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Lord Filkin: I am sorry to interrupt the noble Baroness. I wish I could claim that I had chosen Rome deliberately because it is within the European Union, although in a sense that makes my point. We were talking about the Part 1 processes for countries where we think it is appropriate to do so. Therefore we were not saying and have never said that to be the situation for any country in the world. We are talking about the narrow circumstances of Part 1.

Consistent with that, we have agreed to use the affirmative resolution procedure for the designation of any country in Part 1, recognising the concern to ensure that, without expecting that anyone will find a perfect judicial system anywhere in the world—not even here—if a country looks to be a reasonable enough extradition partner, we can use the procedures set out in Part 1 rather than Part 2. I intervene to ensure that there is no misinterpretation that I had implied that if someone committed a crime in an appalling police state named X, we would automatically bang the accused back. Not for a moment was I saying that.

Baroness Anelay of St Johns: I am grateful for that clarification. I have to say that I had hoped that the

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Minister would say exactly that. The difficulty, however, is that we still must come back to what happens in countries already in the European Union and the fact that we are not guaranteed that the Part 1 procedures will be applied only to existing EU members. That creates the additional difficulty that offences created in the future in other countries may be added to the framework list—by unanimity in a ministerial decision, it is true, but it could happen. Thus we are trying to aim static provisions at a moving picture. It is the moving picture that worries us so much.

The Minister finds fault, for example, with our definition of terrorism. The courts already have to work with the Government's definition of terrorism when they decide each and every case in this country. We see that as a difficulty that we trust our courts to determine. We do not necessarily trust the procedures applied abroad to be able to determine properly decisions that will have to be made as a result of the procedures set out in the Bill. The Minister will therefore not be surprised to learn that I expect to return to these amendments on Report. He will also not be surprised to hear me say that I look forward to our later discussions on the very important safeguards that are enshrined in further amendments, not only from these Benches, but from all sides of the Committee. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Clinton-Davis moved Amendment No. 4:

    Page 1, line 9, leave out "may" and insert "must"

The noble Lord said: In moving Amendment No. 4, for the convenience of the Committee, I suggest that we should also consider Amendment No. 5. First, I should like to make a short point. I live in a world of optimism in that regard. My first point is that the issue which this amendment addresses is very simple. Since my stroke, I speak very slowly, so I think that the Committee is bound to make rather slower progress than is usual.

This clause retains the possibility that a state capable of imposing the death penalty can be allocated into category 1. I welcomed the Government's statement declaring that they will not allocate to category 1 any state which uses the death penalty. But, in my view, the use of the word "may" renders the clause rather ineffective. There is then the possibility that a country could still be included in category 1 regardless of whether it imposes the death penalty.

The clause then limits the remit of the provision to the death penalty under the general criminal law of the territory. I ask, therefore, whether capital offences defined as coming within the general criminal law would be so caught. Would terrorist-related or emergency legislation be defined as coming within the general criminal law? How are military tribunals to be covered?

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I submit that the clause as currently worded does not provide any effective safeguards or progress the discussion of criteria for allocation, a subject which remains rather opaque. I beg to move.

Lord Goodhart: Amendment No. 5 in this grouping is tabled in my name and I welcome the support of the noble Lord, Lord Clinton-Davis. However, I am afraid that I did not return the compliment by adding my name to Amendment No. 4 because I do not think that it is necessary. The words "may not" inevitably equal "must not" in the particular context. However, in my view Amendment No. 5 is needed. It concerns a point raised originally in briefing by the Law Society.

Subsection (3) states that:

    "A territory may not be designated for the purposes of this Part if a person found guilty in the territory of a criminal offence may be sentenced to death for the offence under the general criminal law of the territory".

It makes plain sense to stop at the words,

    "may be sentenced to death for the offence",

thus leaving out the phrase,

    "under the general criminal law of the territory".

What is meant by those words? Do they exclude emergency law? Do they exclude military law? Are they meant to leave open, for example, the possible imposition of the death penalty under Article 2 of the 6th Protocol to the European Convention on Human Rights which permits the death penalty to be imposed for acts committed in time of war or imminent threat of war?

All those possibilities open a wide loophole. A state could abolish the death penalty under the general law, but keep draconian powers to apply the death penalty, for example, in times of internal insurrection. It would be best to get rid of those words or to tighten and clarify the definition of the circumstances under which the death penalty could in fact be applied.

6.15 p.m.

Baroness Anelay of St Johns: I shall deal first with Amendment No. 4. I certainly support the spirit in which the noble Lord, Lord Clinton-Davis, moved the amendment. However, like the noble Lord, Lord Goodhart, I think that perhaps in drafting terms, it is not necessary. If my Chief Whip told me that I "may" not do something, of course I would not do it. "May" means "must" so far as I am concerned.

Any matter with regard to the death penalty is one of personal choice in political terms when one votes. Members of this Front Bench will be supporting not only these amendments but all other amendments with regard to safeguards that need to be imposed to ensure that persons are not extradited to a place where they might then face the possibility of a death penalty.

The noble Lord, Lord Goodhart, has very effectively explained the amendment on which we received briefing from Liberty. I shall not repeat that. We shall return to the question of the death penalty later in Part 2 with Clause 93. I simply say that I support Amendment No. 5. The clause as currently

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worded does not provide the effective safeguards we need, nor does it take forward properly the discussion of criteria for allocation which, as the Law Society says, is opaque in this respect.

Baroness Turner of Camden: I also support Amendments Nos. 4 and 5. I very much welcome the Government's frequently stated policy that they will not extradite people into territories or countries where it is not certain that capital punishment will not apply. As my noble friend Lord Clinton-Davis stated, the Bill leaves a bit of a loophole, as indeed the noble Lord, Lord Goodhart, explained. It would be much better if this were clearly stated on the face of the Bill as:

    "A territory [must] not be designated for the purposes of this Part if a person found guilty in the territory of a criminal offence may be sentenced to death for the offence".

Full stop. I think that is appropriate. I hope that the Government will be prepared to accept it.

Lord Mayhew of Twysden: I endorse the support for the policy of the subsection. It has been, I do not know for how long, and it was certainly the policy of the last Conservative Government not to extradite to a country where the death penalty could be imposed. There was a case called Soering which caused tremendous complications. The Commonwealth of Virginia sought to extradite Soering. Its Attorney-General had been elected on a strong pro-capital punishment ticket. I shall not go into the details, but the extradition request had to be downgraded by Virginia so that he was tried for a lesser offence which did not carry the death penalty.

It is important that we should maintain that position. It has been the policy of successive governments for a long time. It is a good thing that is defined in statutory form. I agree with the noble Lord, Lord Goodhart, that the words are possibly productive of doubt and really are not needed. It is enough to say,

    "where he can be sentenced to death".

One might possibly say,

    "where he can lawfully be sentenced to death".

But under the general criminal law the words seems to be unnecessary and potentially troublesome.

Viscount Bledisloe: I share the aim of the noble Lord, Lord Goodhart, but does he actually have the procedure right? The provision goes to designation of a country and not to extradition or an actual offence. A country is designated when it does not have the death penalty. It then has a political crisis and introduces, as the noble Lord, Lord Goodhart, presupposed, emergency legislation or martial law, which includes the death penalty.

First, the noble Lord's amendment will not say that in that case the country's designation has to be revoked. Surely he needs a further provision elsewhere stating that even where a country has been designated and does not have a death penalty under its general law, if it changes that in relation to a particular type of offence, there cannot be a Part 1 extradition. It seems a little strange that if a country introduces martial law

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under which one can be executed for rebellion or subversion, that that would then prevent one from being extradited to that country for fraud, blackmail or so on, which is not covered by the death penalty at all. While the intent of the noble Lord, Lord Goodhart, seems good, I am not currently convinced by his method.

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