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Anelay: Civil liberties of British citizens under threat

Speech in the House of Lords on the 2nd Reading of the Extradition Bill

It is clear that we should improve our extradition procedures. We should not allow people to raise the same spurious points time and again, simply as a means of delaying the process of extradition for serious offences. So the Government are right to put reform of extradition law on the agenda, but their plan for a two-tier system is wrong.

Part 2 of the Bill is a practical and sensible way forward but Part 1 makes inroads into the civil liberties of British citizens that are both unacceptable and unnecessary. It goes too far by eroding the principle of dual criminality and removing the backstop power of the executive to make the final decision. We support measures to improve co-operation with other countries to fight crime—we always have—but we oppose the Government's proposals to harmonise our judicial processes with those of other EU states.

I was intrigued, as were other noble Lords, to receive from the noble Lord, Lord Filkin, this week a letter purporting to set out the myths and facts on the Bill. I look forward to putting to the test his assertions when we reach Committee. He states, for example, that mutual recognition of criminal justice systems within the EU is the only alternative to a harmonised criminal justice system.

The problem is that in the hands of this Government, their version of mutual recognition is not the alternative to the introduction of corpus juris. It is its friend and facilitator; that will not do. So, we shall vigorously oppose new Part 1 powers to arrest and deport British citizens for activities that are not crimes here. We shall oppose measures that compromise the presumption of innocence or undermine our right to challenge the basis on which we are arrested. The right way forward is simple—we should remove Part 1 from the Bill.

We believe that the Government should apply the Part 2 procedures to all applications for extradition. If Part 2 is applied effectively and thoroughly and is good enough for the rest of the world, including our Commonwealth colleagues, why is it so repugnant to the EU? I listened carefully to the case made—as always, persuasively and clearly by the Minister today but I am afraid that he has not persuaded me—with regard to the need for the European arrest warrant above all other procedures. Listening to his mathematics of saying three months from France and six months from other countries it appears that he was arguing—we shall have a chance to examine it later—that we are sacrificing our civil liberties for the case for three-months extradition. We believe that we simply do not need the European arrest warrant and its hidden agenda of the framework list. Even the list is hidden from the face of the Bill at present.

I note that the report of the Select Committee on the Constitution recommends that the list should be included on the face of the Bill in a schedule. What is the Government's response to that? If the Government are determined to force through the arrest warrant, we believe it should be at least confined to terrorist offences only. We shall listen to the argument that the unique threat of terrorism alone could justify the extreme measures in Part 1.

If the Government are determined, as they seem to be, to turn their face against our proposals for Part 1, they should at least accept amendments we shall table which will ensure that Part 1 does what the Government claim it should do—no more and no less. As currently drafted the Bill does not deliver the safeguards the Government claim. Myth or fact, the Government still have some myths of their own.

First, as the Minister said today, the Government claim that extradition will be permissible only for the prosecution and not for the investigation of a person. But that is not what Clause 2 achieves despite the Government's best attempts at some amendments in another place. That is simply because of the way in which the inquisitorial system works within the EU.

The noble and learned Lord, Lord Scott of Foscote, explained the problem behind all this in our debate on the European arrest warrant last April when he said, "under continental procedures, the dividing line between investigation of a crime and the point at which there is enough material for a prosecution is not always easy to draw. The investigation will be under the control of an investigating magistrate—a judicial figure. It is presumably he who authorised the . . . warrant. That seems to me a risk that the extradition of a suspected offender will be sought in order that the investigating magistrate may complete his investigation by interrogating, or authorising the interrogation of, the suspect, rather than for the purpose of a prosecution in respect of which he already has sufficient material to start".—[Official Report, 23/4/02; col. 210.]

Secondly, the Home Office website says that a person who has been convicted in his absence is guaranteed a full retrial. At present he is not. There is no guarantee that, once returned, the person will have a full retrial, not just a review, with all that we would expect that to entail—the full rights of defence and legal representation.

Thirdly, as the Minister stated, there should be safeguards against our being prosecuted as a result of our race, religion or political views. It is a case of do we or do we not have that safeguard. We are left in limbo. What does a judge do when faced with the need to decide whether a person who is accused of a xenophobic offence should or should not be extradited when the very nature of that xenophobic offence is rooted in that person's political opinions? How does the judge decide whether a person can have the protection of Clause 13(a) or should be exposed to extradition under Clause 63(2)? Which part of the Bill is paramount?

To make matters even worse, the Bill gives the Government the power to extend Part 1 procedures by "mission creep" to other countries that are currently in the Part 2 category. Part 1 could become the norm. How? Part 1 and the European arrest warrant apply initially to requests from other EU member states and Gibraltar but that could be extended to other countries by Order in Council subject only to negative procedure. That is not, we believe, sufficient parliamentary accountability.

Indeed, to make matters worse, countries can slither from one part of the Bill to another at the requirement of the Government by the same inadequate procedure. And there are no criteria on the face of the Bill stating how a country should be allocated to either Part 1 or Part 2.

The list of offences for which dual criminality has been surrendered can be extended later by agreements within the EU governments. Can the Minister confirm that no parliamentary approval at all would need to be sought for that? To cap it all, there are provisions that would permit the Government to remove from certain countries in Part 2 the prima facie requirement that does survive there at the moment.

Effectively, we could end up with Part 1 being extended little by little to other countries. I would hope and expect that the Minister will say that that is not at all their intention. If so, I welcome it and say let him prove that by supporting our amendments when we table them in Committee and beyond. We intend to ensure that there is effective and strong parliamentary scrutiny of any future extension of Part 1 procedures.

Overall, in the past the Government have said in another place and elsewhere, "Don't worry about all this because really there are no major changes of principle at all". Yes, we know that under existing extradition conventions in Europe the prima facie rule has already been surrendered for EU countries' applications. We know that an extradition offence is generally one where the minimum sentence is 12 months rather than the three years stipulated in the framework document. We have seen all that.

So why do we complain now about these safeguards and limitations being surrendered under Part 1? It is because this is a whole new ball game. The extent and effect of the European arrest warrant combined with the loss of dual criminality for a list that includes vague and ill-defined offences such as xenophobia and computer-related crime, combined with the loss of executive authority and unprecedented trust being placed in jurisdictions across Europe and possibly beyond make this a new procedure requiring at the very least very strong safeguards.

The crux of the matter is indeed how far we have confidence in the judicial process and police systems of other countries which will be party to the reciprocal agreements enshrined in Part 1. Liberty pointed out in their helpful briefing to this House that, "the Eurowarrant is based on the presumption that EU countries all have fair and equal systems of justice which should remove the need for any other country to scrutinise the fairness of extradition to such a country. This presumption is seriously open to question".

I agree with them. Are we so confident of the systems of all countries that we can jettison so comprehensively the traditional safeguards? I think not.

As the Bill progresses, we shall take a constructive and determined approach in our amendments. We shall need to hear from the Government what is in the new UK/US and EU/US treaties on extradition and how they will impact on the provisions of this Bill. At present, those provisions are hidden from this House. We hope that the Government make sure that they are revealed.

For a variety of reasons another place scrutinised only 25 per cent of the Bill. Scotland received spectacularly short shrift. With the assistance of my noble friend Lady Carnegy I am sure that we shall do better here. My noble friend regrets that she is unable to participate today but, as one would anticipate, she is in Scotland engaging in the Scottish parliamentary elections. I thank the Minister for setting up a meeting with both my noble friend and myself to discuss the operation of this Bill in Scotland. That is very helpful and I welcome it.

We believe that it is in the interests of the public here and across the EU that we co-operate effectively in judicial and police matters in the fight against crime and terrorism. Criminals do not care about what is right. We do, and so we fight them with the restrictions imposed upon ourselves by our commitment to democracy, freedom and human rights—everything that underpins our civil liberties. We abandon those at our peril. Of course extradition procedures must ensure that criminals are prosecuted but, just as important, is that justice should actually be done.

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