Clause 55
Policing and Crime Bill
4:00 pm
Evan Harris (Oxford West and Abingdon, Liberal Democrat)
I am pleased to be able to speak to these amendments. First, I wish to raise a couple of concerns about the structure of the extradition clauses, of which clause 55 is, I think, the most important. I would be grateful if the Minister could give me some reassurance.
The Extradition Act 2003 was not particularly controversial in the House but it attracted some controversy at that time, as it was a way of implementing the European arrest warrant. Part of the basis of that legislation, and of this Bill, is that there is no need for a UK court, when it receives notice of a European arrest warrant, to look behind that application for prima facia evidence or to have regard to the need for dual criminality. In other words, it is perfectly possible, by design, that someone should be extradited for an offence under a European arrest warrant to a country where that offence is not considered an offence. That produces problems and leads to legal cases.
Such applications can create problems not only for the individuals concerned and their human rights, but for our courts. For example, the application could be vague. There have been examples in the press of applications for swindling, computer offences and speech offences such as xenophobia and incitement to hatred. Only incitement to religious hatred is an offence without intent in this country and there are high thresholds for other incitement offences. Is the Minister satisfied that it is reasonable to base a clause on a presumption that all EU member states that are subject to the European arrest warrant have fair laws and processes?
For example, we have specifically decided that holocaust denial, however odious, will not be made a criminal offence, so is it appropriate that we make it possible for other EU member states to seek to extradite for such an offence someone who is not a citizen of their country and who has not published in their country except on the internet? The Minister will be aware of the controversy over the case of Dr. Toben, in which the magistrates in Westminster dismissed the application, citing vagueness, and in the end he was not extradited only because the German Government decided not to appeal to the High Court. Is it right that we should have legislation that fails to make it clear that that is not the sort of case that is appropriate for extradition? Speech offences are not offences in this country, so there is no dual criminality, and what about cases in which a country seeks the extradition of a citizen of another country—potentially a British citizen—for publishing certain material? I would be grateful if the Minister clarified that, because otherwise we will have to come back to that issue at a later stage to debate more specific amendments.
The matter is made worse by the fact that under the 2003 Act, as I understand it, the Home Secretary may by Order in Council extend the provisions to non-EU countries, such as Azerbaijan, Georgia and the Russian Federation, which have all benefited from such Orders in Council. There is a significant human rights concern underlying the whole framework of the legislation.
I will now turn to amendments 72, 73 and 74, the aims of which will be apparent to Members, and outline them briefly, because we need to make progress. They seek to remove the subjective view of the Secretary of State on the question of whether a return would be incompatible with the meaning of the Human Rights Act 1998. They would do several things. First, they would make that decision the result of an objective test so that the question of whether the Secretary of State is satisfied is not simply the opinion of the Secretary of State.
Secondly, the amendments would give full access to the courts and not simply access to review that decision by judicial review, which is not the ideal way in which to raise issues of fact that go behind the decision, although the Minister might take a different view, as the Government often do, depending on the case. Indeed, when the Government are defending a judicial review, they often say that it is a matter of deciding whether the process is wrong or whether the decision is so unreasonable as to be an abuse of process. When someone is facing extradition to a country where we cannot be sure that they will be looked after in compliance with obligations that we have made, it must be reasonable that facts should be clearly testable in court.
The amendments seek to provide recognition not only for the European convention rights, but for other international treaties. An example is the United Nations convention on refugees, which was established after the second world war to provide a haven for people who might otherwise be persecuted, perhaps by prosecution, in another country.
The amendments also include a provision that would require consideration to be given to the wider interests of justice. I will give two examples in order to save time. The first example is an undertaking that is given prior to all the knowledge becoming available. Once a person is in this country, it may become clear that they have a medical condition, for example, that makes them particularly vulnerable and would put them at risk if they were extradited to the country to which the Secretary of State has given an undertaking to extradite them. A topical example is the well-known case of Gary McKinnon, who has a mental health disorder that would make him particularly vulnerable if he were transferred to an American supermax prison. We need to be capable, within our law, of giving consideration to that issue, because if someone is made to suffer on the basis of being extradited to a country or is sent back having been extradited here, that is not in the interests of justice and might not be compliant with their human rights. That is not a direct example and I am not seeking to raise that case specifically.