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Lord Lamont of Lerwick: My Lords, perhaps I may interrupt the noble Lord. When he says "more seriously", does he agree that whether or not someone can be extradited for something that they have written in this country is quite a serious issue?

Lord Goodhart: My Lords, I believe that that is in the world of fantasy. I do not consider it to be a serious possibility. However, we must not be complacent about our own system, and we must recognise that other countries may well have reservations about some aspects of our system. One has only to look, for example, at the frequent cases during the late 1980s and 1990s in which decisions relating in particular to terrorist offences were overturned by the Court of Appeal after people had spent many years in prison.

I believe that we must also look at the reverse position; for example, for many years extradition from Spain was not possible. The result was that parts of Spain became known as the "Costa del Crime" because of the large numbers of English criminals who had taken up permanent residence there. It is, of course, now possible, although still quite difficult, to arrange extradition from Spain. However, there is a long-standing and, I believe, wholly unjustifiable principle by which some countries—notably Germany—refuse to extradite their own citizens. If the European arrest warrant gets round that particular restriction, I believe that there will be a great deal to be said for it.

However, having raised those issues, it is claimed that a great deal is wrong with the European arrest warrant. A number of points obviously require study. One is the question of dual criminality. I believe that it is absolutely right that where an issue is no longer regarded as an offence in this country—that obviously includes various forms of homosexual behaviour

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which were, in the past, criminal here and are still criminal in other countries in the European Union—we should not deport or extradite people.

There is the question of the modification of the speciality rule, the question of the right to bail pending return and the question of trials in absentia. Above all, there is the question of possible extradition to countries in which the judicial process does not observe the principles that are required under the ECHR even if nominally the country in which those courts are situated has signed up to the convention.

There are plainly issues—in particular in connection with human rights—that need to be resolved before a framework decision for the European arrest warrant is ready for adoption. That is why we think that it would be deeply regrettable if the Government signed up to it on 6th or 7th December. We also believe that that ties in with certain aspects of the Anti-Terrorism, Crime and Security Bill. We shall have to look at the matter in more detail but we are deeply concerned about the fact that Clauses 109 and 110 of the Bill will give the Government the right to bring third pillar framework decisions into law in this country by statutory instrument.

We are of course glad that if the Government are going to introduce the European arrest warrant, they will do so through primary legislation. It is clear that they could have done so, had they so wished, through secondary legislation after the Bill's enactment. If that were so, fundamental issues that are raised by the European arrest warrant would have received limited scrutiny by the European Union Committee—there might have been a debate on the statutory instrument, but that would be limited to 90 minutes in the other place. We agree that if there is primary legislation, the Government will be constrained by the terms of the agreement to which they have signed up.

Today is not the occasion on which to debate whether Clauses 109 and 110 should remain in the Bill. However, the European arrest warrant in its present form is plainly not ready to be approved by the Government or included in a framework decision. Serious matters have been raised this evening and the Government should consider them seriously before they accept that the European arrest warrant is in a suitable form for incorporation into the laws of this country.

10.3 p.m.

Lord Kingsland: My Lords, first, I congratulate the noble and learned Lord, Lord Scott of Foscote, on giving us an opportunity to debate this matter. I respectfully share his judgment about the terrorism dimension of the warrant; and his view about the relatively minor role that that will play compared with other provisions.

First, I want to discuss the legislative process. I was very struck, when looking at the minutes of evidence of Sub-Committee E, by the evidence given by Mrs Pallett, which appears in paragraph 71. Speaking honestly and accurately, she described the legislative

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process leading up to the decision. She said that up to 14 days will already have been spent—or will be spent—by senior officials. That will be followed by meetings with ambassadors in COREPER. There will then be a meeting with the Council of Ministers of Justice and Home Affairs and the matter will be wrapped up at the European Council, early in December.

I mean no disrespect whatever to Mrs Pallett when I say that what she has described is the most egregious form of intergovernmentalism. In this process there is no mention of any parliament, either the European Parliament or any national parliament. Some of my noble friends on the Benches behind me do not share my views of the merits of the role that the European Parliament plays. However, I shall at least ask your Lordships to accept that had the constitutional principle of co-decision applied to this process, we would not only be looking at a document that has been thoroughly discussed in public, but also at one that has a great deal more democratic legitimacy than it will have as a result of the process that Mrs Pallett described.

Moreover, not only is the European Parliament excluded, but so are all the national parliaments. Were it not for the foresight of the noble and learned Lord, Lord Scott, and his committee, noble Lords would have had no opportunity whatever of any input into the decision that is about to be made. Indeed, technically we are not scrutinising any document at all.

Do your Lordships have any power? I suggest that your Lordships have one. The decision of the European Council will have to be taken unanimously. Our representatives at the council have the power to say no. The reaction of the Minister to your Lordships tonight, and more generally the reaction of his colleagues to what your Lordships say between now and December, is crucial to your Lordships. We depend on the Minister to deliver for us what we believe this decision needs if it is to represent the best traditions, not only of the European Convention on Human Rights, but also of the rights for which citizens of this country have fought so hard for so many centuries.

My second observation on this decision concerns the role of the European Court of Justice. Up to now in the United Kingdom, the European Court of Justice has played no role in criminal affairs because we have never been part of the Schengen arrangement. This document will change all that. This is not the first time that the European Court of Justice will be able to overrule domestic courts; but it will be the first time that it will be able to do that in criminal affairs which intimately affect the rights of the individual citizen.

Although Article 34 of the Treaty of European Union prevents the doctrine of direct effect in third pillar matters, it is still possible to make, once the jurisdiction of the European Court of Justice is established, preliminary rulings; and it may be that the doctrine of indirect effect under the great case of Marleasing will also apply. But if the last word about

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our rights under this warrant depends upon the European Court of Justice, what opportunity are we given under this decision to get there?

As far as I can see, there is no process of appeal; and, under the provisions for contesting a request made by a requesting state, there is no route by which an individual citizen, who appears in front of the Bow Street magistrates, can get to the European Court of Justice, the ultimate arbiter of what the decision says. Why? We are being lectured by the European Commission about how important it is that each member country respects the constituent parts of the European Convention on Human Rights, but it is a fact that the European Community and its institutions have refused to sign up to the European Convention on Human Rights. It has never signed the European Convention on Human Rights.

So we have the extraordinary sight of a European Community, which is not prepared to accept the disciplines of a European Convention on Human Rights for its own institutions, telling us, the member states, to accept the convention in our own affairs.

Lord Lester of Herne Hill: My Lords, I am grateful to the noble Lord for giving way. Does he accept that it is not quite fair to put the matter that way? The position is that the European Commission has advocated changing the treaty so as to enable the institutions of the European Community to adhere to the European Convention on Human Rights. But that has never been accepted by the Council of Ministers, and indeed by successive British Governments. So it is not exactly the fault of Brussels that this has not happened.

Lord Kingsland: My Lords, or—if I may add to the intervention of the noble Lord, Lord Lester—indeed, the Court of Justice of the European Community, many of whose members have been extremely sceptical about the Community's adherence to the European Convention on Human Rights.

I am not making an anti-European Convention on Human Rights point; I am simply suggesting to the Minister that here we have an element of jurisdictional confusion which must be resolved before the decision is agreed by the European Council. It is not at all clear—as Humpty Dumpty said—who is master here. Is master the European Court of Justice or is master the European Court of Human Rights acting under the convention? That surely is crucial in a document which deals with individual rights.

I turn to my final observation. That is on the doctrine of mutual recognition. It was well put in the discussions in Sub-Committee E that there were three alternatives for the Community with respect to the extradition rule. Either the status quo; or a single European judicial area with a single set of courts and a single hierarchy; or the solution in-between, which is the solution of mutual recognition.

I make no complaint about that. The decision to adopt the system of mutual recognition was the right one. But if your Lordships glance at the way in which

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the principle of mutual recognition has operated in the European Community throughout its history, your Lordships will see that the directives, or, on some rare occasions, the decisions, which have introduced mutual recognition of each member state's legal system in a particular context, have always contained a set of minimum standards. I am most familiar with the environmental directives. There the set of minimum standards are invariably the standards of the state that has the highest environmental standards.

We must not let the European Council get away with the illusion that the principle of mutual recognition means that one has to accept the standard of each individual member state. It is the duty of the European Community to write into the decision or directive a set of principles in which it believes. I cannot believe, looking at the state of the decision before your Lordships, that the principles that are contained therein would be regarded by any person reasonably knowledgeable about human rights and human standards as satisfactory in relation to the historic traditions of any member state in the Community, let alone the United Kingdom.

Many noble Lords have spoken most eloquently about the particular issues which concern your Lordships—bail, specialty, dual-criminality, the lack of time for appeals and the uncertainty about what one can appeal on. All those matters need to cease to be opaque and become crystal clear and represent the standards that reflect the standards in the European Convention of Human Rights. Why is that so difficult? Why are the Government having so much difficulty about that? I must confess that I am bewildered.

The Government can say no. In 1997, the Government introduced a Bill to incorporate the European Convention on Human Rights into our legal system. It is now part of the law of the land. It has reinforced the freedoms already acquired so painfully over many years in our country. I cannot believe that, having made so much effort to ensure that our standards are so high, the Government are prepared, in the context of the arrest warrant, to throw them all away. That is rank hypocrisy.

10.15 p.m.

Lord Rooker: My Lords, the noble Lord, Lord Kingsland, finished on an extravagant note, if I may say so.

I shall do my best to do justice to the debate—I probably have an hour's material here to do so. I will not use it. I have made notes about issues raised by noble Lords, so I have a cross-check and shall write to them specifically about anything that I do not cover and copy it to all noble Lords who have spoken.

In effect, I shall race through the preamble and then deal with as many points that have been raised as possible, and I hope that I can give specific answers to some of them. I cannot offer Bob Ainsworth—that is up to the Select Committee—but Bob was clearly a star. I had thought that his letter was quite good, but I have re-read it 10 times during the course of the debate and can well understand why noble Lords have

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questioned it. Nevertheless, we will do our best now and in future to offer as much information as possible on the many legitimate questions that noble Lords have raised.

I pay particular thanks to the noble and learned Lord, Lord Scott of Foscote, for introducing the debate. He gave a clear overview of the central issues. At one point, I wanted to rise to respond to him, because I could have spent longer setting out the Government's position on many of the issues that he raised. I do not have positive answers on all of those issues, but in due course I shall be able to be more specific on some of them. We welcome that opportunity.

I must make absolutely clear that the proposals were in preparation well before the events of 11th September, so they are not part of the reaction to that day. However, the events of that day have obviously given impetus to the Commission's work.

The Government are fully committed to the prompt delivery of the Tampere agenda. Common sanctions for serious crimes and mutual recognition of judicial decisions are two key elements of that agenda. At the special Justice and Home Affairs Council on 20th September, and at the European Council the following day, it was agreed that the framework decisions should be ready for adoption by the Council on 6th to 7th December. I realise that that time scale is tight, but the events of 11th September have speeded up the process.

The purpose of the framework decision on combating terrorism is to create a legal framework of terrorist offences and penalties across the EU. Of course, the United Kingdom already has comprehensive counter-terrorism legislation in the form of the Terrorism Act 2000, with which your Lordships will be familiar. But not all countries within the Union are in a similar position. Only six member states have specific counter-terrorism laws. In recognition of that, action at EU level is clearly desirable.

Perhaps I may briefly cover some of the matters covered by the terrorism framework decision. It creates a list of terrorist offences that are already provided for in UK law. The question of how those offences should be defined as terrorist acts is still a matter for negotiation but, as with UK law, the essential ingredients are a specific type of action coupled with a particular type of motivation. Those are clearly set out in the articles.

A key issue in the document is the penalties that terrorist offences should attract. The UK position is that penalties should meet the treaty commitment to adopt minimum rules for penalties in the field of terrorism. We therefore favour a meaningful approach—not one based simply on the lowest common denominator but one that shows the would-be terrorist that the EU is serious in the fight against terrorism. However, we are sensitive to the concerns of some member states about applying that approach in the document. No one dissents from the view that

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terrorism is a particularly serious type of crime and we should not give anyone inclined to terrorism the idea that we are a safe haven in the European Union.

Otherwise the document covers areas such as the protection of the victims of terrorist crime, in recognition that victims of certain types of terrorist offences—for example, extortion—are vulnerable. Therefore, in order to protect those victims, member states are asked to ensure that the investigation or prosecution of the terrorist-related offence is not entirely reliant on the evidence or accusation made by the victim of the offence. That is an important document and it is regrettable that we need it. However, we are committed to it and will continue to work towards its successful conclusion.

The framework decision on the European arrest and surrender warrant is also essential. That has constituted the main part of today's debate. It is part of the commitment to obtain mutual recognition of judicial decisions as the cornerstone of future EU co-operation. It is timely that the proposal is ready for discussion and adoption now. The rapid surrender of those accused of terrorist crime and other associated serious crime to finance terrorism will be essential to ensure rapid and effective prosecution and thus greater security within the EU.

The Government are fully committed to the elimination of dual criminality with mutual recognition. It is a protection which no longer has any place in the dealings between mature democratic members states of the EU. We must not work on the basis that every new proposal will be subject to gross abuse. I am not saying that there has not been abuse at various levels within the EU, but it is not a presumption on which we examine new legislation and actions which we must organise. We are all signatories to the ECHR. It is explicitly recognised in the EU and it underpins our dealings. We are late in including it into our domestic law. There is a presumption that we are the best and the only ones who play by the cricket rules. However, as one speaker pointed out, there are concerns elsewhere in Europe about some of our procedures, so there is a two-way flow of genuine debate.

The principle of the European arrest warrant is to eliminate the barriers to swift extradition. There have been some changes in approach from the Commission's original proposal, which the Government strongly favoured as it reflects our broad approach to mutual recognition. However, we accept that that causes problems for some of our EU partners. The list approach, which seems likely to secure general agreement, goes a long way towards our final objective of full mutual recognition. It provides a long list of offences where dual criminality will not apply and provides optional dual criminality in respect of other offences. Therefore, it should be straightforward for practitioners and it addresses directly the more serious crimes which terrorists are likely to commit.

We are also encouraged that EU partners share our commitment to rapid decision taking on request for surrender, although we are concerned that deadlines should not result in the release of a fugitive wanted for serious crimes.

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I shall now try to answer as succinctly as possible some of the specific issues which were raised. The noble and learned Lord, Lord Scott, and others spoke of the purpose for which a person has been extradited. I understand the apparent contradiction, but it is clear from all my manuscript and briefing papers that Article 1 of the framework indicates that the European arrest warrant is issued for the purpose of conducting a criminal prosecution. There is therefore no provision for pre-prosecution surrender. I cannot spell out our intention any clearer, but that is our intention. There is no opportunity. There may be other routes, but not via the European arrest warrant. I hope that noble Lords will be reassured on that point.

The framework decision leads to national governments providing for the detail in line with national practices. I appreciate the fair point that the letter from Bob Ainsworth was available only on Friday and today to most noble Lords. It is a fairly lengthy document and I wish that we could have provided it sooner in the light of some of the issues raised. Indeed, we shall follow up some of the issues that have been raised regarding the letter.

The noble and learned Lord, Lord Mayhew, and the noble Lord, Lord Lester, raised the matter of competence. We are working from the presumption that competence is well placed and that not every request has the potential for abuse. We have many years experience in working with our European partners on these matters. I can give some figures, which may not be generally known. In the 10 years up to 1990, the Home Office made 227 surrenders world-wide—an average of 23 a year. In the 10 years to 2000, there were 354 surrenders world-wide—an average of 35 a year. We have experience of extradition requests over the years. Since the prima facie evidential requirement was abolished, requests have been made both carefully and sparingly.

The noble Lord, Lord Lester, referred to dual criminality and the confusion on the wording in Bob Ainsworth's letter. The letter made it clear that dual criminality was not required for offences on the common list. For all other offences above the 12-month threshold, dual criminality would be optional. The dual criminality test would not be applied for those offences for incoming requests, even if when the request was made the other member state applied the dual criminality test to our request.

We consider that dual criminality should be abolished completely between EU member states. That is a clear enunciation of the policy, but we could accept the need for some restrictions where extra-national jurisdiction is concerned. Obviously, there is an issue of difference in some respects, but that is our clear position.

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