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Lord Lamont of Lerwick: My Lords, may I remind the noble Baroness that she said that she would answer my question.

Baroness Ludford: My Lords, I said that what we are doing is having a Green Paper, with the prospect of EU-binding law putting flesh on the bones of the rights enumerated in the European Convention on Human Rights. We would rely on EU law, as well as simply our common membership of the ECHR, so that the content of those rights was spelled out in EU law.

In relation to the sum of both the national and the EU-proposed agreements, one of which is signed, we need clarification. In particular, we need it as regards what evidence we would insist on before extradition, how watertight the guarantees are against the death penalty, whether our obligations to surrender war crimes suspects and human rights abusers to the International Criminal Court would be compromised, and whether we would extradite people to be interned without trial in legal limbo in Guantanamo Bay or to face military tribunal.

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The early finding seems to be that the UK Government want the US wish to be put on the same footing as our EU partners as regards ease of extradition to be acknowledged. However, that begs the question whether we can have the necessary degree of trust in the fairness and integrity of their justice systems, as we can have in the guarantees of the European human rights convention in Europe, provided that there is due enforcement of such rights.

On the ICC, surely if there is to be any exemption from speciality protection, it should first and foremost focus on offences against human rights so serious that they are within the scope of the ICC. We also need an amendment to Part 2 to provide that extradition should be banned if it appears that it would be unjust or oppressive to return the person. I hope that such an amendment will be made. That would reflect the Extradition Act 1989. It surely is a traditional practice to which we should stick.

Finally, I would like to ask another question in relation to the United States. It is on the fate of detainees from, say, Afghanistan or Iraq who might be transferred to Guantanamo Bay. If they are simply transferred, will there be any safeguards by analogy with extradition law as though they had been extradited?

We on these Benches welcome both the updating of extradition law and the principles of the EAW, but there is scope for greater substance to the safeguards, and no reason why we should throw away options that the framework decision gives. I urge the Government—and the Conservatives, if I may be so bold—to support vigorously an EU civil liberties programme to complement and balance the law enforcement programme. Then we really would have an area of freedom, security and justice.

7.4 p.m.

Lord Hodgson of Astley Abbotts: My Lords, we approach the end of a fascinating debate. The House has had the privilege of hearing speeches of great experience, great vigour and, at times, great passion. I join other noble Lords in saying that it was a particular pleasure to hear the contribution from my noble friend Lord Kingsland—not just any old contribution but one made with his old verve, clarity, and forensic skills. I hope that I misheard him when I thought he said that he would not be available for the Committee stage. That would be a great pity.

Why has the Bill aroused such interest this afternoon? In my view, it is because the proposals in it stand astride two issues that dominate the current political landscape. The first is the long-running debate over the ultimate shape of the European Union and the nature of this country's relationship with it. The second is more recent: the emergence of the shadow of world terrorism. The impact of that—especially the twin towers outrage—was graphically underlined in the speeches of the noble Lord, Lord Stoddart of Swindon, and the noble Viscount, Lord Bledisloe.

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Like many other noble Lords, I can begin from a point of agreement with the Government's proposals. There is a general acceptance, which we on these Benches share, that our extradition procedures are in need of updating. The present arrangements offer the malevolent too many opportunities to take unreasonable advantage of the possible delays built into the present system.

However, it must be pointed out that those delays cannot be laid entirely at the door of the legal and judicial system. In a powerful Second Reading speech made in another place, Mr John Maples, the Member for Stratford-on-Avon, referred to the delays caused not by the courts or the legal system but by the unwillingness of Ministers to exercise their powers of decision. I quote from col. 75 of Hansard of 9th December last year. Mr Maples said:

    "I came to this issue after 11 September when I discovered that some suspects who were wanted in the United States and France for terrorist offences had been in this country fighting extradition for a very long time . . . There were four of them, but I was horrified to find on checking the matter at the end of last week that they are all still here. Three people are wanted for the African embassy bombings in August 1998 and are still here four years later. It took the courts a long time to deal with their cases, but the House of Lords dismissed all their appeals on 17 December last year"—

that is 2001, not 2002; this was said in December 2002—

    "Nearly a year has passed, yet the Home Secretary has failed to decide whether to deport them. He can hardly blame the state of current legislation when he cannot make decisions in a year".—[Official Report, Commons; 9/12/02; cols. 75-76.]

I shall be very interested to hear from the Minister, when he comes to reply, whether these cases, which, at the time of the Second Reading on 9th December 2002, had already been on the Minister's desk for over 12 months, have yet been determined.

Further, I was interested to note in the pile of evidence that we have all received about these proposals that, while it may have taken on average 12 months for a person to be extradited from the United Kingdom—a process which the Government consider unnecessarily slow and cumbersome—the reverse process of extradition to the United Kingdom takes 10 months. There is a difference but hardly a hugely significant one.

Notwithstanding that, on this side of the House we accept that there is a need to respond specifically to the spread of world-wide terrorism. As my noble friend Lady Anelay pointed out in her speech, we do not believe that Part 1 of the Bill is necessary at all. The proposals in Part 2 are perfectly adequate. But if the Government were, in their infinite wisdom, to restrict their efforts to the reform of extradition in respect of category 1 territories to those suspected of terrorist offences, then I believe there would be some sympathy on these Benches for that approach.

But, as many noble Lords have pointed out, the reality is that the Government have not been candid, or at least sufficiently candid, about the strategic objectives behind these proposals. A key issue that the Government must answer, and which we shall wish to probe in Committee, is whether the purpose of this

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legislation is co-operation or, in fact, harmonisation. We are debating what is titled the "Extradition Bill". As, again, many noble Lords have said, it implements, inter alia, the provisions of the European arrest warrant. Paragraph 5 of the preamble to the framework decision reads as follows:

    "The objective set for the Union to become an area of freedom, security and justice leads to abolishing extradition between Member States and replacing it by a system of surrender between judicial authorities".

Co-operation or harmonisation? And perhaps if the Government were to be really open about their plans, they should re-title the Bill the "Surrender and Extradition Bill".

As regards category 1 territories, our main concerns about the Bill can be summarised as follows: we are concerned about extent and process. As regards category 2 territories and extradition to the United Kingdom, our worries are perhaps less fundamental. But as my noble friend Lady Anelay pointed out, we have to be aware that large chunks of the Bill have reached this House with, at best, a low level of parliamentary scrutiny.

For the Bill as a whole, our concerns are about, first, the future role of the UK Parliament in monitoring this legislation; and, secondly, about proportionality. What is the balance being struck between safeguards surrendered and advantages gained?

Let me deal with those concerns in order. First, the extent of the category 1 territories. We shall want the Government to be clear about the criteria for countries to be included in categories 1 or 2. We find it extraordinary that there is to be no effective parliamentary scrutiny of any future changes made to the list of countries included in the two categories. Therefore, Clause 210 deserves a careful discussion.

In the Second Reading debate, the Minister, Mr John Denham, attempted to deflect concern on that point by saying:

    "All the states that we are talking about are mature democracies and ECHR signatories".—[Official Report, Commons, 9/12/02; col. 45.]

But that is not the point. First, with the enlargement of the EU we will have partners who are not necessarily mature democracies and whose legal systems are relatively new. Secondly, there is nothing in the Bill to stop a future government adding other countries to the category 1 list.

Further, while the Government have claimed that being a signatory to the ECHR is an effective safety net, the drafting of the Bill belies this. Otherwise, why would we need Clauses 11, 12 and 13, or, most significant of all, Clause 21 on human rights? The second point as regards category 1 territories is process. We shall wish to examine in Committee the issues of dual criminality; of specialty; of availability of translators and legal aid; of presumption of innocence; and of double jeopardy. The latter may require particular investigation, given the Government's proposals in the Criminal Justice Bill.

There are also a number of other broader topics on which we need to tease out the Government's thinking. The first is the way in which the Government envisage

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the interplay between the different judicial approaches of many continental European countries and that of the United Kingdom—characterised as an investigative as opposed to an adversarial system.

That is not to say that one system is superior or inferior to another; just that systems are different and the application of the two systems within a single extradition law poses particular dangers and questions that the Government need to answer. I appreciate, as the Minister pointed out in his opening remarks, that at the Report stage in another place clarification was given. But, as my noble friend Lord Lamont made clear, we still have some way to go on this issue.

Secondly, as my noble friend Lord Carlisle of Bucklow stated, the Government have to explain why, given that the framework directive applies only to offences carrying three-year goal sentences, the United Kingdom has instead adopted a 12-month period.

In replying to accusations of "gold plating" at the Committee stage in another place—a topic raised today by the noble Baroness, Lady Ludford—the only answer that the Minister, Mr Bob Ainsworth, could produce was that most of our EU partners have lower sentencing thresholds, thus equalising the position. No evidence for that assertion was produced. Therefore, Clauses 63 and 64 are likely to detain us for some time.

However, Clause 65 and its potential list of offences goes to the heart of our concerns about process. It is not a clearly defined list. Some of the crimes listed are not crimes as such in the United Kingdom and, last but least, it is a list capable of being amended without proper parliamentary scrutiny.

Finally, I turn to proportionality. What do we gain and what do we lose if these proposals are enacted? As the Minister accepted in his opening speech, there is a balance to be struck. Are we striking the right balance? On Report in another place, we recognise that the Government made an effort to respond to some of the criticisms that had been made and we are grateful to them for that. But as regards category 1 countries in particular, there can be little argument that the Bill represents a reduction in the safeguards available to the citizens of this country. The eloquent and informed speech from the noble and learned Lord, Lord Donaldson, put more clearly the dangers that we are running.

Ministers are fond of producing lurid examples. There are always three. The Minister produced the first two: Mr R and the race issue, and paedophiles—this time from Denmark. If the Minister had gone on to produce the third example, which is always produced in the briefing papers, it would be a drug trafficker who was funding terrorist networks. They produce these very extreme examples to make the case for the wider approach that they are seeking to adopt.

No one disagrees that such people are evil. No one doubts that they should be brought to trial as quickly as possible and that unnecessary delays should not be available to them. The noble Lord, Lord Corbett of Castle Vale, and the noble Baroness, Lady Gibson of Market Rasen, should be clear that we on these

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Benches are far from unconcerned about the position of the victim. We are very concerned about it. That is why in broad principle these Benches accept the new proposals for extradition to category 2 territories contained in Part 2 of the Bill. But the reality is that there is not a huge volume of extradition cases. To buttress their position, Ministers in another place very cleverly made the point that over the past 30 years extradition requests have gone up by 400 pet cent. The reality is that this is one of those cases where percentages are unhelpful and absolute numbers are a more accurate reflection.

According to Appendix E on The Law on Extradition—a Review, published in March 2001, in 1970 there were 19 requests for extradition and 12 completed extraditions. In 2000 there were 78 requests and 47 completed extraditions. With the greatest respect to the noble Lord, Lord Goodhart, I did not follow the logic of his assertion that because that number of cases is low there must automatically, therefore, be hundreds of cases out there that are not being followed up.

No one is suggesting that those 47 cases or 78 cases should be treated lightly, but it does mean that in order to speed up the extradition process because of an increase of 59 cases per annum taking place over 30 years, the Government are proposing to reduce the civil liberty safeguards for all the 55 million citizens of the United Kingdom. That is what my noble friend called "collateral damage". It is not something to be done lightly. Although we understand the principles behind the Bill, we shall need to examine very carefully the balance being struck in the Bill when we reach Committee stage.

7.18 p.m.

Lord Filkin: My Lords, I am pleased to join many other speakers in saying what a pleasure it is to see the noble Lord, Lord Kingsland, back in his place. I say that even from the Government Benches, which may surprise some. He is not an easy advocate. I experienced the force of his intellect and assiduity throughout the Nationality, Immigration and Asylum Bill. I am also genuinely sorry that he will not be with us in Committee. That intellect and probing makes for better legislation. We do not always agree, but that is what this scrutiny is about and that is why he contributes greatly to it.

It has been a useful Second Reading debate. We have ranged between issues of high principle and important detail as is often and rightly the way. In many ways it sets out the broad terrain of issues which we shall need to examine in considerably greater detail at subsequent stages of the Bill. Without being utterly tedious to the House, it will not be possible for me to answer every point raised in a debate of this length. I shall undertake my usual practice of reading carefully what noble Lords have said. Often it is only when one reads Hansard that one captures the full weight of what has been advanced. With my officials I shall seek to write to every noble Lord with a fuller response, or a response if I have not covered the point at all, on the

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issues raised. I shall seek to do that before the first day of Committee because I think the House is entitled to that.

As ever, the noble Baroness, Lady Anelay, made a strong challenge to the Government. I was slightly surprised that she advanced the argument that Part 1 should be removed from the Bill. I shall not go into detail, but by doing so we would deny the benefits that British citizens and British justice would get from Part 1. I shall not repeat what I said earlier but those benefits are substantial. Later, in her measured way, she signalled that if it was not possible to remove Part 1, she would look to where amendments could be made. That is the spirit in which we normally enjoy working with her on these measures.

The noble Baroness mentioned the offer I made to her and to the noble Baroness, Lady Carnegy of Lour, who does a first-class job on scrutinising from a Scottish perspective. Of course, that invitation will be extended to the Liberal Democrat Benches so that they, too, can be party to such a process.

Perhaps I should mention, because it has not been mentioned a great deal so far, the nature of what we are usually talking about in these issues; namely, the type of the offences and why that is germane to our discussions. On looking at the main offences by category of current cases in the system—either incoming cases to us from other European countries or outgoing cases from us to other European member countries—drugs criminality is the greatest category by far. I do not need to labour the point about the seriousness of international drugs trafficking to the quality and stability of our own domestic society and other countries. Theft tends to be the second highest offence and murder or attempted murder is the third.

These are significant issues of criminality, which is why one can expect people to do everything they possibly can to avoid extradition, but why it is crucial that there is an effective system of them being brought to justice either in another European Union country or in this country. If they are not brought to justice or brought to trial, our societies are worse as a consequence.

The noble Baroness, Lady Anelay, asked why the list of the 32 offences is not on the face of the Bill and whether member states can add to the list. Clause 65 of the Extradition Bill makes it clear that the list is to be found in the framework decision. I do not accept that there is any ambiguity about that; the linkage is transparent. Although there are no plans to amend the list, and it requires unanimous agreement of all EU member states, we need to retain the flexibility to respond to changes.

Individual member states cannot unilaterally add to the list. If any EU country introduces a new domestic offence, it would still need to fall under one of the categories in the list for the dual criminality requirement to be disapplied. The list can be amended only by unanimous decision in council.

We had a short discussion about 25 per cent of clauses being scrutinised. That probably was dealt with, but, clearly, the fact that the majority of clauses

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were not subject to scrutiny does not imply that there was a failure of scrutiny. One does not go through every clause. It was because the Opposition did not table any amendments or oppose the Motion that they should stand part of the Bill. I do not criticise them for doing so for the reason that I have given. But, neither would I think it fair to infer that this meant that the Bill had not been scrutinised.

The noble Baroness, Lady Anelay, asked why we need Part 1. Why cannot we just use the EAW for all countries? The difference between the EU and the rest of the world is that there is total free movement within the European Union and it has been a great advantage to the citizens of Europe. But it also makes it much easier for criminals to move around Europe.

Whether the EAW will be used for interrogation or evidence gathering is an important question. The Bill makes it clear that extradition is possible only for the purpose of putting a person on trial. That is a change from existing legislation which is silent on this point. If countries with the inquisitorial system want to extradite people for the purpose of interrogation, that ought to be a problem at the moment, yet difficulties of this kind have not apparently arisen. I am sure that we shall return to these issues in Committee, as, no doubt, is right and proper.

A number of noble Lords, including the noble Lords, Lord Goodhart, Lord Carlisle and Lord Stoddart, and the noble Baroness, Lady Ludford, asked whether it is sensible, as the Government intend, to go to a 12-month limit rather than a three year one. Perhaps I may set out the main argument at this point. I am sure that this will not completely resolve the issue and that we shall come back to it later.

First, all current extradition arrangements are based on a 12-month threshold. Within the 32 categories of offences a large number of serious UK crimes have a sentence threshold of between one and three years. These include racially aggravated assault, possession of a sharp blade or weapons and unlawful intercourse with a girl under the age of 16. Other countries have similar offences and we would want these to have the full benefit of the EAW regime if it were possible to do so. In other words, there are arguments in practice as to why this is beneficial.

There is a further point: UK sentencing thresholds tend to be higher than those of the EU, and we would not want individuals to escape prosecution for these offences because our threshold is too high. If the Bill were changed to reimpose dual criminality for offences in the one to three-year category, people would still ultimately be extradited but only after considerable argument and delay. So that does not seem to us to comply with the spirit of what we are seeking to do, which is to improve justice and fair trials in such cases. We reaffirm that no one will be extradited for conduct which occurs here but is not contrary to UK law. We will come back to these matters.

The noble Baroness, Lady Anelay, also asked about the negative resolution for designated Part 1 countries by order. Under the current legislation, there is no parliamentary scrutiny of the vast majority of

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designation orders. The sole exception is where such an order removes the requirement to provide prima facie evidence. We are therefore increasing the level of scrutiny by introducing the negative resolution across the board. The Minister in another place, my honourable friend Bob Ainsworth, agrees that we would consider introducing the affirmative resolution procedure if a very strong case for doing so were to be made. So far we have not been persuaded that such a case has been made but, as ever, I have signalled that our ears are open, which does not mean we are persuaded, or even persuadable.

The noble Lord, Lord Goodhart, asked whether the appeal against the district judge's decision to the High Court will be heard at the same time as an appeal against the decision of the Secretary of State. If there is an appeal against the judge's decision at the extradition hearing, the appeal must not be heard until after the Secretary of State has made his decision. That is contained in Clause 101(5). We envisage, however, that if there is also an appeal against the Secretary of State's decision, the two appeals will be listed together which is, I think, what the noble Lord wanted to hear.

The noble Lord was the first of a number of speakers to raise issues about the integrity of the justice system of other EU member states or accession states. I cannot pretend that I can dispose of this issue in a few short words. We will, quite rightly, explore it in some detail later in the Bill's proceedings. However, I have heard some very interesting arguments from all Benches that we should stop doing what we propose until such time as we effectively have the harmonisation of criminal procedures and/or a system that almost guarantees that we have nearly comparable standards to our own on bail, procedure or what-have-you.

This is a classic situation of the good being the enemy of the best. I remind the House that we currently extradite to EU member states and to accession states. There is not perfection in any other EU state; there is not perfection in the British state. Therefore, if I took the thrust of the argument that we should stop doing anything, we would essentially put the benefits of the individual who is accused—and I remind your Lordships of the severity of the offences we are in general talking about—at a much higher level than the interest of the victim. In other words, we would virtually cease to have any system of effective extradition until we had reached this Valhalla, these sunny uplands, where all legal systems were equally good and equally perfect. I do not think that is justice, nor do I think it is practical politics. That does not mean that we should give up on the attempt to work towards improvement of our own judicial procedural systems and those of other countries. But I do not think it is valid to imply that we should not extradite until we have that in place.

I shall write to the noble Lord, Lord Goodhart, on Eurobail, as it will take too long to cover it now.

I had an interesting session of scrutiny before EU Sub-Committee E yesterday on the framework decision on racism and xenophobia. I shall return to the question

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later in responding to some of the questions asked by the noble Lord, Lord Kingsland, on scrutiny. The measure appears to have run into the sand. I say that in sorrow, because it had some benefits, but it appears that there is such a fundamental logjam on it that the Greeks have not decided that they will proceed with it under their presidency. It is open to question whether the Italians will have it as a high priority. In that sense, it is not an imminent issue.

The noble and learned Lord, Lord Donaldson of Lymington, asked whether there was any system of checking whether the person has committed the offence of which he was accused. In short, guilt or innocence is the matter for the court at the trial, not the extradition hearing. We have not asked the Council of Europe countries to provide evidence of cases against a person since 1991. The measure was introduced by the then Conservative government, and we have not taken the view that they were wrong to do so nor that evidence has since proved that the measure has been a failure.

The noble and learned Lord also said that if a serving prisoner was extradited, the time spent abroad should not count against his UK sentence. If a UK prisoner was extradited at the end of his UK sentence, he would not expect the sentence in court in another country to take account of his UK sentence imposed for an entirely different reason. Exactly the same principle should apply if a person is temporarily extradited to stand trial in the course of his sentence. By the shake of his head, I see that I have not yet persuaded the noble and learned Lord. I shall try to put it in writing to him. We may make better progress that way.

The noble Lord, Lord Clinton-Davis, as is his wont, both said some supportive things to the Government and made some challenges. I shall not answer all his points now, if he will bear with me, but I was grateful for his acknowledgement that we had got a difficult balance broadly right, while not saying that we had achieved perfection.

The comments made by the noble Lord, Lord Lamont, contained much thoughtful challenge. I have already given my initial response to some of his remarks in my comments on other points. If I do not repeat those comments or go into detail now, I hope that he will not treat that as a discourtesy. I intend to read what he said carefully, as I know the passion and concern that he feels on this measure. He is entitled to the fullest consideration of that, both during Committee stage and in correspondence before it. I own the seriousness of it, but I hope that he will forgive me for not going into detail now.

I should refer briefly to some of the processes that are in place to ensure that the accession states come up to the decent standard that we expect from them in terms of judicial systems and procedures. We already have extradition arrangements with them—that is the first point. They have all incorporated ECHR into their laws, and there has been a generous package of support of money and practical help to strengthen the administrative and judicial capacity of their systems. It

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is good and right that the incentive of joining the European Union is pushing forward justice in those countries as a consequence.

There is a monitoring process that requires candidate countries to report on progress. If candidates demonstrate serious flaws in their ability to implement the EAW or any measure, it will be possible to prevent them from using the EAW. The JHA safeguard can also be triggered by the Commission or a member state, either before membership or up to three years afterward, saying that they are not fit in that country to operate EAW. We will come back to that later, I am sure.

The noble Lord, Lord Lamont, also raised the issue of investigating magistrates and the presumption of innocence. That is such a detailed and technical issue, but I shall make one short positioning comment. Our view is that other EU countries do not operate on the basis of presumption of innocence. They are countries with which we have extradition relations, and it has not given rise to problems. No one can be convicted or punished for a crime in another EU member state unless they have been found guilty in a court of law. Additionally, the presumption of innocence is guaranteed in the ECHR, to which all EU countries have signed up. I do not expect the noble Lord to be satisfied with that level of generality, but we will go into the question later in more detail.

We spoke about the Greek plane-spotters, as it was inevitable that we should do. Of course, on one level the issue was serious, as seen by the Greeks. They believed that espionage was taking place in their state. We may have thought that they were wrong or misguided, but one would be foolish not to think that a country might not perceive that as a potentially serious issue. I will not go into the detail. The case was heard swiftly, the defendants were granted bail during the process and were even allowed to return to the UK on the bail process. So it was not all sin and wickedness, although I would not claim that it was perfect.

The noble Lord, Lord Kingsland, made a fascinating speech, which linked the Bill and the nature of third pillar legislation. The noble Baroness, Lady Ludford, also referred to that. As one who is privileged to take part in some of that legislation in the Justice and Home Affairs Council and to be part of the process of scrutiny here, I believe that those are good points. Next week, a parliamentary process will start looking at the current nature of parliamentary scrutiny. I will not therefore go into more detail now. I will offer just one short anecdote of my own experience of that.

The system, as we know, works the other way round. This House and another place, if they are working well, seek to scrutinise the draft documents that must be deposited at all stages before decisions are made. The Government treat that process seriously in terms of deposition and by seeking to try through correspondence and interrogation to respond to those questions.

My example is that yesterday I was up before—if that is the right expression—the noble Lords, Lord Neill and Lord Lester, and the noble and

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learned Lord, Lord Scott, on the racism and xenophobia framework agreement. I signalled that that was pretty well dormant at this stage. I invite Members of the House to have a look at that; it involved absolutely first-class parliamentary scrutiny, as one would expect from those noble Lords. They also raised points with us that made us think that we should go away to consider the issue and come back to them. In other words, they did not merely say, "Go away. This is our answer". A proper process of scrutiny is involved. We cannot take the position that the process of pre-legislative scrutiny—that is essentially what JHA legislation is—cannot deliver results. The noble Baroness, Lady Ludford, is right: we seek to make the process work as well as we can and do not say, "It is all hopeless"—not that that was being advanced.

The noble Lord, Lord Kingsland, asked why we did not press for the inclusion of an equivalent to Clause 21 in the framework decision. The framework decision includes a provision on human rights—paragraph 12 of the preamble sets that out. I shall later come back to the harmonisation of judicial procedures. It is easy, in a sense, to say that that is attractive. There are serious risks and challenges in so doing. We have certain relevant judicial practices in this country, including trial by jury and how bail operates in our country. It is not in our view automatic that harmonisation of our criminal procedures necessarily leads to perfection. I give notice that we shall return to those issues in much more detail later.

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