Clause 8 - Remand etc.

Extradition Bill – in a Public Bill Committee at 4:15 pm on 9th January 2003.

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Photo of Mr Nick Hawkins Mr Nick Hawkins Conservative, Surrey Heath 4:15 pm, 9th January 2003

I beg to move amendment No. 28, in

clause 8, page 4, line 23, leave out paragraph (b) and insert—

'(b) ensure that the person has received independent legal advice about his rights as to giving or withholding consent to extradition'.

Photo of Anne Begg Anne Begg Labour, Aberdeen South

With this we may take the following amendments:

No. 29, in

clause 8, page 4, line 26, leave out subsection (3).

No. 119, in

clause 8, page 4, line 31, leave out paragraph (c) and insert—

'(c) that consent must be given before the judge who must satisfy himself that the suspect has had the opportunity of receiving independent legal advice and had opportunity to consider that advice.'.

No. 52, in

clause 44, page 21, line 7, at end insert 'as long as he has received independent legal advice prior to indicating his consent'.

No. 54, in

clause 44, page 21, line 14, at end insert 'only after having received independent legal advice'.

No. 146, in

clause 44, page 21, line 16, at end add—

'(5) The judge before whom consent is given must be satisfied that—

(a) the person before him has been informed of his right to free legal advice and has understood that information, and

(b) that access to such legal advice was made available to him.'.

No. 157, in

clause 73, page 37, line 40, leave out paragraph (a) and insert—

'(a) ensure that the person has received independent legal advice about his rights as to giving or withholding consent to extradition'.

No. 158, in

clause 73, page 37, line 42, leave out subsection (7).

No. 162, in

clause 123, page 61, line 13, leave out 'irrevocable' and insert 'only valid after the person has had an opportunity to receive independent legal advice, and can be revoked at any time until extradition takes place'.

Photo of Mr Nick Hawkins Mr Nick Hawkins Conservative, Surrey Heath

Amendments Nos. 28 and 29 would ensure that the Bill guarantees that the person who is the subject of the new powers can receive independent legal advice. The amendments would also delete the inappropriate provisions about consent, which is taken far too readily. Amendment No. 119, tabled by the Liberal Democrats, would have a not dissimilar effect. It states that

''consent must be given before the judge who must satisfy himself that the suspect has had the opportunity of receiving independent legal advice and had opportunity to consider that advice.''

That, too, is the preferred wording of Justice. If I had had the advantage of seeing that before drafting amendment No. 28, I might have gone along with it. No doubt the hon. Members for Torridge and West Devon and for Orkney and Shetland will confirm that amendment No. 119 takes a similar direction to amendment No. 28. Each of us is trying to ensure that a suspect has independent legal advice before giving or withholding consent to extradition.

In an earlier debate, the Minister said that about 30 per cent. of people currently extradited consent to it. In discussing these new, much more wide-ranging powers, it is important that we ensure that independent legal advice is available to a person before he or she gives or withholds consent to extradition. The Liberal Democrats' amendment No. 133 goes further and would provide for free legal advice. We have not gone as far as that; we believe it more important that legal advice be independent than that it be free. No doubt the Liberal Democrats will seek to justify their proposals in their own way. However, we are all moving in a similar direction; a necessary pre-condition before someone gives consent to being extradited and deported to another country is that they should have the benefit of independent legal advice. The other amendments in the group are consequential.

Photo of Alistair Carmichael Alistair Carmichael Shadow Spokesperson (Energy and Climate Change), Liberal Democrat Spokesperson (Energy and Climate Change)

I shall speak briefly to amendment No. 119. The position is straightforward: in practice, independent and free legal advice will be given by the duty solicitor under the legal aid scheme. As my hon. Friend the Member for Torridge and West Devon

said, that will be dealt with in a later amendment. The point has been made that the proceedings are akin to summary proceedings; a person appealing from custody or summary proceedings is always entitled to the services of the duty solicitor under the legal aid scheme and I see no reason why the Government should object to it in this case.

Photo of Bob Ainsworth Bob Ainsworth The Parliamentary Under-Secretary of State for the Home Department

Every person arrested in an extradition case has the same entitlements as those arrested for purely domestic cases to independent legal advice. The duty solicitor scheme is designed to ensure that such advice is available before the first court appearance. In extradition cases, legal aid is available before the fugitive has the opportunity to consent to extradition. As an added safeguard, the district judge is required to explain to the fugitive the effect of consenting to his extradition and the fact that consent, once given, cannot be rescinded.

It is unprecedented to require a judge to check on the nature of the legal advice that a person before him has received. The Opposition amendments would require that the judge be satisfied that the fugitive has actually received that advice. Unintentionally, the amendments would make it impossible to conclude an extradition case in which a defendant refused to speak or to take the legal advice of a lawyer. Unless the judge is satisfied that the person has received legal advice, he could not proceed under clause 8, and the whole extradition process would grind to a halt.

Photo of Alistair Carmichael Alistair Carmichael Shadow Spokesperson (Energy and Climate Change), Liberal Democrat Spokesperson (Energy and Climate Change)

Under amendment No. 119, the judge has to satisfy himself only

''that the suspect has had the opportunity of receiving independent legal advice and had opportunity to consider that advice.''

If the accused person refused to avail himself of that advice, it would not be a barrier.

Photo of Mr Nick Hawkins Mr Nick Hawkins Conservative, Surrey Heath

Before the Minister responds, I want to make it clear that I tabled my amendments before I saw the wording recommended by Justice. Had I seen that wording, I might well have adopted it. I hope that the Minister will view the amendments in that light and not get hung up about the way the different Opposition amendments are worded. I agree entirely with the hon. Member for Orkney and Shetland.

Photo of Bob Ainsworth Bob Ainsworth The Parliamentary Under-Secretary of State for the Home Department

Hon. Members know that the opportunity must be afforded for a fugitive to have legal advice. For extradition fugitives, legal aid also has to be afforded. That is a requirement, so I do not really see the hon. Gentleman's point.

Photo of Alistair Carmichael Alistair Carmichael Shadow Spokesperson (Energy and Climate Change), Liberal Democrat Spokesperson (Energy and Climate Change)

I am focusing on the practicalities. If we are talking about Edinburgh sheriff court on a Monday morning, the services of the duty legal aid solicitors are pretty thinly spread and it is by no means unusual for cases to be called before the accused have had the opportunity of speaking to a solicitor. Many people may not be familiar with court proceedings in this country or with the language. They may not expect the right to free and independent legal advice before a court hearing. It is surely an important and necessary safeguard to place a burden on the judge to ensure that all the appropriate proceedings have been gone through before the case is dealt with.

Photo of Bob Ainsworth Bob Ainsworth The Parliamentary Under-Secretary of State for the Home Department

As a matter of principle, no one in this Committee wants anyone to find themselves in front of a district judge faced with extradition to another country without having had the opportunity of receiving legal advice. I am more than happy to assure the hon. Gentleman that I shall re-examine the provisions to make absolutely sure that that cannot happen. I hope that that will satisfy Opposition Members at least about some of the amendments.

Amendment No. 162 would introduce the additional notion that consent can be revoked at any point. We know that fugitives actively try to manipulate the extradition system and this would give them a wonderful opportunity to achieve maximum disruption. A fugitive may have given consent in front of a judge, but just when he is about to be put on a plane, he could change his mind and go back through it all again. As the amendment is currently worded, a fugitive could do so again and again. That might be wonderful for taxi services between here and the Heathrow or City airports, but it would not do much for our ability to extradite criminals under the European arrest warrant scheme. I ask hon. Members to think again about amendment No. 162.

I will check to ensure that individuals standing before a judge cannot face the danger of consenting to their extradition without having had the opportunity to receive legal advice, which would be pretty rough.

Photo of Mr Nick Hawkins Mr Nick Hawkins Conservative, Surrey Heath 4:30 pm, 9th January 2003

As usual, the Minister is being reasonable in undertaking to re-examine the various formulations, including that of Justice, which might avoid at least one of the difficulties to which he referred. I am grateful to the Minister for agreeing to reflect further with his advisers on this serious matter, and I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Photo of Mr John Burnett Mr John Burnett Liberal Democrat, Torridge and West Devon

I beg to move amendment No. 134, in

clause 8, page 4, line 38, at end insert—

'(5A) Where an application is made to extend time limits under subsection 5, the judge must hear representations from all parties before reaching a decision.'.

Photo of Anne Begg Anne Begg Labour, Aberdeen South

With this we may take amendment No. 135, in

clause 8, page 4, line 40, at end insert—

'(6A) Any decision to extend time limits taken under subsections 5 and 6 must be subject to review.'.

Photo of Mr John Burnett Mr John Burnett Liberal Democrat, Torridge and West Devon

I do not need to dwell too long on these amendments, which are also based on the advice of Justice. They are designed to import an element of fairness and even-handedness into the Bill. During the past half hour, my hon. Friend the Member for Orkney and Shetland and I have been impressed with the tenor of the Minister's arguments. I hope that he will understand that the amendments are all about ensuring that justice is properly done.

The clause allows an unfettered discretion to extend time limits at the request of one of the parties without any need for representations from the other party and without any possibility of judicial review. Justice and the Liberal Democrats agree—I hope that

Conservative Members will join us—that the right to make representations is crucial when any decision affecting a person's right to liberty is at stake. Extensions of time limits should be inter partes and decisions should be subject to review. When individuals stand in jeopardy of losing their liberty, time limits are crucial, and it is only fair that if the state has made recommendations, the individual should be able to make them and be party to the proceedings.

In addition, we want to engraft a further protection of the right to judicial review. I hope that we can win the Minister over—he is in a fair frame of mind—on these two important amendments.

Photo of Mr Nick Hawkins Mr Nick Hawkins Conservative, Surrey Heath

I need say no more than that we agree entirely, as he anticipated, with the hon. Member for Torridge and West Devon.

Photo of Alistair Carmichael Alistair Carmichael Shadow Spokesperson (Energy and Climate Change), Liberal Democrat Spokesperson (Energy and Climate Change)

Can the Minister confirm—today or later—that, as we are dealing with summary proceedings, or something very close to them, a person remanded under these proceedings in Scotland will be subject to the 40-day time limit that is in force for summary complaints in Scotland.

Photo of Bob Ainsworth Bob Ainsworth The Parliamentary Under-Secretary of State for the Home Department

The judge is required to set a date within 21 days of arrest for the extradition hearing to start. However, in exceptional circumstances and at the request of either side, he may set a later date. Amendment No. 134 would require the judge to hear arguments from both sides when deciding whether to set a later date. However, that is already standard practice in all judicial processes, and a judge would not be prepared to listen to an exceptional plea for an extension without giving the other side the opportunity to question whether that was necessary. Were that not the case, I would possibly side with the hon. Member for Torridge and West Devon to say that the amendment were necessary, as the whole point of the Extradition Bill is to speed up our extradition processes. We do not want unnecessary delays, but it is standard practice that when such requests are made, the judge asks the other side to comment on the proposal.

Amendment No. 135, on the other hand, would require that such a decision should be subject to review. It would not be optional, so if even a short delay were agreed, the decision would have to be reviewed. I hope that the hon. Member for Torridge and West Devon accepts that that is a matter for the discretion of the judge presiding over the case. Exceptional circumstances will have to be presented to him in deciding whether to extend the deadline and what extension would be reasonable. He will grant only extensions that he considers reasonable and will review those decisions if he thinks that it is sensible to do so. It is far better to leave it in that setting than to provide that there must be a review.

Photo of Mr John Burnett Mr John Burnett Liberal Democrat, Torridge and West Devon

I will not argue the toss with the Minister on the detailed drafting of amendment No. 135. However, will he put it on the record that he believes that a right of judicial review will exist in the circumstances outlined in amendment No. 135? Will he confirm not that a judicial review must happen, but

that the right to it is available should either party want it?

Photo of Bob Ainsworth Bob Ainsworth The Parliamentary Under-Secretary of State for the Home Department

There is a right to a judicial review of a judge's decision. Time limits exist and may be extended in exceptional circumstances. The case for that would have to be made to a judge, who would then decide whether the case was reasonable, having given the other side the opportunity to suggest that it was not. Automatic judicial review is neither necessary nor appropriate.

I will have to write to the hon. Member for Orkney and Shetland on his point.

Photo of Mr John Burnett Mr John Burnett Liberal Democrat, Torridge and West Devon

Initially, I shall refer only to amendment No. 134. I understand that Minister's comment, which seems to be to the effect that the amendment is otiose because in accordance with the principles of natural justice, both parties must have a right to be heard. I hope that I understand the Minister correctly—is he nodding?

Photo of Bob Ainsworth Bob Ainsworth The Parliamentary Under-Secretary of State for the Home Department

Yes. My argument is that the amendment is otiose. Consulting both sides is standard practice and will continue to be so.

Mr. John Maples (Stratford-on-Avon) rose—

Photo of Mr John Burnett Mr John Burnett Liberal Democrat, Torridge and West Devon

I am happy to give way to the hon. Gentleman as well.

Photo of John Maples John Maples Conservative, Stratford-on-Avon

One aspect of the amendment troubles me. There are occasional emergencies in court cases where it is necessary for one party to make an ex parte application. The judge should be able to adjourn a hearing at the instigation of one party where it has not been possible and there has not been time to serve a notice on the other party, which would be necessary if both were to be heard. Obviously, the judge would want to hear both parties before he made a final decision. However, there is a danger that the amendment would make such ex parte applications impossible in emergencies. That might be to the detriment of the person whose extradition was being sought, because he or she might be the one to be seeking to make an ex parte application.

Photo of Mr John Burnett Mr John Burnett Liberal Democrat, Torridge and West Devon

I take the hon. Gentleman's point. All that I require from the Minister is confirmation that both parties are aware and have a right to make representations before the judge draws a final conclusion.

On amendment No. 135 and the issue of review, will the Minister confirm that there will at least be a right of appeal if a point of law is at issue?

Photo of Bob Ainsworth Bob Ainsworth The Parliamentary Under-Secretary of State for the Home Department

In exceptional circumstances, there is a right of appeal against a decision to extend the time limit. These are standard practices, which are best left to the judge. Except in exceptional circumstances, the time limit of 21 days should be adhered to. Either side is entitled to argue that it needs an extension. It is for the judge to satisfy himself that justice is being done and that there is adequate opportunity to listen to arguments against that extension. That is standard practice, and we should have confidence in it. We should not try to stipulate that there should, or should not be, a judicial review. It is beyond my comprehension how we can have an appeal against

the decision to have a short extension to the time limit. I do not see how that would work.

Photo of Mr John Burnett Mr John Burnett Liberal Democrat, Torridge and West Devon

I would be grateful if the Minister would deal with our point about amendment No. 134 and make his views on equality of representation absolutely clear.

Photo of Mr John Burnett Mr John Burnett Liberal Democrat, Torridge and West Devon

In that case, I do not believe that the Minister has said that it is standard practice and that a decision cannot be made without both parties having had the opportunity to make representations. On that basis, and on the basis of the Minister's assurance, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 8 ordered to stand part of the Bill.

Clauses 9 and 10 ordered to stand part of the Bill.