The death penalty should be an absolute bar to extradition to any category 1 country and no country with the death penalty should be accorded category 1 status. We discussed the amendment with Justice and there is no reason for including clause 15(2), which relates to category 1 countries.
Earlier, we debated an amendment that stipulated which countries should or could be category 1 countries. No country with the death penalty should be entitled to become a category 1 country. I know that the Government did not accept our amendment, but we are highlighting the fact that category 1 status confers immense privileges in respect of extradition. The abolition of the death penalty means a great deal to many hon. Members, and there should be no possibility of anyone's being extradited from this country to face the death penalty.
Subsection (2) is inconsistent with the UK's ratification of protocol 6 of the European convention on human rights, which abolishes the death penalty in peacetime, and the UK's recent signature on protocol 13, which abolishes the death penalty in all circumstances. I look forward to hearing what the Minister has to say about that. Can he envisage circumstances in which any country with the death penalty is admitted into category 1?
I shall deal first with amendment No. 32, which would have a different effect. It would ensure that there was parliamentary responsibility by saying that any assurances should be given by the Secretary of State. I hope that, even if the Minister cannot accept the amendment today, he might accept that there is a strong case for parliamentary scrutiny in this regard. The Home Secretary would be the
appropriate person to give assurances to the courts on behalf of Her Majesty's Government. Simply referring to a written assurance to a judge is not adequate; the Secretary of State should be specified. We are talking about only a few cases, so that would not place a huge extra burden on any Home Secretary.
That is separate from the death penalty issue. Some members of the Committee will know that I have always supported reintroducing capital punishment for a small number of crimes. That has always been a free vote issue, so in saying that my views have not changed I am not in any way expressing Opposition policy, but it would be inconsistent of me to talk about the Liberal Democrats' amendment when I do not share their views about the death penalty.
My hon. Friend the Member for Ryedale (Mr. Greenway) and I have expressed views in a previous Parliament on a free vote seeking to reintroduce capital punishment for the murder of a police officer in the carrying out of his duty. If that became UK law in future, I would not want to prevent us from extraditing back here people who had committed crimes. As I said, it is a free vote issue, but I thought that I should state on the record that my views had not changed in any way, shape or form, so that people knew where I stood. I simply restrict our amendment No. 32 to the one small category and will listen with interest to what the Minister has to say on the wider issues.
I shall speak in support of Liberal Democrat amendment No. 138, which has been moved by my hon. Friend the Member for Torridge and West Devon. Subsection (2) is incredible; I have never seen anything quite like it. Will the Minister tell us from whom it is anticipated that the written assurance will come? Will it come from an independent third party in the country that is seeking extradition, a jurist in this country or some other source from within Government? In any event, it would require a remarkable amount of second guessing on someone's part. The availability of the death sentence must surely be a sufficient barrier to extradition, and to have someone say, ''Well, yes, we know we can carry out the death penalty, but we don't often do it'' is wrong. The sentence imposed at the end of a trial will often be capricious, dependent on the judge in question and something that cannot properly be second guessed at the start of the trial. For all those reasons, it is unsatisfactory for subsection (2) to be in the Bill. The statement in subsection (1) is clear, concise and consistent with our obligations under the European convention on human rights, as my hon. Friend has already said.
I am less than impressed by the idea of political scrutiny in the Conservative amendment No. 32. I do not consider such mixing of the Executive and judiciary to be healthy, and one can easily imagine circumstances in which a Secretary of State's trade, political or other considerations might influence his view of whether it is in Britain's interests to upset a foreign power by not agreeing to an extradition. My point is that a judge must be concerned with the rights of the individual who is before him, while a Secretary of State will inevitably have wider considerations.
Mixing the powers of the Executive and judiciary in such a way would be undesirable to say the least.
I agree with the hon. Member for Orkney and Shetland. The Conservative amendment No. 32 would take matters too far into the political arena. I recall being a junior Home Office Minister when the then Home Secretary had to determine the Pinochet extradition warrant, which had been received from a prosecuting magistrate in Spain. I do not want to go into too much detail about that, as it would be inappropriate for me to do so, but the extent to which a cordon sanitaire had to be created around the Home Secretary to allow him to make the decision free from any political considerations—as I believe that he did—was such that I am convinced that to bring a Secretary of State into the equation would be a mistake.
I do not share the views of the hon. Member for Surrey Heath on the use of the death penalty, but I think that it is necessary to include the provision in the Bill. It is possible that one of the listed territories may, God forbid, elect a far-right Government who would simply ignore EU regulations and obligations and go ahead and use the death penalty. In those circumstances, it would be perfectly legitimate for that to be taken into account.
The Conservative amendment No. 32 would require the Secretary of State rather than the judge to evaluate the worthiness of the undertakings given by the requesting state that, if the person was extradited, the death penalty would not be imposed or carried out.
It is unlikely that the clause will ever be used, because no EU state currently operates the death penalty, and, as I have said repeatedly, the Government have no plans to add any non-EU countries to category 1 other than Iceland and Norway, because of the special arrangements that those countries have with the EU.
The Minister may have slightly misunderstood the amendment, because he said that the Secretary of State rather than the judge should carry out the evaluation. The wording of our amendment states that the judge should receive an assurance from the Secretary of State. It does not take the judge out of the picture, but requires the Secretary of State to provide the evidence to the judge.
It is not necessary to draw the Secretary of State back into those decisions because we are concerned with category 1 countries and our EU colleagues. However, the reason that we included the clause in part 1 is that it is theoretically possible that a country which retains the death penalty for a limited range of offences could be added to category 1, or that one of the category 1 countries might take the decision to introduce the death penalty for a limited range of offences. It is worth retaining the clause as a useful safeguard.
Assurances in respect of the death penalty are a long-standing feature of extradition, and so I am not surprised that hon. Members are aware of them. Most extradition procedures occur without much publicity,
with the exception of the Pinochet case, as my hon. Friend the Member for Knowsley, North and Sefton, East mentioned. The other exceptions might be cases that become notorious because of the length of time it has taken for them to reach the public domain.
Assurances with regard to the death penalty play an important role, not least because we believe that it should be possible to extradite in cases in which the fugitive might be eligible to receive the death penalty. Such assurances must come from a person who is competent to issue them and must bind the bodies that impose and carry out the sentence. The assurances will not necessarily come from a country's Executive, which is the usual argument for involving British Ministers. They could, for example, come from the prosecutor concerned who has discretion as to whether to seek the death penalty. That will continue to be the case under the Bill.
I cannot resist teasing the Minister for saying that the assurances will normally come from the prosecutor. In a debate earlier this afternoon, the Minister was at great pains to point out that there was no prosecution, so there could not be a prosecutor. I think that he means counsel for the British Government.
The hon. Gentleman is right. We would need to receive assurances, and they could come from the prosecutor.
We see no reason to involve Ministers in a decision that we believe a district judge is fully competent to take. There have been no cases in living memory in which an assurance has been given and not honoured, and we see no reason why that should change in future.
The judge would need to be satisfied that any such assurance is binding. If the judge is in any doubt about the validity of the undertakings he must refuse to extradite.
By doing away with the possibility of considering such assurances, the Liberal Democrat amendment would remove the possibility of extraditing people to countries where the death penalty could be applied. That could have perverse consequences. It could mean that the UK provided sanctuary for someone accused abroad of the most heinous crimes. While we readily extradite to the same country for less serious crimes, we would not extradite a person because the death penalty was available, despite the fact that we had received cast-iron assurances that the death penalty would not be imposed or would not be carried out. We would extradite for theft but not for murder. The murderer would not be brought to justice. That would be the effect of the amendments. There would be a bar on extradition, despite the fact that those assurances had been given.
We are and I am talking about the principle. I have tried to reassure him that there is very little likelihood that this clause would be used in category 1 countries. When we come to category 2 we will see that the same clause is included. One of our
main extradition partners is the United States, which has the death penalty and which gives us the assurances that are required. We regularly, or as regularly as we do anything relating to extradition, extradite people back to the United States for capital offences and we receive the appropriate assurances that capital punishment will not be carried out.
I should like to explore what the Minister describes as a great point of principle. I do not understand the point he is making. He seems to be saying that we will extradite if we can get an assurance from the country seeking extradition that, ''Well, it is murder, but not a very bad murder so we will not apply the death penalty.'' If it is such a bad murder or series of murders that the country seeking extradition is not prepared to give that assurance, presumably we will not proceed to extradite. Where is his principle then?
In order that we may deal with the principle, let us forget for a minute the likelihood of this happening in a category 1 country. What would the hon. Gentleman have us do? We have an assurance, with a particular crime, that if the person is found guilty of that capital offence, capital punishment will not be inflicted on them. When we are satisfied that a country will honour the assurance that it has given us, do we want to tell that country that it cannot have the person back to put him on trial and cannot lock him up—[Interruption.] Well, that would be the effect of the amendment.
The amendment would put a bar on extradition to countries where capital punishment was available. That is not how we do business at present. We extradite people to the United States but if we do so when they could be subject to capital punishment we receive the appropriate assurances. The death penalty is not carried out and yet the murderer, for instance, is taken back before a court in the United States, is punished and is locked up.
I should have thought that the Liberal Democrats would want not want murderers to be able to walk away. That would be the effect of the amendment. As I said, it would be extremely unlikely in a category 1 country, but I ask them to accept that the assurances are appropriate. They have been adequate. They have avoided capital punishment being carried out and yet they have allowed people who have committed heinous crimes to be returned to countries where that is available and punished in another way.
I suspect that this might be the conclusion of our proceedings this evening, but I do not want to jump the gun. This is an important matter and deserves the great scrutiny and debate that we have had. As the Minister confirms, the clause relates to category 1 territories. The procedure is entirely different for them. We are not prepared to withdraw the amendment. When a state in category 1 operates the death penalty, if the person could be, will be or has been sentenced to death, there should be no extradition.
Question put, That the amendment be made:—
The Committee divided: Ayes 2, Noes 9.