Clause 202 - Existing legislation on extradition

Extradition Bill – in a Public Bill Committee at 3:00 pm on 21st January 2003.

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Question proposed, That the clause stand part of the Bill.

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

I am proud to rise to debate this clause. My hon. Friend the Member for Orkney and Shetland and I find it offensive in the extreme—

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

I am grateful to my colleague. This is a classic Henry VIII clause, conferring power on the Executive to make fundamental amendments to primary legislation through secondary legislation. We have been fortunate to have the Select Committee's comments on the Extradition Bill. I refer to page 29 of its excellent report and we have all noted its conclusion. With the backing of my party, which responded to requests to express its views on the Bill, I shall attempt to précis the report. It states:

''The Bill provides no indication of what provisions of these Acts''—

the Backing of Warrants (Republic of Ireland) Act 1965 and the Extradition Act 1989—

''the Government intends should be amended or repealed. Clause 205 provides that any Order in Council made under clause 165 would be subject to the negative resolution procedure, whereby it may be annulled in pursuance of a resolution of either House.''

It continues:

''The Home Office has told us that it considers Clause 202 needs to be drafted in its present form because the Government intends that the Bill will apply to all extradition requests received after the Bill comes into force. Consequently, it intends to repeal both the 1965 and 1989 Acts in their entirety. However, these Acts cannot be repealed until all cases which are in the system at such time as the Bill comes into force have been finally disposed of.''

The Home Affairs Committee makes it quite clear that it considers the clause to constitutionally inappropriate. As I said at the outset, it is a classic Henry VIII clause and it is objectionable because we have no idea, beyond a bland assertion from the Home Office, what parts of the Acts will be repealed, or what the principles or guidelines for appeals will be.

Fortuitously, on 14 January 2003, at the behest of the noble Lord Dahrendorf, a debate on the third report of the Delegated Powers and Regulatory Reform Committee took place in another place. The debate centred on the key constitutional question of the limits of Executive power, and Parliament's ability—and its duty—to prevent the unchecked expansion of those limits. The conclusion was that, although Henry VIII powers could occasionally be justified through the negative procedure, the fundamental principle was that there

''should always be a presumption in favour of the affirmative procedure. That means that whenever it is not adopted reasons must be given in the Explanatory Notes accompanying Bills why this should be so.''—[Official Report, House of Lords, 14 January 2003; Vol. 643, c. 169.]

We shall press for a Division on these obnoxious, objectionable and unparliamentary provisions. I hope that Labour Members will support our endeavours to ensure that Parliament regains its authority and the principle of parliamentary democracy is retained. We have discussed this before in Committee. This is a slipshod little clause that has no place in the Bill.

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

I am glad that the hon. Gentleman has expressed his views in such strong terms, as it has saved me the trouble of doing so. I will not bore the Committee by repeating what he said, but I agree with every word. It is rare for me to agree with every word uttered by a Liberal Democrat, but it is more likely to happen with the two Liberal Democrats on this Committee. The Minister has sought to drive a wedge between them based on their lack of communication. He also described the hon. Member for Torridge and West Devon as being the Eurosceptic wing of the Liberal Democrat party, but he is also on its constitutional wing, as is his hon. Friend the Member for Orkney and Shetland. They believe in the historic traditions of Parliament, and long may they continue to do so; even so, I wish that their views were more widely shared by their parliamentary colleagues, who so often vote with Labour to undermine our constitutional traditions.

The Conservatives, too, object to Henry VIII clauses. Since he became shadow Home Secretary, and probably for many years before that, my right hon. Friend the Member for West Dorset (Mr. Letwin)

has voted against every Henry VIII provision that the Government have sought to slip in. My hon. Friends and I will certainly support the Liberal Democrats in voting against the clause for all the reasons that the Select Committee set out. I have no doubt that there will be a huge amount of opposition, including from Labour peers, when the provision comes before another place. Often the only way we have managed to preserve our constitutional traditions recently has been when Labour peers have voted with Conservative and Liberal Democrat peers. Long may that continue, as well.

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

I share the pride expressed my hon. Friend the Member for Torridge and West Devon. The hon. Member for Surrey Heath says that it is unusual for him to agree with every word uttered by my hon. Friend. I understand where he is coming from. I, too, find myself in that happy position. There is an important constitutional point here which my hon. Friend, in his typically understated way, brings to the attention of the Committee. The issue is well explored by the Home Affairs Committee report on the Bill. The Minister may not be aware that that is a Labour-dominated Committee—[Laughter.]

The extent of the discretion that the clause gives the Government is quite unnecessary. Unless there is some compelling reason why the provisions could not be achieved by some other way, perhaps by specification of sections in a schedule, which might be brought into force by order at a later date, I can see no reason why we should be asked to give the Executive a power of this sort.

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

Does the hon. Gentleman share my concern that we are seeing more and more of these Henry VIII clauses in more and more Bills? If the Government simply adopt a Henry VIII clause mentality on every Bill—

Photo of Edward O'Hara Edward O'Hara Labour, Knowsley South

Order. We are considering the Extradition Bill.

Photo of Alistair Carmichael Alistair Carmichael Shadow Spokesperson (Energy and Climate Change), Liberal Democrat Spokesperson (Energy and Climate Change) 3:15 pm, 21st January 2003

I have a great deal of sympathy for the sentiments that the hon. Gentleman expresses. Of course, one can refer only to the clause as it is drafted, but it is legitimate that we all express some disappointment in the Minister. I am not angry with him, simply a little sad and disappointed that he should seek to usurp the proper functions of Parliament.

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

The hon. Gentleman says that he is disappointed in the Minister, but we should bear it in mind that it is not necessarily this Minister's fault. He may have been immortalised on celluloid as the aggressive Whip in ''The Project'', with fellow former Labour Whips accusing him of being a bully, but I cannot believe that of him. I suspect that he is an old softy at heart, and that it is those behind him—the forces of darkness, about whom we have read so much—who are responsible.

Photo of Edward O'Hara Edward O'Hara Labour, Knowsley South

Order. The clause has nothing to do with whether the Minister is soft or hard.

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

The attempts of the hon. Member for Orkney and Shetland to heal the rift that has opened up in his party are fairly transparent. He tries his best to row in behind his hon. Friend, but instead of using the scolding language of the hon. Member for Torridge and West Devon, his remarks are so reasonable that he completely undermines what he is trying to do.

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

No. I would be out of order if I were to do so, and the hon. Gentleman would be out of order regardless of what he said. We should get on with discussing the substance of the debate, although I know that that is a dreadful imposition and undermining of parliamentary democracy.

The clause allows the Backing of Warrants (Republic of Ireland) Act 1965 and the Extradition Act 1989 to be amended or repealed by an Order in Council, as we will need to get rid of our existing legislation once the new arrangements for dealing with extradition requests are in place. I realise that there has been criticism of our taking powers to repeal the existing legislation by order rather than repealing them under the Bill. I acknowledge that the Labour-dominated Home Affairs Committee—and initially the Joint Committee on Human Rights—expressed concerns about the matter, and that the Home Affairs Committee report suggested that the clause should be deleted and that the Bill should include a provision to repeal the Acts.

I take the opportunity to explain why we drafted the clause in this way. The provisions and procedures will replace the existing legislation—

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

I want to put this on the record so that the hon. Gentleman will see what draconian measures I am introducing, and what I am not introducing! We clearly intend to repeal the 1989 and 1965 Acts—

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

The hon. Member for Torridge and West Devon did not refer to the final paragraph of the Select Committee's report, which relates to warrants to and from the Republic of Ireland. Will the Minister also deal briefly with the Select Committee's final recommendation 29, which states that

''central statistics on extraditions to and from the Republic should henceforward be maintained''?

That is relevant to one of the Acts, and it would be helpful if the Minister could confirm that that will be done. It is a small point, but one that the hon. Member for Torridge and West Devon did not mention.

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

Yes, it would be helpful, and we intend positively to respond to that point, just to prove that we do not ignore everything that Labour-dominated Home Affairs Committees recommend, if for no other reason.

The important substantive issue was misunderstood in the scolding that I received from the hon. Member for Torridge and West Devon. He will obviously vote

against the clause if I do not manage to satisfy him. When the Bill receives Royal Assent and is enacted, there will still be a number of outstanding extradition cases that will be governed by the 1989 Act. It will therefore be necessary to keep the new and the current systems operating in tandem until every extradition request that has been started under the existing procedures or the backing of warrants legislation has reached its completion. Once that has happened, the 1989 and the 1965 Acts will be repealed in their entirety. I am sure that hon. Members will understand that it is not possible to predict when will then happen. It therefore seems reasonable to repeal those Acts by Order in Council.

As I have explained, the Joint Committee on Human Rights questioned us about the matter, and considered our explanation. I heard the hon. Members for Orkney and Shetland and for Lewes (Norman Baker) talk extensively about the weight that they give to the Joint Committee, whereas the hon. Members for Surrey Heath and for Torridge and West Devon do not seem to be that bothered about human rights.

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

The Minister cannot get away with that. Does he not recall that, in one of the first amendments that we discussed, I sought to incorporate in the definitions of any country to be classified as category 1 that such a country should be, among other things, a signatory to the European convention on human rights?

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

I am glad to have lured the hon. Gentleman out on that. I hope that his commitment to human rights is complete and absolute and that his support for the Joint Committee is as substantial as that of the hon. Member for Orkney and Shetland.

We were questioned at length by the Joint Committee, and that Committee's conclusion is contained in the ''Scrutiny of Bills: Progress Report'', which was published on 20 December. I quote from paragraph 60 on page 21 of that report:

''On the relationship between the Bill and the Extradition Act 1989, we were told that the 1989 Act would be repealed in its entirety, together with the Backing of Warrants Act 1965. However, this cannot be done until the last cases to be brought under the Act have been finally disposed of. The power to repeal by Order will be used to repeal the earlier legislation when that time comes. In our view''—

that is the view of the Joint Committee, on which I believe that the Liberal Democrats are represented, in which they play a full part, and in which the hon. Member for Torridge and West Devon has great confidence—

''this is a satisfactory explanation of the power.''

I would hope that at least some weight would be given to the considered view of the Joint Committee by the hon. Members who are members of the Home Affairs Committee—a Labour-dominated Select Committee—and that this Committee will also give some weight to those views. I therefore hope also that any further scolding that I receive from the hon. Member for Torridge and West Devon will be toned down.

If there is another approach that does not present any problems, being the reasonable man that I am—not the one that is portrayed in a disgraceful television

programme—I will consider it. I do not think that Opposition Members want those who have been in the queue for extradition for a long time to be able to escape justice. We need the powers to run in tandem and to continue for an indefinable period until all the cases have been disposed of. Having considered the matter, it seems to me, and to the Joint Committee on Human Rights, that what we propose is a sensible way forward; the measures will removed in their entirety at the appropriate time. I hope that that will soften the assault from Opposition Members, and that they will withdraw their scandalous remarks and support the proposal, unless they can offer an alternative, to which I shall give due consideration.

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

It is proper that the Joint Committee on Human Rights should have regard to the provision from a human rights perspective, but the point made by my hon. Friend the Member for Torridge and West Devon and others is more far-reaching than that. It is a fundamental constitutional principle that primary legislation should not be amended by secondary legislation other than in the most exceptional circumstances. That goes beyond human rights considerations, and it would fall only narrowly within the ambit of debate in the Joint Committee. The proposal is not the trump card that the Minister seems to think it is.

It is possible for the Bill to include a proposal to repeal the relevant measures. I am no draftsman, but I believe that it could be done by the construction of a schedule, which could be brought into force at a later date by a separate commencement order.

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

I was not using the Joint Committee on Human Rights as the only trump card; I was using it to damp down Liberal Democrats' outrage about the powers. If the Joint Committee shared that outrage, it would have said so clearly in its report on 20 December. I am happy to consider hon. Members' suggestions if they do not create major problems or introduce loopholes that would prevent our taking the appropriate action against those who are currently in the system. It should be acknowledged that we are discussing exceptional circumstances that might justify withdrawing primary legislation by secondary legislation. However, I do not want to impose on Parliament a ludicrous procedure that does not make sense, nor do I want to provide loopholes that enable people to escape due process and justice. If another way cannot be found, I ask the hon. Gentleman to accept that these are exactly the exceptional circumstances that justify primary legislation being withdrawn by secondary legislation.

The hon. Gentleman appears to be happy to do that if we can satisfy him that there is not another way. Everyone knows what principle I am talking about, and if the great minds in the other place or anywhere else can come up with a proposal I will be happy to consider it. I do not have a closed mind on the matter. I hope that we can proceed, without allegations of unconstitutional practice, to try to find a sensible way to bring the old arrangements to a conclusion and the new ones into being.

Photo of Mr John Burnett Mr John Burnett Liberal Democrat, Torridge and West Devon 3:30 pm, 21st January 2003

I was interested to hear the Minister's comments. I detected a flower of reason and embryonic capitulation, and I am glad to hear that he will consider the matter further. Amendments will undoubtedly be tabled on Report and in the other place. However, it has always been my view that one should not negotiate from a position of weakness. I believe that the Minister's card should be marked, and he should be given a yellow card.

As my hon. Friend the Member for Orkney and Shetland mentioned, it is a matter of principle. That was also the view of the hon. Member for Surrey Heath, and the Minister should heed the wise words of the Members of the other place who spoke in the excellent debate on 14 January 2003. He should read the debate and take cognisance of the wise words of those learned Lords. It is not good enough. We will negotiate from a position of strength and vote against the clause.

Question put, That the clause stand part of the Bill:—

The Committee divided: Ayes 8, Noes 5.

Division number 20 Adults Abused in Childhood — Clause 202 - Existing legislation on extradition

Aye: 8 MPs

No: 5 MPs

Ayes: A-Z by last name

Nos: A-Z by last name

Question accordingly agreed to.

Clause 202 ordered to stand part of the Bill.