Clause 193 - National security

Part of Extradition Bill – in a Public Bill Committee at 9:25 pm on 21st January 2003.

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Photo of John Maples John Maples Conservative, Stratford-on-Avon 9:25 pm, 21st January 2003

My criticism of the Bill from the start has been that it removes a series of protections that have been built into our extradition law over a long period. One of those has been the Home Secretary's discretion to refuse to allow a case to proceed or the extradition to take place at the end of it. I understand what the Government are trying to do. I have to square my comments with my criticism of cases such as that of Rachid Ramda, who has strung out his extradition case for seven or eight years by means of the Home Secretary's discretion. It is right to reduce the number of times the Home Secretary becomes involved from two to one. As I understand it, the clause removes the

initial stage in which the Home Secretary's fiat is required to proceed with extradition. It is also right to narrow down the circumstances in which the Home Secretary can refuse to allow someone to be extradited. However, the Government have gone too far. In narrowing down to this extent, they are removing a protection that is not only valuable, but essential. This is not just a judicial, but an administrative procedure in that the Government would forcibly move a British citizen to another country. People are entitled to expect the Government to be democratically accountable for the way in which they exercise that power. The Home Secretary is responsible to Parliament for the way in which he exercises his powers, and it seems to me that that would be the correct way to provide protection in this system.

If I understand clause 193 correctly, it limits the circumstances in which the Home Secretary can exercise his discretion to cases in which either

''the person was acting pursuant to a function conferred or imposed by or under an enactment, or . . . as a result of an authorisation given by the Secretary of State the person is not liable under the criminal law of any part of the United Kingdom for the conduct constituting . . . the offence''.

The third condition that must be met is that the person's extradition

''would be against the interests of national security.''

That restriction is far too narrow. I reiterate that I understand why the Government want to narrow this down, but I should like to suggest a couple of circumstances in which that should not apply. My hon. Friend the Member for Surrey Heath (Mr. Hawkins) has tabled some new clauses that deal with cases in which there has been unconscionable delay, an offence could be considered to be trivial or there are political reasons behind the request for extradition. That seems reasonable, but I shall leave my hon. Friend to argue the case for those new clauses.

The national security restriction should be expanded to include two circumstances: first, when it is clearly in the national interest not to extradite someone or when the Home Secretary believes that it is not in the national interest to extradite someone, and secondly when he believes that it would result in a manifest injustice. I do not pretend to be able to draft such a provision. The circumstances should certainly be narrowed down to those in which it would clearly be an injustice to extradite someone. I am not referring to cases similar to that of Mr. Ramda, who claims that as a Muslim he cannot get a fair trial in Paris. He seems to have convinced the House of Lords, but I believe that he would have great difficulty convincing many British and French citizens.

I certainly do not want to close off the avenue of extensive appeals to people whose extradition was being sought. However, there may be circumstances in which there could be manifest injustice and/or it would not be in the national interest to extradite someone. We saw an example of that in the Pinochet case, when a Spanish magistrate attempted to extradite a Chilean citizen from Britain for offences that he was alleged to have committed in Chile. Regardless of the rights and wrongs of General Pinochet's actions, that was an interesting development in extradition law. One

country sought to enforce extraterritoriality against the citizen of another, who happened at the time to be a resident in a third country.

Some of the subsections to clause 63 deal with such situations. I am especially concerned about the possibility of this procedure being applied against British officials, whether they are British Ministers or, dare I say it, the Prime Minister—I mean any future Prime Minister, not the present one. I shall take the Kosovo war as an example. I do not need to go into detail, but I can posit a hypothetical case in which illegal international action has been taken. Most international lawyers would argue that the bombing of Serbia was illegal, whatever the necessity or the rights and wrongs of that humanitarian action. The bombing was carried out without a United Nations resolution, but was sanctioned by the British Parliament and a democratically elected Government. Regardless of whether one thinks that that was the right thing to do or not, I am not arguing for a moment that the Prime Minister was not right to do what he did.

I am concerned about the possibility that, if the Kosovo war became a political issue in a country friendly to Serbia, such as Greece, a Greek magistrate might seek the extradition of the British Prime Minister, the Defence Secretary, a military officer, a civil servant or a diplomat who had been involved in the decision to bomb Serbia, had then retired and happened to be in Romania or somewhere that had become a category 1 country. The Greek magistrate might seek that person's extradition under one of the various international conventions, or even under the international criminal court convention, for an offence committed outside the category 1 territory, which is one of the conditions in clause 63(4), (5), (6) and (7). Those subsections attempt to cover cases in which extraterritoriality applies.

As I understand it, under clause 63(4), if the alleged offence were committed in the UK, it would be up to the UK Government to deal with it by claiming jurisdiction and stating that they would not pursue the case. Subsections (5), (6) and (7) deal with cases in which the conduct occurred outside the category 1 territory and outside the UK, but it would have been an offence if it had been committed in the UK.

In the scenario that I described, British forces took international action that the British Prime Minister sanctioned. I am concerned that the extradition of people in government associated with that action might be sought, not from the UK but from a third country in which they happened to be on Government business, on holiday or for whatever reason, to a third country that was not involved in the initial dispute. I am not talking about a Serbian magistrate seeking extradition, but a Greek magistrate or another magistrate from a category 1 country in which the offence, if it were an offence, did not take place.

The Minister may be able to convince me that this could not possibly happen under the legislation. However, it would be appalling if, as in the Pinochet case, the Prime Minister had retired, was on holiday in Romania, Slovenia, or some category 1 country of the future and had to be extradited from the UK or from

some other category 1 territory because his extradition was sought by a Greek magistrate with Serbian relatives who had been killed in the bombing. There must be a safeguard against such a situation. The Home Secretary would be such a safeguard. He should have the discretion to say that he does not believe it to be in the national interest for the extradition to take place. The only fall-back is the lack of security, which would be very difficult to substantiate in the case of a retired diplomat, Prime Minister, military officer or civil servant. There is nothing else to fall back on, and what worries me is that there will be no defence, either administratively or at law, to such an extradition.