rose to move, That the draft order laid before the House on 7 November be approved. First Report from the Statutory Instruments Committee.
The noble Baroness said: My Lords, we are concerned here with the further secondary legislation required to amend the Extradition Act 2003 (Designation of Part 1 Territories) Order 2003 and the Extradition Act 2003 (Designation of Part 2 Territories) Order 2003. This is to reflect the separation of Serbia and Montenegro into two independent states and the accession of Bosnia-Herzegovina to the European Convention on Extradition, and to allow Romania and Bulgaria to operate the European arrest warrant procedure when they accede to the European Union on 1 January 2007. These amendments are necessary to ensure that the United Kingdom is able to comply with its obligations under the relevant international extradition agreements.
A referendum was held in Montenegro on 21 May 2006, and its citizens voted to separate from Serbia. Montenegro subsequently declared independence in June, and Montenegro and Serbia are now two separate countries. The amendment simply reflects the new political status of those two countries, and extradition will continue to take place under the European Convention on Extradition, to which they are both a party.
Bosnia-Herzegovina is now also a party to the European Convention on Extradition (ECE), and an amendment is needed to reflect the changes required to update our extradition arrangements with that country, which currently fall under an old bilateral extradition treaty with Yugoslavia. That treaty required prima facie evidence in support of an extradition request, which is not a requirement under the European Convention on Extradition. This instrument therefore amends the designation of Bosnia-Herzegovina to make us comply with the terms of the ECE. This will mean that Bosnia-Herzegovina will no longer be required to submit prima facie evidence in support of its extradition requests in the same way as the UK is no longer required to provide prima facie evidence in any extradition requests made to Bosnia-Herzegovina.
Your Lordships will be aware that on 1 January 2007 Romania and Bulgaria will accede to the European Union. That means that, from that date onwards, EU extraditions with those states will cease to take place under the European Convention on Extradition and will fall under the European arrest warrant (EAW) procedure instead. It is therefore necessary to redesignate them as Part 1 territories to ensure that we comply with our obligations under the framework decision on the EAW.
The accession of Romania and Bulgaria to the EU was not a decision taken lightly. The European Council and the Commission monitored both countries very carefully in order to be sure that they were ready to accede to the EU. Robust benchmarks for progress in justice and home affairs have been set for both countries. The benchmarks cover continued reform of the judiciary in both countries, including measures to enhance efficiency, transparency and accountability. The Commission will monitor them closely and will report to the Council and European Parliament on progress against the benchmarks by June 2007. In the event that they are not addressed adequately, the Commission can trigger the justice and home affairs safeguard, which means that it can suspend, on a temporary basis, specific rights of Bulgaria and Romania under EU laws and standards; for example, that could enable current member states to refuse automatic recognition and enforcement of certain civil and criminal judgments and arrest warrants in Bulgaria or Romania. That could include the European arrest warrant. The monitoring mechanism is a robust and unprecedented approach, which will also act as a powerful lever for further reform.
Failure to redesignate Bulgaria and Romania would place the United Kingdom directly in breach of our international obligations under the framework decision on the European arrest warrant. We have had extradition relations with Bulgaria and Romania since they became parties to the European Convention on Extradition in September 1995 and December 1997 respectively. Since that time they have not had to provide prima facie evidence in support of extradition requests made to the United Kingdom. Indeed, although the number of extradition requests between our two countries has been small, the arrangement is working well.
In any event, we are satisfied that sufficient safeguards are in place for those who may find themselves the subject of an European arrest warrant request from Bulgaria and Romania, as indeed there would be for any request received from one of our extradition partners. The Extradition Act 2003 contains a number of very effective safeguards. For example, the subject of a European arrest warrant cannot be surrendered to another member state if it appears that he or she is being prosecuted or punished on account of race, religion, nationality, gender, sexual orientation or political opinions. Extradition would also be barred if the judge decided that it would not be compatible with human rights. No UK national, nor indeed a national of any country, will be extradited to another country if it is believed that to do so would be a flagrant breach of the human rights of the person sought. In the event that a UK national was extradited to another country, they would be entitled to consular support from the UK’s embassy or high commission in the country concerned.
Romania and Bulgaria are also parties to the European Convention on Human Rights, which obliges them to ensure that any subsequent domestic criminal trial does not breach a person’s human rights under that convention.
I hope that, with that explanation, I can invite the House to agree to this order. I beg to move.
Moved, That the draft order laid before the House on 7 November be approved. First Report from the Statutory Instruments Committee.—(Baroness Scotland of Asthal.)
My Lords, I would like to ask the Minister whether these states have given the benefit of the forum exemption to their own citizens, either with respect to Article 7(1) of the European Convention on Extradition, in the case of Montenegro and Bosnia, or to Article 4(7)(a) in the Council framework decision of 13 June 2002 on the European arrest warrant, in the case of Romania and Bulgaria. As your Lordships know, we have not done so in our own legislation.
I raise this issue, first, in the context of reciprocity. That was, of course, the central question in the great debate over the United States extradition treaty. We could not understand why the Government negotiators had not sought, let alone achieved, what Ireland and France had succeeded in achieving effortlessly; that is to say, the insertion of forum protection in the treaty to offset the continued requirement of the United States that we show probable cause.
The noble Baroness should not be lulled into thinking that, just because we decided not to vote to send the matter back to another place for a third time, we found the Government’s arguments in any way convincing. We, of course, have the right to do so, just as the Parliament Acts of 1911 and 1949 can, in response, be invoked by the Government. These are constitutional powers given to us by the elected House.
This right, I entirely accept, should be used extremely sparingly and only in appropriate circumstances. In the American case, the view was taken that, despite the breathtaking irresponsibility of the Government in the way they conducted the negotiations, we were faced with a concluded treaty with both states on the point of exchanging instruments of ratification.
Two other considerations influenced us. Our amendments were added to a really substantial Bill which otherwise had nothing whatsoever to do with extradition. If the Government had invoked the Parliament Act, the whole Bill—a Bill which contained many good things that needed speedily to reach the statute book—would have been delayed. Moreover, it was plain that the revolt by the Government’s Back-Benchers against ratification of the treaty was substantially at an end. It may be, of course, that if we are one day to become an elected House, in similar circumstances a different approach would be adopted.
Today I am faced with a constraining convention of a different sort: that the House—apart from the most exceptional circumstances, one of which occurred this afternoon—does not vote against secondary legislation, although it cannot amend it. I recognise that. However, the Government have more room for manoeuvre than they claimed to have in the American case. There is no reason whatsoever why they cannot amend the Extradition Act 2003 to incorporate the terms of Articles 7(1) and 4(7)(a). Both the European Convention on Extradition and the framework decision on the European arrest warrant permit us to do that.
Quite apart from whether reciprocity is a factor in this case, there is another reason why we should amend the 2003 Act in the way that I suggest. Concerns about the judicial system in Romania, freely acknowledged by the Government in another place—and in your Lordships' House today—give particular force to the argument that I am about to advance. As the noble Baroness is well aware, a recent Court of Appeal decision concluded that the terms of extradition treaties override the Human Rights Act, so the incorporation of the Human Rights Act in the Extradition Act 2003 is of limited protection to the individual.
That is all the more reason for the courts to have the right to assess the appropriateness of forum in the light of all the locational and evidential considerations of an alleged extraditable offence.
My Lords, I thank the Minister for her explanation of the order. I shall be delighted to listen to her answers to the questions posed by the noble Lord, Lord Kingsland. As far as we are concerned, the order is about the amendment to designations. This takes into account the current political reality in the countries it mentions. For that reason, we concur with the order.
My Lords, I thank the noble Lord, Lord Dholakia, for his brevity and his support. In response to the noble Lord, Lord Kingsland, I am delighted to be able to rehearse the issues that we debated with such joy in the previous Session and to see that very little has changed. I absolutely understand his comments about the restraint that he felt obliged to demonstrate when we last considered the matter. I hear him very clearly when he says that such restraint would perhaps not be exercised if this were an elected House. Although he might not have found our arguments convincing last time, I hope that they will grow in attractiveness as the attractiveness of amending this House has grown as time has passed, and that he will be able better to understand why we had the right of the debate. It would be quite wrong to say that the last debate we had on this was an irresponsible act. The noble Lord knows well that these issues have been used in a way that enables us swiftly to return those who have transgressed in other countries to those countries so that matters can be dealt with, and to do so justly. We believe that the order enables us to do that.
I understand that the noble Lord is taking this opportunity to use the order very much as a passing bus on to which to jump to make these comments, and I do not criticise him for so doing. It is a convenient bus.
My Lords, the Minister is being uncharacteristically a little unfair to me. In today’s debate, the American example was used to lead up to the peroration, if I may describe it thus, which was not about the United States but, particularly in the context of Romania, about the importance of taking the opportunity to incorporate forum protection into the 2003 Act, which could easily be done by changing a single clause. In countries such as Romania, whose judicial system, the Minister openly admitted to your Lordships’ House, is in need of some development, such a change would guarantee that we had protection in circumstances in which we felt the Romanian courts were not dealing with the matter appropriately.
My Lords, I hear what the noble Lord says. I hope that he does not feel that I have been uncharitable. I intended in no way to be uncharitable. I always delight in hearing what he says about these issues and I would not want to restrain him in any way from continuing to do so. I very much doubt that anything said by me would have that effect.
The noble Lord will well remember that the provisions on the forum in the European Convention on Extradition were not implemented in United Kingdom law when the United Kingdom ratified the convention in 1991. I recollect that the Government at the time were of a different complexion. We came to the view that that was an appropriate stance to maintain. The corresponding optional provisions in the EU framework decision were not implemented because we see no need for changing the approach adopted by the previous Administration when they ratified the European convention. It had worked and, on the basis of “If it ain’t broke, don’t fix it”, we took the view that this was the most appropriate way forward.
I know that the noble Lord by implication will agree with me that the position in relation to Bosnia-Herzegovina follows as a result of its accession to the ECE; the position in relation to Serbia and Montenegro has been reached because they have divided; and that in relation to Romania and Bulgaria comes about because they are going to join us on 1 January next year. Having heard what the noble Lord says, I take it that he will give his assent to the order.
On Question, Motion agreed to.