WEDNESDAY 9 JANUARY 2002

__________

Members present:

Mr Jimmy Hood, in the Chair
Mr William Cash
Mr Michael Connarty
Mr Tony Cunningham
Mr Wayne David
Mr Jim Dobbin
Mr Mark Hendrick
Mr Jim Marshall
Miss Anne McIntosh
Mr Bill Tynan

__________

MR BOB AINSWORTH, a Member of the House, Parliamentary Under-Secretary of State (Anti-Drugs, Co-ordination and Organised Crime), MS FENELLA TAYLER, Extradition Bill Team, and MS LESLEY PALLETT, Head of the European and International Unit, Home Office, examined.

Chairman

  1. Minister, welcome to the European Scrutiny Committee. I understand that you are now meeting at a quarter past twelve, so whilst not guaranteeing that we will be able to finish our session, we will do our utmost to try and finish our questions in order to allow you to get to your meeting if at all possible. With that in mind, I will ask the first question, Minister. Article 1(1) of the Framework Decision now defines a European arrest warrant as a 'court decision'. Does it follow from this that Member States are not free to designate a body other than a court as an issuing or executing judicial authority?
  2. (Mr Ainsworth) Thank you, Chairman, for attempting to accommodate me. We had no idea how long your proceedings would take having never appeared in front of you before and I thank you for the opportunity of coming and trying to explain the current situation with regard to the arrest warrant. With regard to your question on Article 1, the procedures are to be between judicial authority and judicial authority with only assistance in terms of administrative assistance from any central authority and, as you quite rightly say, it is now spelt out in Article 1 that it is to be a court decision to be taken. I know there were some initial concerns raised by Members I think of both Houses that potentially these warrants could be issued by police authorities, but that is not the case. Clearly it must be a judicial authority and we anticipate the same judicial authorities that are currently applying for extradition within the European Union will be using the powers of the European arrest warrant and it will be a court decision taken, judicial authority to judicial authority. In England and Wales the judicial authority will be the Bowe Street Magistrates' Court as it is currently.

    Mr David

  3. Just to clarify that point a bit further, does it not follow from this Article that the courts in this country are not obliged to recognise and enforce a warrant if it comes from a body which they do not recognise as a court?
  4. (Mr Ainsworth) Well, the judicial authority will be designated by the issuing State, but it will have to be that, a judicial authority and a court, so it will not be for the British authorities to say what is and is not a court in another European State, but it will not be possible for authorities that clearly are not courts, that are not judicial authorities to issue requests for European arrest warrants as they will not be recognised.

  5. Can we be sure that this will be made clear in the Extradition Bill?
  6. (Mr Ainsworth) Well, the whole thing will need to be spelt out within the Bill. I think that it is now clear within the Framework Document where you will see in later Articles that it says that the requirement is between the judicial authority in the issuing State to the judicial authority in the executing State and quite rightly Article 1 says that the European arrest warrant shall be a court decision. I am not certain there is any further clarification and I am happy to try and understand concerns that there may be remaining, but it appears to me that it is very clear that this cannot be a police authority, but it must be a court, a judicial authority.

    Mr Cash

  7. Minister, I find your answer extremely difficult to accept because you have already contradicted yourself to a degree by saying that the UK would not be able to decide what is a court in another country, but you said at the same time that this would be a matter of judicial authority to judicial authority. This is not just a matter of semantics and there is a deep concern about these arrangements. It is not just a party-political question, but this is actually about justice for individuals in the United Kingdom who could find themselves in an utterly impossible position in relation to matters which are regarded as criminal in other countries. Have you actually made an analysis within your Department of the nature of judicial authorities throughout every single one of the other Member States, including the accession countries because if you have not, then it follows that you do not actually necessarily know what the nature of these judicial authorities is and this is a very serious matter which could affect any one of our constituents.
  8. (Mr Ainsworth) Mr Cash, I would be very surprised if I were able to satisfy you on all of these issues. I am not trying to be in any way provocative in saying that, sincerely I would be very surprised. Throughout the document, in every Article you turn to, you will see that the "judicial authority" is referred to in the executing state and in the issuing state. We already have extradition arrangements with all European countries and we look at extradition in the individual cases with those authorities. Yes, there are different legal systems that apply in different parts of the European Union, but there are clear judicial authorities who apply for extradition and who will be the authorities that have the power to apply for a European arrest warrant. Those judicial authorities will be reported under the Framework Agreement, they are the judicial authorities that will have that power and it is clearly stated in the Framework Document that it will be a court decision. You will need to spell out what your fear is.

    Mr Cash: No, I am afraid that will not be the way round, Minister.

    Chairman

  9. Order, order, let the Minister finish and you can come back, Mr Cash. Please continue, Minister.
  10. (Mr Ainsworth) As I say, I think it is pretty clear that we are talking about judicial authorities and only judicial authorities will be able to apply. We are not talking about accession states by the way, we are only talking about Members of the European Union. Yes, at some time in the future those accession states will potentially become full members and they will have to comply with all the provisions of the ECHR and then they will be accepted into these arrangements and recognised as such.

    Mr Cash

  11. You say that it is pretty clear that we are talking about judicial authorities, those are your words just used. All I can say is that if you have not actually made an analysis of the nature of the procedures and the manner in which the so-called courts are going to operate - and this is not a question of euro scepticism and/or euro phobia and whatever else is implied lurking in the back of your mind on this subject; this is a question of law and it is a question of analysis. You still have not answered my question which is whether in fact you have done the analysis I requested. Could I put this to you: are you, in fact, now going to do so, because if you cannot come up with an answer to the question I put, a lot of people, quite rightly, will be deeply worried about what is going to happen in the run-up to the introduction of the Extradition Bill.
  12. (Mr Ainsworth) Can I try to satisfy you in saying that I do not think there is any doubt that the British judicial authority, for example, Bow Street Magistrates' Court in the case of England and Wales, will not only not have the ability but will certainly not execute a European arrest warrant that comes from anything other than a judicial authority in another European state.

  13. Would you be kind enough finally - and I cannot ask the question more than once more - to let us have an analysis of what is a judicial authority and/or court as described in this Framework Decision in respect of each Member State so that we are in a position to be able to make a judgment in the run-up to the Extradition Bill as to what meaning will be attached to those words?
  14. (Mr Ainsworth) I could provide you with a list of all the different authorities who have looked at extradition arrangements over many years.

    Mr Cash: We know what the arrangements are here in the UK.

    Chairman

  15. Order, order. Minister, please carry on.
  16. (Mr Ainsworth) The principle, Chairman, which we are accepting - and if members demur

    from that principle then there is not going to be any way of satisfying them - is that the countries with whom we are about to enter this arrangement have all signed up to the ECHR, they are all our European Union partners, and there are huge benefits that can flow from mutual recognition of their systems, and there is not the necessity for ourselves to vet every aspect of those partners' procedures. If there are members who, as I say, demur from that, they are not going to be happy with this direction, but that is the position of the Government.

    Mr Connarty

  17. A minor point, I think the Minister was touching on it earlier on, on the question of the accession states and the judicial competence of their authorities is obviously one that is under scrutiny in the acquis process. In a number of those there might be some concerns that they have quasi military courts which still operate. Is it going to be clear in the Bill that comes out the status of courts-martials, for example, the military courts, even our own, and whether they would be recognised as judicial authorities and would they have to go through a non-military court process to be recognised as appropriate judicial authorities for the purpose of using these arrest warrants?
  18. (Mr Ainsworth) We are working with and trying to assist all of the accession states to come up to the kind of standards that are going to be required of them to have access to the Union and access to the kind of facilities that we are bringing in here. So we would not accept that there are going to be countries that will continue to have lower standards of justice than that required by the ECHR and which are normal within the European Union and yet have access to the use of the European arrest warrants.

  19. Would the concept of a court-martial be recognised as judicial authorities for the purposes of this arrest warrant, even our own court-martial system?
  20. (Mr Ainsworth) I am not sure about the situation as regards military courts.

    Mr Connarty: I think that should be clarified in the Bill.

    Mr David

  21. Can I take us on a little bit and raise the question of definition of offences under Article 2(2). One of the things that is significant here is that the concept of dual criminality is not required. Instead, there is a list of offences which are defined - or, rather, not defined only described - and some of the descriptions are fairly vague and all-embracing such as "racism" and "xenophobia" and "motor vehicle crime", for example. Do you not think that the implication of that and the fact there are different definitions of what precisely those terms mean in different Member States will take us gradually towards a situation of some kind of harmonisation of criminal law at an EU level? Is it that a fair statement and, if it were, would you welcome such a move?
  22. (Mr Ainsworth) I think quite the reverse actually. In the modern age we have a clear choice about where we go with regard to future recognition and judicial co-operation with our European partners. We either stick with the kind of cumbersome, and there is no doubt about it, antiquated system that we have at the present while we recognise that there is increasingly free movement of their nationals within our country and our nationals within their countries and we just accept that it can take years and be a very long process and often a process that thwarts the ability to apply justice where someone has crossed the border, or we go down the road of mutual recognition, or the other alternative is to try to establish some body of European law. I would have thought that it is far more acceptable to our citizens that we go down the road of mutual recognition in order to provide adequate justice in that modern situation, in that modern setting, rather than attempting to invent some kind of European law that applies to all the countries. So I see mutual recognition as an alternative to that which you describe. When we turn to the generic list I understand some of the concerns that arise from the list. The arrest warrants themselves will not be able to be framed in the terms of that list, they will have to be framed as a specific offence in the issuing country. So, therefore, let's say in the area that comes under swindling, no-one will see a European arrest warrant that says "this person is accused of swindling". They will see a European arrest warrant from another country or from this country going abroad which says that "this person is accused of counterfeiting documentation in order to allow them to access somebody else's bank account." It will have to be framed in terms of a specific offence that falls within those terms, and the warrant will only be accepted if it is framed in such a way. If we were to try to identify every single offence rather than have these broader descriptions, then it would be a very long list indeed, and it would be tantamount to trying to encapsulate dual criminality in a massive list that covered every single situation. I do not really know what the choice is and whether we could have a framework list that says only in these areas is dual criminality abolished.

    Mr Marshall

  23. I am sorry, Minister, I was following your argument but now I am a bit perplexed. You did say in response to my colleague's question that the warrant would have to state explicitly the crime for which the person was being charged. You then went on to say that would not be the case, that it would be covered by the generic. I am afraid that is not what I understand.
  24. (Mr Ainsworth) There is no intention to deceive. It is an arrest warrant. Let us say if we are applying for someone's return from Germany who committed a crime in this country, the offence that is described on the arrest warrant will fall within that area, it will name a specific offence that is relating to a crime with that minimum sentence within that threshold sentence. It will only be valid if it does name a specific offence in British law in order to have that person returned to this country. Those generic terms are there in order to tell people in what category they can frame those requests. The actual arrest warrants that are sent or received will have to name a specific offence that falls within that area.

    Tony Cunningham

  25. I want to go back to the principle of the Bill. A great concern that I have is as a result of a conversation I had with a senior police officer, who said of the, I do not know how many exactly, 100 top criminals in the United Kingdom not a single one of them lives in the United Kingdom. What I want to know is how will this European Arrest Warrant improve that situation as far as bringing justice to those people who have committed crimes in this country are concerned but are living in other parts of the European Union?
  26. (Mr Ainsworth) Our procedures, as they apply at the moment, apply to our European partners as well as other countries and are extremely cumbersome and they take many, many years, which is a deterrent for application in the first place. We are not the easiest country from which to get extradition and we have not got an exceptional record in this regard. We often get criticised by other countries for our refusal to extradite people in other countries. We have a difficulty with criminals living in other European countries who are accused of committing crimes here. It is bound to be a far more streamlined situation, it cuts out the involvement of the executive. It cuts out political involvement. It recognises judicial authority and a request for a return of an accused person. That is going to be a much faster procedure and it is going to be far more difficult, I think, for people to, therefore, escape justice by merely crossing a border which is freely and easy crossable in the modern age. That is the whole purpose to the arrangement at the moment. We have situations with extradition requests for European partners currently on-going that have been dragged out for years by constant judicial challenge and delaying tactics, and that cannot be in the interest of justice.

    Mr Connarty

  27. Can I move to another subject, Article 4(7) of the Framework Decision allows the executing State, for example the United Kingdom, to refuse to surrender a person in circumstances where the issuing State is asserting its jurisdiction. Could you tell us, was this an amendment, a provision that the United Kingdom was pressing for and supported? Can you assure us that exemption will be taken up when you bring in the forthcoming Extradition Bill?
  28. (Mrs Tayler) This particular paragraph in this article did go through numerous redrafts because it is an extremely complex and an extremely difficult concept to frame. Particular wording here was, indeed, supported by the United Kingdom.

  29. What is the definition you would put on extra-territorial? When would a country be in breach of this amendment, this clause?
  30. (Mrs Tayler) The reason it is framed in a rather complicated manner is it is trying to do two things, it is trying to prevent an injustice on the one hand but capture the situation where extradition would be right. An example of preventing an injustice is where a United Kingdom citizen, somebody who is in the United Kingdom, is carrying out something in the United Kingdom which is legal here but in another country, another member has extra-territorial jurisdiction, where it is an offence in that country and they want to extradite the return of a person from the United Kingdom to that country. This will prevent that, it is clearly a case of an injustice. The other limb of that is not to prevent extradition where it would be right to extradite the person where the country has extra-territorial competence.

    Mr Connarty: I look forward to seeing the draft Bill.

    Mr Cash

  31. Could you explain why, going back a few months, this whole business of the European Arrest Warrant was really being so largely brought forward on the basis of the events of September 11 and the tragedy that occurred then? Why is it that we have agreed to extend the nature of this Arrest Warrant across the board to the offences that are stipulated in the Framework Decision rather than confine it to a much, much more limited arena of terrorism?
  32. (Mr Ainsworth) Your description of the facts do not fit the facts as I see them at all. We announced the intention to modernise our extradition arrangements going back some long time. We issued a consultation document back in March of last year. That consultation document spelt out our intention to streamline our extradition arrangements, not only with our European partners but with other states. Yes, of course, the events of September 11 gave some focus and some impetus to get this agreed and I think that if there are any members of the House trying to suggest that effective extradition is not relevant to action against international terrorism that is a very strange position, indeed, that is not the origin of these proposals. Why on earth should it be limited to simply terrorism, the intention was there? It is a public document and if there are any members who want to check that out it was made public in March. The responses to the consultation were published and placed in the library and are available on the Home Office website. It is not correct to say that the origin of these proposals was 11 September.

  33. I am sure we can end up with some extremely surprising results in the context of the failure to deal with the distinction between different kinds of crimes, do you accept that a British doctor who assists in euthanasia in the Netherlands or Belgium, his acts may be lawful in those countries but it would constitute murder under the law of the United Kingdom, yet he would have to be surrendered by Belgium or the Netherlands, unless those countries rely on Article 4(7) and refuse to surrender a person. What do you think about that?
  34. (Mrs Tayler) We said that we have given commitments to committees of the House in response to the scrutiny process that we are looking at. We will address those issues of conscience and come back to the House in the framework legislation. This is a Framework Document. It does not dictate in every detail how we frame the legislation that we bring forward to the House. Yes, the legislation must comply with the Framework Document, but there is no requirement on us to go further than that, and the terms of the legislation will be subject to scrutiny in the normal way, so the issues that the honourable gentleman raises are not being forced on us by the European Union, they will be decisions that will be taken by this House when we come to deal with the detail of the legislation that we bring forward.

    Miss McIntosh

  35. To start with could the Minister explain when the European Parliament is expected to reach its final opinion on this text?
  36. (Mr Ainsworth) We are expecting them to report back in February but there is no definite time.

  37. Has he taken the opportunity to explain to members of his own party who sit as MEPs some of the concerns of this House?
  38. (Mr Ainsworth) Have I taken the opportunity to talk to members personally?

  39. Yes?
  40. (Mr Ainsworth) No, I have not, not yet.

  41. Would you consider doing that, Minister, in the short time available?
  42. (Mr Ainsworth) Is the honourable Member concerned about it?

  43. I am thinking of the comment we heard this morning from another member, Mrs Dunwoody, that there are concerns across the floor of the House that raise a number of issues. Am I not right that it is one of your members of the European Parliament who is rapporteur on this. From my experience when I was rapporteur or spokesman for the Conservatives, I was always very flattered when the Minister sought me out to explain some of the concerns that we had at home. Would you consider that this was a useful course of action?
  44. (Mr Ainsworth) If there are concerns about the Framework itself, yes, most certainly that should happen. As I say, there is an amount of detail that needs to be settled and we are free to settle it within the national legislation that we plan to bring forward, and that is a matter for the House to do so.

  45. Just to enable him to read the note that has just been passed to him, could I ask, following on from that, about one of the detailed concerns that was clearly felt by the Committee this morning which is the specific issue of dual criminality. What assurance can you give us today on the issue of plane spotting, for example? Clearly plane spotting is considered legal in this country and we had an incident recently whereby 12 or 13 British citizens were imprisoned for a considerable period of time and now face returning to Greece to proceed this, and there is a concern that that is just the type of issue - and perhaps euthanasia is another one to which Mr Cash referred - that many of us had not thought that we might be or one of our constituents might be subject to an arrest warrant for extradition. Have you considered how Article 2(2) can be tightened up to remove any such situation? Minister, you must agree that it is an alarming situation whereby the Greek authorities have still not produced anybody who is charged with the murder of the Defence Attaché in Athens some considerable time ago. We now have a situation where people that were engaged in what is considered an innocent activity in this country - plane spotting - are imprisoned without charge, which would certainly not be the case in this country, and now face charges being laid against them any time shortly. What immediate plans have you to tighten up Article 2(2) to make sure that innocent activities in this country will not mean that our constituents face prosecution in a country like Greece once these provisions come into effect?
  46. (Mr Ainsworth) There is no requirement in the Framework Document for the British Government to release the dual criminality requirement for anything other than those areas covered in 2(2) and covered by length of sentencing in 2(2). Whether or not we do go further than that is a matter for us, it is a matter we have said we will come back to the House on, and we will reflect upon it before we bring in further legislation. So the only area where we are obliged by the Framework Document and where at the moment we are able to release the dual criminality provisions are those areas that are covered by the list and those areas that are covered by the minimum sentences, nothing else.

    Chairman

  47. Minister, may I refer to your letter of 13 September to those who attended the debate in Standing Committee B on 10 December. In Standing Committee you said that it had been agreed that future texts of Article 5 would guarantee a retrial. Yet within a day a further text was produced by the Presidency which contains no such guarantee. Can you explain why the UK did not insist on a text corresponding to the agreement you mentioned in Standing Committee?
  48. (Mr Ainsworth) Can I say to you, Chairman, and to the Committee, that there was no intention to deceive Committee B. The text going into various meetings did have that provision within it, and I was trying to keep the Committee aware of a moving situation, as we are required to do under scrutiny arrangements, and to do our best not to hide the latest situation from the Committee. I attempted to bring the Committee right up-to-date with what the current situation was, and the text going into those meetings required a retrial in those terms. You will see and you will be aware that that wording changed. It would be helpful if I were able to explain to you exactly why that changed but it was a negotiation and I am not able to do so. What I am able to do and what I have done in writing to the Committee is give a very clear indication that it is our intention when bringing forward the legislation to bring it forward in such a way that it makes it very, very clear that where we are talking about a decision taken in absentia, there will be, where it is required, a requirement to guarantee a retrial, and we believe that we are fully able to do that within the wording within the Framework Document. If we did not believe that we would challenge the situation, but that is our intention. We see no reason to backtrack from that and that is a very clear assurance that I can give to the Committee and to the House.

    Mr Marshall

  49. I can only press the point that you have just made, Chairman, and thank the Minister for the response he has already given. Just for my simplistic mind, the Government's position is that it will impose this higher condition than exists at the present time in the Framework Document and that the Government believes that it will be able to sustain that higher condition even though the present Framework Document only refers to the exercise of a right of appeal. The Government's lawyers are quite clear, are they, that we can sustain that position?
  50. (Mr Ainsworth) You can see the new wording that emerged from the latest document. The person who is subject to a European arrest warrant - this is where an in absentia decision has been taken - will have an opportunity to lodge an appeal or opposition in the issuing State and to be present at the judgment. We would have been far more comfortable if it had said clearly and explicitly a retrial. I say again that it is our intention within our legislation to use those words and to put those words in. We see no way that that can ---

  51. Those words being a retrial?
  52. (Mr Ainsworth) A retrial. We do not believe that is challengeable within the Framework Document, and so that is a clear commitment we can give the House and that is our intention with regard to the legislation.

    Tony Cunningham

  53. Could you tell us whether or not the UK Government has made or will actually make an interpretive statement in the Council itself that it will not surrender persons convicted in absentia without the guarantee of a retrial?
  54. (Mr Ainsworth) If we thought it was necessary we would do that.

  55. That has not been done yet?
  56. (Mr Ainsworth) We have not done that and we do not believe that is necessary. We believe we have the ability to bring in legislation within this Framework Document that uses those terms and gives that assurance, and that that is sustainable. If we are given any advice that is not so then we would have to do something else, but that is not the advice that I am given. The advice that I am given is that it is sustainable that we bring in legislation that guarantees a retrial and that is our intention.

    Mr Connarty

  57. I want to pursue this. Just to be clear, what was said earlier was that the United Kingdom would bring in legislation, that is not just bring in legislation that anyone extradited to the United Kingdom who had been tried here in absentia but that anyone extradited from the United Kingdom would not be sent back unless there was a guarantee of a retrial. That is the position of the government.
  58. (Mrs Tayler) That is the position. That is the issue that people are concerned about. We are not concerned about people coming here, are we, we are concerned about the situation where people have been tried in absentia abroad and are potentially sent back without the right of a full retrial.

  59. What sticks clearly in my mind is it is quite clearly stated by yourself in Committee B, "it has been agreed that future text will guarantee a retrial if a person is absent for the original trial". Exactly who was it agreed with and who represented the United Kingdom and was present at that agreement? In other words, where did that fact that you stated then come from and why has it changed since? It does seem to me when a minister says "it has been agreed having been to the appropriate council", they are talking about a factual incident, something that will be minuted somewhere with the consent or agreement of the people on the committee. If that has been overturned it would appear to me that that is what the United Kingdom government should be challenging, the right of the Belgium Presidency to overturn that agreement. If there was not, in fact, an agreement then clearly there has been a misunderstanding of what went on before the text was written by the Belgium Presidency?
  60. (Mr Ainsworth) Let me be clear about that, that was the wording of the documentation going into the last negotiation.

  61. That is not what it says there. It says, "it has been agreed that future text will guarantee it". It does not say that the document had this in it.
  62. (Mr Ainsworth) As I said, there was no intention on my part to deceive anybody. I was trying to reassure people about the direction in which the negotiations were moving. I was aware that the document was written in that way. I was aware that a meeting was about to start in Brussels. I made the Committee aware, or I attempted to make the Committee aware, that that was the wording contained within that documentation. By the end of that negotiation, this was not an imposition of the Belgium Presidency, the wording had changed. I immediately wrote to the Committee to make them aware that the wording had changed and to give them the assurance that I am now giving to this Committee that it is our intention to frame our legislation in that way. If the words I used were misleading I can only apologise for that, I was attempting in a very fast moving situation, where there were continued discussions, where documentation was being thrown, we were trying to get them to scrutiny committees as quickly as possible so that they can follow the drift of those negotiations. I was trying to keep them as up-to-date as possible.

    Chairman

  63. I asked an earlier question on the same issue, this is not an attempt to assist the minister, far be it from me to do that, it is my understanding from your answer to me earlier that when you made your statement in the Standing Committee you thought that that was what was going to be agreed, at that time that was the document going to the presidency. When you made that comment at the Committee, from when you had that in your mind, it was changed by the Presidency.
  64. (Mr Ainsworth) Chairman, I have no problem with you trying to assist me at all, if you want to do that you will get no objection from me. I was asked to go in front of the Scrutiny Committee and I was happy to do so. We were going into a meeting at the time and they were concerned about the documentation that had actually been laid and was therefore scrutiny. The wording in the documentation left a bit to be desired. I was aware that there was new documentation, there was a new meeting taking place and in that documentation it did say that there would be a guarantee of a retrial. I made the Committee aware of that. By the time those negotiations finished, which was only a day or so later, that had changed. I wrote to the Committee straightaway to tell them, "I am sorry, I have effectively misled you", because this was the wording that came out of that Committee. If we are going to have effective scrutiny and if you want me to make documentation available to you quickly and repeatedly those kind of issues are going to arise. I hope you would not want the Home Office to say, "we will let you see it at the end of this process", you would hope we would be open as the process is on-going and try to keep you as up-to-date as we have now. Effectively we gave a reassurance that was not worth anything at the end of the day in that arena. We are now making certain that we are making it clear to the Committee what our intentions are, and are our intentions are to use those words.

    Mr Connarty

  65. There is no intention on my part to make any point against the minister. I have been on this committee long enough, and previously served on the directive sub committees, to understand the shifting nature of European legislation and negotiations. What I am concerned about is when the United Kingdom thought it had an agreed position that position was the right position for the EU, not just for the United Kingdom, that people should not be extradited without the guarantee of a retrial if they had been tried in absentia. That was for the whole of the EU. I just do not happen to think it is sufficient for the United Kingdom to say, it is all right, we will write it into our legislation that we will not send anybody back to any country. The point is that we did think we had negotiated an EU-wide agreement. I think it is beholding on the United Kingdom government, because it is supposed to influence the EU in a correct way, to go back and argue that position for everyone in the EU. No one in the EU should be extradited to another country where they have been tried without the guarantee they will have a retrial and proper legal representation, anything else is a breach of justice. It does seem to me the minister would have an opportunity, or the United Kingdom government would have an opportunity, to go back and renegotiate the final text so that the guarantee of a retrial is EU-wide. Is the minister saying he has abandoned that strategy or does he think the government are still willing to argue that case?
  66. (Mr Ainsworth) I accept what my learned friend says. In an ideal world that would be so, we would be very comfortable with that going in. Members will be aware that before that meeting there was not agreement across the EU and there was not likely to be agreement across the EU. There was negotiation and numerous things changed. As I tried to say to the Committee, I cannot pin down exactly why that particular wording changed. If we thought that there was a chance of getting agreement, and this needs to be unanimous across the board, with that wording in we would be going back and doing exactly what you are suggesting and trying to achieve exactly that. If we were not comfortable with our ability to be able to enshrine those words in our own legislation we would be doing what was suggested over here, and that is making a statement. We are comfortable with our ability to be able to do that. With regard to our own citizens we are able to give that reassurance. We are confident we are able to give that reassurance. We do not think there is anything to be gained by attempting to reopen the issue.

    Mr Connarty: That is a very sad reply.

    Chairman

  67. Are you seeking to assure us that in Article 5(1), where it does not specifically mention retrial, it is the intention of the United Kingdom government to ensure that any of his citizens who are aggrieved by any decision taken will have a right of retrial when you bring the legislation about to assure that?
  68. (Mr Ainsworth) It is my understanding that we are able to do that. We are able to do that within the Framework Document and we intend to do that. If I have doubt about that I would tell the Committee whether I have doubt about that, but I do not.

    Mr Cash

  69. It is all very well, Minister, for you to take advice and to come to a conclusion on the basis of that advice. I do not want to go into the pre-history of this because I am aware that these things can happen. What I am more concerned about actually is the substantive question, which is whether in fact in the Extradition Bill it is going to be possible in a way that it will stand up, if and when it ever came before a court of justice, that this interpretation that you are telling me you have been advised of would be realistic and would actually be sustainable? I am, therefore, going to ask you quite clearly whether we can see the advice that you were given. One of the problems in this whole arena of European scrutiny is that whereas we would be able to draft our own legislation and make it quite clear, as you obviously intended when you went into that meeting, that you would guarantee a retrial, in practice, for reasons which are obscure to me, other countries did not want that and, therefore, you were put in an impossible situation. I am not going to criticise you for that. What I am saying is, we want to be guaranteed when this Bill comes out it has provisions which do stand up in relation to the Court of Justice so it cannot then be overridden, like the Merchant Shipping Act, and we then get told, "that is what we thought on advice would be all right but in practice it was overtaken by the courts and the Court of Justice. So would you be good enough to let us have a copy of that advice?
  70. (Mr Ainsworth) I think you are over-dramatising it when you say that I was put in an impossible position. I was responding to questions of scrutiny, I was attempting to keep the Committee as up-to-date as I could, and subsequently the wording was changed and I told the Committee of the change and made them aware of it. I can only tell you that it is not normal for Ministers to publish advice. I can only say to you that I have satisfied myself that our intention in the way in which we intend to bring this Framework into being in this particular area of decisions in absentia, and the right of a retrial in those circumstances, is not challengeable in the actual legislation itself, and I have satisfied myself that that is not so, and that there is no ability to overturn particular decisions and that that is not going to be a real situation. If I were worried about that, we would be looking to change the words, but that is our intention - to make it very clear, enshrined in British legislation that where a sentence has been given in absentia, the person will have a guaranteed retrial if sent back to the issuing state, and I see no way that is going to be overturned.

    Mr Hendrick

  71. Can I apologise for leaving the meeting for another meeting briefly and this point may have been covered while I was away. Can you tell me, Minister, which countries have an objection to retrial and what the rationale behind that objection is? I know it is not your responsibility to speak for them but just as matter of interest.

(Mr Ainsworth) I would like to be able to but, as I say, there were lots of changes to the wording in order to get agreement across the 15 countries and this was one of them. If I were able to clarify the position for the Committee as to exactly why these words were chosen against those which we were far more comfortable with, I would be happy to clarify the position, but we did have the agreement of 14 countries going in and we had the agreement of 15 countries coming out. There have been substantial changes in different areas and it is not possible for me to be able to say to you exactly why that was changed. The only guarantee that I can give to you is if we thought we could get it reinstituted that would be something we would be looking at, but we do not, so I would not support the point that Mr Connarty was making as to why are we not going back and trying to get this for all of our European citizens across the piece. We do not think that that is realistic. This was the end result of the negotiations that was reached in unanimity, but we do feel we are able to give a guarantee with regard to our own citizens in these circumstances.

Chairman: Minister, thank you very much for coming along this morning. It has been very interesting and we will now thank you and allow you to get on to your next meeting.