Greg Pope (Hyndburn, Labour)

I remind the Committee that with this we are taking the following amendments: No. 151, in schedule 12, page 110, line 13, leave out ‘19A’ and insert ‘19B’.

No. 152, in schedule 12, page 110, line 31, at end insert—

‘19BForum

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.’.

No. 155, in schedule 12, page 115, line 18, at end insert—

‘Bars to extradition

6ASection 79 (bars to extradition) is amended as follows—

(a)after subsection (1)(d) there is inserted—

“(e)forum”; and

(b)in subsection (2) leave out “83” and insert “83A”.’.

No. 156, in schedule 12, page 115, line 18, at end insert—

‘Forum

6BAfter section 83 there is inserted—

“83AForum

If the conduct constituting the offence 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 interest of justice that the person should be tried in the category 2 territory”.’.

James Brokenshire (Hornchurch, Conservative)

I was midway through responding to an intervention from my hon. Friend the Member for Lichfield (Michael Fabricant) about assurances that can be relied on and the historical context of the extradition treaty between the United States and the United Kingdom. I was making the point to that the treaty seems to have been agreed on the basis of an assurance falling short of the standard of some legally enforceable or binding agreement. I emphasise that it is surprising that when the obligations that have been brought to bear on this country were introduced here they were not expressed   to be conditional on the adoption and implementation in US law of their side of the treaty and the resulting obligations.

We have been debating the anomaly—that is the best way of describing it—that if we seek to extradite someone from the US we need to show a prima facie case or basic justification sufficient for committal to trial, but the US has only to provide a statement of the facts. That reflects the introduction of EU legislation and although I did not fully agree with the approach that was taken, on the EU side there is at least the protection of the European Court of Human Rights. However, as we heard this morning, the US does not have that protection and there is no overarching protection in a case of miscarriage of human rights or justification.

I want to be entirely clear: in supporting the amendment, I am not saying that we should not ensure that criminals are prosecuted. If someone has broken the law, they should be dealt with appropriately. The amendment is not intended to protect people who have carried out illegal acts. The issue is the interrelationship on matters of law between this country and the US and the fact that the extradition procedure goes much wider than was anticipated. It was introduced at a time of heightened concern about terrorism and the need to ensure that terrorist suspects were dealt with efficiently and effectively. However, the ambit of the legislation goes much wider, and although there may be a concept of dual criminality—under the treaty the offences in question must be punishable on both sides by a minimum custodial sentence of one year or more—the issue arises of the various standards that might apply in each jurisdiction.

The Minister has alluded to the fact that this is not a perfect world and while we may seek an equitable approach, there will be differences of jurisprudence between different jurisdictions. Two offences may be common between, for example, the US and the UK but the standards of proof and the evidential burden will differ from country to country. For example, hearsay evidence might be admissible in one state or territory, but not admissible in relation to the offence in this country, yet extradition could be justified because the statute books of both countries provides for a custodial sentence of one year or more in relation to the overarching offence. There will be differences, but it seems strange that when we on this side of the Atlantic seek an extradition, we need to show a prima facie case when that would not be necessary on the other side.

It is interesting that in her winding-up speech on Second Reading, the Minister for Policing, Security and Community Safety said:

“We have probably got the best balance that we can get in the treaty”.—[Official Report, 6 March 2006; Vol. 443, c. 689.]

I question that. Previously, there was a common approach between the two sides. Under the old treaty, a requesting state seeking extradition needed to provide evidence that would be sufficient, according to the laws of the requested state, to justify committal for   trial. In many ways, that underscored the prima facie evidence test—both sides had to show that there was sufficient evidence to justify a committal for trial.

The Minister acknowledged that there is a difference between the tests in terms of probable cause or information. I reiterate that it is strange that we have moved from a situation in which similar approaches and tests were used by the US and the UK to one in which that approach appears to have been dropped by us without any reciprocity. If the Minister still asserts that we have got the balance right, I would be interested to know what is on the plus scorecard for us. What did we gain from agreeing to an approach in which there is no level playing field and, apparently, it is easier to extradite people from this country than for us to extradite people from the US? If there is some overwhelming and persuasive case to justify that, I would like to hear it.

The intention behind the amendments proposed by my hon. Friend the Member for Arundel and South Downs (Nick Herbert) is to remedy the present situation, which could have been avoided. The situation has provoked strong feelings from certain groups. On Second Reading, my hon. Friend the Member for Henley (Mr. Johnson) used emotive language, and talked about people being hoovered up—as he so eloquently put it—from the US.

Stephen Pound (PPS (Rt Hon Hazel Blears, Minister of State), Home Office; Ealing North, Labour)

J. Edgar Hoover?

James Brokenshire (Hornchurch, Conservative)

I think that my hon. Friend was referring more to the generic hoover variety, rather than anything presidential. He talked about people being sucked over from the US.

Liberty has been stringent and strong in its criticism from the human rights angle. Shami Chakrabarti said:

“The Extradition Act 2003 is a breathtaking example of a sovereign government trading away the rights and freedoms of its citizens as a political gesture for a foreign power. Human beings are to be sent across the world like sacks of carrots, away from family and friends, to be detained for long periods pending trial. There is no need to show even a prima facie case to a UK court. If we are wrong that this is a violation of fundamental rights, why will the US Government not allow similar traffic for its own citizens in the other direction?”

I would not use such emotive language as Ms Chakrabarti, but there are clearly fundamental concerns. Her last point about the US not allowing similar traffic underpins the argument and illustrates the anomaly in the positions on each side of the Atlantic.

What statement of facts should the US Government provide when seeking extradition? I understand that the statement of facts is not a list of evidential information but almost a list of allegations against an individual. That will not necessarily fulfil the test or provide the robustness that one might hope for with a check to ensure that the power is being used properly.

In terms of jurisprudence and legality, the United States is known for its extra-territorial approach to its legislative framework. That is the way in which it adopts its law, and I make no comment on or criticism of the way in which its jurisprudence has grown up. Clearly, that extra-territorial approach gives scope for   wide interpretation and the ability to use the legislation more widely than might be the case in other jurisdictions. The amendments that my hon. Friend the Member for Arundel and South Downs proposes raise the issue of where the most appropriate forum to deal with such matters might be and underscores the need to ensure that the most appropriate forum is used.

Michael Fabricant (Whip, Whips; Lichfield, Conservative)

On that point, nobody has raised the question of cost. Whereas United States companies might have insurance against litigation within the United States—which is more expensive than that in the United Kingdom—British companies might not have such insurance or, if they do, it does not cover the excessive costs in the United States. While the jurisprudence in the continental United States is largely the same as that of the United Kingdom, might the provisions not be damaging to companies that suddenly find their senior executives being sent to the United States for trial?

James Brokenshire (Hornchurch, Conservative)

My hon. Friend raises an important point. An obvious example would be the Sarbanes-Oxley provisions: the compliance requirements of that legislation impose about $100 million of additional costs on US companies, whereas, although Sarbanes-Oxley has applies to companies outside America, the approach is not so rigorous. But if it were felt that that might be the case in respect of quoted companies in this country, insurance premiums for directors’ and officers’ liability would be an issue.

That issue underlines the CBI’s concern about the status of the City of London as a financial market. There has to be clarity about the laws and regulations that would operate. Given the extra-territorial approach of US jurisprudence, I can understand that concern. Although it was clearly not the Government’s intention, in making these changes to the Extradition Act 2003—

Michael Fabricant (Whip, Whips; Lichfield, Conservative)

I mentioned the corporate example. Is it not even more worrying that individuals might not have access to the same quality of defence in certain states of the United States that they would have in the United Kingdom? It might not be available.

James Brokenshire (Hornchurch, Conservative)

One of the arguments that has been put on that point is that if offences that might be triable in either jurisdiction have taken place in this country, or at least outside the United States, there would be a form of imbalance, and it would be more difficult to defend against the allegations. The evidence would be outside the US and one’s access to it would be limited, particularly if one were in custody in the US and had a limited ability to mount a defence.

We need to get a balance. If somebody is being tried for a serious offence, that needs to be dealt with appropriately. The amendment is not some sort of charter to provide protection for people who have committed criminal offences; it is a matter of balance, and of ensuring that allegations are investigated and dealt with properly and in the right forum, under the right jurisdiction for the case. Given the anomalous   position in respect the evidence that needs to be provided with an extradition request, the emphasis of the amendment proposed by my hon. Friend the Member for Arundel and South Downs is that, in the interests of a fair trial and so that justice is seen to be done, the matter should be disposed of in the United Kingdom rather than in another jurisdiction. If a crime is committed in this country, the most appropriate way to dispose of that crime is in this country, so that justice is seen to be done. That will act as a disincentive to others and will show that the justice system can deal with those issues in the United Kingdom.

That clearly highlights a number of serious and significant issues. The Minister is urging us to press the US to implement its side of the treaty so that our relationship is brought back into balance. However, my understanding is that that is not likely to happen—certainly not in the near term—and we may need some form of new treaty. That will take a very long time. However, this Committee has the opportunity to address the issue through amendments to our extradition provisions, so I support the amendments. They give us an opportunity to highlight our concerns and emphasise the need for something to be done about them, so that we can get clarity and certainty about the import and effect of the provisions.

Through the mechanism of the amendments, we can bring about a situation that the Government want: we can achieve a balance between the two sides. If that cannot be achieved from the US side through its adoption of the treaty, it can be done through amendments to the Extradition Act 2003. That is what is before us, and I encourage all Committee members to look seriously and earnestly at my hon. Friend’s amendments, as they seek to remedy the anomaly recognised by all parties present. Making the amendments is in the interests of fairness, justice and ensuring that people are brought to book for their crimes; through them, we can restore the balance that existed between the US and the UK before the treaty was half brought into effect.

Lynne Featherstone (Shadow Minister, Home Affairs; Hornsey & Wood Green, Liberal Democrat)

You will be relieved to know that I will be brief, Mr. Pope. I have listened to the extensive and well put arguments, and to me the situation is patently unfair and unequal. Here we have an opportunity to rectify the problem. Will the Government take this opportunity to correct the imbalance? If not, how do they intend to address the problem? Or are they content with the situation?

Hazel Blears (Minister of State (Policing, Security and Community Safety), Home Office; Salford, Labour)

Welcome to the afternoon sitting, Mr. Pope. You were not present this morning, when we had good-tempered and consensual discussion of some amendments. This afternoon, I hope to persuade hon. Members from all parties that there are a number of misconceptions about the position on extradition. Obviously, I listened with   interest to Members’ contributions, but I would really hate the Committee to consider the amendments without it being apprised of the true situation, so I shall make a few general preliminary remarks before I return to the amendments. That might be helpful.

First of all, when we carry out extradition, we deal with countries broadly in three main categories. The first category has to do with our relationships with other European Union states. These days, that is very much a judge-to-judge procedure; there is very little involvement of Governments and the process is very much a judicial one. In relation to those 24 states that are in part 1, very little evidence is required at all. All that is needed is details of the offence—the statement of facts to which the hon. Member for Hornchurch (James Brokenshire) referred. That applies to countries as varied as Greece, France, Germany, Italy, Latvia, and Lithuania. So there is a precedent for having a very straightforward relationship. That situation, which has developed over time, has arisen because we have very close relationships with those countries. The decision not to insist on prima facie evidence for European Union states was taken by a Conservative Government in 1991, so the precedent for moving away from prima facie evidence was set as long ago as that. It is an established legal fact.

The second category relates to non-European Union countries and some Commonwealth countries. They are categorised under level 2a. From those countries, we require information that is sufficient to enable us to issue an arrest warrant, which is much more than a statement of facts. Those countries include the United States of America, as well as Canada, Australia, New Zealand and a whole range of different countries. I am intrigued why all our debate has been about the relationship between the United Kingdom and the United States of America, yet not one person has expressed the same worry, outrage or horror at the possibility of citizens being extradited to Canada, Australia or New Zealand when exactly the same test that applies to those jurisdictions applies to the relationship between the United Kingdom and the United States of America.

The hon. Member for Arundel and South Downs was pressed on that point by my hon. Friend the Member for Stoke-on-Trent, South (Mr. Flello), who asked whether the hon. Gentleman’s real concern was based on a lack of faith in the American justice system. In the absence of his expressing similar concern about Australia, New Zealand and Canada, I fail to see any other logical inference that can be drawn. I have been subjected to many probing amendments during our proceedings, so I should like to probe the hon. Gentleman a little. If his real worry is that some countries are required only to provide information sufficient to enable an arrest warrant to be issued, why does he not have the same worries about Australia, New Zealand and Canada?

Michael Fabricant (Whip, Whips; Lichfield, Conservative)

Are there not two issues. The first is the perceived—no, not perceived, the actual imbalance between the United Kingdom and the United States, which does not exist between the United Kingdom and Canada, the United Kingdom and   Australia, or the United Kingdom and New Zealand? I am wearing my stars and stripes tie, so I am not attacking the United States. Secondly, let us be honest: no one would doubt the jurisprudence system within the continental United States, but it is because of that robust system that it has to have an extra-territorial camp at Guantanamo Bay. Those two issues do not apply to our relationship and treaties with Canada, Australia and New Zealand.

Hazel Blears (Minister of State (Policing, Security and Community Safety), Home Office; Salford, Labour)

Here we have it. I am grateful that I have probed. The hon. Gentleman is viewing such issues through the prism of Guantanamo Bay rather than mainstream extradition policy. I did not even understand his first point. He glided over variations in levels of proof and information. The matter is serious. We have had an hour of concern being expressed by Opposition Members about the United States and have heard questions about why it demands that we show probable cause and why we have to demand information sufficient to issue an arrest warrant. They have argued that there is an imbalance, which means that we have sold our citizens down the river, and that the proposal is just an excuse for us to support American foreign policy. All those issues have been raised. If they are matters of genuine concern that have an intellectual basis, I should have expected Opposition Members to voice precisely the same worries about the other legal jurisdictions in Australia, New Zealand and Canada. I have not heard a word about that in this Committee.

Mark Pritchard (Wrekin, The, Conservative)

Is the Minister saying that we should have concerns about those other jurisdictions?

Hazel Blears (Minister of State (Policing, Security and Community Safety), Home Office; Salford, Labour)

I am certainly not. I shall come on to the balance of evidence, but my point has now been clearly established. I shall leave the issue there.

Michael Fabricant (Whip, Whips; Lichfield, Conservative)

On a point of order, Mr. Pope. The Minister may have misheard my earlier question because she did not answer it. I said that there was imbalance between our relationship with the United States. The past hour’s debate has been about that imbalance, not Guantanamo Bay.

Greg Pope (Hyndburn, Labour)

Such matters are for debate, not for the Chair.

Hazel Blears (Minister of State (Policing, Security and Community Safety), Home Office; Salford, Labour)

Thank you, Mr. Pope. I shall come to the question of balance. My point about the other jurisdictions to which the hon. Member for Arundel and South Downs has not responded was that they also now face a requirement to show sufficient information to enable us to issue an arrest warrant. We have changed our position in relation to those countries in exactly the same way that we have changed our position in relation to the United States of America, and I hear no concern about those jurisdictions. Therefore I must conclude, if hon. Members do not tell me otherwise, that they are concerned about the ability of the United States’ legal system to give people a fair trial when they pitch up in America on extradition. If that is so, we are saying that   we do not trust a modern democracy with a robust legal system. If that is the position of the Conservative party we are entitled to know.

James Brokenshire (Hornchurch, Conservative)

I am interested in the Minister’s line of argument, but the amendments tabled by my hon. Friend the Member for Arundel and South Downs are not US-specific. They cover the whole principle. There is an issue that is relevant to all countries. Does the Minister agree that my hon. Friend’s amendments are not US-specific and that they relate to all countries? They would restore a balance with respect to whatever country might be relevant.

Hazel Blears (Minister of State (Policing, Security and Community Safety), Home Office; Salford, Labour)

I will come to the detail of the amendments. It was important for us to explore the matter. I am sure that when we read the record, we shall see that nearly 100 per cent. of the debate has been about America, and not about anywhere else.

I shall come to the evidential points, but I want to emphasise that a series of safeguards exist on extradition, of which I am sure hon. Members will be aware. Judges must take into account a range of considerations before granting extradition, besides the evidential points. Identity is an issue. Extradition does not take place unless the judge is absolutely satisfied—on the balance of probabilities—that the person before him is the person sought.

Dual criminality is very important. Extradition is barred if dual criminality is not established. What is alleged must be an offence in both jurisdictions. The hon. Member for Hornchurch spoke at length about some of those issues. There is a lot of detail. Unless the offence has retrospective application, it must have been an offence in both states at the time of the conduct in question. If the person whose extradition is requested has already been convicted of the relevant offence, a sentence of at least four months for the extradition offence must have been imposed.

The issues concerning dual criminality provide a series of safeguards for people who are the subject of extradition requests. The requests must be made in good faith. There must not be double jeopardy. Ill health and the passage of time are all matters that the judge can take into account when he or she considers the extradition request. If those matters cause concern, the request can be discharged. Extradition requests have been discharged on human rights grounds and on the issues that I have outlined, so judges do not rubber-stamp applications. They look at them extremely seriously.

As to evidential balance, I think there is a real misconception about what the treaty will do and about the current and previous situations. We now have, as I said on Second Reading, greater balance. The claimed imbalance is greatly exaggerated. The US requires the UK to establish probable cause. That is because that is in its constitution. It has a different jurisprudence and legal system to ours. There will always be a need to reach an approximation of laws when dealing with legal relationships between 150 countries. Complete reciprocity would be impossible. It will always be   necessary to reach an approximation, and to bring things together as far as possible to get the right balance.

On the US side, there is probable cause; on the UK side, there is not simply a statement of facts but information sufficient to warrant the issue of an arrest warrant. I have asked whether that could be termed “reasonable suspicion”, if one were to use terms with which we are more familiar, and I am told that it could. What, then, are we asking for? We have probable cause versus reasonable suspicion. That is a fair approximation, in my view, of a similar level of information and evidence. There is not a great imbalance in the requirements on each side.

When the treaty is ratified—and we are keen to make progress on the treaty; the Home Secretary has discussed it with the Attorney-General and we have pressed for it several times—the evidential balance will not change. Requests are currently subject to the Extradition Act requirements—probable cause and reasonable suspicion, or information sufficient to justify the issue of an arrest warrant. That evidential balance is not going to change when the treaty is ratified. That is another misconception that somehow, because the treaty has not yet been ratified, we are operating to a different level of proof. We are not. We are operating to the level of proof based on the Extradition Act 2003 even before the treaty is ratified. This is very important, because there has been lot of misreporting around these issues and a lot of misconceptions going on.

James Brokenshire (Hornchurch, Conservative)

I have been listening carefully to what the Minister has been saying. Could she confirm what the position was before the treaty came into effect? Before the treaty, did both sides have to show sufficient evidence to justify committal for trial?

Hazel Blears (Minister of State (Policing, Security and Community Safety), Home Office; Salford, Labour)

The original treaty from 1972 states:

“Extradition shall be granted only if the evidence be found sufficient according to the law of the requested Party either to justify the committal for trial of the person sought if the offense of which he is accused had been committed in the territory of the requested Party or to prove that he is the identical person convicted by the courts of the requesting Party.”

On the surface, that looks entirely reciprocal because it refers to evidence to be found sufficient to justify the committal for trial. But it is according to the law of the requested party. In the UK, evidence sufficient to justify committal for trial was prima facie evidence but, in the US, it has always been probable cause, so there was an imbalance in those terms.

As a result of the Extradition Act, we took the decision to designate the US as a part 2 authority in the same way as Australia, Canada and New Zealand so that it can act as an authority that simply needed to give us information sufficient to show that we could issue an arrest warrant. It was not a decision taken as a favour to the United States; it was taken on the basis that there are a series of countries who have a mature   legal system that is sufficiently trustworthy to be able to have a balance of evidence in extradition terms which is an appropriate way forward.

People who have caricatured this provision—in particular, the words read out by Shami Chakrabarti, Director of Liberty—as an attempt to support US foreign policy are entirely mistaken. This decision was taken for 24 different countries, which now do not have to give us prima facie evidence but must give us information sufficient to enable the issue of an arrest warrant—“reasonable suspicion” as it were, which is a perfectly proper risk-assessment base to our relationships with these other countries. The idea that there was reciprocity, which has now been abandoned and that we have sold our citizens down the river, is an unfortunate misrepresentation of the position here.

The hon. Member for Hornchurch quite properly asked me how the treaty will help us with extradition. There are a whole range of issues that will help us to be more swift, effective and efficient in dealing with extradition—both in relation to serious and organised crime and terrorism—once the treaty has been ratified. There will be a modern, flexible definition of an extradition offence, which is archaic at the moment. Our relationships with these countries sometimes go back 100 years and have not kept up with modern offences. For example, child pornography on the internet is an offence that was never thought about when we had our original relationships with these countries decades ago. There will be swifter extradition when an individual is already in prison. At the moment, somebody has to complete their sentence before they can be extradited for a more serious offence. This will allow us to have temporary surrender.

There will be a provision for “waiver of specialty”, which is a fairly technical issue but I am told that it is important. There will be disapplication of the statute of limitations bar. In some countries, the statute of limitations is quite short and therefore if that had expired, we would not be able to extradite for serious offences—in particular, sex offences—in our country. Therefore if we can disapply the statute of limitations, it will help us to get better justice and to bring people to justice, which is the aim of this legislation. There are a whole series of issues in the treaty that are useful to us. That is why we are pressing for ratification.

Other Members have raised the issue of parliamentary scrutiny of the treaty. The designation order was subject to parliamentary scrutiny under the affirmative resolution procedure and the treaty was negotiated in the way that all treaties are negotiated, which means that there is no constitutional requirement for Parliament to approve the treaty, although sometimes legislation is needed before the Government can ratify it. It is also the case that the previous UK-US extradition treaty would have been negotiated without the approval of Parliament. There has been no divergence from the normal procedure in ratifying the treaties and then ensuring that the designation order came into effect under those terms.

I think that there was an allegation that Parliament had been misled. At the time when the statements were made, what was said was that no new treaties were being negotiated, and that was true. An existing treaty was being negotiated with America, but no new treaties were being negotiated with other countries. Therefore, I genuinely believe that all the points raised by hon. Members are based on a travesty of the truth, and we need to look at the matter in detail.

Hon. Members also raised the question of the difference in the number of extradition requests issued by the US and the number issued by the UK. It is a long-standing difference that has nothing to do with the current treaty. Such numerical imbalances between countries are fairly common. For example, between 1 January 2004 and today, the UK has returned 45 people to Spain; Spain has returned only four people to the UK. Different countries make different levels of extradition requests, so there is nothing unusual in that. I would not read anything sinister into it.

Mark Pritchard (Wrekin, The, Conservative)

The Minister referred to the statute of limitations. If the Senate passes this treaty, is it open to the Supreme Court to look at it and take a different view from the Senate?

Hazel Blears (Minister of State (Policing, Security and Community Safety), Home Office; Salford, Labour)

As I said to the hon. Gentleman, if we ratify the treaty, someone in the US who is wanted for sex offences by the UK could not escape extradition to the UK on the ground that his offences could not be prosecuted under US law due to lapse of time. We do not need the intervention of the Supreme Court. If the treaty is ratified, it will enable us to bring more people to justice in this country for fairly serious offences.

I think that I have said enough to allow me to put the case on the amendments in general terms. Amendments Nos. 150 to 156 impose a duty on the district judge to order a person’s discharge on the ground that he committed all or part of the conduct for which his extradition is sought in the UK. The only exception to that would be where the judge thought that, in the light of all the circumstances, it was in the interests of justice that the person should be tried in the state requesting extradition.

I believe that the amendments are unworkable and unnecessary. There are adequate protections in the Extradition Act, and the amendments would not be in the interests of justice. I am concerned that they require the district judge in an extradition hearing to decide whether the wanted person should be tried in the UK. That is not practical in our legal system. We do not require judges to make such decisions in any other context. The prosecuting authorities in the UK decide whether a prosecution should be brought. They have a series of tests about the likelihood of conviction and whether it is in the public interest. We never require a judge to decide whether a case should be brought in the first place. The judge is there to consider the evidence brought before him or her and to decide on guilt or innocence, or whether an order is to be made or not, on that basis. It is not for the judge to decide whether there is an appropriate case for prosecution. Therefore, in our jurisdiction, the amendments would be entirely inappropriate.

When a person is sought for extradition, at present, there is no legal bar to stop the prosecuting authorities deciding to launch a domestic prosecution, if that is appropriate. If a domestic prosecution were launched, the extradition request would be adjourned, and it would be terminated if the person was later acquitted or convicted.

The framework decision on the European arrest warrant and the European convention on extradition have an optional ground for the refusal of extradition where the offence is committed in whole or in part in a territory of the requesting state. We chose not to implement that ground for refusal, because we wanted to make sure that we had sufficient flexibility to enable us to make the correct decisions in complex cases that sometimes cross over the jurisdiction of a number of different member states. However, we implemented a slightly different ground for refusal based on dual criminality, where the offences for the wanted person were committed outside the requesting state.

In the interests of justice, Parliament took the view when it was enacting the Extradition Acts of 1989 and 2003 that extradition could proceed where the person was wanted for conduct committed at least partly in the UK, provided that the UK had the same jurisdiction to try the conduct because it occurred outside the UK. That is why domestic prosecution would be possible, but only if the prosecuting authorities decided that it was in the public interest. That degree of flexibility is important in many extradition cases, where a person is wanted for complex cross-border crimes relating to, for example, people trafficking, money laundering or drugs trafficking, and in which, in theory, several different states would have jurisdiction to try the case.

Again, as I said in my opening remarks, there are safeguards on human rights issues, double jeopardy, ill health and lapse of time. The whole system is sufficiently robust to ensure that individuals’ rights are protected. At the same time, however, the provisions will ensure that we get the balance right, which is what I am constantly seeking to do, and make sure that the system can work as effectively as possible.

On that basis, I ask the hon. Member for Arundel and South Downs not to press his amendments, which are inflexible, unworkable and unnecessary.

Nick Herbert (Shadow Minister (Police Reform), Home Affairs; Arundel & South Downs, Conservative)

Although I listened very carefully, I am not persuaded by anything that the Minister said. First, she made the broad point that the same principles and the same imbalance would apply to Australia, Canada and other countries as to the United States. When I responded to the hon. Member for Stoke-on-Trent, South, however, I was careful not to say that I was criticising the United States legal system, although others have done so and there are points to be made about the issue. However, that was not my point. My fundamental point was about the imbalance between the evidential requirements for extradition between our two countries. That point would, indeed, apply to those other countries, too, but the cases that are causing great public concern, and to which I did not and do not wish to refer specifically, involve attempted   extradition, particularly of those engaged in white collar crime, to the United States. I am not aware of any cases of concern in relation to those other countries, but if I were, I would happily have mentioned them. The idea that the Minister’s point was devastating and blew up our entire case is completely wrong, because our entire case rests on the imbalance between the treaty requirements.

Secondly, the Minister talked about the safeguards. I dealt with the inadequacy of the safeguards earlier and gave the specific example of Mr. Raisi, who would not have had any safeguards under the new treaty and who would have been extradited, even though he was not extradited before. That is not my view, but that of the senior district judge concerned. The basis of our whole concern about the operation of the provisions is that the safeguards are not adequate.

The Minister says that the evidential balance will not change if the treaty is ratified, and she is correct, but that misses the point of the amendments. I shall come to a subsequent set of amendments, which talk about the ratification of the treaty, but the point of the present amendments is to draw attention to the evidential imbalance. Specifically, they deal with the fact that such cases should, where possible, be dealt with in the country of origin and that we should not rely on extradition, when the other country’s evidential requirements might be much lower than our own.

The Minister did not answer my points about the retrospective application of the treaty, which is particularly serious in relation to white collar crime for the reasons that I set out. She did not explain adequately why the treaty was signed without Parliament’s knowledge when the Bill itself was before Parliament—Lord Falconer simply made an announcement. The fact that Ministers have the power to sign treaties is not in doubt, and we all know that they exercise that prerogative power, but the question of whether it was proper not to tell Parliament when it was actually debating the Extradition Bill is entirely another matter.

Nor did the Minister tell us why the Home Affairs Committee was not told beforehand that the new treaty was not being negotiated. She relied on some sophistry and said that the Committee had been told that new treaties were being negotiated and that this was not a new treaty, but a renegotiation of a treaty. That really is a careful use of words. The truth is that the Home Affairs Committee at the time felt that it had been misled and it made that clear in its last evidence session on the matter.

Nor did the Minister explain why the European convention on human rights, which the Government described as providing solid safeguards when the treaty was announced and during the debate on the Extradition Bill, has been deemed by the courts not to apply and not to offer the safeguards that we were told it did. The Minister failed to explain any of those things.

As I said, the amendments do not seek to deal with the non-ratification by the Senate. I shall come to that. Rather, they allow the UK courts to bar extradition if the crime can be dealt with in the UK, and that is a perfectly reasonable principle. Given the growing international nature of crime, one could argue that it is rather a sound principle that if at all possible, such matters be dealt with in our own courts. That is not to suggest that people should get off scot-free, or that instead of being extradited they will not be tried; it is to say that we prefer our own nationals, or others, to be prosecuted in our courts when possible. That will not be the case if the requesting territory demonstrates that it would be in the interests of justice for trial to take place there. What is wrong with that principle?

The Minister may think that the amendments have technical difficulties, but I think that that principle is sound, and I am surprised that it was not written into the original discussion on the Extradition Act 2003. For those reasons, I continue to believe that we are on sound ground in proposing the amendments, and we feel sufficiently strongly to test the Committee’s opinion.

James Brokenshire (Hornchurch, Conservative)

I wanted briefly to comment on some of the Minister’s responses. She sought to paint the blame for the history of the matter on to a previous Conservative Administration, by suggesting that the change in the prima facie evidence rule had come about through our relations with other EU countries. However, those relations are always overarched by the protection of the European Court of Human Rights—a point to which I alluded in my comments. That puts matters in a better context than might otherwise be the case in relation to countries outside the ring net of the ECHR.

The Minister also commented on how the debate had stemmed heavily from United States issues. That is largely because the cases that have come into the public spotlight have mostly surrounded those issues. I imagine that, in the context of our relations with Commonwealth countries, we now have reciprocity in our arrangements. As Commonwealth countries, their systems of jurisprudence are likely to have been generated from the legal system in England and Wales, so there is likely to be more commonality.

The Minister commented on the protection that dual criminality would have provided, and said that it would have given safeguards. Yes it would, but it would provide greater protection if we had a more level playing field between the two countries. She made some telling comments in emphasising that, as far as the US was concerned, nothing had changed, and that the test is still one of probable cause, while we on the other hand have moved away from needing a prima facie case to justify committal for trial.

That is a different position from being provided with evidence for reasonable suspicion that might justify the issue of an arrest warrant. It is for that reason that we have committal proceedings, so that the evidence can be set out to see whether a trial is justified. The US may not have changed, but it is clear from what the Minister has said that the situation in this country has   changed significantly. It was worrying to hear that, having made that change, we do not have the benefits at this point of time to which the Minister alluded.

It would be helpful to obtain the various additional protections and steps that the Minister mentioned, but that would be only on the basis of ratification. We are not there yet, and we do not have those protections, yet the situation has changed materially. So I support the amendment proposed by my hon. Friend the Member for Arundel and South Downs and I hope that it finds favour.

Greg Pope (Hyndburn, Labour)

Before we come to amendment No. 157, in view of the wide scope of the debate that we have just concluded and of Mr. Conway’s invitation for general comments on extradition to be made in clause 39 stand part, I have decided not to allow a debate on schedule 12 stand part. Members may wish to bear that in mind in the forthcoming debates on groups of amendments.

Nick Herbert (Shadow Minister (Police Reform), Home Affairs; Arundel & South Downs, Conservative)

I beg to move amendment No. 157, in schedule 12, page 115, line 18, at end insert—

‘Case where person has not been convicted

6CIn section 84 (case where person has not been convicted) at the end of subsection (7)(b) there is inserted—

“provided always that this subsection shall not apply, except in relation to offences falling within the definition of an act of terrorism within the meaning of section 1(5) of the Terrorism Act 2000, if at the time the judge is required to proceed under this section, the designation of the category 2 territory to which extradition is requested is inconsistent with the terms of the extant bilateral extradition treaty or other arrangements with the category 2 territory”.’.

Greg Pope (Hyndburn, Labour)

With this it will be convenient to discuss the following amendments: No. 158, in schedule 12, page 115, line 18, at end insert—

‘Conviction in person’s absence

6DIn section 86 (conviction in person’s absence) at the end of subsection (7)(b) there is inserted—

“provided always that this subsection shall not apply, except in relation to offences falling within the definition of an act of terrorism within the meaning of section 1(5) of the Terrorism Act 2000, if at the time the judge is required to proceed under this section, the designation of the category 2 territory to which extradition is requested is inconsistent with the terms of the extant bilateral extradition treaty or other arrangements with the category 2 territory”.’.

No. 159, in schedule 12, page 115, line 18, at end insert—

‘Orders and regulations

6EIn section 223 (orders and regulations) at the end of subsection (8) there is inserted—

“provided however that no designation of a territory under the provisions of section 71(4), section 73(5), section 84(7) or section 86(7) shall be inconsistent with the terms of an extant bilateral extradition treaty or other arrangements, except in relation to offences falling within the definition of an act of terrorism within the meaning of section 1(5) the Terrorism Act 2000”.’.

No. 153, in schedule 12, page 116, line 35, at end insert—

‘Arrest warrant following extradition request

11AIn section 71 (arrest warrant following extradition request) at the end of subsection (4) there is inserted—

“provided always that this subsection shall not apply, except in relation to offences falling within the definition of an act of terrorism within the meaning of section 1(5) of the Terrorism Act 2000, if at the time the Secretary of State sends documents to the appropriate judge under section 70, the designation of the category 2 territory to which extradition is requested is inconsistent with the terms of the extant bilateral extradition treaty or other arrangements with the category 2 territory”.’.

No. 154, in schedule 12, page 116, line 35, at end insert—

‘Provisional warrant

11BIn section 73 (provisional warrant) at the end of subsection (5) there is inserted—

“provided always that this subsection shall not apply, except in relation to offences falling within the definition of an act of terrorism within the meaning of section 1(5) of the Terrorism Act 2000, if at the time of deciding whether to issue a warrant, the designation of the category 2 territory to which extradition is requested is inconsistent with the terms of the extant bilateral extradition treaty or other arrangements with the category 2 territory”.’.

Nick Herbert (Shadow Minister (Police Reform), Home Affairs; Arundel & South Downs, Conservative)

The second set of amendments deals with the same issues that we have just discussed, but in a different way. Broadly, the amendments would suspend the next extradition arrangements with the United States until the treaty is ratified by the Senate. The amendments would nullify the effect of any designation of a part 2 territory by the Home Secretary, eliminating the requirement on such a territory to produce evidence where such designation was, or became, inconsistent with the terms of an extant extradition treaty or arrangements with the relevant part 2 territory.

The rationale for the amendments is twofold. First, they are consistent with the principles of international co-operation. As the Minister explained, the Extradition Act 2003 gives powers to the Home Secretary to designate part 2 territories through Order in Council such that those territories may request extradition of persons from the UK without the necessity to produce evidence, which the Act would otherwise require in the absence of such designation. Forty-two countries have been so designated by the Home Secretary, being signatories to the European convention on extradition—the UK has had reciprocal arrangements with them allowing extradition without evidence since 1991—plus Canada, New Zealand and Australia, which are all Commonwealth countries, and the United States.

The point is that in all instances except that of the United States, the designation is consistent with existing bilateral or convention arrangements with the   relevant territory. The designation of the US was designed to implement the terms of a new, effectively non-reciprocal treaty signed in 2003, whereby the US no longer needs to produce evidence to support an extradition request, although the UK must still produce evidence sufficient to meet the probable cause test in a US court.

Whether the treaty should be renegotiated is not a matter for the amendment. The anomaly that it would rectify is that the US has not ratified the treaty and consequently the extant treaty with the United States is the 1972 treaty, which requires that the US shall produce prima facie evidence, which we have argued is the right evidential test, with its requests. The designation of the US effectively overrules that provision even though the new treaty is not yet in force.

That situation gives the United States Senate, which is being heavily lobbied by the Irish-American and civil liberties groups not to ratify, absolutely no incentive to ratify the new treaty, meaning that even the very limited advantages afforded to the UK under the new treaty are not yet available to the UK and may never be.

The second reason for the amendment is that to undesignate the United States while the new treaty remains unratified would have only one effect: to require that the United States supports its requests for extradition by evidence alongside all other part 2 territories that have not been designated by the Home Secretary. The Government argue that the new arrangements have reduced the average time taken in processing a US application from 30 months to six months, implying that it is the fact that the US does not have to produce evidence that achieves that efficiency. That is wrong; the time would be the same even if the United States had to produce evidence. It is the procedures of the new Act that create the efficient timetable.

Consequently, the undesignation of the US would have no negative impact on our extradition arrangements with the United States. The United States could be redesignated as soon as the new treaty is ratified, assuming that the treaty remains in its current form. In the meantime, the requirement to produce evidence once again might provide a stimulus to the US to move ahead and ratify, where currently it has none.

I should emphasise to the Committee that early-day motion 241, tabled by my hon. Friend the Member for Henley and currently before the House, has so far attracted 150 cross-party signatures. That early-day motion urges the Government to defer approving the extradition to the United States of any British subject until such time as the Senate ratifies the extradition treaty.

The way in which the Government failed to secure the ratification of the treaty by the Senate before unilaterally introducing the extradition arrangements was a mistake. As I mentioned in the debate on the prior group of amendments, it surprised the US   authorities. Any pressure that the Minister is seeking to place on the United States Government is entirely weakened, because they have little incentive to introduce the ratification procedure, possibly at some political cost, considering that we have already unilaterally introduced arrangements to implement our side of the treaty.

The amendments would redress the balance and restore the incentives for the United States Government to ratify a treaty agreed between the Heads of State.

Hazel Blears (Minister of State (Policing, Security and Community Safety), Home Office; Salford, Labour)

I do not propose to go over the previous arguments in any detail. We have debated them sufficiently.

I will correct some information that I gave the Committee previously, when I said that there was an imbalance in the number of people extradited between Spain and the UK. Apparently, Spain has returned 45 people to us and we have only sent four people to them. I got it the wrong way round. Apparently, as some might be aware, Spain is a popular destination for some of our criminals, so there is more one-way traffic than there might otherwise have been. That is something to do with the sunshine on the Costa del Sol. That was for the Committee’s information.

The amendments would limit the operation of part 2 of the Extradition Act to requests for terrorist offences only, where a requesting state’s designation is inconsistent with the treaty or other arrangement in force between it and the UK. I believe that the amendments would be counter to the interests of justice and could have some serious, unintended side effects, which could put us in a difficult position in relation to justice.

I am not sure whether the amendments are an attempt to punish one of our extradition partners for being slow in ratifying the treaty, but if so that is not an appropriate way to proceed. We are all keen to get ratification, but this kind of mechanism is not an appropriate way to make progress. As I said before, there is an erroneous belief that somehow there was balance in the requirements of the 1972 treaty. There was not; there was imbalance. The UK only ever had to show probable cause. The United States had to show prima facie evidence. There was clearly imbalance in the 1972 provisions. People could say that the scales were in the other direction. What we have tried to do through the Extradition Act is to get balance, so that there is a reasonable read-across in the levels of information that people have to put forward.

The effect of the amendments would be to limit extradition not only to the US, but possibly to other states as well, in ways that could be difficult to predict. For example, somebody could murder all the occupants of a nursery school in a territory caught by the amendment, flee to the UK and be beyond the law because the amendments require that there should be some inconsistency in the treaty provision. Many of our relationships with different countries are many years old. There could well be inconsistencies in the various treaties between us.

I also think that the amendments are not practicable. Extradition requests are considered in the UK under the Extradition Act 2003, which overhauled the law and brought it up to date to keep pace with accelerating developments in modern criminality. Most of our treaties are very old. Some date from the late 19th or early 20th century. If we trawled through those, we would find a range of inconsistencies, and if people could escape the extradition provisions as a result, that would have a serious effect on our legal system.

If we limited our extradition powers in the way proposed and refused all but requests for terrorists from the territories affected by the amendments, those states might take reprisals against the UK and refuse our comparable requests. Someone might commit a very serious crime in the UK, flee abroad to a state reciprocating the UK’s amended extradition arrangements and be beyond the reach of UK law. I am sure that the hon. Gentleman does not intend that, but if he thinks seriously about it, he will see that if we suspended the designation of any state whose position was inconsistent with the treaty, we could catch a range of states and then find ourselves unable to extradite some pretty serious criminals. Furthermore, we would face the possibility of those states taking a similar position against us, leading to our law not being as effective as we want it to be. On that basis, I ask the hon. Gentleman to withdraw the amendment.

Nick Herbert (Shadow Minister (Police Reform), Home Affairs; Arundel & South Downs, Conservative)

First, in tabling the amendments, I took care, as I should have said in moving them, to exclude terrorism offences. The amendments should make that clear. Secondly, I am not persuaded by the Minister’s argument, because she has not given one example of where there might be an unintended side effect. She just said, “There might be an unintended side effect.” If the Minister had come with a persuasive list of extradition arrangements that would no longer be possible as a result of the amendment, which would threaten our ability to deal with serious crimes—terrorism, as I explained, would be excluded—that might have persuaded the Committee. However, she simply said that that might be the effect, so no one has done the work to see whether it would be the effect of the amendment.

Let me remind the Committee of what the amendment would do. The principle, which is simple, is that the operation of the Extradition Act 2003 and the designation under part 2 should not apply until the treaty is ratified by the Senate. That is a perfectly reasonable position to take. What was wrong was that, as I said, the Government implemented the treaty on a one-sided basis instead of waiting to see whether the Senate would introduce it.

Michael Fabricant (Whip, Whips; Lichfield, Conservative)

I am well aware that the United Kingdom Government are trying to ensure that the Senate ratifies the treaty. At the moment, however, they have no lever at all to get the Senate to ratify it, whereas if the Senate thought that the treaty would not   exist unless it did ratify it, at least that would give the British Government some sort of lever to get the Senate to do just that.

Nick Herbert (Shadow Minister (Police Reform), Home Affairs; Arundel & South Downs, Conservative)

My hon. Friend is right. What he describes is part of the purpose of the amendments.

Hazel Blears (Minister of State (Policing, Security and Community Safety), Home Office; Salford, Labour)

Another misconception is that the 2003 treaty has been ratified by the UK; it has not. The treaty will come into force when the instruments of ratification have been exchanged, so there are levers for both sides to get the benefits of the treaty. As I said, it has not yet been ratified; it is not a one-sided agreement in those terms.

Nick Herbert (Shadow Minister (Police Reform), Home Affairs; Arundel & South Downs, Conservative)

That is an absolutely fatuous intervention, because the purpose of the designation, by order, was to implement our side of the treaty ahead of agreement by the other side. That is exactly what we are discussing. We have in effect implemented our side of the treaty—by order, with only one and a half hours of debate.

Hazel Blears (Minister of State (Policing, Security and Community Safety), Home Office; Salford, Labour)

I am not sure whether the hon. Gentleman was listening when, in answer to the comments of the hon. Member for Hornchurch, I went through the range of benefits of having the treaty. The benefits apply two ways. That is about getting people who have already been convicted and ensuring that we do not have a statute of limitations, so offences are not barred. Those are mutual and reciprocal benefits of the treaty. The sole issue on which the hon. Member for Arundel and South Downs appears to be fixated is that of probable cause and information sufficient to enable the issue of an arrest warrant. In fact the treaty does not alter that evidential balance, so he is fixated on a point that is unchanged by the treaty’s ratification. All of the other issues are important matters—making extradition speedier and more effective, or making the law work better. The hon. Gentleman appears entirely to ignore those issues by concentrating on a theoretical possibility, when the treaty does not change the evidential balance.

Greg Pope (Hyndburn, Labour)

Order. May I appeal for shorter interventions?

Nick Herbert (Shadow Minister (Police Reform), Home Affairs; Arundel & South Downs, Conservative)

First, if the Minister were someone facing extradition to the United States now, through the retrospective application of these arrangements for a crime committed which would not have been a crime under British law, she might be fixated on it as well. If the Minister is so keen to see these other provisions—

Hazel Blears (Minister of State (Policing, Security and Community Safety), Home Office; Salford, Labour)

Will the hon. Gentleman give way?

Nick Herbert (Shadow Minister (Police Reform), Home Affairs; Arundel & South Downs, Conservative)

No, I will not. I shall complete my point. If the Minister is so keen to see other aspects of the extradition treaty brought into force then why implement that key part of it one-sidedly, thereby removing all pressure on the United States Senate to ratify it? The Minister cannot have it both ways: standing up to say how important it is that we secure the agreement and then effectively throwing away the only true negotiating card that the Government had—that is, to implement the key part of the treaty, in   which the United States is interested, ahead of time and by order. We sought to make that perfectly fair point.

Hazel Blears (Minister of State (Policing, Security and Community Safety), Home Office; Salford, Labour)

The hon. Gentleman said that if I were being prosecuted for an offence that was not an offence in this country, I might be fixated on the issue. I wonder again whether he was listening when I talked about the safeguard of dual criminality. People would therefore not be sought for extradition for offences that were not offences here in the UK.

Nick Herbert (Shadow Minister (Police Reform), Home Affairs; Arundel & South Downs, Conservative)

Yes, but the Minister knows perfectly well that a great deal of concern has been expressed outside the House. I am seeking to avoid going into specific cases, but that is the essence of the concern relayed to me by the employers’ organisations—the CBI and the Institute of Directors—about company directors who face potential extradition under these arrangements. The Minister did not respond to my point that there is a retrospective element to this legislation, which means that it may apply to offences that would not actually have been offences in this country because of that retrospective nature. That is a serious issue, so in responding to the Minister I was seeking to explain why, in her words, we have been fixated on that. It is because an injustice may be done to those individuals; that is as far as I wish to go in commenting on particular cases. However, there is absolutely no doubt that great concern has been expressed about the one-sided nature of these arrangements. To suggest the idea that we are fixated is simply to cheapen the debate.

These amendments would give the Government a negotiating tool. They would help to put pressure on the United States. I am not persuaded that they would have unintended side effects, since the Minister could not say what those really were. I therefore wish to put these amendments to the vote.

Lynne Featherstone (Shadow Minister, Home Affairs; Hornsey & Wood Green, Liberal Democrat)

I beg to move amendment No. 53, in schedule 12, page 117, line 42, after ‘Convention’, insert

‘, or whose claim for asylum under the Refugee Convention is pending’.

Greg Pope (Hyndburn, Labour)

With this it will be convenient to discuss the following amendments: No. 55, in schedule 12, page 117, line 45, leave out

‘of Article 2 or 3’.

No. 54, in schedule 12, page 118, line 2, at end insert

‘, or whose claim that his removal from the United Kingdom would be unlawful under section 6 of the Human Rights Act 1998 as being incompatible with his Convention rights is pending’.

Lynne Featherstone (Shadow Minister, Home Affairs; Hornsey & Wood Green, Liberal Democrat)

Amendments Nos. 53 and 54 are possibly less exciting than the previous debate, but nevertheless important. Schedule 12, which will give the Secretary of State the discretion to issue an extradition certificate in cases involving those with refugee status and those with humanitarian protection, is welcome. If a person’s extradition would leave him or her at risk of persecution or treatment contrary to the European convention on human rights, the Secretary of State should be able to refuse to issue a certificate without the case having to go to court.

However, the purpose of amendments Nos. 53 and 54 is to query why the power to exercise discretion does not extend to those who have pending asylum or human rights claims and applies only to those who have been granted some form of status. If someone is likely to be granted protection, the same discretionary power should apply, especially if the person concerned has a strong case and will be granted leave to stay in the country.

Amendment No. 55 is another probing amendment. I would like the Minister to expand on why discretion is limited to those who receive protection under articles 2 and 3 of the European convention on human rights. Why does it not extend to those people whose grounds to remain in the UK are based on other articles of the convention, particularly article 8? Although it would be rare for removal to breach another article without also breaching article 3 and/or article 8, precedent states clearly that, in theory, that is possible—it happened in the Lords in the case of Ullah and Do. Will the Minister clarify whether the discretionary power could be applied to unaccompanied asylum-seeking children who have been granted discretionary leave? The amendments to the Act suggest that it would not.

Relevant to amendments nos. 53, 54 and 55, I have three general points to which I would like the Minister to respond. First, under the Extradition Act, a judge will have to consider all potential human rights bars to the request’s being met. Why can the Act not be amended to allow the Secretary of State to consider all human rights and protection issues without the need for lengthy court proceedings? Secondly, paragraph 337 of the explanatory notes states that discretionary power

“is only needed in non-EU cases because there is a presumption that applications for protection from EU member states are manifestly unfounded.”

However, that does not take into account that any such presumption is rebuttable. Why is there no discretion for category 1 countries? Thirdly, what was the thinking behind paragraph 339 of the explanatory notes? It states:

“However, the discretion need not automatically lead to a decision not to certify the request: a case could arise where refugee status had been obtained fraudulently because the person lied about his criminal past; or if an asylum application is still in train when the request is received, the information in the extradition request could lead to a decision not to grant asylum, but to continue instead with certification of the extradition request.”

It is entirely accurate to suggest that information that comes to light as a consequence of an extradition request may affect a person’s refugee status or claim for asylum. However, that is just one more factor to be taken into account in the decision. Deciding whether a criminal past trumps the granting of international protection—essentially, applying the exclusion clause under the refugee convention—requires a fine balancing act between the severity of the offence and the likelihood of persecution. Therefore, I seek the Minister’s reassurance that in accordance with international practice and OHCHR guidance, any exclusion provisions will be applied and construed restrictively.

Hazel Blears (Minister of State (Policing, Security and Community Safety), Home Office; Salford, Labour)

I will do my best to respond to the hon. Lady. She lost me at a certain point in the middle of her contribution, but hopefully what I have to say will reassure her.

I cannot support the amendment but I accept that the hon. Lady is using it to get further information. The amendment would enable the Home Secretary to refuse to certify an extradition request when the subject of the request has an outstanding asylum claim, as well as in cases in which the subject has been granted asylum. We all know that a pending asylum application can take years to resolve, and were we to further widen the Home Secretary’s discretion in the way proposed the extradition process could be seriously delayed and obstructed. We are seeking to draw a balance between ensuring that people are sufficiently protected and ensuring that extradition can proceed where appropriate and proper in order to bring people to justice.

We have said that when a person has been granted asylum, the Home Secretary can refuse to certify the extradition request. However, if we expanded that provision to persons seeking asylum, we would be going too far in terms of the length of time that it could take to resolve those cases. The amendments could even encourage perhaps unmeritorious applications for asylum, or for leave to enter or remain, which could be counter to the interests of justice. For example, victims of, and witnesses to, a serious crime might be made to wait for justice for an inordinately long time.

Our thoughts must be with the victims of the crime for which the extradition is sought, as well as the individuals subject to the extradition order. We must balance those competing interests and rights. If someone has to wait for three or four years for a pending asylum application to be granted before extradition, that person might be prosecuted for, say, murder or a terribly serious sex crime, six or seven years after the event. That would deny justice to the victims of that crime.

The fact that a person has a pending application for asylum, or for leave to enter or remain, does not mean that they have a good case. Just because they have made the application, it does not mean that they have a well founded case. Of course, a person whose extradition is requested can apply for asylum, or leave to enter or remain, but that process should run parallel to the extradition process, in which the district judge is empowered to refuse extradition if that would contravene the person’s human rights.

Similarly, I cannot commend to the Committee amendment No. 55. The Government are firmly of the view that only leave granted on the grounds of article 2—the right to life—or article 3—the prohibition of torture—of the European convention on human rights provides the basis for the discretion to refuse to certify an extradition request, because articles 2 and 3 provide a person with an unqualified right to claim protection. All the other articles in the ECHR provide for qualified rights, which is why there have been instances in which conflicting rights have been distinguished.

Were a person who had been granted leave on the basis of a qualified right, to be the subject of an extradition request, he could argue at the extradition hearing that that leave should be sufficient to discharge him from extradition proceedings. As I said in an earlier debate, there have been cases in which judges have discharged the extradition request on the basis of human rights considerations. Those matters are looked at by judges extremely seriously, but the unqualified rights in articles 2 and 3 ought to provide the basis for a decision, rather than the qualified rights such as those in article 8 regarding the right to respect for private and family life.

Clearly, human rights provisions can override an extradition request. Those matters should be left to the courts, which will hear the evidence, have the facts before it and make that difficult and balanced judgment. The unqualified rights under articles 2 and 3 will take precedence over the extradition application because they provide for fundamental rights—the right to life and the right not to be tortured. That is when it is appropriate for those rights to take precedence over the extradition request, but in other cases, the courts would have to balance those rights and consider the evidence.

On that basis, I hope that the hon. Lady will accept, particularly in relation to amendment No. 53, the point around a possible delay. I would be concerned if people being extradited for serious crimes could not be tried for many years, and if the witnesses to, and victims of, that crime could be faced with the prospect of not seeing justice for a long time. I ask her to withdraw her amendment.

Lynne Featherstone (Shadow Minister, Home Affairs; Hornsey & Wood Green, Liberal Democrat)

May I ask the Minister to clarify the one point to which she did not respond? Could the discretionary power be applied to unaccompanied asylum-seeking children who have been granted discretionary leave? I am seeking clarification on that point.

Hazel Blears (Minister of State (Policing, Security and Community Safety), Home Office; Salford, Labour)

I did not really understand that point. I could not imagine circumstances in which there would be an extradition request for a child for a serious crime. I do not know whether the hon. Lady has an example of a case in which an unaccompanied child might be subject to an extradition request.

Lynne Featherstone (Shadow Minister, Home Affairs; Hornsey & Wood Green, Liberal Democrat)

I do not have an example to hand. Perhaps I can correspond with the Minister on that point. On the general issues that arise from the amendments and the Minister’s response, I thank her for her clarification. The object was to test out the issues, and she has made a good case. Therefore, I beg to ask leave to withdraw the amendment.

Hazel Blears (Minister of State (Policing, Security and Community Safety), Home Office; Salford, Labour)

I beg to move amendment No. 90, in schedule 12, page 122, line 25, at end insert—

‘After section 10 of the Justice (Northern Ireland) Act 2004 (c.4) there is inserted—

“10AProsecution right of appeal against grant of bail by county court judge in extradition proceedings

(1)Section 10 applies to the granting of bail by a county court judge in extradition proceedings as it applies to the granting of bail by a magistrates’ court in such proceedings; and references in that section to a magistrates’ court shall be construed accordingly.

(2)In this section “extradition proceedings” has the same meaning as in section 10.”’.

This is a technical amendment to bring the law in Northern Ireland in respect of the granting of bail in extradition proceedings into line with that in England and Wales. At present, the prosecution cannot appeal the granting of bail in extradition proceedings in Northern Ireland, whereas it can in England and Wales. In the interests of consistency, it is appropriate to make similar provisions in Northern Ireland. Extradition proceedings are dealt with by county court judges, and the amendment ensures that the prosecution can appeal the granting of bail by a county court judge in Northern Ireland.