own amendment. If she does not, I hope that the noble Lord, Lord Goodhart, will press his amendment today and that the House will agree to it.

Baroness Scotland of Asthal: My Lords, I thank my noble friend for those helpful comments, because they give me an opportunity to respond. The noble Lord, Lord Goodhart, called it "gold-plating" and said that it was too early for us to move to a more generous accommodation. He was echoed by the noble Viscount, Lord Bledisloe, who also mentioned gold-plating. That theme echoed around the House.

I shall be clear about the framework document. That document sets minimum standards; that is, the least that we have agreed to do. It does not prevent us from going further if we in this country think that it inures to the benefit of our system and our individuals. It is our Bill; we set the standards which we deem to be appropriate for our country. Therefore, we must legislate for what we believe is in the best interests of the United Kingdom. If that involves exceeding our international obligations, then so be it.

Why should our approach in implementing European measures be that the UK should always do only the bare minimum that is required? We set our own standards. On occasions, we have led the pack. We lead the pack in our legislation on race. Our race relations legislation is probably the most robust in the EU. Noble Lords will know that many countries do not share our belief that incitement to racial hatred is a punishable offence. In discussing reciprocity, let us take the example of Portugal. I am not suggesting for a moment that a Portuguese individual would do it, but if someone were to come here from Portugal, were to incite racial hatred and were to create a great deal of difficulty and mayhem and then depart, if we sought total complimentarity as noble Lords suggest, others could say that it is not an offence in Portugal to incite others to racial hatred.

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We need to be a little careful about what we are saying here. We wish people to obey our laws when they come to this country. We will not accept, for example, that that they should be able to incite racial hatred with impunity in this country because they do not know that it is an offence so to do in this country. There is a very practical element to all of this. As we previously pointed out, in contrast to the United Kingdom, other countries have difficult and different regimes. I cite as an example the fact that not all EU countries have an offence of fraudulent trading. So we regard these matters as of real importance.

I remind your Lordships that the partial removal of the dual criminality requirement applies only in respect of EU countries—mature democracies with established and fair criminal justice systems. It is also worth mentioning that if any part of the conduct in question has occurred in the United Kingdom, we can extradite only if the dual criminality requirement is satisfied. So no one can be extradited for conduct that occurred here and is legal in this country. However, we have come to a position in the Bill where there is a clear difference of view.

Lord Clinton-Davis: My Lords, reference has been made to the briefings from Liberty and Justice. Was my noble friend aware of those? Has she had any meetings with them? Has everything, or nothing at all, been reduced to writing?

6.45 p.m.

Baroness Scotland of Asthal: My Lords, I am perfectly aware that Liberty and Justice have taken a different view. On this Bill, as on many others, we have engaged in conversations. I do not know whether the officials have met specifically with Liberty and Justice in relation to these matters. However, we know the difference. Indeed, we had a very interesting, thoughtful and comprehensive debate on these issues in Grand Committee where we explored that difference. There is a difference. I promised in the last sitting of the Grand Committee that we would continue to think about these issues, and we have. However, there is a clear difference between what we think is right to do and what others may press.

When we are talking about the dual criminality requirement in relation to extradition—specifically in Part 1—to other EU countries we are not talking about some vital fundamental protection. We are talking about whether or not we should protect criminals who go to other EU countries to break their laws. The Bill provides two thresholds for extradition. For accusation cases—that is, cases where the person has not yet been put on trial—the threshold is 12 months, as in our present legislation. In conviction cases—that is, cases where the person had been tried and convicted—the person must have been given a custodial sentence of at least four months. Those thresholds apply in all cases, even in those circumstances where the dual criminality requirement is not to be applied. These amendments would change

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the thresholds in non-dual criminality cases so that they would be three years in accusation cases and 12 months in conviction cases.

My immediate reaction to that is to ask, "Why?". Who are we seeking to protect and for what reason? Why should we give sanctuary to those who go to another EU country and break its law? Let us put this into practical terms. Imagine that someone commits an offence in another EU country which happens not to be an offence in this country. He receives a nine-month prison sentence. Before his sentence begins he manages to flee to this country. If these amendments were passed, we would be unable to extradite him. I am not sure whether any of your Lordships really believe that that is in the interests of justice or that that outcome would serve the interests of justice.

The justification for these amendments appears to be that Part 1 of the Bill goes beyond the terms of the framework decision on the European arrest warrant and these amendments seek to bring us back in line. I freely admit that we have gone beyond the strict requirements of the framework decision—but why is that necessarily a bad thing? We have chosen so to do. I appreciate that there are some, particularly some who sit on the Benches opposite, who are more comfortable with a more insular approach. However, I hear with a little surprise the same insularity coming from the Liberal Democrat Benches. It is certainly not an approach that the Government want to adopt in our dealings with our European partners.

To be fair, the noble Lord, Lord Goodhart, has said in the past said that he has another rationale for these amendments. His argument—I am sure that he will correct me if I am wrong—was that offences in the bracket of one to three years are by definition less serious, and therefore there is a greater chance that a person might be committing them inadvertently. I hear that. However, that was sufficient to justify the logical inconsistency that we would be applying dual criminality protection for lesser offences but not for more serious ones. I respect the noble Lord's point of view, but I would offer two observations. The first, as he is well aware, is that ignorance of the law has never been a defence, and to recognise it as a reason for not extraditing people to another EU country is a dangerous precedent.

Secondly, offences attracting a penalty in the bracket of one to three years may be less serious than offences which attract more than three years, but they are still serious. We are not dealing with minor or trivial matters here. For more than 100 years we have recognised that an offence with a sentence of 12 months or more is serious enough to warrant extradition. It is worth considering some of the UK offences which have maximum penalties falling in the category of one to three years. They include assault with intent to resist arrest, abduction of a girl under 16, aggravated vehicle taking and failure to surrender in accordance with bail conditions. Those are not trivial matters. They are certainly not trivial to the victims.

Let us also bear in mind that our sentence levels tend to be higher than those in other EU countries, and I would suggest that it is unlikely that we could excuse

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someone's conduct as inadvertent. There is a real risk that the introduction of a different threshold will cause confusion, not least for the person whose extradition has been requested. The universal application of a 12-month threshold in accusation cases will undoubtedly be much easier to follow.

I apologise for going over these matters at some length, but I think that they are important. We need to face this difference. Either we think that this is right or we do not. Of course, it is for the noble Lord and the noble Baroness to decide whether to press their amendments. However, there is one question that shines out above all others. Who would benefit from these amendments? Who would be protected if these amendments were made? It seems to me that the answer is clear: it is those who go to another EU country and break its laws, not by committing minor crimes or by doing so inadvertently, but by committing crimes that we have always thought serious enough to justify extradition.

The right to free movement within the EU is being abused by serious criminals. We cannot and will not let the fight against that abuse be hampered by diluting the ability to pursue these people and bring them to justice. That is the least that we owe to the victims of crime, in this country and throughout the EU. If noble Lords are asking whether we are deliberately going beyond that which others are minded to provide, then the answer is, "Yes, and we do not regret it".

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