A person does not qualify for the national minimum wage in respect of any work that he does in pursuance of a work order under Schedule (Discharge of fines by unpaid work) to the Courts Act 2003 (discharge of fines by unpaid work).""
29After Schedule 7, Insert the following new Schedule
"Transitional provisions and savings
1 In this Schedule "the JPA 1997" means the Justices of the Peace Act 1997 (c. 25).
Orders contracting out the provision of officers and staff
2 Any order which, immediately before section 2 comes into force, was in force under section 27(3) of the Courts Act 1971 (c. 23), including, in particular, any order made under section 27(3) by virtue of
(a) section 4(7) of the Taxes Management Act 1970 (c. 9), or
(b) section 82(3) of the Value Added Tax Act 1994 (c. 23), shall have effect as if made under section 2 for the purpose of discharging the Lord Chancellor's general duty in relation to the courts (and may be amended or revoked accordingly).
Local justice areas
3 The first order under section 8 must specify as a local justice area each area which was a petty sessions area immediately before the time when that section comes into force.
12 Nov 2003 : Column 1408
Appointment and assignment of lay justices
4 A person who, immediately before section 10 comes into force, was a justice of the peace for a commission area under section 5 of the JPA 1997 shall be treated as having been
(a) appointed under section 10(1) as a lay justice for England and Wales, and
(b) assigned under section 10(2)(a) to the local justice area which
(i) is specified as such in the first order under section 8, and
(ii) immediately before section 10 comes into force, was the petty sessions area in and for which he ordinarily acted.
The supplemental list
5 (1) The existing supplemental list shall have effect as the supplemental list required to be kept by section 12; and any name which, immediately before that section comes into force, was included in that list under a provision listed in column 1 of the table shall be treated as having been entered in the list under the provision listed in column 2
|Provision of the JPA 1997||Provision of this Act
|Section 7(2)||Section 13(1)
|Section 7(4)||Section 13(5)
|Section 7(6)||Section 13(4)
(2) "The existing supplemental list" means the supplemental list having effect under the JPA 1997 immediately before section 12 comes into force.
Keepers of the rolls
6 A person who, immediately before section 16 comes into force, was under section 25 of the JPA 1997 keeper of the rolls for a commission area shall be treated as having been appointed under section 16 as keeper of the rolls for each local justice area which
(a) is specified as such in the first order under section 8, and
(b) immediately before section 16 comes into force, formed part of, or consisted of, that commission area.
Chairman and deputy chairmen of the bench
7 A person who, immediately before section 17 comes into force, was under section 22 of the JPA 1997 the chairman (or a deputy chairman) of the justices for a petty sessions area shall be treated as having been chosen under section 17 as the chairman (or a deputy chairman) of the lay justices assigned to the corresponding local justice area specified in the first order under section 8.
Senior District Judge (Chief Magistrate)
8 (1) The person who, immediately before section 23 comes into force, was under section 10A of the JPA 1997 the Senior District Judge (Chief Magistrate) shall be treated as having been designated as such under section 23(a).
(2) A person who, immediately before section 23 comes into force, was under section 10A of the JPA 1997 the deputy of the Senior District Judge (Chief Magistrate) shall be treated as having been designated as such under section 23(b).
Justices' clerks and assistant clerks
9 A person who
(a) immediately before section 27 comes into force, was a justices' clerk for a petty sessions area (or areas), and
(b) is transferred to the Lord Chancellor's employment by virtue of paragraph 11 of Schedule 2, shall be treated as having been designated as a justices' clerk under section 27(1)(b) and assigned under section 27(3)(a) to the corresponding local justice area (or areas) specified in the first order under section 8.
10 A person who
12 Nov 2003 : Column 1409
(a) immediately before section 27 comes into force, was employed to assist a justices' clerk by acting as a clerk in court in proceedings before a justice or justices, and
(b) is transferred to the Lord Chancellor's employment by virtue of paragraph 11 of Schedule 2,shall be treated as having been designated as an assistant to a justices' clerk under section 27(5)(b).
11 (1) Any regulations made under
(a) section 42 of the Justices of the Peace Act 1949 (c. 101) (compensation in connection with Parts 2 and 3 of the 1949 Act), or
(b) paragraph 16 of Schedule 3 to the Justices of the Peace Act 1968 (c. 69) (compensation in connection with section 1 of the 1968 Act),
and in force immediately before paragraph 20 of Schedule 4 to the JPA 1997 is repealed by this Act shall continue to have effect and may be revoked or amended despite the repeal by the Justices of the Peace Act 1979 (c. 55) of the provisions under which they were made.
(2) The power to make amendments by virtue of sub-paragraph (1) of regulations falling within paragraph (a) of that sub-paragraph shall extend to making provision
(a) for compensation to or in respect of persons falling within sub-paragraph (3) to be payable if such persons suffer loss of employment, or loss or diminution of emoluments, attributable to anything done under Part 2;
(b) for the determination by persons other than magistrates' courts committees of claims for compensation to be made;
(c) for the payment by the Lord Chancellor of compensation payable under the regulations.
(3) A person falls within this sub-paragraph if
(a) on 2nd February 1995 he held the office of justices' clerk or was employed to assist a justices' clerk, and
(b) is transferred to the Lord Chancellor's employment by virtue of paragraph 11 of Schedule 2.
(4) A person who under regulations made by virtue of sub-paragraph (2)(a) is entitled to compensation in respect of anything done under Part 2 is not entitled to compensation in respect of that thing under a scheme made under section 1 of the Superannuation Act 1972 by virtue of section 2(2)(a) of that Act.
Family proceedings courts
12 Any justice of the peace who, immediately before section 49 comes into force, was qualified to sit as a member of a family proceedings court shall be treated as having been authorised to do so by the Lord Chancellor under section 67 of the 1980 Act (as substituted by section 49).
13 Any justice of the peace who, immediately before section 50 comes into force, was qualified to sit as a member of a youth court shall be treated as having been authorised to do so by the Lord Chancellor under section 45 of the 1933 Act (as substituted by section 50).
Inspectors of court administration
14 Any person who, immediately before section 58 comes into force, was an inspector of the magistrates' courts service under section 62 of the JPA 1997 shall be treated as having been appointed as an inspector of court administration under section 58(1).
Collection of fines and discharge of fines by unpaid work
15 (1) This paragraph applies if section (Collection of fines and discharge of fines by unpaid work) and Schedule (Collection of fines) are brought into force before section 8.
12 Nov 2003 : Column 1410
(2) Section (Collection of fines and discharge of fines by unpaid work) and Schedule (Collection of fines) have effect in relation to the period ending with the date on which section 8 comes into force as if any reference to a local justice area were a reference to a petty sessions area.
Register of judgments and orders
16 The register having effect under section 73 of the County Courts Act 1984 (c. 28) immediately before section 96 comes into force shall be treated as part of the register required to be kept under section 96."
30Schedule 8, page 144, line 41, at end insert
"In Schedule 2, in paragraph 19(2)(a),"or 8".
In Schedule 2A, in paragraph 14(2)(a), "or 5"."
Lord Filkin: My Lords, I beg to move that the House do agree with the Commons in their Amendments Nos. 25 to 30.
Moved, That the House do agree with the Commons in the Amendments Nos. 25 to 30.(Lord Filkin.)
On Question, Motion agreed.
Read a third time.
Clause 2 [Part 1 warrant and certificate]:
Baroness Anelay of St Johns moved Amendment No. 1:
Page 2, line 9, leave out "with a view to" and insert "for"
The noble Baroness said: My Lords, in the absence of my noble friend Lord Lamont, I beg to move Amendment No. 1 and speak to Amendments Nos. 2 and 3 in his name and also to Amendment No. 33 in my name.
The question addressed by my noble friend's amendments is whether someone can be extradited to a category 1 territory for the purposes of interrogation after merely being accused rather than for the purpose of prosecution when there is already substantive evidence to warrant a trial. The Government's position throughout our debates is that the drafting in the Bill already guarantees that a person can be extradited for the purposes of prosecution and not for evidence-gathering purposes. Despite the Minister's insistence on this point, we are not convinced.
My noble friend's Amendment No. 1 would put the matter beyond all doubt and ensure that the arrested person should be extradited only on the basis that he or she would be prosecuted. It is our intention to avoid a fishing expedition.
My noble friend has also tabled Amendments Nos. 2 and 3 which provide a stiffer test to ensure that the person faces prosecution. I note that my noble friend is in his place and I am sure that he will speak in more detail on those amendments.
My Amendment No. 33 has been tabled to ask the Government to clarify some of the remaining uncertainties about the drafting of Clause 2 of the Bill and its impact on the ability of the police properly to carry out their duties of search under Clause 157. The Government published a consultation paper on the
12 Nov 2003 : Column 1411
draft code of practice for the Bill earlier this summer. In Grand Committeethat lonely place upstairs where I was joined by a hardy band such as my noble friends Lord Carlisle of Bucklow, Lady Carnegy of Lour and Lord Lamont, and my noble and learned friend Lord Mayhew of Twysdenwe laboured long and hard on this Bill. I put to the Government some initial questions about the responses but could not pursue the questions until the responses were published. They were published on 4th November.
The consultation paper asked respondents to comment on passages that are confusing, ambiguous or lack clarity. In particular, the Government asked whether,
"the distinction between investigation of the extradition offence and obtaining evidence for the prosecution of the extradition offence needed further explanation".
The resounding answer from the respondents was "yes". Nineteen respondentstwo-thirds of the totalcommented on the question. Of those, 18 said that the distinction required further explanation, with three respondents suggesting alternative wording. One respondent felt that the formulation was unworkable.
My amendment adopts the alternative wording suggested to the Government by the law reform committee of the General Council of the Bar. I could just as easily have adopted the drafting put forward by the Magistrates' Association or the Metropolitan Police Service. They would all have served equally well.
My questions to the Government are as follows. What action will they take as a result of these responses? Will they, for example, redraft the code of practice to adopt any of the drafting solutions offered to them by the respondents? If so, which of those drafting solutions? The Government, on page 5 of the response, point out that Parliament has been anxious to preclude any activity by UK police officers that could be deemed to be a fishing trip for evidence. We are still anxious. That is particularly because of the way in which the Government's response continues. They state:
"Clause 2(3)(b) of the Bill explicitly provides that the person's extradition must be sought for the purpose of being prosecuted for the offence".
But then they go on to state:
"Any investigation of the extradition offence after a request has been made could be deemed to undermine this provision".
Why only "could"? Why not "would"? Does not that mean that the Government at heart recognise that an investigation rather than a prosecution could occur? What reassurance can the Government give today that they have so far failed to find? I beg to move.
Lord Lamont of Lerwick: My Lords, first, I apologise for being absent when my amendment was called. Either the annunciator is working with a considerable time-lag, or alternatively the last group of amendments was dispatched with extraordinary speed. I apologise for not having anticipated the latter.
We are pleased to see the return of the noble Lord, Lord Filkin, to speak on this issue. We tried very hard with the noble Baroness, Lady Scotland, and got
12 Nov 2003 : Column 1412
nowhere. I greatly hope that the noble Lord, Lord Filkin, will reply to the amendments in some detail and will listen with an open mind to the arguments for them.
My three amendments return to the question of whether it is sufficient for a person to be extradited when he is simply accused of an offence and it is not definite that he will be charged. There is a problem of terminology, or semantics, because we tend to assume that "accused" implies "charged", or is synonymous with it. But in continental Europe, that is not the case. The word "accused" may be consistent with the beginning of an investigation or an investigation continuing. I previously quoted the opinion of Mr Leolin Price QC about how arrest was the beginning of the process of investigation and that in many jurisdictions being accused was consistent with both being charged and not being charged. A person might be in custody for many months, held by an investigating magistrate under the continental system of investigating prosecutors, without there ever being a trial. The accused may not be charged until the endor he may not be charged at all.
Amendment No. 1 deletes the words "with a view to". This point was first alighted on by the noble Lord, Lord Wedderburn, who pointed out the vagueness of the phrase. I hope that by deleting those words, we are making it more definite that a person who is to be extradited is, in the mind of the extraditing authority, definitely going to be charged.
The Minister and the noble Baroness have frequently said that the Bill provides that a person cannot be extradited simply for questioning; there must be an intent to prosecute. But how can anyone know with that degree of vague wording? I agree that there is a problem; that any extraditing request could on its warrant have whatever we have written into our legislation. I agree that, as a problem, there is no way around that. Whatever was required by our legislation, however we framed it, could be written into a warrant. However, if prosecution were required after extradition and if a pattern of behaviour emerged with a particular country, no doubt the courts would take that into account in the future.
I do not want to weary the Housewe discussed the matter previouslybut I believe that this is a serious issue. The noble and learned Lord, Lord Donaldson, and the noble Viscount, Lord Bledisloe, remarked that it was common knowledge that people in certain continental countries were sometimes detained for long periods of time without being charged. This increases the pressure to strike a bargain with the prosecutor; or the prosecutor, in order to protect his own position, may give the person a sentence that is equal to the length of time the person has been investigated. I quoted what John Mortimer QC said on this point. He has written a number of articles using the arguments incorporated in my amendments.
The Government have said on several occasions that they have never known a case of extradition from the UK where the problem I have described has arisen. They will not know if they do not ask the question and
12 Nov 2003 : Column 1413
are not determined to look into the matter. There may not have been a case of extradition from the UK, but how do we know about the large number of British citizens in gaols in different countries within the EU?
I tabled a series of Written Questions which referred to the individual countries within the EU and asked how many people had been detained, had not been given bail and had not been charged. The Written Answer given by the noble Baroness, Lady Symons, detailed the number of people in prison in different EU countries on 31st March last year but stated that the Government were not aware of anyone who had been detained without being charged.
I then asked what definition was used in the response to those questions: was it simply the word "accused" as opposed to the word "charged"? I should have thought that that was a very simple question to put to the Government. The reply that I received was that the Government did not know of anyone who had been held in prison without being charged. I am not sure of the relevance of that response to the question that I put.
Subsequently, I thought of another way of putting my questions. I asked how many people had been released without being brought to court. That would have given some indication of whether people had been detained without being charged. I was told that the costs of discovering that information would be disproportionate. With all due respect to the Government, I believe that that was an inspired question; indeedif he does not mind my saying soit was inspired by a conversation that I had over dinner with the noble Lord, Lord Goodhart. I hope, therefore, that I shall have some support from the noble Lord for these amendments.
I consider this to be a serious issue, and it strikes me as a rather unworthy reply to say that the cost of finding out that information is disproportionate. I am not indulging in my own fishing expedition; I am trying to find out how systems of justice operate in other countries. It seems to me that debating the rights of someone who may be extradited or, indeed, discussing the rights of British citizens in other countries who have been put in gaol is a fairly serious matter. To put it politely, I am extremely disappointed that the Government do not feel that they can possibly answer that question.
With great respect to the Government, I have to say that for much of the time in Grand Committee the noble Baroness made the assumption that anyone who is accused is automatically guilty. Many of the remarks also implied that it was a two-way trade and that we want people to be extradited back here from other countries. I understand that that is in the public interest. However, surely the rights of the individual and of the person who may be wrongly accused or who may be unjustly imprisoned for long periods simply in the interests of investigation are matters of considerable importance and should not simply be brushed aside. It seems to me that the rights of the accused are being brushed aside. If Ministers were in opposition, I believe that they would be singing a
12 Nov 2003 : Column 1414
different song and would be far more interested in this issue than they appear to have been in previous responses to amendments of this kind.
In the other two amendmentsAmendments Nos. 2 and 3I have tried to tackle this problem by putting a time limit of six months within which a person must be charged or, alternatively, within which he must be charged and returned to this country. Of course, I see that those amendments are impractical but the Minister can no doubt understand what I am getting at. I am trying to address a problem but I certainly do not intend to press those amendments to a Division. However, what I do with regard to the first amendment will depend very much on what the Minister says in reply.