HC Deb 04 April 1967 vol 744 cc138-42
Sir J. Hobson

I beg to move Amendment No. 5, in page 8, line 8, to leave out "may" and to insert "shall".

The Clause deals with orders which may be made by the Secretary of State for return to the requesting country. As the Clause is drawn, it would appear that the Secretary of State has discretion only to issue a warrant ordering a fugitive offender to be returned to the country which has requested his return and that his discretion cannot be exercised where the return of the person is prohibited by Clause 4 because the offence is a political one or for any of the other reasons given in Clause 4, or where it is prevented or prohibited by the following subsections of Clause 9. If, however, those prohibiting and inhibiting provisions do not stop the Secretary of State from sending the fugitive back, as I read the Clause it would appear to give him discretion as to whether he shall or shall not send the fugitive back.

I understood the Under-Secretary in Committee to confirm that that was the intention of the Clause, but since he has stood throughout the whole of the proceedings on the basis of the agreement of the Law Ministers of the Commonwealth and the Scheme which was drawn up, when one reads the Scheme it would appear that everybody has to be sent back unless, under and in accordance with the Scheme or by a provision of the law, it is to be prevented.

The first subsection of the Scheme drawn up by the Commonwealth Law Ministers, which appears in Cmnd. 3008, is that The general provisions set out in this Scheme will govern the return of a person from one part of the Commonwealth, in which he is found, to another part thereof, in which he is accused of an offence; and in particular his return will only be precluded by law, or be subject to refusal by the competent executive authority, in the circumstances mentioned in this Scheme. As I read the Scheme, there is no provision giving the Secretary of State or a Minister an absolute discretion in any circumstances to refuse to send an individual back again. If this is intended to be a Scheme which is binding between the Commonwealth countries so that everybody is to be sent back unless either the law precludes it or the Scheme itself gives a power in the Minister to refuse, it seems to me that the wording of line 8 should be that the Secretary of State "shall" return the person by warrant unless under the other provisions of the Bill he is prevented from doing so or unless in the subsequent provisions of the Clause there is a power in the Secretary of State not to make an order.

Clause 9 is dealing with various circumstances—in which, for instance, the offence in the other country is punishable by death. The Secretary of State is to have a discretion whether he will or will not make an order for the accused's return. But all those provisions are totally unnecessary, for Clause 9(1) already gives the Secretary of State a complete and absolute discretion whether he will issue a warrant or not.

8.30 p.m.

What is much more unsatisfactory is that subsection (1) contains no directions as to the basis on which such discretion is to be exercised. There is nothing about whether the Secretary of State considers it just, or whether it is in the interests of anybody, or whether the accused would be prejudiced. No indication of any sort or description is given as to the basis on which the Secretary of State could exercise discretion and refuse to issue the warrant, so that the whole of the provisions of the Bill or the scheme or the intention of the law Ministers or Parliament were fulfilled. It seems to me that if such a discretion is to be granted the grounds on which it is to be exercised should also be expressly stated.

As I say, the scheme agreed between the Commonwealth Law Ministers requires return unless by law or by the scheme itself the person is not to be returned.

Mr. Taverne

The right hon. and learned Gentleman has argued that I am, as it were, impaled on my own argument and that this is inconsistent with the scheme. It is desirable to stick to the scheme as far as we can, though we have just made one minor Amendment, in a sense, of the scheme, an Amendment which has been generally accepted, relating to the position of the Head of the Commonwealth. However, I do not believe that this residual discretion is really inconsistent with the scheme.

First let me say something about the reason for it. It is very similar to the discretion which is provided for in the Extradition Act, 1870, of which Section 11 says that when certain things have been proved "it shall be lawful" for the Secretary of State to return the offender. "It shall be lawful" has very much the same effect as the words which are used in this Clause—"may … unless". It is very much the same.

In the Extradition Act there was nothing imported like "if he thinks it just". I think this would tend to link the exercise of the discretion with the question whether the fugitive had received justice, which has already been provided for; and to link it with compassionate circumstances could invite a whole lot of undeserving fugitives' pleas which could not properly be entertained, and it would also suggest to the Commonwealth that we were unilaterally introducing a new factor not recommended by the Commonwealth Law Ministers.

Nevertheless, under the Extradition Act it was the position, and we felt it to be so here, that very occasionally some exceptional circumstances might arise where despite all the criteria being satisfied it would be unthinkable to return the offender. It would have to be a wholly exceptional kind of case—where, for example, the offender was dying, or suffering from an incurable disease, where it really would be an affront to the public conscience to return him. In fact, no such case has ever arisen under the Extradition Act, and it has been in force for 97 years; so it is not a discretion which is going to be very frequently exercised.

I do not believe it is contrary to the spirit of the scheme. The relationship between the scheme and the Bill is really very similar to the relationship between the various extradition treaties and the Extradition Act. Those extradition treaties frequently provide, as the Swedish extradition treaty provides, that extradition shall be reciprocally granted subject to the provisions of the treaty for the "following offences". Despite the provisions of the treaty that extradition shall be granted in certain cases, there is still the residual discretion in Section 11, and there have been decisions by the courts to show that that residual discretion is not affected by the explicit words of the treaty. Therefore, certainly one can give a firm undertaking that this will not be a general discretion to add to the ordinary circumstances provided for under the scheme. It will be only for something very exceptional, like, for example, someone who is already dying.

It is worth noting that Nigeria has already considered that such a discretion is not inconsistent with the scheme. Nigeria has passed an extradition decree which follows this scheme closely. In Section 9(2) it provides that the Attorney-General … unless it appears to him that the surrender of the fugitive is precluded by law, may by order direct that the fugitive be surrendered.… A similar residual discretion is provided there, and it seems to be very much in line with the various extradition treaties and the provisions of the Extradition Act

Amendment negatived