—Took the Oath.

My Lords, I am sure that you have all been saddened by the deaths during the recess of a number of noble Lords who have given considerable service to your Lordships' House over the years. In accordance with the traditions of the House, I shall refer in particular to one of my predecessors as Leader, Lord Soames. The many tributes in the press have given details of his outstanding political career and assessments of his considerable achievements in a wide variety of fields. As your Lordships will be aware, those started when he was Parliamentary Private Secretary to Winston Churchill when he was Prime Minister and continued in his many other offices and appointments, including Minister of Agriculture, Ambassador to Paris, Commissioner of the European Commission and the last Governor of Rhodesia.

I shall confine myself to a few more personal comments about the Christopher Soames we knew either as Leader or as a Member of your Lordships' House. I know from what I have been told how much your Lordships valued his work as Leader and his interest in the working of the House. It is also worth recalling that the presence of television in your Lordships' House owes much to his initiative and enthusiasm for greater publicity for our proceedings.

In personal terms, I have little doubt that your Lordships will all remember him best as a big man in every sense of the word, for there was nothing small or small-minded about him. He loved to have his devoted wife Mary and his family around him. He enjoyed to the full the company of his friends and he gave generously of his friendship, for he had a big heart. He enjoyed entertaining and being entertained. Few who visited him, particularly when he was Ambassador in Paris, will ever forget his generosity and his hospitality. I know that he would like best to be remembered for all those qualities, and I have no doubt that such is the memory of him which will live in your Lordships' House.

No doubt there will also be the memory, most precious of all in your Lordships' minds, of the courage with which he faced his last illness. I know we should all like to send our sympathy to his wife Mary and all his family.

Hear, hear!

My Lords, as the noble Viscount has said, we have been greatly saddened by the death of a number of our colleagues during the recess. The noble Viscount has referred in moving terms to the death of Christopher Soames. We all know the wide range of his interests and the great offices, both political and diplomatic, which he held with great distinction. He had a varied and colourful career.

I first came to know him about 35 years ago when he was Parliamentary Private Secretary to his illustrious father-in-law. It is an interesting historical fact that he was probably the most influential Parliamentary Private Secretary in the annals of Parliament. But there are others in this House who served with him and who will speak with greater authority about his role at that time.

Shortly after I entered the other place, I was walking with a colleague along the Library corridor when the Prime Minister and his Parliamentary Private Secretary passed by. We nodded respectfully to the great man. Later that day, Christopher came to me laughing and said that the Prime Minister had asked who we were and he had replied, "Some new Welsh Members"; whereupon Winston Churchill remarked, "They can be quite nice, but you have got to observe them carefully".

Lord Soames also occupied several ministerial positions, including that of Minister at the Ministry of Agriculture, where I followed him in due course and where I discovered immediately that he was very much respected. As the noble Viscount has said, he was an arresting personality and he liked and indeed insisted as Minister upon having his own way.

He was also probably one of the few Members of Parliament who was fortunate in losing his seat, as he did in 1966, for it opened the door to the Paris Embassy—where he was a welcoming and generous host—and to the EC Commission. As a committed European he filled that post with well-known enthusiasm. His return to politics as Leader of this House will be remembered best in history for his short but historic tenure in Rhodesia and Mr. Mugabe's presence at his funeral was a fitting tribute to his service there. This House has lost one of its outstanding personalities and we shall miss him. We send our deep sympathies to Lady Soames and the family.

Hear, hear.

My Lords, the long recess almost always results in our returning with some new and very sad memories, and that is the case today. In particular we mourn the loss of one who was our Leader. But our first thoughts must go not to our own sense of bereavement but to the loss sustained by his family. It is to them, on behalf of all my friends, that we offer our most sincere condolences.

I was fortunate in getting to know Christopher Soames quite well, mainly in the other House, but there is nothing remarkable about that, for there were few people whom it was easier to get to know. He was always a very friendly, outgoing and warm-hearted personality. In particular in his personal relationships he refused to take any account of the difference in status or even of party of those to whom he was showing friendship. He was totally devoid of stuffiness. He was a great man in every sense, as has been said. He had a most remarkable endowment of talents and a remarkable tally of achievements. He was a great soldier, he was a great ambassador and he was a great minister; indeed a Cabinet Minister. Which of us, as has already been referred to, will ever forget his achievement as the last Governor of Southern Rhodesia, and as we all know he was Lord President of the Council and Leader of our House.

Perhaps my first and greatest memory of him will always be for the steadfast way in which he promoted and supported the European cause. Not only did he do remarkable work in this country but there he was in Europe to be seen plainly as the most English of Englishmen, behaving and speaking (incidentally in good French) as a European. He was a great ambassador in Paris and an equally great ambassador in the EC. I am sure that there are hundreds in this country, in Europe and in Africa who will share our sense of deep loss.

Hear, hear.

My Lords, on behalf of the Cross-Bench Peers I should like to associate this part of the House with what has already with eloquence been said about the late Lord Soames. Not much has been said in the press about his distinguished leadership of this House from May 1979 to 1981, interrupted as it was by his five months as Governor General. Despite this interruption he made a wholly beneficial impact on the House not only because he had great presence as Leader of the House but primarily because he clearly cared about the House, its traditions and its future. We on the Cross-Benches appreciated his quality and his respect for Back-Benchers and for those who hold no party political allegiance.

As has already been said, he was the prime mover in promoting television in this House. It was his Motion in December 1983 that led to the initial inquiry, the experimental period and now to the coverage which we have all grown so used to. This was just one aspect of his intense and close interest in the House and its future. We also send our deep sympathy to Lady Soames and her family.

Hear, hear.

My Lords, I beg leave to ask the Question standing in my name on the Order Paper.

My Lords, yes. The Telecommunications Act 1984 established the office of the Director-General of Telecommunications. Among his duties he has to exercise his functions in the way best calculated to promote the interests of the consumers.

My Lords, is not the noble Lord aware that the main objective in privatising British Telecom was to give the customers a better all round service? Can he tell me, bearing in mind the recent very adverse report issued by Oftel, when the Government expect British Telecom to reach the objective set in the Act?

My Lords, clearly there are problems to be tackled and British Telecom sees that as a high priority. However, we should not overlook the scale of BT's operations. There are 22 million customers and complex switching operations, combined with extensive modernisation, which are bound to create problems; but I believe that a privatised British Telecom in a competitive environment is best placed to handle them.

My Lords, is it not the case that the Government are still a major shareholder in British Telecom? After the events on the Stock Exchange over the past 36 hours they are liable to remain so for some time. Therefore, is it not right that the Government, as a shareholder, should use their authority to require BT to pay more attention to proper complaints from consumers, to publish data on sales and what goes wrong, as BT used to do, and to exercise proper discretion in the choice of its chairman? Above all, should not British Telcom stop overcharging its clients?

My Lords, as the noble Lord knows, British Telecom operates under a licence which contains detailed conditions on service. The Director-General of Telecommunications is responsible for monitoring and enforcing that licence. The choice of chairman is a matter for the company, not the Government. The Government welcome Mr. Vallance's commitment to tackle the problems with vigour and to improve the company's services for its customers.

My Lords, does not the noble Lord agree that the experience with British Telecom indicates that these complicated arrangements such as Oftel and others are no substitute for parliamentary protection for the consumer? Will the Government bear that in mind before taking any other steps which may have adverse consequences; for example, with the electricity and water industries?

I seem to remember, my Lords, that before the privatisation of British Telecom it was rare to receive any reply to complaints.

My Lords, the noble Lord referred to problems that have arisen, but together with many other people I had a perfectly good telephone service before privatisation. Can he explain where the competitiveness comes in?

My Lords, the competitiveness comes from an organisation called Mercury, which is increasingly making an impact by offering customers the possibility of choice. Its services are at present predominantly for business customers but trials have started on residential services.

My Lords, does my noble friend agree that, particularly in view of what has been said about the choice of chairman, this House and this country owe an enormous debt of gratitude to Sir George Jefferson for the work he did during the very difficult and complex time when he was in the chair and started the company on its new role?

My Lords, I join my noble friend in that tribute.

My Lords, does not the noble Lord admit that the Government are genuinely concerned by the widespread dissatisfaction of customers with the performance of British Telecom since privatisation? Will he say precisely what the Government propose to do to allay that dissatisfaction? Will he go further and advise his right honourable friends to defer any further privatisation, especially in the water industry, at least until they get the position right?

My Lords, we believe that the director-general has sufficient powers to enforce the rigorous provisions of British Telecom's licence and to amend these conditions either by agreement or by reference to the MMC. British Telecom and other operators are well aware of Oftel's powers. I should add that the director-general has not suggested that he needs further powers.

My Lords, I beg leave to ask the first Question standing in my name on the Order Paper.

My Lords, we are satisfied with progress on implementation of Fresh Start. It is now in place at 72 establishments, including Brixton, the first in the London area.

My Lords, does the Minister accept that prison officers are fully committed to the principles and the implementation of the Fresh Start proposals? Will he now acknowledge that his original estimates of the number of prison officers required for Fresh Start, which were based on a consultant's report, were a very bad underestimate? Does he further agree that if an additional 240 prison officers were produced that would greatly relieve the conditions in prisons and in police cells?

Is it not a fact that the present troubles stem directly from the Government's failure to honour the agreements made to produce enough prison officers to man prisons to the Fresh Start levels? Can the Minister tell the House why, in addition, he also intends—

Order! One question!

to impose a further 10 per cent. reduction on costs over the next few months?

My Lords, Fresh Start is a complicated area arising from considerable negotiations among the Home Office, the Prison Officers' Association and the governors. Earlier this year governors and prison officers overwhelmingly decided, by huge majorities, to accept the terms of Fresh Start. In no way has the Home Office deviated from any of the commitments in Fresh Start.

As regards the extra staff, I can assure the House that this year we are recruiting 750 officers especially for Fresh Start. Over the past seven years, from 1979 to 1986, prison officer staffs increased by 20 per cent. while the number of inmates increased by 11 per cent. This year we are recruiting over and above wastage about 1,400 extra staff.

My Lords, can my noble friend tell the House in the context of what he just said what exactly is going on at Wandsworth and whether the industrial action which I understand is taking place there is claimed to be justified by an increase in the number of inmates or by a reduction in the number of prison officers?

My Lords, it is with regret that I must tell the House that industrial action at Wandsworth began at the end of July. On the specific point raised by my noble friend, the prison officers have claimed that they are short of staff compared with previous years. But from figures it is found that, although the population shifts throughout the year, if one takes particular days of the year, for example, on 1st July in 1985, 1986 and 1987, the population was virtually the same, as was the number of discipline officers. There is no reason for Wandsworth to take industrial action.

My Lords, does the noble Earl remember that when Fresh Start was put before the House it was given a warm welcome from all Opposition Benches? However, we warned the Government that as far as we could see the scheme depended entirely on providing enough staff to reduce overtime to nine hours a week, which I believe is the present scheme. Is he aware that certainly in one prison of which I know, and I think in a number of others, Fresh Start has commenced without the provision of the necessary staff? That seems to be a very dangerous procedure.

My Lords, we had hoped to introduce Fresh Start throughout the prison service on 1st July. That did not prove to be possible because we did not receive the results of the ballots early enough. Therefore it was agreed to phase in the scheme. Half-way through the phasing in the Home Secretary, the Prison Officers' Association and the governors agreed that 1st November would be the cut-off date on which we wanted all establishments on Fresh Start. Those staffs with a differential between the 1st November figure and the figure that had been agreed between us would be in place by 28th February. That was agreed and that is why we are recruiting extra staff this year and why our training schools are full. In addition, we are recruiting 160 in hired accommodation.

My Lords, does the noble Earl agree that the basic evil behind all this and all the questions and answers is the terrible, critical overcrowding of our prisons? Will he bear that in mind when we consider the provisions of the Criminal Justice Bill this afternoon and hereafter?

My Lords, as the noble Lord will be well aware, only about half our prisons are overcrowded. The other half are at capacity or less than capacity. We were seriously concerned about the huge number of people in our prisons, which is why the Home Secretary took the action that he did in the middle of July which resulted in the release of some 3,000 short-term prisoners. Given that, which was something that the Prison Officers' Association wanted, it is sad that the association has not responded better and has subsequently gone on to take industrial action.

My Lords, will my noble friend say how many prisoners are at present in police cells who should rightly be in prisons?

My Lords, we were well on our way to reducing the number of prisoners in police cells to zero, as the Home Secretary wished to do when he made his Statement in April. But as a result of industrial action in a limited number of prisons I have, with regret, to inform the House that at 1 p.m. yesterday we had 1,370 people in police cells. That is taking up manpower in 30 out of 43 forces and is entirely due to industrial action.

My Lords, is the noble Earl aware that we shall obviously want to go into the question of police cells during our debate on the Criminal Justice Bill? There are a number of amendments down on that point. Is he further aware that many of us welcome the progress that has undoubtedly been made in the implementation of Fresh Start? A great deal of progress has been made and that reflects well on the local branches of the POA and the Home Office officials who have been responsible for that. Is the noble Earl also aware that it is deeply depressing once again to hear about these wearisome disputes going on in a limited number of London prisons, caused by the intolerable behaviour of a few POA branches? Is he aware that the only result of that is an attack on the civil rights of inmates, because they do not receive the privileges to which they are entitled?

My Lords, I am grateful for the support that the noble Lord has given us on Fresh Start. It is deeply depressing that we are back into industrial action. That is why the Home Secretary summoned the NEC of the POA to his office on Monday last week and gave it a firm warning that unless it managed to put its house in order and went back to normal working we should have to take other measures.

My Lords, the Minister has drawn attention to the situation in London prisons. May I draw his attention to the situation at Grendon? I visited Grendon two or three weeks ago and I have had the position confirmed in writing. The POA is being invited to operate the Fresh Start propoals with 50 fewer prison officers than the number agreed to be the proper complement by the governor, the assessment team and the POA. Does the Minister accept that some disputes need to be resolved around the table? If there are intolerable conditions inside prisons due to overcrowding they are detrimental not only to the prisoners but to the prison officers.

My Lords, one of the great things about Fresh Start is that it allows for local negotiation. Where that has not been completed, I hope that it will be completed as soon as possible so that we can get many of the establishments onto Fresh Start, which is surely to the benefit of prison officers. That has been proven in the 70-odd prisons that have already gone onto Fresh Start and it will result in a better regime for the inmates.

My Lords, I beg leave to ask the second Question standing in my name on the Order Paper.

My Lords, Royal Ordnance is now owned by British Aerospace and free to operate unfettered in the private sector without the hindrance of government control. We have no plans to monitor this company any differently from other non-publicly owned defence contractors save in respect of the specific assurances relating to competition and ownership given by British Aerospace at the time of the purchase.

The planned closure of RO Enfield is of course unwelcome from the point of view of those who work there, but the decision was one for the management and was taken on purely commercial grounds without reference to Ministers.

My Lords, is the Minister aware that the new owners of the Enfield small arms factory intend not only to close the factory but to sell the land at an estimated profit of £100 million—almost 50 per cent. of what they paid for 12 factories? Has the Minister any concern for the local community in Enfield and the workforce? As a result of privatisation the local economy will be decimated and hundreds of people will be put out of work.

My Lords, I do not think the noble Lord is right in either of his suppositions. As for the value of the site, far from the figure of £180 million which I think appeared in the press—

It was £100 million.

My Lords, our assessment of the site value is £1.5 million. That of course is substantially less. As for the people who work there, of course I am sorry that their employment opportunities will disappear but as the noble Lord knows that will not happen immediately. In that context, 450 or 500 new job opportunities will emerge in Nottingham.

My Lords, does the noble Lord agree that defence planning necessarily involves making some provision for spare capacity in the defence industries? Is he satisfied that the redundancies now being made in the newly-privatised industries are not just commercially profitable, as they no doubt are, but are in the national interest? Surely it is the Government's duty to bear that in mind and not just to remove themselves from this problem altogether.

My Lords, yes, it is of course our duty to ensure that we can procure our weapons and associated products when we need them from time to time. Current orders at Royal Ordnance which are being executed at Enfield will, I understand, if not completed in time be transferred to Nottingham. Additional orders have been placed with Royal Ordnance, for example, for the SA 80 weapon which I gather will be made at Nottingham. We are satisfied that Royal Ordnance will retain important capacity in this area. In any event, it is not the only company in this country that can meet our requirements.

My Lords, has the noble Lord, as he was required by courtesy so to do, warned his former colleagues that he was once more going to repeat the criticism that they interfered unwisely in the affairs of the Royal Ordnance factories?

My Lords, I am not sure that I follow the question, but the position now is that Royal Ordnance is part of the private sector and Ministers are no more entitled to interfere in that company than they are in any other company in that sector.

My Lords, the noble Lord said that he did not fully follow my question. He has just told us once more that the advantage of this is that the Government are no longer free to interfere in the affairs of the Royal Ordnance factories.

My Lords, indeed. I regard that as an important advantage.

My Lords, if these are purely commercial decisions, will the noble Lord say in what sense the national interest is protected?

My Lords, the national interest requires that we retain the necessary industrial capacity to meet our requirements in times of tension or war. We are entirely satisfied that that position is covered.

My Lords, the figure the Minister gave for the value of the site may well be right, but the company did not buy just the site; it bought the land around the site. In that part of England, land is valued at in the region of £1 million an acre. The company bought many acres and it intends to sell land and make a huge profit. Having sold assets to an asset stripper—in this case that is what it is—do the Government want merely to wash their hands of the local community and the people who work there?

My Lords, if I may say so, I do not think the noble Lord is doing justice to the situation. The valuation of the site, including the land, is about the figure I gave. It is industrial land at present.

The interests of the people who work at Enfield are matters for Royal Ordnance under its new owners. However, the noble Lord may be reassured to know that for those who cannot be found work at Nottingham or in some other part of Royal Ordnance—I know that British Aerospace plans to do its best to find work within the organisation for as many as possible—the redundancy terms that applied when Royal Ordnance was part of the Civil Service remain broadly in place.

My Lords, I beg leave to ask the Question standing in my name on the Order Paper.

My Lords, no.

My Lords, I am very much obliged for that informative Answer. If this suggestion is not welcome, when may we be told what the Government's proposals will be to avoid the bunching of bank holidays, which they themselves so much deplore?

My Lords, regarding Easter, which is the Question on the Order Paper, Section 2(2) of the Easter Act 1928 states:

"regard shall be had to any opinion officially expressed by any Church or other Christian body",

before an order is made to fix the date of Easter. There is no immediate prospect of the Orthodox Churches making progress towards a common date, and we understand that the Vatican remains opposed to unilateral action.

My Lords, can the noble Earl say whether the Government are considering moving the first bank holiday in May to a Monday later in the year, perhaps to July or October, to avoid the possible bunching which often takes place between that bank holiday and Easter?

My Lords, with respect, that is another Question.

My Lords, having regard to the Government's conduct of national affairs, would they consider holding a national holiday in celebration on 1st April?

My Lords, I am happy always to consider any sensible suggestion and I shall put that one forward as a possibility.

My Lords, is the Minister aware that the 1928 Act merely says that the Churches are to be consulted? Is it supposed that all the Churches would ever agree about anything?

My Lords, I understand that under the World Council of Churches the unanimous agreement of some 239 member Churches will have to be obtained. Following the debate which the noble Lord initiated on 5th April 1984, my noble friend Lord Elton wrote to the Orthodox Archbishop of Great Britain and Thyateira to ask whether he would ask the Economical Patriarch in Constantinople how matters stood on adopting a common date. The answer was not very helpful to the noble Lord.

My Lords, surely the noble Earl does not defend the ridiculous position in which in this year in a period of seven weeks we had no fewer than four public holidays and none throughout the remainder of the summer until the very end of August, the very time when people would like public holidays. There may be the difficulties that the noble Lord experienced with the Churches, but there are four holidays to be considered. Is it not time that we took a serious look—instead of always repudiating the suggestion—at a more intelligent arrangement of public holidays than we have in this country?

My Lords, the reason why I said that that was another Question earlier was that the matter was given fairly full discussion on 15th July in your Lordships' House.

My Lords, with regard to the noble Earl's use of the term Economical Patriarch, has he in mind the Chancellor of the Exchequer?

My Lords, it may be for the convenience of the House if I announce that the Committee stage of the Criminal Justice Bill will be adjourned at approximately 7.30 p.m. for approximately one hour and that during this adjournment the Charities (Northern Ireland) Order 1987 and the Water (Fluoridation) (Northern Ireland) Order 1987 will be taken.

My Lords, I beg to move the Motion standing in my name on the Order Paper.

My Lords, I beg to move that the House do now resolve itself into Committee upon the Bill. Before the House goes into Committee I should explain that in order to avoid having the debate on my Amendment No. 31, which is a new schedule on questions as to sentencing, next Thursday, 22nd October, it has been agreed through the usual channels that Amendment No. 31 should be postponed until after consideration of Clause 61. When the House has gone into Committee and before the amendments are called, I therefore propose to move the appropriate Motion.

I beg to move that the House do now resolve itself into Committee on this Bill.

I beg to move that consideration of Amendment No. 31 be postponed until after Clause 61.

moved Amendment No. 2:

Page 100, line 25, leave out ("facts on which his return is granted") and insert ("evidence on which his return is grounded").

May I ask the Minister what is the particular significance of the word "evidence" rather than "facts"? When one is dealing in the schedule with the Fugitive Offenders Act on page 100 of the Bill and the restrictions on sending people back, the words used are the restriction at "any lesser offence disclosed" by the evidence on which his return is granted.

If one looks at the restrictions in the main body of the Bill in Clause 3 of page 4 at line 41, the word which is used there is "facts". Clause 3(4)(b) states:

"an offence other than an offence excluded by subsection (5) below, which is disclosed by the facts in respect of which his return was ordered".

In the Bill itself one has a reference therefore to the facts when one is dealing with the restriction. Presumably the facts about which we are talking—the facts in respect of which his return was ordered—are the facts which we see in Clause 4(2)(b), that there shall be furnished with the request from the foreign government,

"particulars of the facts upon which and the law under which he is accused or was convicted (including"—

the word now used is "evidence" but I understand it will be changed to "information"—

"sufficient to justify the issue of a warrant".

I am asking the Minister the significance of using the word "facts", when one is dealing with the Fugitive Offenders Acts, and changing it to "evidence".

Surely there is a need to look at this matter because there is a presumption that if different words are used the legislature means something different. It is extremely difficult to understand what the difference would be between the "facts" on which a return is granted and the "evidence" on which the return is grounded. If there is a difference, then of course I accept that and also that my intervention is out of place. But if there is really no difference then surely there is something to be said for the observations made by the noble Lord opposite.

The word "evidence" is broader than the word "facts" because evidence may include not only facts but expressions of opinion as well.

I should like to add to this interesting debate on semantics, by differing, if I may respectfully do so, from the two noble Lords who have just spoken. On the one hand, I should have thought that the word "facts" betokens matters which are established. They are facts. On the other hand, the word "evidence" merely means that somebody has testified to something. It may be found to be fact or it may be found not to be fact. The word "evidence" therefore is different from "facts".

However, the point that the noble Lord, Lord Hutchinson, raised is pertinent. Indeed, I adopt completely what the noble Lord, Lord Campbell, said; namely, that if a word is to be used and it means the same thing in a statute when it is used, for heavens sake we should use the same word and not muddle the issue when matters come before the courts. The Minister may care to reflect whether, having changed "facts" to "evidence" in one place, he intends to do so in every other place where it is applicable.

I fear that we have started as we shall continue with a great deal of legal advice to be summed up by me as a non-lawyer. I feel very much out of place among your Lordships.

At Question Time earlier the noble Lord, Lord Mishcon, suggested that I should consider what in his view was a sensible suggestion. The noble Lord, Lord Hutchinson, has raised a sensible suggestion as was the particular point raised by the noble Lord, Lord Mishcon, and my noble friend Lord Campbell of Alloway with regard to using the same words. Perhaps that is something that I could consider and come back on at a later stage. I beg leave to withdraw the amendment.

moved Amendment No. 3:

Page 100, line 35, leave out paragraph 12.

I have a short question to ask the noble Earl. I hope the notice of it reached him, although upon hearsay I believe it did not. I think it was quite right to reject the idea of a Keeling schedule in respect of the three Acts with which we are concerned in this schedule. But in those circumstances can the noble Earl assure the Committee that the relevant statute will be immediately reprinted in the Statutes in Force as they are amended by this schedule?

Regrettably, I did not receive notice of the question that the noble and learned Lord has asked me, but I can assure him that the statutes will be revised as soon as practicable. Whether that will be immediately I shall leave for the lawyers to decide.

had given notice of his intention to move Amendment No. 4:

Page 3, line 41, leave out subsection (5).

moved Amendment No. 5:

Page 4, line 42, leave out from ("ordered") to end of line 45.

Very briefly, I oppose this amendment. As the noble Lord appreciates, extradition is based on reciprocity. Reciprocity in this relevant context is based upon the convention. It is true, as the noble Lords says, that this involves very serious changes in our extradition law, but surely this is the same theme—more or less—as that which runs through Amendments Nos. 4, 9 and 11.

The problem is that under the convention extradition in essence becomes in effect an administrative act. Whether one likes it or does not like it, with respect to noble Lords, is in a sense slightly beside the point. The point is: can we honour the spirit of the convention unless we accept the principle—true, a novel principle to us and perhaps one which we do not like—that reciprocity here involves the acceptance that extradition is in essence an administrative act?

I join with the noble Lord, Lord Hutchinson of Lullington, in commending this amendment to the Committee. The noble Lord has explained Clause 3(4). It contains an important safeguard but it is seriously emasculated by subsection (7), which this amendment seeks to delete. Let me give an example. Suppose a citizen of this country is extradited to face a charge of theft—let us say perhaps not a particularly serious theft—and he is acquitted in the foreign country. What is to stop the requesting state seizing the opportunity of charging him with any number of infinitely more serious crimes?

The answer is that Clause 3(4) entitles him to leave the requesting state, should he wish to do so, before any further proceedings are taken against him. The requesting state must confine itself to the offence for which he is extradited—that is paragraph (a)—and to other offences disclosed by the same facts; that is paragraph (b). The problem is that identified by the noble Lord. Subsection (7) then gives the Secretary of State a very broad discretion to waive this protection. It need only appear to him under subsection (6) that the particular individual could and would be extradited if extradition were to be requested by the foreign state on these additional charges that it is bringing forward.

Along with other noble Lords, I shall shortly be urging the importance of retaining in all cases the long-standing rule that a prima facie case must be made out against a citizen of this country before he is extradited. I hope the Committee will be persuaded of that; but if noble Lords are not persuaded of that, the prima facie rule would remain except where it is expressly abrogated by Order in Council. We anticipate that such orders will be confined in the first instance to member states of the Council of Europe, and I ask the noble Earl to confirm that this is so.

In all other cases therefore the prima facie rule will continue to be regarded, rightly, as a vital protection against ill-founded requests for extradition. But it is fatally undermined by Clause 3(4)(c). Provided the requesting state can find some extradition crime in respect of which it can put together a prima facie case, it can then charge the person extradited with any other extradition crime and the evidence it relies upon will not have been evaluated by an English court. All that is required is the Secretary of State's consent.

Does the Minister accept that the Secretary of State in acting under subsection (6) would have to be satisfied on evidence that there was a prima facie case before giving his consent to any further charges? This is an important question and we would welcome a clear answer. If he does not accept that, the provision is no real protection. If he does accept it, then surely neither the Secretary of State nor his civil servants are qualified to take a decision of that kind. The decision about whether there is a prima facie case is a decision for the courts, not for a Minister. When I see the courts being side-lined in this way, I nourish the gloomy belief that our civil liberties will suffer.

I therefore urge the Minister to think again and to appreciate that, as the provisions at present stand—in particular, subsection (6)—he is undoubtedly encouraging judicial review applications to the courts against the Secretary of State. These applications will assert that the Secretary of State has breached subsection (6) by coming to a view that could not reasonably be entertained that there was a prima facie case on the evidence put before him by the foreign state in support of these additional charges, I suggest that it would be far better to keep the Secretary of State out of those decisions. They are not decisions that are naturally for him; they are decisions that are naturally for the courts. I commend the amendment to the House.

The effect of the noble Lord's amendment would be to prevent the United Kingdom from consenting to the prosecution of a returned fugitive for offences not covered by an extradition. Subsection (4) prevents the extradition of a fugitive if arrangements have not been made to place restrictions on his prosecution on his return to the requesting state. Some form of speciality rule is an almost universal feature of extradition arrangements. According to the principle of speciality, the requesting state should specify the crimes for which the fugitive is sought and the requested state should exercise some control over the prosecution of the surrendered fugitive for other crimes committed before his surrender. The existing law in respect of foreign extradition is found in Section 3(2) of the Extradition Act 1870. This provides that a fugitive shall not be surrendered unless there is an arrangement that he shall not, until he has been restored or had an opportunity of returning to the UK, be prosecuted for any offence other than the extradition crime upon which his surrender was grounded. This is a very inflexible requirement and means, for example, that if, following the return of a fugitive, evidence of a serious crime comes to light, it is not possible for the requesting state to prosecute a fugitive for that crime.

The noble Lord, Lord Hutchinson of Lullington, said that the speciality rule had been a part of law for some considerable time. I am sure he has not forgotten that a more flexible version of the rule is found in Section 4(3) of the Fugitive Offenders Act 1967 which was introduced by the Labour Party and which regulates our extradition arrangements with Commonwealth countries. This version of the speciality rule prevents the return of a fugitive unless there is an arrangement preventing his prosecution for any offence committed before his return other than the offence in respect of which his return was requested; any lesser offence proved by the facts before the court of committal; or any other extraditable offence in respect of which the Secretary of State may consent to its being dealt with. This provision reflects the Commonwealth scheme for the rendition of fugitive offenders and is also broadly similar to Article 14 of the European Convention on Extradition.

Subsection (4) follows the approach taken by the Labour Party in the 1967 Act and the European Convention on Extradition. Thus the fugitive may only be dealt with in respect of the offence in respect of which his return is ordered, any other offence disclosed by the facts in respect of which his return was ordered (thus allowing charges to be reformulated, but only, in accordance with subsection (5), if the resulting charge would have been extraditable under the Act) or any other extradition crime with the Secretary of State's consent. This consent provision, which the amendment seeks to remove, must be exercised subject to certain conditions. First, any new offence must be an extradition crime. This is defined in Clause 1 as an offence punishable with 12 months' imprisonment or more. Secondly, the Secretary of State may not consent to the prosecution of a fugitive for an offence not covered by the extradition if it is apparent that his extradition for that offence, if it had been requested, could not have lawfully been made under the Act. Thus it would not be possible for the Secretary of State to give his consent to the prosecution of a fugitive for, say, a political offence. This protection is afforded by subsection (5).

The main objection to such a provision is that the requesting state might conceal certain charges outstanding against a fugitive and seek consent to try him in respect of them only after his return instead of including them in the original request. It would undoubtedly be more difficult for the fugitive effectively to invoke the safeguards provided in the requested state's legislation once he had been returned. However, if there were any doubt about the grounds on which consent had been sought, it would be open to the requested state to seek further information in order to satisfy itself, for example, that the alleged offence was not of a political nature. Any abuse of this kind would doubtless be dealt with in the usual way by representations through diplomatic channels. Moreover, if the fugitive had any reason to think that his surrender was sought in order to punish or prosecute him for political offences or, indeed, for any other offences than those included in the request for his extradition, he would have an opportunity to raise this with the requested state while the application for his surrender was under consideration. As I have indicated, a provision enabling requested states to grant consent in this way is a feature of the European Convention on Extradition and there is no indication within the Council of Europe that it has given rise to any particular difficulty.

Given the fact that all the safeguards available under the Bill must be applied in cases where consent is sought, I hope the Committee will agree that a provision on these lines is a prudent addition to the legislation. It is not expected that such a provision will be invoked in many cases, but where evidence of serious offences does come to light after an extradition has taken place, it is clearly in the interests of justice that a defendant should be brought to justice even though the matter was not covered in the original extradition request.

That takes me on to a comment about the European Convention on Extradition, which has been in effect for some 30 years. We are notably one of the few countries but by far the most important country not to have ratified the convention. It is of serious concern throughout Europe that we have not done so. It is proving a major stumbling block in our negotiations throughout Western Europe to get a more comprehensive agreement on crime where people who are committing crimes can easily hop from one country to another. Whenever we try to raise this matter in Europe, it is fair to say that they point the finger at us and say, "You must put your house in order because you are the ones who are causing so much trouble by not ratifying the European convention". That is something that we wish to do and that the Bill will enable us to do. As a result, we will no longer be the black sheep of Europe.

On the matter of prima facie, I am sure that the noble Lord, Lord Irvine of Laing, would prefer me to discuss the point under Amendment No. 9. To do so now would take us at a tangent from the point under consideration. It is an important matter with which I should like to deal in some detail. On that basis, I hope that the noble Lord will exempt me from commenting at this stage.

If I may say so, I prefer to be the black sheep of Europe and to maintain our tradition of being the white sheep of the liberty of the subject.

I think that the argument is becoming a little confused and if I try to clarify it I hope the Committee will not think that I am making it even more confused.

As I understand it, the short question before the Committee relates to whether a person being extradited from these shores by an administrative act, this person having been extradited on one offence which has been looked into in accordance with the provisions of this Act, can be charged by the state to which he has been extradited on an entirely different offence provided it is an extraditable offence. It is absolutely right, as the noble Lord who took part in the debate earlier said, that the whole machinery of extradition—and it is all a matter of reciprocity—is being turned into an administrative machinery when it has been a judicial machinery. It is on that point that I want the Members of the Committee to concentrate for a moment before, as the highest court of justice in the land—

Oh!

I thought it was the usual learned comment of the noble and learned Lord but it was made to somebody else and not to me.

As I was saying, it is on this issue that the Committee should concentrate. Traditionally the cry of liberty of the subject has been heard in the corridors of our courts. When it is heard by any court official of our High Court most judges' lists are put on one side and the matter that deals with liberty of the subject takes precedence. Everything the noble Earl said in answer to the noble Lord, Lord Hutchinson, might have been extremely relevant, and indeed effective, if one took it for granted that the old traditional prima facie rule was still going to apply when we finish with the Bill.

I believe the Committee would say that if indeed there is another more serious or as serious an offence for the foreign state which is to try the individual, then provided there is a prima facie case against him it is all quite just that that should happen. What the noble Earl was saying, not because he was in any way trying to mislead the Committee—he never does—was, "Now look, we have a convention with Europe. We have done this with the Commonwealth and it has worked out all right with the Commonwealth. These very words apply". And in order to get a glint into his eye and some amount of support from his friends around him he reminded the Committee that it was the Labour Government who indeed enacted this provision in regard to the Commonwealth. I expected him to feel that as a result of that, and if he had left it at that, we on this side of the Chamber should feel some guilt for the way in which he was arguing this afternoon. No such guilt is felt, because at the date of that Bill and that Act when it was passed through Parliament the prima facie rule still applied.

What we have to remember here, arguing this before we reach the famous Amendment No. 9, and the famous Amendment No. 11, as it will appear in your Lordships' annals, is that we are presupposing if we support what the noble Earl says that the prima facie rule will not apply and that therefore the situation is not as it is with the Commonwealth now, not as it should be if our courts are to protect the individual concerned and not as it should be if the words "liberty of the subject", having once been cried in our House we turn a deaf ear to them. It may be sensible—it is not in my hands to say this; it is in the hands of those who have moved the amendment—not necessarily to press a vote upon the amendment at this stage but to remember our opposition to it if in fact we fail, as I hope we will not, when we reach Amendments Nos. 9 and 11, when the "liberty of the subject" cry will again go before the highest court in this land.

If I may add weight to the last point of the noble Lord, Lord Mishcon, it is a wise suggestion, because the prima facie rule is the key to all of this. Although I should like to answer him it is perhaps best if I deal with that in the same way as I suggested I deal with the point of the noble Lord, Lord Irvine of Lairg, on prima facie. I should like to come back to that when we come to the later amendments.

Perhaps I may come back to the original point which was made when I moved the amendment. The Minister has enlarged the whole breadth of this discussion by referring to black sheep in Europe and by saying that we are the odd man out. The point the Committee should appreciate is that for 30 years, whatever the noble Lord, Lord Campbell, may say, Governments have steadfastly refused to ratify this convention which turns extradition into a purely administrative act. We may be the black sheep but we have a different legal system from the one which is followed on the Continent. The overwhelming fact to which we shall come later is that in Europe they will not extradite their own citizens whereas we in this country alone are prepared to do so. If you are not extraditing your own citizens you can very happily say, "Let us make extradition an administrative matter. Let the two governments get together. We do not mind. Let us get this foreigner sent back to where he belongs." But that matter will be raised in a moment on the later amendments.

The point here is a perfectly simple one and one which the Minister has not answered. Does this clause which we seek to remove give the Secretary of State full power to consent to anyone who is sent back to a foreign state charged with a particular offence being tried for an infinitely more serious offence or an offence quite different from the one for which he was sent back? Ever since 1870 that rule, the speciality rule, has been observed through thick and thin in order to prevent a small charge being made when really what the Government are up to is getting a man back when they know they would never get him back if they had put forward the other offence, and having got him back then charging him with the more serious matter. We have always set our face against that and before deciding what to do here I ask the Minister whether that is the position.

With the greatest respect to him it has nothing to do with the abuse of charging a man with a political offence or charging him with one of the offences here which is not allowed. That does not arise and that is not the point. The point is the one which I have already put forward twice and which I shall not repeat. If a person appears and is sent back, is there anything in the Bill which will allow that person to dispute the Secretary of State's consenting to him being charged with something which has never been laid before the court, which has never been mentioned up to that moment and which did not form part of the request? Is there any redress for this person who is sent back on a matter which carries 12 months' maximum, only for it to be found that the Secretary of State has agreed that he should be tried for something which carries life when he gets back?

Is he to go back without redress; or is there in this Bill somewhere some safeguard, if this power is to remain, by which that person can get up and say, "That is wrong. That is unlawful. That should be subject to judicial review. I am going to dispute this"? Is that possible, or is it, as it appears in this clause, that the Secretary of State can simply consent as a matter of administration as between him and the foreign state? If that is the situation I would suggest that this part of this clause should be removed from the Bill.

The noble Lord, Lord Hutchinson, said roundly that the signatory states—I assume it is the signatory states who have ratified the convention—do not extradite their own nationals.

That comes as some surprise to me, having studied the subject a little. I wonder whether the noble Lord, Lord Hutchinson, has any material upon which he would support that assertion, because I understand it to be wrong.

The noble Lord must know that most European states claim an extraterritorial jurisdiction over their own nationals.

Yes, but the noble Lord will appreciate not in context with the implementation of this convention. This is the very reason that my noble friend the Minister has said that this is causing such enormous practical difficulties because in a sense—forget about black sheep—we are the odd man out.

I shall try to respond to the noble Lord, Lord Hutchinson of Lullington. We have to bear in mind the countries from which we wish to benefit in the extradition sense when we sign the European Convention on Extradition. Having reached the stage where we can ratify that convention, and we wish to seek to annul our present agreements and institute further agreements, we made a concession in another place when the Bill was in its previous form that such Order in Council would have to be laid on the Table in both Houses of Parliament. That gives us the opportunity in this Chamber to say, "No, we do not like the system of justice that that particular country operates".

What we are talking about therefore is a small number of Western European countries where we are having the most difficulty with extradition at the moment (and where those countries are saying to us that it is not worth even considering an extradition) but whose system of justice we respect. Yes, it might be different, as the noble Lord says, but it is no better or no worse for that; it is different. Therefore the provisions in the Bill try to secure a better system of justice with those Western European countries.

In each case it will have to be considered by Parliament. If we are to say, as really the noble Lord says, "Sorry, we are different; we intend to remain different because that is what we have been for so many years, even though we thoroughly approve of the way that you run your criminal justice system", we shall continue to be the odd man out in Europe and shall find it difficult, when it comes to reciprocity, to get alleged criminals from them; and equally they will find it virtually impossible to get alleged criminals from us.

Surely the right thing to do is in the Bill, which is to say that now is the time, notwithstanding it is 30 years down the road, to sign the European convention. It has worked perfectly satisfactorily with other states in Western Europe. They have not found the difficulties or hang-ups that we have in order to have a sensible criminal justice system that does not adversely affect the liberty of the subject. The time must now come when we say, "Yes, we have been in Europe a sufficiently long time. We must now ratify the convention". In order to do that we must be prepared to change some of our ways, and I believe that the amendment that the noble Lord, Lord Hutchinson, puts before us sets us back to where we have been and from where we want to go.

The noble Lord, Lord Mishcon, gave the Committee good advice; that is, that after having listened to the different points from various learned quarters, any decision on this narrow point should be left until we have debated Amendments Nos. 9 and 11 to see whether or not what comes out of those would meet the point. However, I should like to know whether it is a fact that at present we extradite our nationals to other nations and other countries do not extradite their nationals to us. Is that the position or is it not? We have had two points of view and I am interested to learn which is the right one.

Surely the noble Lord means extradite from, and not to?

I accept the correction of the noble Lord, and I should like to know the answer.

Because of our different system of justice, to which the noble Lord, Lord Hutchinson of Lullington, referred, it is more common for us to extradite than it is for some of our friends in Western Europe. But there has been significant change in Western Europe of late and they are moving quite speedily towards the system that we operate of extraditing our nationals. In particular, I refer my noble friend to Holland, where I believe that on 1st January next year they are going to bring in provisions in order to enable the extradition of their nationals.

However, I think the point is that it is based on a different system of justice. It is because ours is common law and theirs is civil law, as I understand it—I have noticed the noble and learned Lord opposite nodding, which makes me worry that I might have got it wrong—which is the reason for our extraditing, whereas those countries with a civil law base to their criminal justice system do not have that requirement.

What worried me was that the Government are contemplating a fundamental abrogation of the common law rule that there should be a prima facie case. It is the basis of all our summary jurisdiction, indeed almost all our criminal jurisdiction, and the noble Earl is cheerfully, blandly and genially going to do away with it.

That is why I supported the noble Lord, Lord Mishcon, that we move to prima facie and get on with it.

I should hesitate to speak in the presence of so many experienced lawyers, but there seems to be a commonsense point of view. I should be happier to support the noble Earl's advice to reject this amendment if he could explain this point. As I understand it, if the extradition of a person is requested by another state he has the opportunity to make equal respresentations against being extradited. If he is already in the country and has been acquitted of the crime for which he was in the first place extradited, I understand that if this clause remains he can be kept in that state and charged with another offence if the Secretary of State so decides.

Surely all the objectives that the Minister wants to achieve would be achieved if the Secretary of State in such circumstances could ensure that he was brought back to this country under escort, or custody of some kind, so that the case for or against extradition for the second alleged offence could be settled in the courts with legal representation in this country. Then he would have a fair hearing and nothing would be lost on the principle of extradition. It is a common sense point but I may be wrong as regards the legal point. However, perhaps the Minister can satisfy us.

As I tried to explain earlier, the countries with which we shall ratify the agreement whereby a prima facie case is not needed will be those Western European countries in whose judicial system we have confidence. Therefore we shall not be removing prima facie evidence in all cases—far from it—but in a limited number of Western European countries where we can say that the accused will receive justice. If my right honourable friend the Secretary of State, or any Home Secretary, is faced with a request for another charge he must look at the matter seriously, because the loss of respect between two countries for each other's criminal justice system would be a retrograde step.

I hesitate to prolong what I believe to be a debate which should now close. However, I wonder whether the Minister has realised into which troubled water he is trying to guide the Committee. Is he saying that those who join with us in Europe shall have one system of extradition? If another country approaches us in respect of an extradition treaty and says that it is just as good as our fellow nations in Europe, does the Minister realise the task he has given to his right honourable and learned friend the Secretary of State for Foreign Affairs if the decision is: "You are not as good as France, you are not as good as West Germany, you are not as good as Spain, you are not as good as Portugal, you are not as good as Greece"? I think that the Minister is moving the Committee into difficult reefs and that is something which I should not like to see happen, and upon further reflection I believe that he may not like that.

I feel that it would be wrong to prolong the debate but I point out to the Committee that at the moment we operate under three different systems of extradition. We have one system for what we term "foreigners", which is the 1870 Act, another system for the Commonwealth, to which I earlier referred, and yet another system for the Republic of Ireland.

It is always a pleasure to educate Members of the Committee opposite: one does not often have the opportunity. Perhaps I can help the noble Lord, Lord Campbell of Alloway, by reading to him Article 6 of the convention, upon which he puts so much store. Article 6(1)(a) reads:

"A contracting party shall have the right to refuse extradition of its nationals'".

If the noble Earl were to look at the various reservations and declarations attached to that convention, and which we have refused to ratify for 30 years, he will find that most countries have included a declaration (at the moment I point to that included by the Netherlands) to the effect that the Netherlands Government will not grant extradition or transit of its own nationals. Moving on one finds that the Swiss Federal Council declares that Swiss law does not permit extradition of Swiss nationals. One finds that that is the situation in Europe.

I am surprised that the noble Lord, Lord Campbell of Alloway, with his enormous experience of extradition, has not realised that most countries in Europe claim extra territorial rights over their own nationals, as I said previously. If one of their nationals commits an offence out of their country they say: "We shall try that national in our own country for the offence which he has committed outside, and there is no need to send him back".

Throughout the centuries we have taken a completely different view and are prepared to return our nationals to countries if they commit offences there. There lies the fundamental distinction which I hope that the Committee will bear in mind when we shortly turn to the crucial amendment.

I regret to say that the Minister has completely ignored the two questions I asked: first, whether the power was as I asked and, secondly, whether a person who suffers under the power has any kind of regress. I have had no answer to either question. I am always prepared not only to educate noble Lords but to listen to the advice which comes from them and others. In the circumstances I believe that, although the reply has been so unsatisfactory, it would be a wise course not to press the amendment at this stage and to see how matters proceed on the further and more important amendment. However, we shall certainly return to this matter at a later stage. I beg leave to withdraw the amendment.

moved Amendment No. 6:

Page 5. line 27, leave out ("evidence") and insert ("information").

I am sorry to make further inquiries about the substitution of the word "information" on this occasion for the word "evidence". It is not merely a lawyer's semantic point. Before the whole procedure of arrest and surrender can begin the Secretary of State must issue an authority to proceed. He does so after receiving a request from the requesting state. In accordance with the Bill the request must be accompanied by "particulars of the person" involved, which is the phrase used, and not of identification; also particulars of the facts and the law under which he is accused, including what was evidence sufficient to justify the issue of a warrant for his arrest.

The Minister wishes to substitute for,

"including evidence sufficient to justify",

the words

"including information sufficient to justify the issue of a warrant".

So what are being forwarded to the Secretary of State in the request are the particulars of the person, the particulars of the facts—whatever that may mean—and information sufficient to justify a warrant of arrest being issued. This is the only material, so far as one can see, which under the general arrangements in this Bill will be there to justify the police going out, arresting a citizen, bringing him to Bow Street and the Bow Street magistrate looking at the papers and asking, "Are the documents in order? Yes, they are. Stamp! You are committed."

If I am right about that—and we shall be discussing it in more detail in a moment—then I ask the Minister: what is the significance of cutting out the word "evidence" and putting in "information"? What struck me immediately on reading these new provisions in the Bill is that nowhere can one see the requirement to produce any evidence. Hitherto, the whole of the extradition question has depended on the evidence. The evidence is sent by the foreign state and the evidence is presented to the magistrate at Bow Street. That is the position today. The magistrate then looks at the evidence and if there is sufficient to commit then, just as he commits to the Crown Court, he commits to the foreign state. It is perfectly straightforward and, I suggest, perfectly fair and very proper.

But now, with this administrative system of extradition, I look through the different clauses and I cannot find the word "evidence" and the need for the foreign state to produce it to the Minister. What has to be produced, as I have said, are particulars of facts and now information sufficient to justify the issue of a warrant. But, as has already been said, information can mean hearsay upon hearsay upon hearsay. It can mean—and, I suggest, obviously does mean here—a policeman saying, "I have been told by two witnesses that this person stole some money out of the safe." Finish. That is information sufficient to justify the issue of a warrant.

It most certainly is not evidence. It seems to me that the reason for substituting the word "information" for "evidence" is a slightly sinister one, in the sense that in trying to fit in with European jurisprudence we are trying to make it perfectly clear that there does not have to be any evidence at all. What there has to be is some information. That is all and that is enough. And on "information", away you go. I would ask the Minister once again to confirm that that is not the right interpretation and that there has to be some evidence put before the Secretary of State. If so, then why do we have to wash out the word "evidence"?

With respect to the noble Lord, I am not sure that I can add very much to what I said at the beginning. If I may repeat myself, the material which a magistrate may consider, on which he may base his decision to issue an arrest warrant, may not be evidence in the sense of material technically admissible in court proceedings. I also explained what would happen in respect of an emergency request which might come through an Interpol telex.

The noble Lord is absolutely right. We are talking about two different systems. The key to the two systems is that in this country we have a request at the moment for prima facie evidence for foreign and Commonwealth countries hut, as I understand it, not for the Republic of Ireland. Yes, it is a change. But the major change is the debate that we are to have on Amendment No. 9 concerning prima facie evidence. We thought that "information" was a better word than "evidence" to cover the point that I made; for instance, if we had a telex.

We could go on for a very long time making speeches in order to clarify one or two words. The noble Earl has said that he will look into the consistency of the words used here. Does he use the word "fact"? Does he use the word "evidence"? I, from these Benches, would like him to consider this. When he talks about telexes, Interpol and so on, which may not amount to evidence in law, will he reflect upon the fact that he is presumably content with the words at the beginning of subsection (2)(b)—"particulars of the facts" upon which the man is accused?

Facts can only be adduced by evidence. You can only be satisfied that something is a fact if you have evidence before you and if you are satisfied, by one test of the balance of probabilities or another, beyond all reasonable doubt. But you cannot tell that anything is a fact until you have evidence. So the wording of this clause has to be looked at. I hope that the noble Earl will consider with his usual courtesy the very pertinent remarks made by the noble Lord, Lord Hutchinson. I hope that when he looks at the words "information" and "evidence", in the light of what has been said so far, and prior to the famous debates on Clauses 9 and 11, he will also look at the use of his word "facts" if he does not want evidence of the facts.

That was one of the matters to which I was referring and into which I shall be looking as a result of an earlier amendment. I am happy to confirm that.

moved Amendment No. 7:

moved Amendment No. 8:

Page 6, line 13, leave out ("and disclosed by the information accompanying the request for arrest").

moved Amendment No. 9:

Page 7, line 1, leave out subsection (4)

If this is a convenient moment, I rise to support the amendment. Subsection (4) is one of the most brutal and remarkable provisions in an Act of Parliament or in a Bill that I have seen. It states:

"Where an Order in Council such as is mentioned in subsection (8) below is in force in relation to the foreign state, the court of committal shall not consider whether the evidence would be sufficient to warrant the trial of the arrested person if the extradition crime had taken place within the jurisdiction of the court".

I understand that ever since the Battle of Waterloo it has been an essential feature in extradition proceedings that a foreign country seeking to extradite someone from this country to be tried in their courts should have to show enough evidence to warrant a trial. That is the simple language of the prima facie rule. That test is not an unusual test; indeed, it has been the minimal requirement in our courts at all levels ever since the beginning of relevant legal time for the purposes of this matter, at any rate, for over a century and a half ago.

Just as individuals should not be committed for trial unless there is some evidence which, if accepted, would entitle a reasonable court to convict, neither should individuals be deprived of their liberty and sent to a foreign country to stand trial if that country has no evidence which, if accepted, would justify a conviction. Here, there is a most extraordinary breach in the doctrine of equality before the law. To abolish the prima facie rule would be to establish a double standard. And a British citizen might well be involved depending upon whether he is accused by foreign authorities or by domestic authorities. If he is accused at home and can be dealt with at home, the prime facia rule must be established; but if he is accused by an Italian court, by a Spanish court, or whatever the court may be, he does not have the basic initial protection which the courts have always insisted upon and which accused persons have had the benefit of.

We submit strongly on this side of the Committee that it is quite wrong that a British national or indeed any national who is in this country should be extradited to face trial abroad on the basis of evidence which would not be sufficient to commit him or her for trial should he or she be prosecuted in this country. It imposes complete inequality of treatment as between one proceeding and another. As stated in the admirable speech of the noble Lord, Lord Hutchinson, who has spoken with great experience and considerable authority in this matter, it is significant that Commonwealth countries apparently have found no difficulty in complying with the evidence rule. If it is a matter of technicality or really serious technical confusion, our Director of Public Prosecutions is willing to make his services available to assist.

The prima facie rule that we insist is a cardinal principle in our system of justice is to ensure that evidence exists which justifies putting a man on trial. Sending him out of the country is quite an ordeal, quite a business. The power that we are giving is no light matter. It is a very serious step. We take the view firmly that this will be a most retrograde and dangerous step from the point of view of the liberties of the subject or the resident of this country who may find himself in difficulty. We greatly hope and expect that on second thoughts this dangerous provision will be removed.

Let me say briefly—because I have said in substance on another amendment everything I wish to say—that I oppose the amendment. In doing so I say at once that everything said by the noble and learned Lord, Lord Elwyn-Jones, is wholly well-founded on the assumption, of course, that it is the court that has to continue to consider whether the evidence would be sufficient. That is wholly well-founded and I take the point that it may well appear to be a retrogressive step.

I also take the point of the noble Lord, Lord Mishcon, that this is the heart of the matter and the simple question of the debate. Is it to be the court of committal that considers the evidence or is it to be the Secretary of State? So far one finds a firm basis upon which to argue; but it is at this point that I part company, and I do so for the following reasons. First, I do not think it is fair to assume, as I think the noble Lord, Lord Hutchinson, assumed, that the Secretary of State would not act without due inquiry; that he would, so to speak, rubber stamp; that he would have no regard to the interests of the subject; that he would act in an arbitrary fashion or that in any way he would act contrary to the interests of justice and refuse to entertain all reasonable representations. I cannot accept that any Secretary of State would so act and, if he did, there is a process of judicial review which would control his actions.

Can the noble Lord point to any provision in the Bill for making representations or being heard on the matter?

I am obliged to the noble Lord. Perhaps I may deal with his most helpful interruption at a later stage because I am seeking to save time. I am trying to deal with the nub of the argument as advanced and I accept that there are two points of view.

The other matter which I wish to put before the Committee is simply this. It may be unfortunate to abolish the evidence rule, certainly as regards the order in council states which are foreign states which have ratified the convention. However, there is a wider concept and there is a price to pay for it. In the fight against international crime there is a serious dimension with which we are all now faced. The element of reciprocity demands a sort of a price. That sort of a price is that we should accept the same type of administrative system for seeing whether the evidence is sufficient instead of the judicial system. I see noble Lords opposite shake their heads and I understand why they do so. However, there is another point of view and it is that other point of view that I am seeking to put because, as I see it, it is worth the price one pays. It is a question of reciprocity in combating international crime.

As regards Lord Hutchinson's point, I invite the noble Lord to repeat it because I have forgotten what he said.

I just wondered whether the noble Lord could point to any provision in the Bill for the accused person to have the right to make representations and deal with the evidence so-called.

I am much obliged to the noble Lord who raises a very important point. There is no provision in the Bill, as I see it, but it is wholly implicit, as I understand the law of judicial review, that if the Home Secretary were to decide to make an order—an order considering what evidence before him is sufficient to warrant the trial of an arrested person—and he makes that decision without allowing due representations to be made, how could it be said in the Divisional Court that he had complied with the requirements of natural justice? I give the noble Lord this point. There is no reason why, in this Bill or in a schedule to this Bill, there should not be an express provision. I regard that as totally implicit as a matter of law. If I am wrong on that let us have belt and braces and provisions to ensure that the Secretary of State—the Home Secretary—truly entertains all representations made. I should have thought, with respect to the noble Lord—and I would never dream of seeking to educate him—that there is no need for any such provision.

This is a subject on which I had the privilege of speaking on Second Reading. Ever since 1870 it has been the law of this country that a foreign state which requests the extradition of a suspect must produce to the English courts prima facie evidence of the suspect's guilt. It is an important civil liberty and I trust that when the Minister replies he will acknowledge that. The evidence must be such as would justify the individual being committed for trial in this country if the crime of which he stands accused had been committed here. Therefore, the citizen who is faced with the risk of extradition has the benefit of the same standard of justice as he enjoys if he faces prosecution in this country. However, if the amendment fails that protection, that civil liberty, simply goes.

Clause 6(4) allows this prima facie requirement to be removed by means of an Order in Council dealing with the extradition arrangements that exist with a particular state. On Second Reading I put forward the reasons that convince me, as they do many other practising lawyers, why an important civil liberty is being needlessly removed. I cannot understand why the Government are so determined to remove the protection of the prima facie requirement. Perhaps the Minister will tell us.

The removal of such protection means that the requesting state will, as the noble Lord, Lord Hutchinson, said, in practice have to do no more than name the suspect and give bare particulars of the alleged offence. Therefore, for a certainty extradition will become an executive act. It will not matter that the evidence is so weak that in this country the case will be thrown out at the committal stage. It will not matter if the foreign state has barely begun its preparation of the case against the citizen of this country whose extradition it is demanding. The citizen will be removed to a foreign country and no doubt will be imprisoned while the case against him is being prepared for trial.

The provision in Clause 2(5) for annulment of the Orders in Council, which take away the prima facie requirement in respect of particular countries, is no answer. On the contrary, by this procedure the Government seek to deflect attention away from the real issue by suggesting that the sole issue is a judgment on the quality of the legal system of the foreign state in question. Therefore every time an Order in Council abolishing the prima facie requirement in respect of extradition to a particular European country comes up in this House, where the issue will be to annul the order or no, I do not doubt that we shall be told by the Minister that the only issue is whether we trust the legal system to which our citizens are being consigned. We shall be told that we are being little Englanders if we express any doubts. The Order in Council procedure should not be allowed to put the debate onto a false ground.

On Second Reading I ventured to suggest that we have a high regard for the judicial systems of our continental neighbours but we simply say that before this country imposes, particularly upon its own citizens. the burdens of ejection to a foreign country, where a foreign language is spoken, with custody, interrogation, delay awaiting trial, trial in unfamiliar surroundings and possibly imprisonment—all experiences which are evidently so much more burdensome than similar experiences here, where lawyers, family and friends are readily to hand—in this country there should be a judicial examination of the evidence to see whether it justifies the imposition of the burdens.

We say that the Order in Council procedure is wilfully forcing this debate onto a false issue. The false issue is a judgment on the quality of the legal systems of the countries in question. That is emphatically not the issue. We shall not be deflected from what is the real issue. The real issue is whether we should sanction our citizens being delivered up to any foreign state unless and until an English court has been satisfied by evidence that there is a case to answer. That is not much protection to ask for. It is no obstacle to extradition in a proper case. The Director of Public Prosecutions is there to give assistance with our laws and procedures to foreign states if they need it.

With respect to the noble Lord, Lord Campbell of Alloway, I would say that the Home Secretary's discretion is no protection whatever to the individual, because the Home Secretary is not required under these provisions to consider the evidence. There will be no evidence on which he could exercise any discretion. That point simply does not arise.

I would agree also with the noble Lord, Lord Hutchinson, that the United Kingdom is entitled to accede to the European convention on extradition while making a reservation on the prima facie requirement. That is what some other countries have done. It is what we should do if it is thought necessary to accede to the convention.

The Minister presumably would not deny that the prima facie requirement is an important civil liberty. It is one that has stood for well over 100 years. We look forward to hearing a clear explanation from him as to why the Government think it necessary to remove this liberty.

I feel slightly uncomfortable about this amendment as it stands. It does not seem to me that it can be argued that there is any obligation on a Home Secretary to do other than make up his own mind or to take any advice. There is nothing here that compels him so to do. There is nothing that gives the accused person the right to any form of appeal.

It may be administratively tidy, compared with our continental colleagues or others, and it may be administratively convenient, but I do not think that that is necessarily an excuse for querying, to say the least, what has been a fundamental civil right of all our citizens for a long time.

For those reasons I would feel much happier about the clause if the Minister could reassure us that he will at least look at this provision again with a view to having some form of judicial review and right of appeal or even a statutory obligation on the Home Secretary to take legal advice on this matter.

As a mere layman who has listened to this debate I should like to draw attention to the distance factor. If a British citizen is extradited to the north of France or Belgium he is not put at enormous risk, but if he is taken away to Turkey or Israel and is acquitted, who will pay for bringing him back to England where he belongs? I should be grateful if the Government could throw some light on that point.

At this stage of the Bill most of the Members of the Committee should consider themselves, as I do, as members of a jury. I have listened to the arguments. I am speaking before my noble friend speaks from the Dispatch Box. He may have to give some indication about a matter which does not appear in the Bill at the moment. It is early enough in the Bill's passage for him to do so without any loss of face. It is clear how one should approach this matter. The noble Lord who moved the amendment, and his supporters, are being legal purists. There is nothing wrong with that. They argue that the tradition that has worked for so long, and we think so fairly, should not be altered.

My noble friend Lord Campbell of Alloway did not enlarge on the point that he made, although I wish that he had. He made a most significant point which gave me doubts about the matter. He asked whether we should adhere strictly to the purist tradition.

When the rule of evidence and the prima facie rule started the world was different from the one in which we now live. He pointed out that whereas it was right, just and absolutely supportable to consider these matters in the old world, we must face the fact that with terrorism and the other things that happen today, however much we admire our traditions in these matters and our freedom under the law, we are working in a different world. We should perhaps face up to that.

The idea of having to come neatly into line with the European convention does not impress me very much. I do not think that neatness is ever a strong argument. We must face up to the new world. We often have evidence of how people nitpick and use our old, firm and purist way of administering justice to delay real justice being applied. Do we want to consider and maintain the purist approach without recognising all that goes on in the world, with all its new inventions, which enable us to intermingle in a way which was not thought of when we made the original laws which are now being eloquently defended? We must face up to the new world.

I go a long way with the suggestions made by my noble friend Lord Campbell of Alloway. If there is a vote on this amendment one should vote in support of the Bill as it stands. I do not think I could do that with any joy unless my noble friend can say that, although facing up to the dangers of the present world, representations can be made to the Minister to replace the prima facie requirement which is being defended.

Unless my noble friend can indicate that during the future stages of this Bill we shall insert a definite procedure so that the Minister who has to make the decision is in possession of the facts, I have no enthusiasm to go further than this stage of the Bill, and to allow subsection (4) to remain.

The argument seems to be that some of us on this side would be just about "happyish" if the Minister took his decision with evidence. It strikes me that it is not the Minister's job to hear evidence. It is the job of the magistrate. Therefore why do we not leave it exactly where it is? Why should we give foreign governments powers over our citizens which we do not take ourselves? This line of argument that terrorism is on the increase, we can cut a corner here or there, we can let the Minister do it, he does not have to have the evidence, fills me with dread. That is not the England in which I live—at least, I hope that it is not. I hope that we say that there are certain standards of justice up with which we shall be determined to keep. (I nearly became seriously tied up, remembering not to put the preposition at the end of the sentence)!

That is how I feel. I have not heard anything which makes me think that the case for overriding our historic liberties has been put with any conviction. I have to be convinced rather than simply palmed off by arguments that the Minister will see it through all right. That does not make me happy at all.

It is not always that I can agree wholeheartedly with the noble Earl, Lord Onslow. This evening I do.

Perhaps I may speak very briefly. I listened, as I am sure we all did, to the speech made by the noble Lord, Lord Irvine, on Second Reading when he raised some of these questions. Notwithstanding the fact that I listened to that speech with, I hope, some care and attention, I started off this debate as something of a neutralist on the issue. However, as the debate has proceeded I have become increasingly uneasy about what we are asking to be done.

First, let me make it absolutely clear that, as is known, I take as strong a view about the need to deal with international terrorists as anybody in this Chamber. But I am bound to say that I do not consider that the use of words like international terrorists, or international crime, constitutes an argument in favour of what we are being asked to agree to this evening. Given the deep anxieties which have been expressed on both sides of the Chamber, I very much hope that when the noble Earl speaks he will indicate that he is prepared to go into these major questions of principle between now and the Report stage. I think that it would be very unfortunate if we are forced to divide the Committee in a few minutes' time. The arguments on both sides of the Chamber and from the Cross-Benches have indicated the degree of concern. I very much hope that in the spirit of those expressions he will indicate that he is prepared to look very carefully again at what is set out in this subsection.

I should like to add one word to the appeal which has has just been addressed to my noble friend. I have listened to the whole of this debate and I must confess that I have been left distinctly unhappy about the proposals in the Bill as they stand. I appreciate my noble friend's difficulties. Indeed, I have some sympathy with him in the experience which he is going through this afternoon, and may have to go through on other afternoons and evenings.

However, as the Bill stands it amounts to asking some of us to swallow a great deal. If decision on extradition is to be transferred from the courts to the Secretary of State, there is no doubt an argument for that. But in the process to take away from the person concerned any safeguards, any opportunity to seek to resist the application for extradition—with full argument, with evidence, with representation by counsel—is creating a very difficult situation.

I appeal to my noble friend not to start what will be a long journey on this Bill by putting some of his noble friends in a position where they are unable to support him. I hope that he will feel that it is not in the interests of the Government or of the process of the Bill to do that, and that he will feel able to give some assurances of a convincing and I hope detailed character which will help to reassure those of us who, after listening to this debate, have been left in a state of considerable unhappiness.

As the noble Lord, Lord Hutchinson of Lullington, said, his amendments go to the very heart of one of the principal changes proposed in Part I of the Bill, which is to enable the United Kingdom to enter into extradition arrangements with foreign states which do not require the requesting state to establish that there is a prima facie case against a fugitive. Let me say at the outset that it is not the Government's policy to abolish the prima facie case requirement for all extraditions. The requirement will remain for Commonwealth extradition, and it will remain for all extradition to foreign states with which we have at present very little traffic under existing treaties. It may well prove possible to replace such treaties with a new power to extradite on an ad hoc basis (that is without a treaty), but the ad hoc extradition power will retain the prima facie requirement.

The rationale for this is very straightforward. Our experience with those countries with whom we have a good deal of extradition traffic—principally Western Europe and the USA—enables us to accept that their internal judicial standards fully reflect the sort of standard which we look for from our own criminal justice system. In respect of such countries we propose that the prima facie rule should not apply. The reforms of the Bill will enable us to participate in the European Convention on Extradition which is the arrangement by which most extraditions take place among European states.

I know that it has been argued, for example, by the Criminal Bar Association, and indeed by some Members of the Committee today, that it is one thing to have faith in a country's judicial system, but it is another to have faith in its executive. I do not accept that this is a problem because while the request for extradition is made by the executive, that request will be founded on judicial documentation. I totally refute the allegation of the noble Lord, Lord Hutchinson of Lullington, that it is intended that the changes proposed in the Bill will lead to fugitives being extradited merely for the purpose of interrogation. Article 1 of the European Convention on Extradition obliges the contracting parties to surrender to each other subject to the provisions of the Convention,

"all persons against whom the competent authorities of the requesting party are proceeding for an offence or who are wanted by the said authorities for the carrying out of a sentence or detention order".

To summarise that point, which is important, the competent authorities of the requesting state have to be proceeding against that person in any event.

It has also been argued that the Bill's evidential reforms remove the need to abolish the prima facie requirement. These reforms would certainly be of assistance to foreign states seeking to meet the requirement. But they would not remove the objection of principle which is felt very strongly in Europe. The objection is that it is wrong, and indeed offensive, for the United Kingdom to distrust the prosecution authorities of European states so as to demand them to satisfy an English requirement. Considerations of principle apart, the prima facie rule would still constitute a considerable hurdle even with the proposed evidential reforms. It would still be necessary for foreign states to procure evidence which did not infringe our hearsay rule. There are very real difficulties faced by other countries in putting together a case for a form of proceedings entirely outside their experience. This is more than just a question of administrative convenience. It can affect the willingness of other states to begin proceedings and their ability to mount a succcessful case.

Some states are fed up with us, said the noble Lord, Lord Hutchinson of Lullington. I would go much further. One European country has told us that, against the background of a failure of up to half its extradition requests to the United Kingdom, it decided to make requests in respect only of the gravest offences. The clear implication of this is that serious offenders are known to be in the UK but no attempt is being made to extradite them. Another European country explained that its experience of the prima facie requirement was so bad that it declined to make a single extradition request for 10 years. More recently another European country with judicial standards beyond reproach has indicated that it is aware of the presence in the United Kingdom of many serious criminals but has made no attempt to seek their extradition because the judicial authorities concerned are either unable to perform the special procedures required to make evidence admissible in our courts or are unwilling to devise special procedures simply for that purpose.

The isolation of the United Kingdom in Europe in this respect cannot he exaggerated. Our country is regarded as one of the most difficult in the world from which to secure extradition. A situation in which the United Kingdom is widely regarded in Europe as a haven for serious criminals is intolerable. If this situation is allowed to persist then it would not be possible for the United Kingdom to make any calls for international co-operation to deal with serious crime, whether it be fraud, drug trafficking or terrorism, without being accused of hypocrisy.

During proceedings in another place in respect of this Bill in the last Parliament, a significant change was made to what is now Clause 2(5). This provides that where the United Kingdom enters into an arrangement with a state which does not require the presentation of prima facie evidence then the Order in Council giving effect to this arrangement would be subject to annulment. This means that if your Lordships' Committee does not feel that the Government's view of the reliability of the judicial system in a particular potential treaty partner is correct then that arrangement can be vetoed.

My noble friend Lord Campbell of Alloway was absolutely right when he said that the absence of evidence does not mean that the discretion of the Secretary of State is meaningless. Under the proposal in the Bill the United Kingdom may enter into extradition arrangements which do not require the presentation of evidence in a form technically admissible in English proceedings. However, this is not to say that extradition would be a step of blind faith. It would be necessary, for example, under the European Convention on Extradition, for the requesting state to submit in support of its extradition request the arrest warrant issued by its judicial authority, a full statement of facts describing the alleged conduct, evidence of identity and evidence of the law of the requesting state. In addition the United Kingdom as a requested state would have the right to seek further information in any particular case. This, coupled with the necessary information from a local British diplomatic mission, will enable the Secretary of State's discretion to be exercised, as at present, in a proper manner.

I reassure my noble friends Lord Trafford, Lord Harmar-Nicholls and Lord Boyd-Carpenter that representations can, as now, be made to the Secretary of State. But although there is at the moment no statutory authority for this, I think that it is something I should like to consider as an amendment for a later stage so that it is perfectly clear that the situation as at present is put into statutory form and that representations can be made to the Secretary of State at the time.

I move on from there to the point that my noble friend Lord Campbell of Alloway made on judicial review. He is right. If the Secretary of State acts wholly unreasonably, then his decision to issue an order to proceed could, we believe, be quashed on an application for judicial review. It is not in the Bill, as the noble Lord, Lord Hutchinson of Lullington, pointed out. But, as my noble friend said, it is in the law and it is his very clear understanding, as it is ours, that it is a wholly reasonable safeguard and one that the Committee should not lose sight of.

Would it not be the case that if there were an application for judicial review the bloke would be in prison on the other side of the Channel before the judicial review could even be started?

That is not my understanding of the situation. As I understand it he would in all probability, if a request for judicial review was made before the extradition, still be in this country.

The noble Lord, Lord Hutchinson of Lullington, said that it is wrong to authorise extradition merely on the basis of an executive request. But I should point out to him and to the Committee that that is the situation now. Our arrangements with Ireland apart, extradition is a matter between states. It is no criticism to say that an extradition request is made by the executive of the requesting state. This is because the request is founded on judicial documentation and for the purpose of judicial proceedings. I beg to differ with the noble Lord, Lord Irvine of Lairg, about the amount of stress that he puts on prima facie as an important civil liberty. Prima facie is not a feature, for example, of our extradition arrangements with the Republic of Ireland. I remind my noble friend Lord Onslow that the prima facie requirement is not a feature of Scottish procedures in any case.

The noble Lord, Lord Hutchinson of Lullington, drew the Committee's attention to the fact that certain Scandinavian countries have reserved the right to demand evidence in certain cases. But this does not amount to a prima facie requirement as in our existing law. Those states do not, except in the rarest cases, oblige requesting states to submit evidence and, so far as we are aware, never in the form required under our present law. The purpose of these reservations is to enable a fuller assessment to be made of doubtful cases. In the United Kingdom it would not be sensible for this to be in the form of a prima facie requirement to be considered by the courts ad hoc. These issues are much more satisfactorily dealt with in the round.

Under the European Convention on Extradition it will be the United Kingdom's right in such cases to demand further information in respect of a particular case to supplement the statement of facts which would have to have been provided in support of the extradition request. This, taken with the background information on the conditions of justice in the requesting state and on the likely proceedings which the fugitive would face, would enable the Secretary of State to exercise his discretion to refuse extradition if that seemed appropriate.

The noble Lord, Lord Hylton, raised the question of the return of acquitted persons. It is a matter for the requesting state to repatriate the fugitive. We should be obliged to do this for ourselves under Clause 17. The relevant extradition treaty will cover the point that the noble Lord had in mind.

I believe that there is a very good case for leaving the Bill as it is and for this Committee not to support the amendments of the noble Lord, Lord Hutchinson of Lullington. The initial discussions that took place were very much in favour of the noble Lord, but I hope that I have been able to satisfy my noble friends that there is a good case and that there are the necessary safeguards. I confirm that I wish to look at that particular point and to put it into the statute that representations can be made to the Secretary of State. We have to give very serious consideration to whether we wish to continue to let the United Kingdom be the odd man out in Europe and in effect to say to the rest of Europe, "We do not believe that your system of justice is as good as ours and that we cannot trust you to the extent that we trust our own courts".

We have listened to the noble Earl with great attention. I am surprised, if I may say so with deep respect, that he has failed to catch the mood on all sides of the Committee. I say that with some emphasis. He has not in any way yielded by agreeing to withdraw the clause. The only comment that he has made which is of the slightest use—I say this with all politeness—is that he will consider an amendment to deal with representations being made to the Secretary of State.

The question of judicial review has been mentioned. If the representations made to the Secretary of State consisted of requests to consider the fact that there was absolutely no evidence produced anywhere against a British citizen for whom extradition had been wanted, I assure the Committee with every sense of responsibility that the learned judges who tried the issue of judicial review would have to say this "We cannot give any consideration at all to the matters that have been raised as to whether there has been any case at all made against the accused by virtue of the fact that Parliament has decided that in this particular case the question of a prima facie case against the accused is irrelevant".

So that carries us nowhere from the point of view of rights. When we were talking before about the liberty of the subject we were talking about matters upon which there ought not to be—and I am sure there are none in this Committee—party divisions. There is no question of a victory for one side or the other. It is only a question of a victory for a principle that all sides of the Committee hold dear.

Before we take away from the courts the right of protecting the liberty of the subject—our own subjects who are the subject matter of an application for extradition, with all that entails—ought we not to consider exactly where we are going? My noble friend the Minister—I call him my friend—has said that we are in danger of giving offence to our European colleagues. Where that offence lies, I know not. What I do know is this. If, as he says, the only remedy in regard to an Order in Council which would extend this matter to other countries and so on was that Parliament could annul the order should it find itself dissatisfied with the system of justice of the country involved, is he inviting Parliament to become rather more offensive to any such country that we ever could be by retaining our right while signing the convention in regard to Europe, by saying that we wish to retain the condition that a prima facie case should be made? Do we also know where we are going in this direction before unfortunately we have to divide the Committee, which is what we shall have to do unless the Minister can be very much more forthcoming than he has been up to now? Many of us will regret having to divided the Committee. I point out to the Minister that it would be so much more sensible if he would withdraw the clause and come back with something which might be acceptable to Parliament.

Do we know where we are going in this direction? Is it not completely obvious that the people we shall be insulting will be the Commonwealth and other countries that are absolutely content with the issue as we now have it; namely, that they have to make a prima facie case? Is it not obvious that if we pass this provision then before we know where we are the Commonwealth will say to us: "You have done this for Europe: do you think our systems of justice are inferior to those of Europe? Please remove this from our requirements too"? That will apply also to those other countries outside Europe with whom we have diplomatic relations.

I would only remind the Committee, before drawing my remarks to a conclusion—because I think we have had an extensive and clarifying debate—of the kinds of people with whom we have had extradition treaties for many, many years. We remind ourselves how, when we entered into them, their political regimes were eminently respectable. We look upon the evolution of their history politically with some amount of pain. For example, we have had an extradition treaty with Chile continuously since 1898; we have had one with Argentina ever since 1984 and we have had an extradition treaty with Greece since 1912. I need not remind the Committee of what their political histories have been in some of the darkest hours.

Are we to start the ball rolling down a very precipitous path by saying we realise that before long we shall have to give up the prima facie requirement with all countries with whom we have diplomatic relations, because otherwise—to use the language of the noble Earl—we shall he "offensive"? I hope he will think again about this and, if he does not, could the Committee encourage him to do so by voting correctly in the Division Lobby?

Will my noble friend clarify the answer which he gave to our noble friend Lord Onslow in respect of what would happen in the event of judicial review? Is the Committee to understand his answer as indicating that in the event of an application for judicial review the person concerned would not be extradited until the proceedings on that application for a judicial review had been concluded?

That is my understanding, but I should like to check that point precisely so that my noble friend may be assured that I am correct in my belief about it, because it is important.

While I am on my feet, perhaps I might just say to the noble Lord, Lord Mishcon, that as regards the Commonwealth it is right to say that all the members of the Commonwealth are quite used to the prima facie requirement, as that is their normal method of law. Therefore it is nothing strange for them to have to present a prima facie case in their own countries.

I am sure the noble Earl will forgive me if I immediately dash to the Dispatch Box and say that that was not my point. My point was that if it is offensive to Europe to say that we still want the prima facie requirement, is it not quite obvious that in due course members of the Commonwealth will say to us that they equally do not wish to have the prima facie requirement? Members of the Commonwealth vary in their systems of justice. I am using, I hope, moderate and careful words, and there may be occasions when members of the Commonwealth are not so accustomed to the prima facie rule and indeed do not have it in their own countries. We shall be in a position of great difficulty, if not in actual danger of doing something adverse to the interests of the citizens of this country, and I beg the noble Earl once again to take on board the atmosphere of the Committee and withdraw the clause for the time being.

May I put just a very brief point to the Minister? Let us suppose that a British subject goes on holiday to Italy. On his return to the United Kingdom an allegation is made that he has committed a serious assault while on holiday. He makes representations—assuming we are going to get representations—to the Home Office, saying "it was not me; it was somebody else". In that case who precisely makes the judgment? Here is a clear conflict of evidence. An official will presumably either recommend acting in his role in reality as the Bow Street Magistrate, that he will accept the view of the Italian authorities and their evidence or that of the British subject who vigorously denies the allegation.

The noble Earl will know that on a whole series of matters of this kind in this country, evidence of identification is very often one of the most difficult issues coming before a court. Indeed it is so difficult that on one particular occasion a Home Secretary had to ask the noble and learned Lord, Lord Devlin, and a committee to go into this particular question. Let us just assume in this particular case that this British subject who is alleged to have committed this offence in Italy is then extradited. One should have no doubt that he will go straight into prison while there. Given the problems of the Italian authorities—not dissimilar to our own, but rather worse he will be kept in custody for a substantial period of time. A year to 18 months is by no means unusual in Italy. Then, some evidence comes before us that there are serious grounds to doubt whether he was properly identified.

Can the noble Lord not recognise the degree of anger that will exist over the way this British subject has been treated? He would have been extradited from this country solely on the basis of what is in reality a certificate from the Italian authorities and no more. I say this not because I criticise the Italian system of justice. As I have indicated, we have often made the gravest errors ourselves in this respect. However, if we go down this path, it seems to me that it will not be long before Parliament is obliged, as a result of grave public disquiet, to change the law.

On the basis of the arguments put forward in the debate, I very much hope that the noble Lord, notwithstanding what he said a few moments ago, will agree to go into these questions between now and Report.

May I put a matter very directly to the Minister of State? Is it not the case that as the Bill stands there is no requirement whatsoever that the Secretary of State shall consider the evidence relating to the alleged offence or the alleged offender and, there being no such requirement, there is no room for judicial review?

To reply briefly to what has been said, I wish to make four points. First, the Minister has said nothing about the extra territorial point—this surely worries every noble Lord in the Committee—that we send back our nationals and other states do not reciprocate. That, I suggest, is a matter for serious concern.

Secondly, I want to meet what I call the dinosaur argument —the words that fell from the lips of the noble and learned Lord, Lord Hailsham, on more than one occasion—of those who wish still to defend some of the ancient liberties of this country. As to the prima facie case, if I may say so with respect, it is not a question of living now in a modern world and that with progress, as the noble Lord, Lord HarmarNicholls, said, we all advance and the prima facie principle becomes old and dinosaur-like—

I did not refer to what I had in mind as "progress". It is because of terrorism, which is the opposite of progress, that I have been brought to the view that I tried to explain.

I am grateful for the correction. There is an idea about that one can sweep away juries and the rights of citizens not to incriminate themselves and so on because these provisions are old and out of date and we are advancing into a modern world. In my submission, one has to advance. But, when advancing, one has to preserve the fundamental civil liberties and freedoms of which we are so proud.

This country is not a "haven for criminals"—that emotive phrase. One has only to go down to Bow Street magistrates court where all the expertise of extradition is and suggest that. As I understand it, those at Bow Street are horrified at the inclusion of the clause in the Bill.

The Minister has told the Committee that he receives a full statement of facts. If he receives a full statement of facts, why on earth should the accused person not see the statement of facts? Why on earth is there not included in the Bill the right of the accused person to see the statement of facts? How can he make the representations about which we have heard so much if he has nothing in front of him about which to make representations? As far as one can see, there is no provision in the Bill for the accused person to have presented to him any evidence on which he can make any sensible representation at all, let alone bring those matters before a court of appeal.

On judicial review, I do not want to add to what the noble and learned Lod, Lord Elwyn-Jones, has said. Perhaps some of those sitting on the Cross Benches would have a view about this. But what the court is enjoined to do is to be found under Clause 6(8). Referring to the document sent by the Home Secretary, it says that,

"Where an authority to proceed has been issued in respect of the person arrested and the court of committal is satisfied, after hearing any representations … that the offence to which the authority relates is an extradition crime".

then, the court must commit. In my submission, there could not be any judicial review if those instructions are followed and carried out. We have had no authoritative reply to that. I support what the noble and learned Lord, Lord Elwyn-Jones, has said about judicial review.

The Minister has referred to the fact that Article 1 of the convention speaks of "proceeding for an offence". That, of course, in no way prevents a person being taken back to the country perfectly genuinely and properly if that country is proceeding for an offence. When the person is brought back, he will appear before the juge d'instruction and in the normal course of events, according to that judicial system, he will be interrogated as persons are if they are brought back and face a charge or a matter proceeding towards charge.

I do not wish to take up the time of the Committee any further. It is a great sadness that the Minister has not been able to give anything in this matter.

I am grateful for the opportunity to intervene and comment on one or two points that have been made. I confirm to my noble friend Lord Boyd-Carpenter that I was right in what I said about judicial review. I can tell the noble and learned Lord, Lord Elwyn-Jones, that I have information that it is possible to take the matter to judicial review.

The noble Lord, Lord Harris of Greenwich, mentioned a theoretical situation regarding an Italian holiday. He mentioned that the Home Secretary would have to decide whether the representations were so well-founded that he should ask for more details from the foreign government or whether, in good conscience, he simply could not allow the extradition to go ahead and so would weigh the evidence at that time.

The noble Lord, Lord Hutchinson of Lullington, observed that there is nothing in the Bill to say that the accused would see the evidence. But, of course, the accused will see the statement of facts and all the papers. This is because the court will follow the usual procedures of a court of committal in English cases except in reviewing the evidence. Therefore, the accused will see the statement of facts.

The noble Lord correctly said that I had not commented on the extradition of nationals. I apologise for that. As I said earlier, because of the peculiar system of criminal justice in the United Kingdom, it is one of the few countries in Western Europe to extradite nationals. Most Commonwealth countries do so, as do the United States of America, the Republic of Ireland and Italy. I can confirm that I was right when I said that the Dutch will bring a law into effect on 1st January next year permitting them so to do.

I say to the noble Lord, Lord Mishcon, that of course I am fully aware of the feelings of the Committee. Nobody in my position, having listened to the arguments, could be anything but aware of what was said. But he would not disagree that I had to give a robust defence and what I believe to be the right answer in supporting what is in the Bill.

Notwithstanding what I said earlier, it is right that I should look at this again. It is clear that it is of concern to the Committee. I hope that the noble Lord, Lord Hutchinson of Lullington, will withdraw his amendment on that assurance. I thought it was right to give a strong response so that I could elucidate some information from the noble Lord, Lord Mishcon, who had not at that stage spoken and whose contribution is, as always, vital to our debates. It has indeed produced some more thoughts from the noble Lords, Lord Harris and Lord Hutchinson of Lullington. I give the assurance that I will discuss this matter again urgently with my right honourable friend the Home Secretary and my honourable friend Mr. Patten, the Minister responsible. I can then come back at a later stage and indeed consult your Lordships between now and Report so that we can endeavour if possible to get something that will satisfy all sides.

I am most grateful to the Minister for his conciliatory attitude. In those circumstances I will respond to that attitude and not take this amendment to a Division. However, I warn him that although the weather at the moment is only choppy, by the time of the next appearance of this clause it may have become quite substantially stormier.

On behalf of this part of the Opposition I should like to thank the Minister for his undertaking to examine this as a whole and consult the House upon it. In the circumstances I understand that the noble Lord will in a moment or so withdraw the amendment.

moved Amendment No. 10:

Page 7, line 23, after ("offence") insert ("or any of the offences").

moved Amendment No. 12:

Page 7, leave out line 35.

moved Amendment No. 13:

Page 7, line 42, at end insert ("and if it commits him to custody, may subsequently grant him bail if it considers it appropriate to do so").

moved Amendment No. 14:

Page 7, line 44, leave out subsection (10).

moved Amendment No. 15:

Page 10, line 1, leave out ("may decide") and insert ("shall").

I support this amendment. I am afraid that I was too late to support the noble Lord, Lord Hutchinson, on the last one. All this amendment does is to give effect to what has been the Home Office practice as long as I can remember, ever since capital punishment was abolished, and I think well before that. There is no reason why it should not be mandatory on the Home Secretary not to send somebody back on extradition if there is the slightest chance of his being put to death on his return.

I believe there is no difference between the noble Lord, Lord Hutchinson of Lullington, and the Government on the principle which is before us and which is raised by these amendments. We accept that a person extradited from the United Kingdom should not, if convicted, be executed. However, I have to say that the amendments which are before the Committee would, if accepted, have entirely unacceptable consequences.

Since the passing of the Murder (Abolition of Death Penalty) Act 1965 it has been the practice to negotiate in new extradition treaties a provision enabling extradition to be refused if the offence for which extradition is requested in punishable by death under the law of the requesting state but is not so punishable by death under the law of the requested state. Such provision is, for example, found in our treaty with the United States. As the Committee will be aware, it is possible for our extradition treaty to contain limitations on extradition which are not found in United Kingdom statute law. This is an example: a death penalty limitation is not a feature of the Extradition Act 1870. Our purpose in including Clause 9(2)(b) in the Bill is to endow what has become accepted policy with statutory authority for the purpose of international extradition treaty negotiations.

It is in respect of countries such as the United States that is is necessary for us to be cautious in the way we frame legislation on this subject. The difficulty relates to the federal nature of the United States system. The federal government are constitutionally unable to give any assurance in regard to the sentencing of people convicted of state offences. Murder is a state offence in the United States and in some states is punishable with death. It has been possible for the United States to undertake that, if the fugitive should be convicted, representations will be made in the name of the United Kingdom to the judge at the time of sentencing that is it the wish of the United Kingdom that the death penalty should not be imposed or carried out. In the several cases under our existing treaty with the United States where people who have been accused of offences attracting the death penalty have been extradited to that country, the United Kingdom's view has always been respected.

It may be helpful if I explain briefly the difficulty which I believe is raised by the amendments tabled by the noble Lord. They offer the real prospect of a person accused or even convicted of murder going free. As I have indicated, the United States for one cannot constitutionally give firm assurances about sentencing. If the person was not a British citizen he would presumably be deportable, but that would be a highly undesirable way of dealing with, for example, an underworld hit man. A British citizen who commits murder or manslaughter abroad is triable in the United Kingdom, but there could well be difficulties over mounting a successful prosecution here even though there is jurisdiction. As the noble Lord so rightly pointed out, some countries have an absolute bar on granting extradition where the fugitive would face the death penalty, but those countries, unlike the United Kingdom, usually have effective extra-territorial jurisdiction. I believe that that applies to the two countries that the noble Lord mentioned when he moved the amendment.

I am very grateful for the helpful way the noble Lord has approached this issue, which is reflected in the drafting of the amendments. However, they would oblige the Secretary of State to refuse extradition unless he received an undertaking that the death penalty would not be carried out. They leave the Secretary of State with no option but to refuse (whatever the nature of the offence) where he did not receive an unequivocal undertaking. This matter was raised in another place during the Committee consideration of the Bill's predecessor in the last Parliament. Following debate on the issue the Government considered the Bill's provisions afresh and, indeed, had cause to discuss again with the United States authorities the nature of the undertakings they were able to give in the context of an actual extradition case.

I have to tell the Committee that despite considerable time and effort it was not possible to come up with a more restrictive formula than that which appears on the face of this Bill. I can give an assurance that if we had been able to come up with a formula which placed greater restrictions on the Secretary of State without running the risks which I have outlined this evening, then we certainly would have done so. The central problem is that we doubt whether a country such as the United States would ever be in a position to give an absolute undertaking on the death penalty; and if the Secretary of State decided that he himself was satisfied with the undertaking, he could still be challenged on judicial review.

There is not much between the noble Lord and the Government on this matter. If we could have moved at an earlier stage we would have done so. I know that he would like me to take it away and have another look at it, but in all honesty, having done that throughout the summer and having gone back to America to discuss it with them, I feel that I would be misleading him if I said that we could come up with anything different, because the process would only be a repetition of what has happened. I fear that on this occasion we must agree to disagree, although our aims are pretty compatible.

I am sure that our aims are entirely compatible. I do not think that there is anything between us on that. May I ask the noble Earl, for the purposes of clarification, whether he could go just a little further? As I understand it murder not being a federal crime in the United States—as he is right in saying it is not, save in the most special circumstances—the federal government is in fact acting on behalf of the state Attorney General. Would it not be possible, as part of these arrangements, to ask for an undertaking, given on behalf of the state Attorney General to the United States Federal Government that they would not move to execute a particular offender if he was extradited? Is that situation absolutely impossible? I am sure that the matter has been considered in detail, but it seems to be a reasonable request given our clear view in this country on the question of capital punishment.

I stand to be corrected on this matter but I do not believe that the federal government can give that assurance on behalf of a state. Therein lies the problem. Yes, ideally that would be a useful addition and a tightening up that we would welcome; but I understand that they cannot do that. Therein lies the rub.

We have so far been successful in making our views clear and we must be grateful that they have been taken into account. Those people who have been extradited have not faced the death penalty although their crime was such that it could be an option. I believe that we have made this point as tight as we can without going the whole hog as sought by the noble Lord, Lord Hutchinson, in his amendment.

Is it not possible to take a little further what the Minister has said? The federal government cannot do it on behalf of the state government but could it not obtain an agreement from the state government and pass that on as the federal government?

Will the Minister answer a question of interest? It is: what is the position of a presidential pardon? Is that president not part of the federal constitution of the United States?

I am grateful to the Minister for his remarks and I believe that we are agreed that we are trying to achieve the same end. When I look at Article 11 of the Convention, I wonder whether the Minister can go a little further. The words of Article 11 of the Convention are:

"If the offence for which extradition is requested is punishable by death … and if in respect of such offence the death penalty is not provided for by the law of the requested Party … extradition may be refused unless the requesting Party gives such assurance and the requested Party considers sufficient that the death penalty will not be carried out".

It seems to me that that may well be as an assurance the best that the Secretary of State could get. It would be that the views of his government would be taken into account, and so on, by the governor of the state in deciding whether to commute the sentence if he were to be sentenced to death. It may go a long way to making perfectly clear the fact that we in this country take a strong view and that the view of the Minister would be strengthened by having the clause altered in that way.

I am grateful to the Minister for his words and I hope that he will be able to look at the matter in that light before the next stage of the Bill.

I hope that I shall be able to answer the point raised by the noble Baroness and was picked up by the noble Lord, Lord Hutchinson of Lullington. I understand the difficulty to be that the state's authorities probably cannot give the assurance which is sought by the noble Baroness and the noble Lord. The ultimate decision would rest with the state governor who can change. I believe that a new state governor could not be bound by the decision of his predecessor in respect of this matter. It is a difficult point and we cannot get state assurance.

The matter has been looked into. I do not think that I can help Members of the Committee. I should like to read the words of the noble Lord in Hansard; but I can guarantee nothing because the matter was looked into thoroughly earlier in the year.

The noble Earl is right in saying that a certificate signed by the governor on his behalf would not necessarily bind his successor. However, it would undoubtedly have a substantial moral authority and I do not think that we should regard that as a matter of no account. However, the noble Lord has made some interesting points, and I hope that we have made some equally interesting points. I hope that he will reflect on the matter between now and Report stage.

I beg leave to withdraw the amendment.

moved Amendment No. 17:

Leave out Clause II and insert the following new Clause—

moved Amendment No. 18:

Page 11, line 23, after ("signed") insert ("or certified").

moved Amendments Nos. 19 and 20:

Page 11, line 25, leave out ("being sealed with the official seal of').

Page 11, line 28, leave out from ("such") to ("shall") in line 29 and insert ("certification as is mentioned in subsection (1)(b) above, and documents authenticated by such certification").

moved Amendment No. 21:

Page 11, line 31, leave out subsection (3).

moved Amendment No. 22:

Page 12, line 9, after ("document") insert ("(except a notice required under section 10(2) above)").

had given notice of his intention to move Amendments Nos. 23 and 24:

Page 12, line 18, leave out ("on which his return is grounded") and insert ("in respect of which he was returned")

Page 12, line 19, leave out ("facts") and insert ("evidence")

I wonder whether, in view of the considerable room for difference—putting it neutrally—about Clause 21, and the notice of intention to oppose the Question that Clause 21 stand part of the Bill, this might be a convenient moment to adjourn.

I assure the noble Earl on behalf of the official Opposition that when he spoke on those two amendments and thought there was no controversy at all we had nothing to say in regard to those arguments or those amendments.

It is proposed that the Committee adjourn during pleasure until a few minutes from now.

Before this matter is resolved will the Government Whip indicate when we shall resume the Committee stage of the Criminal Justice Bill?

I suggest that we resume our consideration at 8.30 p.m. if that is convenient. I rephrase that. We shall resume at eight o'clock. I mean not before eight o'clock. That is an even better revision.

rose to move, That the draft order laid before the House on 29th April be approved.

My Lords, I thank the noble Lord, Lord Lyell, for taking us through the articles of the draft order which is before the House. As the noble Lord pointed out, the order is based in part on reports from the Assembly and in part on the Charities Act 1985. We support the order, subject to one reservation concerning Articles 4 and 5.

Articles 3, 4 and 5 owe their impetus to the Charities Act 1985 which is based on the report of a select committee of your Lordships' House under the chairmanship of the noble and learned Lord, Lord Brightman. The Bill was introduced to your Lordships' House by the noble Viscount, Lord Colville. Articles 3, 4 and 5 adopt what has been described as the do-it-yourself mechanism for winding up the small charity for the relief of poverty.

The only doubt which we have revolves on the financial criteria to be found in Articles 4 and 5 which follow the qualifying income and capital criteria adopted by the 1985 Act. A small charity, for the purpose of the transfer of assets to another charity under Article 4, is defined in the order as having a gross income not exceeding £200 during the preceding accounting period. Those criteria were established by the 1985 Act. Yet some Members of your Lordships' House and of the other place considered that that limit was too low and thought that £500 would be an appropriate threshold.

Under Article 5, a small charity is allowed to spend its capital and thus, in effect, to dissolve itself. But for the purpose of the article, the small charity is defined as one which has a permanent endowment of £25 or less, not including land, and with a gross income of £5 or less during the preceding accounting period. Once again, those are the criteria to be found in the Charities Act 1985, and some members of your Lordships' House and of the other place considered that those figures were too low.

Is there evidence that the thresholds to which I have referred are about right, or are they too low? It is an important point because if the thresholds are too low the order may not answer the problems of many small charities as they will not be small enough to take advantage of the do-it-yourself mechanism. In that case, the desired result would not be achieved. Perhaps the Minister can help the House concerning that aspect of the order. Can he tell the House how many charities in England and Wales have availed themselves of the provisions of the 1985 Act and transferred their assets to another charity or spent their permanent endowment and ceased to exist as separate entities?

I should also like to ask the Minister whether the department consulted the Charity Commissioners for England and Wales in determining where the thresholds should be drawn. In the light of their experience in operating the Charities Act 1985, do the commissioners for England and Wales consider that the limits provided in the 1985 Act should be increased? Did that matter concern the department when it was drafting the order?

The Minister has explained that the new powers are available to the trustees on the passing of appropriate resolutions which are set out in the schedule to the order. Those are identical to the resolutions contained in the Charities Act 1985. However, I should be grateful if the Minister could clear up one small point. The requirements of the 1985 Act in that respect would be satisfied if the resolution is,

"as near to the prescribed form as circumstances may admit".

Those words are missing from the draft order which is before the House. I am mindful of an explanation given by the Minister to the House in the course of the debate on the Enduring Powers of Attorney Order a few months ago. Am I correct in assuming that the alternative wording which is to be found in the 1985 Act is implied by virtue of one of the Northern Ireland interpretation Acts?

I note that the order does not contain a statutory obligation on charities to file annual accounts. Presumably that is so because Northern Ireland charities are not registered in any central register maintained by the department. I notice from the report of the Assembly that many people consider that those two omissions point to a weakness in the law on charities in Northern Ireland. I believe that the Assembly came to the conclusion some years ago that there was an overwhelming need for all charities in the Province to be registered in a central register, and it so recommended. It seems to us to be a recommendation which should have been accepted by the department and I am just wondering why it was rejected. Was it simply rejected because the department did not want to increase its workload?

As I have said, we on these Benches, subject only to those reservations about the thresholds in Articles 4 and 5, approve the order and very much hope that it will achieve the desired result. I should be glad if the Minister could deal with this today or could write and place a copy of his answer in the Library.

My Lords, the noble Lord opposite is in a unique position to speak on this not only with his knowledge of affairs in Northern Ireland but also as a former member of the Select Committee which gave birth eventually to the Charities Act 1985. He will probably recognise that in relation to the statutory financial limits the order provides for a substitution of the sum specified by an affirmative resolution in Article 4(12) and in Article 5(5). He will probably recall that the discussions that took place concerned only England and Wales at that stage, and there was a very delicate balance in the discussions and in the evidence that was placed before the Select Committee about the starting point for the small charities that were going to be allowed to use this procedure.

I suggest to the noble Lord that there is probably no very great harm done in beginning at the same point in Northern Ireland as in England and Wales. If experience shows—and I would be extremely interested if my noble friend could tell us what the experience is of the legislation in England and Wales—that trustees are not coming forward because the limits are too low, then of course we would have evidence to bring before Parliament to suggest that there should be an increase. Perhaps the noble Lord will agree with me that it is best to start at the same point as in the original legislation and then see how things go from there.

My Lords, I would not at all dissent from that contribution. The point I was trying to make was whether the department had had consultations with the Charity Commissioners and whether in the light of their experience they were satisfied with the thresholds in the 1985 Act or whether they thought that the time had come to increase them.

My Lords, we are very grateful to the two noble Lords who have spoken, first of all to the noble Lord, Lord Prys-Davies, and, not surprisingly, to my noble friend Lord Colville, whose speech recalled his Private Member's Bill of just under three years ago in which he did such great work. I have been reading this evening. I felt that I might need further advice on some of the queries raised by the noble Lord opposite. I felt that, "Cometh the man, cometh the hour", and my noble friend was giving us great support in your Lordships' House. I am particularly grateful to him.

The noble Lord, Lord Prys-Davies, raised the question of financial criteria in Articles 3, 4 and 5 and I hope that he will accept that certainly I would have nothing further to add to what my noble friend has said. I am particularly grateful, since I think I would have either to write to the noble Lord or alternatively I would not have been able to give him such a concise answer as that which has been given by my noble friend.

The noble Lord also asked me how many English and Welsh charities have taken advantage of the similar legislation in the 1985 Act. I am afraid I shall have to write to him on that. I am sorry that I do not have the information with me this evening.

As far as the limits are concerned and whether they are too low, we understand they certainly reflect parity with England and Wales. We believe that there has not been any difficulty or that there should not be any difficulty with these limits. The noble Lord also asked me whether we were satisfied with the words, "as near as". The best answer I can give him is to consult both Articles 3 and 4 in the order this evening. If he will look at Articles 3(8) and 4(7), he will find that they are near enough the same and the department may give its power. It has options of granting, deferring or refusing the request of the trustees to wind up the charity, change the charity or transfer, in the case of Article 4, and to alter the objects in Article 3.

We think that these two paragraphs provide the longstop and the safeguard to the charities and, above all, to the testators, whose original intention is set out in the charities in that if the trustees can obtain unanimous agreement as to what they ought to do, then they certainly will have to convey their wishes to the department, which will have the final say. This is certainly a respectable longstop and a respectable tradition. We think that this will be effective, since it is based on the 1985 Act in England and Wales and we do not think there has been any major problem with that.

As to the interpretation point raised by the noble Lord, Lord Prys-Davies, I shall have to write to him on that. I am sure that it will be a brief note. I am particularly grateful to my noble friend Lord Colville for his intervention and for pointing out to me something which I should have known, namely, that the noble Lord, Lord Prys-Davies, was a member of the Select Committee.

With that and with the assurances I have given to the noble Lord, Lord Prys-Davies, that I shall let him have, I hope, a brief note on the points to which I am not able to reply to tonight, I commend the order to the House.

rose to move, That the draft order laid before the House on 27th April be approved.

My Lords, many of the articles of this order have a familiar ring about them. If the terms of the order were amendable I am sure it would attract the volume of criticism which was addressed to the Water Fluoridation Bill in 1985. If that were the position we would have a re-run of the many amendments which were tabled when that Bill was before your Lordships' House.

There is always considerable strength of feeling on the question of fluoridation of the domestic water supply. It is welcomed by many people as being a good example of a preventive health measure, though I believe that the technical evidence is not absolutely conclusive on this issue. For others, of course, there are sound ethical grounds for questioning the decision to fluoridate domestic water.

The opponents of fluoridation may draw a small measure of comfort from the fact that the nominated health board has to consult the elected district council before it formally applies to the Department of the Environment, with the consent of the Department of Health for the supply to be fluoridated. We welcome very much this duty to consult the elected authority which does have some responsibility to the people who live in its district and can therefore be expected to be sensitive to local opinion.

We also note that the health board's application has to be supported by the Department of Health, and that should also be another safeguard. The Minister referred to yet another safeguard. The health board is under a duty to publish in one or more local newspapers its intention to apply for water to be fluoridated and to republish the notice not earlier than seven days after the publication of the first notice.

There is another safeguard which I do not think was mentioned by the Minister. Members of the public are, in general, not to be excluded from the meeting of the health board at which the decision to apply for fluoridation is debated and taken. Therefore, there are three or four safeguards in the order and that may go some way to assure people who are concerned about it.

I should mention that I have not in fact received a single objection to this order from any individual or any organisation in Northern Ireland and the Government may draw some comfort from this silence. With those comments we approve the order.

My Lords, I merely say briefly that I am wholly in support of this order and would not wish to see it amended in any way at all. I should like to feel that, in saying that, I am speaking for every one of my noble friends on these Benches; but, the subject being as it is, I am bound to say that there may be one or two of my noble friends who are still not convinced that this wholly safe and very beneficial public health measure is desirable. There are still some who have to be persuaded.

Having said that I am wholly in support, I express one faint misgiving. In introducing the order, the noble Lord referred to the lengthy debates we had in your Lordships' House on the Water Fluoridation Bill in 1985. As a result of the publicity, a very large number of the people in Britain, having heard that the Bill was passed, automatically assumed that the water they were receiving was fluoridated. Indeed, a poll showed that eight out of 10 people believed that they were having fluoridated water, whereas in reality the number is very much smaller.

My fear is that although we pass an order and an Act, changes do not happen very quickly. In England and Wales this has been partly as a result of the delay in publishing and producing the DHSS and Department of Education joint guidelines. That has delayed matters. However, I hope that this order, once accepted, will entail no great delay in enabling the people of Northern Ireland to benefit from this extremely desirable and, I repeat, wholly safe public health measure.

My Lords, I should also like to thank the noble Lord, Lord Lyell, for explaining this order. Having said that, I must deplore the way in which this extremely contentious issue of fluoridation is being dealt with. When it was to apply to England and Wales it was debated for many hours and for a great many days in both Houses of Parliament. There were many bitterly contested amendments and often close Divisions, especially in your Lordships' House. This order is being rushed through this House in under half an hour with no constitutional possibility of amendment and no realistic possibility of stopping or even delaying it. One cannot help feeling, not for the first time, that Northern Ireland is being treated almost as a colony, and a 19th century colony at that.

Once again I stress that I make no personal criticism whatever of the noble Lord, Lord Lyell. I fully realise that this state of affairs has come about as a result of collective Cabinet decisions which antedate by many years his assumption of office. This is a state of affairs which I must continue nevertheless to deplore.

On the question of fluoridation, it so happens that I have just returned from a transatlantic trip which culminated in five days spent in a territory where the population's drinking water comes entirely from rain-water. That rain-water is filtered but not otherwise treated. Furthermore, it is unpolluted; there are no industries to speak of on or anywhere near the island. There are of course other drinks as well, both hard and soft, but when people want to drink water, as it comes or in the form of tea, coffee, ice for their drinks or added to their whisky, rainwater it has to be. Yet the people of that island have white and healthy teeth. They have notably better teeth than the average Englishman or Englishwoman.

Moreover that state of affairs has nothing to do with a healthy diet: I fear that the people of that island consume large amounts of American-style junk food in the form of hamburgers in sweet white buns, fizzy sweet soft drinks and so on. That makes the state of their dental health all the more impressive. It gives the lie to the assertion that fluoridation is necessary for healthy teeth.

Article 6(6) causes particular worry. It appears to give the Department of Health and Social Security power to suspend the right of a board to take account of public opposition to fluoridation and to act accordingly by withdrawing a fluoridation scheme. The power conferred by that paragraph may not be technically undemocratic but it would nevertheless seem to contravene the spirit of democracy. I hope the noble Lord will explain why that rather alarming paragraph has been included.

My Lords, I also should like to thank my noble friend for the way in which he introduced the order. The noble Lord, Lord Monson, has expressed doubts about fluoridation. I should like briefly to make a few fundamental points about fluoridation. Fluoride exists in all natural sources in the United Kingdom which provide our water supplies. In some areas it exists in the optimum amount for the health of teeth. People who have been fortunate enough to live from birth in those areas have much better teeth than those who live elsewhere in the United Kingdom.

Natural sources contain other substances, dissolved or carried in the water. There is no such thing as pure water in the original sources in the United Kingdom. Therefore, water authorities have for years added other substances for various reasons. In some cases there is a list of those substances. I wonder whether the noble Lord, Lord Monson, has seen the list of some of those other substances to which apparently no objection is made. They are of course added mainly to make water wholesome, palatable and safe.

There is much concern about the burdens placed on the National Health Service and its rising costs. In my view that is justified, although I believe that the Government are doing their best.

The addition of fluoride to water to bring it to the optimum amount in those areas where it does not exist naturally in the optimum amount, if carried out widely, would be of immense benefit. In due course it would save tens of millions of pounds and probably hundreds of millions of pounds in resources. That money could then be used for other purposes for the benefit of the nation's health. It would also relieve the population, and I hope this is something for which all your Lordships will have sympathy, from toothache, especially among young people. To be fully effective fluoride should be ingested in the first few years of life. It is difficult to be thorough when taking tablets or using toothpaste particularly at those early ages. "Save the Children"—that is the cause which I would support. Save the children from pain. It is a worthy cause. I think that it is a campaign which most of us would support.

I hope that these points will be taken fully into account by those people who have doubts about fluoride.

My Lords, I should like to apologise to the noble Lord, Lord Lyell, for not being here soon enough to listen to the opening part of his introductory remarks. I think that there are much better ways of getting fluoride into and onto the teeth than by through the water supply; for instance, it can and is applied by dentists—I believe it is called "topically"—to the teeth of children and young people. It can also be applied through toothpaste and through milk, which is highly effective if done through schools. I hope the people in Northern Ireland who are interested in those matters will take note of those points.

My Lords, I apologise for the fact that the noble Lord, Lord Hylton, had resumed his seat while I was receiving a note from the winged messenger and my noble friend. I meant no discourtesy to the noble Lord. We shall soon see and discuss who has the most caries. I thank all your Lordships who have spoken with no little passion about this order.

The noble Lord, Lord Prys-Davies, told us that he had received no representations on this order or matter from anyone in Northern Ireland. Your Lordships will not be surprised to know that there have been no major disagreements about water fluoridation in two particular areas. One or two people have made political points about consultation or the lack of it. They made the points made by the noble Lord, Lord Monson.

The noble Lord, Lord Prys-Davies, mentioned the fact that under Article 6(7) the public would have the right to attend meetings. I also noticed that. I am pleased that those members of the public who might express opinions with the passion that some of your Lordships have done will not be excluded from any meetings of the board.

I was not surprised that the noble Lord, Lord Winstanley, agreed with the order. I am pleased that he spoke for all on those Benches. I suspect that he spoke for all his noble colleagues who follow his profession and who are concerned with the health of not just teeth but the whole body. He made a notable contribution in debates on this matter in 1985. We note his strong support for the order once more this evening.

The noble Lord, Lord Monson, once again mentioned the fact that we are dealing with the matter during the dinner break and rushing it through. I hope that that does not stop us having a full discussion on the matter. I think that even he will agree that we do not necessarily want to go over all the ground that was covered in earlier debates relating to England and Wales, and of course Scotland as a result of the Jauncey judgment. I am grateful for his confirmation that his remarks about Northern Ireland legislation were not aimed at me. That is not often said, especially in the Province.

The noble Lord mentioned the rain-water which was consumed, presumably by himself and everyone else, on the island which he visited. I assume this is true of the inhabitants of the island that he visited, but I am advised that island people tend to have a high concentration of fish in their diet. I am further advised that that diet has a high fluoride content. My noble friend Lord Campbell of Croy pointed out that fluoride is present in almost all the water in the United Kingdom. The order gives the Department of the Environment in Northern Ireland, which is the sole water authority, the power to add fluoride to the water. I am given to understand that there is hardly a particle, an atom, of water in Northern Ireland which would not contain a tiny trace of fluoride.

My Lords, may I briefly point out that fish is expensive in the territory in question as it is in most islands nowadays for various reasons. It is therefore not consumed to any degree by the population as a whole but only by the people who can afford it.

My Lords, I am not able to enter into an interesting debate on where the noble Lord spent his Recess or on the content of fish. My advisers think that most island people have a high content of fish in their diet. But perhaps we had better not discuss the pricing policies of the holiday paradise of the noble Lord with regard to fish. There might be some other element in the population's diet which gives rise to their healthy white teeth.

The noble Lord also asked me about Article 6(6). Article 6 deals with consultation and publicity. Although the boards are required to advertise their proposals for schemes on fluoridation as well as advising and consulting district councils, the article does not place any constraint on the ultimate decision-making power of the board because the statutory duty which is vested by Parliament for preventive health measures lies with the boards and a requirement to seek approval from the department to a scheme does not imply that the department may oppose a board on policy grounds.

The provision in Article 6(6) relating to the Department of Health and Social Services to allow a scheme to be discontinued without consultation preserves an assurance given during the debate on the Water (Fluoridation) Act 1985. This provision would allow fluoridation to be stopped at short notice.

My noble friend Lord Campbell of Croy made an impassioned speech. Indeed, he made my remarks on introducing the order virtually superfluous. I am very grateful for his sound support and for his quotation that water should be wholesome, palatable and safe. It seems that my noble friend's words exactly mirror the words that I remember of Lord Jauncey in making his statement in this famed case in 1983. Certainly, I should not want to enter the lists as to whether fluoride would do my teeth, or anybody else's teeth, any good. I would send for two of my noble friends who deal in this specialised matter. We are not allowed to advertise, least of all from this position, but I think that they, too, would wish to enter the list on the side of your Lordships and possibly on the side of the supporters of the order before us this evening.

My Lords, I can guess from what the noble Lord said that the two noble Lords to whom he refers are practising dentists.

My Lords, the noble Lord puts it absolutely correctly but while I am in this position I had better say no more: otherwise, noble Lords may make some interesting deductions and know exactly to whom we are referring. However, I do not wish to have treatment now or within the next hour.

I thank all noble Lords who have spoken with no little passion, no little experience and no little insight. I commend the order.

My Lords, I beg to move that the House do now adjourn during pleasure until eight o'clock.

I rise in this packed Chamber to oppose the Question, That Clause 21 shall stand part of the Bill. We oppose this clause as being far too broadly drawn, removing at a stroke some essential safeguards in the criminal process. To mitigate the rule against hearsay and permitting documentary hearsay evidence is entirely sensible and acceptable. To destroy the rule altogether is to damage irretrievably the fairness of the criminal trial. What the clause sets out to do is to make a statement by a person in any document admissible evidence in the trial of any indictable offence—that is, in the magistrates' courts or in the Crown Courts—admissible as to the truth of what is said in the document. The only qualification is that the evidence must be of facts which would be admissible if given orally. Such evidence is to be called "first-hand hearsay" and the document when put in evidence is to speak for itself.

I give three short examples, so far as I can see, of what the result of this clause would be where the maker of the document will not appear as a witness at all. A letter is found containing the statement, "X stayed late at the office on 1st October and I gave him the keys of the safe"—admissible as to the truth of its contents when X is charged with theft.

In a notebook of a police constable an entry is found, "Saw X loitering round the public lavatory on three separate days this week"—admissible without the police constable coming to the magistrates' court when X is charged with importuning for immoral purposes at that lavatory.

Thirdly, a copy of the minutes of a meeting of a company with an annotation on it by the chairman, "X said he knew some of the statements in the prospectus were false. Not surprising, as he drafted it!"—admissible when X is charged with fraud. None of these statements can be cross-examined. How could a defendant establish that it was the maker of the statement who in fact stayed behind with the keys of the office? How could he dispute the identification by the policeman outside the lavatory? How could he show that the chairman was lying, mistaken, biased or exculpating himself; that he never drafted anything at all? Were there later meetings which altered the records of the earlier one? What was the emotional state of the person who made the entry in the diary at the time?

On the other hand, looking at it from the prosecution point of view, how could the prosecution deal with documents carefully prepared before an offence to put the blame on others or to provide a perfect alibi? A diary entry, "George arrived from London on the five o'clock train", the offence having taken place in London at a quarter past five, that is very helpful evidence to the defendant.

In fraud cases, false copy letters, false memoranda and false diary entries will now be legion and all admissible under this clause. Indeed what about false confessions by other accused? Confessions by the accused are accepted in this clause, but what about false confessions by other people who will not come to court and cannot be found? Why do we have now a general rule against hearsay evidence in documents?

The adversarial system is based, I suggest, on the principle that untested evidence is inherently unreliable; that no person should be convicted on untested evidence is one of the guarantees of a fair trial. Our system depends on the primacy of oral testimony, as the noble and learned Lord, Lord Hailsham, so strongly averred in our debates on the Roskill Report. The method of testing such evidence is cross-examination, which lies at the very heart of the whole Anglo-American trial system. Without cross-examination, without testing, a hearsay statement is exposed to mistakes of every kind, mistakes of perception, of observation, honest mistakes on dates, descriptions, identity, sight, hearing, to mistakes of omission and to the possibility of course, of concoction, of bias and of improper motive.

Rules are of course only rules. If they become out of date, if they are overtaken by changes in technology and the mere march of time, they must be changed. But in so doing, as we observed in our debate earlier this afternoon, the fundamentals of our criminal process, whatever may be the origin of them, must be preserved and must be defended, even if it is inconvenient to those who want to streamline the route to conviction.

Open justice, the onus of proof, conviction only on tested evidence, the protection against self-incrimination, the integrity of the jury, surely all of these things are matters worthy of some inconvenience in the system. Of course the general rule, as with all other rules, must be tempered with common sense. In fraud trials the documentation which swamps the proceedings—bank documents, company documents, share certificates—must be made admissible by procedure that avoids calling unnecessary oral evidence, bringing witnesses from abroad, bringing witnesses from hospital and so on.

That was recognised by all those who participated in the long debates on the Police and Criminal Evidence Bill. Sections 68 and 69 of that Bill were the outcome of those debates, and those provisions regarding proof of business documents are now already to be superseded by Clause 22 of this Bill. We shall no doubt debate that clause later. The clause we are debating now goes much further and is said to be based on Chapter 5 of the Roskill Report. I am very glad to see that the noble and learned Lord, Lord Roskill, is here, although I am in some trepidation of saying anything which might not be strictly accurate in his presence.

However, I suggest that the clauses in this Bill go further than the recommendations in the Roskill Report. The Roskill Report recommended that in fraud trials only there should be a discretionary power in the judge to allow such documents in evidence once the party producing them had explained to the court their nature and their source: that is, that there should be an inclusionary discretion in the judge. In other words, it would be for the judge to say, "Yes, in this case this document shall be admitted."

However, in this Bill under this clause the documents are to become admissible automatically, and the judge, and indeed the magistrate, will only have a discretion to exclude them—in other words, it is an exclusionary discretion. The result of that is that the onus will be on the accused person to establish that the document should not be allowed in under the provisions of Clause 23 which follows.

However, the Roskill recommendations themselves were open to serious criticism, I would suggest. I refer to the key paragraph, which is the one on which this clause is supposed to be based: paragraph 5.36 of the report. That paragraph, reading only the relevant matters, says:

"If one of the parties intends seriously to challenge the authenticity of a document and satisfies the trial judge at the preparatory hearings that he has good reason for so doing, he must, of course, be allowed to make that challenge and the strict requirements of proof should not be relaxed. But where his challenge is without foundation the trial judge at the preparatory hearings should have the power to permit the document to be given in evidence without formal proof."

The attitude there is that it should be the judge's discretion—that is what we find in this Bill—which replaces the rule of law that hearsay evidence should not be admissible. The judge decides whether the challenge is a serious one. He decides whether the challenge is without foundation and he permits the document to be let in or not let in. Without, I hope, any offence to the noble and learned Lord, we are reaching the position in this recommendation followed in the Bill that the judge's role becomes really that of the inquisitor instead of the independent referee. He becomes the inquisitor; he is the person who before the trial starts has to make up his mind whether what the defence are saying is without foundation or whether it is serious, and so on. Indeed, it is only a short step from there to defence by judicial consent.

The paragraph goes on:

"In exercising the discretionary power in the case of a document sought to be put in by the prosecution in this way the judge would need to be careful to ensure there was no unfairness to the defence. It may be suggested that such a change in the law might encourage the fabrication of documents by defendants. Even if this be a risk, we consider the risk small. If documents are fabricated and the fabrication is exposed, the effect is likely to be traumatic upon the fate of those on whose behalf the fabrication has been perpetrated. We think that should be a sufficient deterrent to fabrication."

That passage is interesting, because it never seems to have occurred to the Roskill Committee that the prosecution witness can fabricate evidence. Indeed, in many cases prosecution witnesses have been shown to have fabricated documents. Again it would seem to be somewhat naive, if I may say so, to suggest that the fear of exposure in a criminal trial will prevent fabrication or deceit. Protection against the putting in of these document in wrong circumstances is to be afforded by the terms of Schedule 2 to this Bill. That permits evidence to be called as to the credibility of the maker of the document and once again, only with the leave of the judge, as to any matter which could have been put in cross-examination if the maker of the document had been called. I have to say that that protection is really window dressing because it is the reaction and the demeanour of the witness when tested which may cause doubt in a jury's mind as to his reliability. It is not the material which happens to be in the advocate's hand which is going to make any difference.

Finally, much play is made of the fact that the rules have been relaxed in civil proceedings. But the criminal courts are concerned with offences and penalties and not with negligence and damages; with the liberty of the subject and with proof beyond reasonable doubt and not with proof on the balance of probabilities. The distinction between the civil and the criminal has been spelt out with clarity in a very recent case of Andrews by the noble and learned Lord, Lord Ackner, in a case which is reported in the Weekly Law Reports of this year, volume 2, at page 413.

The question in that case was whether hearsay evidence should be given of a victim's naming to a third party the person who in fact struck the blow two months before he, the victim, died. He therefore could not give evidence at the trial, and the test adopted by the noble and learned Lord was one which had been described by the noble and learned Lord, Lord Wilberforce, in a previous case as an entirely valid reason for exclusion of such evidence; namely, where the circumstances were such as to exclude any possibility of concoction or fabrication. The noble and learned Lord, Lord Ackner, said this:

"Whatever may he the position in civil proceedings, to use this doctrine as a device to avoid calling, when he is available, the maker of a statement and thus deprive the defendant of the opportunity to cross-examine, would not be consistent with the fundamental duty of the prosecution to produce all material facts to ensure that justice is done."

That is what we are discussing in the clause; whether justice is done.

If the clause stands, the next step will be to admit not only documentary first-hand hearsay but oral first-hand hearsay. I can indeed hear the noble and learned Lord, Lord Hailsham, arguing forcibly that the admissibility of evidence cannot be decided on whether the witness recorded the fact on the back of an envelope or recorded it in the back of his mind. The clause, if left part of the Bill, will lead, I suggest, to trial by document in proceedings presided over by an inquisitorial judge.

Your Lordships are not deciding whether to keep an outmoded rule or technical protection for the guilty. What you are deciding is the protection of the integrity of the criminal trial in Crown and magistrates' courts and, I suggest, the preservation of the essential fairness which has been the hallmark of that process for so long; if I can put it quite simply, whether justice is ensured to be done.

I submit to the Committee that the clause, which on the face of it makes a statement by a person in a document admissible of the truth of what that statement says (in any document created at any time and produced without the maker of it), is going far too far in sweeping away a rule which prevents generally hearsay evidence.

There is every reason for seeing that documents in fraud cases and in other cases, created by people who have a duty to create them and who have created them as a result of inquiries that they have made from people who have knowledge and so on, should be made admissible without all the ludicrous nonsense of bringing witnesses to court to prove every stage. That was provided for in the Police and Criminal Evidence Act 1984. We debated it at length. Those clauses are excellent and, in my submission, provide a perfectly good basis for dealing with those cases with which the Roskill Report dealt.

As a member of the Criminal Bar Association and an ex-chairman of it, long before the Roskill Report was ever brought into existence, I can say that we have continually asked for a reform of the law on this very matter. Let no-one in the Committee think that I and others who put forward the amendment are dinosaurs, dyed-in-the-wool, wanting to keep old ideas for our own personal advantage and so on. The young people who work at the coalface in the criminal bar—members of both the Criminal Bar Association and the Law Society—are against this enormous enlargement of the doing away of the hearsay rule.

Therefore, I ask members of the Committee to look seriously at the breadth of the clause. Clauses 22, 23 and 24 may be a different matter and may be amendable in detail. I suggest that Clause 21 goes far too far and that the Bill would be much better without it.