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Lord Filkin: I thank the noble Lord, Lord Hodgson, for the clarity with which he spoke to his probing amendment and hope that I can be equally clear in my response. Although I may occasionally be slightly more reticent, given the nature of some of the national security issues on which we are touching, I hope that I shall not be unduly so. Let me first address Amendment No. 252 and then the wider questions raised by Amendments Nos. 253 and 254.

Clause 198 essentially allows the Secretary of State to intervene in any extradition case in Parts 1 or 2 to prevent extradition taking place. He can do so only if a person was acting pursuant to a statutory function or acting following an authorisation from the Secretary of State. We are here discussing where the conduct that forms the extradition request was being carried out in pursuance of one of the statutory functions conferred on the security and intelligence agencies themselves. Additionally, if the Secretary of State wants to intervene to halt the extradition process, he must decide that extradition would be contrary to the interests of national security. So in a sense there are two tests.

Amendment No. 252 would amplify what is included in the term "national security" and make an addition about economic well-being. As the noble Lord said, the definition comes from an amalgamation of subsections 1(2) and (3) of the Security Service Act 1989. The question is whether it is necessary and appropriate to include that clarification. My first point is that the 1989 Act was breaking new ground, so no doubt the Government of the day thought it useful to illustrate what the term "national security" included, but in no way was that illustration exhaustive nor, importantly, was there any intention to define or limit the term "national security". The description was illustrative, not definitive. Subsequent legislation that employs the term "national security", notably the Intelligence Services Act 1994, has not included that amplification.

More broadly, as I think the noble Lord suggested, we have always felt that national security is something that one recognises when one sees it—which leads us into a tautological situation. Under the Bill, it is the Secretary of State who determines whether national security issues are raised by an extradition request. I

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suggest that the Secretary of State is well-placed to perform that task without the need for further clarification or embellishment. The present formulation gives the Secretary of State the broadest possible discretion, a margin of discretion recognised by both domestic and European courts. There are good reasons for that, and we should be unwise to disturb it. I think that answers the specific question: are we fettering ourselves in any way by not including more specific detail? The answer is no.

[The Sitting was suspended for a Division in the House from 5.30 to 5.41 p.m.]

Lord Filkin: I think I had spoken to Amendment No. 252 and was just about to start on Amendments Nos. 253 and 254.

The Security Service Act 1989, as amended by the Security Service Act 1996, and the Intelligence Services Act 1994 gives the intelligence agencies three statutory functions, broadly summarised as protecting national security, safeguarding the economic well-being of the United Kingdom and supporting the prevention and detection of serious crime.

These amendments seek to extend Clause 198 to cover cases in which an extradition would be contrary to the interests of the United Kingdom's economic well-being or the fight against serious crime. We contend that since Section 7 of the 1994 Act, which is concerned with the agencies' operations abroad, covers all three of the statutory functions, the amendments do not appear to be necessary. The reason for this is that the methodology, operating techniques, personnel and resources employed by the agencies are common to each of their statutory functions.

Revelations about their economic well-being or serious crime work would, therefore, inevitably damage the work which they do to protect national security and therefore could endanger national security itself. So it would be perfectly possible for the Secretary of State to take the view that it would be contrary to the interests of national security to prevent anyone connected with the work of the agencies being questioned in a foreign jurisdiction. This would therefore allow him to intervene in any case where we receive an extradition request which relates to any of the activities of the agencies, even if the activity was in connection with the economic well-being or serious crime function. I think that goes to the heart of the purpose of the probing amendment.

This would be the case under the Bill as it is currently drafted, which is why, as I have said, we believe the amendments are unnecessary.

I can assure the Committee that the Government are very conscious of the need to safeguard the work of the security and intelligence agencies and, in particular, to ensure that those acting on behalf of the agencies do not inadvertently find themselves subject to extradition processes.

Clause 198 has been very carefully drafted to ensure that it offers protection to the agencies and those working on their behalf. We are satisfied that it offers

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the requisite degree of protection for all the activities which the agencies are permitted to engage in. No doubt your Lordships will infer from that that it will be after the fullest internal consultations.

I hope, therefore, on the basis of what I have said, that the noble Lord, Lord Hodgson, will feel reassured that the important issues he raised in his probing amendments are adequately covered by existing legislation.

Lord Hodgson of Astley Abbotts: I am grateful to the Minister for what he has said because we are all pulling on the rope in the same direction. He talks about the danger of exposure, the inadvertent risks—exactly the matters that we are trying to get at. That having been said, I am not sure whether what was in the response quite answered the points we made.

The Minister said that it would be a mistake to accept Amendment No. 252 because as the existing provisions were not exhaustive and there was no fettering in the existing provisions, Amendment No. 252 therefore represented a restriction rather than a freedom. But our amendment contains the words "including, in particular". It is not meant to be exhaustive, but focused. I am not sure that the Minister's response went to the heart of that matter.

The Bill will give additional clarity about economic well-being and prevention of financial crime. However, I am not clear why mentioning those matters in the Bill, as suggested in Amendments Nos. 253 and 254, would lead to the dangers of exposure or inadvertent risk. They would make it clear beyond peradventure that the Secretary of State has powers to act in the full definition of existing legislation, the 1994 Act.

I accept that the Minister gave a long and helpful reply; I accept that what he was aiming at was what we were aiming at. I would like to read through what he said and consider it further. In the meantime, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 253 and 254 not moved.]

5.45 p.m.

Clause 198 agreed to.

Clauses 199 and 200 agreed to.

Lord Davies of Oldham moved Amendment No. 254A:


    After Clause 200, insert the following new clause—


"ARTICLE 95 ALERTS: TRANSITIONAL PROVISION
(1) This section applies in a case where an article 95 alert is issued before 1 January 2004 by an authority of a category 1 territory.
(2) In such a case, this Act applies as if—
(a) the alert were a Part 1 warrant issued by the authority;
(b) any information sent with the alert relating to the case were included in the warrant.

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(3) As applied by subsection (2), this Act has effect with these modifications—
(a) in sections 2(7) and (8), 28(1), 30(1) and (4)(d), 32(2)(b), 33(6)(b), 35(4)(b), 36(3)(b), 46(3)(b) and 48(3)(b), for "authority which issued the Part 1 warrant" substitute "authority at the request of which the alert was issued";
(b) omit section 5;
(c) in sections 33(4)(b), 41(2)(a), 42(2)(a) and (4) and 60(1)(d) and (e), for "authority which issued the warrant" substitute "authority at the request of which the alert was issued";
(d) in section 65(2), for the words from "believes" to the end substitute "believes is the authority at the request of which the alert was issued".
(4) An article 95 alert is an alert issued pursuant to article 95 of the Convention implementing the Schengen agreement of 14th June 1985."

The noble Lord said: The amendment gives effect to a commitment we made previously in the Bill. At our third meeting on the 18th June, the Committee agreed to remove Clause 211 from the Bill, and we were grateful for that co-operation. The reason we asked the Committee to do so was because Clause 211 was a transitional provision, relating to pre-existing alerts on the Schengen information system, or SIS. We took the view that, on reflection, it would be better to have a free-standing provision for that purpose. That is why we have tabled this amendment to replace that clause.

The reason we think we need a special provision is that while requests on the SIS require there to be a previous judicially issued domestic warrant, they may, on rare occasions, be placed on the SIS at the instigation of police officers. We therefore wanted to forestall arguments as to whether such warrants had come from a judicial source. Our view is that they do, but your Lordships can imagine all the legal fun and games that could be had on this point.

The new clause is very limited in its scope. It applies only to alerts issued under Article 95 of the Schengen Convention and only to those issued before 1st January 2004. The Committee will recognise that this is purely a short-term measure, since the problem will not arise once the EAW is in operation. On that basis I hope that, as before, the Committee will support the amendment. I beg to move.


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