New Clause 11 - Extradition

Crime and Courts Bill [Lords] – in a Public Bill Committee at 9:30 am on 12th February 2013.

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‘Schedule [Extradition] (extradition) has effect.’.—(Mr Browne.)

Brought up, and read the First time.

Photo of Jeremy Browne Jeremy Browne The Minister of State, Home Department

I beg to move, That the clause be read a Second time.

Photo of Nadine Dorries Nadine Dorries Conservative, Mid Bedfordshire

With this it will be convenient to discuss Government new schedule 1—Extradition.

Photo of Jeremy Browne Jeremy Browne The Minister of State, Home Department

New clause 11 deals with an issue that will affect a relatively small number of people, but it raises some big principles and substantial public interest, so I will speak on it at some length in the hope that the Committee fully understands the Government’s intention.

On Second Reading, my right hon. Friend the Home Secretary indicated that we would be bringing forward amendments to the Extradition Act 2003 during the Committee stage to address two of the key issues that were considered by the review of our extradition arrangements. The new clause fulfils that commitment.

Part 1 of new schedule 1 relates to the so-called “forum bar”. The Government’s decision to introduce a forum bar to extradition is in response to the widespread concern across Parliament and the public that insufficient safeguards are currently built into cases of concurrent jurisdiction—where two or more courts from different countries simultaneously have jurisdiction over a specific case. I know that some members of the Committee—including my hon. Friend the Member for Enfield, Southgate, who has shown a consistent interest in this matter—and indeed some Members of the House as a whole, would prefer us simply to commence the existing forum provisions in schedule 13 to the Police and Justice Act 2006. We considered this issue at length, but have concluded that the existing provision would be cumbersome in practice and lead to wholly unnecessary delays in the extradition process.

The Government’s amendments to the Extradition Act 2003 introduce a carefully modified forum provision, which has been designed to minimise delays while still providing greater openness and safeguards for those who are subject to extradition proceedings. Our forum amendments allow a judge to bar extradition, on forum grounds, if the extradition would not be in the interests of justice.

In considering whether or not to bar extradition, a judge will have to consider whether a substantial measure of the alleged offences occurred in the UK. The judge must also, and only, consider where most of the harm occurred or was intended to occur; the interests of any victims; whether the Crown Prosecution Service or its equivalent considers that there should be no prosecution in the UK; whether the evidence is available in the UK; the desirability and practicability of all prosecutions relating to the offence taking place in one country; and the person’s connections with the UK. Those factors broadly reflect the issues that the CPS has to consider under its published guidelines for handling concurrent jurisdiction cases.

Importantly, the judge must have regard to the desirability of not requiring the disclosure of any matter that is subject to restrictions on disclosure in the requesting state. The provision is deliberately worded broadly so as  to ensure that the judge places weight on the views of the requesting state that material that is sensitive in their jurisdiction is not disclosed in open court. That will cover cases where sensitive material is not the subject of a prosecutor’s certificate—I will refer to that shortly—perhaps because it is not directly relevant to a prosecution in the United Kingdom, but it is relevant to the question whether a prosecution should take place at all.

We do not want the judge considering forum to cause any undesirable consequences, for example jeopardising a possible investigation and/or prosecution in the requesting state by ordering the disclosure of sensitive foreign material. In cases where the prosecutor has taken a formal decision not to prosecute in the United Kingdom because there is insufficient admissible evidence available, because it is not in the public interest for such a prosecution to take place or because there are concerns about the disclosure of sensitive material in any UK proceedings, a prosecutor’s certificate can be issued to that effect. That will prevent extradition being barred on forum grounds.

The purpose of the prosecutor’s certificate is to ensure that the subject of the extradition request—perhaps somebody wanted for a very serious offence—does not escape prosecution altogether because a domestic prosecution is not possible. The Government amendments point to particular circumstances where a prosecutor’s certificate may be appropriate, namely in cases where there is sensitive material which cannot be disclosed in open court because, for example, doing so would compromise national security or the investigation of terrorism or serious crime, or in cases where it is not in the public interest for such a prosecution to take place.

Although the issuing of the prosecutor’s certificate means that forum will not be considered as part of the extradition proceedings in the magistrates court, the decision to issue one can be judicially reviewed as part of any extradition appeal to the High Court. These new measures will apply to European arrest warrant and non-EAW cases covered by the Extradition Act 2003. I believe that these measures will make our extradition arrangements more open and transparent and will ensure that, in cases of concurrent jurisdiction, due consideration will given by the prosecutors to any decision about whether or not a person could be prosecuted in the United Kingdom because they know that they will need to justify any decision in front of a judge in open court, not behind closed doors, as happens at the moment.

Photo of David Burrowes David Burrowes Conservative, Enfield, Southgate

May I commend the fact that the Government are introducing a forum bar after much discussion and history on the issue? Will the Minister give more detail on his suggestion that to commence the provisions in the Police and Justice Act 2006 would be cumbersome in practice? What does he think will be cumbersome in practice? I also want to ask the Minister whether he can point to any cases of the sort that has taken up much of our time—I was involved with the case of Gary McKinnon—that will be impacted by the proposed forum bar?

Photo of Jeremy Browne Jeremy Browne The Minister of State, Home Department

I do not know whether it is appropriate for me to point to historical individual cases. As I said at the beginning, a small number of people will be affected. The measure will routinely apply to only a small number of cases. The point I was trying to make is  that we want to have a clearly understood method for assessing the appropriate forum for a trial to take place when two areas of jurisdiction apply. The example that is always given is between us and the United States, but it need not necessarily be the United States. We do not want to see a person escape having a trial because it is not possible to prosecute the person in the United Kingdom, although they have a perfectly good case to answer in another jurisdiction—the United States is a case in point.

The forum bar should not prevent a trial from taking place. It should be used to judge, when there are two potential venues for the trial, which is the most appropriate forum. As I said, there are provisions to make sure that information that is provided from the other country is handled appropriately. We want to ensure that those measures are applied fairly and openly, and that people can attend the court case to see justice taking place. We want to ensure that the process is as efficient and streamlined as possible.

Broadly, the concern that has been brought before us is that the provisions in the 2006 Act would lead to unnecessary delays. As I say, we are trying to ensure that everybody, including those obviously adversely affected, feels that the process is swift and consistent with justice being done. The Government judge that the new provisions will achieve that more effectively.

Part 2 of the new schedule relates to a slightly different matter. At present, the Home Secretary is obliged to consider human rights issues raised after a person has exhausted their appeal rights, because she is a “public authority” for the purposes of the Human Rights Act 1998, section 6(1) of which makes it clear that public authorities must not act in a way that is incompatible with the European convention on human rights. If a person raises new human rights matters that have not previously been considered during the progress of an extradition case, the Home Secretary must consider them to ensure that the person’s extradition is compatible with those rights. That can lead to significant delays while cases are considered and while any decision to uphold the extradition is challenged in the courts.

By preventing the Secretary of State from considering whether extradition is compatible with the European convention on human rights and transferring examination of such cases to the courts, the new schedule will strike a better balance between the two competing considerations of ensuring that there is consideration of late human rights issues that are deserving of the court’s attention and ensuring that people cannot abuse the system and endlessly delay extradition through last-minute, specious human rights points that may be subject to judicial review. The change will significantly reduce delays in cases that are currently referred to the Home Secretary, and it will ensure that decisions about late human rights issues are taken by the courts, which already have responsibility for such issues during all other stages of the part 2 process.

It is legitimate for the Home Secretary to play some role in the extradition process, and that will remain the case. Ministers will still sign an extradition order for part 2 countries—those not covered by the EAW—to  confirm that there are no statutory bars to an extradition once it has been approved by the district judge. That covers such issues as the death penalty, onward extradition from a third country and transfer from the International Criminal Court. Diplomatic assurances are occasionally required in those cases, and it is right that Ministers should continue to deal with them.

The provisions in parts 1 and 2 of the new schedule extend throughout the United Kingdom, but, following discussions with Justice Ministers in Scotland and Northern Ireland, the Secretary of State has decided that the provisions will be commenced in Scotland and Northern Ireland only with the agreement of the respective devolved Administrations. Finally, part 3 of new schedule 1 makes technical amendments to the 2003 Act in respect of Scottish extradition proceedings. I am content to set them out in detail, but I suggest that our debate should focus on parts 1 and 2, because Committee members are more likely to want to make broad points of political interest about them.

It is in the overwhelming public interest that our extradition arrangements function properly. If the public and Parliament are to have confidence in those arrangements, it is vital that extradition decisions are not only fair but seen to be fair. Decisions must be made in open court, where they can be challenged and explained. The introduction of the forum bar will make our extradition arrangements more open and transparent and provide greater safeguards for individuals. Removing the Home Secretary’s role in considering human rights matters in extradition cases strikes the right balance between ensuring that late human rights issues that are deserving of the court’s attention are considered and ensuring that people are not able to abuse the system and delay extradition endlessly by means of raising last-minute and specious human rights points. It is right that the Courts should consider those matters.

In short, I hope that Members on both sides of the Committee agree that the provisions make well-judged changes to our extradition arrangements. They are not meant to be unduly partisan, but to reflect concerns raised on all sides of the House and among the public generally about ensuring that we have the right balance and the right measures in place. After much consideration and expert input, the response to those concerns is the new clause and the new schedule, which I commend to the Committee.

Photo of David Hanson David Hanson Shadow Minister (Home Affairs) 9:45 pm, 12th February 2013

It is not in my nature to be grumpy, Ms Dorries, it really is not, but on this occasion I start with a little bit of a grump, which I hope that the Committee will accept.

The Home Secretary mentioned on Second Reading, which I recall was in October 2012, that she would table amendments on extradition. The amendments were tabled so late last week that they were starred amendments in our discussions on Thursday and are only being considered today because of that circumstance.

Important matters that were highlighted in October last year have been brought late to Committee, in the twilight of the Committee stage. I feel a little bit grumpy about that, but I reflect grumpiness from some people outside the House, who may have wished to comment on the relevant clauses in detail. Since the amendments were tabled, I have received submissions, as other Committee  members no doubt have, from Liberty and Fair Trials International. Committee members—including the hon. Member for Enfield, Southgate, for example, who has taken a considerable interest in this matter both in government and when in opposition—have to respond to the amendments late in the day, although they have not had much chance in this Committee even to table amendments to the new clauses.

If you will accept my grumpiness, Ms Dorries, I hope that the Minister will accept that I do not mean to start the debate in a churlish fashion. If the Secretary of State said in October that she would table amendments, she must have had some clarity about what they were going to be. To table them on 5 February for a debate on 12 February is not what I would term good practice.

I will try to brighten my demeanour, following that grumpy start, by saying that there is a relative welcome from Opposition Committee members for the clarity that the Minister seeks to introduce. He will know that we amended the 2006 Act to allow the forum bar to take place. The points he has introduced today on inserting an additional ground for a forum on which extradition can be barred provides at least some clarity. I want to press the Minister on whether that will have any effect in real life, because that is the key issue.

In considering whether to bar extradition, a judge will now, under the Minister’s proposals, have the opportunity to examine whether a substantial measure of the alleged criminal activity was performed in the United Kingdom. The judge will also consider the points that the Minister mentioned: where most harm occurred; the interest of victims; the view of the CPS or equivalent, and whether there should be a prosecution in the UK; where the evidence is available; the location of witnesses; and the person’s connections to the UK. Those are all fair and reasonable tests. The Minister will not have too much trouble from us on those matters.

The Minister’s second proposal would remove the ability of the Secretary of State to consider human rights grounds to bar extradition. In a sense, we are relatively relaxed about that provision being introduced, given the stresses and strains that I know Secretaries of State, including the current one, have been through on such issues in relation to notable cases.

We must not forget that, throughout it all, extradition arrangements are important to allow us to bring back to this country suspected criminals who fled justice here, and to ensure that suspected criminals are returned to other countries. More than 600 people have been returned to Britain in the past few years, including the failed bomber Hussain Osman, who was extradited from Italy. We have returned to foreign parts many people who have committed crimes there.

The issue will get ever more complicated as life progresses. As the Minister knows, the evidence base will increasingly become a worldwide issue for cybercrime and use of the internet, rather than simply a UK issue. My hon. Friend the Member for Walthamstow takes an interest in that. The Government must recognise that crime created on the internet and through an e-mail trail—an evidence trail—will present many new challenges for law enforcement. The need for effective extradition will therefore be extremely important; Britain’s online economy is now worth £82 billion a year and intellectual property theft, just as a starter, costs about £9.2 billion a year, industrial espionage about £7.6 billion and extortion about £2.2 billion.  Those crimes can be committed abroad or in this country, and the evidential test and forum bar proposed by the Government need to be under constant review to ensure that we do not lose track of the considerable crime based abroad that has an impact on British citizens, or vice versa.

We do not have too much criticism of the proposals, but I want to test the Minister on how he feels that they will make a difference in high-profile cases such as that of the constituent of the hon. Member for Enfield, Southgate. Liberty, for example, argued to us:

“The proposed test is so tightly circumscribed and sets such a high threshold that it will make little difference in future cases where extradition would not be in the interests of justice.”

One of the key issues in the debate over Gary McKinnon, the constituent of the hon. Member for Enfield, Southgate, was to do with health, but mental health is not cited in the forum bar as an issue to be considered by a judge, yet it was exactly the factor used by the Home Secretary to stop the extradition of Gary McKinnon—the potential suicide risk for that individual.

Will the Minister indicate what will change as a result of the proposal? I quote again from Liberty:

“The need for a forum bar to extradition has become increasingly apparent in recent years. With the advent of the internet in particular it is now the case that online activity in one part of the world can result in allegations of criminal liability in another without the offender ever stepping outside their living room…Coupled with the increasing willingness of countries to assert extra-territorial jurisdiction, the threat of extradition in these circumstances is becoming an increasingly serious problem given the lack of judicial protections built into our domestic extradition legislation.”

Does the Minister believe that his proposals on the forum bar would potentially give that judicial discretion in a range of cases? As I see it, rather than increasing judicial discretion, the proposals might be considered by some people who may have wished to comment had they had time as limiting judicial discretion, because of the effect of things outside the bar listed in the proposals before the Committee.

The following points were put to us and to all Committee members, so it is only fair that the Minister consider and respond to them. Fair Trials International contacted me at the end of last week, post the tabling of the new clause and new schedule by the Minister. It wanted consideration of a number of points during our process. Even if I had agreed with the proposals, it was too late to table amendments in Committee to what the Minister was suggesting, so late were the new clause and schedule brought forward. We can do so on Report, but it may save time all round if he can look at some of the issues in his response.

Fair Trials International put to me that, for example, it would like consideration given to proposals as part of this package that no extradition should take place until a case is ready for trial, to prevent the many cases of premature extradition currently blighting the system. It would like courts to be able to seek further information in cases of suspicion of the mistaken identity of a requested person. It also raised the issue of whether British nationals or residents wanted under conviction warrants, and serving their sentence in the UK, could avoid extradition whether or not agreement could be reached about serving sentences as a matter of course in the United Kingdom.

I place those points on record because, even if I had not tabled amendments, Fair Trials International wanted the issues raised as part of the debate and there was no opportunity to do so. Perhaps the Minister will address those concerns in due course.

I do not want to say too much more, Ms Dorries. Extradition is an important feature of our criminal law, both for our protection in the United Kingdom and for co-operation at international level. I finish with a quote from Liberty:

“The fundamental problem with our extradition framework is that judicial discretion has been all but removed. The proposed forum bar test does nothing to restore that. An ‘interests of justice’ test is an inherently judicial function, yet the proposed test attempts to predetermine what this will mean in any case. The test sets an extremely high threshold, preventing a judge from considering all of the circumstances of a particular case”.

I just want the Minister to respond to those concerns. We have looked at the issue as a whole, and I am sure the Minister will throw things back at us. I want some assurance from him that the measure will actually make a difference, because that is what the Committee is testing. I do not want him to introduce proposals that ultimately do not solve the difficult conundrums that my right hon. Friends and I have had to deal with in government, and which he and his right hon. Friends have to deal with now.

I finish on a point that I had not intended to mention, but the Minister has teased me into doing so. He mentioned Scotland and Northern Ireland in his introductory remarks. If I heard him correctly, he said that Scotland and Northern Ireland would have to agree ultimately to the proposals before the Committee today. I hope he will take this from me in a non-grumpy mode, but the track record so far for getting the Northern Ireland Assembly to agree on matters in the Bill is not particularly strong. Already on the National Crime Agency, we have not had a legislative consent motion from Northern Ireland. The Administration in Scotland—I hope I reflect their aspirations correctly—wish to completely remove themselves from the United Kingdom at the first opportunity.

What discussions has the Minister had with the Scottish Administration on the implementation of the UK-wide proposal before the Committee today? At what stage—when, where and how—does he intend to discuss the matter with the Northern Ireland Administration so that we have a UK-wide approach to the issue? Will he tell the Committee now when he expects Scotland and Northern Ireland to agree to whichever final proposal goes through the sausage machine of this parliamentary procedure?

I have tried not to be too grumpy. There was an element of grumpiness in my comments, but I hope that the Minister will respond in a positive way.

Photo of David Burrowes David Burrowes Conservative, Enfield, Southgate 10:00 am, 12th February 2013

I have taken on board the words of the right hon. Member for Delyn, and I will try to be positive and not grumpy. Hon. Members have been concerned about extradition arrangements for several years. There have been Back-Bench debates and Select Committee reports, and constituents’ cases have been  taken up by hon. Members who have concerns about extradition and want an opportunity to be able to consider the new clause. I hope that after this debate there might be an opportunity for meetings with Ministers to go through some of the details. I am sure there will be an opportunity on Report to go through further details and amendments.

I commend the fact that the Government are introducing the new clause and the new forum bar to extradition after so many years of concerns. In essence, there is a need for judicial discretion in the area of extradition. I want to focus my remarks on the need for proper judicial discretion—a noble intention—and whether we are achieving sufficient discretion.

I obviously have a particular interest in relation to my constituent Gary McKinnon. His 10-year battle not to be extradited was a cause that was joined by hon. Members from all parties in the House and led to the Home Secretary taking the right decision to stop Gary’s extradition on human rights grounds.

It is with that case in mind that I consider what effect the provision will have, and whether the future Gary McKinnons of this world—who I hope will not be in the same situation as Gary—will gain from proper judicial discretion, by way of a new forum bar. It is also the case, obviously, that the Gary McKinnon situation arises in cases that we want to deal with, and where a substantial measure of the alleged criminal activity takes place in this country or in other jurisdictions.

The other area is whether we can properly consider the interests of justice in an open and transparent manner—as the Minister says—taking account of where prosecutions should properly take place. But there should also be consideration, as happened in the case of Gary McKinnon, of mental health concerns and the possibility that human rights are being breached.

The other area of concern, which arose in relation to Gary McKinnon, is the role of the Home Secretary. On one hand, there are those who say that the Gary McKinnon example shows how long it takes for a case to go before the Home Secretary. Gary McKinnon’s case went before previous Home Secretaries; there were challenges and appeals, and the case went on for many years. In one sense, that case can be prayed in aid to say that we need to introduce part 2, to take discretion away from the Home Secretary.

At the same time, however, there are other areas, including the fact that the decision by the Home Secretary was crucial; her intervention quite literally saved my constituent’s life and properly upheld human rights concerns. We need to look carefully at whether part 2, taken with part 1, provides sufficient judicial discretion to take account of human rights concerns and, as in the case of my constituent, the impact on mental health.

Photo of Steve McCabe Steve McCabe Labour, Birmingham, Selly Oak

Is the hon. Gentleman not concerned that what will actually happen means that the discretion that the Home Secretary exercised will no longer be available for someone such as Gary McKinnon? If it had been left to judges, he would now be in the United States.

Photo of David Burrowes David Burrowes Conservative, Enfield, Southgate

The hon. Gentleman makes a good point. However, the issue at which we need to look carefully is whether that discretion can be dealt with in  an open and transparent manner, rather than in private and through lobbying and pressure, including political pressure. I know that the Home Secretary did not cede to that political pressure in Gary McKinnon’s case, and dealt with the case quite properly on the basis of human rights concerns based on medical evidence. Nevertheless, would it not have been much better if that decision could have been made a long while before the end of the 10 years of torture that Gary McKinnon went through, and in an open manner and in a judicial forum that could properly apply a broad discretion in the interests of justice? I suggest that the example of Gary McKinnon and others could be properly applied in a much better way for all concerned.

The other area of interest in this discussion is the legislative history of this matter, which I alluded to earlier when I intervened on the Minister. It has been considered in previous Bill Committees, and there is previous legislation, in the form of the Police and Justice Act 2006 and its uncommenced provisions, that is of some relevance.

I suggest that we want to get to a point where there is a proper forum bar, but one that addresses the Minister’s intentions of being open and transparent and that properly allows wide judicial discretion. My primary concern is that the new clause meets the premise that if a case could be tried in the UK, there is a presumption that it ought to be tried in the UK. Such a presumption could be overcome by the requesting state demonstrating why it would be in the interests of justice for the trial to take place overseas, but importantly, it would be for the requesting state to make that case before the extradition courts, and if it failed to do so the extradition would not be granted.

I do not believe that that particular premise is properly met, as yet, by the new clause. The advantage of that approach is that it would be consistent with the fundamental principle of territoriality and with the practical approach that is taken by most of our extradition partners. If cases were dealt with under that presumption, there would be an encouragement for prosecutors to ensure at an early stage, before cases came to court, that correct prosecutorial principles were applied, and not on an arbitrary basis. If they had to, they would justify those principles to an extradition court in the interests of justice.

Turning specifically to the new clause and new schedule, concerns have been coming to me thick and fast through various papers and legal opinions, including a document by Alun Jones, QC, stating that one problem with the proposals was that

“the factors to be taken into account in applying the test may well be biased in favour of the requesting Government and exclude important matters from consideration. The second is the importance of the ‘certificate’, which is a way of fettering a judicial discretion; it would compel the judge to attach decisive importance to only one of the many factors to be taken into account,” rather than looking in a balanced way at all the interests of justice factors,

“and, worse, the certificate would reflect an attitude taken in private” when the intention of the new clause is to make the process open and transparent. He continues:

“This would not only unfairly weight the decision in favour of ‘the prosecutor’: it would undermine the independent scrutiny of the court.”

That would be a particular concern in cases in which we want to ensure not only that justice has been done, but that it has been seen to be done.

The fact that the extradition framework does not properly provide judicial discretion is a fundamental problem, and one that has been aired on both sides of the Committee. We need to ensure that the extradition framework provides judicial discretion. The forum bar is intended to do that, but it may fall short of what is needed. The interests of justice test is an inherently judicial function. Soon after the Home Secretary made the decision not to extradite Gary McKinnon, I was in an interview with a lawyer who had advised the United States Attorney-General and others. When I said that we in this country wanted to have a proper interests of justice test, he mocked the idea, asking, “What is an interests of justice test? How can that properly be applied by a court?” He clearly had a different view of the interests of justice test, which is applied routinely in courts up and down the land.

I believe that we need to respect that judicial function, and we must ensure that we do not predetermine outcomes before matters even reach court. We should not allow the threshold to be so high that it prevents a court from properly considering all the circumstances of a particular case, including—this is particularly relevant to my constituent Gary McKinnon—factors such as the mental health of a defendant. It is quite proper to ask whether the test in the new schedule would have prevented the extradition of Gary McKinnon. The Home Secretary stopped the extradition, and she said in the House:

“I have concluded that Mr McKinnon’s extradition would give rise to such a high risk of him ending his life that a decision to extradite would be incompatible with Mr McKinnon’s human rights.”—[Official Report, 16 October 2012; Vol. 551, c. 164.]

On behalf of my constituent, I ask whether the decision that was made, quite properly, by the Home Secretary in October would be applied in a similar manner by a court that was considering the extradition of someone in circumstances similar to those of Mr McKinnon.

Photo of David Hanson David Hanson Shadow Minister (Home Affairs)

Does the hon. Gentleman agree that, as I said in my contribution, the absence of mental health considerations from the forum bar test will have a critical impact in the new landscape that the Minister has outlined?

Photo of David Burrowes David Burrowes Conservative, Enfield, Southgate

I am saying that they would be important. We have had the new clause and the new schedule for only a matter of days. Even at this early stage of scrutiny, it is important that we highlight the fact that there seem to be some limits to judicial discretion. We often talk about extradition in the abstract, but my constituent Gary McKinnon offers a real-life example of someone whose life was at stake, particularly because of the impact on his mental health. I am concerned that any future provisions provide the opportunity for a judge to decide on that. We should not predetermine for a judge the cases to which that should apply in the interests of justice, but at the very least we need to keep discretion wide. The courts can quite properly determine what is in the interests of justice and what is not, and we must allow them to do so.

The new clause and new schedule are the result of cases such as that of Gary McKinnon and others, and it seems strange that the forum bar does not allow for the  consideration of issues that were particularly pertinent in such cases. We might consider reversing the presumption so that we can move away from the concerns expressed by Sir Scott Baker in his report on extradition. He was quite properly concerned about the issue of future forum bars being cognisant of satellite litigation. If we reversed the presumption and required, for example, prosecutors to persuade the judge that he should extradite, all the factors that should have been considered in the decision-making process would necessarily be put into open court and the judge would make his decision based on transparency. That is what we can do. If we limit the threshold, we may limit our opportunity to have that open and transparent discussion.

To conclude, I look forward to hearing the Minister’s response and hope that it will allay some of my concerns. May I ask for further discussions, both in meetings and on Report, to ensure that we achieve what we want, which is to have a forum bar that properly respects the interests of justice to ensure that we are able to move forward in an open and transparent manner?

Photo of Jeremy Browne Jeremy Browne The Minister of State, Home Department 10:15 am, 12th February 2013

I am grateful to the right hon. Member for Delyn and my hon. Friend the Member for Enfield, Southgate for their thoughtful contributions to our deliberations this morning. I welcome the broad support that exists for our decision to introduce a forum bar in the Bill. As I have indicated, it is our view that the forum bar will increase openness and fairness in the extradition process and make it more effective at the same time.

In developing the amendments to the Extradition Act 2003, we have had to strike the difficult balance of introducing greater openness into the extradition process, without letting that lead to unacceptable delays or creating a situation whereby people who are accused of often serious crimes escape justice because they cannot be tried in the UK and cannot be extradited because their extradition has been barred.

The process is meant to determine the most appropriate place for a trial to take place, but there are legitimate grounds on which extradition is requested of us and on which we make extradition requests of other countries. Sometimes the debate appears to start from the assumption that extradition is in itself undesirable and that we need to put more and more obstacles in its way. However, there may be some crimes, such as those that involve international networks and conspiracies, where extradition is appropriate, so we need to ensure that proper safeguards are in place, and that they are not unacceptably onerous. We always knew that our amendments would not satisfy everybody, because some people have a presumption at one end of the scale and others at the other end. We have tried and, I believe, succeeded in striking a reasonable balance.

I realise that the formation of our forum bar will not meet all the points raised by my hon. Friend, and I would be happy to meet him to discuss further details. I have been advised that the Police and Justice Act 2006, which some people have suggested would be a more appropriate measure to use than those that we are bringing forward, is too cumbersome. It is too widely  drawn and would not have the desired effect of striking this correct balance between preventing inappropriate extraditions and not allowing perfectly reasonable requests to be unduly thwarted.

Our approach puts such safeguards in place. It is worth touching on them once more for the Committee because, as I said, sometimes people talk as though the automatic presumption is that extradition will take place and that the safeguards are rather limited. However, if people talk to those who request extraditions of us, they will find that that is not how it is seen.

We agree about the importance of allowing the judge to bar extradition on forum grounds, if the extradition would not be in the interests of justice. We have not set out a presumption that anyone should be tried in the UK, but we have, none the less, set out that a judge must give due weight to all the relevant factors that should dictate whether a trial in the UK is the most appropriate course of action. The list is substantial, including whether a substantial measure of the alleged criminal activity took place in the UK; where most of the harm occurred or was intended to occur; the interests of any victims; whether the relevant prosecutor considers that there should be prosecution in the UK; whether the evidence is available in the UK; the desirability and practicability of all prosecutions for the offence taking place in the same country; and the person’s connections with the United Kingdom. On top of those factors, I can reassure members who have raised it that mental health can also be taken into account and is already a consideration that the courts take into account. It is covered by section 87, on human rights, and section 91, on physical or mental condition, of the Extradition Act 2003.

My point is that a substantial number of factors can be taken into account to prevent extradition. If one approached the matter from the other side of the equation and thought that extradition was appropriate in a given case, one might be of the view that there were a large number of barriers to overcome and it would be quite difficult to extradite someone. We have tried to get the right balance. Extradition is a serious decision to take. We do not want it to be easy, but we do not want it to be impossible either. Where it is judged to be appropriate and where the conditions are satisfied, we should not put rules in place that make it impossible in practical terms to extradite somebody.

Taken together, all the factors that I have mentioned will allow a judge to rule on the most appropriate jurisdiction for trial, while also ensuring that if a trial in the UK is the preferred option, sufficient evidence is available to ensure that such a prosecution can take place. Members have suggested something similar, which is that when deciding which course of action is in the interests of justice, the judge must first consider whether a prosecution in the United Kingdom is possible. Where a serious and legitimate allegation is made and the defendant has a case to answer, it is not reasonable for us to judge that it is not possible to have the case in the United Kingdom, yet not be willing to countenance extradition. That would lead to a state of limbo where justice may not be done or seen to be done, and it would be appropriate for further legal proceedings to take place.

These are the balances that we seek to strike, but both the Government’s proposals and other proposals, including the one made by my hon. Friend the Member for Enfield,  Southgate, will ensure that prosecutors from the United Kingdom, as well as those in the requesting state, give full consideration to forum issues, because they will know that they will need to justify any decision in front of a judge in open court.

The exception is when a prosecutor takes a formal decision not to prosecute in the United Kingdom because it is not in the public interest for that prosecution to take place because there is insufficient admissible evidence available; or when a prosecutor issues a certificate stating that a UK prosecution is not possible because of concerns about the disclosure of such material in a UK prosecution. Although the forum issue will not have been considered by the judge in the magistrates court, the prosecutor will have had to give full consideration to the issue before issuing such a certificate, because any decision would be open to judicial review in the High Court. That is also the case at the moment—any decision to issue a certificate is fully and properly scrutinised. I hope that helps to explain the thinking behind our proposals, and I hope that I have been able to reassure my hon. Friend and the Committee that the provisions in new schedule 1 are the best way of addressing this issue.

Ultimately, this come down to judgment. Somebody has to make some judgments, and these cases are not always entirely black and white, but we feel that these judgments being made in an open court in a transparent way and meeting the criteria that we have put in place is as reasonable a situation as we could hope to achieve. For those reasons, I commend the new clause and new schedule to the Committee.

Photo of David Hanson David Hanson Shadow Minister (Home Affairs)

I may have missed it, and if so I apologise to the Minister, but could he cover the points on a time line for decisions by Scotland and Northern Ireland? I do not recall him addressing that points in his response.

Photo of Jeremy Browne Jeremy Browne The Minister of State, Home Department

I apologise to the right hon. Gentleman. He is right to draw the Committee’s attention to my failure. I have had it explained to me like this: extradition is a reserved matter, and the fact that certain functions of the Home Secretary are being transferred to Scottish Ministers in part 2 of the Bill does not change that position. However, because Scottish Ministers and courts have a role in the process, we have decided that the provisions should be commenced only with their consent. I will write to the right hon. Gentleman about any discussions that take place to ensure that that is done with the effectiveness that we both want.

Photo of David Hanson David Hanson Shadow Minister (Home Affairs)

Well, that is fine, and I look forward to receiving the Minister’s letter whenever it comes. Will he indicate whether he expects those discussions to take place so that implementation of the proposals is on the same day, rather than having different implementation dates because of different responses from Scotland and Northern Ireland? I particularly relate that question to Northern Ireland, because we already have a bit of a battle with Northern Ireland about part 1 of the Bill, and I wonder whether such difficulties will arise in this case. I want clarification, and this is the time to get it from the Minister.

Photo of Jeremy Browne Jeremy Browne The Minister of State, Home Department

The right hon. Gentleman is right to seek clarity, not least because, as he said, we are keen to apply UK jurisdiction, where it applies, as effectively  and efficiently as possible, while having due regard to other constituent parts of the UK. I cannot assure him about implementation being on the same day, because that is a matter for further discussions. However, the Home Secretary seeks to be generous and inclusive in how she involves all the component parts of the UK, and I seek the same attributes in how I keep Committee members informed, so I will certainly write to the right hon. Gentleman with any information that we can provide that might assist him.

Photo of David Hanson David Hanson Shadow Minister (Home Affairs)

I am grateful to the Minister, but I want to press him further. The Committee should be aware that he has just said that, unless he undertakes discussions and reaches a conclusion at some point in the next few weeks and months, a citizen of the United Kingdom living in Edinburgh or Belfast might be treated differently from a citizen living in Enfield, Southgate. I wonder whether, in the interest of our being all in this together and one nation, that is a sensible way forward. I await the Minister’s letter, but I strongly advise him that if the United States seeks the extradition of three United Kingdom citizens—one living in Belfast, one in Edinburgh and one in London—and the Minister has not ensured coterminous jurisdiction across the UK, we might have difficulties downstream.

Photo of Jeremy Browne Jeremy Browne The Minister of State, Home Department

I take the right hon. Gentleman’s point. Of course, we have always had a different legal system in Scotland. It was the Labour Government—he was a member of it, or certainly, as a Labour MP, a supporter of it—who introduced the devolution settlement with which we are now familiar in Scotland and Northern Ireland. With virtually all legislation before the House, we have to strike the right balance of protecting UK citizens as a whole while being aware of the unique constitutional arrangements that exist in the United Kingdom. We are keen to strike that balance and to ensure that people in Enfield, Southgate are treated exactly as we would wish while ensuring that high standards of justice apply throughout the UK.

I have said that we will commence the provisions in Scotland and Northern Ireland only with the agreement of the devolved Administrations. I will certainly take on board the right hon. Gentleman’s points in any further discussions with them. We want to proceed with the changes with their consent, and I shall write to the right hon. Gentleman to reassure him on those points in due course.

Photo of David Hanson David Hanson Shadow Minister (Home Affairs) 10:30 am, 12th February 2013

The purpose of my intervention is simply to say that this is a UK responsibility. While the consent is required in Scotland and Northern Ireland, it is ultimately a UK responsibility, as the Minister has indicated. My simple plea to him is that, whatever arrangements are made, the decision and implementation should take place on a UK basis on a set future date, rather than with potentially different implementation dates.

Question put and agreed to.

New clause 11 accordingly read a Second time, and added to the Bill.