The noble Lord can, I am sure, speak and answer my points. I have not yet finished my speech: I have quite a few more points to make. I know that the committee in this place went in a completely different direction from those in the House of Commons. I confess that I found those in the House of Commons more persuasive than the committee in this House. However, it is, as always, open to the noble Lord to speak and I am sure he will do so as persuasively and charmingly tonight as he always does.
Pursuing the point about a bilateral treaty between ourselves and the EU, there is a precedent for this. Denmark has its own opt-out on justice and home affairs and concluded three treaties with the EC prior to the Lisbon treaty. The point is often made that the three EU-Denmark treaties under the provision are subject to the ECJ. That is true, but it does not follow that a UK-EU agreement would have to be: it depends entirely on what we say. It depends what the Government negotiate. A UK-EU treaty could provide an alternative dispute mechanism as the EU has some treaties with various other countries. Of course, I accept that a treaty would take time, but the EU treaty—specifically Article 10(4) of the Protocol on Transitional Provisions—allows the Council on a proposal from the Commission to agree to transitional arrangements in the light of the opt-out. The UK could ask for the relevant pieces of the EU legislation, such as the arrest warrant, to continue to apply for a period of time that allowed for the conclusion of a replacement bilateral treaty. That would not entail opting back in—which is, as I say, irreversible.
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The Government have argued that the protocol provides for continued application of the EU legislation only for a very short period of time—weeks or days—and
then only on the basis that the UK would be opting back in. But that is not what the Government have always said. On 3 November 2014, the Government said as part of their evidence to the European Scrutiny Committee in the Commons that the EU had “wide power” under Article 10(4) to adopt consequential and transitional arrangements. Even if the Government’s contradictory claims of the narrowness of Article 10(4) is correct—and the text of the protocol, I am informed, does not provide much evidence for that—fast-track EU legislation under the main justice and home affairs section could be used, entering into force immediately after the block opt-out took place on 1 December. That could apply to the relevant EU laws for a period of time.
I will try to be brief, but I now turn to the arrest warrant. I acknowledge what the Minister said about two changes that have been made that he said make it “safer”. The first was proportionality and the second was the test of whether a decision to charge and try had been taken. I welcome the change on proportionality, but I note the considerable worries about this expressed by the Law Society. The society, in evidence to the House of Commons Home Affairs Committee—I apologise for referring to that committee, but that was where the evidence was given—said that,
“we do have some concerns regarding legal certainty and whether this proposal would be in accordance with the underlying Framework Decision”.
In its response to the Government’s review of extradition arrangements arranged in 2007, the Law Society of England and Wales said that,
“there are clearly shortcomings in the EAW scheme, such as the lack of a proportionality test, which cannot be addressed by UK implementing legislation alone but only by amendments to the EAW scheme itself”—
that is to say at the European level. It is not enough to do it at UK level because it is subject to the ECJ.
I come now to the more important issue, which is the question of whether a decision to charge and try has been taken. I acknowledge the great expertise and knowledge of my noble friend Lord Faulks—I am not sure whether he or my noble friend Lord Bates will reply to the debate—but there is a distinction between charging and trying. I notice from an Answer to a Parliamentary Question asked by, I believe, the honourable Member Mr Jacob Rees-Mogg that no arrest warrants had been blocked under this test to charge and to try since it came into force in July, even though 302 extraditions from the UK have taken place under the EAW in that period.
While a country may take a decision to try, that does not necessarily mean that it is ready to conduct the trial immediately. In addition, the UK legislation makes a distinction between a decision to charge and a decision to try, requiring both to be satisfied. However, Article 1 of the EU legislation establishing the EAW says that an EAW is issued,
“for the purposes of conducting a criminal prosecution or executing a custodial sentence”.
I ask the Minister whether requiring a decision to try in addition to a decision to charge will be deemed by the ECJ to be compatible with EU legislation. That is the point. This will now be justiciable by the ECJ.
Furthermore, it is highly unlikely that these changes to the Extradition Act would have stopped the extradition of Andrew Symeou. I will not go into the details of this case. It has been highly publicised. People tried to refer to it briefly in the debate in the House of Commons. There is also the case of Mr Garry Mann. Both men gave evidence to the Home Affairs Committee in the House of Commons. In Mr Symeou’s case the Greek authorities had made the decisions to take him to trial at the point of his extradition, even though there was subsequently a very long delay before he was actually brought to trial.
Since the Extradition Act was passed, British courts have also been able to consider whether carrying out an EAW would violate the subject’s human rights under the Human Rights Act. These include the right to a fair trial and the right to liberty, which includes the right of the arrested person to be brought promptly before a judge. However, British courts have applied this safeguard restrictively and it is not stopping the many injustices that have occurred to date under the EAW. The test has not been altered with this year’s reforms to the Extradition Act. If British courts began applying the test more generously, they could surely be overwritten again by the European Court of Justice, which may give more weight to speedy extradition as a component of European integration and a vigorous enforcement of individual rights.
The basic flaw in the European arrest warrant, which has been stated many times, is the concept of giving parity of esteem within the European Union to different legal systems. Frankly, without being rude about other countries, I believe that there is no way that the legal systems of post-communist Balkan countries could be equated with those of our own or of western Europe. That is precisely why the Government have programmes to give assistance on justice and home affairs and why they spend money and send Ministers to advise these countries on how to improve their systems.
There have been a number of cases of British subjects who have suffered appallingly. I will not go into them in detail. Mr Symeou was one such case. In the Mail on Sunday this weekend there was a case that I had not heard of before, concerning a Mr Hainsworth and a terrifying experience in Greece. There were also the cases of Garry Mann and Mr Dines.
It is often forgotten that standing trial abroad, when charged abroad, is very different from standing trial in one’s own country. First, language facilities may not be available. That ought to be a basic right, but often that is not the case. People do not understand what is going on. Secondly, often there is no bail abroad. Logically, if you have a Euro-arrest warrant system, you ought to have a Euro-bail system. Yet people who are extradited to Greece or to Balkan countries are then refused bail on the grounds that they have come from a foreign country and there is a risk of flight. There are of course the extra costs as well. Lastly, as I have observed, remand conditions in many of these countries are simply appalling. We have an NGO, which used to be called Fair Trials Abroad and is now called Fair Trials International, because of the difficulty that individuals get into when they are
extradited and face charges abroad. That presumably is why so many countries have been historically reluctant to extradite their own nationals.
The point has been made, and I know it will be made again and again in this debate, that the EAW is not just about extraditing UK citizens abroad; it is also about the people whom we want to extradite—vastly more numbers, we are told: the terrorists, the paedophiles—and get them back here. Of course that is true, but we cannot regard this as just some sort of balance of trade, with so many one way, so many the other—as long as we get people back from abroad, if a few of our own citizens are wrongly imprisoned, so what?
It used to be said that it was better for five guilty men to go free than for one innocent man to be wrongly imprisoned. That principle—that value—seems to have been completely and totally forgotten. Of course we want people to be extradited back here, but I am absolutely convinced that if we were to attempt to have a treaty with other countries and negotiate with other countries as a bloc, it would be in their interests, just as it is in our interests, to negotiate an extradition arrangement. Italy, France and Germany are not going to refuse to extradite terrorists back to us simply because we have a different institutional arrangement.
Frankly, I am amazed that there is not more concern about this issue. Yes, it is our duty to protect British citizens against terrorism. That is true, but it is also our duty to ensure that British citizens have fair justice. I am afraid to say that I am not so far convinced that the proposals that the Government have brought forward actually achieve that. I shall listen to my noble friend’s arguments but I remain profoundly sceptical about and worried by these proposals.