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Lord Filkin: I am sorry to have to intervene twice in this way. First, we have not really given much thought to criteria because there is no current intention to add to designation. That does not mean to say that we believe that there should be a rigid set of criteria, but one might at least have to reflect on possible principles.

Secondly, it would not be someone in future making the decision, but Parliament itself. We have made it clear that adding any country to Part 1 would be a decision made by Parliament through the affirmative resolution process.

Baroness Anelay of St Johns: I am grateful to the Minister for that. I was about to move on to the fact that he has helpfully signalled today that the Government will consider introducing amendments on Report that will make designation subject to the affirmative procedure. However, the fact is that by that stage the Government would presumably have had to give some thought to the matter. The Minister made the point that not much thought had been given to the criteria yet. That very much underwhelms me, I must say. Any Government that introduced an affirmative statutory instrument would presumably, at that stage, have to say what the criteria were on which they proposed that a country should be added to the list. One would assume that Parliament would, at that stage, consider the criteria that had been used to put the countries on the list in the first place.

I feel as if I were going round and round in a circle and getting absolutely nowhere, which is why I shall beg leave to withdraw the amendment. However, I shall have to bring this back at Report to test it further, even if we do not get the Government to consider it in the meantime. It is a matter on which noble Lords will

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have to establish their views before the Bill goes through the House. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Goodhart moved Amendment No. 8:

    Page 1, line 11, at end insert—

"( ) A territory may not be designated for the purposes of this Part unless it is bound by law not to discriminate against persons resident in other category 1 territories in the grant of bail pending trial."

The noble Lord said: The amendment is not exactly a probing amendment. It has been moved mainly in order to get the issue of bail on record. I have referred already to Fair Trials Abroad, which helps United Kingdom residents facing trials in other countries, and sometimes the converse. Over the years, it is clear that a main cause of hardship for people arrested abroad is the difficulty in getting bail in foreign countries. British lorry drivers especially, whose lorries are found to be holding something that should not be there, whether it be people, booze or cannabis, are often clapped in jail and held there for months pending trial. That is so even where a local lorry driver would be released on bail.

The reasons for that discrimination are understandable up to a point. For example, a Spanish defendant who is arrested and charged with a criminal offence in Spain is unlikely to go abroad unless he is a serious professional criminal and can afford to go and live somewhere else. If a Spanish defendant jumps bail in Spain, the Spanish appeal can find him, put him in prison and bring him before the court with no formality. On the other hand, if a United Kingdom resident is charged in Spain and given bail, he will naturally want to return to the United Kingdom. If he does, there is a significant chance that he will not return for the trial, and if he does not go back to answer to bail, there is no quick and easy way in which to get him there. The Spanish authorities would have to apply for extradition which, as we know, even under the new procedure can be a long and expensive process. Of course, the bail can be forfeited, but many defendants are not in a position to find substantial bail, and if they are going to be released, they have to be released on relatively modest bail.

The simplification of the extradition procedure by the Bill undoubtedly means that it would be easier to get bail jumpers back to other category 1 territories. That is one reason, and an important reason, why I support the European arrest warrant in principle. However, it is still a relatively complicated procedure.

Fair Trials Abroad has been campaigning, for many years now, for the creation of a Eurobail system. That would mean that a defendant who refuses to answer to bail in another Eurobail country would be returned for trial to that country with the minimum of formality. Of course, there would have to be some formalities—for example, the person who had been arrested could raise the defence of mistaken identity and say that he was not the bail jumper—but the procedure would be kept to a minimum. That would minimise the protections against abuse, but that is a fair balance, because

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without a Eurobail system foreign defendants are more likely to be detained in custody, and the more opportunities that a person on bail has of delaying or blocking his return, the less likely it is that bail will be granted. Therefore, it is in the general interests of people charged with a crime in a foreign country that procedure for returning those who do not surrender to their bail voluntarily should be as simple as possible.

That means having a Eurobail system that is separate from extradition and is as near automatic as reasonably possible. It is not practicable for us to introduce in amendments to this Bill any formula for a fully-fledged Eurobail system, as that would be far too complicated. Therefore, I have tabled an amendment that requires all category 1 territories to undertake not to discriminate against the residents of other category 1 territories in granting bail. I am not suggesting that that would be an adequate substitute for a proper Eurobail system, although it would be better than nothing.

Are the Government prepared to give approval in principle to setting up a Eurobail system, and are they prepared to raise the matter with other member states of the European Union with a view to ultimately making progress and having a framework decision that would create such a system? I beg to move.

Viscount Bledisloe: The noble Lord has raised an important and difficult problem, although I do not believe that his answer is the right one. As he said, the problem applies to people arrested for an offence abroad. It matters not whether they were arrested in that country when they committed the offence or whether they have been extradited for it. The problem arises when a person is in custody in a foreign country for an offence that he is alleged to have committed there. It makes no difference whether he got there because he was arrested before he got out of the country or whether he was hauled back pursuant to extradition.

I also have to say that this country would probably not qualify within the test imposed by the amendment. I may be very out of date, because it has been a long time since I did a bail application, but it has always been a serious consideration of the court whether the person in question was, if given bail, likely to attend the trial. Many people in this country will be required, for example, to surrender their passports and give undertakings that they do not leave the country. The person granted bail in Greece after looking at aeroplanes will want to come home, and it is not much good to him to be given bail and required to remain in Greece. Almost no country could pass the test, because countries will inevitably discriminate against people whose natural tendency will be to leave the territory when they cannot prevent it.

On the other hand, I entirely agree with the noble Lord, Lord Goodhart, that it is high time that we had a Eurobail system, and I do not see the objection to it. If one is arrested in a foreign country, one does not have to ask for bail; one can remain in custody. If one does ask for bail, one is either expressly or implicitly promising and undertaking that one will return for

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trial. If one breaks that undertaking, why should he not be hauled back straight away? I do not see the difficulty with Eurobail, which seems to me much less controversial and more reasonable than the arrest warrant. I do not understand why Europe has not got on with it; normally it gets on with far too many things, but this seems to be one thing that it should have got on with but has not. Will the Minister tell us where we are on that matter?

Lord Wedderburn of Charlton: I support the amendment, at least in spirit. There may be some problems with wording, as the noble Viscount, Lord Bledisloe, said, but he referred to cases that would not amount to discrimination within the terms of the amendment. That is simply a matter of wording, at any rate. The spirit of the amendment is surely something we should support.

I have some knowledge of the cases investigated by Fair Trails Abroad. I do not believe that the Government have really paid heed to the work of that organisation. Surely, the spirit of the amendment must be right in a general sense, when it says that we should not designate where there is discrimination against people from other territories as regards granting of bail. I point out to the noble Viscount that it is a matter of designation.

The grant of bail is absolutely fundamental. People languish in prisons in other countries, which include countries in western Europe. The Government must surely, on principle, do something to establish right at the outset of the Bill that they are against that. They can do so by saying that no country can be designated where such discrimination exists. I do not know about the exact wording of the amendment, but this is a test case for the Government.

The noble Lord, Lord Carter, speaking in the curious debate that determined whether the Bill should be sent to the odd procedure of a Grand Committee, recommended the procedure on the grounds that the Government were more likely to make concessions. His speech was highly recommended by my noble friend the Minister. I hope that my noble friend has that spirit now. I was so glad to hear that the previous amendment will be considered. Surely, if there is an amendment on the Marshalled List that the Government should reconsider—whatever the Home Office has thought in the past—this is it. I hope that my noble friend can reassure us on that point.

7 p.m.

Baroness Anelay of St Johns: This is certainly an interesting amendment. When Fair Trials Abroad came to give their briefing, they made the point to me that when the European arrest warrant comes into force, it is necessary to have a practical traditional liberty system also in place as soon as possible, and that if that does not happen, European citizens who are foreign to the jurisdictions in which they find themselves will inevitably experience institutionalised discrimination in the granting of provisional liberty. That is why it made the suggestion of Eurobail.

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I was struck by the comment of the noble Viscount, Lord Bledisloe, when he said that our jurisdiction might be found wanting within the definition of the amendment. I plead guilty to having myself sat on and refused granting of bail—in one case to an Italian and in another to a Spanish person, on the basis that they were likely not to surrender. In both cases they were accused of trafficking drugs. I am not sure that they would have been granted bail had they from this country, either, but it is certainly a matter for consideration in granting bail whether someone will skip the country. I appreciate that all those who grant bail must have that in mind.

The amendment is helpful. It is important for the Government today to shed some light on the problematic issue of bail and how they intend to advance negotiations with their European partners. I was again struck by the comment of the noble Viscount that the matter was less controversial than the European arrest warrant. Some might not agree with him, but I think that he is right.

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