My Lords, I beg to move that the Commons amendments and reasons be now considered.

Moved accordingly, and, on Question, Motion agreed to.

commons amendments and reasons

[The page and line references are to Bill 104 as first printed for the Lords.]

My Lords, I beg to move that the House do not insist on its Amendment No. 1 to which the Commons have disagreed. I hope we can dispose of this amendment relatively swiftly. When we last debated the issue of police force mergers on Report, I indicated that, while the Government were no longer pursuing the amalgamation of forces, it was necessary to retain the powers in the Police Act 1996 for the Home Secretary to initiate mergers, so that they were available as a backstop. When the matter was debated in the other place on 24 October the shadow Minister for Police Reform, Nick Herbert, sought five assurances on this issue. My honourable friend the Minister for Policing, Security and Community Safety, Mr Tony McNulty, was happy to give a broad yes on all five points.

For the record and for the benefit of this House, I am ready to repeat those assurances. First, I say again, enforced amalgamations will be a last resort, for now we are looking at other means to narrow the protective services gap. Secondly, of course a proper case for any future amalgamations must be made. Indeed, the 1996 Act requires the Home Secretary to set out his case for any merger. Thirdly, we accept that any proposals for mergers must be subject to full public consultation and that this should not be confined to the statutory four-month consultation period required by the Police Act. Fourthly, on the question of parliamentary scrutiny, merger orders initiated by the Home Secretary are subject to the affirmative procedure under the Act, so a measure of scrutiny is already built in. However, we are ready to consider additional opportunities to debate any merger proposals. Finally, if we in the Home Office have learnt anything from the previous experience, it is that the financial implications, including the issue of precept equalisation, must be fully resolved before any merger proposals are finalised. I hope that in the light of these assurances the House will now feel able to agree not to insist on this amendment.

Moved, That the House do not insist on its Amendment No. 1 to which the Commons have disagreed.—(Baroness Scotland of Asthal.)

My Lords, the Minister has explained why she feels it appropriate for this House not to insist upon its original amendment. My amendment would have ensured that the Secretary of State could not lay a statutory instrument containing an order regarding the alteration or merging of police areas unless that course was requested by the police authorities that would be affected by any changes. The other proviso was that the Secretary of State believed it was right and in the interests of the efficiency and effectiveness of policing. We objected to the Government’s plans to press ahead with forced mergers. When we argued the merits of our case in Committee, the House agreed with us by a margin of 198 votes to 130, so I should put on the record, however briefly, the reasons why we appear to be backing off from that strong position.

During the summer the Government signalled that enforced mergers were going deeper and deeper into the long grass. We remained concerned that they might bring back their plans when the fuss had died down and public attention had perhaps been drawn to other, more objectionable policies. On Report I tabled an amendment on the importance of a cost-benefit analysis to ask the Minister to put on the record an assurance about the Government’s plans with regard to forced police mergers.

The Minister set out her assurances in detail on 9 October at cols. 61-62. We then had the opportunity to consider her words very carefully. We believe that the words she uttered before the House then, together with the assurances put clearly on the record by her honourable friend Mr McNulty in another place, provide sufficient reassurances for this House to rely upon. That is why we have not tabled an amendment today to object to the Government’s Motion, which overturns the decision of the House made in June. We remain convinced that mergers should proceed at some future date if, and only if, they are with the consent of all the police authorities concerned in that merger or alteration, and if the Government have demonstrated persuasively that the key principles set out by the Minister are met. In the interests of time I will not repeat those principles today.

With regard to the financial implications referred to by the Minister, it is right that I put on record my own concern about the announcement made by the Home Office on Monday—that it would pay police forces just £4 million to reimburse them for the money they were forced to spend on the abandoned police mergers programme, when the real costs incurred were £6.5 million. My own police force in Surrey is one of those that is, as a consequence, unfairly treated, because of the capping of payments to a maximum of £100,000 per force. Surrey had to incur expenditure of £649,311. As Bob Jones, chairman of the Association of Police Authorities, pointed out, the failure to reimburse all the money was not just regrettable; the money police authorities spent was money that would otherwise have been spent on improving local policing for local communities.

We rely on the assurances given by the Minister and by Mr McNulty. We therefore believe that if the Government were to bring forward proposals for forced mergers at some future date, this House would be justified in relying upon those assurances and in taking a view on whether it should take the somewhat unusual step of objecting to a statutory instrument being made. In the mean time, for the reasons I have set out today, I do not object to the Government’s Motion.

My Lords, I support the noble Baroness, Lady Anelay of St Johns. Although it preoccupied us all far too much earlier this year, I hope that the possibility of police mergers is now dormant. But that does not mean that they will not be reactivated in the future. I hope that the Government have leant lessons about the way that the matter was approached and that we will not see the mistakes repeated.

As we have just heard, the recent Statement by the Minister for Policing made clear that this measure had been an extremely costly way of achieving very little. As the noble Baroness, Lady Anelay, made clear, Surrey incurred great expense—the relevant sum was more than £250,000—as did my local force, North Yorkshire. We should remember that the figure of nearly £4 million set out in the Statement reflects only the limited range of eligible costs directly attributable to restructuring and is only a fraction of the total sums involved in the very extensive and detailed work that was undertaken by forces and authorities. This represents a lot of time, effort and money, which has been diverted at the expense of real policing. Since that time some excellent collaborative policing has taken place. A very good example of that was demonstrated earlier this month. I refer the Minister to a Thames Valley press release issued on 10 October, which states:

“Officers from across the south of England have arrested 14 people aged between their mid-20s and mid-50s in a series of raids this morning in connection with a series of crimes valued at over £30 million.

The arrests, which took place in Oxfordshire, Worcestershire and Gloucestershire, are a significant development for Operation Haul, which was set up in October 2005 jointly by Thames Valley Police, West Mercia Constabulary, Warwickshire Police, Wiltshire Police and Gloucestershire Police to target an organised crime network believed responsible for 23 serious offences throughout the five force areas. Thames Valley Police Assistant Chief Constable Francis Habgood, Operation Haul commander on behalf of the five forces, said, ‘The crimes being investigated by Operation Haul include some of the highest profile—and highest value—burglaries this country has ever seen’”.

That is an excellent operation and shows exactly what police forces can do, and what we said they could do when the Government put forward their ill judged proposals on mergers.

The five assurances to which the noble Baroness referred, and to which the Minister again referred, which were asked for in the other place and given by the Minister for Policing, are important. I wholeheartedly support them. For me the one that resonates is the need to ensure that adequate consultation takes place. This consultation needs to listen to what is being said by both the public and the experts. Merely paying lip service to consultation, having predetermined the outcome, is completely counterproductive, as I hope the Government have learnt. Local identity matters to local people. They feel a bond with, and take a pride in, their local police force which is based on this identity. That is not to say that local identity is all that should be considered, but minimising its value and ignoring alternatives which might accommodate it is asking for trouble. The other assurances are equally important. Clearly, any future proposals must take account of what is allowable under financial rules in relation to precepting. They must involve making a meticulously and preferably independently evaluated and costed case. It must be a last resort that no other approach will solve, otherwise the public will never be convinced that some other way of doing things is not more important than their local allegiance.

Finally, it must be subject to detailed parliamentary scrutiny. It is, after all, a key constitutional issue if policing by consent is to mean anything. Like the noble Baroness I shall be keeping a very close eye on any future statutory instruments dealing with police mergers. It is vital to ensure that there is adequate opportunity for a robust debate to explore whether mergers might, at some point in future, be sensible, and to address the other key criteria set out by the noble Baroness. Half-baked proposals that do not meet those criteria will not pass the test. With the promise of a gimlet-eyed watching brief, I am reasonably content to leave matters regarding mergers in the Government’s hands for the present.

On Question, Motion agreed to.

rose to move,

That this House do not insist on its Amendment No. 5 to which the Commons have disagreed, but do propose the following amendments in lieu thereof—

My Lords, at Third Reading I pointed out that the clause as proposed was contrary to a basic principle of our constitution in that it is not for the police or the prosecution to have any hand in sentencing an offender. That is a question for the courts. When I asked the noble and learned Lord the Attorney-General how the argument that he was advancing regarding the clearing of graffiti would apply in the case of a fine, he said that he would not shy away from that difficulty. But it remains a difficulty and I believe that the way that the noble and learned Lord dealt with it was unsatisfactory. The fact is that a fine is a fine, a fine is a punishment and a punishment is totally inconsistent with the idea of a conditional caution, as originally envisaged in the 2003 Act.

I also made a point that was made by many others, not least by the noble Baroness, Lady Anelay, that this is a radical departure from principle, which has been introduced without any consultation. All those I have consulted—we know the view of the Magistrates’ Association—are, I shall not say horrified, but are certainly as surprised as I am horrified.

The amendments do not answer my basic constitutional objection and I remain rootedly opposed to this clause. But I acknowledge that the Government have tried hard in these amendments to reduce the impact of the clause. The reduction from £500 to £250 is welcome, as is the plan to specify the offences to which the conditional caution will apply and to set separate maxima for each offence. That certainly reduces the discretion. There is still a level of discretion left to the prosecuting authorities which, as I say, I find objectionable. If the amendment were left as it is, I would still find it difficult to accept.

My Lords, we remain concerned that the Government are taking our judicial system down a route that could lead to the widespread use of administrative punishment instead of the impartial hearing that is given in a magistrates’ court. Fair trial safeguards and the involvement of the independent court in the delivery of punishment are in the wider public interest and in the interest of the victims of crime. As the noble Baroness knows, I would have preferred to have seen the full report on the operation of conditional cautions, as introduced in the Criminal Justice Act 2003, before we pressed ahead with extending them to punishment.

This morning I have been in contact with the Magistrates' Association and I have made sure that the noble and learned Lord’s office knew that. I know that the Magistrates' Association shares our concern that these proposals breach the basic principle that sentencing is a matter for the independent judiciary and will still breach that principle despite the concessions offered today.

Why am I not opposing the government amendment and why have I not tabled a Motion? We have very carefully considered the arguments set out on Report by the noble and learned Lord the Attorney-General, at col. 130 of the Official Report of 10 October, that the law currently prevents an offender who has admitted criminal damage from being able to carry out restorative work when the damage has already been dealt with and that the law prevents him from being ordered to carry out other work in lieu—the indirect reparation to which the noble and learned Lord referred in moving the government Motion.

We have certainly considered that and we see the practical arguments behind the Government’s reasons for wishing to press ahead on such a basis. Today the Attorney-General has come forward with amendments that do much to allay the concerns that I brought forward in Committee. I am grateful to him. They should restrict the degree of discretion which may be exercised by prosecutors in relation to imposing punitive cautions that effectively impose a fine and, despite that, as the noble and learned Lord, Lord Lloyd of Berwick, said, we seem to be shifting, I hope—by the nature of what may be happening—from regulations towards more of a fixed penalty.

I am certainly grateful to the noble and learned Lord the Attorney-General for arranging meetings on these matters yesterday. Although, of course, we had seen the published government amendments that came out on Monday, when I met the noble and learned Lord I was not aware of the letter that was winging its way to me from the noble Baroness which gave further explanation. It was not on my desk when I went to see the Attorney-General, but a quarter of an hour later, when I got back, it was on my desk. I only hope that the noble and learned Lord did not think I was looking somewhat vacant and surprised when he made some of his proposals—they certainly came fresh to my mind. It means that today we do not have to object to the Government’s Motion.

It was constructive to hear that the Government will prescribe, in secondary legislation, the offences to which a financial penalty will apply. That is in the printed amendments. However, as we were told in the letter, the practical application is that only a limited range of offences will be prescribed. That is important. They will be listed in banded groups, giving a limited discretion to take the offender’s financial circumstances into account. I agree entirely with the noble and learned Lord, Lord Lloyd of Berwick, about the financial advantages of that.

We shall, however, wish to monitor closely the use of the punitive conditional caution. It should not be an “Open Sesame” for widening administrative punishment without conclusive evidence being produced to both Houses that it is both necessary and appropriate. But, as a result of today’s amendments and the further clarification in the Government’s letter, we do not object to the Motion.

My Lords, I echo what has been said by the noble and learned Lord, Lord Lloyd of Berwick, and the noble Baroness, Lady Anelay. We have discussed this matter fully at all stages of the Bill. An important point of principle is involved, as well as significant practical considerations. The principle is that conditional cautions are non-punitive, but that reparation and rehabilitation lies at their heart. We heartily endorse this approach as appropriate, effective and right in terms of requiring the offender to address his offence appropriately by making reparation, which in turn makes amends to the victim. It also makes possible the rehabilitation of the offender by requiring attendance at, say, an alcohol or addiction centre, which lies at the cause and the root of the offence. Thus, the matter is properly and seriously addressed without sucking someone unnecessarily into the criminal justice system.

My regret is that the hands of the Attorney-General appear to be tied by the limitations on conditional cautions as currently designed. There is therefore an inability to allow indirect reparation for damage or harm caused if it is not possible, for whatever reason, for the offender to make good the damage for which he was directly responsible. Making good other damage to the community is not, apparently, allowable. I hope that this issue can be addressed in future legislation because it is an absurd limitation on the possible good that reparation of any kind can do.

To extend these conditions as proposed, however, is to open the door to administrative justice, where a punitive element is now present; where punishments are imposed by the police and Crown Prosecution Service, which then become de facto investigators, prosecutors and judges. The principle of sentencing and punishment being imposed by an entirely independent tribunal—the court—is thus dispensed with. We recognise that we are talking here about the lowest level of offending, but, none the less, this all-important principle of our justice system is being bypassed.

The practical considerations involve the means by which low-level offending can be managed speedily and efficiently, which both deals with the offence and avoids a lengthy process of court proceedings given that the offender has pleaded guilty to a minor offence. This we understand. However, many people may accept a conditional caution, whatever the conditions, because the idea of going to court is so alarming. In doing so, the punitive element is introduced. So we stand on the cusp of principle and practicality.

I am most grateful to the noble and learned Lord the Attorney-General for seeing us yesterday, for the trouble he has taken to examine these issues, for the efforts he has made to meet our arguments and for the accommodations he is now proposing. I acknowledge that in terms of the punitive options being considered, the noble and learned Lord has agreed to the limit on the possible fine, which has been reduced to £250, and that any changes to time or limit on punitive conditions will be subject to affirmative resolution procedure on maximum hours, and therefore subject to a vote in both Houses of Parliament before any change is made. I understood him to say at an earlier meeting that in time to come—possibly in a year—he would report back on the outcomes of these changes and on how they are working in the initial pilot areas. It is important to have a chance to revisit these arrangements.

However, given the concessions, and having clearly stated my concerns on the small but important way in which a principle of justice is being undermined, I accept the Government’s new amendments.

My Lords, I am grateful for what the noble and learned Lord and the noble Baronesses have said. We will not agree on this basic constitutional principle—we did not agree last time and we will not agree now. I still take the view that the courts are in control because a person can always go to the court and ask it to determine. But I do not need to debate that any further. I am glad that, with the adjustments that have been made, we have reached a compromise. It still brings in a change—I do not shy away from that at all—to the original conditional caution scheme, but we believe that that change is important to enable us effectively and fairly to deal with low-level offending.

As to the detail, the noble Baroness, Lady Anelay, must play poker very well, because I did not notice any vacant stare at all when I saw her yesterday. She seemed to be entirely on top of everything. I shall bear that in mind at future meetings. But, of course, the letter sent by my noble friend Lady Scotland contained exactly what I said at the meetings and what I have said in moving this Motion, and that is a part of what the Government propose.

As to reporting back, if at any stage the House would like to hear how the scheme is going, I shall be happy to provide a report, which deals with that issue as well. In those circumstances, it appears that the House can now approve this matter.

My Lords, is the noble and learned Lord saying that the amount will be in the form of what is called in the letter a “standard amount per band”—in other words, a norm—and not a maximum? In other words, it will be whatever is decided, unless it is reduced.

My Lords, I am slightly reluctant to accept the word “norm”, but I said precisely that. There would be bands and the prosecutors would have the ability—albeit a limited discretion—to reduce the amount, particularly to take account of the need for overall proportionality and the offender’s means. I hope that that meets the point made by the noble and learned Lord.

On Question, Motion agreed to.

My Lords, I beg to move that the House do agree with the Commons in their Amendments Nos. 10A to 10D to Lords Amendment No. 10, Amendments Nos. 11A to 11F to Lords Amendment No. 11, Amendments Nos. 12A to 12E to Lords Amendment No. 12, Amendments Nos. 13A to 13F to Lords Amendment No. 13, and Amendments Nos. 14A to 14I to Lords Amendment No. 14.

The House will recall that at Third Reading we withdrew the provisions to establish a new criminal justice inspectorate and, in their place, applied to each of the existing inspectorates the provisions in Part 4 for delegation of functions, inspection programmes and frameworks, “gatekeeping” in respect of inspections by other inspectorates, co-operation, joint action and assistance for other public authorities. That will provide the statutory underpinning for the more efficient and effective joint working to which the inspectorates are committed.

As I then emphasised, those amendments have not changed the existing remits of the five inspectorates, nor have they in any way compromised their independence. They simply provide ways in which the inspectorates can exercise their current functions more co-operatively and flexibly.

At Third Reading, the House welcomed the amendments but expressed concern that the paragraphs relating to inspection programmes and frameworks would create too burdensome a duty on the chief inspectors to consult. As I foreshadowed at that time, due to the speed at which the amendments were prepared, technical adjustments would be forthcoming. I assured the House that we were in dialogue with the five inspectorates to refine the consultation process in an appropriate way.

Having had that very constructive dialogue, we have added provisions to enable each chief inspector, by agreement with the consultee, to waive the consultation requirement in agreed cases or circumstances. So, for example, if an inspectorate on the consultee list had no interest in seeing inspection programmes relating to a particular area of business, that could be agreed on a case-by-case or standing basis. This will enable the consultation process to operate sensibly and without unnecessary bureaucracy, and ensure that it includes all elements that need to take part, without going too far.

My Lords, I feel that I speak for Members on every Bench in this House who have spoken when this matter has come before us in welcoming the changes that have been made—in particular, the commitment not to press ahead with, while keeping under review, the merger of the inspectorates into something that would have proved unworkable, at least for the moment.

I am particularly grateful for the Minister’s reassurance that there is no intention for the Secretary of State to interfere in the way in which inspections are conducted. That was a matter of some concern among the inspectorates to which I have spoken. However, I ask the Minister for further reassurance on one point, which was raised by the all-party Joint Committee on Human Rights and by me when this was discussed on previous occasions—regularity of inspection.

Frequency of inspection sets the pace and tone of the year for the inspectorate and is the regulating factor for resources. As I mentioned to the Minister, if there were more demands on the inspectorate for other activities—such as inspection of police cells, in the case of the prisons inspectorate—that could affect the resources and the regularity. Therefore, will she guarantee that there is no intention to reduce the current frequency of inspection, which is particularly important at the moment, given that the prison system as a whole is undergoing strains due to overcrowding?

My Lords, I support all the points made by the noble Lord, Lord Ramsbotham. I agree that the Government’s Motion should be accepted today. When the Minister tabled the raft of amendments at Third Reading in this House, that effectively ended the Government’s plans to put structural changes to the prisons inspectorate into statute. However, we were concerned that the late tabling of those amendments—a matter of minutes before tabling closed—meant that noble Lords were unable to scrutinise them and certainly unable to table amendments to them, as manuscript amendments are, of course, not permitted at Third Reading.

At Third Reading, the Minister stated that refinements might be made in another place. I was intrigued to find that the exact wording, at col. 803 in Hansard, was “minor technical adjustments”, to which the noble Baroness has referred today. In any event, the Government’s changes tabled for today are certainly welcome. They are more than technical adjustments; they make it possible for us to remove any objection that we would otherwise have had today.

The noble Baroness referred to consultation. The Government’s amendment on that is hugely wordy and convoluted. Ours would have been better, but there we are—never mind, we will accept the Government’s roundabout way of doing it.

On the Secretary of State’s powers, the Government are trying to assure us by saying, “Never mind, this won’t really mean what it says”, which is that the Secretary of State interferes. We hope that this is an administrative matter and will not mean any diminution of the Chief Inspector of Prisons’s authority. The noble Baroness today said that the Government—and of course they would say this—wish to retain the option of reintroducing the merger programme at some future date, given the results of the programme for working together, which we know that the inspectorates wished to do in the first place.

The noble Baroness will not be surprised if I say that, if any such proposal is put forward, experience of debates at Second Reading, in Committee, on Report and at Third Reading will show that this House will rigorously examine the Government's case before it will agree to the creation of the mega-inspectorate that was first proposed. We have arrived at the right conclusion by a very interesting route and I hope that we do not have to revisit the issue for some considerable time.

My Lords, I shall be brief. I support very much what the noble Lord, Lord Ramsbotham, and the noble Baroness, Lady Anelay, have said. Following the government amendments at Third Reading, it was obvious that some residual amendments were necessary. Unfortunately, when they were moved in the other place, they were lost. However, we are perfectly satisfied now that the Minister has explained how the system will work. It seems that the principals involved in the inspections are perfectly happy with the arrangement, too. Obviously, it will be a different matter if these mergers are to be considered on a future occasion. That will obviously require the scrutiny of this House and, as experience has shown, it may be a difficult exercise for the Minister to pursue. In the mean time, we would certainly raise no further objection. The system should be monitored adequately over a period of time to see how effectively it works.

My Lords, the monitoring period will be very important. In view of the short time in which the revised measure was brought forward and then extensively amended, we, too, will be watching closely what goes on in that period.

I regret that I have not been a party to the discussions in tabling the amendments, so I apologise for any ignorance. I would like an assurance from the Minister that the specific requirements for the publication of programmes of inspections do not preclude the inspector making unannounced inspections, which are crucial to the efficiency of the system.

Secondly, I am concerned by Amendment No. 10D, which gives the Secretary of State power in conjunction with a great panoply of authority—the Lord Chancellor and the Attorney-General. I should like to know why they are brought in as well when there is to be a direction for a joint inspection, presumably by the inspectors subject to those Ministers. If overused, that could undermine some of the liberty of action that we secured in our original amendment.

My third request is much more general. I hope that the Minister will carry it to whichever is the appropriate committee—it may be more than one. It would be immensely helpful when there are numerous amendments to a very long amendment if the lines could be numbered. We are asked to look to line 134. It took me quite some time to get there and I must admit that I missed some of the things that the noble Baroness was saying. If that could be addressed, I should be most grateful.

My Lords, having spoken on Report, I thank the Government for having done what they have done. That is the end of my congratulations. The way in which they did it was a disgrace to this House and prevented the House from performing proper scrutiny and the revising role at which it is so good. As my noble friend Lord Elton said, we were prevented from discussing a number of issues because we were not told of the Government’s plans. I did not find out about the amendments at Third Reading until after it had taken place. I spoke very briefly to the noble Baroness that evening to express my disgust at the way in which the House had been treated. I have since rung her office and sent her two e-mails, but I have had no reply at all. I hope that this is the only occasion when the noble Baroness has not had her finger on the pulse in her usual way and that we are never treated like this again.

My Lords, briefly, I align myself with the comments made by the noble Lord, Lord Ramsbotham, and the noble Baroness, Lady Anelay. I thank my noble friend for understanding the anxiety that we all felt when we spoke about the prisons inspectorate. The last time that I was sitting behind her, no one spoke on her behalf from these Benches, so I wanted to do that today and thank her sincerely for her help.

My Lords, as one who did not speak on the last occasion, I, too, am very appreciative of the way in which the amendments of the noble Lord, Lord Ramsbotham, which were substantially supported in the House, have now in effect been introduced to the Bill as it will be presented for Royal Assent. However, there are provisions in these amendments for orders by the Attorney-General. Will the noble Baroness inform me, either now or later, about the mechanism by which those orders are to be made?

My Lords, first, I thank all those who have spoken. I give a particular apology to the noble Earl, Lord Caithness. I assure him that no discourtesy was intended. He knows that, to put it mildly, I have been under a little pressure time-wise just recently, which has meant that it has not been possible to have the meetings that noble Lords will know I am always very happy to have whenever I am able to.

The reason why the amendments came back very quickly is that this House had expressed a huge interest in the nature of the inspections. I thought that this House deserved the courtesy of being the first to consider these matters—matters which I reasonably anticipated would give this House a deal of satisfaction and pleasure. Of course, it was open to me not to take that course, not to act with expedition and not to give the House this opportunity, but to allow the other place to have that privilege. If what we have done has done this House a disservice, I humbly ask noble Lords for forgiveness, but I think that it reflects the regard that I, and indeed the Government, have for this House. It would be remiss of me not to remark in a modest and mild way that my coming back to the House with these amendments seemed to give the House a little pleasure in hearing what I had to say.

I reassure the noble Lord, Lord Ramsbotham, that the frequency and regularity of inspections will be matters for the inspectorate to determine. Nothing has changed. I reassure the noble Lord, Lord Elton, too, that unannounced visits will be entirely at the discretion of the inspectorate.

My Lords, I beg to move that the House do not insist on its Amendments Nos. 36 and 85 to which the Commons have disagreed. Your Lordships will remember that, when we last debated this issue in Committee, several noble Lords argued that these amendments were all about the failure of the United States to ratify the treaty. It may assist the House if I remind noble Lords what was said then. The noble Lord, Lord Kingsland, said:

“The treaty is what today's debate is fundamentally about. The treaty needs to be ratified by both parties to give it binding effect in international law … The United States has done nothing about ratification, in breach of the rules of international comity … We believe the time has come for your Lordships’ House to act. The United States Senate is, after all another upper House in an English speaking world; and we hope that a firm signal from your Lordships’ House would be taken seriously by the United States Senate”.—[Official Report, 11/7/06; cols. 626-27.]

Then the noble Lord, Lord Goodhart, said:

“I have no expectation that the Senate will approve this treaty in the remotely near future”.—[Official Report, 11/7/06; col. 632.]

The noble and learned Lord, Lord Mayhew, who was in his place just a moment ago, was very kind. He said:

“We wish her luck … She will be strengthened and not weakened if this House has shown, at last, that the Brits are not patsies; that they have been taken for a long enough ride … Let it therefore arm her for the fight”.—[Official Report, 11/7/06; col. 635.]

The noble Lord, Lord Hodgson, said:

“It will also perhaps provide some backbone to the Government’s negotiations with the US, which now appears to be conspicuous by its absence”.—[Official Report, 11/7/06; col. 639.]

It was the House’s intent at that time to arm me for the fight that it wished me to engage in, on behalf of Her Majesty’s Government, with the United States—the Senate in particular—in the hope that it would better understand the disquiet that had been caused by its failure to ratify that treaty.

My Lords, I cannot speak for the other noble Lords whom the noble Baroness has quoted but, since she referred to me, I would like to make it absolutely clear that, while one of the problems was the failure of the United States to ratify this Bill, I stated throughout proceedings that I regarded the treaty itself as fundamentally flawed and that its ratification was not my objective.

My Lords, your Lordships will see that I did not assert that the noble Lord did anything otherwise. Indeed, I would go further and say that his dissent on the inclusion of America in the Extradition Act remains resolute to the end; at no stage did he weaken from that position.

Armed, encouraged, given backbone and strengthened by this House, I sallied forth on its behalf to bring the news of its dissent to the Senate. This House knows me well; our American cousins may have been less well prepared. But we were able to marshal the arguments with the United States and explain to it the depth of disquiet that its lack of assiduousness on this matter had caused. I am therefore delighted to report that the sentiments expressed in this House had considerable effect.

In passing these amendments on the last occasion, the House was essentially seeking to be helpful—to provide me with ammunition to assist me in Washington. I was well armed and the amendments appear to have done the trick, because the Senate has now given its consent and we must now, if I may respectfully suggest it, do our part by honouring that bargain to enable us to ratify the treaty. I thank all noble Lords who spoke so well in the debate, because I was able to deploy each of those arguments with our American colleagues to good effect.

So where are we now? As I say, the US Administration strongly supported the purposes of the new treaty. The matter went through their process without objection or dissent. It was unanimous. I know that the noble Lord, Lord Goodhart, thought that there was not a chance that this could be done before mid-term elections. Their programme was absolutely packed and, therefore, it was deemed futile to make the attempt. The fact that they did this demonstrates their total and wholehearted commitment to the agreement into which they honourably entered and which we jointly signed. This House fully understands why the United Kingdom and the United States signed that treaty. The treaty in 2003 defines extraditable offences by sentence threshold rather than by list. Therefore, we are no longer constrained by time. There are individuals who have committed very grave offences, but are incapable of being extradited at the moment because the time limit disables us from so doing.

Ratification of this treaty will enable us to seek the return of some very serious offenders who have committed sexual offences or are alleged to have been involved in crimes where people have died by way of manslaughter, and others. It also introduces temporary surrender, which would enable us to extradite someone who is already serving a prison sentence. We have been able to take advantage of temporary surrender in relation to a European case: we have a serial rapist who is spending a very long period in prison in our country. We are able to surrender that person to another European jurisdiction because they have committed sexual offences elsewhere in Europe. It is a very valuable tool.

The treaty also waives speciality protection, which enables prosecution for offences other than those for which extradition was sought. As I said earlier, it lifts the limitation bar on extradition. Amendments Nos. 36 and 85 would prevent ratification of the treaty. The United States Senate has given its consent to the treaty and has sent it to the President for ratification. All that remains to be done is for your Lordships to lift your insistence on the amendments to the Extradition Act. Then the instruments of ratification can be exchanged and the treaty will forthwith enter into force.

Two issues have caused concern. The first is “forum”. Amendments Nos. 81 and 84 would require judges to make decisions about prosecution, which would be an entirely new and perhaps wrong procedure in our law. Judges are independent of prosecution and defence. I think that it was Lord Dilhorne who said:

“A judge must keep out of the arena. He should not have or appear to have any responsibility for the institution of a prosecution”.

It is one of the fundamental bases on which our criminal justice system rests. I am grateful for having been reminded of that very important judgment by my noble and learned friend the Attorney-General.

Others have compared our laws with those of other countries, and I simply remind your Lordships that the jurisprudence of England and Wales is significantly different from that in other countries and from our European colleagues. The forum amendments could result in a person escaping justice altogether. No one, whatever the accusation they face, will be or has been extradited from the United Kingdom to places with which the Human Rights Act would find a level of incompatibility. The expressed and implied protections of the Human Rights Act mean that extradition which does not comply with those terms will be prevented. I know that comments were made in the other place to the effect that: if we were to return someone, would they be sent to Guantanamo Bay? I assure all Members of the House that the arrangements we have with the United States would not allow that to happen. We are strongly of the view that questions about the most appropriate forum should be considered on a case-by-case basis by independent prosecutors from the relevant jurisdictions.

My Lords, I am sorry to intervene, but I have a small query. The noble Baroness is speaking on forums, covered by the amendments under Motion F. Do I understand that this debate should cover the forum amendments as well as the existing subject of Motion D? I am perfectly happy with that, but it would be helpful for the purposes of making my speech, and no doubt it would also help the noble Lord, Lord Kingsland, if we knew whether that was the position.

My Lords, it may be convenient to have one debate. The reason I raise it now is that these arguments have been conflated in such a way that it is quite difficult to abstract them. One tends to bleed into the other. But I know that a number of noble Lords wish to speak so I am quite content to deal with more of the detail if and when it proves necessary for me to reply.

My Lords, speaking for myself, I would be perfectly happy for the entire discussion to be taken as a single debate.

My Lords, I am also happy with that.

My Lords, that is a most helpful indication. As I have said, questions about the most appropriate forum should be looked at on a case-by-case basis by independent prosecutors from the relevant jurisdictions. I know that my noble and learned friend the Attorney-General has been in discussions with the United States Attorney-General, Alberto Gonzales. His officials are considering draft guidance that would cover serious, sensitive or complex criminal cases where it is apparent to prosecutors that there are issues of jurisdiction to be decided. Your Lordships will know that if at any stage our prosecutors come to the view that there are charges which should properly be prosecuted in this country, it is always and at all stages open to us so to do.

In particular, consideration is being given to prosecutors applying the following test: does it appear that there is a real possibility that a prosecutor in the other country may have an interest in prosecuting the case? Such a case would usually have significant links with the other country. What is being considered is basically a three-step approach to decisions on jurisdiction—first, the early exchange of information between the relevant jurisdictions; secondly, prosecutors consulting on cases for the most appropriate jurisdiction and deciding about that; and thirdly, where prosecutors have been unable to reach agreement on jurisdiction, officers of the Attorney-General taking the lead with the aim of resolving it. The United Kingdom is also providing, as is always the case, detailed guidance to our prosecutors. That is the role that my noble and learned friend the Attorney-General has discharged, and one that his predecessors in title have discharged before him. It is envisaged that talks with the United States will be completed very soon. These are practical arrangements about how we work in comity, on a day-to-day basis in a way that makes sense, with our partners.

The evidential requirement is another issue which has caused a deal of concern. There probably never will be complete agreement between those who accept that the evidential requirements between the United States and the United Kingdom are now broadly comparable and those who do not. But there is an acceptance that the previous standards were lopsided, even if there is disagreement over the degree. The advice from the prosecutors in both jurisdictions is that the new standards are not identical but are now broadly comparable.

When I was in the United States with the Attorney-General, I raised the issue of how the system works. I was assured that the procedure goes something like this. If a state wishes to make an application or an order for extradition, it has to get a federal warrant. To do so, it has to go before the grand jury and satisfy it that there is probable cause. Only if probable cause is satisfied are the American authorities then entitled to make the request to us for a warrant to be exercised on their behalf. Therefore, under the American procedure, the American authorities have to satisfy themselves that probable cause is satisfied.

Going the other way, a request from us to them would have to satisfy the same standard of probable cause. In the past when we made a request to them that prima facie evidence should be produced, they declined to accept it from us because they needed only to have established probable cause. That is what their system demanded. In effect, we have a mirror both ways—probable cause out and probable cause back in. I also asked another question: will the evidence that you produce to us be significantly different from the evidence which you will ask us to produce to you in return? The clear answer I received was no. That, certainly in my book, amounts to parity of treatment.

The United States is a country with a long-standing and well established constitution which guarantees the rights of individuals facing justice. We have extradited 21 people to the United States without prima facie evidence and without injustice. It cannot be right to damage our international relations with one of our longest-standing allies simply because of a difference in our legal system which we cannot eliminate. This House asked for the Americans to move—they have moved. They are ready to honour their side of the bargain; it is time that we did the same.

Moved, That the House do not insist on its Amendments Nos. 36 and 85 to which the Commons have disagreed.—(Baroness Scotland of Asthal.)

moved, as an amendment to Motion D, leave out from “House” to end and insert “do insist on its Amendment No. 36, but do not insist on its Amendment No. 85”.

The noble Lord said: My Lords, I shall speak also to my amendment in Motion F1.

In the many incursions that this Government have made into individual liberties during their time in office, the matters concerned with the bilateral treaty on extradition with the United States is a special case, because that agreement was negotiated in secret. The press knew nothing about it; neither did Parliament. It appears from the proceedings in another place that not even Mr John Denham, the Minister of State at the Home Office at the time, knew anything about it. As a result, we were presented with a fait accompli on 31 March 2003. The treaty, containing many clauses that applied directly to the rights of individuals in this country, was wholly unsupervised by our parliamentary system.

One might well ask what animated the Government in engaging in such a negotiation. Were they simply supine in the face of a country they wanted to please beyond anything else? Did they deliberately decide to reduce the rights of British citizens in relation to extradition? Or were the negotiators simply incompetent; were they wholly unaware when accepting the American Fourth Amendment—the probable cause matter to which the Minister referred—that we also have constitutional protections in the European Convention on Extradition, particularly Article 7.1?

Whatever the explanation, and I suspect history will finally produce an analysis that gives us a more accurate audit trail than I have today, I am absolutely convinced that, in future, Parliament must have a role in the scrutiny of treaties before they are signed. That is the big constitutional lesson that comes out of this sorry story. I would like to see all treaties produced in front of a committee while they are in draft, and the House should debate them before they are signed. I very much hope that this is a matter the House will take seriously in the coming months.

In opening, the Minister quoted certain things from the speech I made in Committee on 11 July, at cols. 625-29 of the Official Report. Her quotations demonstrate all the dangers of quoting out of context. I made it absolutely clear at the beginning of my speech that I had two objections to the treaty. One was the issue of ratification, to which she referred. The other was the issue of reciprocity, or fairness, to which she did not refer. I do not need to elaborate on this point because the noble Lord, Lord Goodhart, has made it for me. He has said in terms that what principally concerns him is the issue of reciprocity; and I do not need to add anything to that observation. I share exactly the same opinion.

The fundamentals that lie behind this issue have already been well debated, and I do not intend to repeat in terms what I said in Committee. I shall just refer to a number of points the Minister made in opening. The first one concerns the question of prosecutors and judges. She quoted a famous passage from Lord Dilhorne about judges interfering in matters that are none of their concern. Extradition matters, however, are very much judges’ concern, as we learn from Article 7.1 of the European Convention on Terrorism.

I ask the House to forgive me for quoting this to your Lordships, but it is germane. Our forum amendment says:

“If the conduct disclosed by the request was committed partly in the United Kingdom, the judge shall not order the extradition of the person unless it appears in the light of all the circumstances that it would be in the interests of justice that the person should be tried in the category 1 territory … In deciding whether extradition is in the interests of justice, the judge shall take into account whether the competent United Kingdom authorities have decided to refrain from prosecuting the person whose surrender is sought for the conduct constituting the offence for which extradition is requested”.

My Lords, since your Lordships’ House last debated this issue the Senate has, as the Minister pointed out, consented to the ratification by the President of the 2003 treaty. That treaty confers some benefits on the United Kingdom such as the right of extradition to the United Kingdom even if the prosecution would be time barred in the USA. That is something I have always recognised. The ratification does not remove the main objections to the treaty, which are, first, the unequal nature of the treaty and, secondly, the fact that the treaty assists the aggressive use by the United States of extra-territorial jurisdiction.

Amendment No. 36 cancels the designation of the USA under the order made in December 2003 as a country to which people can be extradited without establishing probable cause, or indeed a prima facie case, under the Act. The Liberal Democrats—and we alone—voted against the order in both Houses in December 2003 on the ground of its inequality. Amendment No. 36 was rejected by the House of Commons in the debate on 24 October. In that debate, the Government relied yet again on the old chestnut that there is in fact no real inequality. That is not so. The Minister has put less emphasis on that on this occasion than she did on the earlier occasion, but she did repeat it.

It is true that, under Section 71 of the Extradition Act, the USA must provide information that enables it to get a warrant for the arrest of the defendant with a view to his or her extradition from the United Kingdom. For obvious reasons, where an arrest warrant is being sought, no notice is given to the defendant of the application for the warrant. Information on which it is based is not shown to the defendant. There is no hearing. The first the defendant knows of the application is when he or she is arrested. Then an extradition hearing follows, but where the country requesting the extradition has, like the United States, been designated under Section 84(7), there can be no review at the hearing of the adequacy of the evidence or information against the defendant.

For extradition from the USA to the United Kingdom, the position is quite different. The United Kingdom has to show probable cause at the extradition hearing. The existence of probable cause can be challenged by the defendant at the hearing. The information relied on by the United Kingdom is disclosed to the defendant and can be challenged. The defendant is able to argue that the information is in fact insufficient to amount to probable cause. That is entirely different from an application for an arrest warrant on its own, carried out in the total absence and ignorance of the defendant. That is spelled out in the treaty in Article 8.3, which says that,

“a request for the extradition of a person who is sought for prosecution shall be supported by … for requests to the United States, such information as would provide a reasonable basis to believe that the person sought committed the offence for which the extradition is sought”.

There is no requirement for any corresponding information for extradition from the United Kingdom to the United States. That on its own makes it clear beyond doubt that there was a deliberate decision of those who drafted the treaty that there was to be a significant difference in procedure between extradition from the United States and extradition from the United Kingdom.

My Lords, I wonder whether the noble Lord can help me. As he has pointed out, the imbalance is contained in the treaty in Article 8.3. In what way would the proposed amendment help to resolve that imbalance?

My Lords, the proposed amendment would of course make it impossible for Her Majesty’s Government to exchange instruments of ratification, which they obviously will do as soon as this matter is disposed of. It would therefore force the Government to a renegotiation of the treaty with the United States. That is the objective that we seek. The same is equally true of the legislation as to forum. That would also force a renegotiation of the treaty. Given that the amendments in groups D and F have been spoken to by the noble Lord, Lord Kingsland, I assume that that is his position also. He is nodding his head in concurrence.

There is a conflict between interest and duty. It is in the interest of a state requesting extradition that extradition proceedings should be swift and simple. It is the duty of the state to which the request has been made to protect its citizens and residents from unjustifiable requests for extradition. These must be balanced. It may be legitimate for the United Kingdom to surrender a degree of protection of its citizens and residents in order to obtain a simpler extradition treaty with another country. It is not legitimate for the United Kingdom to surrender protection for its citizens without also getting a simpler procedure for extradition to the United Kingdom. That is what has happened here.

I shall briefly explain why I have not insisted on our Amendment No. 85, which was originally tabled in my name. First, it is not necessary. Its purpose is to ensure that if Amendment No. 36 is passed, the Government could not bring in a new order to the same effect. If Amendment No. 85 were not made, then the Government could do that, but they might well meet insuperable difficulties in obtaining the approval of your Lordships’ House if it had insisted on the inclusion of Amendment No. 36. If that amendment were passed, your Lordships would be justified in rejecting any new order for that purpose.

I have another reason for not insisting on Amendment No. 85. My understanding is that it would not have the support of the Conservatives and would therefore have no chance of succeeding. In Committee, the noble Lord, Lord Kingsland, said that although he supported it, the amendment should be modified so that it did not apply to the extradition of terrorists. We would be unable to accept such a modification. Anyone suspected of terrorism has the same right to a fair trial in this country and to protection from improper extradition to a foreign country as someone suspected of any other grave crime. Anyone extradited to the United States will face hardship; but hardship faced by someone who is unjustifiably extradited for terror-related crime is likely to be far more severe than the hardship of someone who is unjustifiably extradited for a white-collar crime.

Amendments Nos. 81 and 84 relate to the “forum” question and aim to deal with the problem of the aggressive use of extradition requests by the United States in cases where the US is not the most appropriate forum. However, those amendments would have a much wider application. Amendment No. 83 would apply to category 1 countries, which are mostly in the European Union, and Amendment No. 84 would apply to category 2 countries, including the USA. That is not a problem in most cases. The effect of the amendments is that if part of the alleged offence has been committed in the United Kingdom, the judge conducting the extradition hearing can extradite the defendant only if it is in the interest of justice that that person should be tried in the requesting state. That is perfectly compatible with article 4.7(a) of the framework decision on the European arrest warrant, and there is a similar provision in article 7.1 of the Council of Europe Convention on Extradition, which covers extradition to many category 2 countries.

The problem lies with the 2003 treaty, which has no provision to enable a United Kingdom court to refuse extradition on grounds that that would be unjust. There are many reasons why extradition could be unjust. They include not only the basic fact of the residence of the defendant and the witnesses, but also that the USA makes extradition claims where there is no real connection with that country—for example, where the only link is the location of an internet service provider in the USA—and the use in the USA of draconian sentences, coupled with very large discounts for guilty pleas to an extent that puts pressure on innocent defendants to plead guilty.

According to an article sometime ago in the Wall Street Journal, no less than 97.5 per cent of defendants accept plea bargains. There is also the use of coerced evidence, including evidence from Guantanamo Bay, which would not be admissible in the United Kingdom, and great difficulty in obtaining bail. The grant to the NatWest Three may well have been a one-off, prompted by the desire of the United States Government to prevent rejection of the treaty in the United Kingdom.

My Lords, in her introductory remarks, the noble Baroness explained in general terms the new agreement that has been reached with the United States on this matter. I listened carefully, but I did not pick up from her remarks any precise description of the nature of this document. It does not sound to me as if it is a new treaty; I suppose it might be a document to be attached to the treaty but presumably not ratified. My fear is that it is a letter written by the United States to ourselves which explains in general terms how they hope that the agreement might work out. In that case, it has no legal force. The answer to that question will be very relevant to the future of this whole subject.

My Lords, the House has had the benefit of very weighty legal arguments, but those arguments on the alleged imbalance in respect of the evidential burden and in respect of the forum were largely the same as those adduced during the July debates. It is as if nothing has happened since the July debates which, as your Lordships will recall, largely turned on the context of the three British businessmen who are called by their supporters the “NatWest Three” and by those who do not support them the “Enron Three”. In my judgment, something of significance has happened since the July debate and the House should take note of that.

The debate in July, which turned on questions of fairness and reciprocity, was proper and it strengthened my noble friend’s hand in Washington. The outcome seems to be better than many of us had assumed. I refused to support the Government in the July debate and was highly sceptical that my noble friend could persuade the US legislators to change their position. I now confess that I was wrong and my noble friend was far more persuasive than I had imagined. I had assumed that we were in the hot atmosphere of the debates prior to the mid-term elections and that legislators asking, “How many votes do you have?” would be the decisive factor. Indeed, we know that the US Senate Committee on Foreign Relations has, according to its constitutional function, given its advice and consent, which is important.

We also know that if the amendments were carried, the treaty would fall. The treaty has important consequences for our citizens—in my judgment, far more important than the concerns expressed about them. I therefore congratulate my noble friend. Having gone to the US surrounded by the scepticism of many of us, she persuaded her US counterparts on this issue. She did not have to persuade the Executive because the US Administration were already on side; it was the legislature that had to be persuaded. We must concede that she has brought about a sea change and should be congratulated.

In my judgment, it is therefore important for us to ratify the treaty. It is certain that we would not be able to do so if the additional restrictions imposed by the amendments we accepted by the House. The possibility of renegotiation, as put forward by the noble Lord, Lord Goodhart, is probably as realistic as the renegotiation of the Treaty of Rome, which some people put equally unpersuasively.

Finally, I note that the noble and learned Lord the Attorney-General is discussing with his US counterpart, Mr Gonzales, protocols which would affect the choice of forum. We know that the question has been live since July and for some time previously. As the protocols are broadly accepted—we are told that the protocols will be agreed shortly—it is unfortunate that they have not been brought before the House so that we could reach a judgment on them. That said, it is clear that there has been a substantial change since July. It was important that we had the debate then and were able to strengthen the hands of my noble friend to convince our US friends of our legitimate concerns. Therefore, in those changed circumstances, I am ready to support my noble friend and congratulate her on what she did in the US.

My Lords, as we are being denied a separate debate on Motions F and F1—albeit by general agreement—perhaps I may, as a layman, point out that an eminent Queen’s Counsel in another place, who happens to be a distinguished member of the Minister’s party, agreed with her on Lords Amendment No. 36—the subject of Motions D and D1—but strongly disagreed with her on Lords Amendments Nos. 81 to 84 inclusive, the subjects of Motions F and F1. Many other honourable Members on the Government Benches felt exactly the same way. That is why the Government’s majority on the second set of amendments eight days ago was very much narrower. I mention that because, although some noble Lords may feel that the Government have a case over Motions D and D1 for the reasons set out just now by the noble Lord, Lord Anderson of Swansea, they may take a very different view over Motion F1, where I think the Government have absolutely no case at all.

My Lords, perhaps I may follow my noble friend Lord Anderson because, in a sense, his position and mine are virtually identical. In the earlier debates, I was extremely sceptical and doubtful about whether my noble friend would achieve anything when she went to the Senate. Indeed, I was even doubtful about what she would say to members of the Senate that might induce them to change their minds. I was wrong. My noble friend obviously did a superb job, the result of which is that the Senate is now prepared to recommend, in that they are advising consent, that the treaty be ratified.

I want to make two points: one is quasi-legal and the other more practical. As presently drafted, the treaty is in the interests of the United Kingdom. We need it. I have not heard a word from the other side about the circumstances in which it benefits the United Kingdom, which it clearly does. It gives us advantages in getting people back from the United States to this country. I am rather in favour of that and I should have thought that most Members of this House would be, too. The problem that I had in the earlier discussions was that we were in a position to ratify but the United States was not moving in the direction of ratification. It has now moved considerably—and rather surprisingly.

That brings me to my second point, which concerns the practicalities. If we insist on these amendments, then, in the words of the noble Lord, Lord Goodhart—this is his objective—the treaty will have to be renegotiated. After next Tuesday, there will be a different Senate. If the treaty goes back to the Senate in the new form—there are bound to be some changes and there will be a new session of the Senate—there is no guarantee whatever that it will be accepted. If it is not accepted, we shall be right back at square one, which, frankly, is not a position that I would be prepared go back to.

By and large, I accept what my noble friend said. If there is a vote tonight, I shall support the Government, whereas I am afraid I was not in a position to do that in July.

My Lords, I am not a lawyer. I think that I am the only person to speak who has no legal training, but, as they say, law is too important a matter to be left to lawyers and this matter has social, philosophical and economic aspects that involve us all.

I supported the Government in the initial vote. I think that the noble Baroness will confirm that I was a lone voice—perhaps a rather surprising one—among the Labour Peers in giving her my warm support. I am afraid that, when I heard the speeches from the opposition Benches, I was much influenced by the famous remark of Tom Paine in The Rights of Man:

“He pities the plumage, but forgets the dying bird”.

We had a great deal of legalistic plumage that was stroked and admired, but the point is that there are new kinds of international and global crimes from which we need legal and other protection.

I make three points. The first has already been made and I am delighted to be on the same side as my noble friend and former pupil, Lord Anderson, who spoke with great wisdom, as he always does, on the considerable improvements that have been gained by the noble Baroness. Frankly, it would then seem to be totally absurd to erect the much higher and, as my noble friend Lord Richard said, totally impossible barrier of trying to negotiate a new treaty. That is not a serious proposition in the real world of politics, nor, I suspect, in the real world of the law, although I sometimes wonder where that is located.

However, there have been improvements. Many of the apprehensions initially expressed seemed to be ludicrous and have been disproved. It was said that these people would not get bail, and they have. It was said that there would be various objections in the courts and, in fact—although the noble Lord, Lord Kingsland, regretted it—the courts have repeatedly supported the Government’s position. The noble Lord, Lord Kingsland, did, however, make one valuable point, as he frequently does, and I again support him on this—the need for parliamentary ratification of treaties. That is not centrally germane to this debate, but it is crucial. I believe in a written constitution and that the role of Parliament should absolutely be underlined in it. Be that as it may, under the present circumstances we have had real progress. The Minister deserves the support of these Benches.

My Lords, I shall be brief. Listening to the debate, I have sometimes been uncertain whether we were being asked to amend the treaty signed in 2003 or the extradition designation order of that year. If there is an imbalance, that imbalance is in the treaty so recently agreed. It might be as well to have the wording in mind. Article 8.3, to which the noble Lord, Lord Goodhart, has referred, states that,

“for requests to the United States, such information as would provide a reasonable basis to believe that the person sought committed the offence for which extradition is requested”—

but not the other way around. That is the treaty obligation into which we entered and which the United States, as I understand it, has now ratified. As I understand it, ratification brings that treaty into force. If it does not—

My Lords, I thank the noble and learned Lord for giving way. It is not ratification that brings the provision into force. It is not in force yet. The exchange of instruments of ratification brings it into force. That has not yet been done and, as I understand it, will not be done until this matter is disposed of.

My Lords, that gets the noble Lord no further, because I think that he was inclined to accept that the 2003 treaty only repeated previous extradition treaties with the United States going back to the middle of the 19th century. All have had this imbalance—if you call it an imbalance. They have had this imbalance because of, as we all know, the provisions of the Fourth Amendment of the United States constitution. That is the reason for it. I say in passing that this problem arises not only with the United States, but with other countries, such as Australia and New Zealand, with which no difficulties seems to have arisen. Like the United States, they require something more than mere information; they require some evidence.

Extradition has had a long history since the 1870 Act. Anybody who has had any part in trying an extradition case will know that, as the years go by, it becomes more and more difficult and more and more complicated. More and more technical points are raised in order to prevent extradition. The change set in in 1957 with the European convention, because it was seen as absurd to create these unnecessary difficulties when one was dealing with other countries in the European Union. Surely the same must also apply, as was so eloquently put, to the United States. To remove the United States from paragraph 3(2) of the designation order would be a thoroughly retrogressive step as well as being, as I understand it, contrary to our treaty obligation whenever that in due course comes into force.

My Lords, I hesitate to intervene in this debate, partly because I have not done so before, but also because many of the arguments have been so eloquently advanced already. However, I feel compelled to do so because I am particularly concerned about the effect of the amendments in relation to forum.

Those amendments impose an obligation on a judge not to order the extradition of the person unless it appears in the light of all the circumstances that it would be in the interest of justice that the person should be tried in the category 1 state, which is the state seeking the extradition. There is a similar amendment for category 2 states. No guidance is given anywhere in the amendments about how one judges the interests of justice. One can have a situation where virtually all the evidence is in the United Kingdom, but the devastating consequences of the crime are felt in another state. The growth of internet crime and the free movement of peoples and goods can all contribute to such an effect. Does one judge the interests of justice by where the evidence is located or by where the effect of the crime is felt?

From my recent experience in prosecution, I have real difficulty with sub-paragraph (2). It is here sought that, in deciding the issue of forum, the judge is to take into account whether the competent United Kingdom authorities have decided to refrain from prosecuting the person whose surrender was sought for the conduct constituting the offence for which extradition is requested. I accept that there is no obligation on the competent United Kingdom authority to make such a decision, but there is clearly an expectation—and, I imagine, there would be an expectation by the court—that the competent prosecuting authority would advise the court whether it had decided to refrain from prosecuting. I submit that that imposes a huge burden on the prosecuting authorities and has the effect of lengthening—perhaps considerably—extradition proceedings. In my judgment, no competent prosecuting authority would be prepared to give such an undertaking or make such a statement unless it had itself examined all the evidence. In Scotland, that would include precognition by the Crown authorities.

We have been talking at length about white-collar crime, in which in some offences—whether it be fraud or money laundering—considerable documentation will be involved, much of it held by the requesting state. I fear that it could be a considerable time before the prosecuting authority could advise the court whether it was going to refrain from prosecuting.

In Scotland, at least, the decision to prosecute is taken on two bases. The first is whether there is sufficient evidence to mount a prosecution. What is “sufficient” is judged according to the law in Scotland, which might be very different in the requesting state. For example, in Scotland, we require corroboration of all the essential elements of the offence. We also have strict rules about the use of hearsay—certainly stricter than the rules that now apply in England and Wales. A case may very well meet the evidential test in Scotland, but barely do so because of those tests. There may not be the same difficulty in countries seeking extradition.

The second arm is the public interest. In Scotland, we require the prosecutor to decide that it is in the public interest to prosecute. It may be a moot point whether the public interest is to be equiparated with the interests of justice—perhaps for this purpose they are one and the same. One consideration that has historically been given weight, where there are elements of an offence in another country, is whether it would be appropriate for that offence to be prosecuted in another country. Prosecutors in Scotland have always had regard to that.

Let us suppose that the Crown goes through the process of examining all the evidence and determining whether there is sufficiency. The Crown may come to the view that there is sufficient evidence to prosecute in Scotland, but it may very well also come to the view that it would be more appropriate for that offence to be prosecuted in the state seeking extradition. Note the important point: it is not that a prosecution is not in the public interest but that the interests of justice are better served by a prosecution in the extraditing state.

Having gone through that process, the Crown in Scotland would presumably then be required to advise the court that it had decided to refrain from prosecuting. I ask the House to consider what happens if the request for extradition is refused. The person who is being sought will remain in this country. Presumably the question then arises whether that individual is to be prosecuted in the United Kingdom—certainly in Scotland. It may be that extradition was refused not because of the appropriateness of the forum but for some completely different reason. Noble Lords should remember that the Crown may well have taken the view that it would be in the public interest to prosecute but that prosecution should be in another country. What happens then? Does the case go back to the very authority that has already advised the court that it would refrain from prosecuting?

Another difficulty in Scotland—I hesitate to mention it, but it is a real one—is that the Lord Advocate is barred from prosecuting once he has made it publicly known that he will not prosecute, even if he took the view that a prosecution was in the interests of justice. I submit that the amendments on forum would put in place a mechanism that is supposed to determine what is in the interests of justice but would, in fact, defeat the interests of justice.

Finally, I find the proposition that we should renegotiate the treaty really rather alarming. I have been involved in extradition both from and to the United States and, as a recent prosecutor, I would be very alarmed if we were to return to the system that pre-existed the Extradition Act. For all those reasons, I support the Motion.

My Lords, I thank all those who have participated in this debate. I thank particularly warmly my noble friends Lord Richard, Lord Anderson and Lord Morgan, and my noble and learned friend Lord Boyd. I also note with the greatest warmth the comments made by the noble and learned Lord, Lord Lloyd.

My noble and learned friend Lord Boyd explained very clearly why the amendments tabled by the noble Lords opposite would cause huge difficulty for and damage to this country and, indeed, to our ability to prosecute. I accept all the comments made in support of the Motion, and I shall not repeat them, except to say that crime has now become truly international. It is no respecter of frontiers or borders, which is why we have striven in most recent years to find ways in which we can work in comity to ensure that those who commit offences internationally do not escape justice. I am sure that noble Lords opposite do not propose that someone should avoid the consequences of their actions simply because they can escape from these shores, commit offences and come home again. The offences that we seek to cover in this treaty are weighty indeed. It may assist the House if I run through the sorts of cases involving extradition to the United States in 2005-06 that we have covered in the treaty. They include indecent assault, two cases of theft, nine cases involving drugs, child abduction, grievous bodily harm, fraud, murder, child pornography, forgery, rape and money laundering. Those are the extraditions from the United States. The extraditions from the United States to the United Kingdom in 2005-06 were for drugs offences, burglary, child abduction, forgery, manslaughter, murder and deception. We are talking not about minor offences, but about enabling our countries to work together in unison to bring about justice for victims.

I listened carefully to the noble Lords, Lord Kingsland and Lord Goodhart. I confess that I wondered whether real consideration was being given to what we as a country would lose if we passed these amendments and how our citizens would be thereby ill-served.

My Lords, can the noble Baroness estimate how many of these cases would have led to extradition under the old regime? I would have thought it likely that most, if not all, of them would have been extradited under the previous rules.

My Lords, many of them will be capable of being extradited but the noble Lord will remember—and the noble and learned Lord, Lord Lloyd, was absolutely right—that it is a question of timing. I know the House does not need to be reminded that it used to take us about 22 months to go through the process of extradition, when the United States was returning people to us within five. Even with this new process we are still taking about eight months to its five. We wish, where appropriate, to be able to return people to them just as quickly.

The noble Lord, Lord Kingsland, raised the issue of Article 7. I listened carefully to what he said and I am not sure whether he was conflating its provisions with the Irish law. Noble Lords will know that the United Kingdom chose not to incorporate this safeguard into the legislation when it became a party to the ECE in 1991. No argument was advanced to alter the position when the Extradition Act 2003 was passed. There are full and proper safeguards in that Act, including human rights safeguards. Furthermore, this provision could result in a serious offender escaping justice anywhere. That cannot be in the interests of the victims of crime.

This House perhaps did this country a service in giving me that ammunition. I am grateful for all the compliments that I have been paid—none of them entirely deserved. I was able to deploy the arguments that were advanced in this House with full effect in the United States, and they were mortified that this House felt that they were not totally committed to making sure that we were extraditing people, one to another, in a way that was sound and that would inure to the benefit of our people. That desire to act in comity with us encouraged them and enabled them to move with such speed and expedition, at a time of real difficulty, to give us a clear answer that they were on our side.

For us to go back now and say, “Notwithstanding the fact that you have moved mountains to satisfy us, we are still not so satisfied” would be a day which would cause me—a very rare occasion—to feel that this House had not done itself a service. I ask noble Lords to reject the amendments in the names of the noble Lords opposite and to allow us now, with due speed and expedition, to ratify this treaty, which will inure to the benefit of all our people.

My Lords, I am most grateful to all noble Lords who have spoken in this debate. I want to spend one or two minutes responding to some of the points that were raised. The noble Lord, Lord Morgan, referred to the very high standard in the United States of protection of individual rights. I entirely agree. The United States, through its constitution and the jurisprudence of the Supreme Court, has a record which is second to none in protecting individual rights. My criticism was not of the standard of rights in the United States. It was the fact that the Government, through this treaty, would be prepared to accept a lower standard for citizens facing extradition in this country than United States citizens would face when we sought to extradite them from the United States. That was the point I was seeking to make.

The noble Lord also, quite rightly, drew the attention of your Lordships’ House to the nature of modern crime and the difficulties that we face in trying to defeat it. I also entirely accept that argument, which the whole debate, for example, about control orders, which took place about 18 months ago, was about. However, just because there are new sorts of crime, that does not mean we should surrender all the hard fought-for liberties of the individual in this country. We should test them very carefully against the new challenges to see whether they need to be modified, not simply abjectly to surrender them because there is a new crime that we do not recognise.

My Lords, I agree with the broad principles of what the noble Lord, Lord Kingsland, said very moderately and reasonably. What worries me is not so much observing legal safeguards, but erecting new barriers. It seems that things will be more difficult and agreement will be less possible. At a time when crime is very complicated, to erect higher barriers against solving it will make matters worse.

My Lords, of course, I do not dissent from that. I think that that is true. Nevertheless, one of the difficulties about the fact that this treaty was never scrutinised by the House is that we have had no chance to assess whether the degree of sacrifice that we are being asked to make in terms of individual rights is properly balanced by the new challenges that we face. It is particularly difficult in the context of a bilateral treaty with the United States, because United States criminal law, unlike any other criminal law in the world, has this enormous extra-territorial outreach. It can reach out to individuals in the United Kingdom who have never even set foot in the United States and it can use these provisions in the treaty to extradite them.

In my submission, it is above all with arrangements in the United States, because of the extra-territoriality of the criminal law which is wholly unmatched by our criminal law, that we need to look with particular care at the provisions included in this treaty. But there is absolutely no sign whatever—

My Lords, is the noble Lord saying that Her Majesty’s loyal Opposition do not want this treaty?

My Lords, of course not. I have made it absolutely clear that we want the treaty; but it contains sacrifices of individual rights which are too severe. If the Government had owned up to the fact that these negotiations were going on in the early months of 2003 and to what they were about, we might have had a sensible debate and would not be in the position that we are today. But not even the Minister of State in the House of Commons knew about it, and we knew nothing about it. Because of that failure to disclose, we find ourselves here tonight on the verge of a vote. So I do not accept what lay behind the noble Baroness’s intervention.

The noble Lord, Lord Richard, said that we need the treaty. I do not disagree with him. The issue is what price we are paying for the treaty.

My Lords, the noble Lord is apparently saying that he wants the treaty and that he is very much in favour of the US ratifying the treaty. Nevertheless, he will scupper the treaty because he is concerned about the procedure.

My Lords, “scupper” is a wholly inappropriate word in this context. One of the reasons why ratification is a side issue here is because for the past three years we have been operating in this country as if the treaty were ratified, so it makes absolutely no difference to us. For the past three years the terms of this treaty, not those of the 1972 treaty, have been respected, even though these terms have no binding effect in international law.

The noble and learned Lord, Lord Boyd, drew the attention of the House to the principle of the interests of justice and claimed not to know what it meant. I understand that to be what he said.

My Lords, I am grateful to the noble Lord for allowing me to clarify the point. What I said was that no guidance is given within the terms of the amendment that would give any clue to how it should be judged. There are many ways of judging it. Do you judge it by where the effect of the crime is felt or where the evidence is?

My Lords, I thought I had dealt with that in my speech by quoting from Article 7.1 of the European Convention on Extradition. It is quite clear that the amendment we have tabled is based on that. It is also a provision within the Irish treaty with the United States. The Irish have entered into a treaty with the United States and many aspects of that treaty are similar to our own; but what the Irish have done is to provide the forum defence whereby if a judge, not a prosecutor, thinks it is in the interests of justice for the trial to take place in Ireland rather than the United States, the judge is entitled to take that decision. In my respectful submission, that is the right approach.

I thank all noble Lords who have participated in this debate. I continue to believe that the position we have taken by tabling this amendment is the right one and I wish to test the opinion of the House.

My Lords, I beg to move that the House do not insist on its Amendment No. 71 to which the Commons have disagreed and do agree with the Commons in their Amendments Nos. 71A to 71K to the words so restored to the Bill.

These amendments concern the Secretary of State’s powers to intervene where serious and persistent police performance concerns have arisen. We have listened to the concerns raised during previous stages of the Bill and we have worked hard to accommodate them by tabling in the other place a number of government amendments. We believe that these address the concerns of your Lordships’ House while ensuring that the powers remain fit for purpose.

In the light of experience gained over the past four years in supporting forces to build up an effective performance regime, we have developed these proposals to update the Secretary of State’s powers of intervention. The new provisions in the Bill, as first introduced in this House, will modify the reserve powers to intervene in an underperforming force or police authority. As I have previously explained, we are not taking new powers. The powers were originally introduced by the Police and Magistrates’ Courts Act 1994 and enable the Secretary of State to direct a police authority to take measures to improve performance in a police force where it has been shown to not be efficient or effective or will cease to be efficient or effective. I stress this last point because it is important that the House recognises that the power to intervene when there is a danger that a force or authority will fail is a long-standing one. We are not breaking new ground here.

We firmly believe that the Government should have reserve powers to intervene in those areas where policing has fallen below an acceptable level and other non-statutory resolutions to performance issues have proved insufficient. At present, intervention can be triggered only by an adverse report from Her Majesty’s Inspector of Constabulary, and experience has shown that there may well be other relevant sources of information. Examples are the findings of a public inquiry—the Bichard inquiry being a case in point—the police performance assessments and objective performance data, as well as HMIC inspection findings. That is why the Bill widens the sources of information which the Home Secretary can consider in deciding whether to exercise his powers.

Secondly, the Bill streamlines the intervention process. In all but the most exceptional cases, statutory intervention will be considered at a point when all other means of collaboration and support have been attempted but performance has failed to improve. Policing is a service delivered and governed locally and it must be performed to a consistent and acceptable standard in all our communities. The responsibility for ensuring that such a service is provided rightly resides with the chief constable and the police authority. None the less, there may be occasions when it becomes clear that an area is receiving an unacceptable standard of policing and the local force and authority have been unable to take the necessary steps to address this.

In that respect, we recognise the strong feeling expressed about the changes which would allow the Secretary of State on some occasions to direct a chief constable on performance matters and not to have to route this direction through the police authority. The amendments agreed by the other place restore the position under the Police Reform Act, which routes the intervention power through the police authority on all occasions—something which I know will give the noble Baroness, Lady Harris, to name but one, a considerable amount of satisfaction. The amendments recognise that it is the police authority which is primarily charged with holding the chief constable of a force to account.

The second main point of concern has focused on what we feel is misrepresentation of the intent of these powers, namely that the Secretary of State should use them on a whim or for a trivial purpose. We have made it clear throughout that they are intended to be used only when serious and persistent performance concerns have arisen and other attempts to address these have failed. These are powers of last resort and the revisions are intended to be used only in cases in which the force or authority has had an opportunity to make improvements and the decision to intervene is based on sound evidence.

To provide further reassurance on this point, we have introduced an amendment which requires the Secretary of State to consult Her Majesty’s Inspectorate of Constabulary when he proposes to use these powers in relation to a police force or police authority. Furthermore, the Secretary of State will be under a duty to publish the inspectorate’s opinion on the evidence leading to that proposed course of action. This will ensure that the inspectorate's professional, independent advice is available to the Secretary of State on whether the use of the powers is, in its opinion, the right course of action. This provides confidence that the inspectorate’s opinion will be taken into account when deciding whether to invoke the powers.

Our proposals are intended to provide the Government with effective but proportionate intervention powers of last resort. We have listened to some concerns about how they might be interpreted or used and have responded accordingly with some specific safeguards. On Report, the noble Baroness, Lady Harris of Richmond, indicated that while her preference was to remove these provisions entirely from the Bill she recognised that it was sensible to have a plan B. I suggest to her that the amendments made in the other place deliver her plan B and, in particular, address her concern that it would—in her view—be unconstitutional for the Home Secretary to be able to give directions to a chief officer. Given the additional safeguards we have introduced, I urge the House not to insist on its Amendment No. 71.

I have taken some time dealing with this matter, because there are many issues on which noble Lords want assurance. I hope that I have given all the assurances that will enable noble Lords to allow this amendment to pass swiftly from your Lordships' House.

Moved, That the House do not insist on its Amendment No. 71 to which the Commons have disagreed and do agree with the Commons in their Amendments Nos. 71A to 71K to the words so restored to the Bill.—(Baroness Scotland of Asthal.)

My Lords, I give a cautious welcome to these amendments, which were introduced in the other place. They represent significant progress in addressing the concerns that I raised in previous debates on this matter. I am certainly very pleased that the Government have listened to the arguments about the balance of powers within the tripartite relationship and, equally, the need to balance central and local powers. The issues formed much of the backdrop to the disquiet about the Government’s earlier proposals. However, as I say, my welcome is cautious because I am not certain that the amendments address all the problems that I have with these provisions. I hope that the Minister can offer me a tad more assurance on the elements that still cause me a little concern.

The amendments remove the possibility that the Secretary of State could give directions to a chief constable. Instead, all such directions must be routed through the police authority, which is a very important and welcome step in the right direction. I am also very gratified that HMIC will be given a role in commenting not only on whether a police force is fundamentally flawed before intervention takes place, but on whether a police authority is failing as well. This, too, is an important change, because it ensures that an independent view will be expressed on whether intervention is warranted in both forces and authorities. But I confess that I should have liked the amendments to be a little stronger, as they do not, for instance, oblige the Secretary of State to pay any attention to what the chief inspector says or, if he disagrees with the chief inspector, to explain why.

I understand the Government’s reasons for wanting to broaden the sources of information that might inform a judgment about whether a force is failing, but they have probably got more from these provisions than just a wider spread of reference material. Under the old arrangements, no intervention could be triggered unless an adverse report had been received from HMIC. Now the chief inspector can express an opinion, but that is not what determines whether intervention takes place. That is done by the Secretary of State.

The amendments also specify that it is the Secretary of State, not HMIC, who has a responsibility for publishing the opinion of the chief inspector. I find that a little puzzling, as I should have thought it was perfectly proper for the chief inspector to publish his own opinion. In addition, it is clear that it is up to the Secretary of State to decide how he will publish the chief inspector’s opinion, which gives the unfortunate impression of leaving room to be less than transparent about how this might be done. I am sure that that is not the intention but that the Government wish to maintain flexibility in case genuinely sensitive material is involved. It reinforces the appearance of minimising the role of HMIC in this process. I simply make that observation. This role is important because the independence and expertise of HMIC are key elements of providing reassurance about the legitimate and effective use of intervention powers.

How do the Government believe these provisions will operate in practice, especially as there might be disagreement between HMIC and the Home Secretary about what “failing” means? Could the Minister also offer reassurance on the other points that I have raised and explain why the Secretary of State will publish the chief inspector’s opinion? If, as I hope, she is able to reassure me, I shall be satisfied with that, but I put on record my continuing interest and assurance that I shall be watching very carefully how these powers are used.

My Lords, I agree wholeheartedly with the views put forward by the noble Baroness, Lady Harris of Richmond. With the House wanting to move on as swiftly as possible to Motion F, I will abandon the other remarks that I was going to make, save for one technical question of which I gave the Government advance notice. It is a minor matter, but we need an explanation on it.

On Report, government Amendment No. 45 was debated with a group on which we divided, which affected the provision that we are reinstating. We did not object to Amendment No. 45 per se, but it was removed from the Bill simply because its text fell within Amendment No. 44, which removed lines 33 to 44 from the Bill. That sounds like double-Dutch—not meaning to be rude to the Dutch, of course.

The text of Amendment No. 45 included a reference to Her Majesty’s Chief Inspector for Justice, Community Safety and Custody. I pointed out at col. 65 in the Official Report on Report that there was a reference in the amendment to an organisation that we did not see come into effect, but I said that we would not debate it because we could do so at the next stage—and we talked about the prisons inspectorate. The Government have abandoned their plans to have the statutory Chief Inspector for Justice, Community Safety and Custody, which is welcome, but I want to be sure that the amendment that the Government put into the Bill then has not crept back in again. It is simply a matter of being sure that by agreeing to the Government’s Motion today no reference will creep back in to the conglomerate inspectorate. At what stage was the reference excised from the Bill?

My Lords, I thank the noble Baronesses, Lady Anelay and Lady Harris. I shall deal first with the point raised by the noble Baroness, Lady Anelay, as I can do that quickly. The reference was expunged when the Bill returned to the Commons. She is right in that there was a timing issue, because we dealt with that amendment before we dealt with the amendment on whether the joint inspectorate would continue in being. As a result of the amendments that we made at that time, when we came back to the next stage of the Bill we did things very hurriedly. We have cleared it up, and I assure the noble Baroness that no inaccurate reference remains.

My Lords, I beg to move that the House do not insist on its Amendments Nos. 81 to 84 to which the Commons have disagreed. We have already debated this issue fully in relation to Motion D. I pray in aid all those issues.

Moved, That the House do not insist on its Amendments Nos. 81 to 84 to which the Commons have disagreed.—(Baroness Scotland of Asthal.)

moved, as an amendment to the Motion that this House do not insist on its Amendments Nos. 81 to 84 to which the Commons have disagreed, leave out from “House” to end and insert “do insist on its Amendments Nos. 81 to 84.”

The noble Lord said: My Lords, the Minister has said she has already spoken to Motion F. Equally, I have already spoken to my amendment to Motion F, so I think I need do nothing further than ask to test the opinion of the House.

Moved, as an amendment to the Motion that this House do not insist on its Amendments Nos. 81 to 84 to which the Commons have disagreed, leave out from “House” to end and insert “do insist on its Amendments Nos. 81 to 84.”—(Lord Kingsland.)