BACKING OF WARRANTS: SAFEGUARDS (Hansard, 29 June 1993)

§ Mr. Trimble
I beg to move amendment No. 6, in page 79, line 45, at end insert 'or any other offence which could lawfully be substituted for that offence.'.

§ Madam Speaker
With this it will be convenient to discuss also amendment No. 7, in page 80, leave out lines 45 and 46 and insert— '(2) No such Order shall be made unless a draft of it has been laid before and approved by a resolution of each House of Parliament.'.

§ Mr. Trimble
It is a pleasure to be able to move the amendment. I am sure that the Minister will be glad that I have not been tempted by offers of coffee and tea but have forgone that pleasure to be here.
The two amendments are in my name. Amendment No. 7 is a procedural amendment to clause 71, which inserts new sections into the Backing of Warrants (Republic of Ireland) Act 1965. Those new sections refer to orders to bring the new sections into operation, and a subsection provides that those orders be laid before the House subject to negative resolution. Amendment No. 7 would simply make them subject to affirmative resolution.
However, there is a strong case for the adoption of the affirmative resolution procedure with regard to those orders. Extradition—or, to be more precise, the delivery of prisoners—to and from the Republic of Ireland has often been a matter of controversy. In dealing with matters which have proved to be controversial and which undoubtedly have the potential for future controversy, and where we are making significant changes to those procedures, the orders changing those procedures should come before the House and, because of their importance, should be subject to affirmative resolution.
The clause makes significant changes and amendment No. 6 would modify those changes. Is it open to the Minister to contemplate changes? Is there an agreement or treaty between Her Majesty's Government and the Government of the Republic of Ireland requiring Her Majesty's Government to bring those provisions into operation? Does a deal lie behind those provisions? If so, the Government would have difficulty in even considering modifying those matters.
I raised the issue on Second Reading, and was assured that there was no deal. That assurance now looks threadbare, however, because since then the Government of the Republic of Ireland have introduced legislation into the Dail to deal with anomalies under their 1987 extradition legislation. That legislation was based on the European convention on the suppression of terrorism and contained anomalies based on article 1 of the European convention. It removed the defence of a political offence from certain offences, and there were anomalies in how it operated.
One of the clearest anomalies was that article I of the European convention referred to the use of automatic weapons but did not relate to the use of weapons that were not automatic. If a murder was committed with an ordinary revolver, the political defence would be available, but if an automatic pistol was used, the political defence would not be available. There are other anomalies; that is just one example.
922 It is good that the Irish Government are removing those anomalies, but it is remarkably suspicious that they are introducing such a provision after a measure has been introduced into the House limiting the scope and operation of the British legal system on persons who have been delivered from the Republic of Ireland.
On Second Reading I asked whether there had been a deal, why we were making a fresh concession to the Irish and whether we were getting something in return. I was told that there was no deal, but the circumstances suggest that there was a deal and that the Irish Government agreed to extend their law only if we agreed to limit ours. If there is an agreement, it has not been published, because it is likely to have been made in that secret body which represents the real government of Northern Ireland—sometimes called the Anglo-Irish Intergovernmental Conference—with its secretariat behind it.
I wish to ask the Minister whether that is the case. He may deny it, but is he sure that he has been told the truth? We are fairly sure that we are hardly ever told the truth about the Anglo-Irish Intergovernmental Conference.
The clause stems from the case of Mr. Desmond Ellis, who was delivered from the Republic of Ireland to the United Kingdom in 1990 on warrants presented by the proper authorities in Great Britain alleging offences contrary to the Explosive Substances Act 1883 and the Criminal Jurisdiction Act 1975. After his delivery to the United Kingdom: The Crown applied to the Thames Stipendary Magistrate that Mr. Ellis be committed for trial on those two charges … The magistrate declined to commit on those charges, on perfectly understandable grounds and instead committed Mr. Ellis to stand trial on two quite separate and distinct charges, namely, conspiracy contrary to section 1(l) of the Criminal Law Act 1977. I quote from the subsequent judgment of Mr. Justice Swinton Thomas in the Ellis case.
Mr. Justice Thomas went on to say: It is common ground that that committal offends the rule of speciality whereby a person who is extradited from a foreign country can be tried in this country only for crimes in respect of which he was extradited. Accordingly, the crime reinstated the original offences contained in the warrants in the present indictment". He went on to consider the charges, although the outcome of the consideration is not relevant to this discussion.
I quoted that extract from the judgment of Mr. Justice Swinton Thomas because it contains several mistakes. It states that it was common ground that committal offends the rule of speciality which is common where persons are extradited. Where there is an extradition treaty, there is a rule of speciality, but there is no extradition treaty or arrangement between the United Kingdom and the Republic of Ireland.
We loosely use the term "extradition", but the procedure that operates between the United Kingdom and the Republic of Ireland is the backing of warrants. There are no speciality, rules with regard to the backing of warrants procedure, and it was quite wrong for the judge to refer to what happened and the actions of the Thames stipendiary magistrate as breaking the rule of speciality, because the rule of speciality did not and does not apply to the backing of warrants procedure and would be foreign to the nature of that procedure.
923 There is a clear distinction between the backing of warrants procedure and proper extradition. The legislation is confusing the two by introducing into the backing of warrants procedure a rule of speciality that is appropriate strictly for extradition. If they were dealing strictly with extraditions, so called, the Government's proposals would be reasonable—but they are not necessary for a backing of warrants procedure, arid one must query why those proceedings are being introduced.
When the Thames stipendiary magistrate made that decision, there was immediate reaction in the Irish Republic. The Irish News of 25 April 1991 reported: The Irish government responded to the magistrate's decision by insisting the British legal authorities challenge the ruling in a higher court. Mr. Burke, the Irish Minister of Justice, was reported as telling the Dail on 19 February 1991 that the action of the Thames stipendiary magistrate broke a "gentleman's agreement" whereby the rule of speciality was to be operated by the British and Irish sides that were party to it.
The Irish Government insisted that the British Government do something about the Thames stipendiary magistrate's decision, and the Government did precisely that. Mr. Burke also told the Dail on 19 February: It would be preferable if we had speciality within the United Kingdom legislation". Now we have legislation coming forward in which the speciality rule is being introduced.
On 21 November 1991, my hon. Friend the Member for Antrim, East (Mr. Welsh) asked the Prime Minister whether, as a result of what had been said and done with regard to the Ellis case, there would he any further bargaining between the British and Irish Governments, and whether any further concessions would be made by the British Government to the Irish Government, to get them to do what they ought to do in any event. The Prime Minister replied: we do not bargain and …we do not do deals".—[Official Report, 21 November 1991; Vol. 199, c. 419.] On 28 November, my hon. Friend the Member for Fermanagh and South Tyrone (Mr. Maginnis) asked whether any agreement had been reached at the Anglo-Irish Conference on 19 November. The hon. Member for Peterborough (Dr. Mawhinney) replied: The detail of discussions in the Anglo-Irish Conference is confidential, but my right hon. Friend has indicated that the question of setting the existing agreement on speciality in statutory form is primarily a matter for the Home Secretary and would be considered if and when a suitable legislative vehicle arose."—[Official Report, 28 November 1991; Vol. 199, c. 607.] That was one week after the Prime Minister had said that there would be no deals, but now we have a deal coming through.
My simple amendment relates to persons who have been delivered from the Republic of Ireland to the United Kingdom. It states that such persons can be proceeded with only for the offences listed in the indictment or some other offence that could lawfully be substituted for it. That is part of the normal operation of our legal system.
By not accepting that amendment, the Government will limit the range of offences for which people could quite properly be proceeded against in the event of their being delivered. British authorities applying for the delivery of a person would therefore have to make sure that they got the offence exactly right before sending the papers to the Irish Republic. That would continue to produce cases—and 924 there are too many of them—in which persons who appear to be guilty go free because the charge was not correctly briefed and some procedural requirement was not properly observed.
These are important matters—some of the most serious terrorist offences that could he considered. It is not right that we should limit the scope of the legal system to be effective in respect of such cases. The Government are doing that because a deal was done with the Irish—concessions were made to them. Many concessions were made to them in the past, and we have seen precious little return in terms of the number of persons delivered up to justice. We see far too many persons whom we believe to be guilty of serious offences at full liberty in the Irish Republic. Right hon. and hon. Members may remember press coverage of persons who have gone fishing when they were supposed to be delivered here to stand trial.
It is not right that the Government should make such concessions. I hope that they will look favourably on my amendment, which seeks only to preserve the normal operation of our own legal system with regard to persons delivered for trial here.

§ Mr. Maclean
I have listened carefully to what the hon. Member for Upper Bann (Mr. Trimble) has said. Amendment No. 6 would serve to defeat one of the objectives of clause 71—that the United Kingdom and Irish legislation on speciality should be identical in respect of extradition between the two countries. The hon. Gentleman said that we have backing of warrants rather than an extradition system, but it is a simplified form of extradition, so let us use the word "extradition", because we all understand it.
It is only by making our law on specialty identical that we can minimise the scope for misunderstandings and any gaps in our arrangements. I understand that the hon. Gentleman's amendment is well intentioned, and I appreciate what he seeks to do, but I am afraid that it would mean that our legislation would not satisfy Irish legislative requirements for extradition. Therefore, offenders could argue in the Irish courts that the courts had no power to order their return to the United Kingdom.

§ Rev. Martin Smyth (Belfast, South)
The Minister said that we all understood. Some of us are a little confused. Will he answer the question that my hon. Friend the Member for Upper Bann (Mr. Trimble) asked? Has there been agreement between the two Governments? Has an understanding been reached? Or will we continue to exercise the farce that allegedly friendly Governments do not co-operate in handing over terrorist suspects? I ask that question because, 10 years ago this year, my young colleague, one of the outstanding lawyers of the United Kingdom, an academic lawyer, Edgar Graham, pressed for proper extradition arrangements between the two countries, and was murdered because he was getting too close to the mark.

§ Mr. Maclean
The hon. Member for Upper Bann asked me whether there was a treaty and whether there was a deal. There is no treaty. I am not privy to what goes on in the Anglo-Irish forum. I am not privy to those discussions. All I know is that there has been a mutual understanding of long standing that the rule of speciality should apply to 925 extradition. There has been such an understanding between the Law Officers of the two Governments for some considerable time.

§ Mr. Trimble
The Minister said that there had been a mutual understanding of long standing between the Law Officers in the two jurisdictions that speciality would apply. Can he date that understanding? Since when?

§ Mr. Maclean
The short answer is no, I cannot. But the hon. Gentleman and his hon. Friends will agree that it is sensible to reproduce that understanding in both our laws, and to ensure that, in our discussions with the Irish Government, our extradition laws are as evenly matched as possible, so that there can be no possible misunderstanding which a potential offender could exploit in any court to avoid extradition.
As the range of charges which could lawfully be substituted is, depending on the circumstances, considerable and not confined to offences related to that for which the return was ordered, the amendment would in practice render the concept of speciality meaningless.
A substitution of charges would be possible in certain circumstances pursuant to the new section 6A(3)(d). That enables the description of the offence to be changed if certain prescribed conditions are fulfilled, but, in the circumstances, I do not believe that we should go any further. Following my explanation, I hope that the hon. Member for Upper Bann does not wish to pursue his amendment further.
I perfectly understand the reasons behind amendment No. 7, but I am afraid that I must resist it, too. The negative resolution procedure is clearly preferable, because it is possible that events could require an order to be made or amended urgently, when, for example, Parliament was in recess.
Negative resolution enables us to start the legislative process, but not to finish it during the recess. I am sure that, even under a negative resolution procedure, the hon. Gentleman would ensure that the orders were debated.
We have no wish to deprive the hon. Gentleman or his hon. Friends of that opportunity nor to resist proper scrutiny by hon. Members in this House or another place. However, we wish to maintain the negative resolution procedure, because of its advantages of speed and flexibility. Therefore, I hope that, in his usual courteous way, the hon. Gentleman will withdraw his amendment.

§ Mr. Trimble
We have heard some remarkable comments from the Minister. He cannot bring himself to face the facts, which speak for themselves. There has been some dirty work at a crossroads before we came to this legislation. The Minister may avert his eyes from it and say that he will not inquire too deeply into its origins, but I urge him to do so. If he looks into the background of this legislation, he will find that there are some things of which the Government cannot be very proud.
I do not have any pleasure in seeing this legislation go through, but, because of the lateness of the hour, we have no desire to prolong the sitting further by dividing the House. On that ground, and that ground alone, I beg to ask leave to withdraw the amendment.