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Baroness Anelay of St Johns moved Amendment No. 170:



"( ) No order may be made under subsection (1) until—
(a) the Extradition Bill has received Royal Assent; and
(b) the Secretary of State has certified that the provisions of this Act and that Act are compatible."

The noble Baroness said: Perhaps I can be briefest of all on this amendment, which is designed to get an assurance on record that the Minister believes that the provisions of the Bill and the Extradition Bill are compatible. As we are aware in regard to Clause 83, hot surveillance could ultimately lead to the police or Customs officers wanting to effect an arrest. We have

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to be sure that there is no conflict between this Bill and the Extradition Bill when it finally reaches this House. I beg to move.

Lord Filkin: I presume that the amendment arises from the Opposition's fear that, under the provisions of the Extradition Bill, foreign officers might be granted power to arrest UK citizens while carrying out cross-border surveillance operations under the provisions of this Bill. That is a confusion of what the Bills permit.

As the noble Baroness will recall, in our lengthy discussions of Clause 83 we made it absolutely clear that foreign officers would not have any executive power, which means powers of arrest or search and seizure, while in the UK. The provisions in the UK permit them to carry out surveillance operations only, during which time they are not expected to make contact with the suspect. They will have no executive or coercive powers.

The Government have stated repeatedly in another place their commitment that we have no plans to designate anyone other than a British law enforcement officer to execute warrants under the Extradition Bill. Arrests will be carried out only by British police officers or British law enforcement officers, such as a member of Her Majesty's Customs and Excise or one of the service's police forces. No one, other than a constable, will be able to execute a European arrest warrant or others designated as British law enforcement officers. I am sure this matter will be debated at length once the Extradition Bill is introduced in this House. However, I can put on record that the position that I have stated above will not differ.

I am not convinced that the amendment will achieve what is intended. Preventing the commencement of the provisions of the Bill until the Extradition Bill received Royal Assent would not serve a purpose. The two pieces of legislation deal with entirely different circumstances and powers. As the Committee is aware, the thrust of this legislation is to improve the way in which we provide legal assistance to other countries both within and beyond the EU. The Extradition Bill deals with reforming our current extradition proceedings. Both Bills implement the European framework decision but that is where the similarities end.

Parliamentary counsel and those who instruct them have taken great care to ensure that each new Act of Parliament sits carefully within the framework of existing legislation so that inconsistencies do not arise, which I believe is the assurance that the noble Baroness, Lady Anelay, sought. I hope that the explanation will satisfy her and that she will feel comfortable in withdrawing her amendment.

Baroness Anelay of St Johns: I am grateful to the Minister for those assurances. I am intrigued by his comment that the officers will not be expected to make contact with a suspect. There may be circumstances in which they have no choice but to do so as they are part of an undercover team. However, those matters will be debated yet again on another day.

The Minister is right to emphasise the fact that an arrest will be by a British police officer or a law enforcement officer. When the Extradition Bill comes

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before us we look forward to debating how that dovetails in with the surveillance provisions in this Bill. The most important point was the one made by the Minister at the end of his explanation: that the draftsmen seek to reconcile different Bills. I do not know how they do it and I am glad that I am not a draftsman. I am only sorry that they have to sit listening to people like me pulling them apart to try to make them make even more sense. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 92 agreed to.

Clause 93 [Extent]:

Lord Wallace of Saltaire moved Amendment No. 171:


    Page 61, line 6, at end insert—


"( ) Her Majesty may, by Order in Council, direct that any provision of this Act shall extend, with such exceptions, adaptations and modifications, if any, as may be specified in the Order, to any of the Channel Islands or the Isle of Man."

The noble Lord said: I tabled the amendment, which contains the standard phrase used when Bills are extended to the Crown dependencies, in order to test why the Bill does not cover Crown dependencies. I have a general and a specific reason for doing so.

In recent years in this House I have been increasingly puzzled as to why this clause appears in some Bills and not in others. I do not understand whether there is an overall rationale for it and what negotiations go on behind which closed doors as to how they operate. It would be helpful if the Committee were better informed about the relationship between the Crown dependencies and the United Kingdom, in particular given the extent to which European Union legislation now impinges on domestic law.

My specific reason for tabling the amendment is that if we are talking about international co-operation on crime—Chapter 4 of the Bill relates to bank accounts and all the implications of money laundering—the Channel Islands and the Isle of Man have a thriving industry in terms of off-shore banking. It seems self-evident that the Bill should therefore extend to those Crown dependencies. It may be that the Minister is about to tell us that other arrangements have been made in this instance. I am well aware that in recent years substantial improvements have been made in the financial control mechanisms in the Channel Islands and in the Isle of Man. An inquiry was undertaken by the noble and learned Lord, Lord Williams of Mostyn—it was certainly under his oversight—shortly after the Government came into power. If we are to have financial havens operating within the geographical limits of the European Union and closely associated with London, we must be concerned that they are not at the same time criminal havens. Even since that tightening of their procedures, there have been several instances—especially of Nigerian money that was passed through those places—in which there ought to have been better regulation than we have had so far.

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I am concerned that there should be any suggestion of cherry-picking of which EU legislation is accepted and which is not. I have always been puzzled by the extent to which Gibraltar tends to opt in to things of which the Channel Islands opts out and vice versa. I have never fully understood how that happens. We are asking for an explanation why the Bill does not apply to the current dependencies, as do so many other Bills of this sort. In the longer term, we want some clarification from the Government as to how and why some Bills so extend and others do not. I beg to move.

Lord Monson: Perhaps I may first enlighten the noble Lord, Lord Wallace, about Gibraltar. Gibraltar is part of the EU in some respects; the Channel Islands are not part of the EU at all; nor is the Isle of Man, so far as I know.

I listened carefully to what the noble Lord, Lord Wallace, said. I am sensitive about any attempts, even for the best of motives, to chip away at the autonomy of those self-governing territories, which are not part of the United Kingdom and never have been. Nor, as I said, are they part of the EU. I do not know the Isle of Man, but I know the Channel Islanders quite well and know that they are very sensitive about the idea of foreign policemen on their soil, not least because of their terrible wartime experiences.

They are also very sensitive about French muscle-flexing: I am not really talking about radioactive emissions from the Cap de la Hague. French fishermen are constantly encroaching on the territorial waters of Guernsey and Jersey. Not so long ago, French fishermen laid claim to an uninhabited island and planted a tricolour there. So the idea of gun-toting flics landing on the islands is too much for those people to bear. I am certainly unhappy with the amendment as drafted, because it does not even mention consultation with the governments of the territories concerned. I should prefer the provision not to exist at all, but we shall hear what the Government have to say about it.

6 p.m.

Lord Bassam of Brighton: I am grateful that the noble Lord, Lord Wallace of Saltaire, has raised the issue, because it allows us to clarify it. For that reason, this is a useful exchange.

It is also worth saying that we share the noble Lord's concern about how offshore financial centres, as they prefer to be known, can become havens for money laundering, and so on, to the benefit of terrorist organisations, in particular. We share that real concern, which underpins the Government's position.

The enabling provision that the noble Lord seeks to insert into the Bill is, as he said, a standard provision, but we can insert it into legislation only after detailed and careful consultation and—this is the important point—the consent of the Channel Islands and the Isle of Man. We cannot do that unilaterally, as would the amendment.

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Unlike purely domestic legislation, it is not appropriate to include the standard extension wording where the Bill enacts our European Union obligations. Unlike standard Community business where territorial extent is defined by the treaty, third pillar co-operation, which is implemented by this Bill, has no specific territorial application.

I was interested in what the noble Lord, Lord Monson, said about Gibraltar because the inclusion of Gibraltar and the islands in an instrument is considered with our European partners at the time it is negotiated, and their inclusion can be specified in the instrument where this is agreed. As the islands have chosen not to participate in the measures covered by the Bill, we cannot use the Bill to change that position.

There have not been any consultations on extending the Bill to the islands as they customarily enact their own legislation in the area of criminal justice—for example, in the Criminal Justice Act 1991 (of Tynwald), the Criminal Justice (International Co-operation) (Bailiwick of Guernsey) Law 2001 and the Criminal Justice (International Co-operation)(Jersey) Law 2001.

A copy of this Bill will be sent to the islands' authorities once it receives Royal Assent and becomes an Act. Then it will be a matter for the islands' discretion as to whether they wish to introduce any similar provisions into their own legislation. For those reasons, the Government cannot accept the amendment.

We have to respect the fact that the islands are Crown dependencies. The United Kingdom is responsible for the exercise of some functions, particularly in regard to external relations, but whether or not the islands opt into EU agreements is at their discretion; it is their constitutional right. Although the council's decision on the United Kingdom's participation in Schengen provides in Article 5.1 for a mechanism for the extension of Schengen to the islands—indeed, some of the islands were interested in parts of Schengen co-operation—they chose not to participate on the same terms as the United Kingdom, which was the only basis on which other member states would find participation acceptable because of the confusion which would otherwise arise as to the scope of the extension of Schengen to the United Kingdom. It remains open to us to activate the mechanism in Article 5.1 should the islands wish to do so.

In the case of MLAC and the protocol, the islands need first to join the 1959 Council of Europe Convention on Mutual Assistance. They have passed the necessary legislation and any subsequent decision on whether to apply further agreements is a matter for the islands. The islands have not chosen thus far to participate in, for example, the Convention on Driving Disqualification. Again, that is a matter for their discretion.

The noble Lord, Lord Wallace, made reference to the initiatives that the Government have taken in regard to the Channel Islands and the Isle of Man. We have been in power since 1997 and we consider that there have been considerable improvements in the way in which the Channel Islands have conducted themselves, particularly in regard to money laundering. In general, their anti-money laundering legislation very much shadows our own. They are obviously keen to remain not only

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compliant with international standards—because that guarantees their business—but wish to see best practice adopted by bodies operating from the Channel Islands and the Isle of Man. Their existing money laundering legislation, which corresponds to our primary law, mirrors our legislation as it stood prior to the Proceeds of Crime Act receiving Royal Assent.

The noble Lord referred to the Edwards report. That was produced in 1998 during the time at the Home Office of my noble and learned friend Lord Williams of Mostyn. It has been very effective. The bilateral discussions which have taken place at a ministerial level since then have reinforced that effectiveness and much progress has been made as a consequence.

The report praised the systems that had been put in place. The islands now have their own financial services authorities which regularly report to and work closely with law enforcement agencies here. There is a good exchange of information exercised through and with our own financial services. They co-operate freely and frequently with law enforcement agencies here to counter money laundering and other negative aspects of the way in which financial institutions work.

We can be very pleased with what we have achieved so far. We have done so mainly through negotiation, which is the best way in which such matters should be conducted. When I was the Minister in the Home Office responsible for the Channel Islands, I found that they were more than keen to co-operate. They saw it as a guarantee of success in the future, and their economies are heavily dependent on financial services for that success.

I hope that that rather lengthy response provides the noble Lord with the assurances he requires. We need to be ever mindful of the problems that we and the islands need to confront, but we do not consider the amendment to be a route towards strengthening the current position.


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