My Lords, it is a slightly daunting experience in a Second Reading debate on a criminal justice Bill to follow such a distinguished lawyer as the noble and learned Lord, Lord Hope of Craighead, who has a lifetime of experience of these matters, which he has just deployed to the great advantage of the House over the last few minutes. I, as a non-lawyer, have no equality of arms whatsoever.
I shall focus my remarks on two points. The first concerns the contents of the Bill, the second the process of the passage of the Bill. In regard to the contents of the Bill, I will confine my remarks to Part 12, which concerns changes to our extradition laws. I immediately declare an interest as a trustee of Fair Trials International, a charity which, as its name implies, focuses on miscarriages of justice and sees some of the practical results of the operation of the Extradition Act—in particular, the operation of the European arrest warrant, hereinafter referred to as the EAW.
It is not surprising that Ministers of all parties underline the value of the EAW by referring to the most high-profile cases: terrorism, child exploitation—the teacher running off to France with a pupil—murder, major financial crime. To be sure, the EAW has been extremely valuable in ensuring the swift return of alleged offenders to face justice. However, the majority of the cases are, unsurprisingly, of much lower profile and concern offences where the circumstances are not always open and shut and, in some cases, are downright dubious.
It is worth reminding ourselves just how speedy the process under the EAW can be. A warrant served in London will require a preliminary hearing within 48 hours, at which the individual will be defended by the duty solicitor, who may or may not have a knowledge of extradition law. Within 21 days, there must be a full hearing and, if the case is proved, within 10 days thereafter surrender takes place. So the process can be as short as 34 days. If this were to happen to a Member of your Lordships’ House, we are all capable of finding the right button to press to make sure that we are represented properly. However, I am afraid that not all our fellow citizens are so fortunate. They can therefore be removed speedily and find themselves in a country where they do not speak the language, accused of a crime the full nature of which is not entirely clear to them, operating under a legal system that is entirely unfamiliar, defended by a lawyer who may or may not be competent and with a prison and/or judicial system that may in certain circumstances have features that would not be found acceptable in this country. Therefore, I argue that we need to ensure that a proper level of safeguards is built into this process.
In his opening remarks, my noble friend on the Front Bench reminded us all of the improvements that have been made, and the Government are to be congratulated on that. Sir Scott Baker’s review introduced a number of changes, which the Government have fully implemented. They include the forum bar and the removal of the Home Secretary’s discretion in Part 2 extradition cases. Further changes are planned to deal with trivial offences and to try to avoid lengthy pre-trial detention by the requesting state. However, the Bill provides an opportunity to take this process further and to make the operation of the EAW completely fair and balanced. Therefore, I hope that the Government will look with some favour on amendments to Clause 137 which will seek to address some residual concerns about delays in cases coming to court, would remove some of the ambiguities in drafting and ensure that, in considering whether a case is trial-ready, judges take into account evidence external to the content of the warrant itself, including that relating to the past record of the issuing state in this regard.
Clause 138 addresses the issue of proportionality. While this is an entirely welcome development, it remains a limited test. Therefore, there is a question of whether amendments should remove the judicial discretion as to whether a proportionality assessment should be carried out and extend the list of “specified matters” which a judge may take into account, including the human impact of extradition, the passage of time since the alleged commission of the offence, the costs of extradition, and the public interest in extradition being carried out.
Further, a number of aspects of the operation of the temporary transfer regime envisaged under Clause 140, and the restrictions on the right to appeal envisaged under Clause 141, referred to by the noble Baroness, Lady Smith of Basildon, in her opening remarks, also deserve some discussion and scrutiny by your Lordships’ House. The same applies to the question of the power of a UK court to seek further information when a case of mistaken identity is suspected—a power which I think the court does not currently have.
So much for the Bill itself. I turn to my second point and conclude with a couple of words on the parliamentary process—an issue that has been raised by other noble Lords. I hope that the House will agree that some of the concerns I have raised about extradition procedures are serious ones. In my view, like other aspects of the Bill, they go to the heart of the structure of our civil liberties, painfully built up over the centuries. Yet when the amendments that I have been discussing tonight were tabled in the other place, not one was discussed or debated because of the operation of the guillotine.
It is not for me to comment on the proceedings in the House of Commons but I fear that the reputation of the Government—a Government whom I strongly support—would not be enhanced if the desultory way that the Bill was proceeded with in the House of Commons became more widely known. In particular this is true because many of us, often speaking as shadow spokesmen from the Front Bench in the period before the 2010 general election, were very critical indeed of the widespread use of timetable Motions by the then Labour Government and the consequent impact on the quality of legislative scrutiny. What is sauce for the goose is sauce for the gander.