I beg to move amendment No. 154, in
clause 70, page 35, line 33, leave out subsection (4).
We are once again putting forward the views of the Law Society of England and Wales. We share its view that there is no justification in the Bill for two different part 2 proceedings for what the Law Society calls category or part 2 countries. The clause provides that an Order in Council could in future designate the part 2 categories into sub-tiers: one that would require information; the other, evidence to support the warrant. The Opposition have not seen anything that justifies a requirement for a lesser degree of evidence for any part 2 state.
Issues relating to the Human Rights Act 1998 and procedural safeguards will not be so effectively monitored and enforced in part 2 proceedings. In the absence of such enforcement mechanisms, the Law Society of England and Wales says that there should be a requirement for prima facie evidence, which will provide protections against foreign states embarking on what the courts refer to as fishing expeditions. In my years in practice at the Bar, I worked on various cases that involved reducing the opportunities for parties to go on such fishing expeditions. I am sure that the hon. Member for Orkney and Shetland (Mr. Carmichael) will know from his experience north of the border—he is nodding—that the courts there are keen to avoid such fishing for evidence.
A requirement for prima facie evidence would avoid potential uses of the procedures for merely incompetent or mistaken investigations. Again, I am indebted to Mr. Roscoe of Victor Lissack and Roscoe Solicitors. As a specialist in the field, he drew my attention to several cases in which entirely trivial accusations appear to have been made against people in this country. One case was dropped in a matter of days after someone had been extradited. In the meantime, however, a huge amount of taxpayers' money had been wasted on extradition proceedings.
In another case, the Czech authorities sought to extradite a Mr. Sivak. I make no general criticism of those authorities, but I understand from Mr. Roscoe, who drew the case to my attention, that the Czech Republic—an applicant state to the EU—was pursuing investigations that it should not have been pursuing. The Czech Republic may, of course, become a part 1 country, but even in the case of part 2
countries, we are concerned that there should be no possibility of sub-divisions, or of allowing requesting states to go on fishing expedition or pursuing trivial inquiries.
We will have other opportunities to consider de minimis provisions, which we will doubtless discuss in our debates on part 5. At this stage, I merely want to place on record the concerns of the Law Society of England and Wales and specialist extradition solicitors, which we share.
I generally concur with the views of the Law Society of England and Wales, as so ably expressed by the hon. Member for Surrey Heath (Mr. Hawkins). In particular, I can see no reason for the creation of two categories within category 2. My concerns stem from the point made by the hon. Member for Surrey Heath about fishing expeditions. During consideration of the Proceeds of Crime Bill, the Minister heard me make the point that wherever a power is made, the people who are given it will inevitably start to look for some way in which it can be abused. It is the proper function of Parliament to close down the options for abuse, but the proposal, with its distinction between evidence and information, is open to such abuse. There is no good reason for such a proposal in the first place, let alone one that almost invites fishing expeditions.
The hon. Member for Surrey Heath expressed another concern that I share, which I would be grateful if the Minister would address. The Human Rights Act 1998 issues procedural safeguards that will not be so easy to monitor or enforce, particularly in part 2 proceedings, which relate to enforcement mechanisms. Will the Minister clarify the Government's expectations on monitoring and enforcement?
I would make a plea to get real on this issue and recognise that even the representations of an august body such as the Law Society of England and Wales cannot absolve us of the responsibility to consider treaty obligations and other longstanding arrangements, or of the need to consider in detail the workings of extradition procedures. These considerations may not be at the forefront of hon. Members' list of concerns, but they are important.
Amendment No. 154 amounts to opposition for opposition's sake. The clause deals with the requirement to produce prima facie evidence in category 2 cases. Subsection (4) provides that a request from a country specified by Order in Council need be accompanied only by ''information'' rather than ''evidence''. The amendment would erase that with no further comment, and no justification is provided.
In this context we are talking not about European Union countries, so the hon. Member for Surrey Heath should not get so excited. Does he really believe that we are removing essential safeguards and denying people proper consideration in extradition cases? That is not true.
The subsection is designed to meet our existing obligations under the European convention on extradition, which was agreed by the Government—the hon. Gentleman supports it—and has operated for 12 years. The Conservative Government signed up to the ECE in 1990 and it was their introduction of the Criminal Justice Act 1988 and the Extradition Act 1999 that allowed prima facie requirements to be removed in the first place. Her Majesty's Opposition have some responsibility for bringing us to the present position, whereby such requirements were removed for those other than category 1 countries, so why are they suggesting that we should go back on that now?
The hon. Member for Surrey Heath asked why we insist on a certain set of regulations for Australia, but perhaps we are not. Australia is not party to the European convention on human rights and we have no intention of bringing the country into part 1 procedures. Is the hon. Gentleman seriously suggesting that we should enter into arrangements with countries that have a broadly similar criminal justice system to our own, in which we have a high degree of confidence, and remove the requirement for prima facie evidence? Has the Conservative party descended into that wholly inappropriate position?
We are talking about countries such as Switzerland, Canada and Australia, with which we have done considerable extradition business over time and for which sound judicial arrangements obtain. We deal with the Governments of those countries, whatever party is in power, so are we to enter into treaty arrangements with them on the basis of removing the requirement for prima facie evidence? What we are doing is common sense. The other provision concerns those countries for which we have already removed that requirement, which occurred when the Conservative party was in government.
Does the hon. Member for Orkney and Shetland really believe that we would allow category 2 countries to go on fishing expeditions? A proper judicial process would have to be followed. The application made would have to be stronger than that made for a part 1 case. I do not think that the hon. Gentleman seriously believes that the sort of countries to which I referred would be allowed to go on such fishing expeditions. I therefore wonder why he suggests that we rip up that convention and row back from it at a time when we are trying to encourage increased international judicial co-operation. He appears to be suggesting that we should say that although we have been party to that convention, which was negotiated a long time ago and has been in operation for the past 12 years, we intend to reimpose a prima facie requirement of evidence on those countries. Why should we do that at this stage? I do not see any justification for doing so.
The Minister is protesting somewhat too much. He attacks me and, by implication, the hon. Member for Orkney and Shetland, for raising the point, and says that although the Law Society of England and Wales is an august body, that does not mean that we should try to row back on what the Government are doing.
I take the contrary view. We are considering a wholesale change—this is not only consolidation but a major alteration of our extradition law. The Bill, in whatever form it finally reaches the statute book, will be the Act that sets out all the law on extradition for the foreseeable future, or until another Act is passed. If we have representations from external organisations saying that we should examine the issue of whether category 2 countries should be divided into two different types, and if such an august body—as the Minister put it—as the Law Society of England and Wales expresses concern about fishing expeditions, it is the purpose of Committees such as this to consider those matters. As my right hon. Friend the Member for West Dorset said on Second Reading, there will be issues that repay scrutiny.
We are considering part 2, and we are not as rushed as we were towards the end of this morning's proceedings. I was therefore surprised by the Minister's aggrieved tone, because the purpose of the Committee is to consider the serious concerns that we raised, which are shared with the professional bodies, and with the hon. Member for Orkney and Shetland on behalf of his party. The Minister should not, therefore, sound so aggrieved.
The debate has been helpful because the Minister has said, on the record, which countries will fall into the category. I am sure that the hon. Member for Orkney and Shetland would agree that that has moved the debate forward. That was not said on Second Reading.
It would be even more helpful if the Government were to produce a comprehensive list, because this afternoon the Minister was able to refer only to countries such as Canada, Switzerland and Australia. The debate has, however, been useful. I opened it in brief and moderate terms, and so I am surprised that the Minister was so aggrieved in his tone.
A list of countries might seem superficially attractive, but I would ask the hon. Gentleman to reflect further on that issue. The arrangements need to be considered and entered into bilaterally. Therefore, drawing up a list of the countries that we would and would not be prepared to consider would be quite a delicate thing to manage, and could also be a mistake, because it could might send the wrong signals to countries in either category.
I am not sure whether the Minister is right about that. I am concerned that there should be proper parliamentary scrutiny of any Government's—not just this Government's—actions in this area. I am sure that the hon. Member for Orkney and Shetland shares my concerns. We want to ensure that arrangements such as this are made openly and clearly, and that the Government will be held to account for their actions.
When I spoke about a list earlier, I did not suggest that the Government should draw up another list stating that certain countries would never be placed in another part 2 category. I said only that it would be helpful to have a list of which countries—only Switzerland, Canada, Australia or countries like them—are covered by part 2. I do not want to rule
out the inclusion of other countries, but our debate shows that it was right to voice concerns about two different tiers of part 2, as the Law Society of England and Wales put it. We exposed a real problem, and it was right to probe.
I hope that the Minister will not be so aggrieved when we raise other concerns about part 2. It is not good enough for him to harp on about what a previous Conservative Government did. This is new legislation on extradition, and it provides an opportunity to consider the issues afresh. I was not a Minister in the previous Conservative Government and I took no decisions. We need to reflect more seriously on the matter, but we have had a useful debate and I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 70 ordered to stand part of the Bill.