Data Retention and Investigatory Powers Bill

Lord Hodgson of Astley Abbotts Excerpts

Thursday 17th July 2014 Lords Chamber

The Government should take the period of the reviews to look at the way in which the public, who are our masters, have explained to them what is happening in their interests, but without necessarily having everything disclosed to them. It has to be done in a better way than it has been to date. We should not change the time period. Being practical, we need the two and a half years: it will take 18 months to do the work and 12 months for the legislation to go through both Houses of Parliament.

[Lord Hodgson of Astley Abbotts (Con)]

My name is on this amendment. The noble Lord, Lord Rooker, always speaks with vigour and passion about his points. He will understand that I would like to come to the point on the timetable in a moment. He did not address the point made by my noble friend Lord Phillips that the legislation has lacunae—gaps—in it which need to be filled as quickly as possible. This is a simple amendment and I will not detain the House for long.

I and other Members accept that the Government have to have this Bill. We have had concerns about extensions and clarification of powers, and concerns about whether new technology—metadata and so on—entitles a greater degree of investigation of our personal freedom than is perhaps understood by the Government. My noble friend on the Front Bench has done his very best to reassure us. I add my thanks to those of others that he has received for having taken the trouble to produce overnight the long letter answering our questions. The bottom line is that the security services and the police have told us that they need this Bill. They deserve our support because they work long hours unsung on our behalf to keep us safe. Therefore, this is a Bill they must have.

Equally, it is recognised that this is a flawed Bill and that the Government would rather not be in the uncomfortable position in which they find themselves. Moreover, it is a flawed Bill being applied to a flawed substructure; namely, the Regulation of Investigatory Powers Act. Those of us who were here last night had the pleasure of hearing my noble friend Lord Blencathra—despite the cheap jibe about eggs to which the noble Lord, Lord Rooker, referred—do a demolition job on RIPA, at the end of which there was hardly a brick on brick left standing. He described the Bill as not fit for purpose. Therefore, the shorter the time that these two pieces of inadequate legislation remain on the statute book, the better for our society.

As my noble friend will say—and as the noble Lord, Lord Rooker, made clear in his remarks—time is needed for research, reflection and consultation, and rushing is not a good idea. The issue is the length of time. Clearly, I could not have put my name to an amendment that stated that it should be six months, which would not provide the appropriate time to carry out those detailed negotiations. In 12 months from now, we shall be in the middle of a general election campaign. Such campaigns are bound to be conducted in primary colours to gain public attention. We are balancing the difficulties of issues of privacy and national security that have nuances and require light and shade, which do not lend themselves well to the hurly-burly of a general election campaign.

I do not think that 12 months would have worked, either—but that does not mean that 12 months cannot be used to undertake some of the preparatory work to which the noble Lord, Lord Rooker, referred. This is not primarily a party-political matter; it is a matter of national security, and how we balance privacy and the need to keep us all safe. My feeling is that a great deal of work could be done during those 12 months and a set of recommendations could be made available to an incoming Government in May to June 2015.

Bearing in mind that this is a very important matter and that we understand that we must get on with it, there is a balance of advantage for making sure that we move as quickly as possible—not to put another patch on the tyre but to have a new tyre on the statute book which is fit for purpose. Given the importance that we attach to this, I do not believe that the timetable of 18 months from now is unachievable.

In conclusion, I gently say to my noble friend on the Front Bench, who has put up with a lot, and to the noble Lord, Lord Rooker, that they have fallen victim to one of Parkinson’s laws. Members of your Lordships’ House will recall that C Northcote Parkinson had a number of laws, one of which was that the task expands to fill the time available for its completion. There is a real danger here that we will fall foul of that. This is too important an issue to be left to fester for a minute longer than it needs to, which is why I think that 18 months, with vim, vigour and resolution, is not unachievable.

Data Retention and Investigatory Powers Bill

Lord Hodgson of Astley Abbotts Excerpts

Wednesday 16th July 2014 Lords Chamber

[Lord Hodgson of Astley Abbotts (Con)]

My Lords, I begin by reminding the House of my involvement with the All-Party Parliamentary Group on Extraordinary Rendition and my trusteeship of Fair Trials International, since I shall want to refer to some of that in a minute or two.

It was quite properly said by the Prime Minister, and indeed by my noble friend Lord Howard in his comments a few minutes ago, that the first duty of a Government is to keep the citizens safe. Before us is a Bill that focuses solely on that objective. Moreover, it is a Bill with a sunset clause: one that is—for my taste —a trifle long, but nevertheless a sunset clause. Add to this the fact that my noble friend took the trouble to invite those Members of your Lordships’ House who were interested to a briefing—for which I greatly thank him. So what’s not to like? For me, like the noble Lords, Lord West and Lord Armstrong, the issue is of course balance: the balance between the need to keep us safe and the need to respect our privacy and our freedom. Never does the one trump the other. As the noble Lord, Lord Armstrong, pointed out, the balance is constantly shifting. It is that sense of balance on which I should like to focus in the next few minutes and on which I hope that my noble friend can provide reassurance when he winds up the debate later.

First, the Bill addresses a technical matter in what is a fast developing field—so fast developing that, we have been told, although the purpose of the Bill is to restore the status quo prevailing before the ECJ judgment, the technical developments in the industry in the mean time require an extension of powers. In the words of the Explanatory Notes, that is to ensure that,

“the definition of ‘telecommunications service’ ensures internet-based services, such as webmail, are included”.

The Explanatory Notes do not use the word “extending” to describe that; they use the word “clarifying”, which I suppose goes to show that one man’s clarification could be another man’s extension.

I am forced to ask myself what other aspects of clarification there are in the Bill on which I hope that my noble friend can reassure me. In particular, I hope that he will dwell briefly on the issues raised by Clause 4, which other noble Lords have raised, which concern extraterritoriality. Noble Lords will have received briefing papers circulated on the Bill which argue that RIPA as it stands has never had any extraterritorial powers. Indeed, your Lordships’ Constitution Committee raised that in paragraph 10 of its report. The Government may have acted as if it has, but the legal base does not exist. If that is the case, this would be another extension, not a clarification. Indeed, as the Constitution Committee pointed out, it emphasises the unfortunate necessity of rushing this through if we are actually extending the law, not merely putting a patch on a puncture.

Then there are questions about the utility of the provision: whether modern encryption and other safeguarding mechanisms render any data collection of little or no value. Perhaps my noble friend will enlighten the House later on whether he has had discussions with service providers on that point.

Finally, there are those who want to be reassured that the provisions of extraterritoriality are a one-way street: that there is nothing in the Bill—mutual recognition implied, or the like—which would enable overseas organisations to reach deeper into the personal information of UK residents.

In the Statement that the Home Secretary made on 10 July, which my noble friend repeated in this House, there was reference to the role of communications data in ensuring convictions. My noble friend said:

“It has played a significant role in the investigation of many of the most serious crimes in recent times, including the Oxford and Rochdale child grooming cases, the murder of Holly Wells and Jessica Chapman and the murder of Rhys Jones”.—[Official Report, 10/7/14; col. 280.]

Those are appalling crimes, and it is excellent that modern techniques have brought perpetrators to justice, but the use of those high-profile cases does not mean that we should suspend or blunt our critical judgment about the proposals before us today.

As a parallel example, my noble friend knows my concerns about certain aspects of the European arrest warrant. Defending the warrant, Ministers always use the high-profile cases of murderers, terrorists and paedophiles who have been speedily returned to justice. That is very good, but less publicity—or no publicity—is given to those cases where the process goes awry and innocent people suffer greatly. I am anxious to explore whether, in passing this legislation, we may be opening similar challenges or difficulties.

One answer to the conundrum given in the briefings is that the legislation refers only to the making of a communication—that is to say, as other noble Lords have said, the when, the where and the with whom—not its content. The Minister and the noble Lord, Lord Paddick, referred to that in their comments. However, as I understand it, this is another area where technological developments are beginning to blur familiar distinctions. The noble Lord, Lord Knight, referred to the term “metadata” as being increasingly used to describe the ability to build upon limited information to create a broader picture. My noble friend Lord King said that he did not have a definition but I do, provided by the invaluable Wikipedia. It says:

“Metadata assists in resource discovery by ‘allowing resources to be found by relevant criteria, identifying resources, bringing similar resources together, distinguishing dissimilar resources, and giving location information’”.

I am concerned that this could—not does but could—take us perilously close to the general mining and profiling of our fellow citizens and, in this regard, it is important to note that the House of Commons Library briefing note provided for the Bill makes it absolutely clear that the use of metadata does not require a warrant from the Secretary of State. With this so-called clarification, the Bill may open up a much greater degree of surveillance of the ordinary citizen than has to date appeared possible.

Given the complex nature of the Bill, it will therefore be vital that the public have confidence in these proposals if they are transparently operated and the Government of the day are frank about them. Those of us who have been involved with the UK’s involvement in rendition have not found it easy to establish such trust with the Government. For years, the previous Administration denied any complicity in rendition but have had to admit that in 2002 two rendition flights landed in Diego Garcia, the British Overseas Territory in the Indian Ocean with a base leased to the US Government. Now we are told that flight records since 2002 are,

“incomplete due to water damage”,

so I fear that the truth will probably never be known.

I share my noble friend Lord King’s concern about the importance of the role of the privacy and civil liberties oversight board. To do its job effectively, its members need the appropriate powers. I understand that there are some terms of reference being circulated; I am afraid that I have not yet seen them. However, these sorts of questions are not just about the terms of reference. They are questions such as: will the members of the board be guaranteed a proper degree of security clearance, and how will it actually operate? Will it be a day a week for senior grandees to glance over the issues and make a few ex-cathedra statements, or will they be expected to get their hands dirty and do the unglamorous but necessary work of ensuring that the proper procedures are followed? Only if the latter approach is followed will the public be reassured that the right balance between security and liberty is being struck.

Twelve years ago, in the spring of 2002, another piece of legislation concerning the Anglo-US extradition treaty was rushed through in response to the terrorist threats, post-9/11. In the event, most of the requests under that agreement have been about financial crime. There is nothing wrong with that but it was not what it said on the tin. Latterly, we have had the bizarre case of Mr Gary McKinnon. He may have been an unusual man but he was no terrorist: his crime was to embarrass the Pentagon by hacking into its computer systems. As my noble friend Lady Browning memorably said, the Pentagon should have hired him rather than seeking to imprison him. As we consider this legislation, we need to bear in mind these sorts of unintended consequences that result from rushed scrutiny.

Immigration Bill

Lord Hodgson of Astley Abbotts Excerpts

Thursday 3rd April 2014 Lords Chamber

[Baroness Benjamin (LD)]

My Lords, I thank my noble friend the Minister for all his consideration, for meeting me and for his informative and constructive letter, which covered Kids Company’s concerns around young people who find themselves with non-immigration status. However, I would like to have put on record clarification around the residential tenancy provision, which is a tremendously important issue for this group and carries several implications for their well-being. Can the Minister confirm that the residential tenancy provisions do not apply in the case of a child with irregular status or any child who is under 18? If the young person, having turned 18, has applied for leave to remain in the UK and while the application is being determined, do the tenancy provisions apply? Finally, is the position the same in the provisions relating to bank accounts, which those young people will need in order to pay their rent?

[Lord Hodgson of Astley Abbotts (Con)]

My Lords, I made clear my support for the Government when I spoke on Amendment 23. Therefore, it will not surprise the House that I have some difficulty with the thinking behind this group of amendments. I shall not repeat my philosophical concerns, but where the matter comes to a sharp point is the position on overstaying and illegal migrants. We need to enforce immigration law. There is public concern about it. If we delay taking action, that public concern will increase and give rise to perhaps nastier people trying to ride that particular issue and gain publicity from it. I am interested in hearing how we minimise delays in moving this part of the legislation forward. When I heard the noble Lord, Lord Rosser, introduce Amendment 25 and how it could lead to a need for further primary legislation, it seemed to me that that could be a means by which the measure could be stopped altogether and the whole proposal would sink with all hands.

To a lesser extent, I have the same problem with the amendment in the name of my noble friend Lady Hamwee, which seems to add another cycle into the consideration of an issue which is very high on the public agenda. If we fail to address it, we will probably regret not having done so. I hope that my noble friend, as he has on other occasions having made concessions, will stick to his guns and make sure that we can move this secondary legislation forward in the very near future.

[The Parliamentary Under-Secretary of State, Home Office (Lord Taylor of Holbeach) (Con)]

My Lords, we have discussed at length and, I hope, to some good ends the important objective of this part of the Bill. I want to restate some of the background for the benefit of the House.

We are seeking in this Bill to control illegal migrant access to the private rented sector, because we have listened carefully to the public’s concern about the need to prevent illegal immigration. That follows on very neatly from the contribution of my noble friend Lord Hodgson of Astley Abbotts. To this end, the Government are committed to remaining firm on border controls, but we can provide a complete response to illegal immigration only if we work in partnership with those offering employment, housing and other services to deny the practical means of remaining to those without permission to stay.

The landlord provisions have been carefully drafted to deliver a scheme which works, which defines the differing responsibilities of landlord, agent and tenant, and which provides clear, robust safeguards for both landlords and vulnerable groups in need of accommodation. The drafting mirrors the existing civil penalty scheme for employers of illegal workers, which we know works well in practice. The proposed opposition amendment would sweep away these carefully constructed clauses and replace them with a pilot provision lacking the necessary detail and clarity.

I understand the desire of noble Lords to ensure that the landlords scheme is “workable” and that the provisions are tested and carefully evaluated. Indeed, it is our intention to adopt a carefully phased approach to implementation and to ensure that we get the guidance and support services absolutely right before considering wider implementation beyond the first phase. As we have made clear, decisions on further implementation will be taken after the general election during the next Parliament. I should make it clear to the noble Lord, Lord Rosser, that we need no further incentive to get this right than to deliver a policy which we consider is important for the control of illegal immigration to this country.

I am grateful to my noble friend Lady Hamwee for tabling her Amendment 24. The Government have given a commitment to a carefully managed, phased implementation of the landlords scheme. The scheme will be implemented initially, as has been said by noble Lords, following on from commitments that I have already made, in a single geographical area, and the Government have committed to a full evaluation of the first phase. Any decisions on a wider rollout will be taken in the light of the evaluation after the general election during the next Parliament.

My noble friend’s amendment is intended to be supportive, and I have considerable sympathy with the objectives behind it—my noble friend seeks reassurance on issues that I know concern her. As the House will know, I have been discussing the landlord provisions with my noble friend Lady Hamwee, the noble Lord, Lord Best, and a number of expert groups, including the Residential Landlords Association, Crisis and the British Property Federation. I completely share their concern that the scheme should be introduced carefully, with the benefit of advice and input from expert groups.

I can therefore inform the House that, following these discussions and in the light of the contributions that noble Lords across the House have made in debates on these provisions, we have decided to convene a formal consultative panel to oversee the operation and evaluation of the first phase. It will be chaired by a Home Office Minister. The panel will be established within the next few months and its full composition will be finalised once a decision has been reached on the location of the initial phase—we need local knowledge to support the group. I have invited the noble Lord, Lord Best, and a number of groups to join the panel. It will also include local representatives from the area covered by the trial. The panel will provide transparency, objectivity and the necessary degree of expert input for the first phase, the location of which will be determined and published before the House rises for the summer.

We expect to announce the location for the first phase at that time and will then indicate the principal proposed themes for the evaluation, leaving it to the panel to lead work on the development of specific evaluation measures and metrics. Of course, there are obvious areas that it would be sensible for any proper valuation to cover, as the noble Baroness, Lady Lister, made clear in her contribution, including the ease with which landlords and tenants can comply with the new checks and access the necessary guidance and support services. I hope that I can reassure the House that one objective of such an evaluation is to eliminate any impact on vulnerable groups or the incidence of unlawful racial discrimination by landlords. The desired objective, which lies at the bottom of the whole policy, is to deny rented accommodation to illegal migrants.

However, Amendment 25, proposed by the noble Lord, Lord Rosser, would remove the framework from primary legislation altogether and place it wholly in secondary legislation, lessening the degree of parliamentary oversight. That simply ignores the fact that the provisions have enjoyed the closest scrutiny in this Parliament. We have, as far as possible, placed details of the proposed scheme in the primary legislation, reserving the use of regulation-making powers only where necessary. The amendment would not provide a clear legal basis to operate new landlord duties, even as a pilot. It provides no mechanism for landlords to object or appeal against a penalty, rendering the new clause incompatible with human rights law. Neither does it provide transparency in the type of tenancy agreement to be exempt from the checking requirement.

The Bill makes those provisions clear in primary legislation, in the interest of providing certainty for vulnerable groups. The Government have worked closely with bodies representing landlords, students, the homeless and vulnerable and provided important safeguards in primary legislation. It would be understandable if they were concerned if those safeguards were no longer enshrined in primary legislation. The noble Lord, Lord Rosser, will know that the negative procedure provides for further scrutiny before any further rollout of the scheme.

The noble Baroness, Lady Lister, asked specifically about lodgers of social tenants. A social tenant who takes a lodger will be a landlord for the purposes of the scheme. The Home Office will work with social landlords to help their tenants understand their obligations.

Immigration Bill

Lord Hodgson of Astley Abbotts Excerpts

Thursday 3rd April 2014 Lords Chamber

[Baroness Warwick of Undercliffe (Lab)]

My Lords, as a co-sponsor of this amendment, I too add my support to the pleas made by the noble Lord, Lord Hannay. There is no need at this point to further persuade the House of the enormous benefits that international students attending our universities bring to their universities, their local areas and the country at large. To focus minds, I will present one fact: it was announced today in a report by Universities UK that the total economic contribution to the UK made by higher education exports in 2011-12 was £10.71 billion. To put that in perspective, the House of Commons Library estimated the economic contribution of the entire motor vehicle manufacturing industry at £10.4 billion. That is the scale of the industry we are discussing today.

I think that the Minister and the Government accept that analysis and generally want to encourage students from across the world to study here, which is to be welcomed. But the Government need to be particularly careful that these welcoming messages are not undermined by changes to the visa system that could be perceived as being unwelcoming towards international students. The survey conducted by the NUS, which was mentioned by the noble Baroness, Lady Williams of Crosby, highlights some worrying trends about the way the immigration system is perceived by the very people the Government want to attract.

Some of the measures in Part 3 have the potential to add to that perception. That is why I and other noble Lords tabled our amendment to remove students from these measures and to send a clear signal to current and potential students that they are welcome in the UK. While the Government are introducing new barriers to potential international students, reassurances overseas that the UK is open for business may ring a little hollow.

I have talked of perception and presentation because these are very real concerns when it comes to attracting international students and staff to the UK. However, there are a number of more practical concerns about the impact these measures could have on both students and staff. I want to follow on from the points made by the noble Lord, Lord Hannay, in introducing the amendment, all of which I support. Since this amendment was debated in Committee, the Minister has gone out of his way to provide detail on some of the measures in this part of the Bill, so I hope he will forgive me if I ask him to repeat and clarify some of these points now.

First, on the checks that landlords will be required to carry out before offering tenancy agreements, we should remember that many students coming to the UK will be moving out of their parents’ home, let alone their own country, for the first time. Assuming that the Minister’s Amendments 26 to 29 are accepted, many international students will live in accommodation that is exempted from the Bill, which is helpful. I am glad that the Government agree that the previous exemption failed to capture many students.

However, some students and, of course, the vast majority of international staff will still be moving into property in the private rental sector which is not exempted by the Bill. It is essential that students are able to secure accommodation in good time before their arrival in the UK. Similarly, academic staff at universities will want to make sure that they and their families have a roof over their head before they move here.

Tier 4 student visas can be applied for only a maximum of three months before the date of travel, so they are often received very close to the date that the student arrives in the UK. Students must be able to make at least conditional arrangements before they receive their visas. Will the Minister clarify that it will be legal and proper for landlords to enter into conditional arrangements with potential tenants who do not at the time of entering into that conditional agreement have a relevant visa and that this will be clearly communicated in any official guidance issued?

Secondly, only those without settlement rights will have to pay the NHS surcharge. Time spent on a tier 4 student visa does not count towards residency requirements for settlement rights. As other noble Lords have said, the Bill could result in the deeply iniquitous situation that an economic migrant who is later granted settlement may have to pay the charge for five years but a student who finds work and stays on here may have to pay for far longer—as long as 12 years in a row—if they studied at both undergraduate and postgraduate level.

With the noble Lord, Lord Hannay, I ask: will the Minister commit to addressing this unfairness when the secondary legislation is drafted? It is easily fixable by, say, limiting to five the number of years for which a person would have to pay the charge. There is provision in the Bill to at least have these charges applied fairly. Will the Minister commit to doing so?

I cannot end without supporting the plea of the noble Baroness, Lady Williams of Crosby, on behalf of postgraduate students. Those with a family are going to be hit really hard by the health charges. One has only to think of the number of our postgraduate courses that survive only because of the number of international students that we are able to attract to see the dangers if large numbers should fall.

I remain concerned that this Bill is part of a wider trend of immigration policy that could mean that the UK fails to capitalise on the extraordinary potential of its higher education sector. Even if the Minister is unable to commit to reversing this trend this afternoon, I hope that he will address at least some of the practical issues that I have highlighted today.

[Lord Hodgson of Astley Abbotts (Con)]

My Lords, I listened with great interest to the debate on this amendment in Committee on 10 March. Unfortunately, I was unable to stay for all of it, although I read it carefully in Hansard, and so was not able to take part, but I would like to make a brief contribution today.

Winding up for the Opposition on that occasion, the noble Lord, Lord Stevenson of Balmacara—that demon of the squash court, as he keeps saying—had some fun at the expense of my noble friend Lord Bourne of Aberystwyth, when he said:

“I congratulate the noble Lord, Lord Bourne, on putting his head above the parapet. Although I think he picked up some of the arguments, I did not think his heart was entirely in it”.—[Official Report, 10/3/14; cols. 1607-08.]

I intend to put my head above the parapet this afternoon, and I have to say that my heart is entirely in it.

Overseas students make an exceptionally valuable contribution that enriches our university life, but as I shall explain, I have concerns about scale, about leakage at the end of courses, and various consequent impacts on our settled population. Further, I think the extent of the beneficial impacts, adduced by various briefings we have had, are somewhat overstated.

I begin by following my noble friend Lady Williams of Crosby in talking about the briefings we have had, some of which have been quite cataclysmic in tone. They suffer, in certain instances, from mixing absolute numbers and percentages. It is perfectly possible to have an increasing absolute number and a declining percentage. Indeed, if one looks at market share, as some of the briefings do, it is almost certain that the UK will have a declining market share in an era when global university education is rising rapidly in parallel with people in the UK wanting to study overseas. In addition, as the UK has a historically high level of overseas students and a relatively small population in world terms, our market share is almost certainly bound to be declining.

More importantly, there have been attempts, in my view, to ascribe all the changes in student numbers to the proposals that we are discussing in this Bill. This is fanciful. There is a host of other reasons that influence people’s decisions on where to study—of those, notably, cost. Indeed, there was an article in the Times yesterday with a headline that suggested changes in the system were deterring students, but when you got into the meat of the article it was actually about cost. The piece mentioned cost only in sterling or Euro terms, failing to take into account the other great part of the cost—changes in the exchange rate. A year ago $1.50 bought you £1; today you need $1.66, so if you are a dollar-based student you are facing an increase of 10% in the costs of studying here in the UK. As regards India, which is an even more important market, as many noble Lords have said, a year ago 83 rupees bought you £1; today you need 100—a 20% increase in costs to a student from India.

--- Later in debate ---

[Lord Hannay of Chiswick]

I am most grateful to the noble Lord for giving way, but I wonder whether he does not find it a trifle ironical that he is speaking from the Benches of a Government who have exhorted the country, correctly in my view, to succeed in what is called the global race, and above all to maximise the industries and services that we produce best. He has developed an extremely elaborate argument for saying that we must embrace declinism in the higher education sector and we must accept that it is not in our interest to go on growing this potentially extremely valuable resource. Is it not a bit contrary to government policy that one industry in this country should be treated as something that can be tripped up and hampered at every stage while all the others are being encouraged to develop?

[Lord Hodgson of Astley Abbotts]

I obviously have not made myself clear. I hope that I have made it clear that I am not attacking foreign students because I think that they have an important role to play. I said that, first, the Government’s proposals are not the key determinant of why people come to study here. The key determinant is the overall cost and, in particular, the cost in the currency of the country of origin of the student in question. Secondly, I question—I do not know—that the long-term economic benefits which have been adduced to having students here are not as great as they might be.

[Lord Winston (Lab)]

The noble Lord has talked about costs. Does he not agree that one of the great advantages of having overseas students in this country is the fact that they bring down the costs for internal students reading medicine and engineering in particular? Otherwise, our universities would have to charge them much more.

[Lord Hodgson of Astley Abbotts]

The noble Lord is right, but if what UK universities are saying is that they want to bring foreign students here to subsidise our university education system, that would be a clearer argument than the rather lofty arguments we hear that our duty is to do this because of our benefit to the world and because it is actually to our long-term advantage. If the noble Lord is saying that it is really all about money in the short term, fine—let us say that and be clear about it. I understand that as an argument and I am perfectly happy to accept its value.

Perhaps I may conclude. I repeat again for the noble Lord, Lord Hannay, that we should attract students to study here, but we need to do so with realistic aims in mind. In our very proper wish to do right by the world, we should not overlook the needs and indeed the rights of our settled population. That is why in my view the Government are right to take these measured steps. They are steps that I believe, and which the noble Lord, Lord Hannay, and the noble Baroness, Lady Williams, have acknowledged, have become more measured as the Government have responded to comments and criticisms as laid out in my noble friend’s letters of 12 March and 1 April. That is why I will be supporting the Government if the noble Lord, Lord Hannay, decides to test the opinion of the House on this amendment.

[Lord Cormack (Con)]

My Lords, I hope that the noble Lord, Lord Hannay, will not feel that he has to test the opinion of the House, but I can imagine that he has been to some degree sorely provoked to do so by the remarks of my noble friend. That is because there did seem to be an inherent contradiction in them. On the one hand he protests—I do not doubt his integrity for half a second—that he wishes to see foreign students come here in great numbers, while on the other he seems to be arguing that we should not push it too far.

I do not want to repeat what I said in Committee when I supported the noble Lord, Lord Hannay, but I will briefly refer to one thing that I touched on then. I have the honour of being a member of the senior common room at St Antony’s College, Oxford. As I told noble Lords last time, we have students from 73 countries there at the moment. It is an extraordinarily important centre for postgraduate education—not just in Oxford, not just in England, but in Europe and, indeed, the world. From all over the world students come. In common with students at other colleges and universities, many of them go back and play leading roles in their countries. Some stay and play leading roles in ours. Where would we be in medical science and many other disciplines if some of them had not stayed? I hate to think how many consultants there would be in some of our hospitals—excellent consultants—if it were not for the fact that foreign students had come here, been taught—no doubt inspirationally—by people such as the noble Lord, Lord Winston, and had stayed. We are protecting ourselves, as well as our image as a nation, if we encourage without inhibition and without qualification.

I was very taken by what the noble Lord, Lord Hannay, said, both in Committee and today, and by what my noble friend Lady Williams of Crosby said. However, I have also been extremely impressed by the diligent interest that my noble friend Lord Taylor has taken in these matters. He clearly listened carefully to the arguments advanced in Committee and has tabled a number of amendments today that will go a fair way towards meeting many of the concerns that were expressed in Committee. I thank him for that, and for the infinite patience and trouble that he has taken in talking to me and others, and in trying to recognise where we are coming from.

A word that cropped up many times in our first debate was “perception”, and it has been touched on again today. How are we perceived? Where I take slight issue, not with my noble friend Lady Williams of Crosby but with the National Union of Students’ report from which she quoted, is that my anecdotal evidence from St Antony’s, Hull, Lincoln and other universities with which I have a connection would not bear that out. Most of the foreign students to whom I have talked have always said that they feel extremely welcome here—and proud to be here. They are anxious to stay to complete their studies, and most of them are anxious to return to play a leading part in their countries or localities when they go back. The National Union of Students’ statistics, which of course I am not in a position to challenge, clearly depend upon the questions that were asked. I just wonder what questions were asked.

However, I am concerned not with the past or the present so much as the future. It is clear from the article from which my noble friend Lord Hodgson quoted, and from other reports in recent months, that there is a falling off in the number of students coming from certain countries. Of course my noble friend Lord Hodgson is entirely right to say that there are a variety of causes and reasons for this. Of course he is right to say that cost is a factor, but it is not by any means the only factor. What we have to be absolutely sure of is that students coming, or contemplating coming, from other countries still keep the United Kingdom very much at the top of their wish list. From talking to Professor Margaret MacMillan, the Warden of St Antony’s, who herself is a distinguished Canadian historian, it is clear that Canada and the USA are more attractive to many students who would hitherto have put the United Kingdom at the top of their list. I am concerned about that.

I very much hope that when the Bill becomes an Act of Parliament, as of course it will, we will have been able to inject amendments into it that will make it very clear that, in seeking to tighten up our immigration policy, we are not in any way setting our face against students. The Prime Minister himself has said on many occasions that foreign students are welcome here without any cap on numbers. I welcome that. I am sure there is not a single Member of your Lordships’ House who does not welcome that. But it is important that we prove that that is what we mean by the contents of the legislation that we pass.

I look forward very much to what my noble friend the Minister will say when he replies. I hope and believe that he will be able to give the sort of assurances that the noble Lord, Lord Hannay, sought in his speech. I hope that the House will be united in backing his amendment, secure in the knowledge that, supplemented by future regulations, the situation will be as we would wish it to be: namely, that any potential student, be he or she in India, any part of the African continent or anywhere else for that matter, will feel that not only are the doors indeed open but that the “Welcome” sign is above them.

--- Later in debate ---

[Lord Hannay of Chiswick]

My Lords, I thank all noble Lords who in Committee and on Report supported the amendments put down in my name and those of the noble Baronesses, Lady Williams and Lady Warwick, and the noble Lord, Lord Tugendhat, whose absence today is entirely due to being in Athens on the business of the House.

I have drawn enormous comfort and support from the way in which each of the debates we have held has been lengthy, thoughtful and devoted entirely to the matter in hand. I contrast that with the fact that the other place, when it took this legislation, never actually got around to talking about students or higher education at all because they were so busy chasing Romanians and Bulgarians around the Chamber. That is perhaps a tribute to the way in which your Lordships’ House conducts its business. We do not miss out really important issues like that of students.

I have a brief comment—or perhaps two—on the contribution of the noble Lord, Lord Hodgson. He raised the question of whether universities were aware and made enough of the fact that foreign students help them subsidise domestic students. All I can tell him is that if he talks to anyone in the higher education sector, of course they all know that perfectly well. They know that a number of courses, particularly STEM courses, would simply not be maintainable without overseas student enrolment. However, the noble Lord will recognise that if we are trying to recruit overseas students, this is not a major sales point. It is not terribly wise to go around the world saying, “You may think your fees are a bit on the high side—but don’t worry, they are going to support British students”. I hope he will understand that one has to treat that with a certain amount of care.

Of course, the noble Lord is right about the exchange rate having extreme importance. I can only offer him the advice that Miss Prism offers Cecily in “The Importance of Being Earnest”:

“The chapter on the Fall of the Rupee you may omit. It is somewhat too sensational”.

[Lord Hodgson of Astley Abbotts]

I understand exactly what the noble Lord says, and I understand about the sales pitch. I assure the noble Lord, Lord Stevenson, that I am not going to make another Second Reading speech, but we in this House have got ourselves into a position where we are talking about what the Government are saying about visas and about “curbs”: that was the word used. In fact, what it comes down to when you read the detail is that the checks and balances that the Government are proposing to ensure that there is some recovery of costs are not the key issue. The key issue is the overall cost of the education, particularly in the currency of the country from which the student comes.

[Lord Hannay of Chiswick]

Well, I think Miss Prism probably had it about right.

Having considered the possibilities, I was struck by the fact that all three Front Benches are opposed to the amendment. The Official Opposition’s description of the reasons for which they were opposed to it holds about as much water as a colander; but let us leave that to one side.

I thank the Minister for his extremely considerate response, for the work he has done in the past few weeks, particularly on the issue of student accommodation, to try to meet some of the concerns that have been expressed, and for the very clear way in which he has replied to questions I and the noble Baronesses, Lady Warwick, Lady Williams and Lady Hamwee, raised in today’s debate. I found some that of the things that he said really helpful. They are on the record and that is very valuable indeed.

Before closing, I will make one point that is outside the scope of this debate. Within the next year, all three main parties are going to write their manifestos for the next election. It would not surprise anyone, I imagine, that there will be a substantial section on immigration in every one of those manifestos, because it is a burning issue of the hour. I make a plea that when they write these manifesto chapters on immigration, they make it quite clear that in the next Parliament they will not treat overseas students as normal economic migrants in terms of the Government’s immigration policy: that they will reflect and that they will respect the specificity of the higher education sector. Frankly, I do not think that they will lose a single vote if they say that, but they will save themselves an awful lot of trouble in the next Parliament. I hope that that plea will be heard and, in any case, I beg leave to withdraw the amendment.

Immigration Bill

Lord Hodgson of Astley Abbotts Excerpts

Monday 10th February 2014 Lords Chamber

[Lord Hodgson of Astley Abbotts (Con)]

My Lords, it is always a pleasure to follow my noble friend Lord Teverson. His combative style shows that his pillaging instincts, at least in a verbal sense, have not been forgotten, and I will come back to some of his comments in a moment.

The majority of the speeches we have had and the briefings we have received on the Bill have focused on two aspects: first, the risk that the Bill poses to the economic advantages that this country is said to enjoy as a result of immigration and, secondly, that the proposed tightening-up of the country’s immigration procedures represents an undue restriction on what my noble friend on the Front Bench called in his opening remarks “access to justice”. Those are serious charges, to which I wish to return in a few minutes.

At the outset, however, I may disappoint the noble Lords, Lord Patel and Lord Winston, because I want in this Second Reading debate to declare my support for what the Government are proposing today. For those of us engaged in the political process, there are few policies which our fellow citizens regard as being as counterintuitive, if not downright illogical, than those surrounding immigration rules and procedures. The regulars in the saloon bar of the Dog and Duck find it hard to understand how people who have come here illegally, and who may have committed crimes or enjoyed access to our non-contributory health and social services, seem to be able to avoid removal for an inordinate length of time. I am not suggesting that the only way to access political wisdom is via the saloon bar of the Dog and Duck but the regulars have a point. If we are not to be seen as being out of touch we need to address those concerns to maintain public confidence, as my noble friend also said his opening remarks. The Bill at least addresses some of those concerns and that is why I support it. I quite agree that there are issues and details that we shall need to explore and discuss in Committee but the Government are broadly on the right track.

I referred a moment ago to the question of access to justice. I attach great importance to that. Members of your Lordships’ House may be aware that I am a trustee of Fair Trials International and that I was extremely critical of the Government’s proposals to reduce the time in which an appeal can be made against a European arrest warrant from 14 days to seven days. That proposal formed part of the Anti-social Behaviour, Crime and Policing Bill which your Lordships’ House has just finished considering. My noble friend on the Front Bench felt the full force of my disappointment, which continues as he was not prepared to shift the Government’s position. The noble Lord, Lord Rosser, may be smiling but it was also pretty disappointing that noble Lords opposite would not support that either. When I hear them talking about how important it is to get these procedures right, the question worth bearing in mind is whether you are going to talk the talk or walk the walk. But—and this is an important but—I had to recognise that in the case of European arrest warrants, at least, there was a substantial proportion of unmeritorious appeals, which clogged up the system at considerable expense. I expect and fear that the immigration appeal process has similar characteristics and is therefore in need of streamlining. Therefore, while access to justice is very important, it is not a card that trumps all others. There are balancing issues of fairness to other law-abiding members of society and of the appropriate use of scarce resources in our health and social services. Finally, there are balancing issues of the interests of the long-suffering British taxpayer who foots the bill. No doubt we shall examine these balances in detail in Committee.

In the rest of my remarks, I want to set these proposals in the wider issue of the economic advantage that many claim the country enjoys from immigration. Here, I want to follow some of the themes that my noble friend Lord King of Bridgwater was developing in his interesting remarks earlier. I do so in the context of immigration as a whole. I recognise that the Bill seeks to address only immigration from outside the EU but, in this Second Reading debate, we should step back and look at the jigsaw as a whole—not just the piece that the Bill represents. I argue strongly that to consider immigration only as regards economic activity is to adopt too narrow a prism. We need to consider also the impacts of immigration on other issues, such as quality of life and social cohesion.

I should make it clear at the beginning—my noble friend Lady Hamwee made this point—that, lest my remarks should be misinterpreted, when I talk about the native population I am talking about the native population irrespective of race, colour or creed. The basic facts may be simply stated. The population of this country is going up by 1,100 people a day—a large village or a small town every week. Our population, which is currently 63 million, is estimated to reach 70 million by 2025. That is an increase of 7 million, or 14 cities the size of Manchester. “No worries”, say many people, “Only 5% of Britain is built upon”. It is probably about 12% of England but it is a small proportion, they say. However, the population is not evenly spread. England has now overtaken the Netherlands as the most densely populated country in Europe. Furthermore, the UK is expected to have the largest European population by about 2030, having by then overtaken Germany. Let us think about the position of the south of England when a goodly proportion of those 14 Manchesters come to be built, as I expect that they will be, south of a line from Bristol to the Wash. To suggest that there are no consequent quality-of-life issues is fanciful. The heated public debates that we are having about building on the green belt, expanding Heathrow Airport and the construction of HS2 are the first outriders of what will be increasingly challenging public policy issues.

There is also the issue of social cohesion, referred to by my noble friend in his opening remarks and by the right reverend Prelate the Bishop of Leicester in his interesting contribution. If the default option is to encourage immigration, we run the risk of crowding out our native born. Crowding out can take many forms. If we consider football’s Premier League, an undeniably successful British activity that earns this country millions, we should also consider how few British players play in the Premier League. Does it matter that 200 or 300 young British males are unable to realise their dreams? In the grand scheme of things, it probably does not, although it matters rather more if you are one of the 200 or 300. It matters particularly to the black minority community, who proportionately provide a large number of those who play football at the highest level.

Universities UK may be briefing us, and undoubtedly has briefed us, about the impact of these proposals, but I hope it has read the report on higher education, published in October 2012, that drew attention to the increasing shortage of home-grown postgraduate students as a result of the increasing number of people coming from overseas to pursue postgraduate education here. Below those two quite small, perhaps rather atypical, examples are thousands of our fellow countrymen who may find their aspirations and ambitions if not shattered at least limited. We risk creating or perhaps reinforcing a sullen, discontented underclass—and especially where that underclass is a minority group, we risk creating an atmosphere in which extremism may flourish.

On Thursday 6 February, in the Moses Room, the noble Lord, Lord McFall of Alcluith, who is not in his place, initiated a debate on social mobility. The speeches focused, unsurprisingly, on what can be done to hasten the “up” escalator. But the darker side of social mobility, about which we prefer not to talk, is the “down” escalator. This one carries people who for a wide variety of reasons have found themselves disadvantaged. While the “down” escalator can apply to individuals, it can apply to countries too. The noble Lord, Lord Griffiths of Burry Port, talked about the impact of the “down” escalator in that we are perhaps attracting to this country skilled people who can help to stabilise less advantaged, underdeveloped failing states. Although we may benefit from that in the short run, in the long run we may be creating a yet more dangerous world.

Finally, there is the argument that we need immigration to look after our ageing population. The noble Lord, Lord Teverson, and I have discussed this issue in the past. If we follow such a course we will be, in the famous words of Sir David Attenborough, engaging in a gigantic Ponzi population scheme. For today’s young people become tomorrow’s old people. I should like to share some figures with the House. In 2003 the dependency ratio of workers to pensioners was 3.7 to 1—3.7 workers to each pensioner. We know that in 2050 there will be 17.1 million pensioners. If we maintain the ratio we will need 63.4 million workers. Yet on the same projection we know that we will have only 36 million. That is a gap of 27 million. That means that we would need a population not of 70 million, but of 100 million, which is 50% above our present level. These 100 million would in due course become pensioners, requiring still more people to look after them. These are not the remarks of a little Englander determined to pull up the drawbridge.

[Lord Avebury]

My Lords, does the noble Lord’s arithmetic take into account the fact that the pension age will be increasing during this period?

[Lord Hodgson of Astley Abbotts]

The noble Lord, Lord Avebury, is right. We could certainly change the ratio by increasing the pension age, but it would not remove the problem. It might obviate it: it might not be 27 million; it might be 20 million. But I accept that a change in the pension age will make a difference.

No one with any knowledge of the history of our country can be unaware of the vital contribution that new arrivals have made to its life: its vitality, diversity and dynamism. However, given the UK’s, and particularly England’s, geographical constraints, which do not exist in the same way for the United States, a country that is often used as an example for us to follow as regards immigration, we are approaching a point at which we must begin a balanced, calm debate about the interaction of size of population with economic advantage, quality of life and social cohesion. The Bill before us today is a first small step in the process to ensure that in principle those who come here legally make a reasonable contribution to our society while those who are here illegally are speedily removed. That is why the Bill has my support.

Anti-social Behaviour, Crime and Policing Bill

Lord Hodgson of Astley Abbotts Excerpts

Monday 20th January 2014 Lords Chamber

Moved by

[Lord Hodgson of Astley Abbotts]

94DA: Clause 148, page 112, line 36, leave out paragraphs (a) and (b)

[Lord Hodgson of Astley Abbotts (Con)]

My Lords, I will speak at the same time to Amendments 94DB to 94DF inclusive. These are all connected to Part 12 of the Bill concerning extradition.

I will briefly summarise what appears to be a slightly technical and arid set of amendments, but which would nevertheless have a very significant impact. They would restore to individuals arrested under an extradition warrant the automatic right of appeal which currently exists—an automatic right which the Government are proposing to remove under the terms of this Bill. Let me make it absolutely clear that these amendments do not somehow let individuals off the hook who are arrested under an extradition warrant. They merely preserve the right that those individuals enjoy at present. Noble Lords will probably be aware from the briefings they have received that these amendments are supported inter alia by Fair Trials International, of which I need to remind the House that I am a trustee, by Liberty and by Justice.

I will now set that summary in context. First, my particular concern is the impact of the Government’s proposal on those arrested under what is known as a Part 1 warrant—more familiarly, the European arrest warrant—because of the very short timetable of EAW proceedings. Secondly, I want to make it clear that this is not an attack on the EAW generally. The EAW has enabled many very nasty criminals—terrorists and the like—to be speedily brought back or sent back to face justice. That is as it should be. Thirdly, and quite understandably, this Government—and, indeed, the previous Government—focus on these very high-profile cases, but the vast majority of cases do not involve matters of high importance.

In the last year for which records are available, there were 1,438 arrests under the EAW and 1,057 surrenders. For the most part, these involve ordinary members of the public for whom this will be an entirely strange and unfamiliar process and one which they are not well equipped to challenge. Some of them will have been arrested for crimes which they did not commit. Therefore, it is on behalf of these people—Edmund Burke’s “little platoons”—that I have tabled these amendments and ask for the House’s support today.

I shall be fair to the Government and my noble friend on the Front Bench. The Government asked Sir Scott Baker to review the operation of this country’s extradition arrangements and they have implemented a great many of his recommendations. Further, as part of the Lisbon opt-out, opt-back-in procedure, the Government have indicated a number of further changes. For example, they expect much less use in future of the EAW for trivial crimes and that greater efforts will be made to ensure that cases are trial-ready before the surrendering of individuals takes place. Those are indeed welcome changes and I congratulate the Government on making them. However, while increasing these protections, the Government are proposing to remove one great protection—that of the automatic right of appeal.

I hope that the House will forgive me if I remind noble Lords of two particular aspects. The first, as regards the EAW, is just how compressed the process of surrender is. An arrest will be followed by a court hearing at Westminster magistrates’ court within 48 hours. The accused will be represented by a duty solicitor who may or may not know anything about extradition. Edward Grange, a specialist extradition solicitor, has explained:

“At present there are over 400 individual solicitors signed up to the extradition rota at Westminster Magistrates’ Court. The majority of individual solicitors have never had conduct of an extradition case before and yet these are the solicitors that are entrusted to provide appropriate advice and assistance to those arrested on extradition warrants. The Extradition Act 2003 is complex and the case law it has generated is vast”.

A further hearing after that initial hearing will follow within 21 days, so that in as little as 35 days a person can be on his way to another jurisdiction, many of which will be operating with entirely unfamiliar procedures and conducted in a language which the accused probably does not understand at all.

Further, it is worth while remembering that, if the person wishes to appeal, he has in any case to make that appeal within seven days. I ask noble Lords to imagine the case of an unsophisticated person remanded in prison. His first legal representative, it turns out, knows nothing about extradition, so he has to make a change. He has to gather evidence, probably from at least two jurisdictions, perhaps involving many people, and put all that together into a case, and he has to do so within seven days while he is confined to prison. So much for the specifics of the compression of the EAW procedure.

The second point is the catastrophic impact that extradition can have on an individual—on his family, on his home, on his employment and indeed on his whole life. I shall not weary the House today with quotations from people who have been involved in these cases, but the stories of how people’s lives have been turned upside down by mis-arrests and an inability to get the appropriate advice and help are truly horrifying. The step of a state arresting one of its own citizens and handing him or her over to another state to try is a very fundamental one. It needs to have a proper level of safeguards. That is why I have tabled these amendments today and why I think they are so important.

If I could look over the shoulder of my noble friend on the Front Bench and glance at his speaking notes, what do I think I would see there as the Government’s wish behind the policy of removing the automatic right of appeal? I think the first thing would be that they were doing so because Sir Scott Baker recommended its abolition due to what he saw as a large number of unmeritorious appeals. However, the world has moved on since Sit Scott Baker undertook his review. First, the safeguards introduced by the Government, as I referred to earlier, through their amendments to the 2003 Act will now give weight to arguments which may previously have been deemed to be without merit due to the lack of a legislative basis. Therefore, it is likely that these reforms will reduce the number of unmeritorious appeals reaching the High Court. Further, the Government have introduced a requirement in Clause 145 of this Bill for the National Crime Agency to review extradition requests and sift out cases where it is clear that a judge would be required to order a person’s discharge on the basis that extradition would be disproportionate. Taken together, those steps will certainly mean a substantial reduction in the number of EAW cases.

It is important to remember that, while Sir Scott Baker recommended that the automatic right of appeal should be removed, as a compensating factor he also recommended that the time in which an appeal could be launched should increase from seven to 14 days to match the period that exists for a Part 2 warrant. I tabled an amendment to that effect in Committee. Subsequent to that, and after discussions with my noble friend on the Front Bench, I reflected and concluded that the longer the appeal period, the more the well resourced “nasty” case could take advantage of these delays to frustrate the underlying purpose of the EAW. Therefore, I have not retabled that amendment, which we discussed in Committee on 11 December. Instead, I argue for the preservation of the status quo as regards appeal. I shall not try to pretend to the House that I understand the details of how the appeal process works but the groups with which I have consulted over this matter understand the details and have written to me to say:

“Our review of the judgments of the High Court in extradition appeals … demonstrates that judges are able to dispose of appeals based on weak arguments in an efficient manner which prevents significant court time from being spent on unsuccessful appeals”.

In conclusion, while I congratulate the Government on the changes and improvements they have made, I express sorrow and regret at their apparent determination to remove this important protection. I am convinced that British judges are quite capable of sorting the wheat from the chaff in appeal cases. Preserving the automatic right of appeal will undoubtedly help ordinary people inadvertently caught up in the machinations of the EAW. I believe that it is in the interests of justice that the automatic right of appeal should therefore be maintained. I beg to move.

[Baroness Hamwee]

My Lords, things can go wrong in the best of organisations and the most learned and expert of professions. To me, the right of appeal is fundamental and I support the noble Lord.

--- Later in debate ---

[Lord Hodgson of Astley Abbotts]

As ever, my noble friend is very courteous and extensive in his reply. I thank those who have spoken in support. The noble and learned Lord, Lord Hope of Craighead, made the point perfectly about the practicalities of doing something when you are in prison and doing so in a very limited timescale.

My noble friend, this evening and in our earlier discussions, placed great stress on the use of the word “reasonably”, and it is neither for me nor for various Members of the House to know how the judges will interpret “reasonably” when they come to consider this. I am sure the noble and learned Lord will have some views on that, but I will not take it any further tonight.

I thank my noble friend Lady Hamwee and the noble Baroness, Lady Smith of Basildon. I think the noble Baroness put her finger on it; we are in a changed situation now, and with great respect to my noble friend, he did tend to fall back on the clogging up argument. The reality is that the clogging up argument is yesterday’s argument. The Government have made some terrific changes, which I freely admit are going to make a great difference. It would be helpful if he could at some point let the House know the Home Office estimate of the impact of the new safeguards in reducing the number of EAWs to be issued and also, as the noble Baroness said, of the similar impact of the proportionality test that is going to be carried out the National Crime Agency, because I suspect that within the Home Office the number of EAWs will be reduced and therefore the number of unmeritorious appeals will be reduced greatly.

I conclude by saying that it is easy to think this is all very dry and dusty—but when you hear what people go through, it is not. Mr Andrew Symeou, speaking to the Home Affairs Committee last September, two years after he had been returned after a prolonged time held overseas, said:

“I have stories that you could not imagine. To be the youngest person in a foreign maximum security prison was traumatic. It changed my life in ways that I never thought it could. Even to this day I don’t feel like myself anymore. It should never have happened. I have lost too many years. All my friends are in full time employment and I am still trying to settle back into my life. I was a 19-year old student. I had never been in trouble with the law before. To show a British court this overwhelming evidence of my innocence and then to be extradited is crazy. I think it is quite simple: just don’t extradite people who are able to prove their innocence”.

It is on behalf of people like him that I am raising this issue tonight, but I do not intend to take it any further at this stage. I hope that my noble friend can give us some further and better particulars about the impact of the changes the Government are making. In the mean time I beg leave to withdraw the amendment.

Amendment 94DA withdrawn.

Anti-social Behaviour, Crime and Policing Bill

Lord Hodgson of Astley Abbotts Excerpts

Wednesday 11th December 2013 Lords Chamber

Moved by

[Lord Hodgson of Astley Abbotts]

65: Clause 137, page 104, line 20, leave out “prosecution decision” and insert “decision to try”

[Lord Hodgson of Astley Abbotts (Con)]

My Lords, in moving Amendment 65, I will speak at the same time to Amendments 66 to 75. With this group, we come to Part 12 of the Bill, which is concerned with extradition. As this is the first time I have spoken at this stage of the Bill, I need to remind the Committee of my interest as a trustee of Fair Trials International. I am very grateful to that organisation for many of the real-life examples that underlie the amendments that I shall move to this part of the Bill in the next hour or so. I also acknowledge the help that I have had from Justice and several other interested parties.

--- Later in debate ---

[Lord Hodgson of Astley Abbotts]

I am grateful to my noble friend for that full and very considered response. We are, of course, going around the track for the first time today and I have some difficulty understanding the conflation of prosecution charge and try and the interpretation of Clause 137 in which I think he said—I hope I have quoted him right—that the judge can consider any external factor. Certainly the advice I have received is that that is far from the case, that the judge’s hands remain very carefully circumscribed and tied and that the judge would not have the width and breadth of discretion that my noble friend’s remarks suggested. It would be helpful if one could read in some detail what he had to say, as it is obviously highly complicated and technical, and then see whether expert external advice believes that the extraordinarily plausible answer he gave actually holds up when we come to discuss it further. I beg leave to withdraw.

Amendment 65 withdrawn.

--- Later in debate ---

Moved by

[Lord Hodgson of Astley Abbotts]

76: Clause 138, page 105, line 23, leave out from “proportionality” to end of line 24

[Lord Hodgson of Astley Abbotts]

My Lords, I will speak also to Amendment 78. These amendments expand the issues a judge can consider in testing the proportionality of a European arrest warrant. Amendment 76 deletes the words,

“but the judge must not take any other matters into account”.

Amendment 78 extends judicial discretion as regards proportionality by a list of factors, including the cost of extradition, the consequences of extradition for the suspect and the public interest aspect.

Under the Bill, the judge must have regard to the specified matters relating to proportionality so far as he or she thinks it appropriate to do so, but must not take other matters into account. Thus, the judge is limited to the three specified matters but has discretion to ignore them. As a starting point, I would like the Government to justify why a judge should be able to ignore factors that will always be germane to the issue of proportionality. If an offence is serious, extradition is more likely to be proportionate but that does not mean that the proportionality test has no place in serious crimes. Amendment 76 therefore removes the discretion to ignore relevant factors.

Under the proposed test, the judge can take into account just three factors but it is unclear how they are supposed to relate to each other. In any case, the current list of specified matters does not allow a useful proportionality analysis. As drafted, the judge would be able to take into account the seriousness of the offence and the anticipated sentence, but since regard cannot be had to any other matter, the judge cannot balance these against the relevant considerations. For example, it is difficult to see how the judge can decide whether a less serious offence would make extradition disproportionate if the judge cannot also take into account the implication of extradition in terms of the human impact or, indeed, the costs for the UK taxpayer. The financial costs of extradition are high. The Government estimate that the execution of each EAW costs on average £20,000. In addition, the human impact of extradition can extremely severe. Recent cases under Article 8 of the ECHR have shown that the extradition of single parents can drastically disrupt the development of their children. There was the judgment of Lady Hale in HH v Deputy Prosecutor of the Italian Republic in 2012.

Recognising the need for proportionality checks on the operation of the EAW, the European Commission recognised that the issue was with,

“very minor offences which do not justify the measures and cooperation which execution of an EAW involves”,

and that there is a,

“disproportionate effect on the liberty and freedom of requested persons”,

when the EAW is used in such cases.

The point of a proportionality test should be to determine whether, on a case-by-case basis, the human and material costs are justified. Indeed, the Council of the European Union’s handbook on how to issue an EAW is 125 pages long and explains that,

“considering the severe consequences of the execution of an EAW with regard to restrictions on physical freedom and the free movement of the requested person, the competent authorities should, before deciding to issue a warrant consider proportionality by assessing a number of important factors. In particular these will include an assessment of the seriousness of the offence, the possibility of the suspect being detained, and the likely penalty imposed if the person sought is found guilty of the alleged offence”.

The Bill excludes a balancing exercise that takes into account all these relevant factors.

These amendments therefore provide the judge with sufficient discretion to consider these key factors and others, including the passage of time, since prolonged delays in prosecuting an offence and issuing an EAW may provide evidence of its very low level of seriousness, and the public interest in extradition, since this will vary in line with the seriousness of the offence. Other factors might include, for instance, the person’s conduct, in particular, whether they absconded in order to evade prosecution or left the issuing state unaware that they were being pursued.

I recognise that this will call for a case-by-case test and a fact-sensitive assessment. However, this need not affect the length or complexity of EAW proceedings. An issue raised in relation to human impact would in any event have to be considered under Article 8 of the ECHR. Under the operation envisaged by these amendments, the factors considered under Article 8 of the ECHR will be considered as part of the statutory proportionality test but alongside the cost of extradition to the United Kingdom and having greater regard to the seriousness of the extradition offence. Indeed, under the Government’s proposal, it can be argued that there will often have to be two separate proportionality analyses—one under the statutory test, excluding anything to do with family life, and another under Article 8 of the ECHR, potentially resulting in confusion and complication. Unifying the two tests, as would be achieved by these amendments, would, if anything, simplifying proceedings. I beg to move.

[Lord Faulks]

My Lords, Clause 138, “Proportionality”, will not be an easy one for a judge to interpret, as my noble friend has outlined. The question of proportionality under the Human Rights Act 1998 is one matter and then there is the statutory proportionality, which apparently is to be restricted to certain specific matters mentioned in subsections (2) and (3) of the new Section 21A that Clause 138 inserts into the Extradition Act 2003. I respectfully ask the Minister to explain why it is so necessary to distinguish between the two types of proportionality. Proportionality is a fundamental principle in EU law and, in particular, under the Human Rights Act. I suggest there is scope for confusion and therefore possible litigation if a judge misdirects himself or herself in applying proportionality in one sense and not in another.

[Lord Taylor of Holbeach]

My Lords, as my noble friend Lord Faulks has just said, Clause 138 is dedicated to addressing this issue and bringing the fundamental concept of proportionality into extradition matters. Much of what my noble friend Lord Hodgson of Astley Abbots proposes has already been included within the Extradition Act 2003, as it will be amended by the Bill.

It is important to recognise that the judge will consider proportionality in addition to the existing bars to extradition, such as the passage of time and human rights considerations, including any impact on family and private life. Consequently, new paragraphs (d) and (e) as provided for in Amendment 78, which seek to merge these existing considerations into the proportionality bar, are unnecessary and would have little practical impact.

Turning to the proposed new paragraphs (f) and (g), which relate to the cost of proceedings in the UK and the duration and cost of proceedings in the issuing state, I do not believe that those considerations are relevant. The proportionality bar is designed to provide additional protection to those whose extradition is sought. It is appropriate that the matters concerned should relate to the alleged crime and the potential impact on the person concerned. Of course, costs are an issue for us all, and that is why the totality of our proposals is designed to improve the workings of the Extradition Act, including reducing unnecessary delays. However, costs to the UK arising from the extradition process should not mean a denial of justice where it is right that a person is extradited. On new paragraph (g), the costs and the duration of proceedings in the issuing state are a matter for the issuing state.

New paragraph (h) would require a consideration of the public interest. That is implicit in any consideration of extradition by the courts, which look at a range of factors alongside the proportionality bar. Taken together, the statutory bars to extradition provide a broad public interest test, so it is not necessary to include a separate test here in the Bill.

Finally, new paragraph (i), which refers to other matters that the judge believes relevant, is too open-ended and leaves too many issues that could be considered. It could lead to duplication and potential delay as a result of proportionality considerations overlapping with other considerations. My noble friend Lord Faulks talked about the complexity of these issues and the opportunity that he believed the provisions give for judicial consideration, deliberation and challenges. I think that the proposals in the amendment would complicate the matter further. I must emphasise that the proportionality bar is one among a number which must be considered already, not least whether extradition would be compatible with the requested person’s human rights.

Let me assure my noble friend that, in addition to the provisions in Clause 138, we will also take a more pragmatic approach to our administrative processes when an EAW is received. This will ensure that the most trivial requests are identified and, where appropriate, dealt with administratively before even getting to the courts. The aim will be to work practically with other member states to identify alternative solutions for trivial requests.

My noble friend Lord Faulks asked: why not merge proportionality and human rights? The proportionality bar deals specifically with the proportionality of extradition as a way to deal with the conduct alleged. Proportionality is indeed a factor when considering interferences with various rights under the ECHR, but it is considered when examining the specific rights one at a time. Our bar adds to that, but deals with the wider issue of human rights within the EAW.

I hope that both my noble friends are happy with the reassurances that I have given them and that my noble friend Lord Hodgson of Astley Abbots will be content to withdraw his amendment.

[Lord Hodgson of Astley Abbotts]

I am grateful to my noble friend. He rightly chided me about the list of matters in Amendment 78 and the wide-ranging nature of my proposed new paragraph (i), which would insert the text,

“any other matter which the judge considers relevant”.

Although I entirely accept that, I do not understand why three matters are chosen in subsection (3) and why a judge must not take any other matters into account. That seems to me to be erring on the other side of the argument. I hope that he will forgive me if I say that, when I hear Ministers say, “We should be pragmatic about this”, it does not reassure me, because in this area, where we are dealing with people’s liberty and livelihoods, pragmatism can go awry.

[Lord Taylor of Holbeach]

I understand the complexity of the issues that my noble friend is attempting to address in the amendments. If he feels it helpful for me to write a fuller explanation than I am able to give the Committee today, I would be very happy to do so. It may be easier if I do that; I hope that my noble friend will accept that.

[Lord Hodgson of Astley Abbotts]

Of course I would be delighted to receive a letter from my noble friend. That would also enable me to reflect fully on what has been said, take expert advice on the technical matters which we are discussing this evening and decide whether to take the matter further. In the mean time, I beg leave to withdraw the amendment.

Amendment 76 withdrawn.

Moved by

[Lord Hodgson of Astley Abbotts]

77: Clause 138, page 105, line 30, leave out “possibility of the relevant foreign authorities taking” and insert “availability, to the relevant foreign authorities, of”

[Lord Hodgson of Astley Abbotts]

My Lords, in moving Amendment 77, I shall also speak to Amendments 79, 80, 81 and 87. This set of amendments keeps us in the area we have just been talking about: one of the three specified matters. The amendments emphasise the importance of less coercive, less disruptive measures than a full European arrest warrant. Where a state issuing an EAW refuses to use them, the judge could take that refusal into account before granting an EAW.

New subsection (3)(c), which sets out the third of the three matters we have just been discussing, currently reads,

“the possibility of the relevant foreign authorities taking measures that would be less coercive”.

Amendment 77 replaces “possibility of”—a pretty low test, in my view—with “availability of”. Amendments 80 and 81 are essentially consequential.

The assumption underlying the provision relating to less coercive measures is that the severely restrictive measure of extradition, involving deprivation of liberty and the physical transport of a person away from home and family, should be used only as a last resort. The issuing state should therefore use that mechanism only when other, less restrictive measures are unavailable. If other such measures are available—for instance, because of the existence of mutual legal assistance mechanisms or, once it is negotiated, the European investigation order—extradition should be refused if they have not been used. The reference to the possibility of using such alternative measures may result in an issuing state avoiding their use due to a lack of resources and/or bureaucratic difficulties in liaison between the competent authorities of the issuing state and the judicial authority that issued the EAW.

I argue that, although the EAW system provides for extradition between judicial authorities, the physical transfer of a person under an EAW is still a process between two EU member states which are, as a whole, bound to observe the principle of proportionality. All their authorities, such as ministries of justice or the interior—where these are responsible for mutual legal assistance requests—should, therefore, be jointly expected to search for alternative solutions before choosing the heavy-handed option of extradition. Accordingly, if an alternative is available, under bilateral or multilateral arrangements between member states, this should be used before the EAW.

Amendment 79 would ensure that, if there are alternative mechanisms available to the issuing state, its failure to use them will always result in the refusal of the EAW, irrespective of the gravity of the offence or any other matter. The inclusion of the less coercive measures test appears to rest on the assumption that the step of issuing an EAW—which involves deprivation of liberty and serious human impact—should be taken as a last resort. The responsibility is on the issuing state to use less coercive measures if these are available. In the handbook on how to issue an EAW, to which I referred, the section on proportionality encourages the authority considering an EAW to use alternatives, including mutual legal assistance, videoconferencing or a summons. The logic that less restrictive alternatives should be used before issuing an EAW applies regardless of the seriousness of the allegation in question. The amendment therefore ensures that extradition is always considered disproportionate if other measures are available.

The case of Andrew Symeou demonstrates the need for it to be made clear that alternatives should be used in preference to the EAW, irrespective of the offence at issue. The Greek police and prosecution authorities could have made use of mutual legal assistance; for instance by asking UK authorities to obtain evidence from the witnesses who had allegedly incriminated Andrew. These witnesses would have been able to explain that they had been subject to police brutality and did not stand by their earlier evidence, which had been taken under pressure and without the assistance of an interpreter. Instead, the Greek authorities opted to have an EAW issued, requiring Andrew’s extradition to Greece to face trial for allegations which might have been found to be without basis much earlier if MLA had been used. The English court should have been able to refuse Andrew’s extradition on the ground that alternative measures were available. I beg to move.

[Lord Taylor of Holbeach]

My Lords, as my noble friend explained, his amendments in this group seek to widen yet further the proportionality bar to extradition in Part 1 cases. As I have already indicated, Clause 138 will allow the UK courts to deal with the long-standing issue of proportionality, which, as I have already said, is a fundamental principle of EU law.

Amendments 77, 79, 80 and 81 would require a judge to consider whether the requesting state has less coercive measures available to it. If so, the judge must bar extradition on proportionality grounds. However, even where such measures may exist, they may not be appropriate in each case, depending on the nature of the crime and other factors such as relevant previous criminal history. It would not be right to require a judge to bar extradition wherever less coercive measures are available. I therefore prefer the existing subsection (3)(c) of the new section inserted by Clause 138—to which my noble friend drew attention—which addresses the issue more attractively than the choice of words proposed in the amendment. That said, the existence of alternatives is clearly a relevant factor, and that is why the clause specifies that this is one of the factors that the judge must take into account when considering proportionality.

Amendment 87 to Clause 140 is consequential on the amendments to Clause 138. It would require a judge to conclude that less coercive measures were available if a person had made a request for temporary transfer, as envisaged by Clause 140, but the issuing state had refused that request unreasonably. This would mean that the judge would have to bar extradition on proportionality grounds. This would require our courts to make an assessment of the rationale of a decision made by the authorities in another member state. Given this, we do not think it appropriate automatically to link a decision not to agree to a temporary transfer with the consideration of proportionality. The EAW framework decision is clear that temporary transfer must be agreed by mutual consent, and it is therefore open to the issuing state to refuse a request, including the UK where we are seeking someone’s extradition to the UK.

--- Later in debate ---

I welcome the broad support for the principle of a proportionality bar to extradition. I recognise that my noble friend takes a slightly different view of how the proportionality bar should be constructed. However, I hope that he will accept that the provisions in the Bill, augmented by Amendment 81A, achieve much of what he is seeking and that he will understand our reasons for not wishing to deviate from this approach. I ask my noble friend to withdraw his amendment and support government Amendment 81A.

[Lord Hodgson of Astley Abbotts]

My Lords, I support my noble friend’s amendment. The point at issue is the extent to which we are determined to make the physical transfer of somebody the last resort. How easy is it for a state that cannot be bothered to take somebody, on an EAW, without taking all the measures necessary to ensure that the person’s life is interrupted as little as possible? I am not convinced that my noble friend has the balance right, but we need to read carefully the detail of his remarks. In the mean time, I beg leave to withdraw.

Amendment 77 withdrawn.

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Moved by

[Lord Hodgson of Astley Abbotts]

82: After Clause 138, insert the following new Clause—
“Person unlawfully at large: human rights and proportionality
(1) For section 21 of the Extradition Act 2003 there is substituted—
“21 Person unlawfully at large: human rights proportionality
(1) If the judge is required to proceed under this section (by virtue of section 20), the judge must decide both of the following questions in respect of the extradition of the person (“D”)—
(a) whether the extradition would be compatible with the Convention rights within the meaning of the Human Rights Act 1998; and(b) whether the extradition would be disproportionate.(2) In deciding whether the extradition would be disproportionate, the judge must take into account the specified matters relating to proportionality.
(3) These are the specified matters relating to proportionality—
(a) the seriousness of the conduct for which the requested person was convicted of the extradition offence;(b) whether the sentence which the person received in respect of the extradition offence was initially suspended;(c) the conduct of the requested person;(d) the passage of time since the person became unlawfully at large; and(e) any other matter which the judge considers to be relevant.(4) The judge must order D’s discharge if the judge makes one or both of these decisions—
(a) that the extradition would not be compatible with the Convention rights;(b) that the extradition would be disproportionate.(5) The judge must order D to be extradited to the category 1 territory in which the warrant was issued if the judge makes both of these decisions—
(a) that the extradition would be compatible with the Convention Rights;(b) that the extradition would not be disproportionate.(6) If the judge makes an order under subsection (5), he must remand the person in custody or on bail to wait for extradition to the category 1 territory.
(7) If the person is remanded in custody, the appropriate judge may later grant bail.”
(2) In deciding any question whether section 21 of the Extradition Act 2003 is compatible with European Union law, regard must be had, in particular, to Article 1(3) of the framework decision of the Council of the European Union made on 13 June 2002 on the European arrest warrant and the surrender procedures between Member States (2002/584/JHA) (which provides that that decision shall not have the effect of modifying the obligation to respect fundamental rights and fundamental legal principles as enshrined in Article 6 of the Treaty on European Union).”

[Lord Hodgson of Astley Abbotts]

My Lords, I now seek to move Amendment 82 and will speak to Amendment 93. The background to these amendments is the existence of two different types of European arrest warrant: a prosecution warrant where a person is to be prosecuted for a crime, and a conviction warrant where a person has been convicted and has fled to another country, knowingly or unknowingly. As drafted, the Bill provides for a proportionality check for prosecution warrants but not for conviction warrants. Amendment 82 seeks to remedy this by inserting the new clause shown. The amendment creates a proportionality check for EAWs to parallel the existing human rights bar in Section 21 which will, under the Bill, be relevant only to prosecution EAWs.

Fair Trials sees many cases where suspended prison sentences imposed in respect of minor offences have been reactivated, several years after the person left the category 1 territory, with an EAW then being issued on that basis. This leads to the drastic measure of extradition being used inappropriately in respect of minor offences. There is the case of Natalia Gorczowska, who was convicted of possession of 4 grams of amphetamines and given a 10-month suspended sentence. She left to begin a new life; several years later, with no apparent reason for the delay, the sentence was reactivated and, still later, an EAW was issued, leading to significant expense and very nearly to a drastic impact upon her young son’s life. The Committee might like to note that, had the same conduct been the subject of a prosecution EAW, it would probably have fallen to be considered as one of minor gravity and unlikely to attract a lengthy prison sentence in application of the specified matters relating to proportionality to be considered before granting a prosecution EAW but not in the case of considering a conviction warrant.

This rather lengthy amendment to Section 21 allows a proportionality analysis, including a broad range of factors tailored to conviction EAWs. Applying the proposed test, the judge would be able to take into account the person’s conduct and other circumstances when addressing proportionality—for instance, whether the person deliberately evaded onerous community obligations by leaving the country, or whether the sentence was reactivated systematically, long after the person left the country and without his or her knowledge.

Amendment 93 provides discretion to refuse a conviction warrant where the subject is a British national and will serve his or her sentence in a UK prison. The proposed amendment would allow the judge at the extradition hearing to refuse to surrender a person under a conviction EAW if that person is a British resident or national, and if it is possible for them to serve their sentence in the UK. It is worded in similar terms to Section 3(1) of the Repatriation of Prisoners Act 1984, which also provides for the issue of a warrant to authorise a person’s detention to serve or complete in the UK a sentence imposed by a foreign court.

Currently, UK courts have no discretion to refuse to extradite a British national or resident to serve a sentence in another country on the basis that it is more appropriate that he or she serves that sentence in the UK. This issue has been highlighted in a number of Fair Trials cases. Individuals have been extradited from the UK following conviction in another jurisdiction yet, following surrender, have been transferred back to the United Kingdom after the lengthy and bureaucratic prisoner transfer process. This is a waste of time and money. UK courts should be given the option of refusing extradition and allowing the defendant to stay in the UK to serve the sentence. Other member states including Belgium, Denmark, Italy and Poland have included this ground for refusal in their implementing legislation.

In the announcement that my noble friend referred to earlier, the Home Secretary stated:

“Where a UK national has been convicted and sentenced abroad, for example in their absence, and is now the subject of a European arrest warrant, we will ask”,

the issuing state’s,

“permission, for the warrant to be withdrawn, and will use the prisoner transfer arrangements instead”.—[Official Report, Commons, 9/7/13; col. 179.]

The flaw in this approach is the possibility that the issuing state will simply not grant permission.

This amendment establishes a legal basis for the judge to refuse extradition and order that the person serves the sentence in the UK. This possibility is provided for in the EAW framework decision, in which paragraph 6 of Article 4 provides that the executing judicial authority may refuse to execute the EAW,

“if the European arrest warrant has been issued for the purposes of execution of a custodial sentence or detention order, where the requested person is staying in, or is a national or a resident of the executing Member State and that State undertakes to execute the sentence or detention order in accordance with its domestic law”.

Given this clear legal basis to provide the judge with discretion to refuse extradition and allow the person to serve the sentence in the UK, it is disappointing that the Government have opted for a slightly different policy, which is not placed on a statutory footing.

The reference to UK nationals in the Home Secretary’s announcement suggests that this reluctance may be because the Government wish the policy to benefit only UK nationals and not non-national residents. It follows clearly from the case law of the Court of Justice that, if the UK implemented paragraph 6 of Article 4 of the EAW framework decision, which applies to both nationals and those staying in or resident of the executing member state, it would not be able to reserve the benefit of this provision to UK nationals only. The drafting in the Bill appears to be a way of avoiding that constraint. However, the policy discriminates in favour of UK nationals and could be the subject of legal challenge, irrespective of whether or not it is placed on a statutory footing.

The policy adopted in lieu of implementation of paragraph 6 of Article 4 of the EAW framework decision is also an ineffective protection. If the issuing state refuses to use the prisoner transfer arrangements, there is no recourse and the person has to be extradited in any event. As the Home Secretary said in her announcement, the proposed change,

“could have prevented the extraditions of Michael Binnington and Luke Atkinson”,

UK nationals who,

“were sent to Cyprus only to be returned to the UK six months later”.—[Official Report, Commons, 9/7/13; col. 179.]

to serve the rest of their sentences. However, this would have been dependent on the Cypriot authorities co-operating. Had Cyprus declined to use the prisoner transfer arrangements, the judge would not have had any legal ground on which to refuse extradition.

It would make more sense for the Government to put the policy on a statutory footing, providing proper protection for UK nationals and other residents whose social reintegration would be served by their serving their sentences in the UK, in line with the relevant provisions of the framework decision. These amendments allow the judge to identify residents on a discretionary basis; equally, Parliament could set reasonable statutory criteria. By example, I understand that Dutch law provides a five-year residence criterion, which has been considered lawful by the Court of Justice of the European Union. I beg to move.

[Lord Ahmad of Wimbledon]

My Lords, as my noble friend has said, Amendment 82 seeks to introduce a proportionality bar for post-conviction cases. As my noble friend Lord Taylor has said, Clause 138 will allow the UK courts to deal with the long-standing issue of proportionality, which is of course a fundamental principle of EU law in cases where a person is sought for prosecution. Under the EAW framework decision, an EAW can be issued in a post-conviction case only if a sentence of at least four months has been imposed. We believe that this is a sufficient proportionality safeguard in such cases.

Perhaps I might also reassure my noble friend that the courts will still consider any representations made that the extradition would breach a person’s human rights—I believe that he mentioned this in his comments. As now, a person would be extradited only if it was compatible with their rights under the European Convention on Human Rights. This includes and applies to those people who are wanted to serve a sentence.

I turn to my noble friend’s Amendment 93. I draw your Lordships’ attention to the terms of the Statement made in July by my right honourable friend the Home Secretary—again, my noble friend referred to this—about the reform of the operation of the EAW to enhance the safeguards available for British citizens wanted for extradition. In that Statement, the Home Secretary set out our commitment to make greater use of EU prisoner transfer arrangements. Where a UK national has been convicted and sentenced abroad, for example in their absence, and is now the subject of a European arrest warrant we will ask for permission for the warrant to be withdrawn and will use the prisoner transfer arrangements instead. My noble friend acknowledged that.

Whereas this policy is limited to UK nationals, Amendment 93, put forward by my noble friend, would broaden the scope of this safeguard beyond UK nationals to those who are resident in the UK, with the consequential impacts that would lead to, including those on the public purse. This Government’s policy is that foreign nationals should, wherever possible, serve their sentences in their home country. Therefore the scope in terms of broadening this beyond UK nationals is not something the Government subscribe to, based on the policy I have indicated. I hope, based on the explanations I have given which underlie the Government’s approach, that he will at this time seek to withdraw his amendment.

[Lord Hodgson of Astley Abbotts]

My Lords, I have just one question. As I understood my noble friend’s remarks, he said that we now have an effective proportionality test for conviction warrants. My advice is that we do not have that and that there is no chance of a proportionality test for that.

While he is reflecting, my other point is on the question of how we are going to be able to deal with situations where countries do not collaborate. I appreciate the point about non-national residents. I hope, however, the Government will consider following up examples like that of the Dutch. They have established cases where non-nationals would not qualify and therefore the issue which he very properly raises about the impact on public funds could be avoided.

Could he just confirm that there is a proportionality test for conviction warrants, because as I understand it there is not?

[Lord Ahmad of Wimbledon]

For clarification, I repeat that I said that under the EAW framework, an EAW can only be issued in a post-conviction case if a sentence of at least four months has been imposed. We believe that is the sufficient proportionality safeguard in such cases.

[Lord Hodgson of Astley Abbotts]

I will not try to absorb all that now; I will read about it in Hansard. In the mean time, I seek to withdraw the amendment.

Amendment 82 withdrawn.

--- Later in debate ---

Moved by

[Lord Hodgson of Astley Abbotts]

83: Clause 140, page 107, line 26, at end insert “(which must include a specific timeframe within which the person must be returned to the United Kingdom)”

[Lord Hodgson of Astley Abbotts]

My Lords, in moving Amendment 83, I shall speak also to Amendments 84 to 86. With these amendments I am seeking to address some of the weaknesses of the temporary transfer system. Amendments 83 and 84 seek to ensure that temporary transfers remain temporary. Amendment 83 would insert in proposed new Section 21B the words,

“a specific timeframe within which the person must be returned to the United Kingdom”,

and Amendment 84 would insert the words,

“within the period specified in the judge‘s order made under subsection (5)”.

They make a temporary transfer conditional on the issuing state providing assurance that the person will be returned within the time allotted for the transfer. The purpose of the temporary transfer system is to enable the issuing state to complete certain steps in the criminal case which we referred to earlier, such as charging the person, and to allow the person to return home, without seeking their extradition. However, in the Bill as drafted, there is no system for ensuring the return of the person.

The concern is that a person brought before a judge or court in the issuing state in the course of a temporary transfer could rapidly find themselves processed in accordance with the usual course of procedure and detained pending trial. I believe that it is therefore necessary to enable the judge to obtain specific assurances that the person will be returned within a fixed period by the judge. The amendment allows the judge to refuse to grant a temporary transfer in the absence of such assurances.

Amendments 85 and 86 permit the temporary transfer system to be used more than once. The Bill allows for the temporary transfer scheme to be used once only. I entirely accept that there is a need to ensure that the temporary transfer process is not used repeatedly to delay extradition, but I believe the current restriction to one use may be too blunt. If a new point comes to light later in the proceedings suggesting that further progress could be made by the requested person attending again, then, provided it is not an abuse of the system, the procedure should be available again. It must also be unfair to prevent a requested person using a temporary transfer just because they have previously agreed to a request, perhaps by the requesting state. There is an issue here of equality of arms. I beg to move.

[Lord Ahmad of Wimbledon]

My Lords, the provisions in Clause 140 will allow a person to speak with the authorities in the issuing state before any extradition takes place. The clause allows for the person’s temporary transfer to the issuing state and for the authorities in that state to speak with the person while he or she remains in the UK, for example, via videoconferencing. I understand my noble friend’s concerns that there should be safeguards, but I believe that there are sufficient safeguards already in place.

Both parties must consent to a temporary transfer—a temporary transfer is only possible where the person concerned agrees to it—and in doing so the issuing authority would be agreeing that the person would be returned to the UK. If the person was not returned, the issuing state would, of course, be in breach of that agreement and the clear terms of the European arrest warrant framework decision. Neither are we aware of any cases among our EU partners where such agreements have been disregarded.

Amendments 85 and 86 relate to the circumstances in which a person may make a request for temporary transfer or videoconferencing. I am grateful to my noble friend for bringing to the Committee’s attention the suggestion of allowing more than one request to be permitted by a UK judge.

In this particular case the Government are not persuaded that there are sufficiently compelling arguments for making such a change. Allowing more than one request could be used to delay the extradition process to no good end. We would expect the cases to which my noble friend refers to be very rare, and if such a situation did arise, the individual would still be able to approach the requesting authorities via their legal representatives to provide further information to consider in that case.

Noble Lords are aware, as my noble friend Lord Taylor has emphasised, of the importance we place on getting the balance right between ensuring efficient extradition processes and the protection of the requested person. We believe that this potential for unnecessary delay would outweigh any marginal benefits it may bring.

I therefore hope, with the explanation I have given, that my noble friend will be minded to withdraw his amendment.

[Lord Hodgson of Astley Abbotts]

I certainly will withdraw it. I am convinced about Amendments 83 and 84, but I cannot see how the ability to get a second temporary transfer is going to cost the Government anything. In fact, it would greatly improve the efficacy in the administration of justice. If I were an EAW subject, I would be very disappointed that because the requesting state had used the temporary transfer system up for its own purposes, I was not then able to use it for myself. It is a shame that we do not have even a measure of equality of arms, always providing for the fact that this should not be allowed to detain and block up the process. I beg leave to withdraw the amendment

Amendment 83 withdrawn.

--- Later in debate ---

Moved by

[Lord Hodgson of Astley Abbotts]

88: Clause 141, page 108, line 1, leave out paragraphs (a) and (b)

[Lord Hodgson of Astley Abbotts]

In moving Amendment 88, I shall speak also to Amendments 88A and Amendments 89, 90, 91 and 92. Clause 141 is about appeals against EAWs. I note that the noble Baroness, Lady Smith of Basildon, and the noble Lord, Lord Rosser, have tabled a stand part debate to remove this clause. I look forward to hearing their remarks in support of that fairly blunt instrument. My amendments, by contrast, offer my noble friend the Minister a focused, surgical approach to this issue.

Amendments 88 and 90 remove the requirement for leave to appeal. We have spoken about how extradition has an enormous impact on suspects’ lives and those of their families. Given the problems that, for example, Fair Trials regularly sees arising at first-instance extradition hearings, there are concerns about any measure that limits access to appeal courts. The vast majority of those subject to extradition procedures—the “little platoons” that I referred to in my first group of amendments —cannot afford a lawyer and are therefore represented by a duty solicitor. Many duty solicitors have little experience of extradition cases and therefore may not be familiar with the complex conditions of the 2003 Act and associated case law. This can be contrasted with the position of the requesting state, which is automatically entitled to representation by a specialist unit of Crown Prosecution Service lawyers. The complexity of extradition cases also means that there is often inadequate time at a first-instance hearing for consideration of all the relevant facts and issues. If suspects lose their automatic right to appeal then, so long as these problems at first instance remain, there may be cases that result in people being wrongly extradited.

These problems are demonstrated by the recent case of Krzysztof Juszczak, who in February 2013 appealed successfully against extradition to Poland on the basis that his removal from the UK would constitute a disproportionate interference with his family life under Article 8 of the ECHR. Although Mr Juszczak is the primary carer for his severely disabled stepdaughter, this was not raised by the duty solicitor before the district judge, an omission that was criticised as a failure of duty by Mr Justice Collins in his appeal judgment. As this evidence was obtained late in the process, there is a clear danger that under the proposed system Mr Juszczak would have been denied leave to appeal.

I recognise the problems raised in the Sir Scott Baker review in relation to the large number of unmeritorious appeals in the extradition process, and understand the need for a process to ensure that appeals with merit are heard and disposed of more quickly. It must be in the interests of both defendants and the state that the appeal process works to correct genuine errors rather than to delay the judicial process. However, it is surely equally true, and vital, that suspects are given a full opportunity to get a case together and identify any valid grounds on which their extradition should be refused, and any appeal process should reflect that.

The Sir Scott Baker review recommended that any leave-to-appeal test should follow the standard required for judicial review—namely, that the defendant must show an arguable case in order to be allowed to appeal. The inclusion of any higher standard of proof would be inappropriate, not least because the requirement to demonstrate an arguable case, as is the case in the judicial review process, would suffice to weed out those cases with no merit. Leave should be sought on paper, with written reasons provided for the outcome. Defendants must then have a right of appeal against refusal to a judge at an oral hearing. Only the judge at first instance or the High Court judge who would hear the appeal should consider applications for leave to appeal. If all these safeguards were guaranteed, a requirement for leave to appeal might be acceptable.

There has been concern that the lack of information about how the Government’s proposed amendments will work in practice makes it far from clear that they satisfy the above recommendations of the Sir Scott Baker review, and people could still have their lives ruined by an unjust extradition. As this concern remains unanswered in the Bill as currently drafted, the argument regarding appeal remains flawed and liable to create unfairness and inequality of arms. It has also been pointed out that the Government’s proposed amendments did not affect the requesting state’s automatic right to appeal if an extradition request is refused, thus introducing a further inequality of arms into proceedings that are already heavily weighted in favour of requesting states, which have far greater resources than individuals and benefit from a strict “no questions asked” regime that gives courts very little power to refuse extradition.

The Government have taken concerns in this regard into account, with the introduction of a requirement of leave to appeal against discharge at extradition hearing in Clause 141(2), but this amendment proposes that that requirement should also be omitted in line with the proposed approach to appeals against extradition orders in Clause 141(1).

Amendment 88A would extend the deadline for bringing appeals against extradition from seven days to 14. I reiterate my welcome for the introduction of flexibility in relation to appeal deadlines, but I remain concerned that the current drafting may be insufficient to address potential injustices, particularly when linked to the proposed removal of the automatic right to appeal. Given the impact of extradition on individuals, a standard period of seven days to appeal or seek leave is pretty short. This is often exacerbated by the need to obtain evidence from other jurisdictions and can raise enormous challenges when a person decides to change their lawyer after the first-instance hearing.

--- Later in debate ---

[Lord Taylor of Holbeach]

My Lords, as my noble friend has explained, Clause 141 makes the right of appeal against a decision to order extradition subject to the leave of the High Court. Similarly, it makes the requesting state’s right of appeal against a decision to discharge a person from extradition proceedings subject to the leave of the High Court. Clause 141 also allows the requested person to make an application for leave to appeal out of time in certain circumstances. This does not apply to the requesting state.

The noble Lord, Lord Rosser, using his blunt instrument, gives me the opportunity to broaden the debate beyond the immediate amendments and explain how this process will work and why the Government feel justified in introducing Clause 141. My noble friend Lord Hodgson, in tabling his Amendments 88 and 90, challenges us on why we are making these changes. At present, a person has an automatic right of appeal against a decision to order his or her extradition, and the requesting state also has an automatic right of appeal against a decision not to order extradition—an important factor to bear in mind.

As noble Lords are aware, the Government commissioned a review by Sir Scott Baker of the UK’s extradition arrangements. One of the key findings of his review was that the success rate of appeals was extremely low: less than 13% in 2010. In other words, the court system is burdened by unmeritorious appeals, a fact to which my noble friend Lord Hodgson referred, which then delay hearings for all appellants and means that justice is deferred. Clause 141 addresses this problem by making appeals subject to permission from the High Court. This filter applies to appeals against, for example, a judge’s decision to order extradition to a Part 1 territory, that is, another member state; a judge’s decision to send a case to the Secretary of State to consider extradition in Part 2 cases, that is, where the requesting country is not an EU member state; and to a decision by the Secretary of State to order extradition in Part 2 cases. To provide parity, it also applies to appeals against decisions to discharge a person.

My noble friend Lord Hodgson asked what sort of issues a court would consider in deciding whether to allow an application to be heard. This will be, as one would expect, a matter for the judge concerned. They will, of course, give full consideration to all the relevant factors raised by the appellant before reaching a decision. We do not think that they are appropriate to be set out in legislation, as it is a matter for the court itself to consider. I understand that noble Lords will have questions about what safeguards will be available. Let me reassure noble Lords that this provision does not prevent anyone from applying for permission to appeal. Once an application has been made, the High Court will decide which cases proceed to a hearing, but each application will be considered by a High Court judge. Furthermore, Clause 141 sets out that the High Court must not refuse to entertain an application for leave to appeal by the requested person solely because it has been submitted outside the normal time period, if the person did everything reasonably possible to ensure that the notice was given as soon as it could be.

That point brings me to the matters that my noble friend Lord Hodgson raised in relation to this in his Amendments 88A, 89, 91 and 92. My noble friend proposes to amend Clause 141 to insert a requirement for the courts to allow an appeal to be made out of time if it is in the interests of justice to do so. As I said, Clause 141 allows the High Court to hear an out-of-time appeal where the person has done everything reasonably possible to bring the appeal as soon as possible. Our approach follows that of the Supreme Court, which ruled last year that out-of-time appeals should only be considered exceptionally. We believe that this provision gets the balance right: the timetable for an appeal is clear and there must be an onus on an appellant to meet the statutory requirements, as happens in the vast majority of cases.

My noble friend is also proposing to extend the time limit for appeals in Part 1 cases from seven days to 14 days. As he has explained, this was one of the recommendations that Sir Scott Baker made in his review of our extradition arrangements. We have therefore considered it very carefully in developing the provisions in the Bill. Our view is that extending the time limit in this way would have no practical effect beyond increasing the likelihood for delay. As I said, we have introduced new protections where people are unable to submit their appeals on time through no fault of their own. We believe that this new provision will address the concerns raised by my noble friend, and indeed by Sir Scott Baker, on this issue.

What safeguards will exist under these new provisions? We do not believe that we are removing any existing safeguards. We need to get the balance right between ensuring proper protection for those subject to an extradition request while ensuring that people do not delay their proper surrender by burdening the courts with unmeritorious appeals. We believe that this approach gets these matters right. The court itself will decide the issues and the relevance of any out-of-time considerations.

The changes set out in Clause 141 will allow the courts to focus their attention on the right appeals, removing the burden of unmeritorious appeals while ensuring that proper safeguards are in place for those subject to extradition. I commend the clause to the Committee and I hope that my noble friend will be prepared to withdraw his amendment, and that the noble Lord, Lord Rosser, will see the merit in the clause.

[Lord Hodgson of Astley Abbotts]

I am grateful to my noble friend for that fulsome reply. I am disappointed that the Government have not seen fit to follow up the Scott Baker proposal for 14 days instead of seven days, given the complexity of the appeal process, particularly when linked to the additional steps that the Government are taking to introduce prohibitions on and difficulties in getting an appeal process going in the first place. Obviously, however, this is not the time to take the argument further. I look forward to reading with care in Hansard tomorrow what the Minister has said. I beg leave to withdraw the amendment.

Amendment 88 withdrawn.

--- Later in debate ---

Moved by

[Lord Hodgson of Astley Abbotts]

94: After Clause 142, insert the following new Clause—
“Request of further information where suspicion of mistaken identity
In section 7 of the Extradition Act 2003 (identity of person arrested), after subsection (4) there is inserted—“(4A) If the judge decides that question in the affirmative, he must decide whether the person in respect of whom the warrant was issued is the person who is alleged to have committed, or to have been convicted for, the offence on which the warrant is based.
(4B) The judge must decide the question in subsection (4A) on the balance of probabilities, but if he considers there is reasonable doubt as to that question, he may not decide it in the affirmative unless he has first requested the issuing authority to provide further information within the time specified in the request (which must not be less than a reasonable time in all the circumstances) and the issuing authority has provided him with the information requested within that time.
(4C) If the judge decides the question in subsection (4A) in the negative, he must order the person’s discharge.””

[Lord Hodgson of Astley Abbotts]

My Lords, Amendment 94, which is concerned with mistaken identity, and Amendment 95 would insert two new clauses into the Bill. Amendment 94 would enable the judge at the extradition hearing—whether it is a prosecution or a conviction warrant—to request more information where there is a real doubt as to whether the person sought is actually the person suspected or convicted. This would be particularly valuable in cases where there is a reasonable belief that the person sought has had his or her identity stolen or where there is a clear case of mistaken identity. In these days of cybercrime, the former is an increasingly common occurrence.

There are currently no grounds in domestic law on which to refuse extradition where there are serious doubts about whether the person sought is the person who committed the crime or is suspected to have committed the crime. Such a situation has arisen in several cases where the person subject to the EAW has had their identity stolen by the real perpetrator or where that perpetrator has identified someone else as the person who committed the offence.

This is demonstrated by the case of Edmond Arapi, who was tried and convicted in his absence in Italy and given a sentence of 16 years. He had no idea that he was wanted for a crime or that the trial or subsequent appeal had taken place until he was arrested at Gatwick Airport in 2009 on an EAW on his way back from a family holiday. The British courts ordered that Edmond be sent to serve the sentence in Italy, despite clear proof that he was at work in the UK on the day of the alleged offence. On the day that the High Court was due to hear his appeal against extradition, the Italian authorities decided to withdraw the EAW following a campaign, admitting that they had sought Edmond in error. He narrowly avoided being separated from his wife and children, including a newborn son, and spending months or years in an Italian prison awaiting a retrial. This amendment is needed to give courts greater discretion to request further information where there are reasonable grounds to believe that the person sought under an EAW is the victim of mistaken or stolen identity.

Amendment 95 seeks to clarify the approach that a judge should follow in relation to human rights and provide a stronger basis on which to refuse to execute an EAW on human rights grounds. Many have argued that the underlying assumption of the EAW system—that other Part 1 territories can always be trusted to respect the fundamental rights of those extradited—rests on shaky foundations. For instance, it has been reported that in the years 2007 to 2012, Greece violated Article 6(1) of the ECHR 93 times in criminal cases.

Garry Mann, giving evidence to the Home Affairs Committee, described his 2004 trial in Portugal as follows, stating that,

“the police … just told me it was some kind of public order offence … we went into court and there were 12 of us … we had one interpreter … she would try to say something and pass it down the line of 12, but we did not understand what was going on at all … They asked me what I thought in broken English, but again the judge and the lawyer did not speak much English … I never knew the charge that I was facing until 30 minutes before I was convicted at 11.30 that night … They said there was no time to call any witnesses. I said I would like CCTV; no time to call CCTV”.

An English court later called on to issue a football banning order against Garry refused, finding that the trial had not complied with Article 6 of the ECHR.

The courts have, however, given very short shrift to arguments alleging that extradition would lead to a violation of human rights. In accordance with the concept of mutual trust, on which the operation of the EAW is based, the courts assume that the issuing state will protect the extradited person against any unfairness and that past proceedings giving rise to convictions on which EAWs are based were fair. A person must show that they are at risk of a “flagrant” breach of their fair trial rights in order to resist extradition. The approach is difficult to sustain when there are ongoing systematic deficiencies in a justice system, which are liable to impact upon an extradited person. For instance, the European Court of Human Rights recently found Italy in violation of Article 3 of the ECHR and applied its pilot judgment procedure, recognising that widespread overcrowding was leading to systematic infringements of Article 3. The concept of mutual trust is difficult to defend in such circumstances. If an extradited person is going to be detained in the same prison, it is plainly likely that their human rights will be infringed.

The Government have taken the view that the EAW framework decision implicitly allows refusal to execute an EAW on human rights grounds, relying on recital 12 and Article 1(3) of the framework decision, which affirm that the latter shall not have the effect of modifying the obligation to respect fundamental rights and fundamental legal principles, as recognised by Article 6 of the Treaty on European Union and reflected in the European Charter of Fundamental Rights. However, the precise content of those fundamental rights obligations is not clear. In her opinion on the Radu case, Advocate-General Sharpston suggested that, under the charter, the test was whether there was a “substantially well founded risk” of a violation which would,

“fundamentally destroy the fairness of the trial”,

a slightly different test from the ECHR flagrancy test. However, for the time being, the precise requirements of fundamental rights are not defined in EU legislation. Accordingly the member states enjoy some discretion to apply fundamental rights as they understand them, provided that this does not compromise the unity and effectiveness of EU law. This amendment therefore falls within the permissible bounds of the EAW framework decision. I beg to move.

[Lord Taylor of Holbeach]

My Lords, the additional safeguards that my noble friend has proposed through Amendment 94 seek to introduce matters of mistaken identity. It is not something that we believe is necessary. Clearly, we do not want the wrong people to be extradited; the wider issues relating to identity were carefully considered during the review of the UK’s extradition arrangements. Sir Scott Baker did not find any evidence that a person who was subjected to mistaken identity had actually been surrendered to stand trial. He concluded that there was no need to amend the Act to require a judge to request further information concerning the requesting person’s identity. Nor did the Metropolitan Police, the Crown Prosecution Service or the Crown Office raise concerns about the issue.

I agree with expert opinion and I am not persuaded that a change is needed here. My noble friend asked about the case of Mr Arapi—I will try to avoid talking about particular cases—but, as my noble friend will be aware, Mr Arapi was not extradited and the Italian authorities admitted their error in making the request for him rather than another person of the same name. In his review, Sir Scott Baker found that no amendment was needed to the protections already afforded in the Act with regard to identity as there are already sufficient procedures in place to protect people who are sought as a result of mistaken identity.

The amendment raises the particular issue of a judge being clear that the person who has been arrested and appears in court is the person who is alleged to have committed the crime. This goes to the heart of the trial in the issuing stage. It is not a matter for the UK courts. The courts’ consideration of an extradition request is not one of guilt or innocence but of whether any of the statutory bars to extradition apply.

Turning to Amendment 95, my noble friend seeks to make changes to a judge’s consideration of human rights in EAW cases, including expanding the matters to which the judge should have regard when considering whether extradition would breach a person’s human rights.

We believe that there are already sufficient safeguards in the Extradition Act to allow a judge to bar extradition on human rights grounds. The 2003 Act is drafted to allow the courts to give the fullest possible consideration to human rights issues. We discussed this matter in earlier deliberations in Committee. In all cases, the judge must decide whether extradition would be compatible with the convention rights and must discharge the person if he or she decides that it would not be compatible.

In his review of the UK’s extradition procedures, Sir Scott Baker found that the human rights bar to extradition did not need amending. The review found that the bar did not permit injustice or oppression, and the Government agree with that assessment. We do not accept that a judge’s approach to human rights needs to be changed.

In conclusion, I am very grateful to my noble friend for giving the Committee this opportunity to consider various aspects of Part 12 of the Bill.

--- Later in debate ---

[Lord Hodgson of Astley Abbotts]

Of course, I shall not hesitate at all. Again, I am extremely grateful to my noble friend. He is quite right to remind me that Edmond Arapi was not extradited, although, in the words of the Duke of Wellington, it was “a damn close-run thing” in the sense that the appeal was heard on the day that he was about to go.

I acknowledge the points that my noble friend made concerning the Scott Baker issues of identity and human rights, although I think that identity is going to become more and more important because of cybercrime and people assuming other identities. I think that that will come back for discussion. I am disappointed that we have not been able to find a way through that because, in my view, it will rise in importance and relevance.

My noble friend Lord Lamont asked the critical question: do we have sufficient mutual trust? The noble and learned Lord, Lord Hope of Craighead, said that we should have. The point, of course, is that unlike Albania, for which there would be a Part 2 warrant, the process of a Part 1 warrant, which the EAW would be, is a great deal swifter. Standing here on my feet at this moment, I do not know whether the court has more powers to make investigations in the case of a Part 2 warrant, as would be provided by my amendments, than it has in the case of a Part 1 warrant. That is something on which I cannot give an answer off the top of my head. However, I am grateful to my noble friend because I think that he has put his finger on it: is there enough mutual trust?

I am grateful to my noble friend and to the Committee for having let me rabbit on at some length about these issues. I beg leave to withdraw the amendment.

Amendment 94 withdrawn.

EU: Eurojust (EUC Report)

Lord Hodgson of Astley Abbotts Excerpts

Monday 4th November 2013 Lords Chamber

[Lord Hodgson of Astley Abbotts (Con)]

My Lords, I am a member of Sub-Committee E and support the proposal ably moved by our chairman, the noble Baroness, Lady Corston. We return tonight to the issue of European co-operation in judicial and criminal investigative matters. The topic is of course a veritable Rubik’s cube of interwoven advantages and disadvantages, and trying to establish the pattern that will best suit this country is very difficult, especially for a non-lawyer such as myself.

As the noble Baroness has pointed out, the pattern of the Rubik’s cube has changed in the past week with the decision of this House and the other place to issue a reasoned opinion on the grounds of subsidiarity against participation in the European Public Prosecutor’s Office. I spoke in the debate in favour of that decision on theoretical, legal and operational grounds. We heard in that debate from the noble Lord, Lord Rowlands, who introduced the subject, of growing concern among other states about the proposal. As I understand it, from what the noble Baroness has said and from what the noble Lord, Lord Rowlands, told us in our committee meeting earlier this week, since then concerns have been found to be even more widespread and substantial than was originally thought—indeed, so substantial that it appears that the EPPO proposal in its present form is now effectively dead in the water. The Minister might like to confirm whether this is the case and the Government so assess it when he comes to wind up.

If so, this removes one of the Government’s major objections to the Eurojust proposal—that it implicitly provides a stalking horse for the development of the EPPO, the interweaving of the organisation which we describe in paragraph 40 of our report. We say:

“As we have noted, the proposed Eurojust Regulation includes significant provisions which interweave the two institutions both corporately and operationally. Viewed in the context of the Government's policy of non-participation, this might point towards the UK electing not to participate in the negotiation of the Eurojust Regulation”

The next question really is whether the Government have some other principled objection to Eurojust in any form. It would appear that they cannot and do not. First, because this country has been part of the Eurojust set up ab initio, as the noble Baroness pointed out, and secondly, because although the Eurojust regulations fell within the subjects covered by the opt-out afforded to us by the treaty of Lisbon, having exercised that opt-out, the Government have already announced that they propose to opt back in to those parts that cover Eurojust.

As to the operational need for a co-ordinating mechanism such as Eurojust, one only has to reflect on the increasingly global nature of crime and, in particular, what one might call the new crimes such as cybercrime which flit from country to country, indeed from continent to continent, and require a very highly co-ordinated international response.

I have had the honour to serve on one or more of the EU Sub-Committees of your Lordships’ House for several years. An abiding feature of inquiries focused on activities to combat EU cross-border crime has been the value ascribed to what they call joint investigation teams or JITs which are, of course, established under and by Eurojust. It would be a shame for this country not to be in a position to aid their further development by not participating in the negotiations on these future regulations.

That leaves two final issues which could underpin the Government’s apparent plan not to opt in to this proposal. First, there is the proposed change to the structure and governance of Eurojust. I find it hard to believe that this country should not opt in to a body on the sole grounds that an executive board should replace a management board with a director. It seems to me to be arguing about a distinction without a difference. Secondly, there is the different nature of our legal system compared with those of most of our fellow EU members—in short, the adversarial as opposed to the investigative approach. I recognise this challenge and I see why the Government have drawn our attention to it in their explanatory memorandum. However, since the UK has been involved in Eurojust for some 10 or so years, these do not appear to have been insuperable problems in the past and I see no reason why they should be so in the future.

I am forced to conclude that Eurojust is an organisation which has proved its value in the past, evidenced by the Government’s decision to opt in again to the existing regulations. The major threat implicit in the regulation we are discussing tonight was the introduction of the EPPO, but that is not now going to happen. In my view the Government ought to take advantage of this changed mood among our fellow EU members to opt in and to ensure that this regulation is fashioned to the advantage of this country. Otherwise, having avoided participating in the negotiations, we may find ourselves having to accept a directive that has not been fashioned in the manner most advantageous to this country. It is also hard to understand how we are going to be able to opt in to old Eurojust—that is, the existing regulations—and not participate in the new Eurojust that will result from the proposals now under consideration.

When John Maynard Keynes was once asked about why he changed his mind, he famously said when circumstances change I change my mind, what do you do? Circumstances here have changed dramatically with the EPPO and since the Government reached their preliminary conclusion, I hope that my noble friend will persuade Mr James Brokenshire that this was a mistaken approach and we ought now to participate and ensure that these regulations are taken forward to the best advantage of this country.

--- Later in debate ---

[The Parliamentary Under-Secretary of State, Home Office (Lord Taylor of Holbeach) (Con)]

My Lords, I thank the noble Baroness, Lady Corston, and the European Union Committee, many of whose members have spoken in this debate, for bringing forward this Motion and for their work on this report. As noble Lords have said, we were here a week ago to debate the issue of the European Public Prosecutor’s Office when the House concluded that it should issue a reasoned opinion against that proposal as it breached the principle of subsidiarity. Today, we have turned to the related matter of the opt-in decision triggered by the European Commission’s parallel proposal for a Eurojust regulation. We have had a full debate and I have listened to it with great interest.

The Government’s view is that the UK should not opt in to the draft regulation on Eurojust at this time and we should conduct a thorough review of the final agreed text to inform active consideration of opting in to it, post adoption, in consultation with Parliament. I am pleased to say that a Motion to that effect was agreed in the other place last week. It has been very good to have the support of the noble Lord, Lord Rosser, expressing the Opposition’s view that this presented the right approach in the interests of Parliament and of Government.

The Government have said clearly that we value the current Eurojust arrangements, which is why we are seeking to rejoin them as part of the 2014 opt-out decision. I can only agree with the noble and learned Lord, Lord Hope of Craighead, and all other noble Lords who have pointed out the merits of the current Eurojust arrangements. Moreover, prior to the publication of the new Eurojust proposal, we said consistently that there was no need to reform Eurojust at this time; indeed, the Security Minister in the other place, James Brokenshire, made that case clearly at the 10th anniversary of Eurojust last year.

Current legislation is still undergoing a peer evaluation, which will not be complete until next year, and the Commission has not put forward a convincing case as to why the new proposal is needed. However, regrettably, it has come forward with a new Eurojust proposal that contains a number of substantial concerns. In particular, as the European Union Committee’s report elegantly describes, the Eurojust proposal is interwoven with the EPPO proposal. The reforms proposed to Eurojust would see deep connections made to the EPPO with operational, management and administrative links between the two bodies. At this time we cannot be certain either about the shape of the EPPO proposal itself—not least given the subsidiarity yellow card that has been issued, as we know, as a result of our debate and debates in other parliaments—or how the relationship between the EPPO and Eurojust might ultimately be defined.

I say to the noble Lord, Lord Elystan-Morgan, that our concerns articulated in this House last week have not gone away. To update the noble Lord, Lord Rowlands, who asked where we were now as a result of last Monday, the number of votes from national parliaments on the EPPO means that the Commission must now review its proposal. Officials speaking on behalf of Commissioner Reding, however, have interpreted this as being the majority of national parliaments not opposing the proposal. It would be a huge mistake no longer to consider the EPPO presenting a risk for the new Eurojust proposal. That is our view of the situation at the present time. The Government therefore believe that it would be extremely and unnecessarily risky to bind ourselves to the European Public Prosecutor’s Office through our participation in the new Eurojust proposal at the start of negotiations. This would be a needless risk when we can review our place in Eurojust upon its adoption.

The new Eurojust measure also proposes to create new mandatory powers for Eurojust national members—powers which would enable them to require coercive measures at a national level. The current Eurojust measure works well and it does not force member states to give their national members such extensive powers. The new proposal unnecessarily removes this discretion. These proposals would cut across the division of responsibilities and separation of powers between police and prosecutors in England, Wales and Northern Ireland. It is quite clear that these proposals would conflict with the role of the Lord Advocate in Scotland, who has been at the apex of the Scottish criminal justice system since at least the time of the first recorded holder of that office, Sir John Ross of Montgreenan, in 1483. Before this debate I had no idea that the office so ably held by my noble and learned friend Lord Wallace of Tankerness had such ancient roots.

The evidence that the Lord Advocate gave to the committee was on the existing Eurojust measure about which there is no dispute among us—it is a valuable measure—not the new proposal. That evidence is therefore not relevant: the new proposal might actually undermine the role of the Lord Advocate. It was following consultation with the Scottish Government that we came to our view. On consultation, we have consulted the devolved Administrations in Scotland and Northern Ireland. They have told us that they understand our reasoning and they would not seek to demur from our proposed approach. The concern in relation to the Lord Advocate’s role follows consultation with the Scottish Government. Our clear view is that we should not opt in to the new Eurojust proposal at the start of negotiations because the risks it presents are unacceptably high for our criminal justice system arrangements.

I hope that I can also allay some of the concerns expressed in the European Union Committee’s report that we might “miss out” on these negotiations. Indeed, in introducing the debate, the noble Baroness, Lady Corston, made such remarks and they have been reinforced by the speeches of the noble Baroness, Lady O’Loan and my noble friends Lord Hodgson of Astley Abbotts, Lord Stoneham of Droxford and Lady Hamwee. All have talked in terms of our missing out or not being involved in the negotiations. I assure noble Lords that where we do not opt in at the start of negotiations we will nevertheless be actively involved. Not only will we be present in the negotiating room at all levels, we will be able to intervene as and when we wish. If we do not opt in to this measure now, we will nevertheless be at the negotiating table energetically representing our interests, and we will be able actively to consider opting in post-adoption based on the final text and the further views of Parliament. I hope that reassures noble Lords that this may be an opt-out or a non-opt-in to the revised proposal but it is not an opting-out of our responsibility to negotiate and make a success of Eurojust, which it has been for all participating countries in the past. I assure noble Lords that we will vigorously represent our views on both the Eurojust and EPPO measures.

Moreover, as your Lordships may be aware, Ireland has also said that it will not opt in to the Eurojust proposal at the start and, of course, Denmark cannot participate in post-Lisbon justice and home affairs measures, so we are not isolated or alone in our position. I reassure the noble Lord, Lord Rosser, regarding the other issues we are concerned about. The coalition agreement is clear that the Government will consider the impact of any of these measures on the UK criminal justice system when considering an opt-in to any measure. We have set out our concerns on that point very clearly and it is an area that we want improved.

I conclude by making clear our commitment to the current Eurojust arrangements—

[Lord Hodgson of Astley Abbotts]

I am extremely grateful to the noble Lord and I am sure that I speak for a lot of noble Lords when I say that I am reassured by the energetic negotiations that will take place around the edge of the formal negotiations, and I hope that they are successful. However, the question we are left with is what happens if the final negotiations are not to our satisfaction. What happens to our membership of Eurojust in its present form? It is hard to believe that our fellow members will allow us to remain a member of Eurojust on the old terms and not accept the new terms which we will have no part—at least, no direct part—in negotiating.

Anti-social Behaviour, Crime and Policing Bill

Lord Hodgson of Astley Abbotts Excerpts

Tuesday 29th October 2013 Lords Chamber

[Lord Hodgson of Astley Abbotts (Con)]

My Lords, it is a slightly daunting experience in a Second Reading debate on a criminal justice Bill to follow such a distinguished lawyer as the noble and learned Lord, Lord Hope of Craighead, who has a lifetime of experience of these matters, which he has just deployed to the great advantage of the House over the last few minutes. I, as a non-lawyer, have no equality of arms whatsoever.

I shall focus my remarks on two points. The first concerns the contents of the Bill, the second the process of the passage of the Bill. In regard to the contents of the Bill, I will confine my remarks to Part 12, which concerns changes to our extradition laws. I immediately declare an interest as a trustee of Fair Trials International, a charity which, as its name implies, focuses on miscarriages of justice and sees some of the practical results of the operation of the Extradition Act—in particular, the operation of the European arrest warrant, hereinafter referred to as the EAW.

It is not surprising that Ministers of all parties underline the value of the EAW by referring to the most high-profile cases: terrorism, child exploitation—the teacher running off to France with a pupil—murder, major financial crime. To be sure, the EAW has been extremely valuable in ensuring the swift return of alleged offenders to face justice. However, the majority of the cases are, unsurprisingly, of much lower profile and concern offences where the circumstances are not always open and shut and, in some cases, are downright dubious.

It is worth reminding ourselves just how speedy the process under the EAW can be. A warrant served in London will require a preliminary hearing within 48 hours, at which the individual will be defended by the duty solicitor, who may or may not have a knowledge of extradition law. Within 21 days, there must be a full hearing and, if the case is proved, within 10 days thereafter surrender takes place. So the process can be as short as 34 days. If this were to happen to a Member of your Lordships’ House, we are all capable of finding the right button to press to make sure that we are represented properly. However, I am afraid that not all our fellow citizens are so fortunate. They can therefore be removed speedily and find themselves in a country where they do not speak the language, accused of a crime the full nature of which is not entirely clear to them, operating under a legal system that is entirely unfamiliar, defended by a lawyer who may or may not be competent and with a prison and/or judicial system that may in certain circumstances have features that would not be found acceptable in this country. Therefore, I argue that we need to ensure that a proper level of safeguards is built into this process.

In his opening remarks, my noble friend on the Front Bench reminded us all of the improvements that have been made, and the Government are to be congratulated on that. Sir Scott Baker’s review introduced a number of changes, which the Government have fully implemented. They include the forum bar and the removal of the Home Secretary’s discretion in Part 2 extradition cases. Further changes are planned to deal with trivial offences and to try to avoid lengthy pre-trial detention by the requesting state. However, the Bill provides an opportunity to take this process further and to make the operation of the EAW completely fair and balanced. Therefore, I hope that the Government will look with some favour on amendments to Clause 137 which will seek to address some residual concerns about delays in cases coming to court, would remove some of the ambiguities in drafting and ensure that, in considering whether a case is trial-ready, judges take into account evidence external to the content of the warrant itself, including that relating to the past record of the issuing state in this regard.

Clause 138 addresses the issue of proportionality. While this is an entirely welcome development, it remains a limited test. Therefore, there is a question of whether amendments should remove the judicial discretion as to whether a proportionality assessment should be carried out and extend the list of “specified matters” which a judge may take into account, including the human impact of extradition, the passage of time since the alleged commission of the offence, the costs of extradition, and the public interest in extradition being carried out.

Further, a number of aspects of the operation of the temporary transfer regime envisaged under Clause 140, and the restrictions on the right to appeal envisaged under Clause 141, referred to by the noble Baroness, Lady Smith of Basildon, in her opening remarks, also deserve some discussion and scrutiny by your Lordships’ House. The same applies to the question of the power of a UK court to seek further information when a case of mistaken identity is suspected—a power which I think the court does not currently have.

So much for the Bill itself. I turn to my second point and conclude with a couple of words on the parliamentary process—an issue that has been raised by other noble Lords. I hope that the House will agree that some of the concerns I have raised about extradition procedures are serious ones. In my view, like other aspects of the Bill, they go to the heart of the structure of our civil liberties, painfully built up over the centuries. Yet when the amendments that I have been discussing tonight were tabled in the other place, not one was discussed or debated because of the operation of the guillotine.

It is not for me to comment on the proceedings in the House of Commons but I fear that the reputation of the Government—a Government whom I strongly support—would not be enhanced if the desultory way that the Bill was proceeded with in the House of Commons became more widely known. In particular this is true because many of us, often speaking as shadow spokesmen from the Front Bench in the period before the 2010 general election, were very critical indeed of the widespread use of timetable Motions by the then Labour Government and the consequent impact on the quality of legislative scrutiny. What is sauce for the goose is sauce for the gander.

European Public Prosecutor’s Office: EUC Report

Lord Hodgson of Astley Abbotts Excerpts

Monday 28th October 2013 Lords Chamber

[Lord Rowlands (Lab)]

My Lords, I beg to move the first Motion on the Order Paper in the name of the noble Lord, Lord Boswell. The noble Lord, Lord Boswell, and the noble Baroness, Lady Corston, present their apologies. Both are attending the COSAC meeting in Vilnius. As a member of Sub-Committee E, which prepared this report, I have the pleasure of inviting the House to agree to its recommendation. That recommendation is that the House issue a formal reasoned opinion that the Commission’s proposal to create a European Public Prosecutor’s Office breaches the principle of subsidiarity.

The principle of subsidiarity enshrined in Article 5 requires that the EU should take legislative action,

“only if and in so far as the objectives of the proposed action cannot be sufficiently achieved by the Member States … but can rather, by reason of the scale or effects of the proposed action, be better achieved at Union level”.

No one now denies that there are significant problems with European Union fraud. Indeed, it was our committee which sought to highlight this point in its April report when it suggested that European fraud now ran to the tune of about £5 billion a year. We recognise that there are considerable shortcomings in the system for combating such fraud. We are not arguing this evening that one does not need to address these issues seriously but about in what way one should address them.

The Commission has now come up with the proposal that the way to deal with European fraud is to create a new supranational European body, with an independent power to investigate and prosecute EU fraud offences in national courts, called the European Public Prosecutor’s Office, or EPPO. Our report outlines, in detail, the structures and powers of the proposed public prosecutor’s office. I will identify some of the features that concern us most. The European Public Prosecutor’s Office will have a very wide jurisdiction as to what it investigates and prosecutes. Although the definition of European fraud has yet to be firmly fixed, it will be very likely to encompass any act or omission which has the effect of wrongly acquiring or retaining EU funds or assets or which results in the diminution of European Union revenue. It would include, for example, incitement, aiding and abetting such offences, and corporate criminal liability.

The committee was particularly concerned about the proposal for the prosecutor’s office to gain exclusive jurisdiction over any other offence which is inextricably linked to a European fraud offence. That has the considerable capacity to further expand and involve the office in national jurisdictions and expand its own jurisdiction. We should all be concerned at the nature and potential character of that proposal.

The proposed office will also have exclusive power to investigate and prosecute a wide range of offences. It will have a wide range of investigative powers such as the right to search premises and intercept telecommunications, to be exercised in accordance with national law and subject to obtaining a judicial warrant where national investigators would be obliged to obtain one. It can require information and assistance from national authorities. The proposals also suggest that it can operate under its own rules on the admissibility of evidence.

The committee, in considering these proposals, concluded that the proposal fails the subsidiarity test. The report lists nine bullet points at paragraph 14 to justify that opinion. I will briefly underline or summarise a few of them. First, we suggest that there are better alternatives, based on the current framework, which is built on criminal enforcement by member states. More can be done to prevent fraud happening in the first place through good quality legislation and careful administration of resources by the Commission and member states. We should remember that 80% of all European Union funds are administered by member states themselves. That is a vital factor, which should be taken into account. Co-ordinated action needs to be improved, but we do not believe that this particular proposal for this particular kind of office is justifiable.

The EPPO would undermine the effectiveness of existing EU fraud-fighting organisations such as Eurojust and OLAF. Giving the EPPO exclusive competence would create an unnecessary faultline between national and European Union efforts to counter fraud, introduce complication, and risk the moral hazard that member states will feel that they can leave EU fraud to the European Public Prosecutor’s Office. By contrast, it must be a shared responsibility, particularly given that, as I emphasise again, 80% of all European Union funds are administered by the member states themselves. Our committee was concerned that the proposal would interfere disproportionately in the sensitive area of member states’ criminal law systems, by conferring exclusive powers on the public prosecutor’s office and giving it power to dictate how finite national criminal law enforcement resources are deployed and by allowing it to operate according to its own rules on the admissibility of evidence.

Our committee found that the Commission has not made its case adequately. It underestimates the costs and overestimates the benefits of such an office, particularly as at least two member states, the UK and Denmark, will not be participating. The Government have made it clear that the UK is not going to opt into this proposal and, indeed, that a referendum would be required for it to do so. It is nevertheless, in our view, appropriate for this House to issue a reasoned opinion, and it does not absolve the House from coming to a position on the issue of subsidiarity. All national parliaments have a special role to play in monitoring compliance with subsidiarity in accordance with the treaties, and many national parliaments have been very active on this proposal.

Although Article 86 of the Lisbon treaty specifically envisaged the creation of a European Public Prosecutor’s Office, that does not undermine our reasoned opinion. First, the article is permissive. Our opinion is consistent with the treaty—we do not challenge the right of the EU to create such a body, but are saying that this particular set of proposals is far-reaching, intrusive and infringes the principle of subsidiarity. Under the subsidiarity procedures, national parliaments can force European institutions to review a proposal—it requires, as I understand it, 14 parliamentary votes across the union. Fascinatingly, there has been, in the past few weeks, a growing groundswell of parliamentary opinion across the union critical of these proposals. I understand that we have already reached 14 parliamentary votes and five more are in the pipeline including, I hope, in this House tonight. The House should support the report and our reasoned opinion, and put further pressure on the Commission to review these radical and unacceptable proposals.

[Lord Hodgson of Astley Abbotts (Con)]

My Lords, I rise to support the noble Lord, Lord Rowlands. He has laid out the case as to why this proposal to establish a European public prosecutor’s office does not comply with the principle of subsidiarity with forensic skill, and I will try to avoid repeating what he has said.

I was a member of Sub-Committee E, both at the time of issuing this subsidiary assessment and of the publication of the report, The Fight Against Fraud on the EU’s Finances. That report found that there appeared to be a significant level of fraud within the EU budget, and that official figures appeared, at least to us, to significantly underestimate the volume and value of that fraud. Therefore, at first blush one has some sympathy with a proposal that appears to have as its objective, the sharpening up of the organisational response to these defects. Further to that, our report found significant weaknesses in the work of the European anti-fraud office, known as OLAF, which included tensions between the supervisory committee and the executive arm of the agency; frequent turnover of representation so that consistent policies were not followed through; an absence of classification of fraud offences, which the noble Lord referred to; a reluctance to name and shame countries where it appeared that fraud was taking place; and last but not least, a lack of will among member states to report and follow up suspected cases of fraud.

To be fair to the commission, it has put in place a number of measures to improve OLAF’s operational efficiency, notably the regulations adopted just six weeks ago on 11 September. However, one of the more depressing features of the Brussels bureaucracy—at least to a Euro-agnostic like me—is the tendency, where an organisation is not operating up to par, not to undertake a serious attempt to improve the efficiency, but instead to pile on top of, or in this case alongside, that organisation yet another body to look after it. It is almost certain that an EPPO operating alongside OLAF and Eurojust will surely only serve to undermine OLAF’s work at this time, when the recent changes just introduced, as I mentioned, should give it a new sense of purpose and direction.

I particularly share the view expressed in the report that the anticipated costs of running the EPPO are woefully understated; a net annual cost of just €6.1 million is surely not credible. The reason for the subsidiarity judgment is that the fight against EU fraud needs to be developed from first principles, and they can be done without the introduction of the EPPO. The Commission needs to improve the clarity of its budgeting system; improve its own systems for overseeing that budget; and work more closely, where appropriate, through OLAF and Eurojust with member states so that they investigate and prosecute fraudulent activity with vigour and purpose.

The noble Lord, Lord Rowlands, quite rightly focused on the impact of this proposal on the national criminal law systems of individual member states. He was right to do so and I support him. However, I believe that even if it were possible to overcome these principle objections—and I, for the record, do not believe this would be possible—establishing the EPPO would, on purely practical grounds, likely offend the principle of subsidiarity and undermine the existing organisations of OLAF and Eurojust at the same time.

My concern on this point was underlined by the Written Statement published in Hansard on 15 October, which states:

“Vice President Reding presented her recent proposals for the creation of a European Public Prosecutor’s Office … There was support, in principle, from a large proportion of Member States … but less agreement on issues of substance, including scope; structure; competence; powers; jurisdiction and governance”.—[Official Report, 15/10/13; col. WS 52.]

In effect, the EU member states could not agree how this thing should be proceeded with on any practical level, and that is why I support this reasoned opinion.

[Lord Dykes (LD)]

Since my noble friend described himself as a Euro-agnostic, I do not think I would offend my friend—not noble friend—on the Labour side if I called him a Euro-realist or sometimes a Euro-hesitator about a number of aspects which he analyses with great precision. I am an unashamed Euro-enthusiast and yet, none the less, I think there is agreement about this particular document and report as was seen in the way in which we couched our recommendations having studied this matter carefully.

The European Union is evolving after the Lisbon treaty in what I hope will be a gradually accelerated fashion. It is inevitably slowed down by the realities of economic austerity and slowed down in the national economies of all the member states, not just the leading ones. That is a reality that we see, as well as the constant difficulty of blending different national cultures in all sorts of areas. Perhaps one of the most difficult areas is the law and the legal sector, because of the noticeable difference of the Anglo-Saxon legal system, mainly in the UK and Ireland, the Roman legal systems of the other member states, mixed with some of the new member states since 2004.

That is just the reality; it is not to be hostile to the evolution of Europe by annunciating those realities that we are facing in all sorts of complicated sectors. This one is particularly complicated, and I think that this is an occasion where the member states expressed a general support for the notion and the concept, but maybe for the future, as the noble Lords, Lord Rowlands and Lord Hodgson, mentioned without going into the details. Subsdiarity must be a real element of the Lisbon treaty in order to provide reassurance to the national publics of each member state, particularly the one in this country, which is particularly fragile in its Euro-hesitation; this disturbs me greatly because I think it is unnecessary, but it is because of the fight between the political parties and the rise of UKIP. It is necessary to balance all those things and not to rule out this concept for the future.

There is every prospect that the EPPO concept itself will gain confidence if it goes slowly forward but the national legal systems demand that the national prosecutorial authorities have the upper hand in the initial stages of that timeframe, which may be quite long, over a number of years, to gain reassurance. We have the co-operative tradition anyway between the forces of law and order in the European cockpit. Europol is proving to be a great success—under a UK executive head, I am glad to say—and is developing apace, and so are the other instruments that were mentioned by the two previous speakers in this debate.

If that is the way to do it, it may be that in future the EPPO will have a pragmatic construct, a special piece of instrumentation by way of a regulation agreed between the Council and the European Parliament that would include the national prosecutorial authorities inside the EPPO system to reassure the public, who will feel that subsdiarity will have therefore been satisfied. Our need for subsidiarity in a number of areas needs to be expressed. People should not be nervous about doing that. This is a classic example. I am very glad to be on the same committee as the noble Lord, Lord Hodgson, and to support enthusiastically this recommendation.