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Lord Lamont of Lerwick: My Lords, if the noble Baroness will allow me to intervene, will she comment on the fairness of the Greek plane-spotters' trial? Is it not the case that although in the end the matter was resolved the Foreign Secretary had to intervene? What sort of justice system is it when a Cabinet Minister has to intervene? How can we possibly have confidence in Greek justice?

Baroness Ludford: My Lords, if the noble Lord will permit me, I shall come on to defendants' rights.

As I say, there are certainly defects in the European arrest warrant. It was too hastily drawn up. The remarks of the noble Viscount, Lord Bledisloe, were correct on that matter. Unfortunately, the Council failed to follow the Commission's proposals, which the European Parliament supported, that rights to legal advice and interpretation should be absolute, and therefore aided or free, rather than in accordance with national law, which leaves a great deal of latitude. I was present at the plane-spotters' appeal in Kalamata. They had to pay themselves for inadequate interpretation. I am also sorry that the Council failed to follow the European Parliament in inserting a reference to the European Convention on Human Rights and full jurisdiction by the European Court of Justice, and that the suggestion for a European habeas corpus did not succeed.

There is great concern at the lack of transparency in the way the Council deals with instruments affecting individual liberties. I was interested in what the noble Lord, Lord Kingsland, said about secrecy and about scrutiny of third pillar measures. In fact, the European Parliament is consulted although we are usually completely ignored. Certainly, the European Parliament will not have influence until it has co-decision rights with the Council.

Scrutiny by the Westminster Parliament is, of course, a national matter. Some national parliaments have more teeth. I listened with interest to what the noble Lord, Lord Pearson, said, but it really is up to this House and another place, with the Government, to change those arrangements. It is nothing that Brussels imposes on us.

The noble Lord, Lord Kingsland, also made interesting remarks about the way in which ECJ scrutiny will come in through the side-door, as it were.

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I would certainly prefer the front door but any step towards full democratic and judicial supervision of EU criminal justice harmonisation is welcome.

I wish to address the way in which the Government propose to implement the European arrest warrant. Their response to the report from the Home Affairs Select Committee in another place was that they are committed to the principle of mutual recognition and determined to play a role in the development of that principle in preference to "full-blown harmonisation". But that is setting up an Aunt Sally. No one is proposing full harmonisation of the criminal justice systems in EU member states, and the Government unwisely feed paranoia when they make such assertions. As the Government well know, the suggestion is only such harmonisation as is necessary to ensure mutual trust in each other's systems—not only that they are efficient in catching criminals but, crucially, free of corruption and robust in guaranteeing fundamental rights and fair trial rights under the ECHR and the Charter of Fundamental Rights of the EU, which I and my party hope becomes legally binding next year as a result of the convention and intergovernmental conference.

The EU must put flesh on the bones of observance of fair trial rights such as legal advice, interpretation, bail, disclosure of evidence and minimum standards of investigation. There needs to be a way for the requested state to monitor the proceedings once transfer has taken place, perhaps with a proactive role for the consular service, and making sure that the justification for extradition for the purposes of conducting a criminal prosecution is not abused by any fishing expeditions. Without effective and transparent protections in place there is a risk of miscarriages of justice and loss of public confidence throughout Europe.

The European arrest warrant is acting, as my group in the European Parliament hoped, as a catalyst for ratcheting up the observance of procedural rights. There is now a Green Paper from the European Commission with the objective of putting in place legally-enforced European standards. I hope that the Government will take the lead and that the Conservative Party, including noble Lords such as the noble Lord, Lord Lamont, will support this work and agree that the European Court of Justice should enforce observance. If, in addition, the European Union signs up to the European Convention on Human Rights and the charter becomes legally enforceable, we will have a much sounder basis for guarantee.

The Government have certainly gold-plated the European arrest warrant. In doing so, they are banking on the fact that most MPs and Peers will not have read the original. Such legislation is usually put through as secondary legislation, if it is debated at all. It receives no publicity. We may not receive much publicity either, but we can try. And the media will always assume the worst of Brussels. You can get away with all kinds of unfair accusations about how Commission bureaucrats are forcing you to do

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something. That will not work this time. Many of us are perfectly well informed on what the European arrest warrant does and does not require.

There is no need to implement it 200 per cent. It does not require the abolition of dual criminality for offences carrying a potential sentence of 12 months; the threshold is three years. I do not understand what has possessed the Government to seek to throw away a perfectly reasonable safeguard unanimously agreed by all our partners. I agree with the noble Lord, Lord Stoddart, on this point. That may be a first for both of us.

In their response to the Home Affairs Select Committee in another place, the Government came up with the weakest argument ever heard. They said that,

    "thresholds in extradition have always been based on 12 months and we believe introducing a three year threshold would be a novel departure and could lead to confusion".

I am sure the Government do not think that our judges are too stupid to cope with change and, for a government that pride themselves on their modernisation credentials—a government who castigate the opponents of their public service reforms as dinosaurs—to rely purely on tradition is an odd position to adopt.

I welcome the fact that the Government have done some rethinking. I am glad that they have changed their mind over the blanket waiver of speciality protection, which was not required in the EAW. I am glad that, after all, an exception will be made for political offences, such as when the French refused to extradite David Shayler. The EAW does not require removal of this exception. I am pleased that the Government have been persuaded to change their mind. Article 2(4) of the EAW allows for dual criminality tests to remain for the non-32 offences. We will want to examine carefully whether the Government have taken as much advantage of this freedom as they are able.

My noble friend Lord Goodhart, along with the noble Baroness, Lady Anelay, and other noble Lords, stressed the need to include strict criteria on the face of the Bill for moving countries to Part 1. It is certainly difficult to see how the United States could qualify. The new clause stating that a country which imposes the death penalty cannot be a Part 1 country is very welcome, although it is hard to see how that fits with the presumed agenda of the United States. Are the Government able to give a clear statement that this means that the United States could not be included in Part 1?

The Government have said that the extradition agreement they signed on 31st March with the United States,

    "brings the evidential rules for requests from the US into line with those for European countries".

In effect this will remove the requirement for evidence showing a prima facie case in respect of the US, despite the fact that obviously it is not a party to the ECHR or that it applies those standards.

The case of the Algerian pilot, Lofti Raissi, demonstrates the importance of such protection. An urgent request was made by the US, but despite

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statements to the court there turned out to be no evidence of his being involved in terrorist or any other criminal acts. In the absence of a prima facie requirement, Raissi would probably have been surrendered. I agree with the noble Lord, Lord Stoddart, on the dangers of that.

The Government have said that they would lift the prima facie case requirement for,

    "well-established democracies and robust and respected criminal judicial systems".

However, as my noble friend Lord Goodhart pointed out, there is great variation from state to state within the United States. Furthermore, the experience of the military courts at Guantanamo Bay does not inspire confidence. Nor do cases such as that of the British citizen Jackie Elliot in Texas, who was executed despite new DNA evidence, and where the presiding judge himself lobbied the parole board against delaying the execution to hear the new evidence. That was extraordinary.

The European Union and the Government must stop the secrecy and come clean on their agenda regarding extradition with the US. The UK-US agreement signed in March is still not available, as I understand it, and the text of the EU-US agreement is being made confidential. Neither the Westminster nor the European Parliament has the opportunity of proper, open and democratic scrutiny. That has led European committees in both Houses of our Parliament to suspend their work and write to the president of the Council, Greek Prime Minister Simitis.

The EU says that the text is confidential, but it is for governments to decide the Council's transparency rules. Are the Government, who say that they believe in openness, taking a lead in removing the confidentiality gap? Is it not scandalous that the US Senate is examining the text but, on this side of the Atlantic, governments arrogantly exclude parliaments?

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