My Lords, I beg to move that the Bill be now further considered on Report.
Moved, That the Bill be further considered on Report.—(Baroness Scotland of Asthal.)
My Lords, in speaking to the amendment, I shall speak also to Amendments Nos. 214 and 217. My noble friend Lord Mar and Kellie will speak to Amendments Nos. 52, 215 and 239. It will be noted that Amendments Nos. 52 and 215 are very much to the same purpose as Amendments Nos. 51 and 214, but Amendment No. 239 raises a similar point in a different context. Our amendments are similar to an amendment that I moved in Grand Committee. However, I have altered it to some extent to take on board a suggestion by the noble and learned Lord, Lord Mayhew of Twysden.
The judge who is required to proceed under Clause 8(1) must fix a date for an extradition hearing to begin. Under subsection (4), that date must not be later than 21 days from the date of the arrest. Clause 8(5) reads:
"If before the date fixed under subsection (1) (or this subsection) a party to the proceedings applies to the judge for a later date to be fixed and the judge believes there are exceptional circumstances, he may fix a later date; and this subsection may apply more than once".
Our amendment would replace "there are exceptional circumstances" with,
"that the interests of justice so require".
The Bill allows the date for the hearing to be postponed only in exceptional circumstances. There may be many reasons why a delay may be needed by either side—either the Crown Prosecution Service or the person against whom extradition is sought. There may be a number of reasons why the subject of the request may not be ready to proceed. There may be and very frequently are serious delays in getting legal aid, even when the hearing is imminent. Clause 8 leaves very little time for having authorisation for legal aid.
Where the defendant, if I may call the person that, argues that his or her human rights will not be observed in the requesting state, it obviously may take a considerable time to gather and present the necessary evidence. There may have been some difficulties in finding a lawyer, particularly if the defendant is foreign and not familiar with the English or Scottish legal system and does not know where to start. The lawyer or defendant may fall ill. There may well be circumstances in which the CPS will need more time to present the grounds for extradition, for wholly justifiable reasons.
The Government's reply to the amendment in Grand Committee was that someone could go to the substantive hearing—the first hearing within the 21-day period—and then ask for an adjournment of that hearing, which the court will have discretion to grant. That is true, but the noble Lord, Lord Filkin, who spoke for the Government on that occasion, recognised that it was not desirable to start substantive hearings and then adjourn them, and promised to look at the matter again. No doubt the Government have looked at the matter again but have not changed their view, which is unfortunate on this occasion.
If there are real reasons for doing so, surely it would be better to be able to go to the court and ask for an adjournment without having to wait for the substantive hearing and ask for an adjournment at that point. It is in everyone's interests that there be a power to do that. If someone has to wait for the substantive hearing, there is at least a risk that the application for adjournment will be refused and that they will have to make what provision they can for proceeding on that day. That would be unnecessary if there were a power to ask for a postponement at an earlier stage.
If the court can order an extension of time in exceptional circumstances before the first day of the substantive hearing, why can it not order an adjournment if the circumstances are not exceptional but it is clear in the interests of justice that the extension should be granted? Amendment No. 51 applies that principle to extradition to category 1 territories. Amendments Nos. 214 and 217 extend the same change to extradition to category 2 territories. Amendment No. 214 does so in cases where proceedings are begun by warrant under Clause 72, and Amendment No. 217 does so where a provisional warrant has been issued under Clause 74.
The entirely reasonable and appropriate course would be to allow applications for an adjournment to be made before the date of the first hearing in not only exceptional cases, but cases where arguably it was in the interests of justice that the extension be granted there and then. That would make it unnecessary to wait for the first hearing before the application could be made. I beg to move.
My Lords, the names of my noble friends Lord Hodgson and Lord Bridgeman stand to three amendments in the group, Amendments Nos. 51, 214 and 217. I shall deal with those amendments very briefly at this stage.
As the Government are aware, we fully support the amendments. They pick up on a valuable point made in Committee by my noble and learned friend Lord Mayhew. He referred to the fact that the judge might lack guidance about what "exceptional circumstances" covered and that "for good reason" might not provide the guidance. He concluded:
"On reflection, perhaps it would be better to use the phrase 'where the overall interests of justice require'".—[Official Report, 19/6/03; col. GC 382.]
I agree entirely. We feel that postponement, if it were in "the interests of justice", would give adequate guidance to the judge when deciding whether to set a later date for the hearing.
Like the noble Lord, Lord Goodhart, I was pleased in Committee that the noble Lord, Lord Filkin, who responded then to the amendment, gave a commitment that the Government would think again. The noble Baroness is nodding her head very helpfully, so we may get a good reply when she reaches the amendments.
My Lords, I challenge myself to be even more brief than the noble Baroness, Lady Anelay.
Amendments Nos. 52 and 215 have been inspired by the Law Society of Scotland. They would ensure that the judge considered the interests of justice as a whole before granting a continuation of a hearing. The current drafting of the clause is defective in Scottish eyes, because it could lead to the indefinite detention of someone awaiting an extradition hearing. The amendment ensures that a balanced approach, taking account of the interests of justice as a whole, would be deployed before a continuation was granted. I remind the House of the Scottish context. There is a similar requirement for the Crown to proceed within 110 days when the accused is remanded in custody.
Amendment No. 239 would introduce further ideas that should be taken into consideration by the High Court when deciding to extend the required period in Clause 100(10). Clauses 8, 76 and 100 of the Bill appear to be inconsistent. When dealing with extensions to the dates for initial and extradition hearings respectively, Clauses 8 and 76 make reference to the need for a judge to believe that there are exceptional circumstances that justify a delay. However, no such reference is made in Clause 100. Is that a mistake? Extensions should not be the norm; they should be granted timeously. The amendment would ensure that the court's discretion to extend the time can be invoked only in exceptional circumstances and when it is in the interests of justice to do so.
My Lords, when I looked at Amendments Nos. 51 and 52, I thought for a moment that I was seeing double. The two, Liberal-promoted amendments seem to have very much the same intention. I realise that there is a subtle difference. The Law Society of Scotland has informed me of its point of view on Amendment No. 52, which has been well described by the noble Earl. It will be interesting to see which of the amendments the Government prefer and whether they prefer Amendment No. 214 or Amendment No. 215.
My Lords, I support Amendment No. 51, but I confess that I do not understand why it is suggested that if Amendment No. 51 were barred, we would need Amendment No. 52. Amendment No. 52 would not achieve the purpose of Amendment No. 51, if Amendment No. 51 were not agreed to. I therefore support Amendment No. 51, but not Amendment No. 52.
One could perhaps argue succinctly in favour of Amendment No. 51 by translating it into the negative. If we were not to accept Amendment No. 51, the Bill would provide that the judge may not postpone the hearing and fix a new date, even though the interests so require, unless there are exceptional circumstances. That would be a remarkable provision, but it would be what the Bill means at the moment.
The noble Lord, Lord Goodhart, said that the Government have conceded that, on the day of the hearing, the judge could grant an adjournment. That is strictly wrong. The judge should begin the hearing so that it is formally started and does not trigger subsections (7) and (8), but he could then say, "Well, I've begun it, but I see that you're not ready to go on, so now go away". That has enormous disadvantages. First, it means that the unfortunate parties must be ready. If they do not have legal aid, they must be ready in some other way. It also means that since the judge has now started the hearing, he is tied in to presiding over the next hearing, which will make it much more difficult to fix a date.
The whole purpose of the Bill, I thought, was that parties should be properly represented and have proper translation and so on. Very frequently, that will not have been achieved in 21 days. It is desirable that the case should be heard as quickly as possible, but the best laid plans of mice and men often do not achieve their desired purpose. In the presence of the noble Baroness, Lady Carnegy, I will not try to render that quotation more accurately.
The fact that one's lawyers are not ready or that the translator has not turned up or that one cannot secure legal aid are not "exceptional circumstances"; they are absolutely bog standard circumstances. As a lawyer, one can readily admit that they are the most unexceptional circumstances that one can think of. To say that because one's lawyer has not turned up or the translator is not there, one cannot have an adjournment because that happens very often, seems to be utterly extraordinary.
I shall be interested to hear how the Minister can seek to advance an argument that one cannot have an adjournment and postpone the hearing—even though the interests of justice require it—just because the circumstances are not exceptional.
My Lords, when I first looked at the amendment of my noble friend Lord Goodhart, I had a sudden sense of dejavu. It is almost identical to one which I put down on the CSA in 1991, save that my noble friend's amendment is, needless to say, more carefully and more elegantly drafted than mine was.
That amendment fell due for debate at two in the morning. I decided that it was not the time to ask the House to consider matters of that kind. I looked at the programme of amendments for Report and decided that if I were to put it down at that stage, it would again come up for debate at two in the morning, so I did not put it down.
One can imagine then my astonishment when I found it on the Marshalled List in the name of the then Lord Chancellor, the noble and learned Lord, Lord Mackay of Clashfern. I honour him deeply for that decision. I hope that I may honour this Minister equally deeply for a parallel decision.
My Lords, perhaps I may address the point that has been raised about Amendment No. 52. Of the two amendments, I would prefer Amendment No. 51, which deals with the matter in a slightly better way than that which has been suggested by the noble Earl, for the good reason that it contains words which are familiar to judges, whereas the phrase "exceptional circumstances" produces an almost subjective element into the matter, with which I suggest the judiciary should be careful when dealing with matters such as extradition. There is only one matter to which I would draw the attention of the House. Noble Lords would perhaps wish to consider whether the wording proposed by Amendment No. 51 might produce ambiguity about the point of time at which the application should be dealt with. That apart, I certainly support the thrust of Amendment No. 51 and the related amendments that have been suggested as an alternative.
My Lords, the debate has ranged gloriously. At one point, I had a sense of dejavu myself, having heard the arguments before. However, I assure your Lordships' House that I am going to make a "bog standard" concession. I give advance notice of that. Concessions come in different shapes and sizes, but this one is definitely bog standard.
We listened to everything that was said in Committee. The noble Lord, Lord Filkin, made it clear that he would take the matter away and give it fair consideration. That is exactly what we have done.
During Grand Committee, amendments were tabled to change "exceptional circumstances" to "good reason". We could not support those amendments at that stage. All experience shows that fugitives will use any and every trick to try to string out the extradition process and delay their extradition.
We were fearful that "good reason" as a test would allow far too many postponements. That would run contrary to one of the key purposes of the Bill, which is to speed up the extradition process. It would also run counter to the interests of justice.
I think that noble Lords who were in Grand Committee saw the force of that argument. However, this afternoon, the two Opposition parties have come forward with an entirely different formulation with which we find greater favour. I think that it was inspired by the noble and learned Lord, Lord Mayhew of Twysden. If that is so, I am sure that it comes with an impeccable pedigree. The words used are,
"where the interests of justice so require".
As I said, we have given that further consideration. Clearly, where it is in the interests of justice that a hearing should be postponed, that hearing must be postponed. At the same time, this particular form of words should prevent hearings being postponed for trivial or improper reasons. I listened to what the noble Viscount, Lord Bledisloe, said about that. I think that his points about exceptional circumstances were both right and compelling.
Accordingly, I am happy to give an undertaking today that we will bring forward government amendments at Third Reading which will allow for hearings to be postponed where that is in the interests of justice. If your Lordships care to look at the amendments to Clauses 31 and 113, standing in the name of my noble friend Lady Scotland, you will see that we have already started down that route. It is essentially a down-payment towards a bog standard concession.
I hope that in the light of that firm commitment, noble Lords will feel able to withdraw or will not press their amendments. In turn, we promise to bring back government amendments on Third Reading that we think will tidy up the loose ends on this issue.
My Lords, I am, of course, extremely pleased with that concession. If one can call it a victory, I think that it is a victory for the noble and learned Lord, Lord Mayhew of Twysden, whose wording is now incorporated in the amendments in my name and that of the noble Baroness, Lady Anelay. On that basis, I am happy to beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 52 and 53 not moved.]
Clause 9 [Judge's powers at extradition hearing]:
[Amendment No. 54 not moved.]
Clause 10 [Initial stage of extradition hearing]:
[Amendments Nos. 55 and 56 not moved.]
Clause 11 [Bars to extradition]:
[Amendment No. 57 not moved.]
Clause 12 [Rule against double jeopardy]:
[Amendment No. 58 not moved.]
Clause 13 [Extraneous considerations]:
moved Amendment No. 59:
Page 7, line 39, after "nationality" insert ", gender, sexual orientation"
My Lords, I hope that I can be brief on the amendments in this group as I think that their effect is clear enough, although their history might be slightly less obvious. They respond to a point raised by my noble friend Lord Wedderburn in Grand Committee. We made a commitment at that time to go away and see what we could do to act on his suggestions. I am pleased that we have been able to come back with these amendments.
As currently drafted, both Part 1 and Part 2 of the Bill contain a clause barring extradition if the extradition request has been made for the purpose of punishing a person because of his race, religion, nationality or political opinions or if the person is liable to be prejudiced at his trial for those reasons. These amendments extend the list of factors to include gender and sexual orientation. In other words, if an extradition request is made to the United Kingdom which is motivated by the desire to persecute a person because of his or her gender or sexual orientation, the court will have clear grounds for refusing it.
I am confident that none of your Lordships will object to that and that, accordingly, your Lordships will support these amendments. I beg to move.
My Lords, let us suppose that there is a country where, let us say, homosexual offences are illegal. The person concerned might therefore be tried for one of those reasons. I accept, of course, that sexual offences of those kinds would not be within the list. However, let us suppose that they wanted to prosecute him for that as well. Would that debar it, or is it merely his orientation rather than his practices that are excluded by these words?
My Lords, common sense would suggest that it probably would be barred. However, I should like to reflect on the matter and perhaps drop the noble Viscount a line.
moved Amendment No. 60:
Page 7, line 42, after "nationality" insert ", gender, sexual orientation"
On Question, amendment agreed to.
[Amendment No. 61 not moved.]
Clause 14 [Passage of time]:
[Amendment No. 62 not moved.]
Clause 15 [Age]:
[Amendment No. 63 not moved.]
Clause 16 [Hostage-taking considerations]:
[Amendment No. 64 not moved.]
Clause 17 [Speciality]:
[Amendment No. 65 not moved.]
Clause 18 [Earlier extradition to United Kingdom from category 1 territory]:
My Lords, again, I hope that we can be very brief as we are dealing with a minor matter. As your Lordships may know, the framework decision on the European arrest warrant allows EU member states to adopt one of two positions on the issue of speciality and re-extradition. There is a "higher" position whereby other member states also adopting that position could assume our consent, and the "lower" position which requires other member states to seek our consent if they want to charge the person with an additional offence or re-extradite him or her.
The Government's view was that the UK should adopt the "higher" position and the Bill was originally drafted accordingly. However, we were persuaded by the strength of feeling in another place to change our view on that and we now intend to adopt the "lower" position. To put the matter beyond doubt, at an earlier stage of the Bill's passage we removed all the provisions relating to the "higher" position. Unfortunately we missed a couple. However, these amendments remedy that and provide, we hope, for consistency throughout. I apologise to your Lordships for the error, but I am sure that you will have little difficulty in accepting these amendments. I beg to move.
moved Amendment No. 69:
Page 10, leave out lines 9 to 26 and insert "whether the person was convicted in his presence.
(2) If the judge decides the question in subsection (1) in the affirmative he must proceed under section 21.
(3) If the judge decides that question in the negative he must decide whether the person deliberately absented himself from his trial.
(4) If the judge decides the question in subsection (3) in the affirmative he must proceed under section 21.
(5) If the judge decides that question in the negative he must decide whether the person would be entitled to a retrial or (on appeal) to a review amounting to a retrial.
(6) If the judge decides the question in subsection (5) in the affirmative he must proceed under section 21.
(7) If the judge decides that question in the negative he must order the person's discharge."
My Lords, in moving Amendment No. 69 I shall speak also to the other amendments in this group.
Our amendments follow on from the fascinating discussion that took place in Grand Committee and also from amendments that we discussed a little earlier. There is both a general issue here concerning the burden and standard of proof and a more specific one relating to convictions in absentia. I should like to address the bigger issue first before turning to the specific, and in doing so I shall attempt to make the case for the amendments standing in my name. However, before all of that, I should begin with a tribute to the value of close scrutiny and to the noble Lord, Lord Goodhart, in particular. He will be scoring two goals in very quick succession in this regard.
As I mentioned, we had very good debates on this subject in Grand Committee. The noble Lord, Lord Goodhart, made a particularly effective speech, if I may say so, in which he sought to demonstrate that the wording of what are now Clauses 20 and 86 was internally contradictory and could lead to a significant gap. I am not ashamed to tell your Lordships that those remarks caused a great deal of head scratching in the Home Office and that a great deal of midnight oil was burned to see whether the noble Lord was right. The conclusion was, of course, that the noble Lord was quite right. He had indeed exposed a gap in the Bill. I should like to take this opportunity to give him my thanks for that.
Amendments No. 69 and 227 standing in my name seek to close that gap by amending and simplifying the drafting of Clauses 20 and 86. I hope that that will be welcome to your Lordships and to the noble Lord, Lord Goodhart, in particular. For the sake of completeness, I should explain that Amendments Nos. 157 and 272 are minor consequential amendments.
I turn to the whole issue of the burden and standard of proof. Following the debates in Grand Committee, we took the view that it would be sensible to put a general statement on the face of the Bill specifying the standard of proof that should apply. That is the purpose of Amendment No. 303 in my name. It provides that the normal criminal rules apply to extradition proceedings. That means that, in practice, where the onus of proof is on the requesting state, the standard to be applied is beyond reasonable doubt. Where the onus is on the requested person, the standard is the balance of probabilities. I am sure that noble Lords will see that as a just provision and welcome it accordingly.
I now turn to the amendments standing in the name of the noble Baroness, Lady Anelay—Amendments Nos. 70, 71 and 228, together with Amendment No. 229—all of which are concerned with the whole issue of convictions in absentia. This is an issue on which I believe there is very little between the intentions of those on all sides of the House. The objective of these provisions is clear and, I believe, common to all of us. Nevertheless, the manner by which that objective is to be achieved is at the nub here. Given the existing structure and content of the Bill, I do not believe it is necessary to make these amendments. Perhaps I may explain why.
Convictions in absentia, although rare—I believe they have been in single figures over the past five years—occasionally become a factor in extradition cases and, inevitably, we need to provide for that eventuality. I should also point out that conviction in absentia, although unusual, as a concept is not unknown to the UK criminal justice system. A brief review of some extradition cases where people have been wanted for return to the UK in these circumstances provides a number of pertinent examples.
A man from south Wales went missing from his trial in August 2000 as the jury considered verdicts on a number of serious sexual offences. He was convicted in his absence and sentenced to 12 years' imprisonment for nine serious sexual offences against women and children. He was subsequently arrested in France. Another case concerns a couple from Staffordshire, who fled their trial in September 2002 and were convicted in their absence of attempting to commit a £110,000 VAT fraud. They were subsequently arrested in Ireland. In that case, it is also worth noting that the husband had previously feigned a heart attack in America in order to flee a fraud trial there. That gives us a little insight into the mind of a person who is seeking to evade justice.
I hope that the Government have shown in the Bill that our aim is to make more explicit the rights of the person whose extradition is sought. Extradition is barred if a person has been convicted in his absence, unless he deliberately absented himself, and he will not be entitled to a retrial or a review amounting to a retrial. Again, I should explain that a retrial must confer on an individual the same rights as a trial. It does not constitute a retrial unless it has that effect.
The right to a fair trial is enshrined in Article 6 of the ECHR. Extradition would be barred under the ECHR provisions where a judge or court was of the opinion that a person would not be afforded those rights, either at a trial or a retrial, on return to the requesting state. Noble Lords will know that that is enshrined in this Bill in Clause 21.
The amendments would introduce into the Bill a specific description of what a retrial or review must include. They direct the judge to disregard any proceedings which do not include provision for the extradited person to have specific rights. I believe that we discussed these specific issues at great length in Grand Committee. Indeed, I notice that the amendments have been carefully drafted to include the words "in particular", as suggested by the noble and learned Lord, Lord Mayhew.
At that time, we agreed that we would consider the amendments further to see whether they could be used in any way to improve upon what was already in the Bill. In this instance, we have done so and we believe that the Bill is correct and appropriately drafted. Whatever form it takes, a retrial must comply with the right to a fair trial, as guaranteed by Article 6 of the ECHR. If a judge considered that any of the rights listed in the amendments would be breached, extradition could be refused under Clause 21. I respectfully suggest that the amendments would elongate the provisions to give us something that we already have, and I am sure that your Lordships would be keen to avoid that.
I repeat the invitation that I gave in Grand Committee for your Lordships to imagine how much longer the Bill would be if we were to define all the ECHR issues that could arise. Were it not the case that these issues are all set out in the Human Rights Act, there would be a very strong case for putting them on the face of the Bill. But they are set out in that Act and we suggest that that is the correct place for them. They simply do not need to be repeated, point by point, in this Bill.
The inclusion of these points, and not others, could also attract unfortunate inferences. It could be suggested that these issues are to be regarded over and above, or even to the exclusion of, other ECHR rights. That would not be a desirable consequence. The noble and learned Lord, Lord Mayhew, sought to address that point with the inclusion of the words "in particular". But we are not sure that that alleviates the problem. The words intrinsically suggest that the specified points take precedence or more importance over other Article 6 rights. Again, with the greatest respect, having reflected on the matter, we do not believe that this takes us any further forward or removes the difficulties that we have with the amendment.
We certainly accept that the amendments raise important issues and we agree, without hesitation, that no person's right to a fair trial should be breached. However, I submit to your Lordships that the Bill already provides proper protection against that. I apologise for speaking at a little length, but I considered it important to reassure noble Lords that we have taken into account all the factors that they raised with us in Grand Committee. I beg to move.
moved, as an amendment to Amendment No. 69, Amendment No. 70:
Line 15, at end insert—
"(8) For the purposes of subsection (5), the judge should not regard as a retrial or (on appeal) a review amounting to a retrial, any proceedings that do not in particular include provision for—
(a) the suspect to be present at the retrial;
(b) the suspect to have like rights to hear and examine witnesses as he would have done at the original trial;
(c) the suspect to have the same right to publicly funded legal services as any suspect or defendant."
My Lords, in moving Amendment No. 70, as an amendment to government Amendment No. 69, I shall speak also to Amendment No. 228, which is an amendment to government Amendment No. 227.
On looking at the Marshalled List, it may seem odd that I appear to have tabled a surfeit of amendments on the subject on retrial. I thought that I should put on the record why some of them have become unnecessary. Amendments Nos. 71 and 229 have, of course, been pre-empted by the tabling of the new government amendments. It would be my normal procedure merely to withdraw my own amendments to the government amendments in recognition of that fact. However, I could not do so on this occasion because I would have needed the permission of all those who had added their names to the amendments. For very good reasons, the noble Lord, Lord Goodhart, could not be contacted last week and therefore could not formally give his consent. That is a long way of saying, "I'm sorry they are still on the list. They should not be there; I shall not talk to them; ignore them; and we shall simply get on with Amendment No. 70".
As the Minister explained very carefully to the House today, the Government have done a meticulous job of redrafting the clauses which deal with convictions in absentia. The noble Lord, Lord Goodhart, pointed out that there was some kind of contradiction and we accept that the Government appear to have solved that problem. I shall be interested to hear later from the noble Lord, Lord Goodhart, whether he agrees with that. It has certainly satisfied us.
Unfortunately, we were not satisfied that, in simplifying and tying up that particular problem, the Government did not then go on, as we felt that they should, fully to address our concerns about the safeguards that need to be added with regard to convictions in absentia. Today, the Minister said that she considers that mechanisms already exist within the Bill—particularly in Clause 21—and within the Human Rights Act to guarantee a sufficiently strong series of safeguards when someone is retried after a conviction in absentia and that we should not continue to press our amendments.
"Retrials are different in certain member states".—[Official Report, 26/6/03; col. 120.]
That is where our concern lies. Last week, we heard from the noble and learned Lord, Lord Donaldson of Lymington, about the tremendous difference in judicial systems across the EU and, indeed, across the accession states, which will join us in the future. We still consider that our amendments are essential in order to provide three extra safeguards on the face of the Bill. The noble Baroness says that they are there. We consider those safeguards to be so important in respect of convictions in absentia that attention should, therefore, be drawn to them.
The first safeguard is the right of the person to be present at the retrial. Following a conviction in absentia we think it is vital that the person should be present at the subsequent retrial. The second safeguard is that the person must have the same right to hear and examine witnesses as he or she would have done at the original trial. As the Minister spotted, we redrafted this paragraph to take into account the comments of noble Lords, including those of the noble Viscount, Lord Bledisloe, who pointed out that in other countries witnesses may not be categorised as prosecution or defence witnesses. We agree with his comments in Committee and therefore, to meet his point, here we refer only to "witnesses".
Our third safeguard is that the defendant must have the same right to publicly funded legal services as any suspect or defendant would in those jurisdictions. We remain convinced that these safeguards should be made clear on the face of the Bill. I beg to move.
My Lords, I rise briefly, first to apologise. Last week I appeared as counsel in the Court of Final Appeal in Hong Kong, which made it somewhat difficult for me to be contacted. Therefore, I was unable to consent to the withdrawal of Amendment No. 71 or, indeed, to put my name to Amendment No. 70, which certainly I would have done had I been present. Secondly, I endorse entirely the comments of the noble Baroness, Lady Anelay.
My Lords, it is important for us to consider Article 6. The right to trial is clearly set out. I remind the House that each and every country which has put its name to the framework document will be equally bound by the provisions of the European Convention on Human Rights. The position is that each country has a slightly different system, and the way in which we deliver trials has to accord with Article 6. So the outcome must be the same although the means we adopt will differ.
Also, I ask the House to bear in mind that if we were to pass provisions in our Bill which contradicted those of other countries or which made it more difficult for them in this way, it may be that we would not receive the same reciprocal response that we would like. I am conscious of what was said by the noble Baroness about putting these matters on the face of the Bill. However, I am concerned that this should go forward in this way. I am particularly surprised that our colleagues on the Liberal Democrat Benches have taken this view. I urge noble Lords not to press the amendment. With the greatest respect, we say that it is unnecessary and misconceived.
My Lords, it is always rather confusing when one has this unusual circumstance of amending a government amendment or seeking so to do. I simply reiterate my original contention that when one comes to a retrial of someone who has been convicted in absentia, it is vital that the safeguards are clear and on the face of the Bill. I understand that the Minister is trying to persuade me to accept that this would somehow make the other countries which have signed up to the framework decision feel that we were working against them. I am sure that that would not be the case, and that they would accept the fact that we were simply trying to put a clear commitment on the face of the Bill, which, in principle, the Minister also supports. I should like to test the opinion of the House.
moved Amendment No. 74:
After Clause 21, insert the following new clause—
"MINIMUM PROCEDURAL RIGHTS
(2) For the purposes of subsection (1), the judge may accept a written assurance from an appropriate authority in the category 1 territory in which the warrant was issued that the person's Convention rights under Article 6.3 will be observed.
(3) Where a written assurance has been given under subsection (2), the Secretary of State shall make arrangements to monitor the subsequent conduct of the proceedings against the person in the territory to which he has been extradited.
(4) If the Secretary of State believes as a result of monitoring under subsection (3) that a person's Convention rights under Article 6.3 have not been observed, he may draw that conclusion to the attention of a judge acting under section 21 in relation to any proceedings for the extradition of any other person to the same category 1 territory."
My Lords, the amendment raises issues which I believe are of very great importance in the context of the Extradition Bill. The most serious problem with the European arrest warrant is the variable standards of criminal procedure in some member states of the European Union. We should not of course be complacent about our own standards. We need to recognise that many member states have standards that are at least equal to ours. That unfortunately is not yet true of all the other member states. Certain states—and events in the past year will have perhaps suggested that Greece is one of them—do not attain in all cases the standards that we would regard as acceptable.
The European Union has started work on a framework decision on minimum standards of legal process. Progress is moving without any sense of urgency towards that framework decision and I fear that it will be some considerable time before we reach anything that can be regarded as an adequate framework decision.
Clause 21, which we greatly welcome, provides a vital safeguard for the European arrest warrant procedure. The judge must decide whether a person's extradition would be compatible with that person's convention rights under the European Convention on Human Rights. If extradition would not be compatible with those rights, that person must be discharged.
The most relevant convention right is the right to a fair trial under Article 6. Article 6.1 confers the right,
"to a fair and public hearing within a reasonable time by an independent and impartial tribunal".
Article 6.3 is of particular importance. Perhaps I may read the relevant parts. It states:
"Everyone charged with a criminal offence has the following minimum rights", and then it sets out five rights. I shall concentrate on the two which appear to be the most important. First, the right in paragraph (c) is,
"to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require"; and, secondly, the right in subparagraph (e) is,
"to have the free assistance of an interpreter if he cannot understand or speak the language used in court".
Of course an interpreter must have a competent knowledge of both languages between which he or she is interpreting.
I should here declare an interest. I am a trustee of Fair Trials Abroad. Much of what I say is based on that organisation's experience. It has found that the two most frequent difficulties are the difficulty in obtaining competent legal aid in the foreign country and the difficulty in obtaining competent interpretation facilities.
Clause 21 may well frequently be used as the grounds for objection to extradition. It has not been used much in the past—although it has occasionally—because there have been other, perhaps more promising, reasons for delay. But some of those are now disappearing and Clause 21 is likely to come to the forefront. That means that when the issue is raised, the court will have to hear evidence about the standards of justice in the requesting state. That evidence may be lengthy, conflicting and uncertain, which means that extradition hearings may be protracted.
Of course, we recognise that cases must be decided on a case-by-case basis. Interpretation is of course entirely unnecessary when the individual concerned is a native or long-term resident of the requesting state and speaks that language as his or her native language or has acquired fluency in it. But that will not always be the case.
Amendment No. 74 therefore serves a dual purpose. First, it draws the court's attention to the importance of Article 6.3. During the debate on the previous group of amendments, the Minister said that those amendments were unnecessary because they were all implicit under the Human Rights Act 1998. However, as I thought about the previous group, it is still of great importance that the court's attention should be drawn to various requirements of Article 6.3.
My Lords, I would say that the two are not in conflict. Of course it is the duty of counsel to draw the court's attention to that, but that is not a reason why it should not be stated in the Bill. It should be, because that is something that requires particular attention.
However, the question is not just that that receives attention. The amendment provides a possible short cut. It will leave it open for the requesting state—to avoid insulting anyone, let us call it Ruritania, which, we may assume, has become a member of the European Union—to say, "Whatever you may say about our general standards, we guarantee that when extradited this person will receive adequate legal aid and"—if needed—"interpretation facilities". The judge may then say, "I shall accept that promise, which will relieve me from the need to consider the question of the general standards of legal process in Ruritania".
It will then be necessary to keep an eye on whether that promise is fulfilled, so some form of monitoring will be required. It will be unnecessary to send members of the diplomatic staff to attend the court; the Secretary of State can instruct a reliable local lawyer to watch the proceedings and report back. If standards at the trial then turn out to be inadequate, the Secretary of State can inform the court of the situation if the same state asks for extradition in another case. That will greatly reduce its chances of obtaining the extradition.
In Grand Committee, the noble Viscount, Lord Bledisloe, asked about the expense of monitoring. I do not believe that it would be significant. At present, extradition is running at the low rate of only about 50 a year. Easier proceduress may lead to more extradition cases being brought, but even so, it is difficult to imagine them being more than doubled or trebled. Many cases will be of extradition to states that have satisfactory standards; many will involve no need for interpretation; and some no need for legal aid. So we are considering only a handful of cases that will need to be monitored.
The amendment is justified for several reasons. First, it emphasises the need for a fair trial in the requesting state. Secondly, where there is doubt about the process, it means that the person is given a specific promise that he will receive procedural fairness in the requesting state. Thirdly, it means that people who are accused of serious crimes cannot escape trial because general standards in the requesting state are not what they should be. Finally, it is likely to shorten the argument about Clause 21 issues at extradition hearings in the United Kingdom.
So the amendment has significant advantages in all directions—except for the alleged criminal who is simply trying to defer or avoid his extradition to a particular state. I beg to move.
My Lords, I support the amendments, which are also in my name, and, following the admirable brevity of the noble Lord, Lord Goodhart, in supporting my previous amendment, I shall also seek to be brief. I merely say that these are important safeguards to be included in the Bill. We agree that they would not assist people who are merely trying to delay proceedings.
My Lords, I share the view of the noble Lord, Lord Goodhart, that this is an important matter. It is not only a question of countries that at present may not provide the full requirements of a fair trial. We are inclined to forget that the regimes of countries that may be recognised under the Bill may change. Germany in the 1920s may well have been recognised for these purposes. Germany by the mid-1930s would hardly have been so suitable, but I suspect that it would have taken a considerable time before our Government had tabled a statutory instrument to "disrecognise"—if that is the right word—Germany.
However, I do not agree with the noble Lord, Lord Clinton-Davis. In such a matter it is important to state such provisions in the Bill. That is why I supported the previous amendment moved by the noble Baroness, Lady Anelay.
We must remember that counsel preparing for a case in the Court of Appeal or the House of Lords ought of course to look up the convention and such documents and bring them to the court's attention. However, a hard-pressed solicitor asked to go to the magistrates 24 hours beforehand to deal with an extradition matter would like to have all the information in one book, which will probably be all that he has time to grab off his shelf before leaping into his car to go to the court. Important matters such as this should be written into such a Bill.
I am also concerned with two aspects of the amendment's drafting. First, proposed new subsection (2) states:
"the judge may accept a written assurance".
Does the noble Lord, Lord Goodhart, intend that he should be entitled to disregard that written assurance and that the "extraditee"—if there be such a nauseating word—is entitled to bring evidence that, notwithstanding the written assurance, he will not be treated fairly?
Secondly, I am also unhappy that there should be an obligation on the Secretary of State to make arrangements to monitor every case in which the procedure is adopted. There might be many cases where he knows that what may be a lengthy trial will go forward. It should be left to him to decide whether to monitor; therefore, subsection (4) would have to be amended slightly. I agree, however, that where the Secretary of State finds that countries are making such declarations but not honouring them, it is important that the matter is brought to court.
If the noble Lord, Lord Goodhart, thinks that there is force in any of those points and wishes to bring the matter back at a later stage, I will support his amendment in principle.
My Lords, I would like to hear from my noble friend that she supports the principle enunciated by noble Lords who have spoken in favour of the amendment. But the provision proposed in the amendment should not be included in the Bill. There should be a note from the Foreign Office, or whichever office is responsible, to ensure that those points are effectively enunciated in favour of the person concerned. However, the Bill should not contain every possibility.
The noble Lords and the noble Baroness have adduced important arguments. But they have not made out a case for including in the Bill the aspects being debated. I wish to hear from my noble friend that there is a possibility that the arguments adduced will be properly addressed in an explanatory document that will be made available to those who must speak on this important issue.
My Lords, the noble Viscount, Lord Bledisloe, raised the point about the solicitor who at the last moment is sent to the magistrates' court. It is very important that he can remind himself of the issues from a single document. The noble Lord, Lord Clinton-Davis, suggested that there should be a Foreign Office handout, but it is certain that it would never get to the solicitor's office.
The noble Viscount, Lord Bledisloe, asked whether it followed from subsection (2) that a judge could reject a written assurance. Surely, it must follow. He must be able to reject a written assurance in the light of subsection (4). I do not know whether he will, but he must be able to when the Secretary of State comes forward and says "I have monitored the past six extradition cases and the human rights have been abused in all of them". The judge might pay attention to that.
My final point may not be well received in some parts of the House. The Human Rights Act has a very bad name. Extraordinary defences are put forward from time to time in the Act's name. It is important, therefore, that the amendment is accepted and included in the Bill. Human rights matter in this context—of course, we know that they always matter. But some cases are different. For example, in Canada, a young man was in the habit of sitting during the religious proceedings at his school assembly and standing during the rest. When it was suggested that that was not a good idea, he said "But I have freedom of religious rights". Another gentleman in the Royal Canadian Mounted Police grew his hair down to his waist and said that that was in accordance with his rights under the Human Rights Act. Utter nonsense is talked from time to time, so it is important that it be made clear that Parliament attaches particular importance to genuine human rights in this context.
My Lords, I support the noble Lord, Lord Goodhart, and my noble friend on the Front Bench. The spirit of the amendments is extremely sensible and could be far-reaching in removing many of the concerns expressed about the Bill. It addresses the problem that the noble and learned Lord, Lord Donaldson, referred to previously, when he talked about different standards of justice, even in different EU countries, and our assumption that they are all the same. The noble Lord, Lord Goodhart, put the matter diplomatically and said precisely that many countries come up to our own standards of justice. But the implication was that few surpassed them and some did not reach them. He said that we must avoid offending people. I understand that consideration and the Minister's reluctance to engage in the point when concerns about individual countries have been raised. Ultimately, politeness must take second priority to preserving the rights of our own citizens and ensuring that they face fair trials and justice when arrested and imprisoned abroad.
The amendment also supports two points dealt with in three amendments that I have tabled, Amendments Nos. 315 to 317: translation and legal aid. The absence of translation facilities can make trials extremely difficult for people in a foreign country. Under the convention, it is meant to be a normal procedure that simultaneous translation is always available in trials.
The noble Lord, Lord Goodhart, referred to the observation made by Fair Trials Abroad that it had hardly ever come across a case in France where simultaneous translation was provided. By coincidence, I recently watched a television documentary about a famous sporting English figure who was tried in France. When asked what he thought about the court verdict, which went against him, he said "I did not understand a word of the proceedings". I am not commenting on that case, but a person should not have to go through legal proceedings without understanding a word of what is said.
The second point on which a person can be at a huge disadvantage is not having legal aid. There was criticism in the famous case involving plane-spotters in Greece about the quality of lawyers provided. There were different levels of charge against the different defendants. One was a lady who merely sat in a car reading a newspaper while whatever was going on went on. Most people would have thought that she should have a separate lawyer. There is an absence of adequate legal aid in many Mediterranean European countries. That is a denial of justice.
One of the reasons that I am so uneasy about the Bill is that, when the Government say that people should not evade justice by crossing national borders, they do not seem to acknowledge that a foreigner in another country is at a disadvantage with the legal proceedings, just as a non-British person might be at a disadvantage before our courts. That is why one must have safeguards in extradition. It is in contemplating the problem that I have come to realise why some countries refuse to extradite their nationals. I am not saying that we should refuse to extradite our nationals, but, in considering the sort of dilemmas that arise in the Bill, I am beginning to understand why some countries have refused so adamantly. I accept what the noble Viscount, Lord Bledisloe, said about monitoring. It raises an interesting point on which I hope the Minister, who was a Minister in the Foreign Office, will comment. I am not sure how much monitoring of individual cases goes on or whether the Foreign Office ever takes a view about procedural issues in legal cases. I know that it does in cases outside the EU, but it is my impression that little happens inside the EU. I am not sure how the Foreign Office addresses issues that arise in countries with relatively high standards of justice.
However, although the amendment addresses the translation and legal aid issues, it does not address the bail issue—the third important way in which a person in another country can be at a disadvantage. There is a presumption of a risk of flight if someone is from another country, so that person is not given bail. That is why, although I am reluctant to concede the logic that one step of European integration requires another, I have been converted by Fair Trials Abroad and people such as the noble Lord, Lord Goodhart, to thinking that we need a system of euro-bail, whereby a foreigner or EU citizen in another EU country would be given bail on much the same assumptions as a national of that country. If he absconded, he would be returned automatically by his own country to the prosecuting authorities. That is not covered in the amendment and ought to be addressed later in the Bill. The main thrust of what the noble Lord, Lord Goodhart, said is right. He is absolutely right about translation and legal aid.
My Lords, when the noble Lord, Lord Goodhart, responds, will he clarify something for me? Subsection (2) of the amendment states that,
"the judge may accept a written assurance".
I took that to mean what the noble and learned Lord was saying from the Cross Benches—that if a written assurance comes, the judge may accept it, but, equally, he may reject it. It does not mean that if a good written assurance comes the judge can simply say that written assurances are not on. It is the quality of the assurance that is referred to. I imagine that that is right, but I would like confirmation.
My Lords, I have listened very attentively to the debate that has ranged across the House. I take on board what noble Lords have said about the need for a procedure that is fair and honours the human rights of each individual as well as the need to have the European Convention on Human Rights totally respected. I agree with all of that. The amendments are very well-intentioned. However, I regret to say that they are wholly misconceived.
The noble Lord, Lord Goodhart, says that he wishes to take a short cut in relation to the provisions in the ECHR and the Human Rights Act. The Government do not think that such a short cut should be taken. The noble Viscount, Lord Bledisloe, asked, "What about the hard-pressed solicitor?". We hope that we have changed that culture. In this country, we now have the Human Rights Act, which applies not only to extradition and this Bill, but to each and every Bill that comes before your Lordships' House. The issues in relation to the European Convention on Human Rights do not only apply as principles of the Extradition Bill. We have debated the same issues on the Criminal Justice Bill, the Anti-social Behaviour Bill, the Sexual Offences Bill and every other Bill that comes through. We must be aware that, if we pick and choose which bit of Article 6, which bit of the European Convention on Human Rights and which bit of the Human Rights Act apply, there is an inference that the other bits—the short cut that we have taken—have less importance and significance.
I reassure my noble friend Lord Clinton-Davis that I agree with the principles enunciated by the amendments and that there will be appropriate explanatory documents. However, I must say to the noble and learned Lord, Lord Donaldson, and the noble Lord, Lord Lamont, that we are talking about a culture of human rights, something that hard-pressed solicitors should have inculcated into their working practice. If they have not, I respectfully suggest that they should not be practising.
On the question of politeness, we are not introducing these provisions out of politeness to other countries. There are pressing rights. The noble Lord, Lord Lamont, is right: these rights are about the protection of our own citizens and the reason for them is to ensure a fair trial. That is the whole point of Clause 21 in this Bill, which applies to the whole extradition process. Clause 21(1) states:
"If the judge is required to proceed under this section (by virtue of section 11 or 20), he must decide whether the person's extradition would be compatible with the Convention rights"— that is, all of them, not a pick-and-choose short cut—
"within a meaning of the Human Rights Act 1998", which means all that Act.
We must transport each and every provision of the European Convention and each and every provision of the Human Rights Act into this Bill, not just pick and choose bits of it. I am very troubled by the suggestion that some provisions have greater significance than others.
Extradition is a classic balancing act, with the rights of the person whose extradition is sought on the one hand and the need for society to ensure that those who are accused of serious crimes are swiftly brought to justice on the other. The Government believe that this Bill strikes the right balance between the rights of the fugitive and the interests of justice.
We have built a number of important safeguards into the extradition process. Many of these safeguards are the same as those that can be found in our existing extradition legislation but, arguably, the most important is new. To be certain that the requested person's human rights are fully considered and safeguarded, we have included specific bars to extradition on human rights grounds in both Part 1 and Part 2 of the Bill—in Clauses 21 and 88 respectively. I have already mentioned Clause 21, but the same safeguards are reflected in Clause 88.
Those clauses are quite unambiguous. They provide that the judge must refuse to extradite a person if the extradition would be incompatible. Not only does that protect against the infringement of individual rights in this country, but ECHR case law has clearly established that these obligations extend to the likely fate of the fugitive if he is extradited. If there is a significant risk that his ECHR rights will be breached once returned to the requesting state, we cannot extradite him.
That is a very important point, and a reminder of the key jurisprudence might assist your Lordships. The key case in this regard is that of Soaring. The European Court of Human Rights in its judgment in that case said:
"It would hardly be compatible with the underlying values of the convention, were a contracting party knowingly to surrender a fugitive to another State where there were substantial grounds for believing that he would be in danger of being subjected to torture, inhuman or degrading treatment or punishment, however heinous the crime allegedly committed. Extradition in such circumstances would be plainly contrary to the spirit and intent of Article 3".
In respect of Article 3 of the convention, the court went on to say:
"The decision by a Contracting State to extradite a fugitive may give rise to an issue under Article 3, and hence engage the responsibility of that State under the Convention, where substantial grounds have been shown for believing that the person concerned, if extradited, faces a real risk of being subjected to torture or to inhuman or degrading treatment or punishment in the requesting country".
The court went on similarly to explain that Article 6 issues could arise in extradition proceedings when there was a significant risk of the denial of a right to a fair trial in the requesting state. I shall take up the point made by the noble Viscount, Lord Bledisloe: if Germany were to change in the way that it changed in the 1930s, the judge dealing with the case on an individual basis—they are skilled, and we have dealt with that matter—would have to examine the facts of the case, examine Article 21, examine the evidence produced before the court and decide whether the rights of that person, in those circumstances and on that evidence, were guaranteed in accordance with the ECHR and the Human Rights Act 1998. Any judge who did not discharge his or her independent duty in each individual case would renege on that duty. I do not believe that we need fear for the honour and integrity of our judges: they will do it.
We should be in no doubt that, when they come before our courts, fugitives will have an opportunity to be represented. They will be advised appropriately, and legal aid will be made available. The issues can be brought before the court. The hard-pressed solicitor may be hard-pressed on the first occasion on which he comes to court but, usually, he is able to draw breath before the substantive hearing and give expression to his client's rights, ably assisted—usually—by counsel employed for that purpose.
That brings me neatly to the amendment. It has four parts, and I shall deal with each in turn. The first part would require a district judge to have particular regard to Article 6.3 of the ECHR. As I am sure your Lordships are aware, Article 6.3 guarantees the right to a fair trial and refers to minimum rights. I reiterate: Article 6.3 is only one part, and the rest of Article 6 is of equal importance. They are all important rights, but I cannot see why that article must be singled out.
As I said, those representing fugitives will, doubtless, seek to argue that extradition should be barred on ECHR grounds generally. In many cases, their submissions will be built on likely breaches of Article 6.3, but there will be times when it is argued that extradition will lead to a breach of Articles 2, 3, 4, 5 or 6.2, to name but a few. Each of those would be a serious matter, and the district judge would need to give all such arguments serious consideration, whichever article was referred to. I do not see why we should make particular reference to one article. It almost suggests that potential breaches of other articles would be a lesser matter. They are not. I am sure that it is no part of the intention of the noble Lord, Lord Goodhart, or of other noble Lords who spoke to press the issue in that way, but that would be the inadvertent effect. We should trust the judges to deal with the matter properly.
The second limb of the amendment would enable the judge to accept a written assurance from the requesting state that the person's rights under Article 6.3 will be properly observed if he is extradited. Apart from the general point that we should not single out Article 6.3, I think that that would be an unnecessary provision, as it would already be allowed.
Under the Bill, it is open to both sides—the fugitive and the requesting state—to make representations to the district judge on the ECHR question, to advance arguments and to present evidence, written or otherwise. In accordance with normal practice, the district judge will weigh up the evidence and arguments put before him and reach a decision. In the course of that, it is open to the requesting state to submit evidence to the judge—in writing, if he wants—about its procedures or any other matter in an attempt to demonstrate that the person will indeed receive a fair, ECHR-compliant trial. The judge will decide how much weight to attach to such assurances. Again, I cannot see what the second limb adds.
The last limb of the amendment would require the Secretary of State to monitor proceedings, once the person had been returned. A moment's thought should demonstrate that that presents serious practical difficulties. Quite apart from the costs involved, we should consider the basis on which the monitoring could be carried out. How would the monitors decide whether ECHR rights had been upheld? I fail to see how it would work.
The amendments also ignore the fact that the United Kingdom has had extradition relations with countries throughout the world for more than a hundred years. We conduct a large proportion of our extradition traffic with EU member states, and we have not previously thought it necessary for the Secretary of State to monitor their internal systems. If the situation in countries to which we already extradite were as bad as some imply, we would have stopped extraditing to them.
For the United Kingdom unilaterally and directly to monitor other EU member states' judicial systems, whether generally or specifically in extradition cases, would be a flagrant abuse of their sovereignty. I am sure that your Lordships appreciate that the United Kingdom would take great exception to other countries taking such drastically intrusive measures in respect of procedures in this country. I wonder how we would feel if, every time we got someone back from another country, he was accompanied by an official representative of that country checking to see whether our criminal justice procedures were up to scratch. Some in the Chamber might take mild offence at that.
I doubt that such provisions will be necessary. We must bear it in mind that no two cases are the same. I understand why noble Lords want to put the new clause into the Bill, but I disagree fundamentally with it. It would not inure to the advantage of the accused person; it would not inure to the advantage of the system; and it might lead many to err in believing that Article 6.3 was the only part of the ECHR with which they needed to concern themselves. That would be a tragedy, because it would be wholly and unacceptably wrong.
My Lords, I shall start my reply by dealing with two or three points made by those other than the Minister who spoke in the debate.
First, the noble Viscount, Lord Bledisloe, asked me whether it was intended that the judge should have a discretion under subsection (2) of the new clause. For the reasons explained by the noble and learned Lord, Lord Donaldson of Lymington, there would be a discretion.
The noble Viscount also asked whether subsection (4) should make it mandatory or optional for the Secretary of State to provide for monitoring of the trials. In principle, it would be appropriate that it should be mandatory for there to be some form of monitoring. We need to have a check to see whether assurances are being complied with, so that we do not keep on sending people to countries on the basis of assurances that are not complied with. If it were to make the difference as to whether the Government would accept the amendment—clearly, that is not the case—I would be willing to agree to its being made optional, rather than mandatory.
I agree with the noble Lord, Lord Lamont of Lerwick, on the importance of the euro-bail system. It would be an enormous step forward if people who were arrested abroad, instead of being remanded to local prisons for a considerable time because of fears that they would disappear off home, could get their bail on the basis of a guarantee from the country in which they live that they will be returned. I raised that issue in an amendment tabled in Grand Committee, but it seems to be outside the scope of the Bill, as it applies not only to people who have been extradited but, more importantly, to people who have been arrested and detained in the country in which the offence was allegedly committed. There is some doubt whether it even falls within the Long Title of the Bill, so I thought it inappropriate to press the issue further at this stage.
I now turn to what the Minister said. She argued forcefully but not, when one considers the matter, entirely convincingly against the amendment. It is true that we do not say that some provisions of the Human Rights Act or the European Convention on Human Rights have greater importance than others. However, some are more likely to be relevant than others. When we are dealing with member states of the European Union, on the whole, general rights are usually observed—for example, the right to freedom of conscience, the right to freedom of religion, the right to freedom of expression and assembly; and the right to freedom of speech, and so on. Article 6, in general, and Article 6.3, in particular, are likely to be especially relevant.
The noble Baroness said that we do not need to include these provisions because the European convention will be observed and there does not need to be any special reference to it. I am not sure that that fits altogether clearly with what the Government have done in Clause 13, which deals with extraneous considerations where one of the grounds on which extradition is barred is that the warrant is,
"issued for the purpose of prosecuting [someone] on account of his race, religion, nationality or political opinions".
We have now added further qualifications to that through an earlier amendment.
All those considerations seem to be caught by the European convention. On its own, Clause 21 would be enough to block that even without Clause 13. In our belief, the Government, rightly, thought it appropriate to draw particular attention to the matter, but that is inconsistent with their objection to what we are doing now.
The Minister asked how monitors could decide whether the European Convention on Human Rights had been complied with. If they are there, monitors could observe the standard of interpretation being used and observe whether the parties of the people being extradited are able to obtain competent legal aid. That certainly is within the bounds of possibility of monitoring.
Finally, the noble Baroness said that we would object to other countries checking to determine whether criminal procedures are up to scratch. If there is anything like Clause 21 in other countries, we may find people from those countries checking on the court procedure here to use as a basis for a refusal of extradition in their home country. I hope that that will not be the case. I have little doubt that any such application would be rejected, but it certainly is a possibility.
This is an important amendment. I do not think that the Government have produced a satisfactory answer. I wish to test the opinion of the House.
Resolved in the affirmative, and amendment agreed to accordingly.
Clause 22 [Person charged with offence in United Kingdom]:
[Amendment No. 75 not moved.]
Clause 23 [Person serving sentence in United Kingdom]:
[Amendment No. 76 not moved.]
Clause 24 [Extradition request]:
[Amendment No. 77 not moved.]
Clause 25 [Physical or mental condition]:
[Amendment No. 78 not moved.]
Clause 26 [Appeal against extradition order]:
[Amendment No. 79 not moved.]
Clause 27 [Court's powers on appeal under section 26]:
[Amendment No. 80 not moved.]
Clause 28 [Appeal against discharge at extradition hearing]:
[Amendment No. 81 not moved.]
Clause 29 [Court's powers on appeal under section 28]:
[Amendment No. 82 not moved.]
Clause 30 [Detention pending conclusion of appeal under section 28]:
[Amendment No. 83 not moved.]
Clause 31 [Appeal to High Court: time limit for start of hearing]:
moved Amendment No. 84:
Page 14, line 12, after "period" insert "(the relevant period)"
My Lords, I hope that I shall not detain the House too long in moving Amendment No. 84 and speaking to Amendments Nos. 85 to 87. They should not cause any great difficulty.
As the Bill is drafted, the main extradition hearing must begin within a fixed period of the date of arrest, but this can be extended where circumstances deem it appropriate. The appeal hearing too must begin within a set period after arrest, but there is no facility to extend the period. Clearly these arrangements could cause problems if the start of the extradition hearing has been postponed. The amendments remedy that potential difficulty by allowing the start of the appeal hearing to be put back.
I wish to draw attention to one further point. Noble Lords will recall that we earlier discussed what test should be applied by the judge when deciding to postpone the extradition hearing. I indicated that the Government were happy to go along an "interests of justice" test, and we shall bring forward amendments to that purpose. Noble Lords will note that we have already adopted that formulation in these amendments, as I telegraphed earlier.
I trust that the amendments will find the agreement of the House. I beg to move.
moved Amendments Nos. 85 to 87:
Page 14, line 14, after first "the" insert "relevant"
Page 14, line 19, after fourth "the" insert "relevant"
Page 14, line 19, at end insert—
"(3A) The High Court may extend the relevant period if it believes it to be in the interests of justice to do so; and this subsection may apply more than once.
(3B) The power in subsection (3A) may be exercised even after the end of the relevant period."
On Question, amendments agreed to.
[Amendment No. 88 not moved.]
[Amendment No. 89 not moved.]
Clause 33 [Powers of House of Lords on appeal under section 32]:
[Amendment No. 90 not moved.]
Clause 34 [Appeals: general]:
[Amendment No. 91 not moved.]
Clause 35 [Extradition where no appeal]:
[Amendment No. 92 not moved.]
Clause 36 [Extradition following appeal]:
[Amendment No. 93 not moved.]
Clause 37 [Undertaking in relation to person serving sentence in United Kingdom]:
moved Amendment No. 94:
Page 18, leave out lines 34 and 35 and insert—
"(6) Subsections (7) and (8) apply if the judge makes an order for extradition subject to a condition under subsection (3).
(7) If the judge does not receive the undertaking before the end of the period of 21 days starting with the day on which he makes the order and the person applies to the appropriate judge to be discharged, the judge must order his discharge.
(8) If the judge receives the undertaking before the end of that period—"
My Lords, in moving Amendment No. 94, I shall speak at the same time to Amendment No. 247. Again, I hope that these relatively simple amendments will find the agreement of noble Lords. The Bill allows us for the first time to extradite serving UK prisoners on a temporary basis to stand trial abroad.
I am sure that noble Lords will see the benefits of this. Let us imagine that someone is serving a very long sentence in the United Kingdom—perhaps even a life sentence—but is also accused of a very serious offence abroad. As things currently stand, we cannot extradite the person to stand trial until they have completed their United Kingdom sentence, which could be many years later. By that time, witnesses to the foreign crime may have died or their memories faded, while the victims of the crime will be denied swift justice.
I am sure that noble Lords will agree that a provision allowing for the temporary transfer of prisoners to stand trial is a welcome step forward. However, in all probability we shall be dealing with serious and potentially dangerous criminals here. To put it mildly, it would be most unfortunate if we were to transfer a prisoner abroad to stand trial and he or she were to be given bail and promptly disappear.
Accordingly, the clauses in the Bill dealing with temporary transfer allow for extradition to be made conditional on an appropriate undertaking being received. Such an undertaking would include an assurance that the person will be kept in custody while abroad and that they will be returned to the United Kingdom at the completion of the foreign trial.
All that is so far, so good, but when we looked at the Bill again over the summer, we realised that it contained nothing about what should happen if no undertaking was received. I hasten to add that we do not think there will be any difficulty in securing the necessary undertaking, but nevertheless we need to cater for the situation where it is not provided.
That is what these amendments seek to achieve. They provide that if no undertaking has been received within 21 days, the person can apply to the judge or the High Court for discharge under the extradition request. Such an application must always be approved. Obviously the potentially offending person would continue to serve their United Kingdom sentence, but they would not be liable for extradition.
I hope that I have been able to explain why these amendments are sensible and necessary, and I invite noble Lords to agree to them. I beg to move.
My Lords, this group of amendments deals with the provisions in the Bill relating to the difficult situation when the two issues of extradition and asylum come together. As I explained in Grand Committee—and, indeed, as my honourable friends in another place explained—the Government are very aware of the fundamental principles involved in this complex scenario.
The asylum systems and procedures in this country have been subject to a certain amount of abuse, which the Government continue to make great efforts to reduce. It is also the case that the asylum system has been used ostensibly as a means to frustrate the extradition process. It is for this reason that, when the Bill was introduced some months ago, we included provisions specifically to deal with this issue.
Naturally, the aim was, and remains, that the asylum system should not be vulnerable to abuse with the intent to delay or frustrate lawful extradition. At the same time, the Government are also clear that a person who genuinely is in danger of persecution should not be prevented from having the opportunity to seek refuge.
However, immigration and asylum law has developed significantly since the Extradition Bill was introduced in another place in November last year. Provisions of the Nationality, Immigration and Asylum Act 2002 have now come into force, which have brought with them considerable change. These amendments are therefore designed to reflect the current situation and bring the provisions in line with the Government's wider strategy and objectives on asylum.
Amendments Nos. 98, 99, 248 and 249 bring Clauses 39 and 121 in line with the approach of Section 109 of the Nationality, Immigration and Asylum Act 2002. Section 109 makes provision for regulations to be made specifically about appeal rights against an immigration decision taken in respect of a person who has a right under any of the Community treaties. To put it simply, we are talking about the modification of appeal rights for immigration decisions relating to European Union and European Economic Area nationals.
The Extradition Bill needs to allow for the same approach, and this is what these amendments do. I should stress that no regulations could be made on this subject under the Extradition Bill; it is simply a question of reflecting the approach of the existing immigration legislation and allowing any related regulations to take effect.
The effect of Amendment No. 100 is to remove the existing provisions relating to certifying "clearly unfounded" asylum claims in Part 1 extradition cases. We do not believe that these are now appropriate in light of the other changes being made and the revised approach to the subject.
I know that this has been an issue of particular interest to the noble Lord, Lord Goodhart, as he explained in Grand Committee. I repeat what we have said at every stage on this subject—namely, that the Government remain committed to their obligations under the refugee convention and to the fundamental right of the individual to seek protection where and when it is necessary.
Amendments Nos. 97 and 102 relate to a person claiming asylum in respect of a third country. Your Lordships will notice that this applies only in Part 1 cases. Therefore, this would apply where a non-EU national claims asylum, after a Part 1 warrant has been received for his extradition, in respect of his country of origin. The effect of this is that a pending asylum claim will not bar extradition where the country requesting the person's extradition has responsibility for that person's asylum claim and refugee status.
This is commonplace in existing immigration and asylum legislation and our agreements with other member states. This approach reflects Sections 11 and 12 of the Immigration and Asylum Act 1999, as amended by Section 80 of the NIA Act 2002.
Amendments Nos. 250 and 310, in conjunction with Amendment No. 100, are purely drafting changes and remove interpretative provisions currently repeated in both Part 1 and Part 2. In their place a single interpretative provision is inserted in Part 5 of the Bill.
Amendments Nos. 291, 292, 326 and 327 remove the existing provisions relating to new appeals procedures in the situation where extradition and asylum meet. We believe that this system is no longer appropriate, as I explained earlier, in view of the Government's wider strategy on immigration and asylum. We believe that it is preferable to adapt the existing immigration and asylum appeals processes in order to reflect the traditional roles of the relevant appellate authorities.
I am grateful to the noble Earl, Lord Mar and Kellie, for tabling Amendments Nos. 290A, 290B and 291A to 291G in regard to these provisions. However, if your Lordships agree to the removal of Clauses 188 and 189 it will render those amendments otiose.
These amendments represent a positive revision of the provisions originally included in the Bill. The Government have taken great steps, both in legislation and procedure, to tackle abuse of the asylum system while maintaining protection for those who need it. We have made it clear that we intend to deal robustly with spurious or unfounded asylum claims. This applies whether the intention of the claim is general abuse of the asylum system or whether it is specifically to delay or frustrate extradition.
I know that these are issues in which others are interested and I thought it right to take some little time to explain the Government's reasoning for the amendments. I beg to move.
My Lords, as trailed by the noble Baroness, my Amendment No. 290A is in this group. This amendment, which was inspired by the Law Society of Scotland, seeks to ensure that the correct Scottish court is named in the Bill when referring to an appeal against rejection of an asylum claim in Scotland.
In Clause 212(8), the Bill refers to the "High Court" as being the "High Court of Justiciary". However, in Clause 188(4), the Bill states that a person will have a right of appeal to the "High Court". In the Scottish context, this would mean the High Court of Justiciary—an obviously criminal court which does not deal with civil matters. The correct and corresponding Scottish court would be the Court of Session.
In support of this, Section 103 of the Nationality, Immigration and Asylum Act 2002 places immigration appeals with the Court of Session. The amendment would ensure consistency and identify the Court of Session as the correct court in Scotland for an appeal.
moved Amendments Nos. 98 to 100:
Page 19, line 34, at end insert—
Page 19, line 36, after "if" insert "there is such a right but"
Page 20, line 5, leave out subsections (9) to (11).
On Question, amendments agreed to.
[Amendment No. 101 not moved.]
moved Amendment No. 102:
After Clause 39, insert the following new clause—
(1) Section 39(3) does not apply in relation to a person if the Secretary of State has certified that the conditions in subsection (2) or the conditions in subsection (3) are satisfied in relation to him.
(2) The conditions are that—
(a) the category 1 territory to which the person's extradition has been ordered has accepted that, under standing arrangements, it is the responsible State in relation to the person's asylum claim;
(b) in the opinion of the Secretary of State, the person is not a national or citizen of the territory.
(3) The conditions are that, in the opinion of the Secretary of State—
(a) the person is not a national or citizen of the category 1 territory to which his extradition has been ordered;
(b) the person's life and liberty would not be threatened in that territory by reason of his race, religion, nationality, political opinion or membership of a particular social group;
(c) the government of the territory would not send the person to another country otherwise than in accordance with the Refugee Convention.
(4) In this section—
"the Refugee Convention" has the meaning given by section 167(1) of the Immigration and Asylum Act 1999 (c. 33);
"standing arrangements" means arrangements in force between the United Kingdom and the category 1 territory for determining which State is responsible for considering applications for asylum."
On Question, amendment agreed to.
Clause 40 [Withdrawal of warrant before extradition]:
My Lords, in moving Amendment No. 103, I shall speak also to Amendment No. 110. I can be brief.
The amendments pick up on a suggestion made by my noble and learned friend Lord Mayhew when we were discussing in Grand Committee the means by which a defendant would be informed of the withdrawal of a warrant for his arrest under Clause 40. My noble and learned friend drew the Committee's attention to the fact that the drafting of Clause 40(3) is somewhat bald. Subsection (1) sets out the circumstances under which the clause applies—that is, when, at any time during the relevant period, the designated authority withdraws its Part 1 warrant—and subsection (2) goes on to define the relevant period. All that subsection (3) states is that,
"The judge must order the person's discharge".
My noble and learned friend suggested that,
"it would be more elegant and appropriate if those words were to be preceded by the words 'where this section applies'".—[Official Report, 1/7/03; col. GC 175.]
We seek to apply that rationale to Clause 43(4) as well. We hope that the Minister will accept our constructive criticism of the drafting. I beg to move.
My Lords, I thank the noble Baroness for outlining the genesis of the amendment. She is right to say that it has been inspired by the noble and learned Lord, Lord Mayhew of Twysden. It causes me displeasure to disagree with him because it has been my pleasure to agree with him on a number of other occasions.
The Bill as drafted is right. Clauses 40 and 43 both begin with the words, "This section applies". We do not consider that anyone could really believe that Clauses 40(3) and 43(4) could apply in circumstances other than those described in subsection (1) of each clause. More to the point, the "this section applies" formulation is used throughout the Bill. None of the clauses in which it appears go on in the substantive subsections to say "where this section applies". So the inclusion of those words in Clauses 40(3) and 43(4) would be inconsistent with the rest of the Bill and might give rise to confusion.
As I am sure the noble and learned Lord—who is not in his place—knows better than most, it is a cardinal principle of parliamentary drafting that unnecessary words should never be included in legislation, as some day a court will assume that they were there for a reason. I think it was one of his own injunctions, which he gave us on a number of occasions, that we should expunge unnecessary words whenever necessary, and we have taken that advice very much to heart.
I can assure the noble and learned Lord and the noble Baroness that we have considered the suggestion very carefully, but we are satisfied that there is no ambiguity or possibility of confusion. I hope that when he comes to read this, the noble and learned Lord will accept that, and I invite the noble Baroness to withdraw the amendment.
My Lords, I am grateful to the Minister for the care she has taken in giving that answer. She has certainly satisfied me in her assurances; I only hope that I satisfied my noble and learned friend in bringing these amendments forward. He was unavoidably unable to attend today, so I was prepared to move the amendment on his behalf. We will be disappointed, but for the right reasons, because I accept the noble Baroness's assurances. Looking at the Marshalled List, I think I might be happier on the next group of amendments. I beg to ask leave to withdraw the amendment.
moved Amendment No. 104:
Page 20, line 26, at end insert "as soon as practicable"
My Lords, I can be very brief with these simple amendments. They should be familiar to the noble Baroness, Lady Anelay, as the first three are identical to amendments which she graciously tabled at Grand Committee. In responding, my noble friend Lord Filkin said we would be happy to bring forward amendments for the same purpose, and that is what we have done.
When an extradition request is withdrawn, the person must be discharged and, if he is not actually before the judge, he must be informed that this has happened. These amendments simply require him to be informed as soon as possible. If any of your Lordships can find a reason to object to that, I shall be both amazed and impressed. I beg to move.
moved Amendment No. 108:
Page 21, line 19, at end insert "as soon as practicable"
On Question, amendment agreed to.
[Amendment No. 109 not moved.]
[Amendments Nos. 110 and 111 not moved.]
Clause 44 [Consent to extradition]:
[Amendment No. 112 not moved.]
Clause 45 [Extradition order following consent]:
[Amendment No. 113 not moved.]
Clause 46 [Extradition to category 1 territory following consent]:
[Amendment No. 114 not moved.]
Clause 47 [Other warrant issued following consent]:
[Amendment No. 115 not moved.]
Clause 48 [Other warrant issued: extradition to category 1 territory]:
[Amendment No. 116 not moved.]
Clause 49 [Other warrant issued: proceedings deferred]:
[Amendment No. 117 not moved.]
Clause 50 [Extradition request following consent]:
[Amendment No. 118 not moved.]
Clause 51 [Undertaking in relation to person serving sentence ]:
[Amendment No. 119 not moved.]
Clause 52 [Extradition following deferral for competing claim]:
[Amendment No. 120 not moved.]
Clause 53 [Request for consent to other offence being dealt with]:
My Lords, this group of amendments probably sets the record for the largest number of amendments in a single group, but I think it makes sense to treat them all together since they relate to a common subject. The subject is what is termed "post-extradition"—that is, what happens to a person after they have been extradited from the United Kingdom to another country.
By virtue of the rule of speciality, the country to which the person was extradited can try or punish the person only for the offence or offences for which he or she was extradited. If they want to try them for an additional offence, they need to seek our consent. Similarly, if the country concerned wants to re-extradite them to a third country, they also need to seek our consent. It is the clauses dealing with how we receive and handle such requests for consent to which these amendments relate.
It is worth pointing out that speciality waiver and re-extradition requests are extremely rare. Nevertheless, I am sure that your Lordships will agree that it is important that the Bill should set out clearly the procedure that should apply.
With that preamble, perhaps I could explain what these various amendments actually do. They serve a number of purposes. Amendments Nos. 121, 122, 126, 134, 136, 256, 257, 261, 262, 266 and 267 make it clear that the post-extradition regime to be applied is determined by the status of the territory at the time of extradition.
Amendments Nos. 123, 129, 137, 258, 263, 268 and 305 give effect to a commitment that we made in Committee by requiring the person concerned to be notified if any such request has been received. The rules on notification are copied from rule 99 of the magistrates' court rules governing the service of summons. It was the official Opposition who first suggested that we should have a requirement of this kind, and I am glad that we have been able to find a way of achieving this.
Amendments Nos. 124 and 130 simplify the drafting of the Bill to make it clear that if a hearing for consent to speciality waiver or re-extradition has not begun by the due date, consent must be refused. This will make life easier for the person who will no longer in those circumstances have to show any reason why consent should be refused.
Amendments Nos. 127 and 132 make it clear that, in accordance with normal extradition practice, speciality protection and protection against re-extradition only apply for 45 days after the person is at liberty to leave the country. Otherwise we might have the ridiculous situation in which we extradite a person back to his home country and then 30 years later that country wants to re-extradite him and requires our permission. Once the person has had a reasonable opportunity to leave the country, our interest in him ceases.
Amendments Nos. 135 and 138 to 144 are concerned with the case where we have extradited a person to a Part 1 country which then wants to re-extradite him to a Part 2 country. The amendments bring the procedure into line with that which applies when a person is re-extradited to a Part 2 country which then wants to re-extradite him to another Part 2 country. This makes the Bill far more internally consistent.
Finally, Amendments Nos. 259, 260, 264 and 265 give effect to a commitment made in Committee by specifying more precisely the matters which the Secretary of State must take into account when considering any such request. Again, this follows a suggestion made by the Opposition at Grand Committee.
That is what these amendments do. I hope that I have been able to demonstrate that they improve the drafting of the Bill without being particularly contentious. I beg to move.
My Lords, I welcome these amendments, which give effect to the Government's commitment to consider the points that were made at Grand Committee. I have one question for further elaboration, if the Minister can answer it today. It is with reference to Amendment No. 123. I am not objecting to the amendment—far from it. It is merely to get some further explanation.
The Government have, quite rightly, put it on the face of the Bill that the judge has to serve notice on the person that he has received a request for consent unless he is satisfied that it would not be practicable to do so. Could the Minister give the House a flavour of the circumstances in which it might not be practicable to do so? If it is too difficult a question to answer now, that worries me slightly, as this is the Government's drafting.
My Lords, the circumstances in which the judge would be concerned might be rather special. That is why the clause has been drafted in such a way. Rather than mutter through this at the Dispatch Box, I would prefer to drop the noble Baroness, Lady Anelay, a line about it. As I am sure she will appreciate, the circumstances will be rather specific and special, which is why the question of practicality arises.
My Lords, I am sure that this is an elementary point and that I have misread the amendment, but as I understand it, it removes the words "category 1" in line 34. I do not see what difference that makes. The clause will apply if,
"a person is extradited to a category 1 territory in respect of an offence", and,
"the appropriate judge receives a request for consent to the person being dealt with in the category 1 territory for another offence".
What other country could it be other than a category 1 country? But I may be quite wrong.
My Lords, I believe that it could be the case that it is a category 2 country, but I shall have to reread my notes carefully if the noble and learned Lord wants an answer today.
My Lords, I shall happily afford the noble and learned Lord an explanation if I am wrong, but I believe it to be as I explained it.
moved Amendments Nos. 122 to 124:
Page 26, line 38, leave out "category 1"
Page 26, line 42, at end insert—
"(3A) The judge must serve notice on the person that he has received the request for consent, unless he is satisfied that it would not be practicable to do so."
Page 27, line 9, leave out from beginning to "must" in line 10 and insert "the judge does not exercise the power in subsection (5) to extend the period, he"
On Question, amendments agreed to.
[Amendment No. 125 not moved.]
Clause 54 [Questions for decision at consent hearing]:
moved Amendments Nos. 126 and 127:
Page 27, line 16, leave out "category 1"
Page 27, line 31, at end insert—
"(8) Consent is not required to the person being dealt with in the territory for the offence if the person has been given an opportunity to leave the territory and—
(a) he has not done so before the end of the permitted period, or
(b) if he did so before the end of the permitted period, he has returned there.
(9) The permitted period is 45 days starting with the day on which the person arrived in the territory following his extradition there in accordance with this Part.
(10) Subject to subsection (8), the judge must decide whether consent is required to the person being dealt with in the territory for the offence by reference to what appears to him to be the law of the territory or arrangements made between the territory and the United Kingdom."
On Question, amendments agreed to.
[Amendment No. 128 not moved.]
Clause 55 [Request for consent to further extradition to category 1 territory]:
moved Amendments Nos. 129 and 130:
Page 28, line 4, at end insert—
"(3A) The judge must serve notice on the person that he has received the request for consent, unless he is satisfied that it would not be practicable to do so."
Page 28, line 13, leave out from beginning to "must" in line 14 and insert "the judge does not exercise the power in subsection (5) to extend the period, he"
On Question, amendments agreed to.
[Amendment No. 131 not moved.]
Clause 56 [Questions for decision at consent hearing]:
moved Amendment No. 132:
Page 28, line 36, at end insert—
"(8) Consent is not required to the person's extradition to the other territory for the offence if the person has been given an opportunity to leave the requesting territory and—
(a) he has not done so before the end of the permitted period, or
(b) if he did so before the end of the permitted period, he has returned there.
(9) The permitted period is 45 days starting with the day on which the person arrived in the requesting territory following his extradition there in accordance with this Part.
(10) Subject to subsection (8), the judge must decide whether consent is required to the person's extradition to the other territory for the offence by reference to what appears to him to be the arrangements made between the requesting territory and the United Kingdom."
On Question, amendment agreed to.
[Amendment No. 133 not moved.]
Clause 57 [Consent to further extradition to category 2 territory]:
moved Amendments Nos. 134 to 144:
Page 28, line 39, after "territory" insert "(the requesting territory)"
Page 29, line 1, leave out "appropriate judge" and insert "Secretary of State"
Page 29, line 6, leave out "category 1" and insert "requesting"
Page 29, line 10, at end insert—
"(3A) The Secretary of State must serve notice on the person that he has received the request for consent, unless he is satisfied that it would not be practicable to do so."
Page 9, line 11, leave out "judge" and insert "Secretary of State"
Page 29, line 13, leave out "judge" and insert "Secretary of State"
Page 29, line 14, at end insert—
"(5A) If the Secretary of State decides that question in the affirmative he must decide whether the appropriate judge would send the case to him (for his decision whether the person was to be extradited) under sections 80 to 92 if—
(a) the person were in the United Kingdom, and
(b) the judge were required to proceed under section 80 in respect of the offence for which the Secretary of State's consent is requested.
(5B) If the Secretary of State decides the question in subsection (5A) in the negative he must refuse his consent."
Page 29, line 15, leave out "judge" and insert "Secretary of State"
Page 29, line 15, leave out from "whether" to "if" in line 26.
Page 29, line 30, leave out "must" and insert "may"
Page 29, line 33, leave out from beginning to "to" in line 34 and insert "This section applies in relation to any function which falls under this section to be exercised in relation to Scotland only as if the references in this section"
On Question, amendments agreed to.
[Amendment No. 145 not moved.]
Clause 58 [Return of person to serve remainder of sentence]:
moved Amendment No. 146:
Page 30, line 3, at end insert—
"(5) But subsection (4) does not apply if—
(a) the person was extradited for the purpose of being prosecuted for an offence, and
(b) the person has not been convicted of the offence or of any other offence in respect of which he was permitted to be dealt with in the category 1 territory.
(6) In a case falling within subsection (5), time during which the person was not in the United Kingdom as a result of his extradition counts as time served by him as part of his sentence only if it was spent in custody in connection with the offence or any other offence in respect of which he was permitted to be dealt with in the territory."
On Question, amendment agreed to.
[Amendment No. 147 not moved.]
Clause 59 [Costs where extradition ordered]:
[Amendment No. 148 not moved.]
Clause 60 [Costs where discharge ordered]:
[Amendment No. 149 not moved.]
Clause 61 [Costs where discharge ordered: supplementary]:
[Amendment No. 150 not moved.]
Clause 62 [Documents sent by facsimile]:
moved Amendment No. 151:
Page 31, line 37, leave out "Part" and insert "Act"
My Lords, the amendments are technical and are based on existing precedents in relation to documentation. Unlike many of the government amendments that we are discussing today, the purpose of this group is not immediately apparent, so I shall endeavour to explain what they are for.
The amendments are all concerned with the receivability of evidence. The Bill provides in both Parts 1 and Part 2 that fax documents can be received in evidence. It also specifies, in Part 2, that duly authenticated documents can be received in evidence. However, there is no corresponding general provision in Part 1, which is clearly an oversight. The main purpose of the amendments is to remedy that. They do that by inserting a new clause, based on the existing Clause 137, but applicable to the whole Bill. That is what Amendment No. 301 achieves. Accordingly, Clause 137 is no longer needed, which is why we are seeking to remove it. Since evidential matters are now going to be dealt with at the end of the Bill, we are taking the opportunity to move Clauses 62 and 63 there and to apply them to the whole of the Bill. That in turn allows us to repeal Clause 136.
All of the foregoing is concerned with evidence from abroad, but it is also possible that evidence obtained in this country could be needed. For example, when determining the question of identity, it is perfectly possible that fingerprints taken from the person at the time of his arrest in this country could be important evidence. So we need rules to govern receivability of domestic evidence and, to provide for that, we have drawn from domestic legislation.
Amendment No. 302 applies Sections 9 and 10 of the Criminal Justice Act 1967 to extradition proceedings, and its Northern Ireland equivalent for cases in the Province. Section 9 allows for written statements to be adduced where there is no objection from other parties, while Section 10 allows for formal admissions to be made.
I have sought to explain in simple terms what the amendments do. I reiterate that, in respect of evidence from overseas, they allow Part 1 warrants and duly authenticated documents issued in either category 1 or category 2 territories to be received in any proceedings under the Bill. In respect of domestic evidence, they apply the normal domestic rules. They also tidy up the drafting of the Bill by removing some of the duplication which is not strictly needed. I hope that your Lordships will see why this is a sensible way to proceed and will feel able to agree to these amendments as good housekeeping. I beg to move.
moved Amendment No. 152:
Page 31, line 40, leave out subsection (3).
On Question, amendment agreed to.
[Amendment No. 153 not moved.]
My Lords, in speaking to Amendment No. 159, I wish to speak also to Amendment No. 169. The amendment provides that the exclusion of dual criminality applies only to territories party to the European framework decision. Other states would then be able to get the benefits of the fast-track procedure described by Part 1, but would be subject to the dual criminality rule.
There are two reasons for proposing the amendment. First, other states will have no say in the amendments to the European framework decision, but will be bound by them—so they are not simply looking at it as it is now. Secondly, the abolition of the dual criminality requirement is, of course, controversial and, therefore, may act as a barrier rather than as an encouragement to other states wishing to move to category 1, which the United Kingdom would be willing to admit to category 1 if able to do so.
We would not object to a provision that would enable non-European-Union states to accept the abolition of the dual criminality list for all or some of the offences in the schedule. However, they should not be required to accept the entire list as a condition for admission to category 1 status. I beg to move.
My Lords, I rise to support these amendments to which I added my name. As the noble Lord, Lord Goodhart, made clear, we have considerable reservations about the appropriateness of designating new states as category 1 territories, and so relaxing the controversial issue of dual criminality—as he referred to it—for the European framework list, when those countries have not signed up to the framework decision. It is certainly controversial for these Benches.
In Committee, the Minister stated that she did not see why we felt that our Commonwealth countries, Australia, New Zealand and Canada, might not at some stage in the future be appropriate category 1 countries. We do not dispute the possibility that they may indeed be appropriately category 1 countries in the future; we are not at variance with the Government on that, particularly when the Government brought forward on the first day of Report amendments which made the designation of countries subject to the affirmative procedure and moved from the Orders in Council procedure to the Secretary of State procedure. We consider that is the appropriate parliamentary process. That is a significant step forward. However, here we are asking the Government to justify the advisability of allowing non-EU countries to be party to the relaxation of dual criminality which is part of a framework decision to which they are not themselves party. I argued this point when speaking to earlier amendments of mine which were grouped with the Government's when they made the change from negative to affirmative orders. Therefore, I shall not press the point further.
My Lords, I thank the noble Lord, Lord Goodhart, and the noble Baroness for drafting the amendment in the way that they did as it clarifies the areas which need to be addressed.
We believe that those countries which are justified in expecting to move from category 2 to category 1 should have the advantage of all the benefits of category 1 status, or not be so moved. The advantage of category 1 status is a relaxation, a coming together and being in comity with one another on those principles. It would only be when those countries are in an alignment—similar to the alignment that we have with our EU partners—that we would be likely to say that they would be entitled to move to category 1. Thereafter, we would return to both Houses to relate the changes that had taken place and to explain the way in which those countries had aligned themselves with us. As a result, they would justify a movement from category 2 to category 1. Once they are in category 1, they should share the same benefits as all the other category 1 partners; otherwise, we would have category "1A". Having created a new premier division, I suppose that category 1 countries would be first division and category 2 countries would be second division. However, that is not how we view the position: either countries should join us and be in comity with us to such an extent that we think classification in category l is merited, or no.
That is the truncated answer to that question and I hope that noble Lords will be content with it. I know that the noble Lord, Lord Goodhart, would prefer the framework decision to be preserved so that only those who are signatories to the framework decision could participate in all those benefits, but that in effect would be tantamount to saying that no country which is outside the framework decision could or should ever be able to have the full benefit of category 1 categorisation. We do not think that is right. As I have said on a number of occasions, we do not anticipate that Australia, Canada or New Zealand will seek to be in alignment with us, but they may do so. If and when that occurs, we believe that if they justify category 1 status they should have the full benefits of that status or stay where they are currently, which is category 2.
My Lords, I am grateful to the noble Baroness. I regret that the Government are not prepared to move on this matter. However, this is not currently a live issue and will not be unless and until a consideration arises about another country outside the EU transferring from category 2 to category 1, or wishing to do so.
I am somewhat concerned that there is not some degree of flexibility here—that the state will be required absolutely to sign up to everything in the schedule although it is not bound by the framework decision. However, although I regret that, it may or may not become material in the future. That said, it is not something that I wish to press this evening. I beg leave to withdraw the amendment.
My Lords, this is an amendment which I believe is of great importance. Article 2.1 of the framework decision allows extradition for offences punishable by a maximum sentence of 12 months or more. We accept that; it represents broadly the present law. Under Article 2.1, that applies where the dual criminality rule applies.
What is novel about the European framework decision in particular is Article 2.2 which removes the requirement of dual criminality for the more serious offences—those which carry a maximum sentence of three years or more in the requesting state. That is an essential part of the European framework decision. Although noble Lords on these Benches had concerns about whether the dual criminality rule ought to be preserved in full force, ultimately we accepted the arguments for some degree of relaxation of it. However, Article 31.2 of the framework decision provides that the threshold for applying Article 2.2, and thereby removing the dual criminality requirement, may be reduced by bilateral or multilateral agreements between some or all of the states which have signed up to the framework decision.
The Government have chosen to rely on Article 31.2 and to permit a reduction of the threshold at which Article 2.2 operates—with the dual criminality rule being removed—to include offences that carry a maximum sentence of 12 months or more. We believe that that is effectively gold plating the framework decision and that it is wrong. The proposal has been criticised by Justice, Liberty, and the Home Affairs Select Committee in the other place. The Home Affairs Select Committee stated at paragraph 51 of its first report of the Current Session on the Bill:
"We can see no justification for eroding the basic level of protection provided by the framework decision and we are dismayed that the Home Office is seeking to do so".
The dual criminality rule is, of course, not pointless. The original idea no doubt was that some countries imposed harsh and repressive laws prohibiting, say, freedom of speech or freedom of assembly, which would not have been recognised in this country. There is a second reason for the dual criminality rule; namely, that a stranger to a country may not realise that what is lawful at home is not lawful abroad.
We have accepted that the dual criminality rule should be modified for the European Union. That was not an easy decision; we felt that it came close to the borderline. However, we recognise that European Union member states are parties to the European Convention on Human Rights and broadly comply with it. Therefore, the idea of a dual criminality rule as a defence against harsh and repressive laws that breach human rights is not necessary in relation to other countries in the European Union.
Of course we accept and support the principle that visitors to other countries should obey the local laws. However, people should not be extradited for relatively minor offences in the absence of a dual criminality rule. Where penalties are minor—where the maximum sentence is less than 12 months—most offences will be on the borderline of criminality. Offences committed by serious criminals such as major frauds, large-scale drug dealing and so on are almost always crimes in both the requesting and requested countries.
In those circumstances, there is no sufficient justification for the removal of the dual criminality rule. The problem of people not understanding the local law is that the risk is clearly greater with relatively minor offences where practices may vary a great deal. Something recognised in one country as legitimate, or at most subject to an action for civil damages, may be a criminal offence leading to a short prison sentence in another. For more serious offences, it is much more likely to sensible people that the activities might be regarded as crimes in another country.
The fact that we are willing to accept the exclusion of dual criminality for serious crimes does not mean that we should exclude it for lesser crimes falling within the same category. Some offences on the list can cover a very wide spectrum. For example, the 12th offence is environmental crime, which could include offences that in this country at any rate would be regarded as quite minor. Something that might come within the definition of environmental crime might carry a maximum sentence of 12 months but would not be a crime in this country.
Therefore, we should not gold-plate the European arrest warrant, but should stick to the basic requirement that the dual criminality rule is only excluded if the maximum sentence is three years or more. Lesser crimes would of course still be subject to extradition if the dual criminality rule applied.
Amendment No. 170 deals with extradition not to face charges but to complete a sentence. Articles 2.2 and 31.2 of the framework decision do not differentiate between extradition to face charges and to serve a sentence that has already been imposed. In our view, the same principle applies. Where there is dual criminality in both countries, we accept that extradition is appropriate to serve or complete a sentence of at least four months. Where there is no dual criminality, however, people should not return to serve sentences of four months. In such cases, we suggest that extradition should be imposed only when there is an actual sentence of at least 12 months.
The nature of cases where there is no dual criminality is that those matters are on the border of criminality. They are thought to be a crime in one country, but reasonably thought in other countries not to be a crime. That is not the kind of offence likely to be exploited widely by serious criminals, or to be particularly disturbing to individuals. I do not see any problem with that.
The amendment is of considerable importance. It does not involve anything inconsistent with the terms of the framework decision. We quite see that it is desirable to keep within them. The amendment would involve no breach of those terms whatever. The framework decision provides a substantial reduction of the effect of a long-standing rule applying to international extradition, and that is in itself enough.
If the removal of dual criminality for the more serious offences proves to have no problems, we could go forward to that in future. However, it is too early to take that step. At this point, we should confine ourselves only to the step provided for in Article 2.2 of the framework decision, and say that we have to be limited to that and cannot go below the maximum three-year sentence for an offence charged or a sentence of at least 12 months' imprisonment where there is a return in order to serve or complete a sentence. I beg to move.
My Lords, I added my name to the amendments and I strongly support them. I agree with the noble Lord, Lord Goodhart, that they are of crucial importance. They respond properly to the criticism made of the Government's proposals in this part of the Bill by the Home Affairs Committee in another place and organisations such as Liberty and Justice.
We find further disagreement about the whole issue of dual criminality but, if we are going down that route, the amendment offers the minimum requirement of protection. As the noble Lord pointed out, by accepting the amendment we would do nothing to contradict the framework decision itself. He brought forward a very strong and convincing argument, so I do not intend to repeat the excellent case made for the amendments.
My Lords, I worry about the attitude that my noble friend will take. The case argued by the noble Lord, Lord Goodhart, and emphasised by the briefing from Liberty and Justice—I have not seen that, but he referred to it—is very persuasive. Twelve months is much too short. It indicates that the Government do not really think that the issues are very serious, but they are.
The amendment suggests that we have a period of three years as a break-off point. The Government should contemplate that. I hope that my noble friend will say that she and her officials will think again about the matter. It is not an issue of enormous importance, but it is of some.
A provision in the Bill states,
"for a term 12 months or a greater punishment".
My noble friend can refer to that. However, I am worried about a period of only 12 months. That gives the wrong signals. I would prefer to see the amendment accepted by my noble friend.
I am not sure about the second amendment; nor has the noble Lord made a strenuous case for it. While I remain to be persuaded about that, it is important to go back and see what Amendment No. 161 stands for. The noble Lord has made a potent case for it. The least that I would expect my noble friend to say, here and now, is that she is willing to think again about it.
My Lords, am I right in thinking that "gold-plating downwards"—if one can do that—is unilateral and that the territory in question can ask us to extradite a man for a non-dual-criminality offence because its maximum penalty is 15 months, but that if we ask that territory to extradite in similar, non-dual-criminality circumstances, it could say, "Oh, well, we only extradite in those circumstances for a three-years' offence"? If it is unilateral in that way—I see the noble Baroness nodding—why on earth are we being so unilaterally generous?
My Lords, the amendment of the noble Lord, Lord Goodhart, attempts, at least partially, to alleviate the fear of the public about Part 1 of the Bill. I regard that as one of our main aims on the Opposition Benches. The public—at least those who have thought about it—fear that people may be extradited for an offence that they did not know was an offence when they committed it. The noble Lord, Lord Goodhart, made the simple point that an offence which has a penalty of three years is less likely to give rise to that misapprehension than would one of 12 months. An offence that has a threshold of three years is serious. People are more likely to realise that they are committing a serious offence, even if they are not aware that it is an offence in this country or know that it is not.
It is an important and helpful amendment. I hope that the Government will accept it or say that they will draft a similar one. The House of Commons should certainly recognise that point as it represents members of the public who have those fears. I therefore hope that the Government will accept the amendment.
My Lords, the noble Baroness will understand that some of us at least are completely opposed to the European arrest warrant and to Part 1 of the Bill. I am amazed that the Minister, having recommended the framework directive, then "unrecommends" it by adopting something different.
The noble Lord, Lord Goodhart, has made the case for his amendment extremely well and I do not wish to elaborate on it too much. As he said, Article 2.2 of the framework agreement applies to offences of three years or more. I simply do not know why the Minister and the Government should want to go beyond that. It puts the citizens of our country in a worse position than that of other countries. I would not have thought that that is what the Government wanted to do; nor would I have thought that the Government wanted to confirm everybody's suspicions about virtually every European directive; that is, that the Government and the Civil Service in this country take the opportunity to "gold-plate" it and make it far worse for our citizens than for those of other countries.
Therefore, I hope that if the noble Baroness does not accept the amendment, she will at least say that the strength of feeling for the amendment, and against what the Government are proposing, is such that, before Third Reading, she will look at it again and come back with her own amendment. If she does not, I hope that the noble Lord, Lord Goodhart, will press his amendment today and that the House will agree to it.
My Lords, I thank my noble friend for those helpful comments, because they give me an opportunity to respond. The noble Lord, Lord Goodhart, called it "gold-plating" and said that it was too early for us to move to a more generous accommodation. He was echoed by the noble Viscount, Lord Bledisloe, who also mentioned gold-plating. That theme echoed around the House.
I shall be clear about the framework document. That document sets minimum standards; that is, the least that we have agreed to do. It does not prevent us from going further if we in this country think that it inures to the benefit of our system and our individuals. It is our Bill; we set the standards which we deem to be appropriate for our country. Therefore, we must legislate for what we believe is in the best interests of the United Kingdom. If that involves exceeding our international obligations, then so be it.
Why should our approach in implementing European measures be that the UK should always do only the bare minimum that is required? We set our own standards. On occasions, we have led the pack. We lead the pack in our legislation on race. Our race relations legislation is probably the most robust in the EU. Noble Lords will know that many countries do not share our belief that incitement to racial hatred is a punishable offence. In discussing reciprocity, let us take the example of Portugal. I am not suggesting for a moment that a Portuguese individual would do it, but if someone were to come here from Portugal, were to incite racial hatred and were to create a great deal of difficulty and mayhem and then depart, if we sought total complimentarity as noble Lords suggest, others could say that it is not an offence in Portugal to incite others to racial hatred.
We need to be a little careful about what we are saying here. We wish people to obey our laws when they come to this country. We will not accept, for example, that that they should be able to incite racial hatred with impunity in this country because they do not know that it is an offence so to do in this country. There is a very practical element to all of this. As we previously pointed out, in contrast to the United Kingdom, other countries have difficult and different regimes. I cite as an example the fact that not all EU countries have an offence of fraudulent trading. So we regard these matters as of real importance.
I remind your Lordships that the partial removal of the dual criminality requirement applies only in respect of EU countries—mature democracies with established and fair criminal justice systems. It is also worth mentioning that if any part of the conduct in question has occurred in the United Kingdom, we can extradite only if the dual criminality requirement is satisfied. So no one can be extradited for conduct that occurred here and is legal in this country. However, we have come to a position in the Bill where there is a clear difference of view.
My Lords, reference has been made to the briefings from Liberty and Justice. Was my noble friend aware of those? Has she had any meetings with them? Has everything, or nothing at all, been reduced to writing?
My Lords, I am perfectly aware that Liberty and Justice have taken a different view. On this Bill, as on many others, we have engaged in conversations. I do not know whether the officials have met specifically with Liberty and Justice in relation to these matters. However, we know the difference. Indeed, we had a very interesting, thoughtful and comprehensive debate on these issues in Grand Committee where we explored that difference. There is a difference. I promised in the last sitting of the Grand Committee that we would continue to think about these issues, and we have. However, there is a clear difference between what we think is right to do and what others may press.
When we are talking about the dual criminality requirement in relation to extradition—specifically in Part 1—to other EU countries we are not talking about some vital fundamental protection. We are talking about whether or not we should protect criminals who go to other EU countries to break their laws. The Bill provides two thresholds for extradition. For accusation cases—that is, cases where the person has not yet been put on trial—the threshold is 12 months, as in our present legislation. In conviction cases—that is, cases where the person had been tried and convicted—the person must have been given a custodial sentence of at least four months. Those thresholds apply in all cases, even in those circumstances where the dual criminality requirement is not to be applied. These amendments would change the thresholds in non-dual criminality cases so that they would be three years in accusation cases and 12 months in conviction cases.
My immediate reaction to that is to ask, "Why?". Who are we seeking to protect and for what reason? Why should we give sanctuary to those who go to another EU country and break its law? Let us put this into practical terms. Imagine that someone commits an offence in another EU country which happens not to be an offence in this country. He receives a nine-month prison sentence. Before his sentence begins he manages to flee to this country. If these amendments were passed, we would be unable to extradite him. I am not sure whether any of your Lordships really believe that that is in the interests of justice or that that outcome would serve the interests of justice.
The justification for these amendments appears to be that Part 1 of the Bill goes beyond the terms of the framework decision on the European arrest warrant and these amendments seek to bring us back in line. I freely admit that we have gone beyond the strict requirements of the framework decision—but why is that necessarily a bad thing? We have chosen so to do. I appreciate that there are some, particularly some who sit on the Benches opposite, who are more comfortable with a more insular approach. However, I hear with a little surprise the same insularity coming from the Liberal Democrat Benches. It is certainly not an approach that the Government want to adopt in our dealings with our European partners.
To be fair, the noble Lord, Lord Goodhart, has said in the past said that he has another rationale for these amendments. His argument—I am sure that he will correct me if I am wrong—was that offences in the bracket of one to three years are by definition less serious, and therefore there is a greater chance that a person might be committing them inadvertently. I hear that. However, that was sufficient to justify the logical inconsistency that we would be applying dual criminality protection for lesser offences but not for more serious ones. I respect the noble Lord's point of view, but I would offer two observations. The first, as he is well aware, is that ignorance of the law has never been a defence, and to recognise it as a reason for not extraditing people to another EU country is a dangerous precedent.
Secondly, offences attracting a penalty in the bracket of one to three years may be less serious than offences which attract more than three years, but they are still serious. We are not dealing with minor or trivial matters here. For more than 100 years we have recognised that an offence with a sentence of 12 months or more is serious enough to warrant extradition. It is worth considering some of the UK offences which have maximum penalties falling in the category of one to three years. They include assault with intent to resist arrest, abduction of a girl under 16, aggravated vehicle taking and failure to surrender in accordance with bail conditions. Those are not trivial matters. They are certainly not trivial to the victims.
Let us also bear in mind that our sentence levels tend to be higher than those in other EU countries, and I would suggest that it is unlikely that we could excuse someone's conduct as inadvertent. There is a real risk that the introduction of a different threshold will cause confusion, not least for the person whose extradition has been requested. The universal application of a 12-month threshold in accusation cases will undoubtedly be much easier to follow.
I apologise for going over these matters at some length, but I think that they are important. We need to face this difference. Either we think that this is right or we do not. Of course, it is for the noble Lord and the noble Baroness to decide whether to press their amendments. However, there is one question that shines out above all others. Who would benefit from these amendments? Who would be protected if these amendments were made? It seems to me that the answer is clear: it is those who go to another EU country and break its laws, not by committing minor crimes or by doing so inadvertently, but by committing crimes that we have always thought serious enough to justify extradition.
The right to free movement within the EU is being abused by serious criminals. We cannot and will not let the fight against that abuse be hampered by diluting the ability to pursue these people and bring them to justice. That is the least that we owe to the victims of crime, in this country and throughout the EU. If noble Lords are asking whether we are deliberately going beyond that which others are minded to provide, then the answer is, "Yes, and we do not regret it".
My Lords, before the noble Baroness finishes, I should like to ask her one question. She did not seem to reply properly to the noble Viscount, Lord Bledisloe. She said that we have higher standards in certain laws such as race relations laws, and that we might wish to extradite to this country and would not regard it as satisfactory if those countries did not understand that such matters are offences in this country. I follow and accept that part of her argument. However, if those countries are going to maintain a three-year threshold as distinct from us, what good will this do us?
My Lords, I tried to make it absolutely clear that I was answering the noble Viscount, Lord Bledisloe, by saying, "Yes, it is unilateral". Secondly, it is for the British Parliament to decide the right threshold for extradition to this country. That is an objective decision unaffected by what other countries decide. It is for us to choose. We have chosen. Of course, if Parliament disagrees with the Government, that is a matter for Parliament. However, we are not ashamed of the difference that we clearly have with others.
My Lords, before I respond to what the noble Baroness said, I want to say that I am very grateful for the support that the amendment has received. In response to the noble Lord, Lord Clinton-Davis, who said that I had not pressed Amendment No. 170 very strongly, I want to say, first, that I regard it as a less important amendment than Amendment No. 159; nevertheless, it is important.
If Amendment No. 159 were accepted by your Lordships but not Amendment No. 170, we would find that people could be extradited to complete a sentence of the order of one-ninth of the maximum sentence, which would justify the removal of the dual criminality rule. As it is, under the Government's proposals, where the minimum sentence is 12 months, four months' sentence will represent one-third of the limit of the maximum sentence above which the dual criminality rule will be removed. We believe that that ratio should be preserved. If the offence is so minor that it receives only a four-month sentence when the law provides for a possible maximum sentence of not less than three years, we believe that it is inappropriate to include such an offence in extradition cases where there is no dual criminality.
I now turn to a more important point—that is, the defence for this clause set out by the Minister. The Government could have decided that they would allow the three-year limit to be reduced when a bilateral or multilateral agreement had been entered into with other countries, with that agreement then being approved by the affirmative resolution procedure. They have not done that. They have simply said, "Whatever the country provides, we shall ignore the dual criminality rule whenever the maximum sentence in the requesting state is 12 months, even if that state does not adopt the same principle". Quite apart from the fact that we consider the principle of going below three years to be wrong, we believe that it is wholly unjustifiable to do so on an entirely non-reciprocal basis.
Of course, we wish people to accept our rules. However, that depends not on what we say but on what other countries are prepared to agree to. We do not believe that it is necessary or justifiable to reduce the level for the removal of the dual criminality rule below that required by the framework decision. The noble Baroness talked about abuse by serious criminals. The types of crime carried out by serious criminals are not those such as aggravated vehicle-taking; they are offences that will almost certainly carry dual criminality and, in particular, they are almost certainly offences that will carry maximum sentences of at least three years.
Whatever view other people may take and whether or not they support the amendment, we do not support it on the grounds of insularity. We oppose what the Government propose. We have introduced the amendment because we believe that the dual criminality rule plays an important part and that it should be reduced only with great care. We are prepared to go along with the framework decision, but we are not prepared to go along with the Government's further reduction of it. On that, we take a view that is shared by many other bodies concerned with human rights which cannot be accused of insularity.
moved Amendment No. 175:
Page 35, line 43, leave out paragraph (b) and insert—
"(b) a sentence of imprisonment or another form of detention for a term of 4 months or a greater punishment has been imposed in the category 1 territory in respect of the conduct;"
My Lords, I can be brief. In Grand Committee we gave notice of our intention to table Amendments Nos. 175 and 273, which simply correct a couple of drafting errors in the Bill. I realise that the question of thresholds is somewhat contentious and that there are interesting debates to be had on the point. However, I should suggest that this is not the moment for such debate.
All the amendments do is to make the Bill internally consistent. I apologise to your Lordships' House that the errors crept in in the first place. These things happen even in the best run Bills. I hope that your Lordships will be characteristically forgiving and will agree to the amendments. I beg to move.
moved Amendments Nos. 179 and 180:
Page 36, line 25, leave out second "an" and insert "a judicial"
Page 36, line 27, leave out paragraph (a).
On Question, amendments agreed to.
My Lords, Amendment No. 181 has the support of both the noble Lord, Lord Goodhart, and the Minister. In moving this amendment I shall speak also to Amendment No. 182, giving it qualified support, which will not surprise the House after having heard from the Deputy Speaker about the problem in calling it. I shall speak also in support of Amendment No. 183, tabled in my name and that of the noble Lord, Lord Goodhart, and to my Amendment No. 329, which is an amendment to government Amendment No. 328.
Noble Lords may think that this is a somewhat strange grouping. Perhaps I may explain to the Minister that I originally expected Amendment No. 183 to be separate from this grouping. I believe that that is what the Minister had expected, rightly, as that is what is on the list. However, at a quarter to two this afternoon an indication was given to me that the noble Lord, Lord Goodhart, would appreciate Amendment No. 183 being taken with this grouping. That is why I intend to speak to it. The noble Lord, Lord Goodhart, will explain the reason for that when he moves his own amendment. I agreed with him, on further reflection, that it would save the time of the House and make more sense for the whole subject to be aired at the same time.
I did not expect to move Amendment No. 181, which is in its correct place on the list, at this time or, indeed, at any time. It is an unusual amendment. It seeks to delete from the Bill the reference in Clause 67 to the intention to refer to the European framework decision without putting on the face of the Bill the list of offences. I have already spoken to this amendment, having tabled it in my attempt to knock out the whole of what I considered to be the obnoxious Part 1. Therefore, it was tabled and spoken to in a group led by an amendment on which I voted and lost.
In the normal run of things, I would expect to be totally and utterly barred from ever bringing forward this amendment. I tried not to have the amendment grouped with the other amendments because I did not want the Government and other noble Lords put into the position of being told that they could not have their amendments. I was trying to be kindness itself. However, I am assured that the House authorities accept that I will not damage anyone by tabling the amendment. The Minister has added her name to my amendment. So the Government can get their way, yet we seem to bend the normal rules of fate.
Although I have lost the amendment once, it seems to have a second chance of life. I shall naturally be content when the amendment is subsequently made. I just wish that I could be as successful with the rest of the group. But there we are; there is another day for that.
On Amendment No. 182, we find the general description of some offences in the framework list unacceptable. We have made that position clear throughout these debates. We do, however, think that if we must have the framework list, it is better to have it on the face of the Bill rather than in obscurity. To that extent only, I support Amendment No. 182.
I do not support the full framework list as it stands. We believe that it is vital that Amendment No. 183 of the noble Lord, Lord Goodhart, should be accepted by the Government. I leave the noble Lord to present the detail of his argument for that. Briefly, our position is as follows. We support his amendment because it allows the inclusion of racism and xenophobia on the list only when there has been a framework decision on racism and xenophobia between member states. We believe that that would ensure that we all have a harmonised view—I hate the word "harmonised"; I thought I would never say it, but I have—of the offences which we believe constitute racist or xenophobic acts—or, if not a definition, at least a unanimous view.
In addition, we believe that it is essential that the Government should accept my Amendment No. 329, which is an amendment to Amendment No. 328, standing in the names of the noble Lord, Lord Goodhart, and the noble Baroness, Lady Scotland. That would remove the word "xenophobia" from the list of 32 offences. Our hostility to including "xenophobia" is based purely on the fact that, as many other noble Lords demonstrated in Grand Committee, no one really knows what the term means. It is certainly not defined as an offence in our criminal law, and we believe that it is open to too wide an interpretation.
I repeat the undertaking I gave in Grand Committee that I would not want anyone to avoid extradition if he had racially abused, harassed or insulted someone. That is unacceptable. We would want him to face justice. All we say is that it would not be possible to relax the dual criminality rule for any offence of this kind. Dual criminality would have to be satisfied before an extradition could take place. We may come to the matter again at a later stage in the Bill in respect of that amendment.
I return to Amendment No. 181, with some hope for once that an amendment may be made. I beg to move.
My Lords, I wish to speak to the amendments standing in my name in the group; that is, Amendment Nos. 182, 184 and 328. As the noble Baroness, Lady Anelay, has already mentioned, I would like to treat Amendment No. 183 as part of the group because it raises very much the same issue, but in a somewhat different form, as Amendment No. 329, which stands in her name. I have not attached my name to it, nor did I to the equivalent amendment in Grand Committee.
On Amendments Nos. 182, 184 and 328 I can speak briefly. Amendments Nos. 182 and 184 have both been overtaken by government Amendment No. 308. Therefore, I shall not be moving them. The Minister has put her name to Amendment No. 328 in order to put the framework list on to the face of the Bill. We welcome that. I shall be moving that amendment when we reach it.
That leaves Amendment No. 183. It raises the question of xenophobia as part of the framework list. Xenophobia is a word that has a number of possible meanings. We felt that it was desirable to know what was intended by the word xenophobia before we actually approved a list. As I understand it, a framework decision on the subject of xenophobia and racism is currently being worked on. It will contain some kind of definition which can be relied upon by the United Kingdom courts as a guide to what xenophobia and racism mean in the schedule to the Bill.
Amendment No. 183 could, as we recognise, potentially lead to a temporary inconsistency between the framework decision list and the list as contained in the Bill. In those circumstances, we feel that we are placed in some difficulty. We have no indication of when the framework decision is likely to be made. Therefore, ultimately the real decision is whether xenophobia stays as part of the schedule or is permanently removed from it. That is not something to which Amendment No. 183 would provide an answer. It would remove temporarily both "xenophobia" and "racism", but it does not propose that, once the framework decision is out, any further decision in your Lordships' House should be taken on whether racism and xenophobia should remain as part of the list.
In those circumstances, we do not feel that any very useful purpose would be gained by moving Amendment No. 183 when we reach it, and it is not my intention to do so. Your Lordships will be faced with the real issue in this case when we reach Amendment No. 329—no doubt not this evening.
My Lords, although one welcomes these amendments, they perhaps place on the record a number of other crimes in the framework decision list, the meanings of which are far from clear. In that category I mention environmental crime. What is "environmental crime"? We are told that it includes the illicit trafficking in endangered animal species and endangered plant species and varieties. Endangered where? A species of plant can be rare in one place and comparatively common in another. Anyway, we are left with environmental crime.
I understand that we do not really have a definition of "corruption", "swindling" or "racketeering"—all of which are included in the list—in this country. Finally, there is "counterfeiting" and "piracy of products". I am not asking the noble Baroness to prolong our proceedings by answering all those questions tonight, but one is left wondering what that really means. Does it mean when one fashion store copies an expensive original product from another? There are quite a few fashion stores in London doing that at present, with products that have originated elsewhere in Europe. Will that become a crime extraditable under the Bill?
I merely wanted to put those points on record. As usual, we are dealing in European Union double-speak. We do not have the faintest idea how the provision will eventually be used. In the mean time, I support the amendment.
My Lords, I first pick up the point raised by the noble Lord, Lord Pearson of Rannoch, because he referred to the generic nature of the offences. One difficulty is that similar offences are described in different ways by different countries. Although we may each have a similar offence on our statute book, we may describe it differently. So the generic term encompasses a range of offences in the various countries.
I am grateful to the noble Lord, Lord Goodhart, and the noble Baroness, Lady Anelay, for making clear that although Amendment No. 183 is included in the group, they do not intend to press it separately. I shall therefore concentrate on the general comments made by the noble Lord in moving the amendment, which, as he and the noble Baroness rightly said, also bears my name.
Throughout the Bill's passage, your Lordships and Members of another place have spent a great deal of time discussing the list of generic offence categories. It is perhaps unnecessary for me to remind your Lordships that that is the list of offence categories in respect of which the dual criminality rule can be relaxed. It is fair to say that the existence of the list and its content have been the source of a certain amount of controversy, so it is slightly strange that for the majority of this group of amendments, we appear to be in complete agreement. I rejoice in that fact.
The exception, of course, is Amendment No. 329, to which I cannot agree. It concerns the particular category of "racism and xenophobia" on the list, which we believe should not be adulterated or diluted. I shall return to that amendment shortly.
However, the purpose of most of the amendments is clear enough. They include the list in the wording of the Bill. I know that that was something that noble Lords very much wanted. The Government's original view was that the content of the list was clear by reference to the framework decision, but were happy to accept the strength of feeling that the list should be in the Bill itself. In Grand Committee, we made a commitment to do that. I am happy to be able to recommit us in that regard and the amendments in my name give effect to that commitment.
Let me say something about changes to the list. It is important to preface my remarks with the statement that we know of absolutely no plans to change the list and that any such change would require the unanimous agreement of all member states. The government amendments provide that changes to the list in the Bill can be made only to reflect changes agreed at European level and then be effected only by order subject to the affirmative resolution procedure. I know that that is what the Opposition parties were seeking and I am pleased that we have been able to oblige. Given that, as I said, we appear to be temporarily in complete agreement, I think I need say no more about the list being in the Bill.
As I promised a moment ago, I now turn to Amendment No. 329, which would completely remove the reference to "xenophobia" in the list—the list that we are now seeking to include in a schedule to the Bill. However, I should perhaps begin with an apology. I say that because I shall refer to a term at the sound of which many noble Lords who attended Grand Committee will groan. However, it is the issue that people have identified as being different: that of Holocaust denial.
As those of your Lordships who studied the report of the Home Affairs Select Committee on the Bill in another place will be aware, the Government took steps to establish what offences in other EU countries fell within the racism and xenophobia category. The results for several countries are contained in the annexe to the Home Affairs Committee's report. What is striking is how familiar all the conduct is: it is conduct that we in the United Kingdom would regard as criminal.
Suggestions that our EU partners have wild or peculiar racist or xenophobic offences on their statute book are clearly wide of the mark. I trust that your Lordships will bear that in mind during our further deliberations. Almost the only offence that we could identify that is a racist or xenophobic offence in another EU country but clearly has no counterpart in United Kingdom law is Holocaust denial, which is why we kept coming back to it—it was the only offence on which we could alight.
As your Lordships will be aware, the generic list that includes racism and xenophobia is significant as it sets out the categories of offences—they are broad headings, not specific crimes—for which the dual criminality test is disapplied. That point is important. We are talking not about a precise offence of racism or xenophobia but of offences that fall into that category. In our earlier debates, we said that a number of offences under our race relations legislation, such as incitement to racial hatred, are not reflected in all EU countries but would fall within the category of offences that could be described as racist or xenophobic.
So although the United Kingdom has no offence of racism or xenophobia, plenty of examples fall within that category—all of our incitement to racial hatred legislation being an obvious one. The fact that the United Kingdom does not use the term "xenophobia" in its legislation does not mean that we do not have offences that correspond to other countries' xenophobia legislation. "Racism and xenophobia" is a term in common use at the European level to cover the kind of behaviour and conduct that we have been discussing. Hence the framework decision on racism and xenophobia. That is why that phrase is used in the list.
In previous debates, we have heard all sorts of inflammatory suggestions that tabloid editors or readers of Biggles will be extradited, which has fuelled concern over the phrase. I had hoped that we had been able to put all these nonsensical rumours to ground, but they continue to cause concern. We have said on innumerable occasions that no one will be extradited from the United Kingdom for doing something that is not illegal here. This is unequivocal and I hope that your Lordships will agree that we should waste no more time giving any legitimacy to such suggestions.
By the same token, our position remains constant that within the EU and the freedom of travel, commerce and employment that comes with it, a person should respect the laws of the place he is in. If he does not, he should face justice. I am sure that the noble Baroness, Lady Anelay, is not suggesting that such a person should not face trial—I see her indicating that she is not. We are really discussing the term. As I said, the term is a catch-all. We need it. If we did not have it, there are many offences described in other EU countries as "xenophobic" that we would not be able to include when requesting extradition.
With that, I hope that the noble Lord, Lord Goodhart, and the noble Baroness will feel a degree of comfort and certainty and, when reading the list, will recognise that, other than the dreaded example of Holocaust denial, we are in comity with our European partners.
My Lords, surely the noble Baroness is aware that it is an offence to insult the French President. Would that not be covered by the term? Much more seriously, whatever the offence of xenophobia may be at the moment, is it not true that under the Bill it will be what the extraditing magistrate chooses to say it is? We have not the faintest idea of what it will be in future. Surely that is the position, is it not?
My Lords, it is not. The Bill provides that if someone in an EU country has committed an offence contrary to that country's law and then seeks extradition, we will comply, if that is shown. Similarly, if the situation were reversed, we would be very upset if someone came here and incited racial hatred, which we all abhor, but then said "It is not an offence in my country to incite all these people to racial hatred; it is perfectly OK. Why should I be extradited just because I went to Britain and caused mayhem and incited people to hate each other on racist grounds?". I hear the noble Lord say that that is a different thing, but it is exactly the same. We do not expect others to come to this country and abuse our law with impunity. We expect our EU partners to assist us in the same way that we would expect our citizens, when in France, to obey the law there. It is mutual respect—something that inures to our joint advantage.
My Lords, will the Minister explain why the European framework list includes racism and xenophobia, rather than racist behaviour and xenophobic behaviour? All the other 31 crimes on the list involve action or behaviour, whereas racism and xenophobia are both emotions. In a democracy one cannot legislate against an emotion; one can legislate only against acts or behaviour.
My Lords, I have tried to explain that this is a category within which there will be specific offences. I have indicated that our own offence of incitement to racial hatred would fall within the generic term. I understand what the noble Lord says about how the other crimes were framed. As with all the issues, this was negotiated between all the EU partners and there was agreement on the framework—the broad generic categories. We have tried to be very explicit about what the terms encompass. We can say, from looking at existing legislation, what the categories currently encompass; however, it is right that our own law and that of other countries may be amended, particularly in this sphere.
We have a very proud history in that our legislation is said to be the most far-reaching and comprehensive of any country in Europe. It may be the most far-reaching anywhere in the world. It is therefore unlikely that many of our partners will have such comprehensive provisions. I do not hesitate to say that we want them to be able to implement those provisions and extradite if anyone comes to our country and trespasses against our law, even if our law sets a higher standard than anyone else's.
My Lords, as the Minister said, we are in comity on many of the amendments. She has made much of the arguments about racism and xenophobia. She will recall that I took care not to delete racism from the framework list. My amendment would delete xenophobia, because it is so generic as to be almost incapable of specific interpretation that would satisfy me for the purposes of relaxing dual criminality in that respect.
I could have done as my noble friend Lord Pearson of Rannoch did, and point to other generic offences that are objectionable for the purposes of the list, but on this occasion I was trying to narrow my fire. I shall consider further Amendment No. 329. On the first part of Amendment No. 329, I am intrigued by the fact that the framework list includes the word "and". In that case, if one is guilty solely of xenophobia does that mean that one does not fall within the list unless one has committed a racist offence also?
The framework list as currently drafted is not perfect. I will look at it again more carefully before Third Reading. I may not need to return to it, but I shall keep the matter open for the time being. As the Minister said, we are in comity on Amendment No. 181. In that respect alone, I commend the amendment to the House.
My Lords, I beg to move that further consideration on Report be now adjourned. In moving the Motion I suggest that the Report stage begin again not before 8.36 p.m.