European Arrest Warrant and Surrender Procedures Between Member States

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Mr. Ainsworth: I cannot give the hon. Gentleman chapter and verse on the consultation responses at this moment, although I shall try to do so during the debate. The relevant document was placed in the Library in October—on 24 October, I think—and I shall try to clarify the point.

Dr. Nick Palmer (Broxtowe): Most of the concern that people might have focuses on article 2(2) and the offences that do not require double criminality. Most of that list is entirely uncontroversial, because in practice, nearly all those offences are crimes. As has been pointed out, however, some of them, such as xenophobia, are not defined as crimes in Britain. Will the Minister comment on the likely distinction between a case in which an accused person had been practising xenophobia in the country requesting the warrant, a case in which he had previously had nothing to do with that country, and the middle case in which he had been projecting propaganda over the internet—for example, he might have been based in Britain and aimed the propaganda at Germany? Has the Minister considered a differentiated approach?

Mr. Ainsworth: Although that offence does not exist in UK law, certain offences would be extraditable to the UK under that category—for example, offences aggravated by racial motives. My hon. Friend is right, but there is broad acceptance—which I hope he shares—that we should recognise the law in another country as it exists. There is little doubt that the priorities and legal requirements in, for example, Germany, because of its history, are different from those in this country. German people should not be allowed to come to Britain and break British law and British people should not be allowed to go to Germany and break German law.

David Cairns (Greenock and Inverclyde): I would be grateful for the Minister's clarification of his opening comments and the apparent discrepancy in his letter stating that dual criminality would apply in relation to article 2(4), which says:

    ''The surrender may be subject to the condition''

and then refers to:

    ''abortion, euthanasia, morality, sexuality, or freedom of expression and association.''

What was the thinking behind the measure, which gives a prescriptive list of offences that will come within the remit of European arrest warrants? Article 2(2) says:

    ''The following offences . . . shall . . . give rise to a surrender pursuant to a European arrest warrant'',

but the moral grey area of the offences that we are discussing is covered by the phrase:

    ''may be subject to''.

Some of these offences are at the cutting edge between what is criminal and what is immoral. It is a grey area and people will look for clearer guidance than simply that the surrender ''may be'' subject to a condition. At what stage during the process will that controversial aspect be clarified?

Mr. Ainsworth: All kinds of methodologies were kicked around in the framing of the proposal, including negative lists, positive lists and complete abolition of dual criminality. By and large, the British Government favoured the maximum position: abolition of dual criminality. We do not believe that in the modern world, with the amount of movement of people that takes place in the European Union, we can survive with the antiquated arrangements in place at the moment. If we accept that, as I do, it is clear that the choices open to us are either a Europe-wide framework of law that would apply to everyone—huge complications would arise in framing such a body of law that would be acceptable to everyone with their different traditions—or dual recognition of one another's systems within the framework of the European convention on human rights. That is the position that the British Government chose, and we have been at the forefront in pushing for it. We believe that the restrictions on recognition of other people's legal systems should be minimised. We are not sure to what degree they would present problems in practice, but we are fully aware of some of the concerns in those areas that are not covered by the positive list in article 2(2). In drafting the regulations we must be mindful of those concerns, and we know that we must satisfy Members of the House on the exact details of the legislation.

Mrs. Gwyneth Dunwoody (Crewe and Nantwich): Is the Minister aware that the trouble with abandoning traditional laws, which are often antiquated, is that we often abandon the rights of the citizen at the same time? When he says that we must consider whether those conditions are met under the order, does he accept that once the framework decision is put on to the statute book, the Government's right, and in particular Parliament's right, to oppose this kind of interpretation will almost cease to exist? Will he tell us the meaning of his interpretation of the differences in tense? Is he certain that Parliament will be able to reject unacceptable aspects of the decision if the regulations are proposed after the Houses of Parliament have accepted the framework?

Mr. Ainsworth: I am not trying to tell the Committee that we can reject the framework document, because we cannot reject its provisions once it has been accepted. I do not know which part of the document is troubling my hon. Friend. The offences contained within and described by article 2(2) will be subject to joint recognition. We shall not be able to say that we will not extradite people when they are wanted for a crime described in article 2(2). That is clear, and I am not trying to con either the Committee or my hon. Friend.

Issues not contained in the positive list in article 2(2) will continue to have dual criminality requirements if a member state so wishes. That will be a matter for the Government to decide, and their decision will be scrutinised by Parliament. The extent to which we continue to apply dual criminality to offences not on the positive list in article 2(2) is wholly within our power—I hope that my hon. Friend does not understand the situation differently.

Mr. Nick Hawkins (Surrey Heath): The Minister should understand that there is still grave concern among Government and Opposition Members, some of whom have already spoken in Committee, and in another place. The provisions of the framework document include many generic terms that are not specific offences under English law. Will the Minister reconsider his opening statement in which he remarked, ''There is nothing new here''? He sought to persuade the Committee that there is no change because we have had extradition arrangements for many years.

Does the Minister understand that such distinguished noble lords as Lord Lester of Herne Hill, Lord Scott of Foscote and many others have expressed concerns about the framework decision because its terms are so vague? The provisions of extradition treaties have always been extraordinarily precise. Anyone charged with an offence on the generic list in article 2(2), which might attract a sentence of 12 months' imprisonment in another jurisdiction but not be a crime under English law, might suddenly be brought before the courts and transported abroad in custody without any opportunity to challenge the matter. That is why there is concern.

Mr. Ainsworth: When I said in my opening remarks, ''There is nothing new here'', I was discussing the recognition of judicial authorities in other EU countries because the Committee had flagged up its concern that the definition of a judicial authority was inadequate. If the Committee wants me to, I can go through lists of every recent extradition case to another EU country showing which judicial authority requested that case. Such authorities are necessarily different because each country has a different legal framework, but the framework document does not consider those differences. There is no danger, as members of the Committee have suggested, that police authorities will apply for extradition warrants. I did not say that there were no differences between the proposal and what is in operation; clearly, there are.

The hon. Gentleman suggested that absolute, specific crimes should be spelled out in the list and that generic terms should be done away with. If we went down that route, drawing up the list would be as complex as the arguments that we now face on determining dual criminality in individual cases. We are trying to get away from that antiquated approach because it leads constantly to arguments, delays and repeat judicial reviews of cases—and years before anyone can be extradited. The purpose of the generic list is to encapsulate those crimes in an acceptable form for all EU members. It is up to the issuing judicial authority to frame the warrant for an offence in its country and ensure that the offence complies with one generic item on the list. Yes, that is a big change, but it will be a big gain if we see effective extradition arrangements between us and our European partners. That would be new and beneficial.

Dr. Palmer: I should like to give the Minister notice of a question that I shall raise in the debate, although he may be able to answer it on the spot. Does he think that a translation error has occurred in article 4(3)? It appears to allow the executing state's judicial authorities to decide not to prosecute or halt proceedings. However, the executing state is not prosecuting in any case, nor is it holding proceedings, so I wonder whether the paragraph should refer to the issuing state. If it is meant to refer to the executing state, is that a fall-back position for difficult cases?

Mr. Ainsworth: I think that the text is right. It covers the situation in which a decision has already been taken not to prosecute an individual, such as a British person who could be prosecuted in France, or a decision has been taken, for the same alleged crime, not to prosecute him in Britain. In such cases, we would not be required to extradite him to face a French court.

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