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Lord Clinton-Davis: I am quite a difficult chap to convince. Nevertheless, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 5 and 6 not moved.]

Baroness Anelay of St Johns moved Amendment No. 7:



"( ) A territory may only be designated for the purposes of this Part if it is a party to the framework decision on the European arrest warrant and the surrender procedures between Member States."

The noble Baroness said: In moving Amendment No. 7 I shall also speak to Amendment No. 9 which is in the name of the noble Lord, Lord Goodhart. I thank Liberty for its briefing on the amendments.

Earlier this afternoon, a while ago now, when speaking to Amendment No. 2, my noble friend Lord Hodgson talked about the importance of using the affirmative procedure for designating territories. He spent some time setting out the reasons why we feel that it is right to get the designation of territories right. I was therefore very interested to hear in the previous debate the intervention of the noble Viscount, Lord Bledisloe, with regard to designation and de-designation. I think that that whole debate is key to the debates on how one designates countries and which countries should be designated.

In his response to the previous group, the noble Lord, Lord Bassam of Brighton, talked about the extended shopping list of countries that might be added in future. Ministers have previously been rather more cagey about extension. Although we certainly

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heard comments on the record about Norway and Iceland, Ministers have been a little more cautious about extending it to the ex-Commonwealth countries. I have heard asides, but I have not heard anything else put so clearly on the record. It was an interesting and important comment for the noble Lord, Lord Bassam of Brighton, to put on the record.

The principle behind the amendment is to try and insert into Clause 1 some criteria for which countries can be designated as the Part 1 countries. The lack of guidance and clarity on this issue is clearly not something that perturbs only me. The noble Lord, Lord Goodhart, has tabled amendments which refer to bail policies and say that the country should accept the right of petition to the European Court.

Speaking only to my own amendment, I presume that the Government will come back at me and say that to insert my specification for category 1 territories would be "inflexible"—which is the type of word that Ministers use. I do not think that that is a particularly valid argument in this case. Simplification of the extradition procedure and the consequential removal of certain traditional safeguards, which we have already discussed today, have been agreed to by the UK with other EU member states under the Eurowarrant scheme. So Part 1 of the Bill is designed to transpose the substance of the European arrest warrant into national legislation.

The Home Office Select Committee report voiced the following concerns on the issue:


    "As the Bill is currently drafted, there is nothing to prevent an Order in Council designating a country which is not a signatory to the framework decision as a category 1 territory, meaning that a country which is not bound by that decision could still have the benefit of article 2.2 of the decision. A non-EU member state could therefore request that the UK extradites a suspect for an offence that does not constitute an offence in the UK".

I would welcome some clarification from the Minister about whether territories that have not signed up to the framework decision will be designated as category 1 territories. In addition, perhaps rather than naming the future countries which he envisages, I hope that he will endorse what the noble Lord, Lord Bassam of Brighton, has said. However, if he does not want to do so, perhaps he will be more forthcoming in setting out the criteria that will form the basis of the categorisation.

I turn briefly to Amendment No. 9, tabled by the noble Lord, Lord Goodhart. I shall listen with interest to his exposition of the amendments. I simply note that when I read a briefing from Fair Trials Abroad—which I thank very much for taking the time to come to the House in order to brief my noble friends on the Front Bench—I was a little concerned about the impact of Amendment No. 9. Fair Trials Abroad pointed out that countries could claim that they accepted the right of individual petition to the European Court, whereas in practice and in the experience of Fair Trials Abroad it would be very difficult for individuals to appeal successfully because of problems of corruption and discrimination against non-nationals in the country where the trial was taking place and because of the expense of pursuing a

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successful petition. However, if the noble Lord, Lord Goodhart, is able to show that those matters have been overcome, I think that he could be on to a winner.

With regard to my own amendment, I beg to move.

Lord Goodhart: I wish to speak to Amendment No. 9, which is in the same group as Amendment No. 7 which was tabled by the noble Baroness, Lady Anelay. Amendment No. 9 has a similar purpose to Amendment No. 7 but allows rather more leeway. Amendment No. 7 is limited to parties to the framework decision. Those parties must necessarily be member states of the European Union, whereas Amendment No. 9 can extend rather more widely.

As I said in a previous debate, we welcome the fast-track process where we have confidence in criminal procedures in the requesting state. On that footing, we would be entirely happy with the proposal to extend category 1 status to Iceland and Norway and indeed to some non-European countries such as those mentioned by the noble Lord, Lord Bassam. However, I think that there should be some criterion beyond merely the absence of the death penalty to limit the Government's power to add new territories to category 1. I suggest that a suitable criterion would be the acceptance by the relevant territory of some exterior tribunal to which individuals can apply in cases of alleged breaches of human rights.

In the case of member states of the Council of Europe such a tribunal already exists in the case of the European Court of Human Rights. It certainly appears on the whole that even in countries such as Turkey which are not as good as some other countries in observing human rights there is a fairly active system of appeal to the European Court of Human Rights.

In the case of non-European countries, it has to be said that it is harder to find a suitable tribunal. However, the International Covenant on Civil and Political Rights has an optional protocol that enables an individual to bring a complaint before the Human Rights Committee which has been set up under that covenant. The Human Rights Committee can consider the facts and publish a report on the complaint, though admittedly it is a report rather than a judgment. Signing up to the optional protocol is not therefore an ideal basis for the criterion, but in many parts of the world it is the best that can be done.

In answer to the point that the noble Baroness very fairly raised when she said that some countries subscribe to the European Court of Human Rights or to the optional protocol but would still not be suitable for category 1 status, I entirely accept that. However, my amendment does not suggest that all parties to the European Convention on Human Rights or to the optional protocol were in fact suitable for immediate category 1 status. It seems to me, however, that countries that are not parties to the European convention or which have not signed the optional protocol have shown a reluctance to allow individual cases to be subject to an independent scrutiny by an international body and that that reluctance should disqualify them from category 1 status. It would

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remain entirely within the Government's discretion whether in other cases they felt that it was suitable to approve category 1 status or whether those countries should remain in category 2.

Amendment No. 9 therefore would allow the Government to negotiate category 1 status with states outside the European Union but would exclude from category 1 status any territory which has refused to accept the international oversight of individual complaints over human rights breaches.

Lord Filkin: These amendments are concerned with which countries can be designated as category 1 extradition partners and in what circumstances. The effect of the amendment from the Official Opposition would be that the only countries which could be so designated would be those which had signed the framework decision on the EAW. That in turn means the member states of the EU together with Norway and Iceland which have so signed. The Liberal Democrat amendment goes slightly wider by allowing any country which has signed up to and operates the provisions of the ECHR to be in Part 1. That encompasses a rather wider range of European countries.

It is the Government's intention, as we have indicated, that the only countries that should be subject to Part 1 procedures are precisely the ones covered by the official Opposition amendment—the member states of the European Union plus Norway and Iceland. However, I do not think that it would be wise to limit the future quite as tightly as that amendment would indicate. It would limit the room for manoeuvre of our successors if they decided that there were good reasons to bring before Parliament the case for putting a non-European country into Part 1. My noble friend Lord Bassam trailed that point by referring to Australia, New Zealand and Canada. Although we currently have no intention of doing that, it is not outside the bounds of possibility. The day may come when one thinks that there are benefits in doing so. If that were so, one would make that proposal to Parliament. The USA is of course precluded from such designation in Part 1 for as long as it retains the death penalty.

Those three countries are all established democracies, where the rule of law is respected. However, I hasten to stress that we have no plans to remove those three countries, or any other non-European countries, into Part 1, although it does not strike me as impossible. There may be a strong case for doing so in future, but that is not being deceptive; we are simply leaving open the possibility. Therefore, we need to retain a flexibility—although I hate to use that word—to cope with the situation, as the noble Baroness, Lady Anelay, suggested. I indicated by the amendment which I signalled we would table that we would not be able to do so, and we would not wish to be able to do so, without making a proposal that would have to stand the test of an affirmative resolution of both Houses of Parliament.

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The noble Lord, Lord Goodhart, raised some thoughtful additional points, as ever. I do not want to raise his hopes by signalling that I will reflect, but I do not want simply to be dismissive and strike it out altogether. I shall use some of the time between now and Report stage to reflect on the balance of advantage and disadvantage. With that, I hope that the noble Baroness, Lady Anelay, will be minded to withdraw her amendment.

6.45 p.m.

Baroness Anelay of St Johns: This would certainly have been a probing amendment, even if we had not been in Grand Committee. My objective was to elicit from the Minister some explanation of the criteria on which the Government were going to operate. I have failed signally in that regard. The Minister said that he did not like the amendment because it was too much of a straitjacket and too limited. I would certainly agree with him on that, if we must proceed as the Government want, and there may be a better way of limiting the scope of designation to Part 1 countries.

The Minister said that it was unwise to limit the provision because we do not want to prevent people in future from adding other countries. The difficulty is that we still do not know on what criteria the Government will operate when we reach that stage.


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