Extradition Bill

Public Bill Committee, 14 January 2003.

Standing Committee D

Clause 17 - Speciality

Nick Hawkins (Conservative, Surrey Heath)

I beg to move amendment No. 95, in

clause 17, page 7, line 36, leave out paragraph (c).

Edward O'Hara (Labour, Knowsley South)

With this it will be convenient to discuss the following:

Amendment No. 94, in

clause 17, page 7, line 41, leave out paragraphs (e) and (f).

Nick Hawkins (Conservative, Surrey Heath)

Good morning Mr. O'Hara. Welcome back. We now turn to the rather arcane subject of speciality. As the Government's explanatory notes make clear:

''The speciality rule is a long-standing protection in extradition. It prohibits a person from being prosecuted after his extradition for an offence committed beforehand, unless the offence is the one in respect of which he was extradited, the consent of the requested state is obtained or the person has had an opportunity to leave the country to which he was extradited.''

The clause bars extradition if there are no speciality arrangements with the category 1 territory where the part 1 warrant was issued.

Our amendments are based on advice from the extradition specialists at the Law Society of England and Wales. The fact that extradition can be ordered with no clear obligation on the state to inform the person or no positive obligation to give the person who is the subject of extradition an opportunity to make representations suggests that representations from one set of proceedings can be imported wholesale into new proceedings. An English or Scottish judge could safely make an order as if there could be nothing further to add. The Law Society makes the point, with which we strongly agree, that anyone who may be subject to extradition must be informed of every set of separate proceedings and be given an opportunity to address or instruct a representative to address the court on the matter before that court.

The problems that this subject throws up is once again highlighted by the specialist extradition solicitor Robert Roscoe, to whom I referred last week. He has given me some examples of cases that he and his firm have taken up with the Home Office and about which they have never received proper answers. I should stress at the outset that the cases to which I shall refer briefly do not directly involve speciality, but they highlight the problems that can be encountered with requesting states and show why someone who may be facing extradition needs to be told about every separate set of proceedings.

I start off with a case of the Government of Belgium against a man called Cornelius Mahu. Mr. Mahu, who is a Dutch citizen, was visiting his child in England. He

was arrested in connection with allegations of drug trafficking offences. He had formerly been a public house landlord in this country and as such had been checked by the Kent police. He held a justices on-licence to be a landlord. A lorry driver who was arrested in Belgium had alleged to the Belgian authorities that the recipient of earlier deliveries of drugs was this man, Mr. Mahu.

Mr. Mahu was confident that there would be no evidence to support those allegations. He went through the extradition proceedings in this country as quickly as he could, but there were protracted delays before he could ultimately be returned to Belgium. The UK had the burden of having to maintain him in custody for some 18 weeks. Mr. Mahu finally went to Belgium, but within a few weeks of his arrival the Belgian court directed that charges be dropped against him and seven of the other nine people who were the subject of the original allegations. That appeared to be fine, at least as far as Mr. Mahu was concerned. However, when Mr. Roscoe and his firm of solicitors took the case up with the Home Office as an example of what can go wrong, the delays and the cost to the United Kingdom taxpayer, the Home Office responded:

''We similarly approached the Belgian authorities and they informed us on 8 May last year that preliminary investigations regarding Cornelius Mahu and another case Mr. Roscoe raised are still ongoing. The case will shortly be submitted to the office of the public prosecutor in Belgium.''

Mr. Roscoe and his firm replied back to the Home Office:

''As we indicated in our letter of 13 February, both Mr. Mahu''

and the other person whom they were writing about

''were released within days of their return to Belgium. Mr. Mahu returned to Holland. If the letter of 8 May 2002 from the Belgian embassy is correct, then in both cases the Belgian investigations are incomplete and extradition proceedings will have to be started afresh in the event that the examining magistrate's report is considered by the public prosecutor to justify the institution of charges against Mr. Mahu''

The significance of speciality arises at this point, because the requesting state—a fellow European Union member—is apparently saying that it may well start proceedings again, even though the charges have been dropped and the person has been released. Surely it is a matter of concern if the Government allow the legislation to stay in its current form, suggesting that fresh proceedings can be, as the Law Society puts it, imported wholesale into the existing proceedings without the defendant having a full opportunity to have the whole matter made known to him.

The Opposition strongly support what the Law Society has suggested to us, and I hope that the example that I have given is helpful. I stress to the Minister and his advisers that we were serious in tabling the amendments.

John Burnett (Liberal Democrat, Torridge and West Devon)

I join the hon. Member for Surrey Heath (Mr. Hawkins) in supporting amendments Nos. 95 and 94. I shall not dwell further on the Mahu case, or give another definition of what speciality involves, but that case

concerned an extremely important principle and an extremely important protection for individuals.

The provision proposes that extradition can be ordered with no obligation to inform the person or no positive obligation to give a person the opportunity to make representations. The procedure suggests an assumption that representations from one set of proceedings can be imported wholesale into new proceedings, and that a judge can safely make an order as if there were nothing further to add. The Liberal Democrats believe that the suspect must be informed, as the hon. Gentleman said, at every set of proceedings and be given an opportunity to address, or instruct a representative to address, the court on the matter before it.

On amendment No. 94, we have concerns, which the Law Society shares, that there can be charges in respect of offences that fall into this category without the protections contained in the extradition procedures. The community or financial penalty may be extremely burdensome.

I also wish to comment on taxation. The Inland Revenue does not have an enviable record of successful prosecutions, as the leading case of Inland Revenue Commissioners v. Dodd illustrates, but although it is always quite difficult to secure a successful prosecution for the Revenue, that does happen. One of the more nebulous of the 32 offences is swindling. Some countries, including, I believe, Spain, are not minded to extradite on the grounds of tax fraud. What discussions on tax fraud have taken place and with which countries, and what agreements or understandings are there?

Imposition may be a primary objective of the requesting state, so the procedure is open to abuse in the freezing of assets and the imposition of financial penalties. There is no mechanism or protection to guard against extradition only for proceedings in relation to extraneous considerations in clause 13. Unassociated proceedings may therefore last a considerable time and cause prolonged disruption to the suspect's life and career.

I look forward to the Minister's response.

Nick Hawkins (Conservative, Surrey Heath)

I should have said that we recognise that the Liberal Democrats added their names to both amendments. As the hon. Member for Torridge and West Devon (Mr. Burnett) said, the Law Society has equally strong views about amendment No. 94.

Bob Ainsworth (Labour, Coventry North East)

The clause relates to the rule of speciality, under which a person cannot be prosecuted for an offence other than the one for which he was extradited once he has been extradited to another country.

We had some doubt about whether amendment No. 95 was the right amendment. It would remove the possibility of another state being able to prosecute a person for an additional offence, even with the consent of the district judge after a hearing. There is no reason to do that. Speciality waivers, although rare, are a

long-standing feature of our extradition arrangements, and we should not create a situation in which we cannot agree to a request to put on trial someone who has been extradited from the United Kingdom if evidence comes to light that they are guilty of a different serious crime. I listened carefully to the example given by the hon. Member for Surrey Heath. He admitted that it was not about speciality, but said that it highlighted a problem that may occur.

Speciality would not give other countries the ability that the hon. Gentleman alleges in the circumstances that he described to the Committee. All the evidence that he cited suggested that, in the case of a close European partner, justice would be served by making our lines of communication as short as possible and returning the person to that country as quickly as possible, where the case against him could be quickly dismissed. Under the existing arrangements, if the Belgian authorities wanted to make a fresh application in that case, they would have to make it to the country to which the person had returned, so they would have to reapply to the Dutch. I do not accept the lesson that the hon. Gentleman is giving.

I do not know the details of individual cases that are raised in Committee, but it is as likely that the problem was caused by long lines of communication as by our long-winded extradition arrangements before the introduction of the Bill. It is not likely that any problem would occur because of the current speciality agreement or the speciality agreement that will exist once the Bill has been enacted.

The framework decision allows countries to declare that other countries that make a similar declaration can, after extradition, presume our consent to a person being prosecuted for offences committed before the extradition took place but that were not part of the original request. It was, and is, our intention to make such a declaration. Requests for waiver of speciality and re-extradition are not common. However, if such requests are received, our response should be guided by the principles of mutual recognition. I believe that we can trust our EU partners not to abuse the trust that we place in them. They are all signatories to the European convention on human rights, which guarantees a fair trial.

Amendment No. 94 would remove the ability of the requesting state to prosecute for offences not punishable by imprisonment without the UK's consent. Let us suppose that we returned a person to stand trial for a very serious offence, and that, once the person had returned, the requesting state discovered that he had committed a string of minor offences. The amendment proposes that those offences should be subject to an entirely separate extradition request, and that they cannot be dealt with as part of the case being heard against the returned offender.

John Burnett (Liberal Democrat, Torridge and West Devon)

Would the Minister speak up, because I am missing some of what he says? It is probably my fault because I am slightly deaf.

Bob Ainsworth (Labour, Coventry North East)

I shall try. I am not usually accused of being quiet.

We are not discussing the most serious crimes, but we would all accept that the interests of justice require

that those minor offences should be dealt with, and the person prosecuted. Is the amendment really proposing that before any effort can be made to enforce a minor offence—a parking ticket, to take a ridiculous example—the other state should seek our permission, and that we should hold a special hearing in order to consider the offence?

We are not frightened of the principles of mutual recognition. We believe that there are huge benefits to be gained from applying those principles to the victims of crime and to the interests of justice. However, amendment No. 95 completely rows back from what has long been accepted as standard. Amendment No. 94 would introduce a level of scrutiny by the UK authorities that, in the circumstances described, is not justified. I therefore ask the Committee not to support the amendments.

Nick Hawkins (Conservative, Surrey Heath)

I can be brief in response. I accept the Minister's point that the wording suggested to us and to the Liberal Democrats by the Law Society of England and Wales does not achieve exactly what they and we intended.

The Minister said that he could not understand the nature of the difficulties. I tried to give an example which, as I said, was not about speciality but which involved the problems that can occur when a requesting country originally drops proceedings and then starts again. The heart of what we and the Law Society are saying is that, given the problems that specialist solicitors experience with requesting states, if fresh proceedings are started, there should be an opportunity for the person who may be extradited to be made fully aware of those proceedings.

There is another case that Robert Roscoe has drawn to our attention, that of Charles Edward Johnstone. I will not bore the Committee with the details, but I ask the Minister and those who advise him to consider whether, given the difficulties that arose in that case and in the Mahu case, the Government might find some wording to amend the Bill. The amended wording might be different from that which we have proposed, but it should take account of the need for someone who may be extradited to be kept properly informed, so that those who represent him and advise him can also be properly informed of the nature of any fresh proceedings. That is all that we seek to achieve.

I do not believe that that undermines the whole concept of extradition. We do not want to drive a coach and horses through the existing arrangements for speciality. I hope that the Minister will at least consider amending the Bill but, having probed the matter, I shall not pursue the amendments.

John Burnett (Liberal Democrat, Torridge and West Devon)

I take the point made by the hon. Member for Surrey Heath. The Minister gave an example of a trivial offence: I suppose that the non-payment of a parking ticket is a criminal offence. We understand the need for a de minimus provision, but the thrust of the amendment is that, if fresh proceedings are brought, the person who may be extradited must be aware of them and of the facts and the allegations behind them. I hope that the Minister will take that point in the same good faith in which it is

made by my hon. Friend and me, that he will consider it further and introduce some suitable safeguards.

Nick Hawkins (Conservative, Surrey Heath)

I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 17 ordered to stand part of the Bill.

Clauses 18 and 19 ordered to stand part of the Bill.

Clause 20 - Case where person has been convicted

Nick Hawkins (Conservative, Surrey Heath)

I beg to move amendment No. 96, in

clause 20, page 9, line 3, leave out paragraph (c).

Edward O'Hara (Labour, Knowsley South)

With this it will be convenient to discuss the following:

Amendment No. 123, in

clause 20, page 9, line 4, leave out from 'retrial' to end of line.

Amendment No. 139, in

clause 20, page 9, line 5, at end insert—

'(1A) A person shall be deemed to have deliberately absented himself only if evidence has been provided that notice of the proceedings was personally served on that person.'.

Amendment No. 97, in

clause 20, page 9, line 9, leave out paragraph (c).

Amendment No. 124, in

clause 20, page 9, line 9, leave out from 'retrial' to end of line 10.

Amendment No. 165, in

clause 20, page 9, line 17, at end insert—

'(3A) For the purposes of this section, the judge should not regard as a retrial any retrial not including provision for—

(a) the suspect to recall prosecution witnesses where the prosecution are not obliged to call them again to give evidence;

(b) the suspect to call defence witnesses; and

(c) the same right to publicly funded legal services as any suspect or defendant.'.

Nick Hawkins (Conservative, Surrey Heath)

Once again, our amendments were suggested by the Law Society of England and Wales. Amendments Nos. 123, 139 and 124 tabled by the Liberal Democrats would have a similar effect. They also added their names to our amendments, which refer to retrials. The purpose of the amendment is to include provisions for the suspect to recall prosecution witnesses in a retrial even when the prosecution are not obliged to call them again, for the suspect to call defence witnesses and to have the same right to publicly funded legal services as any other defendant in criminal proceedings. There must be basic safeguards during a retrial.

The Government say that a review amounts to a retrial, but the Law Society believes that it should be defined in order to include the right to recall prosecution witnesses. On Second Reading, the Minister said:

''A retrial is differentiated from a simple appeal by the fact that the process starts again from scratch with a presumption of innocence.''—[Official Report, 9 December 2002; Vol. 396, c. 44.]

However, that is not what the Bill as drafted states. I entirely accept the Minister's good faith on Second Reading, and I am sure that he intended that the Bill

should reflect what he said, but as drafted it does not. It would do so if wording similar to that in the amendments were included; I am not wedded to any particular drafting. There is no reference in the Bill to the funding of defence costs, adequate legal representation, interpretation and translation. The Law Society makes the significant point that, unless such a provision were in the Bill, it would be questionable whether a review amounting to a retrial would satisfy the requirement to the right to a fair trial as set out in article 6 of the European convention on human rights. I am sure that the Government, having incorporated the ECHR into UK law under the Human Rights Act 1998, would not want the Bill to be in breach of that convention. I anticipate that the Liberal Democrats will take a similar line, and I hope that the Minister will take the matter seriously.

John Burnett (Liberal Democrat, Torridge and West Devon)

Yes, we take a similar line. With regard to amendment No. 123, the text of the European arrest warrant framework decision allows member states to guarantee that the subject of the warrant in such circumstances will have an opportunity to apply for a retrial.

Amendment No. 139 deals with trials in absentia. It would deem a person

''to have deliberately absented himself only if evidence has been provided that notice of the proceedings was personally served on that person.''

We—and Justice—believe it important to include a mechanism by which the judge can determine whether the person deliberately absented himself. In some European jurisdictions, residence can be deemed as that of a court-appointed lawyer, though the person may not even be aware of his existence. For a person to be deemed to have deliberately absented himself, evidence should be provided that notice was personally served on that person. In extra-territorial cases, the person should be subject to the process of ''obliging appearance''; and deliberate absence should not be established purely on the basis of a summons emanating from a foreign jurisdiction.

Bob Ainsworth (Labour, Coventry North East)

During the scrutiny process, I made it clear on behalf of the Government that nobody convicted in absentia would be extradited without the guarantee of a retrial. The hon. Member for Torridge and West Devon has read the part of the framework decision that provides that guarantee. The guarantee exists, at least in part, because we—this dreadful Government who draft such draconian legislation—insisted on it. We played a leading role at the heart of Europe in drafting this framework document. We were successful in achieving precisely the guarantees that the hon. Gentleman holds up as crucial. They are already present in the framework document and have been translated into the Bill, although it does not cover any semantic arguments that we might have with another jurisdiction that frames its laws in different language. Nothing of substance detracts from the commitment that I gave to the Scrutiny Committee on what the British Government succeeded in having included in the framework decision. We should stay at the forefront of such arguments to ensure that we

continue to frame future legislation on justice and home affairs as we have over the past few years.

The Bill unambiguously secures the commitment that we gave: unless a fugitive has the right to a retrial, or a review amounting to a retrial, extradition cannot take place. Responding to parliamentary concerns, we secured an amendment to the framework decision whereby a district judge must be satisfied that the person deliberately absented himself and that he has the right to a proper retrial—on both assertions, the fugitive can advance legal arguments in his defence—before extradition can take place.

Unlike an appeal, with a retrial the slate is wiped clean and the fugitive is presumed innocent unless and until the prosecution can prove the contrary. All the evidence is tested afresh and witnesses are cross-examined. The same arrangements for legal assistance and the payment of defence counsel apply. Amendments Nos. 96 and 97 would prevent extradition cases of convictions in absentia even if the person would be entitled to a full retrial. That is a strange position that cannot logically be supported, and I fail to understand the objection to extradition when a retrial or review amounting to a retrial is guaranteed.

It is surprising that the Liberal Democrats added their names to the amendment. Although as I noted before we seem to have the Eurosceptic wing of the party in Committee, it is surprising that members of a supposedly pro-European party would force every other country to adopt a legal justice system exactly like ours. That is a long way from the notion of mutual recognition. The important point should not be whether another country chooses to call its proceedings a retrial or uses other terminology, but that a British district judge has to satisfy himself that what is offered amounts to a retrial. If he is not satisfied, extradition will be denied. The amendments are not justified or necessary, and I ask the hon. Member for Surrey Heath to withdraw amendment No. 96 and not move the others.

Nick Hawkins (Conservative, Surrey Heath)

I understand the Minister saying that some of the wording in the amendments is not absolutely accurate and may go too far, and in moving the amendment, I said that I was not wedded to any particular form of wording. However, our job in Parliament is to protect our citizens, and we do not share the Minister's faith that our citizens are always protected in foreign courts. As my hon. Friends the Members for Stratford-on-Avon (Mr. Maples) and for Henley (Mr. Johnson) have made clear in this Committee and in European Scrutiny Committee debates on the European arrest warrant, we have seen our citizens treated improperly in courts in existing EU partner countries such as Greece, Spain and Italy.

When we are writing UK legislation that affects our citizens, we should include what we think that a retrial should involve. That would not be to rewrite other countries' legal systems for them, as the Minister put it in an overblown way; it would be to ensure safeguards so that British subjects who come before a foreign court have minimum guarantees of their civil liberties. It is not simply a case of saying that if the district judge

is not satisfied, he will not grant extradition. We want to see guarantees included in the Bill, because that is our job in Parliament.

I will not press the amendments to a vote because, as the Minister said, their wording, which was suggested by the Law Society of England and Wales, may not be on point. However, the Minister should be in no doubt but that we will continually return to the issue, because of our experience of what happens under the current system to our citizens in foreign courts. It is not enough for the Minister to say that it is all right because we are dealing with mutual recognition and the UK Government have introduced some safeguards. We will return to the issue on Report and in another place, unless the Government take the matters more seriously and introduce their own amendments to include protections in the Bill.

John Burnett (Liberal Democrat, Torridge and West Devon)

The Minister said that the differences on amendment No. 139 are largely semantic. He then noted that the framework document provides protections before saying that it is open for other countries to draw their laws in a different way. However, we need protection, and the matter is unlikely to be forgotten in future proceedings on the Bill.

Nick Hawkins (Conservative, Surrey Heath)

I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 20 ordered to stand part of the Bill.

Clause 21 - Human rights

Nick Hawkins (Conservative, Surrey Heath)

I beg to move amendment No. 99, in

clause 21, page 9, line 20, after 'decide', insert

', on the evidence before him and on the evidence of his own personal knowledge or based on his own enquiries,'.

Once again, I can be brief with another amendment suggested by the Law Society of England and Wales, which the Liberal Democrats also support.

The amendment is designed to ensure that the judiciary, or any judge hearing the proceedings, is fully satisfied about the operation and application of the Human Rights Act. The Law Society believes in placing a positive obligation on the judiciary to make inquiries into any breach of a suspect's rights if extradition takes place. Will the Minister confirm that the clause will allow a court to take into account various proportionality arguments, such as extreme compassionate circumstances, triviality or unreasonable delays—for example, the de minimis provisions mentioned by the Minister and the hon. Member for Torridge and West Devon a short while ago? I am not suggesting that the wording is perfect, but I hope that the Minister will take the amendment seriously in the spirit with which it was introduced.

John Burnett (Liberal Democrat, Torridge and West Devon)

I have little to add to the comments of the hon. Member for Surrey Heath. Liberal Democrat names were added to the amendment because it is only fair to oblige a judge to make inquiries into a possible

breach of a suspect's rights, which should be an integral part of the process. Compliance with human rights legislation should be built into the Bill. We hope that the Minister will view the amendment favourably.

John Maples (Conservative, Stratford-on-Avon)

On the assumption that we shall not have a clause stand part debate, I shall put some wider issues to the Minister. First, if the clause were not in the Bill, would the individual whose extradition is being sought have these rights in any event? In other words, do these rights apply regardless of the Bill?

Secondly, when we debated clause 13 on extraneous considerations, I suggested that it cast some doubt about whether we could rely on the competence of other judicial systems. Presumably, the extraneous considerations in that clause would be protected by human rights. I therefore wonder why both clause 13 and clause 21 are judged necessary. Indeed, if the rights already exist under the Human Rights Act, which I understand overrides all other legislation, why is either clause necessary?

Thirdly, clause 21 refers to the European convention on human rights. The preamble in paragraph 12 of the framework document deals with the charter of fundamental rights and article 6 of the treaty of European Union. Why are we using one definition in the framework document and another in the Bill? In our debate on clause 13, the Minister referred me to the preamble, which sets out the exact wording. However, the charter of fundamental rights is not the same as the European convention on human rights. Will the Minister help me to understand why some provisions are based on the one, and others on the other?

Finally, as I said when we debated clause 13, if a person already possesses rights under the Human Rights Act, the point falls, but if not, the provision opens a Pandora's box of extraneous defences. I refer once again to the case of Rachid Ramda who has been in jail in the UK fighting extradition to France for serious terrorist allegations, including blowing people up on the Paris metro. The main basis of his defence is that a Muslim cannot secure a fair trial in France. French law allows the evidence of a co-conspirator—or co-defendant who has already been convicted—to be used against another defendant. These arguments have run in the House of Lords and Rachid Ramda has succeeded in maintaining his case for seven years. The House of Lords threw out the Home Secretary's decision on the basis of this reasoning. The Home Secretary now has the matter back on his desk for reconsideration.

I support the Government in wanting to tighten and shorten extradition procedures, particularly for terrorist suspects. Another group of three have been fighting extradition proceedings for years for the 1998 bombings in east Africa. Had they been extradited, it is at least possible that their questioning by American authorities would have prevented further terrorist acts, including, perhaps, the recent one in Mombassa. Such cases—and, worst of all, that of Rachid Ramda—are fought on the grounds that Muslims cannot secure a fair trial in France. If that is true of France, in what European country can they secure a fair trial? If we all

had to take our chances with another country's judicial procedures, I would have thought France, Germany and Sweden would rank fairly high on the list. Some of us have expressed doubts about Greece, Spain and Italy, but surely not France. If the House of Lords seriously believes that a Muslim cannot get a fair trial in Paris, one wonders what this legislation is about.

As I said, my point falls if rights exist under the Human Rights Act, but I am worried about reintroducing into the procedure a series of defences that I understood that the Government wanted to exclude.

Edward O'Hara (Labour, Knowsley South)

Before we proceed, I want to make it clear that I allowed that contribution to run on the assumption that it counts as a clause stand part debate. If anyone wishes to make a point about the clause, they should speak now in our debate on amendment No. 99.

Bob Ainsworth (Labour, Coventry North East)

The clause is unambiguous that extradition cannot take place if it is incompatible with a fugitive's rights under the Human Rights Act. As the hon. Member for Stratford-on-Avon rightly said, we debated the issue on clause 13. Surely neither he nor I would want someone, whatever they are accused of, to be prevented from arguing that their extradition to a particular country would breach their human rights. Does the hon. Gentleman really want that? Surely what we both want to prevent is the possibility of doing so repeatedly for months, or sometimes years. The hon. Gentleman has referred to the relevant cases.

The Joint Committee on Human Rights believed that it was right to have clause 20 in the Bill. I have sometimes heard Opposition Members put the reverse argument to their current one in other Committees—I recall the Liberal Democrats in the Proceeds of Crime Bill—that specific reference to the Human Rights Act should appear in every piece of legislation before Parliament. We are burnt or scalded. If we build the provision into the Bill, we are asked why it is necessary, and if we do not, we are asked why not. It is unambiguously set out in the Bill that people should not be prevented from alleging that their human rights would be breached and that they could not secure a fair trial in another jurisdiction. That is fine by me. Extradition will be barred if they can convince the district judge that that will be the outcome. We are trying to prevent exactly the sort of situation about which the hon. Gentleman complains: that is, people being able judicially to review many of the stages of the extradition procedure and spin the proceedings out, in some cases for many a long year. That is one of the main things that we are trying to do.

The amendment has tickled several people with whom I have had dealings. On Second Reading on 9 December, the right hon. Member for West Dorset (Mr. Letwin) said that he believed that the adversarial system employed by the United Kingdom is far superior to the continental system of investigating magistrates. However, he tabled an amendment that states that the judge must decide

''on the evidence before him and on the evidence of his own personal knowledge or based on his own enquiries''.

Here we have a Conservative party, supported, less surprisingly, by the Liberal Democrats, trying to introduce the European investigative system of magistrates into British law.

Nick Hawkins (Conservative, Surrey Heath)

That is silly.

Bob Ainsworth (Labour, Coventry North East)

What else are they trying to do? At present, the judge hears arguments for and against in the time-honoured way that the right hon. Member for West Dorset says is far superior to any other country's judicial system.

However, we have a request from the Opposition—the hon. Gentleman cannot push everything on to the Law Society, for whom he tabled the amendment—that the judge not only listens to the arguments for and against, but gets out of his chair and conducts his own investigations. That is not necessary. It is for the judge to draw his conclusions after having heard the arguments for and against in the good old, time-honoured way of the English and Welsh judicial system. I am sure that something very similar applies north of the border. I am extremely surprised, as are several other people who advise me, that the hon. Gentleman should suggest that the practice should be different.

Nick Hawkins (Conservative, Surrey Heath)

I am sure that the Minister enjoyed that little flight of fancy. He knows perfectly well that our amendment begins

''on the evidence before him''.

We do not seek to replace the adversarial system. The words:

''on the evidence before him''

do not mean that we are turning the judge into an investigative magistrate. We are simply saying that the adversarial system should have another protection that in no way replaces it. The Minister can have his moment of fun. We do not seek to press the amendment to a vote, but there is a serious point to make, which my hon. Friend the Member for Stratford-on-Avon and the hon. Member for Torridge and West Devon reinforced, and we hope that the Minister will consider the matter more seriously than he has just done. I have no doubt that the matter will be considered again in another place and on Report. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 21 ordered to stand part of the Bill.

Clauses 22 to 24 ordered to stand part of the Bill.

Clause 25 - Physical or mental condition

Nick Hawkins (Conservative, Surrey Heath)

I beg to move amendment No. 35, in

clause 25, page 10, line 34, at end insert

', or

(c) order the person's detention for treatment if the person would pose a risk to the public if not detained'.

I want to make it clear that this is a probing amendment. Did the Minister and his advisers at least consider whether protection for the public needed to be introduced into the Bill when considering what the judge's power should be in the case of someone with a physical or mental condition? Let us say that someone appears before a judge, and the decision is taken that, because of their mental condition in particular, they are not fit enough to be extradited. Clearly, someone in that mental state might pose a risk to the public.

The Government have sought to encourage an expansion of the law in relation to mentally disordered people who may pose a risk to the public, and they have received strong support from the Opposition Members. There has been strong support from me, from my right hon. Friend the Member for West Dorset and from the shadow Health Secretary, my hon. Friend the Member for Woodspring (Dr. Fox), about the need for more secure accommodation for mentally disordered offenders. The Government, including the Minister, know that they will always receive great support from us on tougher powers for the courts in respect of those who may be mentally disordered and may pose a risk to the law-abiding public.

I wondered whether there was an opportunity to put in the Bill something along the lines that I suggested. I do not claim that my wording is perfect, but I am interested to hear whether, even if the Minister cannot accept this wording, the hon. Gentleman might be prepared to reconsider the matter and table a Government amendment.

Bob Ainsworth (Labour, Coventry North East)

The hon. Gentleman said that this was a probing amendment. I do not think that there is any disagreement between us, so I shall do what he asked and place something on the record, so that hon. Members and anyone else following our proceedings can examine whether anything needs to be added to the Bill.

I think that the hon. Gentleman and I agree that there needs to be some way of detaining those who pose a risk to the public because of their mental condition. However, no amendment to the Bill is necessary. A person can be detained for assessment under section 2 of the Mental Health Act 1983 if he meets the conditions in subsection (2): he is suffering from mental disorder of a nature or degree that warrants the detention of the patient in a hospital for assessment, or for assessment followed by medical treatment, for at least a limited period; and he ought to be so detained in the interests of his own health or safety, or with a view to protecting other persons. He cannot be detained for more than 28 days under that provision, but he can be detained indefinitely for treatment under section 3 of the 1983 Act.

I believe that those provisions would be available to the judge at the relevant time, so that he had the power to do what the hon. Gentleman asks.

Nick Hawkins (Conservative, Surrey Heath)

I am grateful to the Minister for saying that, but will he consider whether, in normal circumstances, those Mental Health Act powers will be drawn to the judge's attention when he examines an extradition case? Might not it be helpful to say,

perhaps in a different paragraph (c) from the one in my probing amendment, that the judge must consider his powers under section 2 of the Mental Health Act 1983, so that the court is alerted? When judges consider an extradition case, they inevitably consider legislation that affects extradition. Will the Minister consider referring in the Bill to those powers, which I accept exist? That might be helpful.

Bob Ainsworth (Labour, Coventry North East)

It is impossible to refuse to consider a request that is couched in such reasonable terms. However, in agreeing to consider the hon. Gentleman's suggestion, I should point out that we cannot, in each piece of legislation, call to every judge's attention all the issues that they should consider. That is why the judiciary is obliged to make such judgments. I shall consider whether there is something particular or peculiar about extradition arrangements that warrants the powers being brought to the attention of a judge, although that would not be the normal procedure in dealing with other accused persons.

Nick Hawkins (Conservative, Surrey Heath)

I am grateful to the Minister. In his usual reasonable fashion he has said that he will reconsider the matter. Although it would sometimes be entirely inappropriate to refer to another Act, that seems appropriate when there are cross-references to other legislation. The clause is entitled ''Physical or mental condition'', and it refers to the judge's powers. There should be a provision in the Bill to remind the judge when he is considering extradition that he has that power and that it is not simply a question of extradite or discharge if there may be a risk to the public. Our concern is to protect the public. However, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 25 ordered to stand part of the Bill.

Clause 26 ordered to stand part of the Bill.

Clause 27 - Court's powers on appeal under section 26

Nick Hawkins (Conservative, Surrey Heath)

I beg to move amendment No. 166, in

clause 27, page 11, line 10, after '(4)', insert

'or the condition in subsection (4A)'.

Edward O'Hara (Labour, Knowsley South)

With this it will be convenient to discuss the following:

Amendment No. 167, in

clause 27, page 11, line 22, at end insert—

'(4A) The condition is that the Court is satisfied that the principle of habeas corpus has not been applied properly at first instance.'.

Nick Hawkins (Conservative, Surrey Heath)

The amendments would insert a specific reference to habeas corpus. There are many important issues in the Bill, and some of them will come up towards the end of part 1. I therefore do not want to detain the Committee too long in making the case for these amendments today. However, I would not want my brevity to imply that we do not take the matter seriously. We feel strongly, as do many other organisations from Liberty and Justice to the Freedom Association, that there should be some reference in the Bill to the historic right of habeas corpus, which

British citizens have had for hundreds of years. That is vital. We do not argue that our wording is absolutely perfect. I should pay tribute to the Clerk of the Committee who has helped me considerably with the drafting. As always, the Clerks of the House are helpful to all of us, particularly Opposition spokesmen.

I wanted to alert the Committee to the crucial significance of habeas corpus. We think that this is one of the most appropriate places to put a reference to it in the Bill. We will listen to the Minister with interest. I hope that even if he cannot accept the amendment today, he will recognise that a great deal of time in the other place or perhaps on Report may be taken up with much longer debates on habeas corpus. We feel absolutely passionately about not losing the historic freedoms and rights of British citizens to civil liberty. There is none more important than habeas corpus.

Bob Ainsworth (Labour, Coventry North East)

The hon. Gentleman must be in a really good mood this morning. I do not know what happened to him earlier, but he has certainly toned down his allegations about habeas corpus. His only demand now is that it should be in the Bill, whereas previously he said that the Bill in effect removes it. It is a move in the right direction that he is not making that allegation today. I certainly hope that he will not make it again, because there is no justification for it. It is simply wrong. The common law right of habeas corpus goes back many centuries, and there is nothing in the Bill that affects it.

If the amendment were adopted the courts could allow an appeal if they decided that the principle of habeas corpus had not been applied properly at first instance. The principle of habeas corpus is well known. It is a cherished part of English law. Indeed, many see it as a defining principle. The amendments are unnecessary and misguided. It is always open to a fugitive to raise habeas corpus issues. At every stage, the district judge is required to consider whether remanding in custody or granting bail is appropriate, and to ensure that custody issues are properly taken into account. The Bill makes it clear that the designated authority must be satisfied that the requesting authority is legitimate. After arrest, the suspect must be brought before a judge as soon as practicable, and the judge must establish that the person appearing in front of him is the person named on the warrant. If he is not satisfied, the person must be released.

The hon. Gentleman has put around the idea that the Bill in some way seriously damages habeas corpus, so I want to put on record the statements of the Joint Committee on Human Rights. In its report on the draft Bill, it concluded that

''the provision for hearings before the district judge would be likely to be held to satisfy the right to take proceedings to test the lawfulness of the detention''.

It also noted:

''Judicial review and habeas corpus are important safeguards for human rights, although ECHR Article 5 and the Human Rights Act 1998 now give even stronger . . . protection.''

It is clear that the Joint Committee on Human Rights believes that the Bill in no way detracts from the ancient common law right of habeas corpus. There is no need for amendment No. 166.

Nick Hawkins (Conservative, Surrey Heath)

I was perhaps wrong to be so brief and moderate, because I urged the Minister not to take my brevity as a sign that what we were saying lacked significance. He did not respond in the spirit of my comments, and I do not resile from anything that I said earlier.

Although the debate has been brief, it has been useful because it has enabled the Minister to put on record the Government's beliefs about habeas corpus. However, he will find that in another place people are not so happy to accept his blandishments, and I have no doubt that the matter will take a great deal of further time and debate. We have got the Minister to put his beliefs on record, so that under the Pepper v. Hart rule they can be taken into consideration by future courts, and we will see whether his comments are borne out in later debates.

I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 27 ordered to stand part of the Bill.

Clause 28 ordered to stand part of the Bill.

Clause 29 - Court's powers on appeal under section 28

Nick Hawkins (Conservative, Surrey Heath)

I beg to move amendment No. 115, in

clause 29, page 12, line 6, at end insert—

'(c) and the circumstances of the case are exceptional.'.

I can be brief. We felt that it would be helpful to add an exceptional circumstances provision. At the moment, subsection (3) simply says:

''The conditions are that—

(a) the judge ought to have decided the relevant question differently;

(b) if he had decided the question in the way he ought to have done, he would not have been required to order the person's discharge.''

The amendment would add:

''(c) and the circumstances of the case are exceptional.''

The amendment goes in a slightly different direction from some of our other amendments, and in some ways it could be seen as a toughening-up measure. We are simply probing at this stage, and it will be interesting to hear the Minister's comments. Once again we are not saying that our wording is absolutely perfect; we are just interested to test whether the Minister feels that it would be helpful to add the phrase.

Bob Ainsworth (Labour, Coventry North East)

If we accepted the amendment, there would be some dangers and unintended consequences, which the hon. Gentleman admitted in principle. He said that the amendment was about toughening up the Bill, but it would change the powers of the court on appeals by the requesting state against the decision to discharge a fugitive. I do not think that it toughens up the Bill, as he suggests. It would provide

that such an appeal could be successful only if the circumstances of the case were exceptional.

In practice, all those cases might be exceptional, but who will decide whether that is so? Such a stipulation would open up a whole new area of legal argument and potential delay. Moreover, imagine the circumstances in which a court decided that, on balance at appeal, the requesting state's request should be upheld, but also concluded that there was nothing exceptional about the case. Despite the fact that the court believed that the appeal should be upheld and that the person should be extradited, it would be unable to extradite that person because there were no exceptional circumstances.

The Court of Appeal has the powers that it needs to hear appeals from the defendant and from the requesting state, and to decide whether the right decision has been taken. The amendment would not add anything to the Bill, but would introduce a real complication.

Nick Hawkins (Conservative, Surrey Heath)

In the light of what the Minister said, I do not seek to press the amendment. I wished to probe the matter, because I believed that it might be helpful to include provision for exceptional circumstances. The Minister has set out reasons why such a provision might have unintended consequences, and I accept those reasons. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 29 ordered to stand part of the Bill.

Clauses 30 to 38 ordered to stand part of the Bill.

Clause 39 - Position where asylum claimed

Nick Hawkins (Conservative, Surrey Heath)

I beg to move amendment No. 49, in

clause 39, page 18, line 18, leave out 'must not' and insert 'may'.

Edward O'Hara (Labour, Knowsley South)

With this it will be convenient to discuss the following:

Amendment No. 142, in

clause 39, page 18, line 39, leave out paragraphs (9) and (10).

Nick Hawkins (Conservative, Surrey Heath)

Our amendment No. 49 is quite small, and the Liberal Democrat amendment No. 142 is grouped with it. Our amendment would replace the words ''must not'' with the word ''may''. Although it is a small amendment, it has a significance well beyond the small changes to the wording, as often happens in the law.

We suggest that the legislation, rather than stating,

''The person must not be extradited in pursuance of the warrant before the asylum claim is finally determined.''

should say ''may be extradited.'' That reverses the power of the courts.

I shall wait to hear what the Minister says about that, but I believe that it is a potential toughening up of the legislation. There is great concern in the United Kingdom that people can find legal loopholes by which they can stay in the country, when they should not be able to stay. We have repeatedly said that the Bill gives the Government powers that are too draconian, but we believe that, in this instance, there

should be the opportunity to give the Government greater powers. We do not say that the wording of our amendment is perfect, and we will be interested to hear what the Minister has to say about the matter.

John Burnett (Liberal Democrat, Torridge and West Devon)

I shall speak to amendment No. 142, which is in my name and that of my hon. Friend the Member for Orkney and Shetland (Mr. Carmichael). It would delete subsections (9) and (10).

Clause 39 relates to the interaction of asylum and extradition. As drafted, the clause, particularly subsection (9), removes all protection and the possibility of appeal when an asylum claim is rejected by the Secretary of State and certified as clearly unfounded. The certification procedures under the asylum legislation should not apply when the individual is subject to an extradition request. There is a danger of extradition being used to enable a state to persecute its own nationals. We must be particularly sensitive in these matters, and let the asylum and extradition procedures stand on their own merits. They should not be coupled together, as that could cause a serious failure of justice and give rise to events that all members of the Committee would find deeply abhorrent and thus deprecate.

Bob Ainsworth (Labour, Coventry North East)

The amendments relate to the complex provisions of the Bill that deal with situations in which extradition and asylum meet. It is not a simple subject; strong and basic principles are involved.

Amendment No. 49 would add uncertainty to an already complex clause. It appears to breach the fundamental principles of an individual's rights. Amendment No. 142, on the other hand, would completely reverse our efforts to ensure that the asylum process should not, and cannot, be misused to introduce unnecessary delay to the extradition process.

The clause as drafted provides that no person who has claimed asylum shall be extradited until a decision has been reached on that claim. Amendment No. 49 would wipe out the basic right to seek refuge, and would mean that a person would be extradited regardless, before his asylum claim had been determined.

We are well aware that the asylum system can be abused, and we know that it has been used as a means to delay and frustrate the extradition process. We therefore included provisions to deal with that difficult situation and to address spurious asylum claims and appeals. If it is considered that the claim is unfounded, it can be certified as such by the Secretary of State when he refuses the claim. The effect of that certification will be that the person will be able to appeal against the asylum refusal but extradition can take place. However, the appeal will have to be from abroad and only when the Secretary of State is prepared to state that the claim is clearly unfounded.

I imagine that the hon. Gentleman's intention in tabling the amendment was that the extradition process should not be unduly delayed in the case of a spurious asylum claim, but that is already provided for by the clause. The Bill is drafted to prevent people from using the asylum system to delay extradition

inappropriately. However, it is entirely different, and it would be wholly improper, for us to refuse even to consider representations from a person making an asylum claim before they are extradited, which would be the effect of the amendment.

Liberal Democrat amendment No. 142 would undo our efforts to reach a sensible and constructive solution by erasing the provisions on certification. I have just explained what the provisions do and why they were so drafted. They reflect the approach taken in the Nationality, Immigration and Asylum Act 2002. The arguments are well trodden and we do not need to waste the Committee's time repeating them. We can consider asylum appeals and prevent the abuse of the asylum system in inappropriate circumstances through the certification process. When we have decided that that should be done and the person is extradited, we can still listen to the appeal from abroad. That strikes the right balance. It ensures that people's fundamental convention rights are secure, yet it prevents them from abusing the system.

Nick Hawkins (Conservative, Surrey Heath)

The Minister is right to talk about what we intended to achieve, and I am grateful to him for putting on the record how the system cannot be abused. Amendment No. 50, which was not selected, makes our intentions clear, but it would be out of order to discuss it. Amendments Nos. 49 and 50 taken together set out what we want to achieve. I am not convinced that there will not be problems if the Bill is unamended, but I accept what the Minister says, that in order to try to prevent people from slipping through loopholes, subsections (9) and (10) must be retained. On this occasion, I agree more with the Minister than with the Liberal Democrats, as amendment No. 142 would delete some of the protections against abuse that the Government introduced.

John Burnett (Liberal Democrat, Torridge and West Devon)

I suspect that the matter will be revisited in the other place. The hon. Member for Surrey Heath talked about protection against abuse. I would speak about securing people's civil liberties and rights.

Nick Hawkins (Conservative, Surrey Heath)

I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 39 ordered to stand part of the Bill.

Clause 40 - Withdrawal of warrant before extradition

John Burnett (Liberal Democrat, Torridge and West Devon)

I beg to move amendment No. 143, in

clause 40, page 19, line 15, at end add

'as soon as is practicable'.

Edward O'Hara (Labour, Knowsley South)

With this it will be convenient to discuss the following:

Amendment No. 144, in

clause 41, page 19, line 30, at end add

'as soon as is practicable'.

Amendment No. 145, in

clause 42, page 20, line 10, at end add

'as soon as is practicable'.

John Burnett (Liberal Democrat, Torridge and West Devon)

These are straightforward amendments and I shall not detain the Committee in speaking to them. The order for discharge is empty until the person has been informed of it. The Bill should specify that the judge should inform the person as soon as practicable, as I hope the Minister will agree. The amendment is not just cosmetic; it has some force. It is important that individuals are told as soon as possible if there has been a withdrawal. The onus is on the judge and it is good practice.

Bob Ainsworth (Labour, Coventry North East)

As the Committee knows, the Bill was published in draft in July. Several of those who commented on it, including the Home Affairs Committee, were concerned about the provisions for discharge of fugitives, which is the point that the amendments address. The Home Affairs Committee was concerned about the discharge of fugitives in cases in which requests were withdrawn or the courts found in the fugitive's favour. We redrafted the relevant parts of the Bill as a result of the comments that we received on the draft Bill to make it clear that we expect this to happen immediately. That should surely be so if the case is found in favour of the fugitive or if it is withdrawn. There is no reason why this should not happen at once. The hon. Gentleman says that the amendments are substantive and that they make a difference, but I ask him to accept that they would not.

Indeed, the amendments could be erroneously interpreted as giving the judge some leeway in deciding the speed at which he should discharge the fugitive. I ask the hon. Gentleman to consider that and to withdraw the amendment.

John Burnett (Liberal Democrat, Torridge and West Devon)

I cannot see how the Minister arrives at his conclusion that the innocent words of the amendments could give the judge any leeway in the matter. I do not understand his logic. The amendments are fairly innocuous. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 40 ordered to stand part of the Bill.

Clauses 41 to 52 ordered to stand part of the Bill.

Clause 53 - Presumed consent to other

Nick Hawkins (Conservative, Surrey Heath)

It is important to have a brief stand part debate on the clause, which refers back to the issue of what the statutes variously refer to as specialty or speciality, on which the debate began under clause 17. Significantly, the Labour-dominated Select Committee on Home Affairs states in bald terms that clause 53 should be deleted. Paragraph 70 of the Committee's report states that the clause

''provides for the possibility of the UK giving a blanket waiver of the speciality rule. Article 27.1 of the framework decision provides that a state may give notification that it may be presumed to have consented to another EU member state taking proceedings against a suspect other than those for which the executing state surrendered

the suspect, where the other member state has also given such notification under article 27.1. Clause 53 provides that where both the requesting state and the UK have given such notification under article 27.1, then the requesting state may proceed as if the appropriate UK judge had given consent to the extradited person being dealt with for the other offence (unless the judge makes a statement to the contrary in any given case).''

We talked about the importance of the specialty provision under clause 17, but the Home Office told the Home Affairs Committee that the Government intend to give such notification under article 27.1 and that the Home Office believes that when the issue of specialty arises, the UK's position

''should be guided by the principles of mutual trust and mutual recognition.''

I am beginning to think that the Minister believes that mutual recognition is the answer to a maiden's prayer and the solution to all the country's woes. As I have said repeatedly, I do not have the same faith in mutual recognition as the Minister and the Government. The Home Affairs Committee goes further than that. It says:

''We find it difficult to reconcile what the Home Office has told us with a statement made by the Parliamentary Under-Secretary of State at the Home Office, Bob Ainsworth MP, at the time of the Bill's publication. The Minister stated that 'the Bill also safeguards the rights of fugitives . . . we're retaining the principle that fugitives will only stand trial for the crime they were extradited for'' '.

As the Select Committee points out, that would appear to be a reference to the specialty rule, and it admits that nothing in the Bill would in itself limit the application of the specialty rule, which is preserved by clause 17. However, if the Government give notification under article 27.1, as the Home Office told the Select Committee they intended to do, the specialty rule will be undermined. The Select Committee goes on to say, in strong words:

''In the context of the information we have received from the Home Office, we consider that the Minister's statement can be described at best as incomplete and at worst as misleading.''

I am sure that the Minister did not intend to mislead the Home Affairs Committee, because it is not in his nature. The Select Committee carries on:

''We have serious reservations about the Government's intention to give notification under article 27.1.''

That is the view of not only the Labour-dominated Select Committee, but the organisations Justice and Liberty. When we were in government and the present Government were in opposition, Labour Members constantly talked about the concerns of organisations such as Justice and Liberty, but here and now they are flying in the face of such organisations. The Select Committee made that point, saying that

''the Home Office failed to respond to the concern raised by JUSTICE that, although such cases are at the moment infrequent, agreeing to what is effectively a carte blanche to proceed against an extradited person in relation to any offence whatsoever may well lead to a significant rise in the number of such cases.''

The Select Committee on Home Affairs and the Conservatives agree with Justice and Liberty that specialty is a key safeguard against abuse of the extradition process, and that for the UK to give notice under article 27.1 would infringe the safeguard. The Law Society for England and Wales also opposes any exceptions to the specialty rule. Like the

Conservatives, the Home Affairs Committee considered

''that any notification under article 27.1 would amount to a blanket waiver of the specialty rule. Instead of such a blanket waiver, we would prefer that such waivers should be given on a case-by-case basis and with the consent of the person to be extradited.''

It is for that reason that the Select Committee recommended, in bold type, that clause 53 should be deleted from the Bill. We agree and do not understand why the Government, having included the specialty rule in clause 17, are proposing blanket waivers to it in clause 53. It undermines the protections to which people have always been entitled, and the Government will find it difficult to justify keeping clause 53 in the Bill.

John Burnett (Liberal Democrat, Torridge and West Devon)

I wholeheartedly agree with the points made by the Select Committee on Home Affairs, which were admirably set out by the hon. Member for Surrey Heath. I agree strongly that specialty is a crucial protection for individuals and a vital safeguard. There should be no demurring from it, diminishing of its importance or dilution of its effect.

As the hon. Member for Surrey Heath noted, the Minister made a statement quite clearly to the effect that the Bill also safeguards the rights of fugitives. His words were:

''We're retaining the principle that fugitives will only stand trial for the crime they were extradited for.''

The Home Affairs Committee drew that to our attention. The importance of this principle is recorded by the organisations to which the hon. Member for Surrey Heath referred. It will be fundamental when the Bill is debated in the other place. I look forward to hearing the Minister's comments about his statement. I warn him now that these principles will not be surrendered.

Bob Ainsworth (Labour, Coventry North East)

I have been going through the Home Affairs Committee report trying to see exactly what my hon. Friend the Member for Sunderland, South (Mr. Mullin) said. Hon. Members are right to allude to the Select Committee's belief that I have in some way attempted to say something that was not true. I hope that the Committee accepts that that is not so.

The Bill as drafted protects the rule of speciality. We have been fairly open about the intention. We have already discussed this under previous amendments. We said that if we could get reciprocal arrangements and if we thought that it would be appropriate, we would be prepared to move to a higher level of mutual recognition and abandon speciality. Some people are completely and utterly opposed to that in principle. I can understand their worries, but there are potential advantages for victims and the criminal justice system in moving to such arrangements with countries in whose justice systems we have a high degree of faith and whose treatment of fugitives we accept.

It is not only fugitives who should be considered in such cases. We should not forget that there are victims of all extradition crimes. There are great advantages in our being able to enter into such an arrangement with a country with whom we feel at ease, so that we can get people back to this country without delay. This is not

only about individual cases, but about the victims of these crimes who will be our constituents. Is it a matter of principle? Should we in every case in respect of every state insist on individual extradition arrangements for each offence that is being alleged? I have a little more confidence and hope that we will be able to accept a higher degree of mutual recognition with our close European partners.

I have not attempted to deceive the Home Affairs Committee. It is obvious from its comments that my hon. Friend the Member for Sunderland, South decided to give me a kick up the backside on this. I know that that is not parliamentary language, but I hope that he and everyone else is prepared at least to reflect on the potential advantages of dropping the speciality arrangements when we can get those reciprocal arrangements. This has not been foisted upon us by other European countries. We were at the centre of the debate and we took a lead on it. We have attempted to encourage people to go down the road to mutual recognition, not for any abstract reasons, but because we believe that it is in the interest of our own citizens and our own justice system to enter into such arrangements, where appropriate.

No one seems to have noticed that the hon. Member for Henley (Mr. Johnson) has slipped quietly into our proceedings. We should welcome him. The only problem with his slipping in quietly is that he incapable of doing so because he brings his hairstyle with him wherever he goes. He is welcome; it is good to see him here.

Boris Johnson (Conservative, Henley)

I want only to ask the Minister whether mutual recognition is the right term to apply in this case. Mutual recognition, as customarily used in the European Union context, means that a widget in this country is accepted as a standard in another EU country, and vice versa. What principle of legal philosophy does the Minister rely on to decide that mutual recognition should apply exclusively to what is deemed to be criminal? Why does it not apply to what is deemed not to be criminal?

Bob Ainsworth (Labour, Coventry North East)

I think that I shall withdraw my welcome to the hon. Gentleman. In his absence—I understand the reasons why he was absent—we have debated the principles of mutual recognition. I repeat that we are not setting out on the road to corpus juris across the European Union: the provision is an alternative to it.

We have some basic choices. We could stand firm on our British justice system and maintain barriers to our ability to co-operate with our European partners, or we could accept that in a world where criminals as well as law-abiding citizens can move freely between borders, we need a higher degree of co-operation to secure the rights of victims and to promote justice. If we believe in making changes accordingly, two answers are possible. We either seek to establish corpus juris at the European level, or we enter into effective mutual recognition arrangements. That means saying to other EU countries that we

recognise that their justice systems secure fairness, and in return they have to recognise ours. I have already acknowledged that big steps forward are still required. Presently, Austrian nationals cannot be extradited to this country when they commit certain crimes, and other extradition problems can result in British victims.

John Maples (Conservative, Stratford-on-Avon)

The Minister—and, indeed, the Secretary of State—consistently ignores the other alternative in part 2. None of us has any problem with part 2: it could provide an equally effective solution to problems with our European partners and other countries. Part 1 is abhorrent because it removes every single protection against the extradition of a British citizen from Britain. Part 2 does not. If the Minister were to drop part 1 and accept part 2, I suspect that we could all go home now. Yet the Minister consistently fails to enumerate that alternative.

Bob Ainsworth (Labour, Coventry North East)

I understand the Conservative Opposition's viewpoint, which has been voiced repeatedly by the hon. Gentleman from the Back Benches, by the hon. Member for Surrey Heath on the Front Bench and by the right hon. Member for West Dorset. They fundamentally oppose going any further down the road of mutual recognition, but we simply disagree.

Nick Hawkins (Conservative, Surrey Heath)

Because we disagree so fundamentally, we shall press for a Division.

Question put, That the clause stand part of the Bill:—

The Committee divided: Ayes 7, Noes 6.

Clause 54 - Request for consent to further extradition

John Burnett (Liberal Democrat, Torridge and West Devon)

Although our amendment designed to delete the clause was not selected, I must place certain points about the clause on the record. The specialty rule in relation to further extradition to third countries provides a key safeguard against abuse of the system, and should be treated independently from the issue of dual criminality.

Aside from the specialty rule, offences prosecuted following surrender may raise other possible grounds for non-return—for example, because of an amnesty or a territorial issue. It is therefore not appropriate to issue a blanket waiver, although on a case-by-case

basis, and with the agreement of the surrendered person, a waiver could sometimes be appropriate.

Question put and agreed to.

Clause 54 ordered to stand part of the Bill.

Clauses 55 to 61 ordered to stand part of the Bill.

Clause 62 - Documents sent by facsimile

Nick Hawkins (Conservative, Surrey Heath)

I beg to move amendment No. 170, in

clause 62, page 29, line 36, at end insert—

'(2) The Secretary of State (or in Scotland the Scottish Ministers) may by regulations set out requirements to ensure the security of any documents sent under subsection (1) above.'.

I can be brief. The Law Society of Scotland suggested the amendment, which amounts to a clarification of the Bill's wording. I do not suggest that the amendment's wording is perfect, but I am interested to hear what the Minister has to say, and we wanted to probe this issue on behalf of the Law Society of Scotland.

Bob Ainsworth (Labour, Coventry North East)

I shall try to be equally brief. We envisage that, in most circumstances, the documentation, particularly the European arrest warrant itself, will be transmitted to the National Criminal Intelligence Service via a secure electronic link—the Schengen information system. However, most people would accept that material may not be available in electronic form or may need to be sent urgently. The amendment would involve the Secretary of State in setting out the procedure for the receipt of faxed material, and is therefore a little over the top.

I believe that we can rely on NCIS to be sure that the material that it receives is from a legitimate source. It will be able to ensure that the circumstances in which the material is received are genuine. For instance, if NCIS received a fax and felt it necessary, it would take the appropriate follow-up action, including on any subsequent material, to discover where it came from and to ensure that it had not come from an imposter or inappropriate organisation.

The amendment is unnecessary. This is fundamentally an administrative issue, and we can rely to some extent on the authorities to ensure that things are carried out properly.

Nick Hawkins (Conservative, Surrey Heath)

It is valuable to get that on the record. However, it would have been helpful for the Secretary of State to be involved, because that would have given some opportunity for parliamentary scrutiny. As the Minister knows, the Opposition have consistently reiterated that there should be parliamentary accountability via the Secretary of State. However, having heard what the Minister said, I am content to leave it at that, and not to press the amendment to a vote. I therefore beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 62 ordered to stand part of the Bill.

Clause 63 - Extradition offences: person not sentenced for offence

Alistair Carmichael (Liberal Democrat, Orkney and Shetland)

I beg to move amendment No. 150, in

clause 63, page 30, line 17, leave out '12 months' and insert 'three years'.

Edward O'Hara (Labour, Knowsley South)

With this it will be convenient to discuss the following:

Amendment No. 70, in

clause 63, page 30, line 25, leave out from 'imprisonment' to end of line 26 and insert

'of three years or more'.

Amendment No. 73, in

clause 63, page 31, line 6, leave out from 'imprisonment' to end of line 7 and insert

'of three years or more'.

Amendment No. 76, in

clause 64, page 31, line 45, leave out '4 months' and insert '3 years'.

Amendment No. 77, in

clause 64, page 32, line 8, leave out '4 months' and insert '3 years'.

Amendment No. 78, in

clause 64, page 32, line 14, leave out '4 months' and insert '3 years'.

Amendment No. 79, in

clause 64, page 32, line 19, leave out '12 months' and insert '3 years'.

Amendment No. 80, in

clause 64, page 32, line 26, leave out '12 months' and insert '3 years'.

Amendment No. 81, in

clause 64, page 32, line 29, leave out '4 months' and insert '3 years'.

Amendment No. 82, in

clause 64, page 32, line 36, leave out '12 months' and insert '3 years'.

Alistair Carmichael (Liberal Democrat, Orkney and Shetland)

The amendment would replace the term of 12 months or greater in subsection (2)(c), with a term of three years, which is the provision specified in the European arrest warrant framework decision. The Conservative amendments seek to amend

subsequent parts of the clause in a similar way, and no doubt the hon. Member for Surrey Heath will have something to say about them.

I will be interested to hear from the Minister why the Government believed it to be necessary to ''gold-plate'' the European legislation in this way. In part 1, there is a fairly coercive system for which there must be certain checks and balances. One of the most important checks—or possibly a balance, I am never quite sure—must be the seriousness of the offence that is involved. There should be no opportunity for abuse of extradition requests for offences that are trivial or administrative in nature. The other balance is that of dual criminality, which acts as an important safeguard, but that balance does not exist for this subsection. In such circumstances, it must surely be appropriate that a higher standard or more serious offence must be anticipated. The reduction to 12 months will bring a wide panoply of offences under the ambit of part 1 and subsection (2). There would have been good reason for the framework directive to provide for three years, so there must be an even better reason to depart from that.

Amendment No. 150 does not affect subsequent clauses, in which the 12-month sentence limit would still be open when dual criminality were established, although if the Conservative amendments were accepted, the position would be different. My amendment relates only to subsection (2), and on that basis, I will be interested to hear the Minister's reasoning.

John Maples (Conservative, Stratford-on-Avon)

I support amendment No. 150, but I hope also to stray slightly to ask the Minister two brief questions. About nine minutes are left before the end of the sitting.

The Select Committee recommended that we should return to the three-year limit, so will the Minister answer the points of the hon. Member for Orkney and Shetland and say why he rejects the Select Committee's advice? Will he tell us what offences will fall into the gap and will now be included as a result of reducing the barrier from three years to 12 months?

My second question relates to the Select Committee's central recommendation that in a case without dual criminality, the Home Secretary should have the final decision. We may return to debate the point on clause 193, where the Home Secretary's discretion is severely circumscribed. I understand why the Government want to circumscribe, because the Home Secretary is one avenue of appeal. However, they have reduced from two to one the number of occasions on which the Home Secretary has to make a decision that may be challenged. There is an argument for saying that if the judge has certified that there is no dual criminality, the Secretary of State should have a final say in those narrow circumstances. Does the Minister not agree?

My third question relates to one of my central objections to the framework document, which is that the definition of the offences is so vague. A British

parliamentary draftsman would not include such phrases, and I want to pick on one, which is ''computer-related crime''. That is what we are allowing part 1 to provide for, but I want to know what ''computer-related crime'' means. Does it mean a teenager nicking a CD from someone else's computer or someone conducting a fraud via the internet? The range is vast, which reinforces the point about dual criminality and a subsequent decision. If the Government will not give way on dual criminality because of the framework decision, will it at least introduce the Home Secretary's final discretion in cases in which dual criminality has not been established so that he could rule that it would not be in the interests of justice or our national concerns? When we debate clause 193, I will move an amendment that would allow the Home Secretary to show much wider discretion, but I would be grateful if the Minister could answer the two additional points now.

Nick Hawkins (Conservative, Surrey Heath)

I will also be brief, because I want to give the Minister a chance to respond to the concerns that have been expressed, particularly by my hon. Friend the Member for Stratford-on-Avon.

As the hon. Member for Orkney and Shetland said, our amendments go wider than his. We feel passionately that we should have the three-year protection that the framework decision sets out. The Minister says that previous UK law includes the 12-month limit, and we have debated the point before. However, this proposal is far reaching, which is why we strongly agree with the Home Affairs Committee. Given that the Committee is dominated by Government Members and chaired by a recent former Labour Minister, its attack on the Bill uses extraordinarily strong wording. Recommendation 51 says:

''We can see no justification for eroding the basic level of protection provided by the framework decision and we are dismayed that the Home Office is seeking to do so. We recommend that the three-year limit specified in the framework decision should be retained in UK domestic law.''

It cannot be put more baldly.

I also strongly agree with what my hon. Friend the Member for Stratford-on-Avon said about widening the Home Secretary's discretion. We should have parliamentary scrutiny of that discretion, but that will happen only if the Home Secretary, who is responsible to Parliament, has a wider discretion. As my hon. Friend said, we will return to that issue.

I sought to draft amendments to reflect exactly what the Home Affairs Committee says in its recommendation 51. However, my ingenuity was insufficient to table amendments that could be debated at this stage in our proceedings. I may try again to see whether we can probe the issue in a different way. We may have to debate it in another stand part debate. We strongly agree with the Select Committee that the Home Secretary, who is responsible to Parliament, should take a separate decision on whether to extradite in cases where the alleged offence is not a crime in the United Kingdom.

We have only a few minutes left to debate the clause on stand part, but I cannot stress too strongly how

unhappy we are that the list of 32 offences in the framework decision includes such vague offences. I repeat that it is entirely inappropriate for all these powers to apply to such a vague list of offences, some of which are not crimes in the UK. It is unacceptable, and we hope that the Government will reconsider them. They may be forced to reconsider in another place.

John Burnett (Liberal Democrat, Torridge and West Devon)

The hon. Gentleman and I both have reservations about the list. Does he agree that the Minister should consider a fundamental protection in that some of the offences in the list should not be brought into effect, given their nebulous nature, unless all parties agree on the full extent of liability and the full interpretation of the offences that are so glibly listed?

Nick Hawkins (Conservative, Surrey Heath)

I agree, but we go further when we say that part 1 is acceptable only in relation to terrorism and not to the other 31 offences, as the hon. Gentleman notes. I have expressed my views in the strongest possible terms, and want to hear what the Minister has to say. He must understand that we cannot accept what he is saying about eroding the protections that British citizens historically have had.

Bob Ainsworth (Labour, Coventry North East)

First, I must place on the record that, from the start, we flagged up to the Opposition that the clause was fundamental, that they had fundamental objections to it, and that they could do whatever they wanted to do with the time allowed to the Committee. As late as last night, I pointed out to the hon. Member for Surrey Heath that we might have some difficulty in responding to objections to part 1. However, the Opposition had no desire to change the timetable for the Committee. We now have the clause, with which the Opposition fundamentally disagree, but I do not have the chance to reply. It is not the fault of the Government or the Government Whip. We warned against this happening and tried to ensure that it did not happen repeatedly.

We are content to apply the EAW to all serious crimes. Currently, that means crimes that attract a sentence of at least 12 months or more in prison. The level is high enough to preclude extradition where the effort and costs involved outweigh the interests of justice, but is low enough to catch relatively serious crime. It is worth pointing out that most of our EU partners have lower sentencing thresholds, so an offence that they consider falls within the one-to-three-year bracket will, in all probability, carry a maximum sentence of more than three years in the UK. To raise the threshold to three years, as the Liberal Democrats suggest, could prevent extradition for some offences where most people would believe it to be desirable. Let us be clear about what the amendments seek to do. They relate to cases where we do not intend to impose dual criminality as well as to the ones where we do. In those instances, too, the amendments seek to impose a three-year threshold in cases where we are quite prepared to extradite, as was the Conservative party throughout its period in government. In opposition, however, it is now saying that we should no longer be able to do so. That would be the effect of the amendments. They are not simply about the removal of dual criminality.

The Opposition's position is even more ludicrous on conviction cases. Let us assume that someone has been convicted and sentenced to two years—

It being twenty-five minutes past Eleven o'clock, The Chairman proceeded, pursuant to Sessional Order D [29 October 2002] and the Order of the Committee [7 January 2002], to put forthwith the Question already proposed from the Chair.

Question put, That the amendment be made:—

The Committee divided: Ayes 6, Noes 7.

Clause 65 - Extradition offences: supplementary

Standing Committee D

Clause 68 - Extradition to category 2 territories

Nick Hawkins (Conservative, Surrey Heath)

I need not detain the Committee long, but I want to make some brief opening remarks about part 2 as we start to debate it. My right hon. Friend the Member for West Dorset (Mr. Letwin), the shadow Home Secretary, made it clear on Second Reading on 9 December that we do not have anything like as many objections to part 2 as we had to part 1. However, we continue to have objections, as demonstrated amply by the various votes throughout the first four Committee sittings, not least those before the luncheon adjournment this morning. Those Divisions showed our objections to part 1.

We want to analyse some detailed points in part 2 although, as on 9 December my right hon. Friend the Member for West Dorset said,

''Parts 2, 3 and 5 will, no doubt, repay attention in Committee, but do not involve vast matters of principle.''—[Official Report, 9 December 2002; Vol. 396, c. 52.]

I simply want to take the opportunity of once again urging the Government to reconsider whether we need the part 1 provisions except for terrorist offences and whether part 2 would be a much wiser way of proceeding for all others. I realise that the Government have got themselves into a difficulty by signing up to the framework directive, arguably without having the required authority to do so, as I stressed in referring to the distinguished opinion of Leo Price QC about whether the Government were acting intra vires when they signed up. We will undoubtedly deal with that on Report and in another place.

I remind the Minister about a point made by my right hon. and learned Friend the Member for Sleaford and North Hykeham (Mr. Hogg) on 9 December. He intervened on my right hon. Friend the Member for West Dorset to say:

''Is it not extraordinary that the part 1 procedure would apply to Greece yet the part 2 procedure would apply to Australia? Surely most people in this country would think that if the Government had such absolute confidence as to use the part 1 procedure, they would use it in respect of the courts of Australia and not in respect of the courts of Greece.''—[Official Report, 9 December 2002; Vol. 396, c. 58.]

In the light of the experience of the British plane-spotters, I can say only ''Hear, hear''. I wanted to put that point on the record again. We believe that the part 2 powers would have been sufficient, and the only justification that we could find for the extraordinary

extension in part 1 was in relation to the extraordinary crime of terrorism.

Bob Ainsworth (Labour, Coventry North East)

Considering those comments, I wonder why the previous Government removed the requirement for prima facie evidence in the case of extradition to Greece and yet kept it for Australia. That is strange considering those comments.

Question put and agreed to.

Clause 68 ordered to stand part of the Bill.

Clause 69 ordered to stand part of the Bill.

Clause 70 - Arrest warrant following extradition request

Nick Hawkins (Conservative, Surrey Heath)

I beg to move amendment No. 154, in

clause 70, page 35, line 33, leave out subsection (4).

We are once again putting forward the views of the Law Society of England and Wales. We share its view that there is no justification in the Bill for two different part 2 proceedings for what the Law Society calls category or part 2 countries. The clause provides that an Order in Council could in future designate the part 2 categories into sub-tiers: one that would require information; the other, evidence to support the warrant. The Opposition have not seen anything that justifies a requirement for a lesser degree of evidence for any part 2 state.

Issues relating to the Human Rights Act 1998 and procedural safeguards will not be so effectively monitored and enforced in part 2 proceedings. In the absence of such enforcement mechanisms, the Law Society of England and Wales says that there should be a requirement for prima facie evidence, which will provide protections against foreign states embarking on what the courts refer to as fishing expeditions. In my years in practice at the Bar, I worked on various cases that involved reducing the opportunities for parties to go on such fishing expeditions. I am sure that the hon. Member for Orkney and Shetland (Mr. Carmichael) will know from his experience north of the border—he is nodding—that the courts there are keen to avoid such fishing for evidence.

A requirement for prima facie evidence would avoid potential uses of the procedures for merely incompetent or mistaken investigations. Again, I am indebted to Mr. Roscoe of Victor Lissack and Roscoe Solicitors. As a specialist in the field, he drew my attention to several cases in which entirely trivial accusations appear to have been made against people in this country. One case was dropped in a matter of days after someone had been extradited. In the meantime, however, a huge amount of taxpayers' money had been wasted on extradition proceedings.

In another case, the Czech authorities sought to extradite a Mr. Sivak. I make no general criticism of those authorities, but I understand from Mr. Roscoe, who drew the case to my attention, that the Czech Republic—an applicant state to the EU—was pursuing investigations that it should not have been pursuing. The Czech Republic may, of course, become a part 1 country, but even in the case of part 2

countries, we are concerned that there should be no possibility of sub-divisions, or of allowing requesting states to go on fishing expedition or pursuing trivial inquiries.

We will have other opportunities to consider de minimis provisions, which we will doubtless discuss in our debates on part 5. At this stage, I merely want to place on record the concerns of the Law Society of England and Wales and specialist extradition solicitors, which we share.

Alistair Carmichael (Liberal Democrat, Orkney and Shetland)

I generally concur with the views of the Law Society of England and Wales, as so ably expressed by the hon. Member for Surrey Heath (Mr. Hawkins). In particular, I can see no reason for the creation of two categories within category 2. My concerns stem from the point made by the hon. Member for Surrey Heath about fishing expeditions. During consideration of the Proceeds of Crime Bill, the Minister heard me make the point that wherever a power is made, the people who are given it will inevitably start to look for some way in which it can be abused. It is the proper function of Parliament to close down the options for abuse, but the proposal, with its distinction between evidence and information, is open to such abuse. There is no good reason for such a proposal in the first place, let alone one that almost invites fishing expeditions.

The hon. Member for Surrey Heath expressed another concern that I share, which I would be grateful if the Minister would address. The Human Rights Act 1998 issues procedural safeguards that will not be so easy to monitor or enforce, particularly in part 2 proceedings, which relate to enforcement mechanisms. Will the Minister clarify the Government's expectations on monitoring and enforcement?

Bob Ainsworth (Labour, Coventry North East)

I would make a plea to get real on this issue and recognise that even the representations of an august body such as the Law Society of England and Wales cannot absolve us of the responsibility to consider treaty obligations and other longstanding arrangements, or of the need to consider in detail the workings of extradition procedures. These considerations may not be at the forefront of hon. Members' list of concerns, but they are important.

Amendment No. 154 amounts to opposition for opposition's sake. The clause deals with the requirement to produce prima facie evidence in category 2 cases. Subsection (4) provides that a request from a country specified by Order in Council need be accompanied only by ''information'' rather than ''evidence''. The amendment would erase that with no further comment, and no justification is provided.

In this context we are talking not about European Union countries, so the hon. Member for Surrey Heath should not get so excited. Does he really believe that we are removing essential safeguards and denying people proper consideration in extradition cases? That is not true.

The subsection is designed to meet our existing obligations under the European convention on extradition, which was agreed by the Government—the hon. Gentleman supports it—and has operated for 12 years. The Conservative Government signed up to the ECE in 1990 and it was their introduction of the Criminal Justice Act 1988 and the Extradition Act 1999 that allowed prima facie requirements to be removed in the first place. Her Majesty's Opposition have some responsibility for bringing us to the present position, whereby such requirements were removed for those other than category 1 countries, so why are they suggesting that we should go back on that now?

The hon. Member for Surrey Heath asked why we insist on a certain set of regulations for Australia, but perhaps we are not. Australia is not party to the European convention on human rights and we have no intention of bringing the country into part 1 procedures. Is the hon. Gentleman seriously suggesting that we should enter into arrangements with countries that have a broadly similar criminal justice system to our own, in which we have a high degree of confidence, and remove the requirement for prima facie evidence? Has the Conservative party descended into that wholly inappropriate position?

We are talking about countries such as Switzerland, Canada and Australia, with which we have done considerable extradition business over time and for which sound judicial arrangements obtain. We deal with the Governments of those countries, whatever party is in power, so are we to enter into treaty arrangements with them on the basis of removing the requirement for prima facie evidence? What we are doing is common sense. The other provision concerns those countries for which we have already removed that requirement, which occurred when the Conservative party was in government.

Does the hon. Member for Orkney and Shetland really believe that we would allow category 2 countries to go on fishing expeditions? A proper judicial process would have to be followed. The application made would have to be stronger than that made for a part 1 case. I do not think that the hon. Gentleman seriously believes that the sort of countries to which I referred would be allowed to go on such fishing expeditions. I therefore wonder why he suggests that we rip up that convention and row back from it at a time when we are trying to encourage increased international judicial co-operation. He appears to be suggesting that we should say that although we have been party to that convention, which was negotiated a long time ago and has been in operation for the past 12 years, we intend to reimpose a prima facie requirement of evidence on those countries. Why should we do that at this stage? I do not see any justification for doing so.

Nick Hawkins (Conservative, Surrey Heath)

The Minister is protesting somewhat too much. He attacks me and, by implication, the hon. Member for Orkney and Shetland, for raising the point, and says that although the Law Society of England and Wales is an august body, that does not mean that we should try to row back on what the Government are doing.

I take the contrary view. We are considering a wholesale change—this is not only consolidation but a major alteration of our extradition law. The Bill, in whatever form it finally reaches the statute book, will be the Act that sets out all the law on extradition for the foreseeable future, or until another Act is passed. If we have representations from external organisations saying that we should examine the issue of whether category 2 countries should be divided into two different types, and if such an august body—as the Minister put it—as the Law Society of England and Wales expresses concern about fishing expeditions, it is the purpose of Committees such as this to consider those matters. As my right hon. Friend the Member for West Dorset said on Second Reading, there will be issues that repay scrutiny.

We are considering part 2, and we are not as rushed as we were towards the end of this morning's proceedings. I was therefore surprised by the Minister's aggrieved tone, because the purpose of the Committee is to consider the serious concerns that we raised, which are shared with the professional bodies, and with the hon. Member for Orkney and Shetland on behalf of his party. The Minister should not, therefore, sound so aggrieved.

The debate has been helpful because the Minister has said, on the record, which countries will fall into the category. I am sure that the hon. Member for Orkney and Shetland would agree that that has moved the debate forward. That was not said on Second Reading.

It would be even more helpful if the Government were to produce a comprehensive list, because this afternoon the Minister was able to refer only to countries such as Canada, Switzerland and Australia. The debate has, however, been useful. I opened it in brief and moderate terms, and so I am surprised that the Minister was so aggrieved in his tone.

Bob Ainsworth (Labour, Coventry North East)

A list of countries might seem superficially attractive, but I would ask the hon. Gentleman to reflect further on that issue. The arrangements need to be considered and entered into bilaterally. Therefore, drawing up a list of the countries that we would and would not be prepared to consider would be quite a delicate thing to manage, and could also be a mistake, because it could might send the wrong signals to countries in either category.

Nick Hawkins (Conservative, Surrey Heath)

I am not sure whether the Minister is right about that. I am concerned that there should be proper parliamentary scrutiny of any Government's—not just this Government's—actions in this area. I am sure that the hon. Member for Orkney and Shetland shares my concerns. We want to ensure that arrangements such as this are made openly and clearly, and that the Government will be held to account for their actions.

When I spoke about a list earlier, I did not suggest that the Government should draw up another list stating that certain countries would never be placed in another part 2 category. I said only that it would be helpful to have a list of which countries—only Switzerland, Canada, Australia or countries like them—are covered by part 2. I do not want to rule

out the inclusion of other countries, but our debate shows that it was right to voice concerns about two different tiers of part 2, as the Law Society of England and Wales put it. We exposed a real problem, and it was right to probe.

I hope that the Minister will not be so aggrieved when we raise other concerns about part 2. It is not good enough for him to harp on about what a previous Conservative Government did. This is new legislation on extradition, and it provides an opportunity to consider the issues afresh. I was not a Minister in the previous Conservative Government and I took no decisions. We need to reflect more seriously on the matter, but we have had a useful debate and I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 70 ordered to stand part of the Bill.

Clause 71 - Person arrested under section 70

Nick Hawkins (Conservative, Surrey Heath)

As the Committee can see, we tabled amendments Nos. 155 and 156, but they were not selected for debate. They match what we sought to achieve for the similar provision in part 1. The same protections that we argued for in the counterpart provisions of part 1 should apply to these provisions. I hope that it is appropriate to say that in general terms, without debating unselected amendments. The Minister should be aware that that reinforces our concerns about the need to protect people by showing them warrants in a language that they can understand.

Edward O'Hara (Labour, Knowsley South)

Order. It is not that the amendments have not been selected, but that they have already been debated.

Nick Hawkins (Conservative, Surrey Heath)

I was trying to check the previous list to establish whether we covered them. I must have been looking at an incomplete list.

Edward O'Hara (Labour, Knowsley South)

We debated them with amendment No. 50.

Nick Hawkins (Conservative, Surrey Heath)

I tried to check it before I stood up to speak, but I obviously did not look at the right piece of paper.

Edward O'Hara (Labour, Knowsley South)

It is not the most important of arguments between us.

Question put and agreed to.

Clause 71 ordered to stand part of the Bill.

Clause 72 ordered to stand part of the Bill.

Clause 73 - Person arrested under a provisional warrant

Nick Hawkins (Conservative, Surrey Heath)

I beg to move amendment No. 159, in

clause 73, page 38, line 11, leave out '40' and insert '7'.

The amendment relates to another concern of the Law Society with which we agree. It is designed to replace the period of 40 days with seven days, thereby reducing the routine time in which a person could be

remanded on a provisional warrant. The 40-day period is an unacceptably long blanket period for a person to be under suspicion. The Minister will doubtless tell us that it already happens under current arrangements, but a period of 28 days is more common in provisions dealing with remands. We all know that the courts often remand people for 28 days, 14 days or seven days. We believe that under the new system of provisional warrants, while waiting for a full arrest warrant, the remand period should be much shorter. We would be happier, as would the Law Society of England and Wales, if the Government were to change the 14 days to seven days or even to 28 days, and to provide the opportunity to apply for an extension of time in exceptional circumstances.

Before the Minister says so, we are not being silly or trivial, or trying to row back from the previous position. We feel strongly about this issue, as does the Law Society of England and Wales. Certain requesting states may be given longer without showing any exceptional circumstances relating to the request for extradition.

Whatever the current situation might be under extradition law, we are discussing provisional warrants and a new system of extradition law—the European arrest warrant is a totally new animal. The Government have introduced this Bill because of the European arrest warrant and the framework directive. The Bill will put all those new arrangements into force. This is therefore an opportunity to re-examine the situation and to see what is appropriate. The Law Society of England and Wales are right to say that the period should not be 40 days for a provisional warrant: that is too long.

Alistair Carmichael (Liberal Democrat, Orkney and Shetland)

I should say that while I am not in particular sympathy with the terms of the amendment, I agree with the general tenor of the speech made by the hon. Member for Surrey Heath. I would require some persuading that seven days is an appropriate blanket period: it seems to me that that is a tad on the short side, whereas a period of 40 days in those circumstances seems excessive. Will the Minister reconsider that point between now and Report?

A compromise such as the hon. Member for Surrey Heath has suggested would be ideal. That would allow, for argument's sake, 14 or 20 days as the initial period with application to be made thereafter for extension on cause shown.

Bob Ainsworth (Labour, Coventry North East)

The limit specified in the Bill is 40 days, and that is the period that currently applies. As the hon. Member for Surrey Heath predicted, I would argue that the reason for the 40-day period is because that is what is specified in the European convention on extradition. At the risk of upsetting him yet again, that convention was passed and adopted by the UK in 1991 under the Conservative Government. However, as well as seeking to upset the hon. Gentleman again—I do not see anything the matter with that—I would also argue that it would cause us a problem if we sought to move away from that provision. The hon. Gentleman asked, quite reasonably, whether such a long period was necessary, but that period is generally specified in

extradition treaties made during the last two centuries. It features in most of the UK's bilateral extradition treaties, and although the hon. Member for Surrey Heath said that there has been a change in his party's position on the issue, we are bound by the convention and by those treaties.

While I am superficially attracted to the suggestion made by the hon. Member for Surrey Heath and supported by the hon. Member for Orkney and Shetland that the period could be reduced to 28 days, we would then be required to renegotiate all our extradition treaties and the convention itself.

We are not discussing the European arrest warrant, or any massive draconian measure. I note that the hon. Member for Surrey Heath has stopped using the word ''draconian''—I lost count of the number of times he used it, but he applied it to every clause in part 1. We are talking about part 2 arrangements and what is provided in the existing arrangements. We have a limited ability to move away from 40 days, unless we are prepared to do what has been suggested.

For the record, so that Members can decide whether to continue making representations that 40 days is too long, let me say that exceptions to the 40-day rule are allowed under current regulations only where our bilateral treaties or extradition agreements with other countries specify a longer period. Again, we have translated that into the Bill, as the only possible variation of the time frame is when an Order in Council specifically provides that a longer period is allowed in relation to the category 2 territory.

Forty days has proved appropriate for provisional arrest cases, and we see no reason why that should not continue. That period provides a suitable amount of time for the counsel to prepare the case, which would not be so if we cut it to seven days. If the position is thought through logically, there are good reasons why the period should not be changed. Provisional arrest is most likely to be used in urgent cases where there is a good reason why it has not been possible for a full request to be made.

The amendment would mean that everything—the full request, the paperwork and the evidence or, where appropriate if we drop the prima facie requirement for the particular country, the information—had to be prepared, translated and sent over in haste. That could be, and often is, a significant bundle of documentation. In addition, the papers would then have to be examined by the Secretary of State and, if he considered it appropriate, certified before being sent on to the judge.

It is not feasible to do all that, starting from scratch in the issuing state, in seven days. There would be no time to query any possible errors or omissions, although they would be all the more likely to occur if we forced countries to prepare their case in such a tight time frame. There would be no flexibility if, for example, the Secretary of State was temporarily unavailable, or the seven days happened to begin over the Christmas break.

I understand what the hon. Gentleman said, and I accept that, superficially, the period of time appears long. However, that is the current provision, and an awful lot of work needs to go into these cases. I do not think that there is evidence of undue delays leading to injustice—if people believe that there is, they may present it later—so we are replicating in the new legislation what has existed for some time and is enshrined in various treaties across the world, as well as in the relevant convention.

Nick Hawkins (Conservative, Surrey Heath)

I understand what the Minister says and I am grateful that he has been more serious about this issue. I am particularly grateful for his acknowledgement that, at first sight, 40 days seems a long time. I understand his point about treaty obligations; I am sure that none of us wishes to force this or any Government to tear up their treaty obligations.

Unlike the Minister and his advisers, I have not studied individual treaties, and I am slightly surprised that they do not provide for flexibility or for 40 days to be a maximum. I wonder whether he might talk to his officials again, or whether it might still be possible, without tearing up all the treaties, to substitute a slightly shorter period of 28 days. The Minister acknowledged that, while advancing my case for seven days, I referred to 14 or 28 days as possible alternatives, as did the hon. Member for Orkney and Shetland.

I hope that the Minister will at least consider that point, because this is an opportunity to change extradition law if it needs changing, and to look afresh at some of the issues. Again, it was right of the Law Society of England and Wales to draw our attention to that point, because this may be the only opportunity for a decade or longer to reconsider what should happen in extradition cases.

If an arrest is under a provisional warrant, there should be some obligation on those who are putting the paperwork together to get a move on, in fairness to the potential subject of the extradition request and the lawyers representing him. The amendment tries to be fair to that person and to give his legal representatives an opportunity to prepare the case without unfairly hampering the interests of the state. There is balance to be struck. I am glad to see the Minister nodding in agreement. I hope that the Minister will reconsider this matter and will keep it under review, because the other place may need to discuss it. It is a point of detail, but not an insignificant one.

Having alerted the Minister to the concerns and having heard his reasonable response, I am happy not to pursue the matter at this stage. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Question proposed, That the clause stand part of the Bill.

Alistair Carmichael (Liberal Democrat, Orkney and Shetland)

I have a brief point to make, and I should be grateful if the Minister would take it away and consider it. It might equally be said to apply to clause 71. Subsection (3) states:

''The person must be brought as soon as practicable before the appropriate judge.''

Subsection (4)(a) provides that that need not apply if

''the person is granted bail by a constable following his arrest''.

Subsection (11) says:

''Subsection (4)(a) does not apply to Scotland.''

That is perfectly proper, as in Scotland the police do not grant bail. I do not take issue with that. However, it seems that the police having the power to grant bail is a useful provision that gives a degree of flexibility.

Perhaps between now and Report the Minister and those advising him could give some consideration to the question of a parallel provision being put in for Scotland. I do not want to see terminology starting to be confused and constables in Scotland getting the power to grant bail, but under Scots criminal procedure there is a provision whereby police officers can arrest people on an undertaking to appear at a court at a later date. That is very close to what I understand police bail in England to be. In fact in Scotland it is often referred to in shorthand as police bail, but bail is something quite distinct and different.

Without that flexibility there can sometimes be logistical difficulties in taking people from, for example, the remoter parts of my constituency to the sheriff at Lothian borders sitting in Edinburgh. As soon as practicable can sometimes be a couple of days. There is good flexibility in the police being allowed to give bail. If some mechanism could be found to allow that to be extended north of the border, it would have a lot to commend it.

Bob Ainsworth (Labour, Coventry North East)

I shall take some advice and will come back to the hon. Gentleman as soon as I can.

Question put and agreed to.

Clause 73 ordered to stand part of the Bill.

Clauses 74 to 82 ordered to stand part of the Bill.

Clause 83 - Case where person has not been convicted

Nick Hawkins (Conservative, Surrey Heath)

I beg to move amendment No. 160, in

clause 83, page 41, line 32, leave out subsection (3).

Edward O'Hara (Labour, Knowsley South)

With this it will be convenient to discuss the following:

Amendment No. 161, in

clause 83, page 41, line 32, leave out 'must' and insert

'may, where the statement is corroborated with independent evidence,'.

Nick Hawkins (Conservative, Surrey Heath)

I did not want to discuss this in a clause stand part debate, but it is interesting that we just agreed to clause 79 and the new rule against double jeopardy while the Government are proposing in other legislation in the House to change the rules about double jeopardy. I see that the Minister is shaking his head, but my right hon. Friend the Member for West Dorset teased his Front-Bench colleagues about that. There is something of a mismatch between the different criminal justice legislation before different Committees at different times.

Edward O'Hara (Labour, Knowsley South)

Order. I have been very generous, but the hon. Gentleman must move on.

Nick Hawkins (Conservative, Surrey Heath)

Indeed, Mr. O'Hara.

It will not surprise the Minister or other Committee members to hear that the Law Society of England and Wales suggested amendments Nos. 160 and 161, which would leave out subsection (3) and replace the word ''must'' with ''may'' when the statement is corroborated with independent evidence. However, there is a slight difference, because as well as the Law Society, we have heard the strongly expressed concerns of Liberty. On subsection (2), Liberty said:

''Category 2 countries still require the establishment of a prime facie case to be made out before extradition can occur. This requirement provides an important safeguard in the case of requests emanating from Category 2 countries, the majority of which are not signatories to the European Convention on Human Rights.''

Indeed, many category 2 countries will have nothing to do with Europe or the European convention on human rights.

The Government's proposal to allow a summary of evidence to be read is, in the view of the Conservatives and Liberty, a serious inroad into the protections that have existed historically in our extradition law. Liberty believes that the requirement for a statement to be in full should not cause any significant delay to the extradition, and says that if a summary is incomplete and does not contain all the required information, it may work against the Government's aim by resulting in further delays.

The Law Society of England and Wales said that, unlike the provisions for the admissibility of statements elsewhere in the Bill, there is no safeguard in the provisions on who has to prepare such a summary. As always, there is a danger that a summary may be partial and tailored to support the extradition request, and may omit matters that may assist the defence. My experience during years of practising in criminal courts may provide me with some assistance in making my case. The Minister will know that in the criminal courts, if a prosecuting solicitor is aware of any fact that may not help his case, he is under a duty to make the information available to the defence and the court. That is why the prosecution in our courts traditionally represents the Queen and has a duty to the courts to ensure fairness in the consideration of the defence case. It has become apparent that many of the so-called miscarriage of justice cases arose from the prosecution having information that was not disclosed to the defence or the court. That is what has caused some of the most celebrated miscarriages of justices in which the convictions had to be overturned, sometimes many years later.

The Conservatives are bound to be concerned about introducing provisions for a summary, and the Minister will confirm that it is completely new. Such a provision has not previously been in extradition law, so for once I will not have the Minister attacking me by arguing that the Conservative Government in 1989 agreed to it. It is some relief not to have to face that attack from the Minister yet again. The Minister is having difficulty justifying the introduction of summaries. I believe that great concern will be expressed in the other place. We shall listen with

interest to what the Minister has to say, because for the first time in this part of the Bill we are dealing with a matter of some substance. I suspect that, as the Bill proceeds, we will have to spend more time on this issue than on any of the other issues that we have dealt with this afternoon.

Bob Ainsworth (Labour, Coventry North East)

The hon. Gentleman is absolutely right: I cannot throw that allegation at him. We are talking about cases where the requirement for prima facie evidence is being retained, and the clause provides for a summary of the person's statement to be admitted as evidence. Our proposed changes, which so worry the hon. Gentleman, would simply mean that a foreign police officer's account of what a witness had told him could be admitted as evidence. Without that provision, that evidence would be admissible only if the police officer came to the court in person to give it. Apart from the trouble and the expense that that would entail, a subtle but important consideration is that the task of the district judge is to determine whether there is a sufficient case against a person to warrant sending them to stand trial. In such prima facie cases, it is not the job of the judge to conduct the trial, or to establish the guilt of the fugitive beyond all reasonable doubt.

Clause 83(3) is an important provision. It will make things much easier for most people involved in extradition, and it is important to stress that the district judge will always have discretion over the presentation of summaries of evidence. He can decide not to admit the evidence if he has any doubts about its authenticity or reliability. He can decide that the summary is not admissible, and that any evidence must be produced differently. We want to give the judge that discretion in order to make the arrangements more workable. It is an important safeguard, and it is the basis on which we seek to make the changes.

I am not surprised that the provision has caused concern. It is new, but I must say to Opposition Members that people who practise extradition have talked about it for some time. It gives the judge the discretion over the presentation of summaries of evidence, but does not say that evidence can be presented and will be accepted in a particular way. The amendment would deny the judge the ability to consider summaries of evidence. That is the current position, and if the Opposition are opposed to the district judge being allowed to give consideration to such summaries, they must stick to their current line. I wonder if, on reflection, they would be so opposed to that discretion and believe that it is such a threat to justice.

Kevin Hughes (Labour, Doncaster North)

That scares me a little.

Bob Ainsworth (Labour, Coventry North East)

That is terrible.

Kevin Hughes (Labour, Doncaster North)

That takes some doing, as my hon. Friend well knows. I see no point in having a summary of a statement. If I read the provision correctly, it means that I make a statement and someone else provides their interpretation in a summary, which a judge examines before taking a decision. If someone else writes a summary, it is their opinion of what I

said, but I want the judge to see exactly what I said rather than what someone else thinks I said. I ask the Minister to reflect further on the problem.

Bob Ainsworth (Labour, Coventry North East)

If I frighten my hon. Friend, I am very worried indeed, as I have heard him express views on all policy areas and fear is not usually apparent. In a case such as he describes, does not my hon. Friend have any faith in the judge's ability to decide that a summary is inappropriate and an improper reflection of the evidence supplied? We want evidence to be heard first hand, but that may not be possible, and the proposals enable it still to be heard.

At the other end of the spectrum, does my hon. Friend accept that, although the judge may feel comfortable about accepting police reports as evidence, he cannot do so currently? Individual police officers need to travel from jurisdictions abroad to provide the evidence and the judge has no discretion to decide when he is comfortable that the evidence is authentic and delivered properly. My hon. Friend would accept that the provision amounts to a boon in time saving and money saving, but no one wants to open the door to potential injustices. That is what my hon. Friend is frightened of, but in the light of the many conversations with him over the years, I am surprised that he has not been more frightened about other issues in the Bill.

Kevin Hughes (Labour, Doncaster North)

My hon. Friend is right. I am generally in favour of the thrust of the Bill in respect of time saving and efficiency, but how can a judge take a decision about whether a summary is fair if he does not possess the original statement, and if he has the original statement, what is the point of the summary? I cannot get my head around that.

Bob Ainsworth (Labour, Coventry North East)

The judge must be satisfied that the evidence that he is using to take a decision is bona fide, authentic and appropriate. If he is not satisfied, he has unhindered discretion not to allow it as evidence. It is a matter for the judge. Should we restrict his discretion and say that hearsay evidence cannot be accepted in any circumstances because it makes us feel dreadfully uncomfortable, or should we allow the judge to hear the evidence in certain circumstances? That is the question that members of the Committee must decide.

Nick Hawkins (Conservative, Surrey Heath)

As so often in the past, I echo the common sense of the hon. Member for Doncaster, North (Mr. Hughes). If we allow summaries in this new legislation, the danger is they will tend to become the norm. Without the foreign policeman in front of him, the judge cannot analyse whether the summary is fair. If the person's full original statement is available, there is no need for a summary. The hon. Member for Doncaster, North is right; he made an unanswerable point.

Bob Ainsworth (Labour, Coventry North East)

A a district judge at Bow street magistrates court is bound to develop a method of operation to deal with part 2 countries in these cases. Is the hon. Gentleman really saying that he does not have confidence that a judge is capable of deciding what should be admitted as evidence, that he cannot be trusted in that respect and that there must be a bar on hearsay evidence and summaries of evidence being considered in prima facie cases? If that is not what the

hon. Gentleman is saying I ask him to intervene and put me right. I can understand that he wants to stay with the current, pure position: that whatever the jurisdiction, no matter how far away it might be, such as the northern territories of Canada, unless someone is prepared to turn up and give evidence in person, that evidence cannot be admitted in a prima facie hearing in London. If that is what the hon. Gentleman wants he can stick to the amendment, but if he wants to give the judge some discretion about what is acceptable, he should agree to the Bill as drafted.

There is some anxiety about the matter, but I hope we will have an open discussion so that people can see where we are coming from and the consequences of the measure. I ask the hon. Gentleman not to press the amendment at this stage. I shall continue to reflect on what has been said in the debate, and I shall be prepared to field questions further down the line. I hope that members of the Committee will reflect on the logistical problems that may arise in some circumstances. The Bill enables us to tackle some of those problems and to have faith in the judge's ability to decide what he can and cannot do without putting the principles of justice at risk.

Alistair Carmichael (Liberal Democrat, Orkney and Shetland)

I share the concerns of the hon. Member for Bolton, North—[Interruption.] I apologise, I should have said Doncaster, North. It is all England to me. I hope that my wife, who has roots in Lancashire, does not get to hear about that exchange.

I share the concerns of the hon. Gentleman, wherever he comes from, about the use of summaries. As I listened to him, I was taken back to my time as a prosecutor. We obtained police précis reports in the first instance in deciding whether to prosecute. Presuming that it had been decided to take proceedings, the next stage was to order full statements if there was to be a trial. Once we had the full statements, we often wondered who had written the précis report and what connection there was between it and the full statements. The hon. Gentleman makes a good point.

I am worried about what the Minister said about discretion. Even in the Bill as drafted—I appreciate that the removal of subsection (3) would be significant—the judge is not given a great deal of discretion. Regardless of whether amendment No. 160 is accepted, amendment No. 161, tabled by the hon. Member for Surrey Heath, would change ''must'' to ''may'', with the rider:

''where the statement is corroborated with independent evidence''.

That would provide the appropriate discretion. I hope that when he considers the matter before Report stage he will contemplate that provision.

Nick Hawkins (Conservative, Surrey Heath)

This has been a more substantive debate. The intervention of the hon. Member for Doncaster, North was welcome. I do not know whether he remembers sharing a cab with me not long after Labour's victory in the 1997 general election. He explained the difficulty he was having as a Government Whip with some of the 1997 intake of Labour MPs over the importance of voting in the

Division Lobby rather than electronically. I do not think I am breaking any confidences in saying this, because he argued openly for the tradition of going through the Lobby. He said to MPs of the 1997 intake, ''If you don't go through the Lobby, you'll never get the chance to badger a Minister''. Now that he has returned to the Back Benches after distinguished service as a Government Whip he is taking the opportunity to badger the Minister in a different way, not in the Division Lobby but in Committee.

Edward O'Hara (Labour, Knowsley South)

Order. That was long enough. I shall let Mr. Ainsworth speak.

Bob Ainsworth (Labour, Coventry North East)

I was going to say that a conversation between a London cabby, my hon. Friend the Member for Doncaster, North and the hon. Member for Surrey Heath must have been a very liberal discussion.

Edward O'Hara (Labour, Knowsley South)

Order. I remind hon. Members that we are discussing amendment No. 160.

Nick Hawkins (Conservative, Surrey Heath)

With regard to Government Back Benchers taking the opportunity to badger Ministers on such important civil liberties issues—this has some relevance to the debate, Mr. O'Hara—it occurred to me that at that time the hon. Member for Doncaster, North had a colleague in the Whips Office, and I am sure that many liberal conversations took place between them. They would not have been so constrained as they are now. The Minister was certainly not so constrained in his views when he was a Whip.

The hon. Member for Doncaster, North made an important point that reinforces our concern. The Minister has had to accept that the Government are proposing a major change to the present arrangements. We feel that, even if a policeman has to come from the northern territories of Canada, he should come for the reason given by the hon. Member for Orkney and Shetland, whose experience in the courts in Scotland reflects my experience prosecuting in the courts of England. If one saw a case note from what were county prosecuting solicitors in the late 1970s and early 1980s—it later became the Crown Prosecution Service—which was supposed to be a summary of the case, and then called to see the full witness statements, the difference between the two could be enormous. I am afraid that that could easily happen under this provision.

It is not that we do not trust judges to use their discretion, and we are not saying that there should be a bar. The Minister has to justify what he is doing, because he and the Government are making the change. I accept the Minister's good faith when he says that he will reconsider the matter. I certainly accept what the hon. Member for Orkney and Shetland says in drawing the Minister's attention to our unselected amendment that would reintroduce an element of discretion. However, because we feel so strongly about the matter, because of the points made by the hon. Member for Doncaster, North and the views of Liberty and the Law Society for England and Wales, we must put it to a vote.

Kevin Hughes (Labour, Doncaster North)

As the hon. Gentleman has decided to put the matter to a vote, I shall say for the record that I will support my hon. Friend the Minister despite my reservations, because he has given the Committee a guarantee that he will consider the matter seriously as the Bill travels through its parliamentary process.

Edward O'Hara (Labour, Knowsley South)

I am not allowed to impose summary proceedings on this debate.

Question put, That the amendment be made:—

The Committee divided: Ayes 5, Noes 8.Question accordingly negatived.

Clause 83 ordered to stand part of the Bill.

Clauses 84 to 122 ordered to stand part of the Bill.

Clause 123 - Consent to extradition: general

Nick Hawkins (Conservative, Surrey Heath)

I wish to have a brief clause stand part debate, because the Law Society had the same concerns about situations in which there is consent to extradition. We have already debated the issues related to that.

The Law Society believes that the person who may be extradited should have the opportunity to have independent legal advice and to revoke that consent. We have already debated that matter, but having reached this point in the Bill, and given that the issue is dealt with separately in part 2, we should mention it so that the concern is not lost. The point about the need for independent legal advice applies equally to the situation before someone consents to extradition. Extradition is a dramatic step, and people need to ensure that they have had the benefit of independent legal advice before they are extradited. I therefore hope that it is not wasting the Committee's time to flag up that issue in our debate on part 2, as we did in our debate on part 1.

Edward O'Hara (Labour, Knowsley South)

A reminder of cross-references is in order, but not a full debate.

Question put and agreed to.

Clause 123 ordered to stand part of the Bill.

Clauses 124 and 125 ordered to stand part of the Bill.

Clause 126 - Consent to other offences being dealt with

Nick Hawkins (Conservative, Surrey Heath)

I beg to move amendment No. 163, in

clause 126, page 62, line 14, leave out '91' and insert

'78, 91, 92 and 93'.

The amendment is brief. It adds extra clauses that the Secretary of State must consider. Subsection (5) currently provides that the Secretary of State must consider only clause 91. The Law Society of England and Wales supports our belief that the provisions under clauses 78, 92 and 93, as well as 91, should be included to ensure that the Secretary of State should consider all the possible bars to extradition. I am sure that the Minister's officials will have advised him of the reasons why the Secretary of State's consideration should be restricted to the bar in clause 91 relating to the death penalty.

Who, if not the Secretary of State, will consider the other bars to extradition? It seems to the Opposition and to the Law Society of England and Wales that Parliament can scrutinise this new extradition legislation only by the Secretary of State exercising his powers. He is accountable to Parliament and through Parliament to the citizens of his country. He should surely consider all the possible bars to extradition before he takes that decision.

We will listen with interest to what the Minister has to say. There may be a good reason why the Bill does not include these clauses. It would be much clearer if the Secretary of State considered all the bars to extradition. If he does, the Bill should include them.

Michael Wills (Labour, North Swindon)

My moment arrives. I do not know whether it is too late to welcome you to the Chair, Mr. O'Hara, but may I do so if it is not?

I am grateful to the hon. Member for Surrey Heath for raising that point. I understand that he wants greater clarity, which I am happy to give. When we send someone to a category 1 territory that then seeks permission to charge him or her with an offence other than the one for which he or she was extradited, clause 52 requires the district judge to consider all the bars to extradition to see whether any of them apply to the additional offence. By contrast, under clause 126, the Secretary of State is obliged to consider only whether the crime is an extradition offence and if there are death penalty considerations. He or she is not required to consider all the other bars to extradition.

The nub of the hon. Gentleman's amendment concerns the difference. The answer is simple. If hon. Members care to read clause 52(6), they will see that in part 1, where none of the bars apply, the district judge must give his or her consent to the specialty waiver. By contrast, clause 126(7) provides that the Secretary of State may give his or her consent in non-death penalty cases. In other words, consent is currently entirely discretionary. The Secretary of State is never obliged to give consent and would withhold it if there were good grounds for believing that it would be unjust to give it. He or she could also take into account any representations that the fugitive, or his or her legal representatives, might care to submit.

I shall spell out more clearly the safeguards that are implied. First, as the Committee will be well aware, most part 2 countries—indeed, all those that are not in the Council of Europe—have to supply prima facie

evidence to accompany their extradition requests. That can apply equally in cases involving a request to prosecute for additional offences. Secondly and crucially, any decision taken by a Minister in this context is judicially reviewable. A Minister who took a manifestly unreasonable decision could expect to lose a judicial review. Those circumstances would clearly apply if the Minister failed to consider any of the bars to extradition.

I hope that the hon. Gentleman has received enough comfort from my clarification of what is intended in the clause to feel able to withdraw his amendment.

Nick Hawkins (Conservative, Surrey Heath)

I am grateful to the Minister and welcome him to the Committee. It has been a brief appearance, but a helpful one.

The Minister has set out the reasons why the Secretary of State has a wider discretion. I understand entirely what he says, and the contrast that he has drawn between the mandatory nature of what a district judge has to do under clause 52 in relation to part 1 countries, and the provision relating to the Secretary of State, which uses the word ''may'', provides residual discretion, and involves decisions that are judicially reviewable.

Nevertheless, I hope that the Minister will at least keep the matter under review, and consider whether, in addition to the word ''may'' in clause 126(7), it might in future be helpful, for the sake of clarity, for all the bars to be listed. I did not hear him argue that it would be entirely wrong or inappropriate to insert references to clauses 78, 92 and 93. He is simply saying that we do not need to, but I think that that would provide helpful clarification, because even though the word ''may'' is in clause 126(7), it makes it look as if the Secretary of State considers only one bar. I do not think that it would damage the legislation to make it clearer that he uses his discretion to consider all the bars. If the death penalty issue is raised in clause 91, why not also include clauses 78, 92 and 93?

The Minister seems to be saying that the Secretary of State has to consider those points anyway—that he has to exercise his discretion and consider the whole prima facie case. I therefore hope that the Minister will keep that under review and perhaps consider tabling a Government amendment at a later stage just to make the position clearer. At this stage, however, having probed the Minister and heard his reassurances, which could be considered by a court in future under the rule in Pepper v. Hart, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 126 ordered to stand part of the Bill.

Clauses 127 to 140 ordered to stand part of the Bill.

Further consideration adjourned.—[Derek Twigg.]

Adjourned accordingly at twelve minutes to Four o'clock till Thursday 16 January at twenty-five minutes past Nine o'clock.