Clause 55

Policing and Crime Bill – in a Public Bill Committee at 4:00 pm on 24th February 2009.

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Return to extraditing territory etc

Amendments made: 228, in clause 55, page 69, line 3, leave out

‘or section 28 of the Crime (Sentences) Act 1997’.

Amendment 229, in clause 55, page 69, line 8, at end insert—

‘(iii) a duty to release the person under section 1, 1AA or 7(1) of the Prisoners and Criminal Proceedings (Scotland) Act 1993 or section 5, 11(2), 13, 19 or 23 of the Custodial Sentences and Weapons (Scotland) Act 2007, or

(iv) a duty to release the person under section 1 of the Northern Ireland (Remission of Sentences) Act 1995, Article 26 of the Criminal Justice (Northern Ireland) Order 1996 or Article 17 or 18(8) of the Criminal Justice (Northern Ireland) Order 2008;’.—(Mr. Coaker.)

Photo of Evan Harris Evan Harris Shadow Science Minister

I beg to move amendment 72, in clause 55, page 70, line 3, leave out

‘the Secretary of State is not satisfied that the return is compatible’ and insert

‘to do so would be incompatible’.

Photo of Nicholas Winterton Nicholas Winterton Conservative, Macclesfield

With this it will be convenient to discuss the following: amendment 73, in clause 55, page 70, line 5, after ‘1998’, insert

‘or any other international treaty which the United Kingdom is a party to or would be contrary to the interests of justice.’.

Amendment 74, in clause 55, page 70, line 5, at end insert—

‘(1A) If subsection (1) applies—

(a) an undertaking to return a person to a territory given under section 153A or 153C, and

(b) any power given under section 153A and 153C by reference to the undertaking are of no effect.’.

Photo of Evan Harris Evan Harris Shadow Science Minister

I am pleased to be able to speak to these amendments. First, I wish to raise a couple of concerns about the structure of the extradition clauses, of which clause 55 is, I think, the most important. I would be grateful if the Minister could give me some reassurance.

The Extradition Act 2003 was not particularly controversial in the House but it attracted some controversy at that time, as it was a way of implementing the European arrest warrant. Part of the basis of that legislation, and of this Bill, is that there is no need for a UK court, when it receives notice of a European arrest warrant, to look behind that application for prima facia evidence or to have regard to the need for dual criminality. In other words, it is perfectly possible, by design, that someone should be extradited for an offence under a European arrest warrant to a country where that offence is not considered an offence. That produces problems and leads to legal cases.

Such applications can create problems not only for the individuals concerned and their human rights, but for our courts. For example, the application could be vague. There have been examples in the press of applications for swindling, computer offences and speech offences such as xenophobia and incitement to hatred. Only incitement to religious hatred is an offence without intent in this country and there are high thresholds for other incitement offences. Is the Minister satisfied that it is reasonable to base a clause on a presumption that all EU member states that are subject to the European arrest warrant have fair laws and processes?

For example, we have specifically decided that holocaust denial, however odious, will not be made a criminal offence, so is it appropriate that we make it possible for other EU member states to seek to extradite for such an offence someone who is not a citizen of their country and who has not published in their country except on the internet? The Minister will be aware of the controversy over the case of Dr. Toben, in which the magistrates in Westminster dismissed the application, citing vagueness, and in the end he was not extradited only because the German Government decided not to appeal to the High Court. Is it right that we should have legislation that fails to make it clear that that is not the sort of case that is appropriate for extradition? Speech offences are not offences in this country, so there is no dual criminality, and what about cases in which a country seeks the extradition of a citizen of another country—potentially a British citizen—for publishing certain material? I would be grateful if the Minister clarified that, because otherwise we will have to come back to that issue at a later stage to debate more specific amendments.

The matter is made worse by the fact that under the 2003 Act, as I understand it, the Home Secretary may by Order in Council extend the provisions to non-EU countries, such as Azerbaijan, Georgia and the Russian Federation, which have all benefited from such Orders in Council. There is a significant human rights concern underlying the whole framework of the legislation.

I will now turn to amendments 72, 73 and 74, the aims of which will be apparent to Members, and outline them briefly, because we need to make progress. They seek to remove the subjective view of the Secretary of State on the question of whether a return would be incompatible with the meaning of the Human Rights Act 1998. They would do several things. First, they would make that decision the result of an objective test  so that the question of whether the Secretary of State is satisfied is not simply the opinion of the Secretary of State.

Secondly, the amendments would give full access to the courts and not simply access to review that decision by judicial review, which is not the ideal way in which to raise issues of fact that go behind the decision, although the Minister might take a different view, as the Government often do, depending on the case. Indeed, when the Government are defending a judicial review, they often say that it is a matter of deciding whether the process is wrong or whether the decision is so unreasonable as to be an abuse of process. When someone is facing extradition to a country where we cannot be sure that they will be looked after in compliance with obligations that we have made, it must be reasonable that facts should be clearly testable in court.

The amendments seek to provide recognition not only for the European convention rights, but for other international treaties. An example is the United Nations convention on refugees, which was established after the second world war to provide a haven for people who might otherwise be persecuted, perhaps by prosecution, in another country.

The amendments also include a provision that would require consideration to be given to the wider interests of justice. I will give two examples in order to save time. The first example is an undertaking that is given prior to all the knowledge becoming available. Once a person is in this country, it may become clear that they have a medical condition, for example, that makes them particularly vulnerable and would put them at risk if they were extradited to the country to which the Secretary of State has given an undertaking to extradite them. A topical example is the well-known case of Gary McKinnon, who has a mental health disorder that would make him particularly vulnerable if he were transferred to an American supermax prison. We need to be capable, within our law, of giving consideration to that issue, because if someone is made to suffer on the basis of being extradited to a country or is sent back having been extradited here, that is not in the interests of justice and might not be compliant with their human rights. That is not a direct example and I am not seeking to raise that case specifically.

Photo of Vernon Coaker Vernon Coaker Minister of State (Home Office) (Policing, Crime & Security) 4:15 pm, 24th February 2009

I am concerned about our discussing the Gary McKinnon case, because it is currently before the courts.

Photo of Evan Harris Evan Harris Shadow Science Minister

As I understand it, we are discussing legislation. I am not asking the Minister to give an opinion on that case, but we are entitled to raise cases under the sub judice rule.

Photo of Nicholas Winterton Nicholas Winterton Conservative, Macclesfield

Order. May I tell the hon. Member for Oxford, West and Abingdon that, as long as he does not make specific reference to that case, which is before the courts, he is quite in order to raise the general principle? He must not refer to a specific case in any detail.

Photo of Evan Harris Evan Harris Shadow Science Minister

I am grateful, Sir Nicholas. I hope that I was careful to state that I was referring to a case such as the one involving Gary McKinnon. I was not talking about how that particular case applies, because the facts differ in the clause under discussion; we are talking  about someone who is extradited and brought to this country with a pledge that they will then be returned. I am referring to cases involving a medical condition, and the Gary McKinnon case is good example, because it shows how different countries might treat a medical condition. I will move swiftly on, as long as the Minister understands that there is nothing in the clause that recognises a change in a person’s medical condition. Neither does the undertaking to remove a person to another country make such a change relevant for consideration.

The second example relates to when conditions in the country to which a person would be returned have changed since they first came here. Again, that is not made clear in the clause, and it would not be in the interests of justice for someone to be sent back to a country where there has been a substantial change in circumstances and where a fair trial, the person’s welfare, or, in the case of a UK citizen, the oversight of their welfare cannot be guaranteed.

Those are the concerns raised by Liberty in relation to the clause. Furthermore, without being privy to the correspondence of the Joint Committee on Human Rights—on which I serve with the Minister—I believe that the clause will exercise that Committee simply because it allows subjective tests, such as the Secretary of State being satisfied, and only refers to one of the many treaties to which we are party. It is appropriate to leave it there, and I am grateful to the Minister for listening.

Photo of James Brokenshire James Brokenshire Shadow Minister (Home Affairs)

The amendments tabled by the hon. Member for Oxford, West and Abingdon reflect, as he said, Liberty’s concerns about clause 55. Amendment 72 would replace the provision that the Secretary of State is not satisfied that the return is compatible with the European convention on human rights with a provision that such a return would be incompatible with the convention. In other words, and as the hon. Gentleman said, Liberty wish to replace a subjective requirement with an objective test.

While I fully recognise and agree that the provision should be compliant with the European convention, I question the application of these amendments and the effect they would have. Even if amendment 72 were made, if power is vested in the Secretary of State, notwithstanding that the wording would have changed and it would be compliant with the relevant convention or treaty rights, on the face of it, the assessment would potentially still be made by the Secretary of State.

I will make a further point on that because it is the sort of drafting issue with which we are concerned. While I fully respect and understand the intention behind the amendments, legal advice would need to be provided to an individual at some stage, and a judgment would have to be made on whether or not it was compliant. Therefore, without seeking to undermine the intent behind the amendments in any way, I wonder whether they will have the import that has been suggested. In all circumstances, legal advice that relies on precedent in case law provides a judgment or assessment. Therefore, I am not certain how far the changes take us forward.

Justice made an ancillary point on this issue:

“It is disappointing that despite the aims of the Framework Decision to abolish extradition between EU Member States and to replace this with a system of surrender through judicial process,  the Secretary of State is to be given this power rather than a judge at a hearing. We consider that the opportunity should be taken to amend the provisions to allow a hearing before a judge who will consider whether an undertaking should be given, at which the consent, or at a minimum the representations of the affected person can be considered. Without such a measure the scheme is at risk of interfering with the right to a fair hearing under article 6 ECHR.”

There is an issue of practicality and balance. Justice argues that a court hearing should be appropriate in any event. In other words, it takes the line of argument that the hon. Member for Oxford, West and Abingdon has set out from Liberty’s paper to its natural conclusion and says that the matter should rest with the court rather than with the Secretary of State.

Photo of Evan Harris Evan Harris Shadow Science Minister

I saw the Justice briefing. In taking out “the Secretary of State”, I was not inserting “the judge”. I believe that that is implicit because without having to wait for the Secretary of State to announce whether they are satisfied, the decision can be rolled into the same series of hearings and deliberations that are held for those contesting their extradition. That is my understanding, but it needs confirmation as I am not a lawyer.

Photo of James Brokenshire James Brokenshire Shadow Minister (Home Affairs)

The hon. Gentleman’s intervention is helpful because it allows us to understand the purpose of his amendments more clearly. There is a question of balance and appropriateness in considering the application of these provisions. In my view, the matter should reside with the Secretary of State rather than automatically going to a court for determination. It will be interesting to hear the Minister’s response and his views on compliance with the relevant convention rights. That will inform the debate further.

Photo of Evan Harris Evan Harris Shadow Science Minister

May I point out something that I might not have done justice to in my original remarks? Amendment 74 is important and I would like a specific response from the Minister. Does the hon. Member for Hornchurch agree that the sort of wording in amendment 74 must be added to proposed new section 153D(1) to ensure that there is no discretion because of the words:

“Nothing ... requires the return of a person”?

If the original wording means that the Human Rights Act 1998 is likely to be breached, the powers will be nullified.

Photo of James Brokenshire James Brokenshire Shadow Minister (Home Affairs)

It is interesting to hear what the hon. Gentleman says. I respect the concern expressed by Liberty on compliance with convention rights, which he has articulated. It is important to ensure that there is clarity in the Bill. The current wording expresses the judgment and the need for compliance with the Human Rights Act. However, Justice and Liberty have raised interesting questions and it will be interesting to hear the Minister’s response and why he believes the provisions are compliant with convention rules and will not be not subject to challenge.

Photo of Vernon Coaker Vernon Coaker Minister of State (Home Office) (Policing, Crime & Security)

I thought that those were very good remarks. To do what the hon. Member for Oxford, West and Abingdon suggests would be illegal. The Secretary of State cannot ignore human rights issues in making a judgment to send somebody back.

I will start with amendment 74, which puts us slightly out of kilter, but it is where the debate finished. That amendment would oblige the Secretary of State not to issue an undertaking when it is found that a person’s removal would breach their human rights. Who would disagree with that? We agree with the purpose of the amendment, but it is unnecessary to state explicitly that the Secretary of State cannot extradite or send someone back where their human rights will be breached, which is what amendment 74 does.

Photo of Vernon Coaker Vernon Coaker Minister of State (Home Office) (Policing, Crime & Security)

That is what amendment 74 does. All I am saying is that I do not disagree with it, but that it cannot be done because it is illegal.

Photo of Evan Harris Evan Harris Shadow Science Minister 4:30 pm, 24th February 2009

I probably did not do justice to amendment 74, so I will be clear about what it seeks to do in addition to the statement of the obvious that the Minister has identified. It seeks to ensure that the powers set out in the Bill that are consequential on the undertaking—for example, the power to keep a person in custody until return—fall away if the undertaking cannot be complied with. In other words, they are null and void. It does not necessarily follow from this framework that those powers are null and void even if they are not exercised. I think the amendment is a tidier way than the current wording of making that clear. It is not because I failed to grasp the obvious.

Photo of Vernon Coaker Vernon Coaker Minister of State (Home Office) (Policing, Crime & Security)

I apologise. I was not trying to be disrespectful to the hon. Gentleman. I take the point he is trying to make that what he has pointed out could be consequential to all of this. That does not alter the fact that it is unnecessary. Nobody disagrees with the point that has been made.

Sir Nicholas, if you remember in the evidence sessions, I was delighted with the inclusion of new section 153D in the Bill. I sometimes go to the Joint Committee on Human Rights and have a good relationship with it. The hon. Gentleman knows that I spend a lot of time defending the need for human rights to be protected in legislation. The Home Office and I have had many fruitful discussions with the JCHR to try to do better with respect to human rights compliance. One reason for this provision is the fact that I—along with the Home Office—am increasingly determined to ensure that human rights provisions are contained explicitly within legislation.

The hon. Gentleman was here this morning when I mentioned that Liberty had said that though some improvements, debates and discussions might be needed—which is what we are having—this is not a titanic battle of principle. This is not necessarily a decision to extradite. It is to return someone pursuant to an undertaking. Any decision to extradite—or any of these matters—has to be compliant with the ECHR and the Human Rights Act. As for the involvement of the courts—to which the hon. Members for Oxford, West and Abingdon and for Hornchurch referred—the Secretary of State is accountable to the courts of the land. Although he or she may make  the initial judgment, such decisions, as we have seen in the past, can be judicially reviewed. There has to be an undertaking that everything done is consistent with that.

A couple of other points were made by the hon. Member for Oxford, West and Abingdon. The terms of proposed new section 153D make it clear that a person cannot be returned pursuant to a temporary surrender undertaken where to do so would breach the ECHR. It is explicitly there. Whether a return would breach the ECHR would be considered at the moment of return. So any matters arising after extradition to the UK, for example regime change, would be taken into account at that time. Again, some of the things that the hon. Gentleman is pointing out—such as, what happens if this happens—are partly what would be used to inform the decisions made as to whether somebody should be returned. As to the idea of leaving this to the discretion of the Secretary of State, the Secretary of State does not have any discretion when it comes to acting in a way that is ECHR-compliant. She has to act in that way. I became slightly agitated because it is unlawful to do otherwise. This is the point that I was emphatically trying to make to the hon. Gentleman.

As he mentioned, dual criminality is the principle that the crimes for which a person is sought must be offences in both countries for extradition to take place. He will know that there are 32 categories of offence—the most serious cases—for which dual criminality is not needed for a European arrest warrant to be issued. He mentioned the case of Dr. Toben, who was the subject of an EAW request from Germany for holocaust denial and was arrested at Heathrow in October 2008. Germany sought his extradition under the offences in the EAW for which dual criminality does not apply: xenophobia, racism and computer-related crime. The hon. Gentleman will also know that Dr. Toben was ultimately discharged by the courts. The judicial process worked.

The principle of mutual recognition underpins law enforcement instruments within the EU, including the EAW, and key to that is member states’ trust of each others’ legal systems. I have said to his hon. Friend the Member for Chesterfield that if the hon. Gentleman became an EU Minister, he would have to be very careful about saying that he did not trust the legal systems of other EU members. One of the conditions of becoming an EU member is having a legal system based on the principles that we all expect. None the less, we do not have to return somebody. The terms of the Extradition Act 2003 make it clear that if there are concerns about the fairness of a court system in a country, section 20 prohibits surrender to another member state.

I ask the Committee to resist amendments 72 and 74. I do not see the need for them and they are unnecessary as compliance with the ECHR is implicit in the Bill. To show that I am not only kind to the main Opposition spokesmen, I will say that the hon. Member for Oxford, West and Abingdon has a point with amendment 73. I hope that he relays this to his colleagues on the Joint Committee on Human Rights. The amendment refers to other international treaties, which should be taken into account when looking at issues of temporary surrender, extradition and so on. In my view, the need to take into account other treaty obligations, for example, the UN refugee convention, is implicit in the terms of the ECHR. However, I will look at what amendment 73 suggests,  which is whether the Bill needs to be more explicit about the fact that as well as complying with ECHR regulations and requirements, some other conventions should be adhered to.

Although I was fairly robust on amendments 72 and 74 and the general points about compliance with the ECHR, I hope that the esteemed member of the JCHR will look at what I have said about amendment 73—I am frightened of the JCHR. I think that the hon. Gentleman has an important point about what may need to be in the Bill. Human rights considerations are extremely important to me, which is why the proposed new section is in the Bill. Everything that he is seeking to achieve through amendments 72 and 74 is already achieved through the provisions in the Bill. With those remarks, I ask him to consider withdrawing the amendment.

Photo of Evan Harris Evan Harris Shadow Science Minister

Flattery is very helpful with me, but cuts no ice with the JCHR, so the Minister will still have to face the music there in due course. Obviously, I welcome what he has just said about amendment 73 and I will come on to that.

I would first like to make a point regarding his response to my earlier points. Membership of the EU does not, even in the Liberal Democrats, involve the suspension of critical faculties; just as other countries, and indeed the Council of Europe, can be critical of some of our laws, for example, on terror. Just because we are a member of the Council of Europe does not mean that, by definition, everything that we do is acceptable. I do not think therefore—I am not suggesting the Minister said this in these terms—that simply accepting someone as a new EU member means that there is no appraisal to be made on an individual case. I am not saying that he said that there was no appraisal, but the point is that we need to keep our wits about us.

The second point relates to Dr. Toben as an example of that. Although he escaped extradition, it was only because the Germans decided not to press their appeal in the High Court. So, it was not that the court overruled them on the basis of it not being a good enough charge; nor was it on the issue of the offence that he was charged with being extraterritorial because of a website hosted in Australia; it was because they chose not to, and I fear that there will be other people who will be caught by that, but I accept that it is not a matter for today.

On the issues raised by the amendments, the Minister has said—three times now—that he notes that Liberty has said that there is no titanic battle on this part of the Bill, and I think that is true. However, I just hope that we come to a time when that will be obvious, and the Minister is wise to rejoice, or express relief, that he is not in a pitched battle with human rights organisations over this part of the Bill. I think that is—I do not want to be too partisan about this—more a judgment on some of the other legislation where he has been engaged with them in such a contest, rather than necessarily saying that everything in the Bill is fine.

Photo of Vernon Coaker Vernon Coaker Minister of State (Home Office) (Policing, Crime & Security)

Does the hon. Gentleman think that it is actually because we have included proposed new section 153D on the face of the Bill? Does he not also think that that is a part of why, perhaps, compared with some of the battles that have been fought in the past, they have not been fought as hard on this specific part of the Bill?

Photo of Evan Harris Evan Harris Shadow Science Minister

The Minister is very keen to get recognition for the inclusion of proposed new section 153D. If it was not there, the situation would be worse and it is a worthy step forward. I accept that and I am sure that others will note it too, including in the other place—of course I accept that.

Turning to the descriptions he has made of the three amendments, I would like to deal with what the hon. Gentleman said, briefly, on amendment 72. He says that the Home Secretary has no discretion as to whether to abide by the convention rights, and of course that is true. However, he still has to accept a subjective provision here, because the Secretary of State merely—I use that word appropriately and deliberately—has to satisfy herself that

“the return is compatible with the convention rights”.

As soon as she does, that is it, subject only to judicial review and I do not think he addressed the point that relying on judicial review of Executive action or Executive decision-making is not satisfactory. We have just read about the appalling case of the gay asylum seeker who was sent back as a result of Executive action. Yes, the courts have intervened post-facto to argue that that was wrong and have insisted that the Home Department do what they can to get that person back—we do not know the name or country for that person’s own protection—but that is an example of a decision being judicially reviewable. That can only be done while they are in the country and it is not an ideal situation. So, although I will not press amendment 72 to a vote, I do not accept that the subjective test is adequate and the Minister will have to come back with stronger arguments at a later stage of the Bill.

Amendment 74 got some rough treatment from the Minister. I am not offended by that. I did not make the point clearly enough; that is my fault, not Liberty’s, and I take responsibility. Liberty’s point is that the proposed new section 153D states:

“Nothing in section 153A or 153C requires the return of a person” in these cases. But the question is: what about the powers that have been taken after an undertaking has been given? It is not absolutely crystal clear that they become null and void at that point. I am not suggesting that the Government will return the person, given the provisions in proposed new section 153D.

Sitting suspended for a Division in the House.

On resuming—

Photo of Nicholas Winterton Nicholas Winterton Conservative, Macclesfield

It is 15 minutes since we broke to vote in the House on a private Member’s Bill; you will see the result on the monitor. The hon. Member for Oxford, West and Abingdon was giving us the benefit of his advice regarding his amendment and I call him to resume his address.

Photo of Evan Harris Evan Harris Shadow Science Minister

I am grateful to have returned from what I understand was a rare Liberal Democrat victory in the Chamber. We are grateful for the support of those who shared our view on that Bill.

Regarding amendment 74, I was again pointing out to the Minister my concern, which I do not think he has met, that although it is clear that no return would take place if the Secretary of State were not satisfied that the return were compatible with convention rights, it is not clear what happens to the person. Certain things will have flown from the undertaking, which is now vitiated by the Secretary of State’s ruling on convention rights, and I ask the Minister to consider further, perhaps in correspondence and at least before the next stage of the Bill, whether there is absolute clarity about what happens to the person left dangling in respect of either proposed new section 153A or proposed new section 153C. In one of those scenarios it is more likely that they will already be in prison, serving a sentence here perhaps.

Finally, turning to amendment 73, I am grateful to the Minister for recognising that it might be appropriate to mention the refugee convention in the Bill, after the Human Rights Act. I will bank that, but it begs the question: why not the international covenant on civil and political rights, for example, which covers similar important rights?

Photo of Vernon Coaker Vernon Coaker Minister of State (Home Office) (Policing, Crime & Security)

I used the refugee convention as an example; I am not saying that that is the only thing that we should use. I will consider whether we should put something in the Bill, and it may be that we will use two things. With respect, I have said to the hon. Gentleman that the refugee convention strikes me as an example that should be in the Bill.

Photo of Evan Harris Evan Harris Shadow Science Minister

I am grateful for that clarification and I will not comment further on the matter. I accept the Minister’s point that changes in a country will be taken into account because the decision has to be made before return. However, I will go away and reflect on the last part of amendment 74, as it still concerns me that there may be other circumstances that do not go as far as to affect convention rights or to sufficiently persuade a Home Secretary or this Home Secretary, but which might still be contrary to the interests of justice. There can be no harm in the Government giving themselves some wriggle room here, as long as the Home Secretary does not abuse it. I cannot conceive of a Home Secretary willingly not wanting to live up to the undertakings that they have given, which can be important for diplomatic relations. Having said all that, I want to express again my gratefulness to the Minister for engaging in the debate and I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 55, as amended, ordered to stand part of the Bill.

Clauses 56 and 57 ordered to stand part of the Bill.