After Clause 21 (Hansard, 13 November 2003)

§ Caroline Flint
I beg to move, That this House disagrees with the Lords in the said amendment.
I invite hon. Members to agree to remove the new clause, which was inserted on Report in the Lords. It is unnecessary and inappropriate, as I shall endeavour to explain. Extradition is a classic balancing act, involving the rights of the person whose extradition is sought on 441 the one hand, and the need for society to ensure that those accused of serious crimes are swiftly brought to justice on the other.
The Government believe that the Bill strikes the right balance between the rights of the fugitive and the interests of justice. We have built several important safeguards into the extradition process. Many are the same as those in existing extradition legislation but the most important of them are new.
To ensure that the requested person's human rights are fully considered and safeguarded, we have included specific bars to extradition on the ground of human rights in part 1 and part 2—clauses 21 and 86 in the copy of the Bill that we are examining today. Those clauses are unambiguous. They provide that a judge must refuse to extradite a person if the extradition would be incompatible with the fugitive's convention rights under the Human Rights Act 1998. If extradition would breach the fugitive's rights under the European convention on human rights, it must not and cannot take place.
Not only does that protect against infringing individual rights in this country, but ECHR case law has clearly established that those obligations extend to the fugitive's likely fate if he is extradited. If there is a significant risk that his rights under ECHR will be breached when he is returned to the requesting state, we cannot extradite. That is important, and it might help hon. Members if I gave an example.
The key case is that of Soering. In its judgment in that case, the European Court of Human Rights stated: It would hardly be compatible with the underlying values of the convention, were a contracting party knowingly to surrender a fugitive to another State where there were substantial grounds for believing that he would be in danger of being subjected to torture, inhuman or degrading treatment or punishment, however heinous the crime allegedly committed. Extradition in such circumstances would be plainly contrary to the spirit and intent of Article 3. On article 3, the Court stated: The decision by a Contracting State to extradite a fugitive may give rise to an issue under article 3 and hence engage the responsibility of that State under the convention, where substantial grounds have been shown for believing that the person concerned, if extradited, faces a real risk of being subjected to torture or to inhuman or degrading treatment or punishment in the requesting country. The Court went on to explain that article 6 issues could arise in extradition proceedings when there was a significant risk of the denial of a right to a fair trial in the requesting state.
Not only do our procedures have to comply with ECHR, but we could not extradite where there was a significant risk that the procedures in the requesting state would result in a breach of the fugitive's convention rights. We should be in no doubt that fugitives and their lawyers will not be slow to use the provisions and take every opportunity to argue that ECHR protection means that extradition should not take place.
That brings me neatly to the amendment that was made in another place. It inserted a new clause that contains four subsections, with which I should like to deal. The first subsection requires the district judge to have particular regard to article 6.3 of the ECHR. As I am sure hon. Members know, article 6.3 guarantees the 442 right to a fair trial and refers to minimum rights, including the rights to mount a defence, to have publicly funded defence lawyers, to call and cross-examine witnesses and to have an interpreter if necessary. Although those rights are important, I do not understand why the article needs to be singled out.
As I said, those who represent fugitives will doubtless try to argue that extradition should be barred on the ground of the ECHR. In many cases, their submissions will be built around likely breaches of article 6.3. However, there will be times when it could be argued that extradition would lead to breaches of articles 2, 3, 4, 5 or 6.2, to name a few. A breach of any would be serious, and the district judge would need to give all such arguments serious consideration. I do not understand why we should draw attention to one specific article, almost suggesting that breaches of other articles are a lesser matter. I am sure that those who devised the amendment did not intend that, but we should avoid that inadvertent effect. We should trust our judges to consider all possible ECHR breaches carefully.
Subsection (2) of the new clause would enable the judge to accept a written assurance from the requesting state that the person's rights under article 6.3 will be properly observed if he is extradited. Apart from the general point that we should not single out article 6.3, the provision is unnecessary because the Bill already covers its substance. As the measure is currently drafted, it is open to the fugitive and the requesting state to make representations to the district judge on the ECHR question, to advance arguments and to present evidence—written or otherwise.
In accordance with normal practice, the district judge will weigh up the evidence and arguments and reach a decision, which can be subject to appeal. In the course of that, it is open to the requesting state to submit evidence to the judge in writing if it wants—about its procedures or any other matter in an attempt to demonstrate that the person will receive a fair, ECHR-compliant trial. The judge will decide how much weight to attach to such assurances. I cannot understand what subsection (2) of the new clause would add, given that the requesting state can already give written assurances.
Subsection (3) would require the Secretary of State to monitor proceedings once the person had been returned. A moment's thought would demonstrate that that was not practical. Apart from practical difficulties and the costs, on what basis would the monitoring be carried out? How would the monitors decide whether rights under ECHR had been upheld? I fail to understand how the provision would be workable.
The amendment ignores the fact that the UK has had extradition relations with a variety of countries throughout the world for more than 100 years. We conduct a large proportion of our total extradition traffic with EU member states and we have not previously believed it necessary for the Secretary of State to monitor their internal systems. If the position in countries to which we already extradite were as bad as the amendment implies we would have stopped extraditing to them many years ago. Furthermore, for the UK unilaterally and directly to monitor other EU member states' judicial systems, whether generally or specifically in extradition cases, would be a flagrant abuse of their sovereignty.
443 I am sure that the House will appreciate that the UK would take great exception to other countries taking such drastically intrusive measures in respect of our procedures in this country. How would we feel if every time we got someone back from another country, they were accompanied by an official representative of that country checking on whether our criminal justice procedures were fully up to scratch?
Subsection (4) would require the Secretary of State to bring any deficiencies that the monitoring process highlighted to the district judge when he considered fresh requests from that country. I doubt whether that will be necessary, as a fugitive will not hesitate to bring any human rights breaches to the attention of the judge, especially when the circumstances are similar. If a person is wanted by country x, the fugitive will be quick, if it helps his cause, to point out what happened to the last person who went from Britain to that country.
There are deeper objections to the final part of the new clause. Requiring the Secretary of State to intervene in any subsequent cases involving requests from a particular country would effectively make the Secretary of State a party in an extradition case, and could have serious diplomatic ramifications if the requesting state took exception to his intervention.
While it is true that the Secretary of State is currently involved in extradition cases, and will remain involved in part 2 cases, he very deliberately acts in a quasi-judicial fashion. Asking him to intervene to comment on the quality of another country's criminal justice system is a very different matter. On the other hand, if the Secretary of State did not become involved in a particular case, the fugitive could seek judicial review of the Secretary of State's decision not to intervene in his case. Of course, we would expect the vast majority of such attempts to fail, but we would nevertheless be bringing in another avenue of challenge and delay of exactly the sort which plagues our present system and which we are trying to avoid.
It is already the job of the judge at the extradition hearing to determine under the human rights bar whether extradition poses a threat to the fugitive's convention rights. If there is a significant risk of article 6.3—or indeed any of the other convention rights— being breached in the requesting state, the bar to extradition will apply. The person will not be extradited. That could not be clearer and, indeed, the Bill has been given a clean bill of health in this regard by the Joint Committee on Human Rights.
Ultimately, we have to decide whether we trust our extradition partners. We have had that trust in other European countries for more than 100 years. If we trust them, we should be prepared to extradite to them without putting in place a complicated monitoring system as envisaged by the new clause. In the light of all that, I see no need for the new clause. I apologise for having spoken at some length, but these are important issues and I wanted to take the opportunity to explain the difficulties that we have with each part of the new clause. I hope that the House will see fit to remove it and send the Bill back to another place on that basis.

§ Mr. Hawkins
I certainly do not think that the Minister need apologise for speaking at some length, because we all recognise that these are important matters. The new clause, which the Government are now seeking to remove, was introduced by Lord Goodhart in another place on behalf of the Liberal Democrats, but with very strong support from my noble Friend Baroness Anelay of St. Johns and other noble Friends, including Lord Lamont of Lerwick, to whose comments I shall refer in a moment.
The Conservatives are sorry that the minimum procedural rights clause—clause 22—which was inserted in another place, is to be removed. However, we have reluctantly agreed, in the light of the Government's helpful concessions on other matters, that we understand why the Minister believes that some of the monitoring might not be workable, and that the Government believe that highlighting article 6.3 of the European convention on human rights might suggest although we never intended to; nor, I am sure, did the Liberal Democrats—that the rest of the ECHR was somehow less important. Nevertheless, it is important, particularly in the light of what the Minister has said, to refer to some of the reasons why we think that these issues remain important, even if, somewhat to our regret, the Government have decided that they cannot live with clause 22 and that it will be removed.
We believe that certain minimum procedural rights need to apply to any British subject who might be extradited, because of the concerns that have been expressed by organisations such as Fair Trials Abroad. The issue of British citizens being able to understand proceedings in another language is crucial, and I am sure that the Minister will say that the ECHR provisions elsewhere in the Bill will cover that. I should like to refer to what Lord Lamont of Lerwick said in another place on 27 October: I recently watched a television documentary about a famous sporting English figure who was tried in France. When asked what he thought about the court verdict, which went against him, he said 'I did not understand a word of the proceedings'. I am not commenting on that case, but a person should not have to go through legal proceedings"— in one of our fellow EU countries— without understanding a word of what is said. The second point on which a person can be at a huge disadvantage is not having legal aid. There was criticism in the famous case involving plane-spotters in Greece about the quality of lawyers provided. I was involved in the case of a British lorry driver who was arrested in Patras, Greece, earlier this year. He was put on trial in a Greek court within 24 hours. He was not given a choice of lawyer, and a local jeweller was pressed into service as an interpreter simply because he understood some English. That is clearly unacceptable, and is the kind of occurrence that led to the minimum procedural safeguards being introduced in another place in clause 22.
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I had the opportunity to raise that particular case with her Majesty's ambassador to Greece, Mr. David Madden, and he and the consul in our embassy in Athens were enormously helpful when I visited them at Easter this year. Coincidentally, while I was in Greece I 445 happened to meet a couple of United States federal marshals who had gone over to Greece from Seattle to try to extradite a drug smuggler and counterfeiter. I was able to have a very useful conversation with them about the different ways in which extradition procedures work. They were concerned to hear about the issues relating to the lorry driver, David Wilson, which I had been raising with our ambassador and consul.
British citizens who get into difficulties are very well looked after by ambassadors and consuls all round the world. With the new European arrest warrant about which the Conservatives have strong reservations—and this new legislation coming in, we wanted to ensure that ECHR protections were incorporated in the Bill for the benefit of our citizens. My noble Friend Lord Lamont of Lerwick pointed out that, in the case of the plane-spotters, one was a lady who merely sat in a car reading a newspaper"— while the plane-spotting was going on. Most people would have thought that she should have a separate lawyer. That was not the case. There is an absence of adequate legal aid in many Mediterranean European countries.—[Official Report, House of Lords,27 October 2003; Vol. 654, c. 41.]
That applies even within the EU, as my hon. Friend the Member for Stratford-on-Avon (Mr. Maples) described extensively in Committee.
One reason my noble Friend Lord Lamont of Lerwick and I have been so uneasy about the Bill is that when the Government say that people should not evade justice by crossing national borders, they do not seem to acknowledge that British people in other countries are at a tremendous disadvantage when the legal proceedings under systems such as the Code Napoleon are unfamiliar to them. Similarly, non-British persons who had never visited the UK before might find themselves at a disadvantage before our courts. That is why we must have safeguards in relation to extradition proceedings.
In the light of the Government's concessions on other matters that we are debating today, we reluctantly accept that they are going to remove clause 22, but I am glad that the Minister at least acknowledged that this proposal from the Conservatives and Liberal Democrats in another place represented a worthy aim, and that we were trying to introduce an extra level of protection for British subjects. I am glad that she has put it on record today that she believes that all the things we intended to do in clause 22 are covered in other parts of the Bill. I would not want, in accepting the Government's view on this matter, to suggest that we are totally happy with the European arrest warrant or with everything that the Government are putting forward. We are not. We continue to have massive concerns about the European arrest warrant, as the Minister knows. Very reluctantly, however, in the light of the other concessions, we will go along with the Government on this.

§ Mr. Carmichael
Yet again, I can say that the Liberal Democrats are broadly content with the totality of the deal that has been struck. The hon. Member for Surrey Heath ((Mr. Hawkins) said that the Conservatives had arrived at their position with some reluctance, and we 446 can understand that. I am pleased with the Minister's assurances that the aims that we were seeking to achieve, particularly in relation to article 6.3 of the ECHR, might be achieved in other ways. I also take on board the Minister's comments about the Secretary of State's role, as it would be under the new clause. I think it was confused, and would be confusing
The hon. Member for Surrey Heath said that the clause had been added at the instigation of my noble and learned Friend Lord Goodhart, albeit with Conservative support. I pay tribute to him for all he did: he brought a wealth of experience to the proceedings, allied to good sound Liberal principles. I do not think I am giving away any secrets by saying that last night I received a memorandum from him about the arrangements arrived at in the other place. It says: The Government says that the new clause is unworkable (probably correctly!) I think it fair to say, apropos my earlier comments, that repentance will clearly not be the sole provenance of Ministers today.

§ Caroline Flint
Let me first confirm that the ECHR deals with the language issue. It guarantees the right to an interpreter if that is necessary, which is entirely right.
I welcome the endorsement of Opposition Members. As was pointed out by the hon. Member for Orkney and Shetland (Mr. Carmichael), we can always present ideas but those ideas are always open to further scrutiny and change, regardless of which side of the House is involved.
Lords amendment disagreed to.