§ 8.12 p.m.
§ Lord Scott of Foscote
rose to move, That this House takes note of the report of the European Union Committee on the European Arrest Warrant (16th Report, HL Paper 89).
The noble and learned Lord said: My Lords, your Lordships debated the European arrest warrant on 19th November last year. Since that debate took place a number of changes to the proposed framework decision produced in Brussels have been made. Some of the concerns that your Lordships voiced in the previous debate have been met but others, I am afraid, remain. On those that remain representations have been made to government in letters from my noble friend Lord Brabazon. However, I doubt whether the Select Committee can carry the scrutiny process any further. I think that we have reached the position in our correspondence with the Government where we have made clear our concerns. The Government have responded and this is, therefore, an appropriate time for your Lordships to review the position that has been reached.
I hope that I may say a little about the timetable regarding the European arrest warrant. The proposal is that, assuming all the member states have agreed to the proposal, the arrest warrant measures will become 207 effective as from 1st January 2004. The Government have made clear that before that can happen primary legislation authorising the arrest warrant provisions will be necessary in this country. There are, however, three member states besides ourselves which still have scrutiny reservations regarding the proposals. They are: Denmark, the Netherlands and Sweden. In Sweden in particular, if the media reports I have seen are accurate, it appears that strong parliamentary opposition has been expressed. Since, as I have said, this is an area where unanimity is necessary, it is perhaps possible that the proposed framework decision may still be some way off having binding effect.
But it appears also that the Government have agreed with a group of member states—I believe five others—on an early introduction as between ourselves of the arrest warrant provisions. Of course, so far as that is concerned, the Government may agree on a treaty basis with other member states whatever they think it right to agree. The reports I have seen indicate that the original date proposed for this mini-implementation, so to speak, of the arrest warrant provisions was to be the beginning of 2003. But primary legislation is needed and the legislative programme is apparently congested. As I understand it, it is now not thought that the stage will be set for implementation between the United Kingdom and the other five until later in 2003. That, as I understand it, remains the position. Perhaps the Minister will be able to clarify the position for us in due course this evening. It is a matter of some comment, although not perhaps a matter to be gone into in any detail this evening, that the Government have agreed to implement the arrest warrant provisions with the five other member states in question among themselves at a time when the proposals are still held under scrutiny reserve by Parliament.
I now turn to the substance of the proposals. There are one or two matters of particular concern that I wish on this occasion to draw to your Lordships' attention. They are matters to which attention was drawn in the course of the previous debate. The first of these relates to human rights. In a number of letters to government Ministers the Select Committee has expressed concern about the absence from the arrest warrant proposals of an article that expressly allows human rights objections to extradition pursuant to an arrest warrant to be taken before the judicial authority in this country, the Bow Street magistrate. The human rights in question are likely to be Article 5 rights—the right to liberty—and Article 6 rights—the right to a fair trial. The sort of points that might engage complaints about infringement of those articles would include, for example, excessive delay before a trial could take place while the individual was held; conditions of detention pending a trial; or a perceived lack of independence of the judiciary of the country concerned in relation to the particular charge that the individual faced. There might be others. Those are simply examples.
208 Throughout the discussion on the arrest warrant proposals the Government have consistently made clear that in their view if objective evidence establishing a reasonable fear that human rights infringements might take place if the extradition were to proceed were placed before the Bow Street magistrate, he would be entitled to refuse to execute the arrest warrant. That is in my respectful opinion an extremely comforting assurance. But the framework decision does not say so. The framework decision recites, in Recitals 12 and 12a, a number of human rights that might relate to an extradition decision and, in Article 1.3, states:This Framework Decision shall not have the effect of amending the obligation to respect fundamental rights and fundamental legal principles as enshrined in [the Convention]".However, I respectfully suggest that this explicit reference does not go far enough. Where there is objective evidence of anticipated human rights infringements, we should not leave it to the individual concerned to litigate his or her point in the member state concerned or, in the last resort, in Strasbourg before the European Court of Human Rights. We should perhaps allow such a person to remain under the protection of our courts. I suggest that the framework decision should expressly so provide.
Then there is the issue of double criminality. As your Lordships will know, the proposed framework decision removes the requirement of double criminality from a specified list of offences. In relation to offences which are not among the specified list—there are 32 listed—the Government have power under the framework decision to waive the requirement of double criminality. That is the Government's power, not the power of the person accused.
In relation to some of the specified offences, where there is broad harmonisation and correspondence of the offence across the Union, there is, in my opinion, no real problem—I refer, for example, to murder, kidnapping and robbery. There is no need to insist on dual criminality in regard to crimes of that character. But for others there is no harmonisation and the description of the specified offence is broad. The question whether the charge against the individual who is sought to be extradited falls within the specified offence is to be answered by the law of the country that is seeking extradition. The specified offences include offences such as racism and xenophobia. Another broad description is swindling. Those are very broad descriptions of offences. We do not know what specific offences other member states might have that they would say, under their law, fitted the description in question.
Indeed, "racism and xenophobia" has very recently received a definition in yet another proposed framework decision, which the sub-committee of which I am chairman currently has under scrutiny. That framework decision is intended to require member states to introduce crimes of racism and 209 xenophobia which will be common across the Union. It is therefore necessary to define racism and xenophobia. It is defined as,the belief in race, colour, descent, religion or belief, national or ethnic origin as a factor determining aversion to individuals or groups".That is contained in Article 3. Article 4 sets out the offences for which the laws of each member state must provide. It defines racism and xenophobia offences as including,public dissemination or distribution of tracts, pictures or other material containing expressions of racism or xenophobia".So distribution of, for example, literature containing expressions of belief in race, colour, national origin and so on as a factor determining aversion to individuals or groups would be a criminal offence, and extradition of a person accused of the offence could be sought under the European arrest warrant. The offence in question would almost certainly cover the distribution of Biggles. It would probably cover the distribution of the Old Testament as well. I do not know what the Government's reaction to that proposal will be—I imagine that it will be a mixture of horror and laughter. But my point for this evening is that if any member state creates offences on those lines—those lines are proposed by the Commission—and prescribes three years' imprisonment as a possible penalty, we in this country would be expected to extradite the accused under a European arrest warrant. I suggest that those categories of offence need to be made much more specific.
I turn to the issue of trials in absentia. In many of the continental jurisdictions—for all I know, in all of them—trials in absentia, with sentences of imprisonment, may take place, notwithstanding the fact that no notice of the trial has been received by the accused. A European arrest warrant may then be issued, in order to bring the convicted person to the member state in question to serve his sentence. On that, the framework decision in Article 5.1 says that if the person convicted has not been summoned in person or informed of the date or place of the hearing, his extradition under the warrant may be subject to a guarantee that he will have the opportunity to lodge an appeal against his conviction.
That, I suggest, is simply not good enough. First, why should there be an appeal when there has not been a proper trial at all? The person concerned should have a guarantee of a retrial, with the ability, as one has at all trials, to cross-examine witnesses. Appeal is simply not enough in such a case and, in my opinion, is inappropriate. The Government, I believe, agree that that is so but, for reasons that I am afraid I do not understand, they are apparently prepared to agree to Article 5 in its present form; that is, lacking a guarantee of a full retrial.
There is a second point regarding trials in absentia. Article 5.1 applies only to people who have not received notice of the date and place of the trial hearing. What about those who have received proper notice but, through no fault of their own, have been unable to be present? An illness, an accident or any unforeseen misfortune might have occurred. Those 210 people, too, surely should be entitled to a full retrial and be able to cross-examine those who have given evidence against them, and so on.
The in absentia trial provision in Article 5.1 is, in my opinion and for both of those reasons, unacceptable. I urge the Minister to look at that provision again.
§ The Minister of State, Home Office (Lord Rooker)
My Lords, I am reluctant to intervene because I want noble Lords to make their speeches. However, I make it clear, for the avoidance of doubt later on, that when we introduce the extradition Bill later this year, we intend to make it explicit in our domestic law that we would not surrender an individual under a European arrest warrant in a conviction in absentia case without a guarantee of a retrial with the defendant having full rights of defence.
§ Lord Scott of Foscote
My Lords, I am much obliged to the Minister for that very comforting reassurance. I do not see how that is entirely consistent with the terms of the framework decision. However, if we pass legislation of the sort that the Minister described, and if someone proposed that we had not honoured the framework decision, we should, I have no doubt, meet that situation head on.
There is a further problem that I wish to draw to the attention of noble Lords and which I invite the Minister to reconsider. The expressed purpose of a European arrest warrant is declared in Article 1 to be to obtain the extradition of the named person,for the purposes of conducting a criminal prosecution or executing a custodial sentence".That corresponds with our notion of what extradition is for. It is not for the purpose of getting a person for interrogation or for furthering the investigation of the crime and establishing whether a case can be built up. Extradition is, of course, for the purpose of getting back an escaped convict and, so far as trials are concerned, for conducting a prosecution. But the particulars that must accompany the arrest warrant do not have to include any detail of the substance of the case against the accused person. The accused person cannot rely on the absence of any prima facie case shown against him in order to prevent being extradited. Under current—traditional—extradition procedures, a prima facie case has to be shown, but no longer within the European Union. All that will be required will be for the subject to be named, the details of the crime to be given and the "degree of participation" of the accused to be set out in the particulars.
In that regard, too, the Government have made it clear, in evidence given to Sub-Committee E, that it is not their intention that the European arrest warrant should be available to be used to extradite a believed offender in order to interrogate him and build up a case that is sufficient for trial. But under continental procedures, the dividing line between investigation of a crime and the point at which there is enough material for a prosecution is not always easy to draw. The investigation will be under the control of an investigating magistrate—a judicial figure. It is 211 presumably he who authorised the issue of the arrest warrant. There seems to me to be a risk that the extradition of a suspected offender will be sought in order that the investigating magistrate may complete his investigation by interrogating, or authorising the interrogation of, the suspect, rather than for the purpose of a prosecution in respect of which he already has sufficient material to start. There is no machinery proposed for monitoring what happens to the accused in that respect after he arrives in the extraditing member state. It seems to me of some interest that the only other European member state that, like us, has an adversarial criminal justice system, as opposed to an inquisitorial one—that is, Ireland—has made a formal statement, in December, to qualify its agreement to the proposed framework directive. The statement made by Ireland is as follows:Ireland shall, in the implementation into domestic legislation of this framework decision, provide that the European Arrest Warrant shall only be executed for the purpose of bringing that person to trial or for the purpose of executing a custodial sentence or detention order".That mirrors the purposes expressed in Article 1. It seems to me that if such a statement is necessary or desirable in the case of Ireland, it would be for us, too. I would welcome the Minister's reaction to the need for us to make a similar statement.
There are other problems in relation to the proposed framework decision, but I have mentioned those that seem to me to be the most pressing.
The principle underlying the framework decision is that of trust between member states—trust in their respective criminal justice systems. I understand that. There are certainly a number of member states in respect of which trust in their criminal justice systems would have no qualifications and would always be present. No doubt all member states, present and future, will have criminal justice systems which we in this country can trust at least most of the time. But the proposition must be that we can trust all the criminal justice systems of all the member states all the time in order to be content with the extradition proposals envisaged in the European arrest warrant without any further qualification.
The consequences for both the citizens and the non-citizens of this country may be serious. They are entitled to expect protection by our courts and under our laws. We should deprive them of that only if we are completely confident that they no longer need that protection. I beg to move.
Moved, That this House takes note of the Report of the European Union Committee on the European Arrest Warrant (16th Report, HL Paper 89).—(Lord Scott of Foscote.)
§ 8.31 p.m.
§ Lord Lamont of Lerwick
My Lords, it is, as always, a pleasure to follow the noble and learned Lord, Lord Scott, who has in this debate, as in others, on the arrest warrant illuminated the issues with great authority and clarity. I am not a lawyer and previously have been apprehensive about intervening in debates on this 212 subject but I have somehow been drawn into them successively. I justify that to myself partly on the grounds that the incomprehensions of a non-lawyer may in themselves be illuminating to the lawyers and, secondly, also that possibly the subject is too important to be left entirely to the lawyers alone.
I believe that it is very good that we are having this debate. It is, in a sense, more important than many of the other reports that we receive from EU Select Committees because we are discussing very directly legislation which is about to happen and which affects each and every citizen profoundly. Perhaps I may say that I am slightly surprised that, in the first instance, the Government resisted having this debate. Earlier, when we began to examine the arrest warrant and when matters were presented before the Select Committee, more and more issues which had not been anticipated or identified by the Government kept emerging.
Then, in addition, as the noble and learned Lord, Lord Scott, said, came the announcement by the Home Secretary in February this year that the British Government were intending the European arrest warrant to be operational in early 2003. If that is to happen, there will be very little opportunity for us to discuss the legislation which presumably will come forward in the autumn—that is, the legislation which fills in so many of the details and definitions of the different offences listed Article 2.
The arrest warrant is presented by the Government as a pragmatic development and logical progression whereby Europe will become an area of freedom, security and justice. In the words of the Home Office press release:We are sweeping away outdated, inefficient extradition procedures".It is what Chairman Mao might have called "the next great modernisation".
Unfortunately, these proposals have been received in a number of different countries with strictly modified rapture. Mr Tremonti, the highly respected Italian Finance Minister, said of the European arrest warrant:It is a sign that, when it comes to drawing up laws, we are going back to the pre-Enlightenment age".I believe that in a number of countries parliamentary reserves still apply. I understand that very strong opposition has been expressed in the Swedish Parliament. It would be helpful if the Minister could tell us which countries still have such reserves. My understanding is that that is the case in Sweden, Ireland and Denmark.
I should also be grateful if he could tell us precisely what the position is in relation to Austria and Italy. I understand that, although Austria is signing up to it, surprise, surprise, one looks at the small print and that country has a derogation until it can amend its constitution because its constitution forbids the extradition of nationals. I have also heard that the surrender of the Italian Government to the concept of the European arrest warrant after initial resistance is perhaps not all that it appears to be because the 213 Italians, too, may have to alter their constitution. I believe it is important that we know that so that we are aware of the likelihood of all the countries ratifying.
Of course, it is true that five countries have agreed to the early operation of the European arrest warrant. But, as Stephen Jakobi of Fair Trials Abroad caustically remarked:With the exception of Greece, those constitute a roll call of countries that have the most problems in providing basic rights to people who have been arrested".That was his opinion.
Very fundamental issues are raised in relation to the arrest warrant. A few weeks ago in this country, an Algerian who had been a pilot taking lessons in the United States was the subject of an extradition request from the United States authorities. The courts in this country delayed his extradition pending receipt of evidence to justify his extradition. In the end, that evidence was not provided and the courts let the Algerian go free. I took tremendous pride in the fact that the courts could make that decision despite all the pressure after 11th September. Despite all the demands that terrorists be brought to justice as quickly as possible, I took pride in the fact that, where there was no evidence, a man should go free. Of course, had that occurred several years hence and had that been a request for extradition under the European arrest warrant, the British courts would not have been able to leave that man free in this country.
One tidying up in the present draft which I welcome, and which I believe is different from earlier drafts, is in Article 4(7). That paragraph says that the state can refuse to extradite if the offence has been committed on its own territory. Therefore, I believe and assume that that takes care of the case that I raised earlier which so delighted the noble Lord, Lord Goodhart, but horrified me. It concerned the Editor of the Sun possibly being extraditable for what he might write in his newspaper here. I should be grateful if the Minister would confirm that my understanding is entirely right in that regard.
None the less, what is proposed is a gigantic step forward. I consider that it carries great risks and one is tempted to wonder whether it is entirely wise. Of course, I am all in favour of extraditing criminals, and I am all in favour of criminals elsewhere being extradited back to this country. But what also matters are the rights of the accused.
What I find so extraordinary about this document—we have pages and pages of it—is that the rights of the accused get precious little mention. The Home Office talks about outdated and inefficient extradition procedures. But the rights of the accused are not outdated; they are something for which we must have regard. There is a passing reference to the right of the accused to have the charges against him translated.
I welcome the fact that paragraph 10 of the preamble refers to the possibility that a person will not be removed to the requesting state for extradition if it is unlikely that he will receive a fair trial there. I do not know how much the declaration in the preamble is worth—possibly not very much. However, I believe 214 that much more needs to be guaranteed with regard to the rights of the accused, legal representation, interpretation at all stages of the legal procedures, interpretation for witnesses and the right to bail.
There is then the question of whether there should be Europe-wide statutory limits relating to the conduct of proceedings. It was John Mortimer, QC, a supporter of New Labour, who wrote in a newspaper:Would you care to be arrested on the say-so of a Greek or Spanish judge and be pushed oil with no case having been made against you to face trial under a foreign system in another country?".He pointed out that investigating magistrates—who, as the noble and learned Lord, Lord Scott, said, operate on a different basis, being investigators and prosecutors at the same time—are notorious for keeping people locked up in prison for a long time in the hope of forcing information out of them.
It was that fear which led the distinguished lawyer, the SNP Member of the European Parliament, Sir Neil MacCormick, to suggest that there should be a Europe-wide provision for an end limit to detention similar to the longstanding 110-day provision in Scottish law. But that got nowhere with the European Parliament. It is all very well to say that ultimately there is a right of appeal to Strasbourg, but that could take a long time, possibly years. It seems to me that there should also be a provision for an avenue of national appeal where someone fears that his or her removal will not be fairly judged.
The lack of clarity and certainty in the framework decision, as put forward, is particularly regrettable. The main example is precisely Article 2 where we now have a positive list of so-called offences where double criminality does not apply. As everyone understands, that is not so much a list of offences but a list of types of offences. As the noble and learned Lord, Lord Scott, said, fraud and swindling have different connotations in different jurisdictions. One might say the same also for motor vehicle crime. What on earth does that mean? Even the term "murder" is open to different interpretations, including in certain countries abortion and euthanasia.
We have the famous case of xenophobia. Like the noble and learned Lord, Lord Scott, I have been wondering about that. In Foyles the other day I came across a whole series of books called The Xenophobe's Guide to the Belgians, The Xenophobe's Guide to the French and the xenophobe's guide to this and that country. They were light-hearted books, but will they be entirely legal from now on? I know that when the legislation is put forward there will be attempts to refine what those offences are. But how shall we ensure when we examine this legislation that the way the offences are defined corresponds with how they are defined in other countries?
However, the greatest uncertainty is with the treatment of the concept of speciality. It is speciality that prevents a person from being extradited for one crime and subsequently charged for another. The concept also prevents someone being re-extradited from one country to a third country. It is a necessary protection for people against a system where 215 magistrates may be both the prosecutor and the investigator. As I understood it, at one point the Government were denying that speciality was being set aside. The report clearly states that it is.
The Law Society says that the document allows for the abolition of the speciality rule. Article 22(1) allows member states to opt out of speciality for a whole range of offences, provided there has been a declaration of prior consent. The Law Society has called that "a worrying development". The Law Society, no less, said:There is a risk that a person will be transferred on a charge which is then used as a holding charge to allow for the investigation and the bringing of charges for other offences for which the person would not have been arrested".Surely, that leaves the person in a state of complete uncertainty as to what charges he may face once he has surrendered. It is a denial of basic rights.
As the noble and learned Lord, Lord Scott, pointed out, there is no mechanism for the requested state to monitor the proceedings once extradition has taken place.
I have a detailed point I wish to raise with the Minister which relates to speciality. I refer to the letter which Mr Bob Ainsworth, the Parliamentary Under-Secretary of State, wrote to the noble Lord, Lord Brabazon, and which is quoted on page 10 of the Select Committee report. The paragraph dealing with speciality states that:The UK has … indicated that, within the structure of this agreement, we would not intend … to apply the dual criminality test to requests made to us, even where it is required of us. We therefore do not expect speciality to be applied for the prosecution of fugitives within the EU".I have been unable to understand what that means. I have asked two distinguished lawyers who are in the House at present, and they could not tell me either. I would be grateful if the Minister could enlighten us as to precisely what that means and what is meant by saying that because we are not applying double criminality there will be no infringement of speciality. Does it mean that, because one can be extradited for almost anything under the sun, there is no real risk that one would be extradited for one thing and charged for another? If that is what it means, that is not a very good reply. I cannot believe that that is what it means.
As regards double criminality, what is also regrettably uncertain is that abolition seems to take place in different countries in different ways. It can be done with the positive list for crimes that carry a minimum sentence of three years, a positive list for crimes that carry a minimum sentence of one year, or for all offences—not just those in Article 2.2—carrying a minimum sentence of one year. So, as I understand it, there will be different ways in which double criminality is abolished in different jurisdictions.
Surely, as Justice has recommended, it would be better if there was no possibility of an opt-out of the double criminality beyond the 32 offences listed in Article 2.2. That would prevent extradition warrants 216 being issued in relation to controversial issues such as abortion, euthanasia, freedom of expression or vexed issues such as blasphemy.
The central issue behind the warrant is one which is difficult to deal with, and I was pleased that it was touched on by the noble and learned Lord, Lord Scott. I refer to the question of whether we have sufficient mutual trust in the judicial systems of other member states to justify what has been proposed with the safeguards as they are at present. I am rather pessimistic about that.
Let us consider, first, applicant countries to the European Union. The other day I was in a country which is an applicant for membership of the EU. While I was there a person was arrested and charged with undermining the state because he had released on the Internet details of the Prime Minister's houses. I do not want to go into more detail than that. In many eastern European and central European countries the integrity of the system is highly questionable, to put it mildly. It is naive to think that, having signed the European Convention on Human Rights, that deals with that and naive to think that that will change quickly.
Even with existing members of the European Union one has some anxieties. To quote what Mr Chirac said about French judges or magistrates might not be regarded as convincing. However, Mr Strauss-Kahn, the respected Finance Minister, said:In our system [France] you are presumed innocent until declared guilty. The reality is that you are seen as guilty from the moment the judicial system is interested in you".One may call that political. However, let us consider some other unambiguously liberal voices.
Stephen Jakobi again in Fair Trials Abroad stated that,Spain, France, Portugal and Belgium are notorious for holding people without evidence in the hope that some evidence may turn up".Hugo Young lambasted the warrant in the Guardian. He condemned the "pathetic legal aid", as he called it, given in Italy, Portugal and Spain. He pointed out that in Belgium a suspected paedophile is still on remand after five years. Of course there have been other concerns about the judiciary, the police and paedophilia in Belgium. When I referred to that on one occasion, the noble and learned Lord, Lord Williams, said that it is not the judiciary; it is only the police. I do not regard that as an entirely convincing answer.
The Law Society in measured words said that the,Law Society believes the presumption of mutual standards of recognition and compliance with the ECHR is too strongly accepted at the European level".Therefore, I think that this is a dangerous step. The Government are very good at drawing up paper lists of human rights. But the rights that matter are the ones that exist and have been proven. They should not be given away lightly.
§ 8.51 p.m.
§ Lord Donaldson of Lymington
My Lords, in view of the opening remarks of the noble Lord, Lord Lamont, 217 perhaps I should apologise for being a lawyer. But it is a fact that just as bishops are professionally against sin, lawyers are professionally against injustice and perhaps have a wider appreciation of where it might arise than those who are not involved or who have not been involved in the law.
I entirely accept the pressing need for a simpler, speedier and more effective extradition system. That is subject to an overriding need for safeguards to ensure the full preservation of the human rights of those who are potentially liable to extradition. That at once raises the question of who is responsible for formulating and enforcing those safeguards. My answer to that is the state within whose borders and subject to whose laws the potential extradite—if that is the right word—happens to be found. So, from our point of view, when other states seek to extradite people from this country—whether or not they are British subjects because they are all owed a duty by the state and they all incidentally owe duties to the state, but that is beside the point—the responsibility must rest with us.
Furthermore, it is not a duty which can be delegated to other nations. The concept that the production by a requesting state of an indication that someone is alleged to have committed a particular offence without any necessary supporting information does not discharge our obligation to safeguard the rights of people in this country.
We all know that in some countries—indeed some European countries—treaty obligations are, in circumstances in which the interests of the state arise, treated as à la carte menus rather than binding obligations. There would be a risk that in some situations that would impinge upon our duty to protect people within this country. It really is not satisfactory to say, "Well, if there is experience that Ruritania, a member of the EU, is not in fact complying with its obligations, the unfortunate person concerned can of course go to Strasbourg, should he live so long". But it would only be after a large number of cases of that kind had come to the notice of our authorities that under the system proposed they would be entitled to say, "Well, we are not satisfied that Ruritania is a safe country to which to extradite someone".
Still less can we treat the EU itself as an overriding sovereign body within whose borders and subject to whose laws we all live and thus pass responsibilities to it, the suggestion being that the right to freedom of movement—incidentally I do not think that it is a duty to move freely—puts the EU in exactly the same position as this country. If the judiciary sought to move someone from England to Wales there would be no possible objection to that course. One would assume that there was some justification for so doing, but there is no jurisdictional objection. I am not sure whether the same is true of Scotland. Scotland is always a problem on these occasions, so I let that pass.
The plain fact is that the EU is not a state. None of us here is a citizen of the EU; we are citizens of states 218 which are members of the EU. That is wholly different. The Law Society in a comment said:The principle underlying the changes is that as the member states are part of the EU with its policy of open borders then all residents are effectively EU nationals. As EU nationals the assumption is that there can be no objection to the free movement of criminal suspects/offenders between EU states".That needs to be rejected wholeheartedly and without any ambiguity or exception.
Then there is the question of reciprocity. I was astonished to read in the minutes of evidence that Mr Ainsworth seemed to think that it would be quite all right to extradite people from this country if in similar circumstances we could apply for the extradition of others to this country. That seems to me to be quite astonishing. On page 10 in the left-hand column, he states:Fundamentally we feel there are potentially substantial benefits for British people of lowering the barriers and accepting that with our EU partners, we are not talking about accession states here [EU partners], we are talking about people who are members of the European Union, fully signed up to the ECHR and hopefully increasingly in total compliance with the ECHR".That in itself is a somewhat surprising statement—"hopefully increasingly in total compliance with the ECHR". He continued:There are substantial benefits in accepting that the system of justice and the implementation of justice should take place in a state within which the crime is alleged to have been committed and not double guessed at by putting a preliminary hearing of substance in front of that return".There is something in that. However, it requires to be looked at rather carefully.
In the right-hand column on the same page he is talking about the generic list of offences. He says that,the warrant itself will have to be framed in terms of a specific offence. The offence will have to meet the thresholds and these thresholds will be set against the law in the issuing country. So if a British citizen goes to Germany and breaks the German law in Germany, to the extent it breaches those thresholds he will be extraditable for breaking that law".So far, so good. But he goes on to state:The benefit is that the same happens in reverse, and that German people will not be able to come to this country and break our laws without suffering rapid return to face justice in our country".That is a form of justice at which the Germans might cavil since it is quite different from their own form of justice. But let that pass. He continues:Surely with the numbers of people who are now travelling between us, good law-abiding people as well as the criminal elements, that is the kind of protection the British people actually want".I very much doubt it. There cannot be many British people thirsting to have Germans extradited to this country. If the provision takes effect, many British people will object strongly to being extradited themselves.
The question of prima facie evidence has been raised. I do not think it necessary in every case, but the Bow Street magistrate ought, in an appropriate case, to be able to seek some degree of reassurance of the evidence. For instance, if identity is challenged, it is 219 often possible for the Bow Street magistrate to enquire of the requesting state what evidence it has that it has named the right person in the warrant.
The Bow Street magistrate should have authority to look into other matters. It is interesting that Section 11 of the Extradition Act 1989, which is described as a statutory version of habeas corpus—although it does not go to the full length of habeas corpus—provides the following.
Without prejudice to any jurisdiction of the High Court apart from this section, the court shall order the applicant's discharge if it appears to the court it relation to the offence, or each of the offences, in respect of which the applicant's return is sought, that—I am worried not about his being unlawfully at large but about the time elapsed since he committed the offence, which may make it vastly more difficult for him to defend himself—
- (a) by reason of the trivial nature of the offence; or
- (b) by reason of the passage of time since he is alleged to have committed it or to have become unlawfully at large, as the case may be"—it would, having regard to all the circumstances, be unjust or oppressive to return him".That provision should not disappear. It may be convenient to reincorporate it in a different form, but we certainly ought not to allow it to disappear.
Indeed, rights of habeas corpus should always be preserved, but this is the second occasion in 18 months when the Government have shown signs of wanting to do without them. I can understand that from their point of view, but it is most unappealing to anyone interested in justice.
There is also the question of health. As far as I can make out, it would not be open to the Bow Street magistrate, if alerted to the point, to say, "I want a medical examination. This chap is said to have Alzheimer's, in which case, if it is in an advanced state, he is not fit to stand trial. I want to know about that". At present, that will be impossible. Of course, the Irish qualification ought to be made.
I have taken too much time already, so I shall just say in conclusion that the report contains valuable contributions on many potential problems. If the Government do not heed them, they are heading for trouble on the primary legislation. For my part, if they do not heed the report, I hope that I shall find myself in a majority in voting down that legislation or amending it.
§ 9.4 p.m.
§ Lord Stoddart of Swindon
My Lords, it is a great pleasure to follow the noble and learned Lord, Lord Donaldson. He does not need to apologise for being a lawyer. Lawyers, especially of his standing, give great service to this House, another place and the country generally. In any event, they rank in public esteem above journalists and politicians.
I congratulate the Sub-Committee and its chairman, the noble and learned Lord, Lord Scott, on their diligence and tenacity over the European arrest 220 warrant. There is considerable concern, not only in this House but throughout the country, about exactly what will be the effect of the European arrest warrant on ordinary people. There is also worry about the rush to implement it so quickly. I am glad to hear that that process has been slowed down. It is altogether good that we should take our time over any agreement to such a warrant in the first place.
Having listened to the noble and learned Lord, Lord Scott, speak about xenophobia and racism and the European Commission's proposition that we should introduce legislation to define those offences, I am now almost frightened. If such a clause were included in a Bill, I should hope that the House of Commons would not let it pass but that, if it did, this House would certainly not allow it to pass.
It is intolerable that the powers of our courts to resist extradition of British subjects to existing EU countries—and, presumably, to applicant countries, some of which, as the noble Lord, Lord Lamont, noted, have shady human rights backgrounds that would be unacceptable here—are to be severely restricted and the final say of an elected Minister responsible to Parliament removed. Some may think that that is good, but in the matter of removing citizens from this country to another for trial, elected representatives must represent the public. I hope that that proposal can be resisted, even at this stage.
There is no need for a European arrest warrant. There is nothing in it that could not be achieved by bilateral agreement between countries. The delays could certainly be eliminated by such agreements. People in Britain who have been following the issue have yet to be convinced that the European arrest warrant will not put them in danger of being extradited for an offence that was committed not abroad but in this country. We have already heard about newspapers that are published in another country—The Sun, for example. There is no certainty that Mr Yelland, editor of The Sun, would be safe if one of his paper's headlines were to be construed as an offence under that country's laws.
What about someone who writes and publishes in Britain a book or article denying the Holocaust that is then circulated in Germany? Germany, of course, has strict laws about Holocaust denial; it is an offence punishable by a term of three years. They have that offence because they want to assuage their guilt about what happened under the Nazi regime, including the Holocaust and all the other awful things that were done. There is no reason, however, why we should suffer for that as well.
I do not know whether anybody in that category would be safe. I hope that Mr Yelland will read this debate, particularly what the noble and learned Lord, Lord Scott of Foscote, said about racism and xenophobia. He may want to say a few words about it in his newspaper. I feel sure that he would be at great risk. The presumption of innocence will be turned on its head, as the executing authorities will, under the provisions of the framework agreement, have little option but to hand the suspect over, once the European arrest warrant is presented.
221 The legislation is being rushed through on the grounds of the need to combat terrorism. The listing of 32 offences in the agreement means that virtually any significant offence will be caught by the agreement. The protection of dual criminality will, as we have heard, be removed.
We have also heard a great deal about habeas corpus. The Government have given assurances, as has Mr Vitorino, the European Commissioner, to the European Parliament on 6th February, during discussion of an amendment to insert a habeas corpus provision into the agreement. Incidentally, the amendment was defeated. Mr Vitorino claimed that habeas corpus was contained in the legal system of every member state: it most certainly is not. It is not, for example, in the legal framework of Greece, where the 12 plane-spotters were incarcerated. They have now, I am glad to say, been brought to trial. Nor does habeas corpus apply in France, as I understand it. It is not absolutely certain whether or not the European Convention on Human Rights provides the protection of habeas corpus—at least, not to me—and we shall have to await experience until there is certainty.
Those of us who have observed the European scene for a long time know that the European arrest warrant is just another step along the road to a European judicial system. People do not have to believe me; I shall quote what Mr Watson, the rapporteur, said to the European Parliament on 6th February, when it was discussing the European arrest warrant and the amendment on habeas corpus:The European Union may allow itself a few moments of satisfaction. These measures represent a major step forward towards the creation of a European judicial space"."Judicial space" refers to what we have been talking about for a long time; that is, corpus juris. Of course, it has been denied that there is any intention to introduce corpus juris into European law, but here we have it from the rapporteur that the European Union wants to create judicial space. He continued:I would like to thank the President-in-Office for reminding us that this judicial space did not start on 11 September last year, although it would be churlish not to recognise that the attacks on New York and Washington on 11 September gave a political momentum which allowed us to knock heads together and overcome certain objections".Therefore, it admits to taking advantage of those terrible happenings in New York in order to push its idea for a European judicial space. Everyone should take note of that.
That is a telling comment about the European arrest warrant and it is yet another ratchet on the road to the creation of a harmonised judicial system and, of course, towards the European superstate so beloved of people like the German Foreign Minister, Herr Fischer, who believes that nation states should be abolished.
I was most struck by the remarks of the Minister, the noble Lord, Lord Rooker, on 19th November last. He said:I know that we are not completely in a federal state, but we are trying to work together with our partners".—[Official Report, 19/11/01; col. 990.]222 What did he mean by that statement:I know that we are not completely in a federal state"?Did he mean that this particular measure was taking us even further towards a federal state? Perhaps he 'will tell us when he winds up the debate. As far as I can see, we are not completely there, but we are apparently getting there.
I have to tell the noble Lord, Lord Rooker, that this is not about a federal union and he should not misunderstand where we are going. That would be bad enough, but it is really about the creation of a unitary European state; a country called Europe. That is something very different because it is a state controlled from the centre. That is the path along which we are being driven, and the European arrest warrant is just another milestone along that journey. For all those reasons, the warrant should be resisted by all those who treasure individual rights and freedoms and desire democratic self-government through our own tried and tested institutions and want them to continue.
§ 9.17 p.m.
§ Lord Hunt of Wirral
My Lords, I share the concerns about the European arrest warrant so clearly articulated by the noble and learned Lord, Lord Scott of Foscote. As I had the privilege of serving under his chairmanship, perhaps I may also add how strongly I and the other members of the committee support his views, so well expressed in an outstandingly good speech today.
Perhaps I may add two points. The first relates to judgments in absentia. I was pleased to hear the Minister repeat the Government's assurance that in their forthcoming extradition Bill they would make explicit that a person will not be surrendered in a conviction in absentia case without the guarantee of a retrial. It was good to hear that. However, I still believe that it is most unsatisfactory that the guarantee of a retrial is not set out in the framework decision. I hope that he will reconsider that point and realise that as a consequence there would be the risk of the creation of different standards of justice across the European Union, which would be most unsatisfactory.
Secondly, as regards fundamental rights, we on the committee feel strongly that the framework decision should not be adopted without being amended to make it clear that a national judge can hear argument that to accede to a request for transfer might lead to an infringement of the ECHR rights, particularly under Articles 5 and 6, of the individual concerned. Further, the judge would be entitled to refuse the request on such grounds. The Law Society brief clearly sets out a number of safeguards that I hope the Minister will accept. There must be provision for accepted standards of procedures and common definitions relating to arrest, bail, legal advice and representation through proceedings, disclosure of evidence, and rights of appeal and retrial where tried in absentia. There must be clarification as to the limits and procedures to arrests in pre-charge and ongoing investigations—particularly in view of the erosion of the specialty rule to safeguard ECHR Article 5 rights.
223 There must be agreed the early provision of confidential legal advice and assistance, interpreting and translating services—which should be provided at the state's expense. There are no proposals for systems of accountability. There must be national mechanisms for appeal, to prevent the only accountability being through application to Strasbourg.
It must be the positive, explicit and appealable responsibility of each member state's judiciary to satisfy itself that transfer under any mechanism will not breach the individual's human rights—either because of his or her circumstances or because of ECHR breaches within the criminal justice system in the requesting state. I hope that mechanisms such as consular assistance could include a monitoring role of the implementation of agreed procedural safeguards and minimum standards.
We say all that because we want to ensure that the European arrest warrant becomes another important weapon in the fight against crime—not an opportunity to abuse the human rights of individuals under suspicion, then deny them proper protection of their rights.
§ 9.22 p.m.
§ Lord Pearson of Rannoch
My Lords, I have the temerity to query something said by the noble and learned Lord, Lord Donaldson, when he commented that there is no such thing as a European citizen and that the EU is not a state at all. Under the Maastricht Treaty, we did become citizens of the European Union—although perhaps in that vague and confusing way in which European plans are always laid. I trust that the Minister agrees that there is on the stocks a plan for the intergovernmental conference in Brussels in 2004, precisely to give the European Union legal personality.
I have asked that of the Government in Written Questions but have been given the brush-off. For the noble and learned Lord, Lord Donaldson, to be right, it would be helpful if the Minister will give a firm assurance this evening that the British Government will veto any attempt to move towards the granting of legal personality to the European Union.
§ Lord Rooker
My Lords, for the avoidance of doubt, I have absolutely no intention of addressing that question.
§ Lord Pearson of Rannoch
My Lords, that must cast some doubt on the words of the noble and learned Lord, Lord Donaldson, but it must come out in the wash as we move towards the intergovernmental conference in 2004. It is unhelpful of the Minister to say that. We had from the noble Lord, Lord Stoddart—who follows these matters closely—a clear indication of how this particular arrest warrant fits with the whole European judicial ambition of corpus juris. We already have the European police force, which has immunity collectively and individually against all its actions.
We are clearly moving down that road. We look to the intergovernmental conference to set the debate in a wider context. We have the charter of fundamental 224 rights, which will clearly give the European Union a constitution. We have the army on the way, common foreign and security policies and all the rest of it. For the Minister to say that he is not going to answer as to whether the Government will reveal their views on legal personality is unhelpful. Given the Government's slavish obedience to the wishes of the people in Brussels, I am not surprised.
§ 9.25 p.m.
§ Lord Goodhart
My Lords, I should start by declaring my interests. I am vice-chairman of the Council of Justice and a trustee of Fair Trials Abroad, both of which organisations have, among other things, submitted evidence to the committee of the noble and learned Lord. I thank the noble and learned Lord and his committee for the report, which is valuable and important. This evening it has led to an interesting, although I have to say somewhat one-sided, debate.
I have few problems with the European arrest warrant as an ideal at which to aim. As crime becomes increasingly international and criminals find it easier to move both themselves and their assets across national borders, so it is increasingly important to make extradition procedures simple, swift and effective. Frankly, the ideal is to make it as simple to enforce in the United Kingdom an arrest warrant issued in another member state as it is to enforce in Scotland a warrant issued in England. Most of the safeguards built into existing procedures are due to lack of trust in the judicial process of other countries. They would be unnecessary if mutual confidence did in fact exist.
In looking at the European arrest warrant, therefore, I think that there are two tests. The first is whether there is anything inherently wrong with the actual framework decision, if one assumes that it is entered into by states which have full confidence in each other's judicial processes. The second is whether that confidence is justified in respect of the member states of the European Union, including the candidate states.
Where trust exists, I see no need for the required country to investigate whether a prima facie case exists. After all, that is immensely expensive and time-wasting because it involves two separate trials—or at least one-and-a-half trials. Where trust exists, I see no need for a speciality rule. Such a rule stipulates that the requiring country cannot try the defendant for any offences other than those for which the defendant has been extradited. That is necessary to protect defendants from any abuse of the extradition procedure by a country getting the defendant back and then charging him with offences for which extradition would have been refused. If we are confident that abuse would not take place, I see no need for the rule.
Where trust exists, I believe that the dual criminality rule can be greatly restricted. People have a duty to observe the laws of the place where they are for the time being, provided that those laws are properly democratic and fair. If people commit breaches of those laws, I do not see why they should be entitled to 225 escape the penalty for those breaches through the refusal of extradition, even if what they have done is not criminal in the required country. If the law they have contravened is oppressive or unjust, or contrary to human rights, then of course dual criminality must he applied and it must be retained for that purpose.
However, to cite a case which has been in the news over the past two days, for myself I would not find it offensive if the law required us to extradite to the USA someone accused in that country of serious breaches of its anti-trust laws, even if a breach of anti-trust law is not a criminal offence in the United Kingdom.
On the first question of the two that I have posited, my criticisms are limited. Of course the inclusion of "racism and xenophobia" in Article 2(2) of the list has attracted a great deal of controversy. I have my doubts whether it would be appropriate to include it. But they are doubts and certainly not convictions. People who go abroad to stir up racial hatred should know what penalties they face and should not use extradition as a shield behind which to hide.
There is, of course, an English crime of incitement to racial hatred, and I believe that what we would see under the general heading of racism and xenophobia in the Article 2(2) list would be broadly the foreign equivalence of that crime. Frankly, I believe that this issue has been exaggerated and I do not entirely agree on that with the noble and learned Lord. Nor is his highly critical view fully reflected in either the first or second reports of the committee. The second report appears to ignore it and the first takes a less controversial view. It is also true that under the present law of the United Kingdom the distribution of racist literature is an offence.
But there is a very important safeguard here. Law which criminalises racist literature or speech is a restriction on freedom of speech and therefore must satisfy the criteria in Article 10 of the European convention. That means, for example, that it must be a restriction which is necessary in a democratic society. Given the form in which the restrictions in Article 10 are expressed in the convention, I do not believe that Mr David Yelland has anything very serious to fear.
However, there are a number of other serious problems with the framework decision and they have been expressed by a number of speakers, particularly by the noble Lord, Lord Hunt of Wirral, with whose comments I am in very close agreement. First, I believe that there should be express provision in the body of the framework decision that extradition can be refused on European convention grounds. The nearest we get to that is Recitals 12 and 12A, which I believe are inadequate.
Secondly, Article 5(1) does not guarantee retrial for a person convicted in absentia but merely gives a right of appeal. That is a very serious defect in the framework decision. Apparently it was the Government's intention that there should be a right of retrial but for some mysterious reason it disappeared. Thirdly, the time limit for the execution of the warrant under Article 17 is 90 days, which is inadequate to allow the appeal process which would be necessary in 226 the requested country in order to provide what I agree is necessary. That is an appeal process in the requested country and not just an appeal to Strasbourg.
Fourthly, the framework decision does not provide for all states to be bound by the jurisdiction of the European Court of Justice, which is desirable in cases where I believe there is a great risk of conflicting interpretations of the framework decision by national courts.
Fifthly, it should be made clear that the European arrest warrant cannot be used to detain suspects for investigation purposes. I recognise that there are a number of very serious defects in the framework decision as it now stands.
I now turn to the second and even more difficult question. Even if one accepts, as I do, that we ought to aim at the objective of the European arrest warrant, can we have sufficient confidence in the judicial process in other member states to justify giving up the traditional safeguards in the extradition process to the extent which the framework decision requires of us? In the case of some member states the answer is yes. It would be wrong to claim that our own procedures are the best in the world. Others may be our equals and in some cases perhaps better than ours, but not all. Italy is notorious for its delays. The system of criminal administration in Belgium is so bad that it has caused a national scandal. Several countries continue to have standards for legal aid which we would regard as significantly too low.
It would have been desirable, as Justice has suggested, to have had an EU framework decision on minimum standards of criminal procedure to go along with the European arrest warrant. Minimum standards of criminal procedure should contain a right to legal representation of the defendant's choice and legal advice at all stages of the proceedings where it is needed, including, of course, the extradition proceedings.
The minimum standard should include a right to legal aid to pay for the necessary representation and advice. There should be a right to an interpreter if the defendant is not fluent in the language in which the proceedings are being conducted. Article 12(2) of the framework decision provides to some extent these rights but not necessarily adequately and it does not guarantee an adequate standard of legal aid.
We need something similar to habeas corpus to ensure that detention has legal justification and that defendants are released from custody where there has been excessive delay in bringing them to trial. An agreement on minimum standards should contain a presumption of the right to bail, an issue for which Fair Trials Abroad has been pressing for a long time. That presumption should extend to people who live outside the country where the proceedings are conducted and should be backed by a system of Euro bail providing for an automatic return of bail absconders. This would remove one of the main problems faced today, which is the tendency of national courts to refuse bail to non-residents because of the difficulty of ensuring their return to face trial 227 If such a framework decision was adopted and observed, I would feel far less concerned about the European arrest warrant. As it stands, it is essential that courts in the United Kingdom which are asked to give effect to the European arrest warrant should be satisfied that standards of fair trial under Articles 5 and 6 of the European convention will be applied in the requiring state. I would not object to a presumption to that effect, but it must at least be a rebuttable presumption.
I accept that allowing courts in the required country to consider standards of procedure in the requiring country could involve significant delay and expense in enforcing the European arrest warrant, but that is a price which has to be paid for ensuring that defendants are not returned automatically to states whose standards do not match those of the European convention. It would also act as a lever in raising standards in states where standards are not yet acceptable.
The adoption of the European arrest warrant has been an example of the flaws in the legislative process of the Council of Ministers. The framework decision has gone through many variations and even now it is not clear that it is in its final version—or, indeed, that the latest version in the Library dated 10th December 2001 is the current version. This is because the process is secret and we do not know the arguments behind the changes or who pressed for them.
Paragraphs 21 to 32 of the report of the House of Commons European Select Committee on the arrest warrant show an extraordinary situation. In this country, and, indeed, almost certainly in any other member state, there would have been far more transparency if the legislation was being passed through our Parliaments. Again because this is a third pillar issue rather than a first pillar issue, the European Parliament has a relatively minor role.
When we get the new extradition Bill in the next Session, we will be faced with either adopting a European arrest warrant without the additional safeguards we believe are needed or reneging on commitments entered into by our Government. Both alternatives are deeply unsatisfactory.
§ 9.40 p.m.
§ Lord Kingsland
My Lords, first, I should like to congratulate the noble and learned Lord, Lord Scott of Foscote, on a speech which was as perspicacious as it was comprehensive. Having heard the debate, I can say that it would have served equally well in winding it up.
Unlike the noble and learned Lord, I shall not make a speech which covers all the issues. Indeed, I shall address myself to only one of them—the issue which involves the Opposition's central criticism of the Government's conduct of the negotiations with regard to the framework directive. Our central criticism is that the Government failed to achieve incorporation of Articles 5 and 6 of the European Convention on Human Rights into the directive itself.
228 I wonder how seriously the Government tried to do that. I have been looking at a letter printed in the 16th Report from the Select Committee on the European Union, Session 2001–02, dated 26th February 2002. The report contains a letter from Mr Bob Ainsworth MP to my noble friend Lord Brabazon of Tara, in which Mr Ainsworth says the following:The Government does not see the need to include in the Framework Decision explicit grounds for refusal on ECHR grounds. A Framework Decision provides a broad commitment which is to be implemented in detail in national law. It will be for the Government to consider whether UK legislation should contain an express reference to refusal on ECHR grounds. It is significant that we believe that the Framework Decision would not prohibit such a reference".If that is so, is the Minister prepared to give a commitment to your Lordships' House tonight that the Government will include in the forthcoming Bill an explicit guarantee that our courts can apply Article 5 and Article 6 to these proceedings at Bow Street? The Minister has not responded to my question now. He may well respond affirmatively later when he replies to the debate.
Mr Ainsworth continues:However, it should be stated that it is not the intention that, as a matter of routine, the Bow Street District Judge should look at the motivation behind the request or the nature of the trial on return. These are extradition proceedings to a fellow EU Member State. Protection for the individual is contained in the domestic incorporation of the ECHR into the requesting state's criminal justice system, not before the District Judge at Bow Street".So I am forced to the conclusion that the Government's heart may not really be in providing ECHR protection in the requested member state's courts.
But supposing that I am wrong about this, and that when the Bill comes along the Government do everything in their power to ensure that these protections are provided—will that work? Probably not, because somebody is bound to make a complaint to the European Court of Justice about the United Kingdom providing such additional protection to those who come before its courts. Although the framework directive has no direct effect in our legal system, it would be perfectly possible for a complainant to go to the European Commission, which could then bring infraction proceedings against the United Kingdom Government.
As a consequence of those proceedings, the European Court of Justice might well say that the practice reflected in the extradition Act, as it would then be, was illegal, because it was not provided for in the framework directive. The current wording of the framework directive makes no express reference to these ECHR protections. It refers to the EU provisions on fundamental rights, but not expressly to the ECHR protections. The noble and learned Lord, Lord Scott of Foscote, made that point very clearly.
What conclusions can we reach about this sad affair? The first is that your Lordships' House must take early steps to ensure that, in future, draft legislation at European level negotiated exclusively between governments does not get far before your Lordships' House is involved. This legislation was 229 passed in three stages: first by groups of national civil servants meeting in secret; then by the permanent representatives of the European Community meeting in secret; and then by the Council of Ministers meeting in secret. It was only by accident that your Lordships discovered the true content and import of the framework directive in time to debate it.
There is perhaps an even wider issue here. I do not think that my learned friends behind me would ever accuse me of being a Euro-sceptic; but I believe that the European Union is making a serious mistake in extending the terms of the arrest warrant beyond the issue of terrorism. A nation state's criminal law goes deep into its history and traditions, reflecting individual moral values, which often differ widely between nations because the history of the member states of the European Community differ widely. To try to harmonise those matters is deeply dangerous and could provoke a strong adverse reaction from the citizens of this country and from others. I hope that I am wrong about that, but I fear that I shall be proved right.
§ 9.48 p.m.
§ Lord Rooker
My Lords, I shall do my best to answer some of the questions that have been raised, but I fear that I shall disappoint many noble Lords for reasons that will become obvious. In some ways, the noble Lord, Lord Kingsland, has just given the game away. He asks me to say whether something will be in the Bill, but says that if I say yes it will not work anyway. I cannot satisfy him however I answer. He will have to wait for the Bill to find the answer.
I am very grateful to the noble and learned Lord, Lord Scott of Foscote, for the way in which he introduced the debate. It might be useful to put on the record that we are not inventing extradition. Anyone would think that it did not currently take place. I asked the other clay for the figures to update your Lordships' House since we last debated the subject in November last year. Since then there have been 26 surrenders of fugitives from the United Kingdom to other countries, of which 15 have been to our European partners. Twenty fugitives have been returned to the United Kingdom, of whom 14 were returned by our European partners.
Among those surrendered by the United Kingdom in the intervening period was a case which took almost three years from provisional arrest to the conclusion of surrender. The person in that case was not being surrendered to a third world country with a questionable human rights record but to another EU member state.. Nevertheless, I accept that it is being said explicity in the debate that some EU member states probably have third world legal systems. That was clearly the import of some noble Lords' comments.
One point not made by noble Lords—although it was raised in a question from the noble and learned Lord, Lord Donaldson—is the requirement for prima facie evidence. As I understand it, no EU state is currently required to provide prima facie evidence 230 when seeking extradition from the UK, and it is not being proposed that that should be changed. In fact, no party to the European Convention on Extradition—which includes EU applicant states as well as some others—has to provide prima facie evidence. That is the current EU position.
The noble Lord, Lord Lamont, asked a question to which I think he probably knew the answer. Sometimes it is wise to ask only questions to which one knows the answer; otherwise one might be surprised. I assure him that no one will be extradited because of conduct occurring in the United Kingdom that is not contrary to UK law. I am happy to place that on the record and I hope that it reassures him.
In answering a question from the noble and learned Lord, Lord Scott, I rest on the wording of the framework document. For the avoidance of any doubt, I should add that my copy of the document is dated 10th December. In relation to people giving evidence, we rely on Article 1 of the framework decision—which, in my non-legal way, I do not believe could be clearer. In no way could anyone read Article 1 and infer that someone could be extradited for the purpose of giving evidence as part of an investigation. I do not think that anyone could interpret the article in that way. As there is no ambiguity, we see no need to make the type of statement that has been made in Ireland.
I come to the implementation date, although I shall return in a moment to future events. On 14th February my right honourable friend the Home Secretary joined Ministers from Spain, France, Belgium, Luxembourg and Portugal in announcing their wish. If possible, to operate the European arrest warrant between participating member states within the first three months of 2003. However, I can assure noble Lords that no declaration to that effect has been signed. The United Kingdom's ability to meet that objective will also be entirely dependent on agreement of the framework decision and passage of the extradition Bill by Parliament.
The noble Lord, Lord Lamont, asked which other member states still have parliamentary scrutiny reserves in place. I can confirm that he is correct in stating that, in addition to the United Kingdom, Ireland, Sweden and Denmark still have such reserves. He is also correct in noting that Austria will not be required to surrender its own nationals until at least 1st January 2009 at the latest.
I am extremely grateful for noble Lords' comments. I believe that back in November I responded to two debates on the same day. One concerned the European arrest warrant and the other concerned a matter the nature of which escapes me. In preparing for the two debates I believed that the European arrest warrant debate would be the easier debate. However, I reported back to the Home Office the next day that I had been knocked all around the Chamber. Things have changed, of course, since then, I am pleased to say. I believe that at that time we had just published the emergency anti-terrorism legislation and we intended 231 to legislate on this matter in a certain way. However, we did not do so at the end of the day. That matter greatly annoyed noble Lords.
I address the issue of parliamentary scrutiny, which has been the subject of voluminous correspondence between my ministerial colleagues and the committee and, indeed, myself on occasion although in much less detail. The European arrest warrant is now inextricably tied up with the issue of the review of extradition. I hope that noble Lords will take that on board. We are not dealing with the narrow single issue here. As noble Lords know, the Government set out their thinking on a streamlined extradition system in March 2001. That review was widely circulated and consulted on. The majority who responded supported the review's proposals.
One of the main purposes of the review was a fast-track extradition system between England and the United States. That in the event was overtaken by progress on the framework decision on the European arrest warrant. So far, the Government have deposited three texts and three explanatory memorandums on the draft framework decision. Ministers have appeared before Sub-Committee E of the European Union Select Committee on two occasions and written to the Select Committee five times. We are now engaged, of course, in a second debate on the European arrest warrant. In the other place Ministers have appeared once before the European Scrutiny Committee, have written to the committee five times and have participated in a debate in Standing Committee B. However, that is not the end of the opportunities that are available. That is central to the debate today and one of the reasons I cannot answer all of the detailed questions.
We announced in February that the Government would publish a draft extradition Bill. We shall do so before the Summer Recess. It was pulled out of the programme for this year. I am not announcing anything new. The Government intended to proceed with an extradition Bill in this parliamentary Session. However, the Home Office has three Bills this Session that were not announced in the gracious Speech last year and had to drop at least one criminal justice Bill. It was thought that once the decision was taken to introduce the European arrest warrant in primary legislation, the obvious vehicle for that was the extradition Bill.
As I say, we shall publish a draft extradition Bill, complete with notes on clauses, before the Summer Recess. That in itself will involve a detailed consultation process by which Members of both Houses and those outside who watch our proceedings closely, and are affected by them, will be able to see the Government's full decisions. There are still policy decisions to be taken on these matters. I am not in a position to comment on those policy decisions. That is why I did not respond to the noble Lord, Lord Kingsland. However, all will be revealed in the draft Bill. I asked the other day whether that would be a full draft Bill, not simply a "50 per cent" draft Bill, of which the rest would be filled in later on. I was assured 232 that it would be a full draft Bill, with Notes on Clauses, so that people can see exactly what is proposed. I hope that that makes for a mature debate in this country and an extremely well-informed debate in both Houses of Parliament.
§ Lord Mayhew of Twysden
My Lords, does the Minister accept that the terms of the extradition Bill will have to be governed by the terms of the framework decision when they are finalised? That is the immediacy of the issue that the committee and noble Lords this evening are pressing. Do the Government accept the necessity of ensuring that the framework decision makes it explicit that the required state shall have the right to question whether ECHR provisions will or will not be met by the requiring state? It is no good saying, "We should wait and see. All will be revealed when the Bill is published, when we can look at the Explanatory Notes". There will have to be consistency with the framework decision; otherwise our own courts, due to the Human Rights Act, will have a duty to strike them down.
§ Lord Rooker
My Lords, our courts have a duty to operate the Human Rights Act on behalf of our citizens as well. We should not beat about the bush. That is the primacy in this matter. The Human Rights Act is there to defend individual citizens. The courts also have that duty to consider.
I stick to the line that there are still policy decisions to be taken; I am not in a position to announce a series of policy decisions tonight. I am not in any way opposed to any debate in Parliament on any subject; far from it. However, sometimes the timing of debates can be a bit of a problem in the sense that one cannot make all of the announcements that one would wish.
§ Lord Lamont of Lerwick
My Lords, since it did not involve a policy matter, I wonder whether the Minister might answer the question that I raised.
§ Lord Rooker
My Lords, I can answer that, in the sense that I shall write to the noble Lord. I have been advised on this. I would not be able to answer his question from the Dispatch Box. I shall put the answer in black and white on paper. I apologise that I cannot answer his question now. The question is too difficult and complicated to answer from the Dispatch Box.
I understand why the noble and learned Lord, Lord Mayhew, pressed me on this matter. I am not in a position to go further than I already have, save in one area. In our first debate, in November, the question that the noble Lord, Lord Goodhart, asked about abortion and related issues gave me the greatest concern because I did not fully understand it. The issue was not clear.
The issue of dual criminality is set out in Article 2(2), but Article 2(4) of the framework decision allows the existing member state to decide whether to apply the dual criminality test. I said in our earlier debate, and we have said since—in correspondence and in the evidence that we have given before committees—that the Government have reflected on whether they should 233 retain the dual criminality test in respect of certain moral issues, such as abortion or homosexuality. While the Government remain committed to the abolition of dual criminality within the European Union, we have come to the view that it would be right to make use of the safeguard that is provided for in Article 2(4) of the framework decision in respect of such conduct. Accordingly, we intend to apply the dual criminality test for non-list offences. I make it absolutely clear that we anticipate that the overwhelming majority of requests will relate to the list in Article 2(2).
However, where we receive a request relating to an offence falling under Article 2(4), the district judge will be required to impose a dual-criminality requirement; in other words, he will need to establish whether the UK Parliament has taken a view as to whether the conduct in question should be considered illegal. If the test is satisfied, the warrant can be executed. If those requests do not pass the test, the district judge must refuse to execute the warrant. All that will be contained in the legislation which will give effect to the European arrest warrant. As I said, the extradition issues go beyond that.
With regard to the issue of racism and xenophobia, I want to help noble Lords as much as I can because it is a thorny subject and one which is often raised. The tabloids love it. That is not a criticism of noble Lords who may raise it, but the way in which the tabloids play it knocks it on the head.
I shall place this on the record for the avoidance of doubt later. A proposal for a Council framework decision on combating racism and xenophobia was published on 28th November and deposited for scrutiny on 17th December last year. The purpose of the framework decision will be to combat racism and xenophobia in the European Union by approximating the laws and regulations of the member states regarding racist and xenophobic offences and facilitating and stimulating co-operation among member states to combat those offences. It will, of course, be subject to the usual parliamentary scrutiny procedures. The types of offence listed in the framework decision go somewhat further than those found in UK statute. The deadline for full implementation of the framework decision is 30th June 2004.
The annex to COPEN 79—that is, the framework decision on the European arrest warrant—states that in order to make the European arrest warrant operational throughout the Union for racism and xenophobia offences, member states should be guided in their definition of such offences by reference to the joint action of 15th July 1996. Once the framework decision on racism and xenophobia has been adopted, this will supersede the joint action of 1996.
I shall put one more question and answer on the record concerning how the Government define the crime of xenophobia as listed in Article 2(2) of the framework decision. If the UK were making an extradition request for offences under the heading of "racism and xenophobia", we would do so in terms 234 of our law on incitement to racial hatred, racially aggravated offences, and racial discrimination under the Race Relations Act. Execution of the warrant would, of course, be subject to the threshold that a sentence of at least 12 months should apply to the offence in the issuing state.
I realise that there will be a good deal of debate about this issue, and rightly so. But it will have to rest on our proposals—that is, the proposals that the Government bring to Parliament. We are not in a position to do so now, towards the end of April, but we shall do so before the Summer Recess. I regret that I cannot be more specific than that in respect of the date, not least because I do not know the date of the Summer Recess. We shall produce the draft Bill which, of course, can, and I have no doubt will, be subject to debate in the country as well as in Parliament, perhaps before we even reach the point of publishing the formal legislation to bring before Parliament.
That said, I am extremely grateful for the work that the committee has done and for the way in which the noble and learned Lord, Lord Scott, introduced the debate.
§ Lord Rooker
My Lords, I shall never be able to answer the noble Lord's question but I shall give him a chance.
§ Lord Pearson of Rannoch
My Lords, the Minister has been very kind in telling us how the United Kingdom would regard an extradition request for racism and xenophobia. However, he has, I believe, given me no fewer than two Written Answers to the effect that, when a foreign country issues the arrest warrant, the crime of racism and xenophobia, and indeed all the others in the list, will be defined purely by the issuing country.
That leads me to a final question to the noble Lord, both as regards the directive which attempts to define the crime of xenophobia and racism and, more importantly, as regards the framework decision itself. How deeply enmeshed are we in this particular Eurobog in Brussels? When the noble Lord is good enough to publish his draft Bill, what powers will this House and the other place have to change that? Can we change it or are we already committed, and if so to what extent, particularly on the framework decision?
§ Lord Rooker
My Lords, I am unable to answer he question in a way which would satisfy the noble Lord. The powers of Parliament are to pass or reject the proposals put to it by the Government. In saying that I do not make a point either way. However, that is the only answer I can give. The Government will present a Bill to both Houses. We cannot get Royal Assent to the Bill and operate what would then be an Act unless both Houses agree to the final terms of the legislation, as in the normal parliamentary process.
I realise that to those who take a principled position on anything which contains the word "Europe", that is not a satisfactory answer because they will list, chapter 235 and verse, the things about which they are not happy which Parliament has approved. However, that is where I rest my case. Parliament will have approved it.
§ Lord Pearson of Rannoch
My Lords, the Minister has not quite answered the question, which was: to what extent are we inevitably committed to this legislation in Brussels and to what extent have the Government already sold the pass? How relevant is what we agree here and send to Her Majesty for signature and so forth? How deeply enmeshed are we in this? Can we change it? Is what we decide in Parliament the end of the matter or are the Government already compromised by decisions taken in Brussels?
§ Lord Rooker
My Lords, I had sat down. I do not accept the pejorative terms in which the question was asked as regards selling the pass and the Government being compromised. I rest the case on the answer I gave originally. I have now concluded.
§ Lord Scott of Foscote
My Lords, I am grateful to all noble Lords who have spoken in the debate and who have provided support for the report of Sub-Committee E. I am grateful also to the Minister for the assistance he has given in the response to the points made by your Lordships. There are some points about which I am still troubled and some about which I am still uncertain. I am anxious to see the draft Bill, which we shall have before the summer Recess, to see to what extent the points of principle which have been made in the various speeches tonight have been taken on board by the Government. I was pleased to hear from the Minister that there were points of principle on which the Government have not yet made up their mind. They have had a great deal of material tonight to assist them to do that.
Perhaps I may take a moment to refer to the point raised by the noble Lord, Lord Pearson. The framework decision has not yet become final. The 236 Minister said that besides ourselves, Ireland, Sweden and Denmark still retain scrutiny reservations. According to the document of 10th December at which we have all been looking, COPEN 79, there were scrutiny reservations also from the Netherlands. Perhaps they have relinquished their reservations since then.
Unless the framework decision becomes final, Parliament will have complete freedom to pass whatever amendments to the extradition arrangements with the European Union it chooses. If the framework decision becomes final, as a matter of treaty the Government will be bound to introduce domestic legislation to implement the terms of the decision which will have become final. However, if the legislation introduced by the Government and passed by Parliament in one respect or another appears to contain an inconsistency with the framework decision, it will be the Westminster Act that will govern in this country. What potentially might happen then would be that some other member states might take whatever proceedings are available—I hope not to be asked what they might be—in order to complain of the British Government's failure to produce legislation which corresponds with the framework decision. But we can rely, for the time being at least, on the contents of the Act passed by the Westminster Parliament. Therefore, the assurances that the noble Lord has given about what will be contained in that are of legitimate comfort to us.
I am grateful for the opportunity to have had the report of Sub-Committee E debated today. I am grateful to all noble Lords who have spoken and for their support and to the noble Lord for his response.
On Question, Motion agreed to.