I beg to move amendment No. 163, in
clause 126, page 62, line 14, leave out '91' and insert
'78, 91, 92 and 93'.
The amendment is brief. It adds extra clauses that the Secretary of State must consider. Subsection (5) currently provides that the Secretary of State must consider only clause 91. The Law Society of England and Wales supports our belief that the provisions under clauses 78, 92 and 93, as well as 91, should be included to ensure that the Secretary of State should consider all the possible bars to extradition. I am sure that the Minister's officials will have advised him of the reasons why the Secretary of State's consideration should be restricted to the bar in clause 91 relating to the death penalty.
Who, if not the Secretary of State, will consider the other bars to extradition? It seems to the Opposition and to the Law Society of England and Wales that Parliament can scrutinise this new extradition legislation only by the Secretary of State exercising his powers. He is accountable to Parliament and through Parliament to the citizens of his country. He should surely consider all the possible bars to extradition before he takes that decision.
We will listen with interest to what the Minister has to say. There may be a good reason why the Bill does not include these clauses. It would be much clearer if the Secretary of State considered all the bars to extradition. If he does, the Bill should include them.
My moment arrives. I do not know whether it is too late to welcome you to the Chair, Mr. O'Hara, but may I do so if it is not?
I am grateful to the hon. Member for Surrey Heath for raising that point. I understand that he wants greater clarity, which I am happy to give. When we send someone to a category 1 territory that then seeks permission to charge him or her with an offence other than the one for which he or she was extradited, clause 52 requires the district judge to consider all the bars to extradition to see whether any of them apply to the additional offence. By contrast, under clause 126, the Secretary of State is obliged to consider only whether the crime is an extradition offence and if there are death penalty considerations. He or she is not required to consider all the other bars to extradition.
The nub of the hon. Gentleman's amendment concerns the difference. The answer is simple. If hon. Members care to read clause 52(6), they will see that in part 1, where none of the bars apply, the district judge must give his or her consent to the specialty waiver. By contrast, clause 126(7) provides that the Secretary of State may give his or her consent in non-death penalty cases. In other words, consent is currently entirely discretionary. The Secretary of State is never obliged to give consent and would withhold it if there were good grounds for believing that it would be unjust to give it. He or she could also take into account any representations that the fugitive, or his or her legal representatives, might care to submit.
I shall spell out more clearly the safeguards that are implied. First, as the Committee will be well aware, most part 2 countries—indeed, all those that are not in the Council of Europe—have to supply prima facie
evidence to accompany their extradition requests. That can apply equally in cases involving a request to prosecute for additional offences. Secondly and crucially, any decision taken by a Minister in this context is judicially reviewable. A Minister who took a manifestly unreasonable decision could expect to lose a judicial review. Those circumstances would clearly apply if the Minister failed to consider any of the bars to extradition.
I hope that the hon. Gentleman has received enough comfort from my clarification of what is intended in the clause to feel able to withdraw his amendment.
I am grateful to the Minister and welcome him to the Committee. It has been a brief appearance, but a helpful one.
The Minister has set out the reasons why the Secretary of State has a wider discretion. I understand entirely what he says, and the contrast that he has drawn between the mandatory nature of what a district judge has to do under clause 52 in relation to part 1 countries, and the provision relating to the Secretary of State, which uses the word ''may'', provides residual discretion, and involves decisions that are judicially reviewable.
Nevertheless, I hope that the Minister will at least keep the matter under review, and consider whether, in addition to the word ''may'' in clause 126(7), it might in future be helpful, for the sake of clarity, for all the bars to be listed. I did not hear him argue that it would be entirely wrong or inappropriate to insert references to clauses 78, 92 and 93. He is simply saying that we do not need to, but I think that that would provide helpful clarification, because even though the word ''may'' is in clause 126(7), it makes it look as if the Secretary of State considers only one bar. I do not think that it would damage the legislation to make it clearer that he uses his discretion to consider all the bars. If the death penalty issue is raised in clause 91, why not also include clauses 78, 92 and 93?
The Minister seems to be saying that the Secretary of State has to consider those points anyway—that he has to exercise his discretion and consider the whole prima facie case. I therefore hope that the Minister will keep that under review and perhaps consider tabling a Government amendment at a later stage just to make the position clearer. At this stage, however, having probed the Minister and heard his reassurances, which could be considered by a court in future under the rule in Pepper v. Hart, I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 126 ordered to stand part of the Bill.
Clauses 127 to 140 ordered to stand part of the Bill.
Further consideration adjourned.—[Derek Twigg.]
Adjourned accordingly at twelve minutes to Four o'clock till Thursday 16 January at twenty-five minutes past Nine o'clock.