Extradition Bill

HL Deb 19 June 2003 vol 649 cc353-408GC

(Fourth Day)

Thursday, 19th June 2003.

The Committee met at a quarter before four of the

clock.

[The Deputy Chairman of Committees (Baroness Ramsay of Cartvale) in the Chair.]

Clause 5 [Provisional arrest]:

[Amendment No. 45 not moved.]

The Parliamentary Under-Secretary of State, Department for Constitutional Affairs (Lord Filkin) moved Amendment No. 46: Page 4, line 6, after "authority" insert "is a judicial authority of the category 1 territory and On Question, amendment agreed to.

[Amendment No. 47 not moved.]

Clause 5, as amended, agreed to.

Clause 6 [Person arrested under section 5]:

[Amendments Nos. 48 and 49 not moved.]

Lord Wedderburn of CharltonAmendment No. 50: Page 4. line 34, leave out "taken to be The noble Lord said: I can be very brief. Clause 6(5) of the Bill states: If subsection (2) is not complied with the person must be taken to be discharged". There is a parallel provision in Clause 4 which raises wider issues and to which different arguments apply. However, the semantics points raised by the amendment may also be considered in relation to Clause 4. and

I do not in any way criticise the draftsman, but I do not understand the drafting of Clause 6(5). I thought what we meant was that if subsection (2) was not complied with—for example, if the person was not brought before the appropriate judge—he should be discharged and, as indicated in previous debates, discharged immediately. I do not understand why the clause does not state that.

It may be that I am ignorant of some special meaning of "taken to be discharged", but I would prefer to see a clear statement of what we mean. I do not understand what is meant by "taken to be discharged" if the person is not actually discharged. I believe we mean that he should be discharged immediately. If so, why do we not say so? That is what the amendment seeks to do. I beg to move.

Baroness Turner of Camden

I have put my name to the amendment, which is grouped with Amendment No. 51. The amendment will lead to greater clarity. If "taken to be discharged." means anything it means that if the proper procedures have not been followed the individual concerned has a right to be discharged—and, quite clearly, has a right to be discharged immediately. I support the amendment.

Lord Hodgson of Astley Abbotts

We believe that the first of the two amendments has value in the sense that. unless there is some special legal phraseology attached to "taken to be", clarity should be sought. We therefore support that amendment.

Unless there is a special reason for not doing so, the noble Lord, Lord Wedderburn, may also wish to bring forward an amendment to remove the words "taken to be" from subsection (6) in order to ensure that the two subsections run together.

We had slightly more difficulty with Amendment No. 51. The use of the word "immediately" must he squared with the 48 hours available to the police under Clause 6(3). We debated at some length the 48-hour issue during the last meeting of the Committee. Clearly there are rights and wrongs in connection with provisional arrest which we do not need to go over again. However, it is not clear how the word "immediately" inserted at the end of line 36 could be squared with 48 hours. The two could lead to discontinuity and difficulties for the police, the prosecution and the defendant.

Lord Filkin

I shall speak succinctly because my noble friend Lord Wedderburn is right in what he infers we should impute by these words—that 'must be discharged" means discharged forthwith—when the relevant test has been triggered by other clauses in the Bill. However, we are worried that that phraseology would imply that there must he a formal discharging process. That is why the Bill is so worded rather than in the way proposed in the amendment. If it is intended that the person should be released immediately, taking him before a judge to bring about that discharging process would slightly negate that intent.

What we wish to do, therefore, is to take the spirit of what has been said by my noble friend, reflect on whether there is any better way of expressing this to make it absolutely clear that it is our intention that when the tests have been applied—for example, when the 48 hours have expired—the person should be released immediately without the need for a court hearing to do so. We shall reflect on whether it is possible to improve the drafting in that respect. I hope that my noble friend will regard that as helpful.

Lord Wedderburn of Charlton

Naturally I am pleased with that response. As I said, I do have a reason for not applying this to Clause 4, where various other points arise. However, I have to admit that I was grossly negligent in not having looked at subsection (6) and, in regard to Amendment No. 51, I do see the slight problem that could arise with the use of the word "immediately" and the terms of Clause 5. I am glad that the Minister will look at this issue again. No doubt he will solve all the problems with the ingenuity that only his advisers can command.

Obviously I shall withdraw the amendment but, while I am on my feet, I seek the leave of the Committee to refer— either now or immediately after the amendment is withdrawn—to a problem which has arisen in regard to our procedure. Perhaps noble Lords think that I should speak to it now? Several Members of the Committee are nodding—I do not see many dark looks—so I shall do so.

I should like the Government Whips, or whoever is the authority in this matter, to make a Statement shortly, at a time convenient to the Grand Committee—the word "shortly" is one that we are used to in this Committee—on whether the Government will consider afresh a request that I have already made to the Chief Whip. He felt that he could not concede to my request earlier today, but would the Whips consider arranging, in some ingenious way consistent with the interests of all noble Lords taking part in the Committee proceedings, to adjourn the Grand Committee on the Extradition Bill when our proceedings coincide, or are obviously about to coincide, with the proceedings in the Chamber on the Fire Services Bill?

In view of what has been said about this request, I wish to emphasise that I do not seek this simply for my own convenience but for the convenience of other noble Lords. It is true that my noble friends and myself who are concerned with both this Bill and the Fire Services Bill have a special interest, but I apprehend that we are not the only Members of the Grand Committee who have an interest in both matters.

I am sensitive to the fact that the increased use—indeed, the greatly increased use—of Grand Committees to suit the interests of the executive, especially after the debate we had in the House on this Bill going into Grand Committee, obviously raises the problem pretty often. I quite understand that proceedings in Grand Committee cannot be adjourned every time any Member or a few Members of a Grand Committee have an interest in what is going on in the Chamber. That is the way in which the reforms have been interpreted. However, I have looked again, and I find it hard to believe that that is, in fact, what the report we adopted in the House envisaged.

The Fire Services Bill is a measure of constitutional importance in the view of a number of Members of your Lordships' House. It was first scheduled on Monday, then the Chief Whip proposed that it should be scheduled for Tuesday. At that point, some of us had our names down to debate the Bill. It was then changed to a date which did, as the others did not, coincide or conflict with the proceedings in Grand Committee. Some of us had already put our names down to amendments in Grand Committee. So the third rescheduling meant that this conflict would inevitably arise if the Bill was likely to be debated earlier than 7.30. The Government knew that, and they knew it might well require some of us to be in two places at once, if only to meet the requirements of our names being down on both lists. Eager though we are to put ourselves at the service of the House, this degree of agile versatility is not available to us or, I think, to anyone.

In a sense this is the first time that this problem has emerged. It is likely to arise again when Bills of even greater constitutional importance are debated in the Chamber and the Government choose to propose that another Bill coincide with it in Grand Committee. I have looked very carefully at the Companion. While I do not wish to elaborate the case now, under paragraphs 689 and 690, the inability of a Grand Committee to have a Division on a procedural matter, as against a substantive question on the Bill before it, is not at all clear. I do not wish to press the point now, but I refer it to those Members of the Committee who are interested in just what a Grand Committee can do in the face of the stultification of its debates for those who have put their names to amendments in the Chamber, according to the arrangements in the House, to constitutionally important Bills.

I very much hope that some accommodation might be suggested because I do not believe that the problem will be very acute tonight. It is said that the Fire Services Bill may be debated at 5.30, but that seems slightly optimistic. A very short period of time could be sufficient to avoid the problem.

With deep gratitude, I have pursued the points sufficiently with the leave of Members of the Committee. It remains for me to hope that a statement can be made on the Government's behalf to look at this again and not give a simple "no" to the request, but to realise that they are in face of a new problem created by the new procedures. In the interests of the House as a whole—and this Grand Committee is to sit as though it were a Committee of the House, with certain exceptions, which need to be carefully looked at—I hope they can make a statement other than a blanket "no". Having said that, I shall be withdrawing the amendment.

4 p.m.

Lord Filkin

I shall respond for the Government. I start by thanking my noble friend Lord Wedderburn for the way in which he has made his case. It will not surprise the Committee to hear that we see extreme difficulties in acceding to the request.

First, the business of the House is fixed after careful discussions between the usual channels. It is a Herculean task to try to negotiate how the House's business will be dealt with between the parties in ways that are as fair as possible to all interests. The Government, as the Committee well knows, have no monopoly on that process. The inevitable pain of those processes means that almost every day someone is unhappy with the result. That is why officials, if not Chief Whips, have a difficult task in that process.

Secondly, the House has agreed to the use of Grand Committee. In doing so, it is explicit —if not, it is certainly implicit —that at times the Grand Committee will be sitting while other business is taking place in the Chamber. That is almost axiomatic. Therefore, there are bound to be occasions, both in this House and in another place, when a busy House has parallel work streams, which means that all Members have difficult choices to make. The sadness is that one cannot possibly organise the business of the House through the usual channels in a way that would meet the wishes of' all the more than 600 Members.

By implication of what I have said, it is not out of any obduracy on the Government's part; it is impractical and impossible—I put it at its clearest—for every Grand Committee to be brought to a stop because one Member, quite legitimately and understandably, has pressing interests either in the House or elsewhere. If so, Grand Committees would never sit.

The point made by my noble friend Lord Wedderburn is not quite as extreme as that. I do not think that he was being extreme at all. He was really talking about Bills that were constitutional. I hear what he says about the Fire Service Bill, but my limited experience of the House is that Members tend to feel that there is a constitutional element to virtually every Bill about which they feel passionate. They are not being duplicitous, but they believe that the issue is such a significant one that it goes to the heart of our state and national relationships. I wished to explain those reasons why the Government do not feel that this is a practical suggestion.

Baroness Carnegy of Lour

Am I right to say that this is an experiment; that the Grand Committee system is not necessarily permanent? The noble Lord has made a very important point. I already have an acute conflict of interest. I am sure that we shall have many more. Being a Peer is not really supposed to be about being asked to be in two places at once on two crucial issues, both of which are legislative. It really is not.

Knowing of the noble Lord's expertise, the Fire Service Bill is obviously extremely important to him. It is important to us all, but he will have a big contribution to make to it and he has a big contribution to make to this Committee. So there are problems. The Government cannot just say, "The usual channels have done this and so we shall not think about it any more". I think that the usual channels will hear about this. I just wished to say that the noble Lord is not alone in his problems.

Lord Filkin

In what I said, I sought to indicate that I was respectful of the fact that however the Business of the House is organised, it always causes discomfort and problems to Members. The point being advanced is that the Grand Committee may create slightly more inconvenience. I hear the point.

I am reminded that Grand Committees are not experimental but are part of our Companion. Nevertheless, it is open to the House to decide how it wants to review its arrangements at any appropriate point. I do not think that now is the time to go into the matter. Clearly, Members have strong views on these issues. I suggest that an appropriate course of action to follow is for them to make those known, perhaps in writing, to the usual channels.

Lord Wedderburn of Charlton

I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 51 not moved.]

Clause 6 agreed to.

Clause 7 [Identity al person arrested]:

Lord GoodhartAmendment No. 52: Page 5, line 9, leave out subsection (3). The noble Lord said: Clause 7 deals with the identity of a person arrested and requires a judge to be satisfied that the person arrested is, in fact, the person in respect of whom the warrant was issued. That is provided by subsection (2), which states: The judge must decide whether the person brought before him is the person in respect of whom … the warrant … Has issued". Subsection (3) then states: The judge must decide the question in subsection (2) on a balance of probabilities". Amendment No. 52 would remove subsection (3). It has the same purpose as Amendment No. 53, but it removes the whole subsection, instead of altering the words, on a balance of probabilities", to, "beyond reasonable doubt".

The Extradition Bill raises the issue of the liberty of the subject. "Liberty of the subject" is an archaic phrase, because it now applies to non-subjects as well as to subjects of the Queen. For category 1 states, with which the clause deals, there is no need to produce supporting evidence of the person's guilt, but it is necessary for the judge to be satisfied that the person before him or her is in fact the person named in the order, because to send the wrong person back to face a criminal trial is a serious miscarriage of justice, even if the mistake was discovered fairly swiftly after the extradition. Of course, one must remember the unfortunate gentleman, Mr Bond, the businessman arrested in South Africa on a warrant issued due to mistaken identity.

Judges should not send people back if the decision that they reach is, "This is probably the same person, but we are by no means certain". If the decision is to be made on the balance of probabilities, that is what judges will have to do. That would be a serious mistake.

I propose the removal of subsection (3) altogether rather than its amendment because I prefer to avoid the use of the words, "beyond reasonable doubt". Those words themselves are now somewhat out of date—for example, they are no longer be used in giving directions to juries in criminal trials, where a .judge is required to say, "You must be sure".

In the absence of subsection (3), my understanding is that the court would normally apply the criminal standard of proof, or something close to it—as it does, for example, in cases in where an allegation of fraud is made in a civil action and the court does not decide on the balance of probabilities, but on a higher standard of proof. That is appropriate, but I do not think it necessary to specify the standard of proof in the Bill; it is adequate to leave that to the courts. My strong opinion is that the balance of probabilities is not the right test to apply here. I beg to move.

The Deputy Chairman of Committees (Baroness Ramsay of Cartvale)

If Amendment No. 52 were agreed to, I could not call Amendments Nos. 53 or 54.

Lord Hodgson of Astley Abbotts

I have three amendments in this group . As the noble Lord, Lord Goodhart, said, Amendment No. 53 addresses precisely the same issue in respect of Part 1 arrests. Amendment No. 190 deals with category 2 territory arrests—the same issue. However, Amendment No. 54 comes from a slightly different angle in seeking to answer the question posed by the noble Lord in respect of our chosen wording.

As the noble Lord said, these amendments focus on Clause 7, on the "Identity of person arrested"—which, as he rightly said, is the first thing to be established at the initial hearing. We have taken up Amendments Nos. 53 and 190 from Liberty and Amendment No. 54 from Justice because of concerns about the drafting of the Clause 7 provisions for establishing the identity of the arrested person. That is why we have had a slightly less root-and-branch approach than the one that the noble Lord recommends.

Amendments Nos. 53 and 190 propose a change in subsection (3) from the civil "balance of probabilities" to the criminal test of "beyond reasonable doubt". We know that the civil test is considerably less stringent. In fact, Liberty has commented in its briefing, which I am sure that other noble Lords have received, that it is of "an unacceptable standard".

I understand the arguments which are undoubtedly in the Minister's brief against the proposed change. The initial hearing is a preliminary step and not part of the criminal procedure. However, we think that the amendment is justified for the following reasons. As the noble Lord, Lord Goodhart, again pointed out, no prima facie evidence is being provided. So long as the judge believes that the person in front of him is the same as the person named on the warrant, remand and further arrangements for the extradition will ensue automatically. If the judge is not satisfied, the person will be discharged.

We do not understand—and we share the concern of the noble Lord, Lord Goodhart, about this—how the judge will be able to satisfy himself on a balance of probabilities test. What identification methods will be used? There are many cases of stolen identity; examples have already been given. Indeed, noble Lords whose credit cards are stolen are probably contributing to the creation of fresh identities. Occasionally hugely high-profile cases come to light, such as that of Mr Derek Bond. However, it is remarkably difficult to assert one's innocence if for all intents and purposes it appears that one is the aforementioned person.

I turn briefly to Amendment No. 54, the amendment put forward by Justice. It comments that, as currently drafted, clause 7 contains no specification on the evidential standard required or where the burden of proof lies in determining the identity of the accused. The drafting appears to create the role of an investigating magistrate, unknown to UK law. The proposed amendment would clarify this position in the interests of procedural rigour". Justice's point is essentially to establish whether it is the judge or the prosecution—one or the other—who should have the task of asserting the person's identity. Justice would like the Bill to state clearly that it is for the prosecution to satisfy the judge that the "Mr Smith" before them is the same "Mr Smith" as named in the arrest warrant. Currently the Bill is vague about how the judge is to make his decision and on what evidence.

Although we understand and support the objective of the noble Lord, Lord Goodhart, we believe that in the interest of clarity it would be best if identity test procedures were made clear in the Bill. That is why we have tabled the additional amendments in this group.

4.15 p.m.

Lord Clinton-Davis

I support what the noble Lord, Lord Goodhart, said, and I prefer his approach to that set out in Amendment No. 53. I entirely agree with him that the use of the words. "beyond reasonable doubt", is, in this day and age, otiose. There is a duty on the authorities to establish that they have the right person. The argument that he adduced is entirely right.

In criminal law, or something akin to criminal law, the words, on a balance of probabilities", should not be used. Although I have something else to say about that, I do not want to delay the Committee, but the arguments offered to the Committee by the noble Lord are entirely right. Although he is of course obliged to withdraw the amendment, I hope that he will bring it back—or, better still, I hope that my noble friend will accommodate it.

Viscount Bledisloe

I entirely support Amendment No. 54, because it lays down, if we are to decide on the balance of probabilities, on whom the onus lies. Without Amendment No. 54, if the judge thinks that the balance is exactly 50:50, there is no indication in the Bill which way he should go. That is not a silly point. Frequently in civil cases, the judge says, "I do not know. Therefore, the plaintiff has failed to prove his case". If we are to decide something on the balance of probabilities, we must know who is the winner and who is the loser at a straight 50:50 point. So, in my view, Amendment No. 54 is undoubtedly necessary, if the Bill is otherwise unamended.

Amendments Nos. 52 and 53 are apparently intended to achieve roughly the same thing: to remove the civil level of proof and insert the criminal one. However, unlike the noble Lord, Lord Clinton-Davis, I have no doubt that if we are to do that at all, the right way to do so is that suggested by the noble Lord, Lord Hodgson, and not that suggested by the noble Lord, Lord Goodhart.

The amendment proposed by the noble Lord, Lord Goodhart, would leave the court entirely unguided as to what is the test. He said, "Well, it will be either the same as the criminal proof, or something very like it, as happens in civil court cases". With respect, he is incorrect about civil court cases. In civil court cases, the burden of proof remains the same—namely, a balance of probability—but the court says, "If you are making a serious charge, you must prove it rather more convincingly". The balance of probability remains the test.

The noble Lord, Lord Goodhart, laughs at that formulation; others have laughed, but it is in fact the formulation of the courts. So he proposes that we leave the provision, not on the straight principle that 51 per cent will do, but not saying whether the criminal test or something vague in between will apply. if it is to be changed, it must be changed to something specific.

Lord Clinton-Davis

We are dealing, are we not, as the noble Lord. Lord Goodhart, said, with the issue of the liberty of the subject? That is entirely different from the notion that the noble Viscount advanced regarding fraud in civil cases.

Viscount Bledisloe

I am not at the moment arguing the merits of whether a change should be made. I am saying merely that if a change is to be made—I rather doubt that it should, but still—undoubtedly the right way to do so is that suggested by the noble Lord, Lord Hodgson, not the noble Lord, Lord Goodhart.

Lord Carlisle of Bucklow

I strongly support what was said by the noble Lords, Lord Goodhart and Lord Hodgson, with regard to the principle that the clause needs to be changed. We must remember that we are dealing with a Part 1 arrest warrant and the only thing the judge will have to decide is whether the person in front of him is the person to whom the warrant refers.

Looking at the information required to accompany the warrant, one sees that that the first thing listed in Clause 2(4)(a) is the person's identity. It is obvious that that must he a matter on which the judge must be sure. The idea that we should send people hack for trial, even to another Part 1 country, on the basis that on the whole the judge believes that it is probably the right person is totally unsuitable. Therefore, I strongly support the proposal that the provision needs to be changed.

The noble Viscount, Lord Bledisloe, raised the argument about the best way to do that. First, if the noble Lord, Lord Goodhart, is right and is satisfied that if we said nothing, the judge would be required to he sure, on balance I support his approach. On the other hand, if there is any hesitation about it, we had better spell it out, as is done in the amendment tabled by the noble Lord, Lord Hodgson, by specifying "beyond reasonable doubt". I accept the point made that on the whole, these days, a judge in summing up to the jury tells them that they must be satisfied so that they are sure rather than satisfied beyond reasonable doubt.

I hope that the two parties can somehow get together and agree on wording before the matter comes to be voted on in the House—if it must.

Lord Wedderburn of Charlton

I agree with all Members of the Committee who have spoken to say that the matter cannot be left where it is. I am not sufficient of a criminal lawyer to know whether "balance of probabilities" should be replaced by the reasonable doubt test or some test saying, "You have to be sure". However, something of the kind must be specified. I do not agree with the noble Lord, Lord Goodhart, not because he may not be absolutely right but because to leave the matter in silence is to invite protracted argument in some court or another as to exactly what test the Bill requires.

There is a precedent in employment law, when in the middle of the darkest days of that legislation employment tribunals were relieved, it was said, of having any test of burden in deciding on unfair dismissal. They were to decide according to the equities of the case, which was said to remove all questions of burden of proof in a matter. I have never been happy with that arid some cases have illustrated how improbable it is. But if it is appropriate to employment tribunals, it is not at all appropriate to a case which involves the liberty of the citizen, which I must express is a liberty in England of the subject.

The amendment which seems to me to be right—even if the Government resist everything else, they must be pressed on it on Report—is Amendment No. 54. At least it says something about the burden of proving the essential point that is likely to arise in such proceedings: "Who is the person whom you have arrested?". That burden must rest on the prosecution. It must take that burden and show that it is reasonably sure that the person is the man or woman in question.

I hope that the Government will not require us to pursue the matter on Report—which I otherwise encourage noble Lords to do—and that they will look again at subsection (3) and make the situation clear.

Lord Filkin

This is the first time we have talked about the initial hearing in Grand Committee on the Bill. In order to position our discussion, perhaps I may indicate that at the initial hearing the district judge must do a number of things. He must inform the person of the contents of the warrant; he must give the person information about the possibility and the consequences of consenting to extradition; he must fix a date for the main extradition hearing; and he must decide whether to grant the person bail or to remand him in custody.

The first thing he must do is decide whether the person before him is the person whose extradition has been sought. At this stage, the judge is not considering whether the extradition should take place; still less whether the person is guilty of the crime. He is simply reaching a view as to whether the person whose extradition has been sought and the person before him are one and the same.

As we have indicated, there are three options. The Bill leaves the court unguided on this matter—which is where we as the Government started—or the standard of proof should be specified in some way. That was the view in another place when the Government were urged to specify a standard of proof. As regards the standard of proof, there are only two options; balance of probability or beyond reasonable doubt.

In another place, the Government accepted that to leave the standard of proof completely open, as was argued, merited consideration. We therefore brought forward an amendment on Report to specify it. That was accepted by another place—not that that is necessarily relevant to our consideration. Nevertheless, that was the consequence of those discussions.

Amendment No. 52 would restore the position to the previous ambiguity, which was criticised by Liberal Democrats in another place. Again, that does not bind us in this House, as we well know. Its overall effect is that it would be left to the court to determine what standard of proof should apply. My view is that this is an important issue on which Parliament should take a view. We have been persuaded from our original position in that respect.

The amendment made in another place imposed the balance of probabilities. Let me explain why that was chosen and why I think it is right. First, we are not talking about a criminal prosecution. Matters of guilt or innocence are matters for the trial court in the requesting country, including as part of a defence, "It wasn't me, guy. I wasn't there at the time.". That is a perfectly valid point which can be raised at the full hearing.

Lord Clinton-Davis

When the judge in chambers considers bail, he is not considering the merits or demerits of the prosecution. What is the difference?

Lord Filkin

I agree and I was not referring to bail. I was referring to the judge's decision as to whether he considered that the person before him was the person for whom the extradition request had been made.

I give an illustration of why we believe that the test of the balance of probabilities is appropriate, bearing in mind that this is not the trial but a decision on whether to release someone straight away or to send him forward to a trial. I shall illustrate it by referring to the terrible case of Detective Constable Stephen Oake who was murdered in Manchester in January this year.

That was not an extradition case and in that sense it is not on all fours, but in terms of when he came before the courts, there was enormous difficulty in being sure what was the person's name. The person put forward at least three names, or could have claimed them from the documentation he had.

In that situation when there was documentation on him, and assuming for the sake of argument that the person had committed an outrage in another country and had fled to Britain, on the balance of probability the judge could not have decided that it was beyond reasonable doubt that he was one of three people. On the test of balance of proof, the judge would be forced to release that person and for obvious reasons we believe that that is wrong. It does not of course deny that person the opportunity to put in his defence at a later stage in the process, "It is not me. Here is my evidence as to why it is not me.".

I turn to the question raised by the noble Viscount, Lord Bledisloe, about 50/50 cases, which may be rare or not. To a lay person, it ought to be the inference that if, as we believe, the balance of probability is the test, it is up to the prosecution to make the case that on the balance of probability this is the person. I am giving a 0.1 per cent over the 50 per cent, but I shall take the point away and confirm whether that is our firm position.

For the reasons I have given, we were advised in another place that the standard of proof ought to be specified. We have listened to that, but if we took the "beyond reasonable doubt" standard, people would not be brought to trial when they should be and when they would be able to make powerful arguments, if it were the case, that it is not them and that they should be acquitted. I therefore hope the noble Lord will be minded to withdraw his amendment, with my assurance that we will reflect on the point made by the noble Viscount, Lord Bledisloe.

4.30 p.m.

Lord Goodhart

I am grateful for the support which the amendment has received from most of those who have spoken in the debate. I am not satisfied that the Minister has produced an argument which convinces me that there are cases in which the interest of justice requires that the standard should be less than being sure.

I would be happy to take on board the suggestion of the noble Lord, Lord Carlisle of Bucklow, and I hope to be able to agree with the noble Lord, Lord Hodgson, and put forward an amendment in joint names. I imagine that in one form or another the matter is likely to come back at a later stage, but in the mean time I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 53 and 54 not moved.]

On Question, Whether Clause 7 shall stand part of the Bill?

Baroness Carnegy of Lour

I have given the Minister notice and I hope that the Committee will forgive me if I take a moment to raise a question about bail. It is mentioned in Clause 7(9) and I want to clarify how differences in Scots law bail procedures are allowed for in the Bill.

Recently, the noble Lord, Lord Filkin, was kind enough to convene a meeting at which Scottish officials and the Ministers in the Home Office agreed to meet noble Lords who were interested to look at the Government's proposals in the Bill for bringing Scots law into line. Many useful points were made and afterwards a note was sent to those present summing up what had been said.

One of the matters dealt with was provision for bail. Bail procedures are different in Scotland from the rest of the United Kingdom. My understanding is that under the Bill, Scotland will continue to operate its own bail arrangements and that this is made possible by Clause 194. The clause includes an order-making power which allows Scottish Ministers to amend the Criminal Procedure (Scotland) Act 1995 as is necessary for the purposes of the Bill. I speak as an amateur having studied the notes.

My question is simply this. Does Clause 194 bring the bail arrangements in Scotland in line with the Bill for the whole of the Bill's provisions? If so, a number of amendments I have on the Marshalled List, which began with the Law Society of Scotland, will be unnecessary. If I can have such an assurance, we shall be able to save the time of the Committee and remove them.

Lord Filkin

Not for the first time I thank the noble Baroness, Lady Carnegy, for the skill and vigour with which she probes Scottish matters in our deliberations—that is an important role—and for the way in which she has addressed this issue.

Let me put on the record that Clause 194 will modify the bail provisions in the Criminal Procedure (Scotland) Act 1995 by inserting a new section specifically relating to bail in extradition proceedings. The new section will ensure that existing Scots law on bail applies to persons facing extradition in so far as that is consistent with the Bill. I can confirm that Clause 194 applies to the whole of the Bill.

I want to make two points about Scottish bail provisions. Unlike in England and Wales, the police in Scotland have no power to grant bail. However, the Lord Advocate has the power to grant bail to any person charged with any crime or offence. The new section makes it clear that the Lord Advocate can exercise that power in relation to a person subject to extradition proceedings.

Secondly, the new section also includes an order-making power to enable Scottish Ministers to amend the bail provisions in the Criminal Procedure (Scotland) Act 1995 in so far as is necessary or expedient for the purposes of Clauses 9(2) and 76(2), which relate to the powers of the judge at the extradition hearing. I hope that that is helpful.

Lord Wedderburn of Charlton

Perhaps my noble friend could clarify an issue within this context. It will save time both here and on Report. On our first day in Grand Committee on 3rd June, the Minister said: Our position is that Eurobail and bail is a separate matter from that of the European arrest warrant. That is the current position; we have no current plans to change the system of bail".—[Official Report, 3/6/03; col. GC174.] I appreciate that naturally he did not refer to the position under Clause 195 and we now know that the Bill provides for matters in Scotland. It is also true that the answer he gave was in the context of a discussion on Eurobail. However, looking ahead not merely to the proceedings of this Grand Committee but also to the Report stage, it is important to know whether in putting aside Eurobail the Government's position is that apart from Scotland, which is provided for, bail is a matter separate from the European arrest warrant and cannot be dealt with under the Bill.

Previous discussions show that bail arises in a large number of matters, not only here but also in respect of courts in jurisdictions which will issue demands for—I use the word which I know the Minister does not like but which is in the framework decision and its description—surrender. This is a scheme of surrender and therefore the occasions on which bail might or might not be granted either in this jurisdiction or in that of an issuing authority concerns some of us greatly.

I appreciate that the Eurobail project is a more general issue. Nevertheless, do I take it from what we have heard that the Government would not have a "NO", written in capital letters, to amendments and issues raised here and on Report concerning bail in the context of the European arrest warrant?

Lord Filkin

The Bill changes domestic law on bail but does not affect the bail law of other countries or impose a system of Eurobail. I stated the Government's position on Eurobail on 3rd June and there is no change to that. As ever, I promise to reflect on what has been said by the noble Lord, Lord Wedderburn, and see whether it requires any further clarification on Report. At this point, the position is exactly as I said on 3rd June and I do not expect it to change.

Baroness Carnegy of Lour

Perhaps I may assist the noble Lord, Lord Wedderburn. I was merely talking about amendments which make it possible for Scotland to use its own bail system in the normal course of the Bill. It did not relate to the points that he raised, which I fully understand.

Clause 7 agreed to.

Clause 8 [Remand etc.]:

Lord Hodgson of Astley Abbottsmoved Amendment No. 55: Page 5, line 34, leave out paragraph (c) and insert— (c) ensure that the person has received independent legal advice about the implications of giving or withholding consent to extradition; The noble Lord said: Before I speak to this group of amendments, perhaps for the convenience of the Committee I may say that we shall be changing the batting. My noble friend Lady Anelay will not be moving two amendments tabled for debate today. This is an effort to save a little time. They are Amendment No. 60, grouped with Amendments Nos. 60A, 61 and 187 to 189, and Amendment No. 76. At a future date we shall be grouping Clause 21 stand part with Amendments Nos. 84 and 85.

I make that clear because the group beginning Amendment No. 60 is the point at which the batting changes. My noble friend would have to begin by not moving some amendments.

I turn to Amendment No. 55, dealing with the initial hearing and legal advice. Amendment No. 55 deals with a Part 1 warrant. Amendment No. 164 deals with extradition to a category 2 country. Amendment No. 176 relates to a provisional arrest. Amendment No. I79 is a consequential amendment and Amendment No. 217, at Clause 125, relates to the consent to extradition (general) where the Secretary of State is involved. My noble friend Lady Carnegy has tabled Amendment No. 218, which concerns the Scottish dimension.

The amendments focus on the provision of legal advice on the subject of consent. The irrevocable nature of consent and the serious consequences it entails, including in particular the waiver of the specialty rule following extradition, make the provision of free legal advice prior to such consent indispensable. It appears that the Government conceded on this principle at Report stage in another place. We welcomed the words of the Minister, Mr Ainsworth, that amendments would, ensure that the right to legal aid that is enshrined in the Access to Justice Act 1999 applies to the issue of consenting to extradition. They provide that, before a judge accepts a fugitive's consent to extradition, he must check that the person had the opportunity to receive independent legal advice".—[Official Report, Commons, 25/3/03; col. 168.] The principle of legal advice prior to consent has therefore been accepted by the Government. I want now to focus on what our amendments aim to do specifically.

Amendments Nos. 55, 164, 178 and 179 focus on the same point. The Government amendments at Report in another place made some progress by ensuring that the judge cannot accept someone's consent unless he has checked the person has had access to independent legal advice prior to consent. This focuses on the consent clauses—that is, Clause 44 in Part 1 and Clause 125 in Part 2. Our amendments would require the independent legal advice to be introduced at an earlier stage; that is, when the judge first mentions consent at the initial hearing in Clauses 8, 71 and 73 for Parts 1 and 2 respectively.

Clause 8, which deals with the remand stage of the initial hearing, requires the judge to give the person the required information about consent as set out in subsection (1)(c). We think that inherently unsatisfactory from the point of view of both the person concerned and the judge. Our amendment is designed to replace the role of the judge with that of an independent legal adviser who would explain not only about the right to give or withhold consent but, perhaps more importantly, the implication of so doing.

There is an important difference between having an independent legal adviser at this stage, rather than just at the giving of consent stage of Clauses 44 or 125, as the latter might well not allow the person time to think, consult and reflect on which course he should best take. Clauses 44 and 125 appear only to ensure that the person is legally represented at the time he gives consent and that he knows about his rights to apply for legal aid.

Amendment No. 217 focuses on Clause 125, the Part 2 consent clause. On a probing basis, we propose replacing subsection (3)(b), which says that consent is irrevocable, with the provision that consent is valid only if the person has had access to independent legal advice. In view of the support he has given me so many times in our last two sittings. I do not wish to pre-empt the noble Lord, Lord Wedderburn, who, from the look of Amendment No. 56, which is grouped separately, is keen to have a debate about whether consent should be irrevocable. The amendment is merely an alternative way of drafting the independent legal advice provision into Clause 125.

Amendment No. 97, tabled by the noble Lord, Lord Goodhart, raises an interesting point about whether, under the circumstances, an application for legal aid would have been refused or withdrawn. I look forward to hearing from the noble Lord, Lord Goodhart, and to the Minister's reply.

To summarise, the provision of legal aid prior to consent is a matter of the utmost importance. In order for consent to extradition to be informed, an individual should have received independent legal advice. As the Law Society of Scotland has stressed, a judge may be able to provide an explanation of consent but he cannot provide the necessary legal advice. The amendments have been tabled in an effort to ensure the inclusion of such a provision in the Bill so that this procedure takes place at an early stage of the proceedings, thus meeting the standard in terms of fundamental legal rights which our fellow citizens require and are entitled to expect. I beg to move.

4.45 p.m.

Lord Goodhart

Amendment No. 97 in the group stands in my name. It is proposed by Justice and would amend Clause 44, which provides that the person may not give his consent under the section unless he is legally represented before the appropriate judge at the time he gives consent or if subsection (6) applies. Subsection (6) applies if the person has been informed of his right to apply for legal aid and has had the opportunity to apply but has refused or failed to apply. That is understandable. Incidentally, I think I have just spotted a defect, in that "section" in subsection (6) should instead be "subsection". The Government might wish to take that up. Subsection (6) also applies if a person has applied for legal aid but his application has been refused or if he has been granted legal aid but it was withdrawn.

Amendment No. 97 would remove paragraphs (b) and (c) from subsection (6). This is a probing amendment and has been proposed by Justice. It is plainly desirable that the subject of a warrant should be advised before consenting to extradition and should be properly represented at the court hearing at which the extradition is ordered. One cannot force a person to be represented if they are legally competent and they refuse to instruct a lawyer to represent them. But it is hard to see any other ground on which the court hearing should be held without representation.

Paragraphs (b) and (c) exclude the need if legal aid has been refused or, having initially been granted, has been withdrawn. The lack of means is no longer a bar to grant of criminal legal aid. We assume that representation under Clause 44 will he treated as criminal legal aid for this purpose, although we would like assurance on that point.

The merit test would, it seems, of necessity he satisfied at the court hearing. Therefore, the question arises: what arc the circumstances in which either paragraph (b) or (c) of subsection (6) might need to be relied upon? If the Minister can produce an example in which it might be necessary and reasonable to rely on paragraphs (b) and (c), I will happily withdraw the amendment and not bring it back. But I would like to know the kind of circumstances in which it is contemplated that paragraphs (b) and (c) might need to he relied upon.

Lord Clinton-Davis

Does my noble friend have any plans to introduce something of this kind by way of regulation? In principle, I very much agree with what has been said for the Opposition by the noble Lord, Lord Hodgson, and the noble Lord, Lord Goodhart. This issue of representation is very important, but, in my view, it can he dealt with procedurally as well as in the Bill.

It is incumbent upon my noble friend to say what are his intentions. At the moment, the whole thing is shrouded in mystery. I hope he can help the Committee to find a way through this shroud.

Viscount Bledisloe

I venture to suggest that both these amendments go too far. Amendment No. 55, in the name of the noble Lord, Lord Hodgson, makes it imperative that the judge ensures that the person has received independent legal advice. He may have refused it. The amendment does not say, "received or had available", it just says "received". So the man who does not want to be extradited refuses to see a lawyer; therefore, he has not received legal advice, and the judge has to discharge him.

Equally, the amendment in the name of the noble Lord, Lord Goodhart, would delete the provision covering a person who was granted legal aid but the legal aid was withdrawn. Let us suppose it was withdrawn because the person in question was racially abusive to the lawyer appointed and assaulted him. If the person knows that once legal aid has been withdrawn for that sort of reason, he cannot be sent back, it seems a rather easy way out of extradition.

Lord Clinton-Davis

The lawyer may have deserved it.

Baroness Carnegy of Lour

Amendment No. 218 in my name would amend Clause 125; it makes a small but necessary point about the matter of consent in Scotland. Subsection (9) states that, on consent, a person will be treated as legally represented only if, he has the assistance of counsel or a solicitor". The Law Society of Scotland points out that in Scotland there is an alternative. A solicitor could instruct a solicitor-advocate to represent his client—that is, a solicitor who has been granted rights of audience in various courts, including the High Court of Justiciary. To ensure that this is possible, this amendment would need to be inserted.

I should add, with apologies, that I should have tabled a similar amendment to Clause 44 relating to Part 1 consents. This amendment relates to Part 2. 1 apologise for that omission, but I think the point is made with this single amendment.

Unless it is absolutely certain that the word "counsel" in the Bill includes solicitor-advocates in Scotland, I hope the Government will accept the amendment.

Lord Bassam of Brighton

I am grateful to all noble Lords who have contributed to this debate. The amendments relate to the important issue of consent to extradition and, specifically, to the legal advice that is available to persons in such circumstances.

[The Sitting was suspended for a Division in the House from 4.56 to 5.7 p.m.]

Lord Bassam of Brighton

As I was about to say, it is worth recording that somewhere between a quarter and a third of those who are the subject of extradition proceedings in this country consent to extradition, so it is not an insignificant issue. That makes it all the more important that those concerned understand the full implications of giving consent. For that reason, the judge is required at the initial hearing to explain to the fugitive about the possibility of giving consent and the consequences of so doing.

We have gone further than that. Under Clause 44(5) and (6) and the corresponding provisions for Part 2 in Clause 125, the judge is not able to accept the fugitive's consent unless the fugitive has had the opportunity to take independent legal advice. I think that is pretty much what the amendments standing in the name of the official Opposition seek to achieve. I hope that they will accept that, on this occasion, we are, in effect, a step ahead of them.

The noble Lord, Lord Goodhart, by contrast, in his probing amendment, is aware of what the Bill provides but would like some changes. In particular, he seeks to remove Clause 44(6)(b) and (c). I hope I can also reassure him that every person who is arrested in an extradition case has the same entitlement to independent legal advice as those arrested in purely domestic cases. The duty solicitor scheme is designed to ensure that this advice is available before the first court appearance. In the extradition context, this means that legal aid is available before the fugitive has any opportunity to consent to extradition.

As I am sure noble Lords are aware, the availability of legal aid is no longer based on a means test but instead on an interests of justice test—a merits test. Anyone who faces the prospect of imprisonment is entitled to legal aid. By definition, therefore, everyone in an extradition case is entitled to legal aid. However. it is not impossible that the rules may change, though I hasten to add that the Government have no plans to do so. At some future point, certain people, including those in extradition cases, may not be entitled to legal aid. That is a decision of Parliament. I do not see that such people should be prevented from being able to consent to extradition if that is their wish, particularly as they might well have made their own arrangements for legal advice.

Clause 44(6)(c) deals with legal aid being withdrawn. The noble Viscount, Lord Bledisloe, got it absolutely right: it is very rare for this to happen, but it can happen in extreme cases where a person is obviously abusing the system by constantly seeking to dismiss his legal representative or by being rude, violent or unpleasant to his lawyer. It is very rare, but if a person abuses the system in this way and then wants to consent to extradition, we should not seek to stop this happening.

The effect of the Liberal Democrat amendment would be that a consenting defendant would be made to go through the whole extradition process, impacting not just on court time but also on costs and, possibly, the defendant's own well-being.

Amendment No. 218, in the name of the noble Baroness, Lady Carnegy of Lour, would ensure that the definition of being legally represented before the appropriate judge will extend in Scotland to solicitor-advocates. I can assure her that this is unnecessary, as solicitors in Scotland who enjoy, as she said, extended rights of audience, are still solicitors. They are therefore caught by the reference to "solicitor" in Clause 125(9). In every eventuality, the references are the same and the effect is the same. I hope that noble Lords and the noble Baroness will see that there is no further need to pursue these matters.

Lord Goodhart

I am grateful to the Minister. I am particularly relieved at his assurance that the criminal merits test will be applied here. I see some force in the argument relating to Clause 44(6)(c), as pointed out by both the noble Viscount, Lord Bledisloe, and the Minister, in that the person against whom an extradition order is sought might have had legal aid withdrawn because of gross misconduct. However, I found the Minister's argument on Clause 44(6)(b) distinctly unconvincing. If this is a protection of people facing extradition against the possibility that the rules might change as to the merits test, which was what I understood the Minister to say, I cannot see why Clause 44(6)(b) is relevant. Clause 44(6)(a), by necessary implication, means that there must be a right to legal aid which cannot be withdrawn. I should be reluctant to bring back an amendment which, it seems, would do no more than remove what appear to be some unnecessary words that would, in practice, have no effect. However, I will read what the Minister has said and consider the argument.

Baroness Carnegy of Lour

May I clarify what the Minister said in response to Amendment No. 218? I understood him to say that a solicitor advocate is still a solicitor and so he is included as a solicitor. My understanding was that the word "counsel" represented the function in the High Court. My question was whether "counsel" included the solicitor-advocate. I want to be quite clear about this.

5.15 p.m.

Lord Bassam of Brighton

It does cover the term.

Baroness Carnegy of Lour

The word "counsel" includes the solicitor-advocate?

Lord Bassam of Brighton

Yes.

Baroness Carnegy of Lour

That is not what the Minister said, actually. I just wanted to be quite sure. Thank you very much.

Lord Hodgson of Astley Abbotts

I, too, am grateful to the Minister for his comments. I understand the defects in the drafting as regards, "receiving independent legal advice". The fact that I did not see how such provision might be abused shows that I have lived in a very sheltered world. Clearly it is a drafting defect. There is another error. Clause 71(7) should have been struck out as subsidiary to Amendment No. 164. I point that out before anyone else does.

We were concerned about the timing. That is the real issue. Clause 44 comes into play when the whole procedure is under way. We are discussing the issue under Clause 8, which deals with the initial remand hearing. We wanted to give the person time to reflect. I am not quite clear, but the Minister can probably tell us, whether it is envisaged that after Clause 44 comes into play—which is when the train is rolling; and the Bill's purpose is to enable the train to roll swiftly—the procedure will allow adequate time for the person to obtain that advice. We are not arguing against what the Minister said. We are merely saying, "Should it not come a littler earlier so that the person has a chance to get legal advice?"

Lord Bassam of Brighton

At the initial hearing the judge must provide the person affected with the required information about consent. The judge must do that right at the very beginning of the process. The judge cannot accept consent unless the person has had access to legal advice. There is no way in which the person can consent without proper understanding of what is involved or without legal advice. There is absolutely no way in which that can happen. At that initial hearing—at the remand hearing, if you like—the judge will explain the position and set it out quite clearly. He or she will ensure that the person affected understands the situation so that he can be given proper and independent legal advice before the process goes any further. The judge cannot accept consent without the person having that understanding.

Lord Hodgson of Astley Abbotts

That will happen even under the proceedings in Clause 8, at the very beginning of the process.

Lord Bassam of Brighton

That is right; yes.

Lord Hodgson of Astley Abbotts

That is reassuring. We should like to look through the Minister's comments, but it sounds as though he has produced a satisfactory answer. If we may, we will examine his comments, consult and ensure that we have covered all the bases. Meanwhile, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Wedderburn of Charlton moved Amendment No. 56: Page 5, line 42, leave out "and is irrevocable The noble Lord said: I am glad to move the amendment now as I had not realised some of the aspects of the problems surrounding consent that were exposed by the previous debate. I wanted to move Amendment No. 56 separately—I am almost tempted to say, in the words of the best prospectus ever issued for investment, in 1820—"for a purpose which shall in due time be revealed".

Lord Goodhart

Surely it was 1720.

Lord Wedderburn of Charlton

Did I say 1820? It was the bubble Act, of course. However, this is no bubble; this is a very serious case. The person who gives consent is not allowed to revoke it. The essential question raised by the amendment is: why? In the ordinary case, especially subject to all the problems in Clauses 44 and 45, one could expect to be whisked off within 10 days.

I understand all the points about representation and explanation by the judge, although we have seen that, in fact, representation is rather more precarious than has been suggested. The judge will do his best. However, particular issues arise under consent. The first is that, under Article 13(4) of the framework decision, In principle, consent may not be revoked". The Government would say, "We're just following the framework decision". However, Article 13(4) also provides that not only consent but also renunciation of the specialty rule may be revoked if the domestic law of a state so states. The governments of Belgium, Denmark, Ireland, Finland and Sweden made the decision to notify the secretariat, which is required, with four of them allowing revocation of both consent and renunciation, and Belgium allowing only revocation of consent.

The first question is why did the Minister not join in their reasons for doing so. Why did he not take any steps in regard to consent, and what representations did he seek or obtain relating to that? The United Kingdom Government did not do so and did not give a notification to the General Secretariat. That is a point to which I want to return.

After failing to do so, the Government may rely upon that failure; but that has very important consequences for what we in Parliament can do. However, before dealing with that, I should like to ask a second question. Does consent under the Bill as it stands open up all the problems which many noble Lords on this Committee, learned and otherwise, have encountered in their studies and experience with regard to real and apparent consent? However hard the judge tries, the person who consented may have been at all material times under the influence of something rather horrible, possibly drugs; under the teachings of a mystic, which is harder to spot; or even on the advice of a singing master—which. as noble Lords will recall, arose in some of the cases concerned with real and apparent consent in Kenny's criminal cases. I shall not go through the details of all of those. However, just how far is this going to open up any arguments on real or apparent consent?

I return to the Minister's position. It really will not do for the executive to say to some unfortunate person who may deny he is the right person and wish to revoke a consent which he has already given to his surrender, "I am terribly sorry, but you don't have any right to withdraw your consent to be surrendered to this foreign jurisdiction—especially for some obscure crime such as swindling which you did not come across in studying for your degree. Of course we recognise that it was all a mistake which no one spotted that you gave your consent after being misled on the circumstances. It is all a terrible pity, but off you go! There's very little we can do about it now. You see, we didn't tell the General Secretariat that we wanted to retain the ability to revoke consent". Surely that is not a satisfactory position.

The Minister's responsibility goes rather further than that. On 1st May, on Second Reading of the Bill, he said: the position is that Parliament is sovereign and Parliament can do what it wishes in this respect". I interpose to say that the "respect" was in a general sense material to this discussion. He went on to say: Clearly, if there were to be a discontinuity between our treaty obligations and our own lain, that is another issue that goes further. But Parliament is sovereign".—[Official Report, 1/5/03; col. 858.] Does he stick to that in relation to consent? He failed to give a notification to the General Secretariat. He failed to reserve the right to revoke consent, as the five governments I cited did. Is he now saying that Parliament can give a right to revoke consent or not?

If the Minister does not say that, there is not much point in debating this amendment. I should have to withdraw it very quickly because Parliament is not sovereign on the matter. This is a difficulty that has been created entirely by the executive, by not giving notice and not providing for domestic law to give this right to someone whose consent was given in circumstances that led to his being misled, which was not spotted. I know that judges are very clever, but with the greatest respect, just occasionally they do not spot something. In the proceedings it may not be spotted that the person is misled.

I adhere to what I said on a previous amendment. I do not think that, where it could be drafted otherwise, this Bill should allow for one person, whoever he is, to be sent off to trial in a foreign jurisdiction where that is undesirable and unjustifiable. I believe that those circumstances could arise. They are not merely a matter of fancy; they are a matter of real life.

Therefore, in three respects this amendment poses a problem for the Government. First, why do we think that consent should be irrevocable in all circumstances? Should there be no exception at all? Secondly, what were the reasons for not giving domestic law the opportunity to provide for at least something in relation to revocation of consent? Thirdly, does the Minister agree that we can now legislate on the matter despite his failure to notify the secretariat under the framework decision? I beg to move.

Lord Hodgson of Astley Abbotts

After the challenging remarks of the noble Lord, Lord Wedderburn, I hesitate to get involved. We have some concern about the abolition or removal of irrevocability because it could be open to abuse and exploitation by those wishing to delay the process of their extradition. As we have said from the beginning, we share the Government's view that the extradition process has become unduly elongated and should be speeded up. Whether that should be done in Part 1 or Part 2 is another issue, but we think that the process should be speeded up. Our bottom line—in the modern phrase—is that as long as the person has proper independent legal advice, as we were discussing a moment ago, and therefore clearly knows the implications of giving or refusing consent, the consent once given should be considered binding.

I am not saying that there is not a case for irrevocability. For example, a warrant could be served on someone who thinks that he is innocent. He may nevertheless decide to go to the foreign country in order to face trial and get it over with. He may then find himself remanded in custody in a way which was not envisaged. So there are dangers. Those of us who have read the briefings from Fair Trials Abroad have seen some pretty horrendous examples of how clearly innocent people can be convicted and imprisoned.

We feel that we are back to the need to strike a balance between the wish to ensure that the guilty are swiftly punished and the wish to protect the rights of the innocent. We feel that, on balance, the amendment pushes the envelope a little too far.

5.30 p.m.

Viscount Bledisloe

I venture to doubt that the problem adumbrated by the noble Lord, Lord Wedderburn, is a real one. You need to revoke a consent only if it is a valid consent. If the consent has been obtained by fraud, duress or under an incapacity then it is not a valid consent. The English judiciary is perfectly capable and ingenious enough to say, "That is not a valid consent. It is not a question of revoking it. I find that although the piece of paper was filled in, the consent was in fact never given. In those unusual circumstances the man can be let free". Plainly, however, in a normal case, he cannot just change his mind, any more than the man who pleaded guilty can just change his mind. I venture to think that the judiciary will easily solve the scenario, if it ever arises, which the noble Lord has adumbrated.

Lord Goodhart

I am going to be, I think, a little more sympathetic to the amendment than the previous speakers. To give an unqualified right of revocation of consent might in some circumstances encourage people against whom a warrant is issued to play games with the legal system by giving consent and then being able to revoke it any time before they are actually put on the aeroplane and the aeroplane takes off. However, I think that there are circumstances in which it is possible that a right of revocation should be allowed. For example, if there is a substantial change of circumstances—say a regime change in the country to which the extradition is to be made, and as a result of that regime change the person who is to be extradited has genuine reasons for fearing that he might not get a fair trial—then I think that there would be justification for saying that there should be a chance to revoke.

So while I cannot support the amendment as it stands, if the noble Lord, Lord Wedderburn, brought back an amendment saying that consent could be revoked for cause with the leave of the court, I would support it. I would not expect that to happen, but it could. I think that that would not encourage people to play games because they would know that once they gave their consent, they would have to show a good reason why that consent should not be acted upon.

Lord Filkin

As I think has been understood, consent is a significant element in extradition. It is therefore important that we preserve it. However, it is also important that we ensure that proper safeguards are attached to its use. The noble Lord. Lord Wedderburn, asked me about my comments on parliamentary sovereignty. I have not changed my position—although it is not just my position. I think that I was merely stating the legal position. Parliament is sovereign. As that is so, Parliament legislates on what Parliament does. That legislation is effectively the law of this land.

The noble Lord asked why we did not choose the option given us by the article to have a revocation of consent. There was a conscious decision not to do so, for exactly the reasons set out by the noble Lord, Lord Hodgson. For reasons that I shall shortly set out in more detail, we believe that that would open the door to abuse. Instead, we have put in place what we think are proper safeguards around the giving of consent. First, the judge must explain to the person the significance and impact of consent. As we discussed in previous debates, the judge not only explains that but seeks through interpreters to ensure that it has been understood. Secondly, as we also discussed in a previous debate, the person must have legal advice, or at least the offer of legal advice, available to him.

I emphasise that everyone arrested in an extradition case has the same entitlement to independent legal advice as those arrested in domestic cases. The duty solicitor system scheme is designed to ensure that that is available before the first court appearance. In an extradition context that means that legal aid is available before the fugitive has an opportunity to consent to extradition, as well it should be. Nevertheless there is an additional safeguard that district judges are required to explain to the fugitive the effect of consenting to his extradition and the fact that consent, once given, cannot he revoked. Therefore, before the decision is taken, it must have been spelled out to them, "If you say yes to this, you cannot go back on it". That seems to us a right and necessary safeguard.

We do not think that Amendment No. 56 is appropriate for exactly the reasons that noble Lords have indicated. Imagine the person who has consented to extradition being taken to Heathrow and then, just as he is about to go on the plane, announcing that he has changed his mind and withdrawn consent. He would be brought back again and the extradition hearing would start again. In those circumstances he could give consent again. And so it could go on. Although that may sound farfetched, if one is charged with a very serious criminal offence and fears for one's liberty, one will do one's utmost within the laws and procedures to fight every such mechanism. That is not being farfetched; that is a statement of common sense and fact. That is often what extradition resistance is about.

For those reasons, I do not think that revocation is sensible—which is why we took that policy position. We have sought to try to ensure that people do not lightly, uninformedly or ill-advisedly give consent until they have been advised and are clear that it is not revocable.

I heard the interesting challenge from the noble Lord, Lord Goodhart, regarding regime change. One off-the-cuff answer is that if a country had regime change, it would, as we touched on earlier, be within the Government's power to remove it from Part 1. As that may not he a full answer I should like to reflect on it. As the noble Lord signalled. however, such a case is extremely unlikely. We hope that it will never happen with Part 1 territories. However, it would be an optimistic world if we thought that something could never happen. We should therefore—without implying that we necessarily think that there is a solution—consider the possibility. At this point, I simply suggest that the amendment might be withdrawn.

Baroness Anelay of St Johns

Before we come to the end of this amendment, I should like to raise an issue that the Minister prayed in aid to explain the Government's stance. He referred to the fact that there would be access to the duty solicitor scheme for the provision of legal advice. He has just joined a newly created department. However, as I understand it, last week, the existing department—until this week, the Lord Chancellor's Department—issued guidance on what may happen to legal aid. One of the proposals was that the duty solicitor scheme will be severely cut back. I am not asking the Minister to answer my question now on the future of the duty solicitor scheme. However, would he be kind enough to ask other Ministers in his new department whether it will be possible to give the Grand Committee an undertaking that the Government think that, at least in extradition cases, the duty solicitor scheme should always be available? Otherwise there will be concern about the issue before we reach Report stage.

Lord Filkin

I am pleased to agree to do so.

Lord Wedderburn of Charlton

I am grateful to everyone who has spoken to this amendment. Of course I tabled it in an absolute form because I wanted to raise rather different points, which I did raise. I noticed that the Minister—unless he wants to add something—did not suggest that he had had any discussions or consideration of reasons with the governments who notified the General Secretariat that they were going to allow revocation. It all seems to have happened without consideration of whatever those reasons were. As I understand it, there was an understanding that the provisions of domestic law as regards delay of proceedings could make whatever provision they liked.

All the abuses that have been put forward are abuses against which it would be quite easy to legislate. We had the same problem as was raised under a previous clause—constant reiteration of consent, or constant reiteration of release after provisional arrest. Of course we can legislate to give the judge guidance on dealing with that. We could even give the judge a discretion in cases where consent appears to be a manifest abuse. I agree that my amendment did not suggest that. However, it was tabled to see whether anyone would realise that.

The idea that if there is a regime change the Government will necessarily revoke the designated territory status under Clause 1 is somewhat fanciful. I was not going to put forward regime change, but I am grateful to the noble Lord for doing so as it is another case. I was going to put forward a case where consent to extradition had been given in the belief that there was no death penalty. That was correct at the time of designation, but subsequent to designation and to consent a death penalty had been introduced in the issuing territory.

The Government are in a bit of trouble on this. It seems to me that their only possible answer is that designation will be revoked. Quite frankly, I do not think that that is good enough. No one should be at risk of a death penalty introduced subsequent to designation and to their consent and forced to rely merely upon the speedy action of the executive—presumably within the 10 days—to revoke the designation order. The Government really must look at that again.

There is another, more homely example. I noticed that no noble Lord dealt with my case of consent obtained by the advice of a mystic. A judge can not necessarily spot that. I appreciate that judges are very wise. However, I do not subscribe to the proposition, as I understood the noble Viscount to say, that the English judiciary can easily solve all our problems. Even judges do not see the whole part of the game.

If we had someone whose religious persuasion told him that he must submit to Caesar in an absolute form and he gave consent on the basis of that faith, and after consent he saw Caesar in a different light and was converted to a different position, why should he not be allowed under at least some conditions to revoke or modify that consent? The judge can explain what he likes, and his lawyer can explain what he likes, but that is nothing whatever to do with his religious beliefs, which have changed. Yet noble Lords will stop him from following his belief. I do not understand that. I do not believe that it is impossible to modify the proposition in Clause 8(3)(c) regarding revocability with our perfectly sensible provision.

Lord Mayhew of Twysden

On this point about changing one's religion and seeing Caesar in a different light, I wonder whether the noble Lord does not see the distinction between a case where the person does not give his mind to what is relied upon as his consent and a case where he gave his mind to it but changed it subsequently? Surely they are quite separate.

5.45 p.m.

Lord Wedderburn of Charlton

I appreciate what the noble and learned Lord says. I was not putting forward the case where a man had merely changed his mind but where he had changed his fundamental premises, which everyone is entitled to do.

I know that we have had trouble lately with regulations relating to non-religious people not being covered against discrimination. Other Members of the Grand Committee may not have been there—it is the only occasion on which I have spoken at the wrong time in your Lordships' House—but, if they read Hansard, they will see that we have had trouble in that regard.

A person may not have a religious belief—he may have an atheist belief—but the fundamental premises of what he believes may have totally changed. But I have said enough on this subject. When the Minister looks again at this matter—as I hope he will—I urge him to consider the conditions under which revocability would be allowed.

I move the amendment in this form because the Government are in trouble on this issue. The Minister did not refer to the problem but if, for example, Parliament legislates on this, can he go back to our European partners and say "We want to give a late notice"? Or is European law on this matter so granite faced that he cannot change his position because of the framework decision? If he is able to go back, is he prepared to consider doing so?

It is all very well for the Minister to say that he still adheres to the view that Parliament is sovereign, but if he cannot go back and change our position under the framework decision—the noble Lord shakes his head—which is as binding as a directive in European law, the judge will have to take account of the framework decision whatever Parliament may enact. I am not sure what the judge will do in such circumstances. If the Minister could assure me that he would go back if Parliament legislated for a small area of consent to be revocable, that would be very satisfactory.

If the Minister wishes to add to what he has said before I withdraw the amendment I shall happily give way to him.

Lord Filkin

I am no international lawyer but my understanding is that framework agreements are international treaty agreements between member states; they do not apply to domestic law until such time as their provisions have been enacted in Parliament. Therefore the law of the land is the law as passed by Parliament. I have set out the Government's view. We do not want to go back because revocation is not desirable. Having said that, I have indicated to the noble Lord, Lord Goodhart, that I will reflect on the point he made.

Lord Wedderburn of Charlton

I am grateful to my noble friend. It would obviously be wrong of me to read the relevant parts of the preamble. but this is a European Council Framework Decision of 13th June 2002 issued by the Council of the European Union under Articles 31 and 34. Perhaps the Minister will have another look at that document.

The Minister has still not said whether he would be prepared to go back and ask if Parliament decided that he should. If Parliament instructed him to go back and ask to give a late notice to the General Secretariat, he still has not told us whether he would do so. That raises profound constitutional issues. However. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Goodhart moved Amendment No. 57: Page 6, line 6, leave out "are exceptional circumstances" and insert "is good reason The noble Lord said: In moving Amendment No. 57, I shall speak also to Amendment No. 59. The amendments are proposed by Liberty.

A judge who is required to proceed under Clause 8(1) of the Extradition Bill must fix a date on which the extradition hearing is to begin. Under subsection (4) that date must be not later than 21 days from the date of arrest. Subsection (5) states: If before the date fixed under subsection (1)…a party to the proceedings applies to the judge for a later date to be fixed and the judge believes there are exceptional circumstances, he"— that is the judge— may fix a later date; and this subsection may apply more than once". That allows the date fixed for the hearing to be postponed only in "exceptional circumstances". But the right of a defendant—the person concerned is effectively a defendant—to time and facilities for the preparation of his defence is absolutely essential. It is a matter of common knowledge that there are frequently delays in getting authority for the grant of legal aid even where a hearing is imminent. Where the human rights of a defendant would not he observed in a requesting country—and therefore the extradition would be excluded by Clause 21 of the Bill—it may well take time to gather and present the necessary evidence.

These circumstances cannot be regarded as "exceptional". Indeed, delay for the purposes of obtaining legal aid is far from exceptional; it is all too common. But it does provide a very good reason for the extension of time and it is obviously desirable that a defendant who needs more time should not have to show "exceptional circumstances" but merely "good reasons".

I accept that what is sauce for the goose is sauce for the gander and that if a defendant can get a postponement for good reason even though the circumstances are not exceptional, the same rule should apply to the Crown Prosecution Service. The amendment provides that either side can apply for an extension of time where there is good reason.

Amendment No. 59, which is of somewhat less importance, would require the subject of the warrant to be a party to any application by the Crown Prosecution Service for the postponement of the hearing. It is plain that he should be a party to any application which might increase the length of his detention and—even if he is released on bail—the amount of time that an extradition order is hanging over his head.

Although the amendment is not drafted in this way, I would have no objection to all applications under subsection (5) being made inter-party—that is, in the presence of both parties—so that if the detained person applies for an extension of time the Crown Prosecution Service should have a right to be present at that application. I beg to move.

Viscount Bledisloe

The amendment must be right. I suspect that subsection (5) was drafted with a view to the person asking for delay being the Crown Prosecution Service, the prosecutor. It is perfectly reasonable that, before he sets extradition in motion, he should have his tackle in action and not have to keep asking for delays.

As the noble Lord, Lord Goodhart. said, it will happen very frequently that the lawyer instructed by an accused—if that is the right word—will say, "I have not had time to take full instructions" or, "My partner is ill and I am not ready". This happens all the time. To say that a lawyer saying "I need more time" is an exceptional circumstance is a remarkable proposition. I see that I have the support of most Members of the Committee on that.

It cannot be right to say that when the date may have been fixed at a hearing where the defendant was unrepresented—there is no reason why he should have been represented when the date was fixed—and may have thought that it was a very simple procedure. But when his lawyer comes along there may be difficulties. His lawyer may need to consult people; he may need to find out about foreign law; he may need to get translators; we know he will need to get an interpreter in many circumstances. So the lawyer will say, "I am sorry, I am not ready" and the judge may say, "Well, that is not exceptional. It is absolutely commonplace. I am afraid you cannot have your adjournment". That plainly would be wrong.

Lord Carlisle of Bucklow

I support Amendment No. 57. I am sure that those advising the Minister will accept that the term "exceptional circumstances" has been narrowly construed by the Court of Appeal in many aspects of the criminal law. As the noble Viscount, Lord Bledisloe, said, it would not cover a person who said "For good reasons I am not ready to go on". The words "good reasons" rather than "exceptional circumstances" would meet the Government's requirements and would be fairer to the person who is to be extradited. It would be a sensible amendment.

The clause should perhaps go rather wider and, rather than stating that a judge should believe that there are exceptional circumstances, it should state that the judge is satisfied that there are good reasons.

Lord Mayhew of Twysden

Before the Minister replies, perhaps it would be worth considering a slightly different form of wording. One has to be loyal to the Government's policy—or, to put it another way, I share the Government's wish to speed up the process and to cut out factious delays and factious opportunities to occasion delays—but, at the same time, that cannot be at the expense of justice.

I agree with what has been said about the formulation of "exceptional circumstances", but a judge will require guidance as to what the language employed in substitution for that phrase really means. He will also need guidance on the circumstances in which it is to be used. I am not sure whether the phrase "for good reason" would give him enough guidance.

On reflection, perhaps it would better to use the phrase "where the overall interests of justice require". The phrase "for good reason" seems a little too bland to give a judge the necessary guidance.

Lord Hodgson of Astley Abbotts

We share the Government's wish to ensure that delays are reduced. We gave the Government the benefit of the doubt on the amendment of the noble Lord, Lord Wedderburn, but on this occasion we believe that the envelope has been pushed too far by the phrase "exceptional circumstances" and that the amendment of the noble Lord, Lord Goodhart, has the right construction.

This has come about in part because of the European arrest warrant, under which things can happen very quickly. We need to ensure that there is a proper opportunity for consultation and preparation and that the process does not go through unduly quickly and in a way that does not give an individual the opportunity to ensure that his case is properly prepared.

We share the views that have been expressed in Grand Committee. I congratulate the noble Lord, Lord Goodhart, on changing subsection (1) to subsection (5). It did not make any sense and I was going to ask him about it.

Lord Filkin

It is good that all noble Lords who have spoken support what we are fundamentally seeking to do—that is, to quite sensibly and necessarily speed up the extradition process while, at the same time, trying to avoid miscarriages of justice in so doing. As set out in the Bill, we believe that "exceptional" is the best way of achieving that because it will ensure that the substantive hearing will take place relatively speedily unless there are "exceptional reasons" for not doing so.

At this first stage, all we will be doing is fixing a date for the initial hearing. At the substantive hearing it will be open to the lawyer acting for the person sought for extradition to make exactly the points advanced by the noble Lord, Lord Goodhart, and others—in other words, he can apply for an adjournment because he is not ready and does not have all the evidence he requires—and the judge at that substantive hearing will have ample discretion to consider them.

Mindful of what has been said, I should like to reflect further on this matter—not because we do not believe that we are right in our intent but if this was to give rise to a number of substantive hearings and increase the likelihood of adjournments as a consequence, that would not achieve what most of the Members of the Committee seek—that is, for substantive hearings to go ahead rather than be adjourned. It might be—I go no further than that— that too severe a test at the initial stage would foreclose some sensible options to avoid an adjournment later.

I do not want to raise hopes excessively but we shall reflect on these points and respond to them on Report.

6 p.m.

Lord Goodhart

I am grateful to all noble Lords who have spoken in support of the amendment. I am also grateful to the Minister for saying that he will consider the matter further.

The amendment is plainly right. As the Minister suggested, it is not desirable to go to the first day of the substantive hearing and at that stage ask for an adjournment for the necessary period of time. Subsection (5) suggests that there are some circumstances under which it might be desirable to apply for an adjournment before the substantive hearing begins. So there is a clear argument for saying that where it is apparent that more time will be needed it should be possible to make the application before the beginning of the substantive hearing.

I await with interest the Government's response but, unless it is favourable, I intend to bring back the amendment on Report, perhaps in the form suggested by the noble and learned Lord, Lord Mayhew. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Hodgson of Astley Abbotts moved Amendment No. 58: Page 6, line 6, leave out "and this subsection may apply more than once The noble Lord said: The amendment seeks to delete the proviso in subsection (5) that delays may be applied for more than once. Amendment No. 186 relates to a Part 2 arrest warrant and, most significantly given the provision we are seeking to explore, Amendment No. 212 relates to Clause 98—"Time limit for order for extradition or discharge"—where the Secretary of State comes into play.

We have brought forward the amendments on the recommendation of the Scottish Law Society. It has been assiduous as ever in spotting potential loopholes and has drawn particular points to our attention.

Amendment No. 58 seeks to remove the provision in Clause 8 which allows the date of an extradition hearing to be rescheduled on a continuing basis. We share the Scottish Law Society's concerns that the current drafting of the provision could lead to the indefinite detention of those awaiting an extradition hearing. It is possible that the date could be deferred using the excuse of "exceptional circumstances", the "interests of justice", or whatever, again and again.

Throughout our discussions on the Bill we have been repeatedly told by the Minister that one of the main aims of the legislation is to speedup the system, which is fraught with delays and has endless numbers of trials postponed, deferred and avoided. We welcome a Bill which will make the extradition process more efficient by removing unnecessary and potential procrastination. That is why we wish to discuss this issue today. On that basis, we have brought forward amendments which seek to delete the provision to allow more than one continuation of a hearing.

Amendment No. 212 relates to the position of the Secretary of State. At present, one of the great complaints about the extradition process concerns delays. As we discussed at Second Reading and elsewhere, although delays in extradition appear to be the fault of lawyers and the judicial process and procedure, in many cases they come about because the Secretary of State cannot make up his mind and continuously puts off decisions.

At Second Reading I referred to the case raised by Mr John Maples, the Member for Stratford-on-Avon, in the Second Reading debate in another place. He pointed out how a number of people wanted for terrorist offences in the United States and France had exhausted their legal procedures by December 2001 and were still awaiting the Secretary of State's decision in December 2002. I have given the details of those cases and I shall not weary the Grand Committee with them again. When we discussed the issue four months later on 1st May—16 months after the legal proceedings had been exhausted—I asked the Minister whether or not those people had been deported and their cases finally concluded. Perhaps the Minister now knows about that and will tell us when he replies.

This probing amendment seeks to deal with procrastination, particularly on the part of the Secretary of State. Clearly that has recently held up a huge number of cases. It is all very well to pass the blame across to the lawyers but, in many cases, it has not been the fault of the lawyers or the courts but of an inability, unwillingness or a lack of will and readiness to make a final decision.

When I have asked the Minister about this in the past he has said "We are acting in a judicial capacity". But surely every judicial capacity must have been exhausted in a period of 16 months. It cannot take as long as that for a Secretary of State to reach a conclusion in conformity with his judicial capacity.

These are probing amendments which are of particular significance to the later parts of the Bill. We raise them now because the issue arises in regard to Clause 8 and again in Part 2. I beg to move.

Lord Mayhew of Twysden

I am not sure about this issue. If the Government were to adopt my suggestion made on the previous amendment that the time limit may be extended where the interests of justice required, it would be a little difficult to justify saying that the interests of justice should be heeded on only one occasion and not more.

If that formulation were to be adopted, would it not meet the purpose of the current amendment which my noble friend has explained? The interests of justice are the overall interests of justice and if it would be unjust in all the circumstances to protract the detention of the applicant, that would permit the judge on those grounds to refuse a further application.

Lord Goodhart

The name of my noble friend Lord Mar and Kellie is attached to these amendments. This is because the amendments were more or less approved en bloc, having been brought forward by the Law Society of Scotland. On further consideration—and on the same grounds as those suggested by the noble and learned Lord, Lord Mayhew—I am no longer certain that Amendments Nos. 58 and 186 are appropriate.

I remain strongly in support of Amendment No. 212, which seeks to place a firm limit of two months on the time available to the Secretary of State to make his decision as to whether or not a category 2 extradition is to proceed. Two months is a perfectly adequate period of time within which the Secretary of State can make a decision, and it would be difficult to justify an extension of that time.

Lord Bassam of Brighton

There is a degree of unanimity within the Grand Committee that our present extradition system, with its endless and multiple opportunities for delays, is not satisfactory. One of the great virtues of the new arrangements the Bill will put in place is a speedier and more streamlined process. The noble Lord, Lord Hodgson, agreed that that was right.

It means that we shall have to set and adhere to timetables. As part of that, at the initial hearing which takes place very shortly after arrest, the district judge must set a date on which the main extradition hearing should begin. This should ensure that extradition proceedings do not drag on indefinitely.

However, we recognise that there may be circumstances when it would be unjust and unfair for a hearing to proceed on the due date. For example, the fugitive or his lawyer may fall ill, or another party in a Part 2 case may have encountered real and unforeseen difficulties in gathering the necessary evidence. Accordingly the Bill allows the district judge to postpone the hearing where he believes there are "exceptional circumstances", and he can do so on application from either side.

We have just agreed to consider whether there is a case for applying a slightly less stringent test. I recognise that such circumstances can arise and that they can continue to apply or happen on more than one occasion. Accordingly, we think it right that the judge should be able to postpone the hearing date as many times as he needs to rather than be able to do so only once, which would be the effect of the amendment.

Let me give the example of where the district judge has set a date for an extradition hearing and a few days before the appointed date the fugitive falls quite seriously ill. In those circumstances, it would be in the interests of justice and appropriate to postpone the extradition hearing. The medical prognosis might be that the fugitive is likely to have recovered sufficiently to attend and participate in a hearing set for about three weeks hence. Accordingly, the judge might set a new date for the initial hearing of four weeks hence.

As we know, doctors are not always infallible. It might be that when the revised hearing date comes round, the fugitive, although on the road to recovery, is still not well enough to attend the hearing. In those circumstances a further postponement would clearly be right. Removing the possibility of a second postponement could result in injustice to the fugitive. I am sure that that is not what Members of the Committee want to see.

I appreciate that noble Lords may be concerned that the requesting state might seek to use this facility to secure a series of postponements to the detriment of the fugitive. The first point to be made is that, under the reasons I have given, we have to allow the fugitive to secure more than one postponement, but we must be even-handed and thus not deny the same facility to the requesting state, as our legal system has always been based on treating both sides in the case equally and fairly.

Nevertheless, I understand the concerns. That is precisely why we have left the district judge to decide whether there are good grounds for the postponement. The mere fact that the requesting state seeks a postponement does not mean that it will automatically get it. If, in the judge's view, good reasons have not been advanced for the postponement, he will not allow it. If the requesting state has failed to get its act together, that is its own bad luck. That was also the reason why we set the bar at a higher level in terms of the test that the judge should apply. It is something that we shall have to take into consideration when we further reflect on these issues. I do not believe that a requesting state would seek to abuse this facility, but if it did so, I am sure that the judge would have little truck with it. I hope that noble Lords appreciate the drawbacks attendant on their amendments and that they will be withdrawn.

In response to the point made by the noble Lord, Lord Goodhart, on the Secretary of State giving reasons for possibly postponing his decision, it may be because he would want to consider any late representations made to him by the fugitive. However, the agreement of the High Court is required before the Secretary of State can postpone his decision. So there is a check in place.

The noble Lord, Lord Hodgson, returned to an issue that he has quite properly raised previously. I am sure he would accept that I am not in a position to discuss individual cases. It would not be in the interests of justice for me to discuss such cases within the confines of a Committee. However, if the noble Lord wants to take advice on this particular issue outside the Committee, then obviously he is free to do so.

6.15 p.m.

Lord Goodhart

I should like to make two points before the noble Lord, Lord Hodgson, withdraws his amendment. First, I was interested to note that the noble Lord, Lord Bassam, referred to the illness of the person against whom the warrant has been issued as one of the possible grounds for deferring the date of the start of the hearing. But if there is anything that is not an exceptional circumstance, I should have thought that it would be the illness of the defendant. I think that illustrates the strength of the argument on the previous amendment.

I want to ask about Amendment No. 212. While I understand the point that it might be the defendant actually asking the Secretary of State to give further time for the consideration of new information, of course it is not necessarily that way around. There is no qualification here about the grounds on which the Secretary of State can ask the High Court to extend the time; as set out in Clause 98(10), which states: If before the required period ends the Secretary of State applies to the High Court for it to be extended, the High Court may make an order accordingly". Ought not there to be at least a requirement that an extension can be granted only if the interests of justice require it?

Lord Hodgson of Astley Abbotts

The noble Lord, Lord Goodhart, has summed up what I wanted to say. It is clear that our first two amendments, Amendments Nos. 58 and 186, need to be revisited in the light of the Government's reaction to the "overall interests of justice" or whatever phrase is used when they come to look again at the clause. However, on Amendment No. 212, relating to Clause 98, we take a rather more robust view, one made more robust as a result of what the Minister said about the three gentlemen alleged to have been involved in the African embassy bombings in August 1998, and who are still here four years later.

I do not ask the Minister to comment on the case, but only on whether those people are still in this country. Have they gone or not? I do not seek the Minister's view whether this is right or wrong, whether they were guilty or not guilty; I ask only whether the people concerned are still here. But when the Minister responds by saying, "Oh, I cannot possibly tell you that in the interests of justice", it makes me wonder whether, when we reach Clause 98—"Time limit for order for extradition or discharge"—given the open-ended nature of the thing so ably described by the noble Lord, Lord Goodhart, that response will be used all the time.

Far from meeting the wish of the noble Lord, Lord Filkin, to speed things up, should someone enter this end of the legal pinball machine, that ball will be bouncing back and forth for a very long time. In all honesty, I cannot see why, four years after the events and 16 months after the High Court finally extinguished their last legal line of approach in this country, the Minister cannot say what has happened to those three people. Does the Minister wish to respond?

Lord Bassam of Brighton

I do not have the information and I am not in a position to enter into discussions about that particular case. However, I appreciate and take note of the point made by the noble Lord.

Lord Hodgson of Astley Abbotts

For the moment I shall withdraw the amendment, but in particular with regard to Amendment No. 212, we shall want to reflect carefully on the matter. This seems to be a lacuna—a black hole—that may in fact recreate the circumstances which most of this legislation is seeking to avoid. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 59 not moved.]

Clause 8 agreed to.

Clause 9 [Judge's powers at extradition hearing]:

[Amendments Nos. 60, 60A and 61 not moved.]

Clause 9 agreed to.

Clause 10 [Initial stage of extradition hearing]:

Baroness Anelay of St Johns: moved Amendment No. 62: Page 6, line 36, after "decide" insert "on the evidence presented to him The noble Baroness said: I beg to move Amendment No. 62. We turn now to the matter of the initial stage of the extradition hearing. This amendment focuses on a crucial part of the extradition process because Clause 10(2) states that: The judge must decide whether the offence specified in the Part 1 warrant is an extradition offence". The extradition offences are subsequently set out in Clauses 63 and 64.

Our difficulty with subsection (2) reflects on the arguments we had on Second Reading, which I shall not repeat in detail, covering the lack of the need to establish a prima facie case. The amendment is designed to probe exactly how the judge is to make this decision. On what evidence will he base that decision? I presume that it can be based only on the evidence on the face of the warrant, although we have already been told when we debated Amendments Nos. 18 and 22 that the information to be included on the warrant is not to be prima facie evidence.

In the past the Government have said that prima facie evidence will not be required in these circumstances because while working under previous treaties negotiated when a Conservative government was in power, those rights to prima facie evidence were surrendered. We accept that as a matter of fact, but this Bill is to introduce a system whereby the existing safeguards which complemented that lack of prima facie evidence are to go. We seek to probe the Government on what basis the judge is supposed to deduce whether the offence on the warrant is indeed an extradition offence.

We know that later we shall reach the framework list of 32 generic offences. However, I do not see how, on the sparse information set out in the arrest warrant, the judge is meant to decide whether the offence is one that falls within the list of 32, bearing in mind that the offences listed are generic rather than specific.

We seek an explanation from the Government how on earth they expect the judge to reach a proper decision in these circumstances. I beg to move.

Lord Clinton-Davis

I must say that this amendment seems to be utterly misconceived because the judge always looks at the evidence presented to him. He has no other basis on which to consider the case. So in my view, despite what has been said by the noble Baroness, this amendment is misconceived.

Lord Bassam of Brighton

We have reached an important stage in the Bill and obviously it is right that we take careful note of what is being said on this issue before we enter into the later debates.

At the initial hearing, the district judge is obliged to set a date for the main extradition hearing. At the main hearing, the judge is required to consider a number of issues when determining whether extradition should take place. The first issue is whether the offence specified in the warrant is an extradition offence under Part 1 of the Bill. If the judge is satisfied that the offence is an extradition offence, then he must proceed to consider whether there are any statutory bars to extradition. If the judge decides that the offence is not an extradition offence, then he must order the person's discharge, which would be the end of the matter.

The warrant must contain certain information for it to he valid. This includes particulars of the offence which the person is alleged to have committed or the offence of which he has been convicted. So the judge will be well placed to take a view on whether it falls within the definition of an extradition offence or a description of the offence contained in Clauses 63 and 64. But it will be open to either side—the fugitive and the requesting state—to make a case to the judge in order to try to persuade him to reach a particular conclusion. No doubt the other party will seek to refute those arguments and it will be for the judge to weigh up the competing evidence that he has heard, and then come to a conclusion.

My initial reaction is that I fail to see the need for Amendment No. 62 which seeks to add the stipulation that the judge must decide on the "evidence presented to him". This seems superfluous since, as I have explained, that is exactly what will happen. In this country we do not have an investigating magistrate system, so the judge can only ever decide matters on the basis of the evidence placed before him. The judge is already bound to decide the issue of whether the conduct constitutes an extradition offence on the information before him, including any evidence that either party may care to submit.

While the amendment is certainly well-intentioned, I believe that it is somewhat superfluous to what we are seeking to achieve here. I hope that the noble Baroness will not take offence at that remark, but will see the sense of the position we have adopted and withdraw her amendment.

Lord Carlisle of Bucklow

I wish to put a question to the Minister. Reverting to an earlier discussion. where it states in Clause 10(2) that, the judge must decide whether the offence … is an extradition offence", is he deciding it on the balance of probabilities or because he is satisfied beyond reasonable doubt?

Lord Bassam of Brighton

I think that the judge has to decide beyond reasonable doubt.

Baroness Anelay of St Johns

I am grateful to the Minister and for the interventions of my noble friend Lord Carlisle of Bucklow and the noble Lord. Lord Clinton-Davis, who considered that my amendment was misconceived. I do not take offence, although the noble Lord, Lord Bassam, thought that I might do so. Amendments can never be misconceived if they produce the answers they seek. In this case, the amendment has done that.

The Minister said that the judge has to be satisfied that it is a extradition offence. I am particularly grateful for his answer to my noble friend, Lord Carlisle, when he said that the evidential burden is to be that of the criminal law. Of course we know full well that extradition proceedings live in a somewhat twilight world betwixt civil and criminal law, as I learnt when I observed the very careful handling of an extradition case only a week or so ago. I am very aware of the care taken by the judiciary when looking at evidence, whether as it is currently practised or as it will be when we have Part 1 as well as Part 2-type proceedings.

In his response, the Minister said that the judge would weigh up the evidence that he had heard. I have a further question for the Minister: given the evidence being presented to the judge, if the warrant states that the offence is one of xenophobia and very little other information is given, what if it is challenged and the person asks how that xenophobic offence is described? Will the judge be allowed to hear evidence from witnesses that the person about to be extradited wishes to call?

6.30 p.m.

Lord Bassam of Brighton

The answer to the question put by the noble Baroness is yes, evidence could be taken from witnesses, but of course the proceeding would not then move on to consideration of whether the offence was actually committed because that is a matter for the court in the country where it is proposed that the fugitive should be extradited. The merits cannot be judged, only whether it is a parallel or similar offence.

Baroness Anelay of St Johns

I understand the Minister to be saying that it is the nature of the offence that could be put to proof by the calling of witnesses. I am grateful to him for indicating that the initial hearing is perhaps going to be somewhat wider than was originally anticipated and I shall want to consider carefully what he has said to see whether it may be necessary to return to this at Report or whether it will suffice to ask questions between now and that stage and thus settle the matter. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 63 not moved.]

Clause 10 agreed to.

Clause 11 [Bars to extradition]:

Viscount Bledisloe moved Amendment No. 64: Page 7, line 9, at end insert— ( ) patent innocence: The noble Viscount said: Amendment No. 64 is purely a formal paving amendment to Amendment No. 75, so I shall speak to the latter amendment. For the first time in our deliberations we have come, so to speak, to consider the substance of what one can be extradited for rather than the procedure.

Under Clause 7(2), one is entitled to ask: "Am I or am I not the person named in the warrant?", which we have already looked at. But it appears that one is not allowed to say to the judge: "I can demonstrate conclusively that I could not have committed the offence with which I have been charged".

The warrant has with it certain particulars. Let us say that it alleges a rape, one committed at three o'clock in the afternoon of a specified date by a person who threw himself upon a lady in some deserted area in Germany. He cast her to the ground and raped her. Let us also say—purely hypothetically, of course—that that warrant has been issued against the noble and learned Lord, Lord Irvine of Lairg. However, some 400 people can be made available to testify that on that date and at that time, the noble and learned Lord, Lord Irvine of Lairg, was seated upon the Woolsack and therefore could not possibly be the person who committed the offence. Surely the noble and learned Lord should be entitled to demonstrate those circumstances to the court and to say: "Given the circumstances, I shall not be extradited".

In an extremely helpful and courteous letter written to me by the Minister after the debate on Second Reading—for the first time I have an opportunity to express my considerable gratitude to him for that—he stated that that would be all right because there is only one noble and learned Lord, Lord Irvine of Lairg, but would not be all right if he is called Mr Andrew Smith, because there are a great many of them. However, with respect, that is not right.

The warrant would be addressed to a specific Mr Andrew Smith of, say, 4B Railway Cuttings, Somewhere-or-Other. Either he would have admitted or it would have been established that he is Mr Andrew Smith of 4B Railway Cuttings. None the less, he can demonstrate that at the time of the offence the person standing in the dock—himself—was in fact playing in a football match for Manchester United and being watched by 60,000 people, all of whom are prepared to come to court to say that he was there and not in Germany.

Let us take an alternative example. The information states that the person sprang from a tree, threw himself on a lady and raped her. Suppose that the fugitive can demonstrate that he is, and has been for the past 10 years, paralysed and in a wheelchair? In such circumstances, where it can be demonstrated conclusively that it was not the accused—and could not have been the accused—who committed the offence, surely that person should not be extradited.

Of course I do not suggest that we should return to the balance of probabilities—or even to a trial—but what should happen where the accused can demonstrate that he did not commit the offence? I would be perfectly willing to add to that—if the Minister will wear it—the stipulation that the accused can demonstrate conclusively or can satisfy the judge beyond doubt that he did not commit the offence.

Surely, however, in the fairly rare circumstances of the kind that I have adumbrated, the accused should be entitled to put an end to the proceedings at that stage rather than be hauled off to the extraditing country and, when his trial comes up, be required to adduce such evidence there.

Subsection (b) of my proposed new clause deals with a person being hauled back because he has already been convicted of an offence. As a corollary to my first proposition, so to speak, if it can be demonstrated conclusively that the person is not the person named in the conviction, although he is the person named on the warrant, that should suffice.

Let us suppose that the accused was tried for five days before the court and then fled absented himself—and was convicted in his absence. That person is a Mr Andrew Smith of 4B Railway Cuttings. However, Mr Smith is one of those tiresome people who comes from a family in which all the eldest sons are named Andrew Smith. Further, it is beyond doubt that the Mr Andrew Smith of 4B Railway Cuttings who was convicted of this offence was the father. He has absented himself by fleeing to South America and therefore the only Mr Andrew Smith of 4B Railway Cuttings is the son, who plainly is not the person convicted. Again, surely, the proceedings should be dismissed at that stage.

Obviously, however, that is a more unlikely circumstance and it is subsection (a) that principally concerns me. However, I inserted subsection (b) for the sake of completeness and regularity. I beg to move.

Lord Clinton-Davis

The noble Viscount has portrayed for the Committee a very compelling argument. I wish that he had not referred to my noble and learned friend Lord Irvine of Lairg because I got entirely the wrong idea.

Viscount Bledisloe

I did so only because I referred to the noble and learned Lord at Second Reading.

Lord Clinton-Davis

That is not a good excuse. The noble Viscount ought not to have referred to him at all. Nevertheless, the noble Viscount has put forward a compelling argument in relation to both subsections (a) and (b) of his proposed new clause. If the person concerned demonstrably did not commit the offence he should be given the opportunity to say so. If the warrant is fundamentally incorrect, then that too should be adduced in evidence.

However, as the clause is presently drafted, I do not think that either situation obtains. Of course I may be wrong. No doubt my noble friend will not hesitate to point out that the premise upon which both submissions are made is entirely wrong. although I do not think so.

Baroness Anelay of St Johns

I too believe that the noble Viscount has made a compelling case. I hope that the Minister will he able to point to a provision in the Bill which protects people and gives them the right to make their case.

I have been given an example of the kind of case that could arise far more commonly than the serious matters referred to by the noble Viscount. I refer to the case of someone who travels abroad on holiday and, while on holiday, finds that his credit card details have been stolen. The person returns to this country but then discovers that his credit card is being used fraudulently abroad, something which happens in hundreds of thousands of cases every year.

An occasion could therefore arise where a warrant for extradition is issued in a Part 1 country in respect of a fraud committed on a credit card, and the person accused of that fraud would indeed be the person named on the credit card. However, it would be very improper for such a person to be put through the full procedures of Part 1 over here. Surely they should be given the opportunity at a very early stage to make the point that, although they are indeed the person named on the warrant and the person whose credit card has been used fraudulently, they could not possibly have been in that country at the time when the card was fraudulently used.

I hope that the Minister will be able to point to a cast-iron guarantee in the Bill that a person caught in these circumstances or in the circumstances referred to by the noble Viscount would be given the opportunity to say: "It wasn't me; it could not have been me; you have to stop this procedure now".

6.45 p.m.

Lord Filkin

I thank the noble Viscount, Lord Bledisloe, for his kind remarks about my letter. I am sad that it clearly completely failed to do the job, in that it did not persuade him not to raise those issues again. I shall not pursue the calumny against my noble and learned friend Lord Irvine, for reasons that the Committee will understand.

The amendments have two limbs: one for accusation cases and one for conviction cases. I should like to deal with the latter, and the second limb of the amendment, first. That provides that a person's extradition should be barred if he can demonstrate that he is not the person convicted of the offence.

That is already covered by the Bill. Clause 7 provides that the first thing that the judge must do when the person is brought before him at the initial hearing is to determine whether the person is the one in respect of whom the warrant was issued. In conviction cases, the issue before the court is whether the person in court is the person in respect of whom the warrant was issued. The Bill already caters for that. If the judge concludes at the initial hearing that the person before him is not the right person, he must be discharged, as we have discussed.

Let me now turn to the first part of the amendment, which deals with accusation cases. Here, the noble Viscount's amendment provides that a person is entitled to be discharged if he can demonstrate that he is patently innocent of the crime of which he stands accused.

How is he to demonstrate that? In many cases, presumably, by calling witnesses to make the case for his innocence and perhaps by trying to establish an alibi. However, the interests of justice require that the other party to the case—the requesting state—must be allowed to try to refute the fugitive's evidence and to produce its own evidence. So, for example, if the fugitive claims that he has an alibi, the requesting state may want to produce an eye-witness or closed-circuit television evidence that places the fugitive at the scene of the crime. The judge would be then required to adjudicate between the conflicting evidence.

The noble Viscount may believe that restricting the bar to those who are patently innocent might reduce the volume of such cases. However, I fear that that is not the case. All the evidence from extradition cases shows that if a bar to extradition exists, fugitives will seek to use it—for reasons that we have exposed during earlier discussion. We therefore predict that in almost every extradition case, the fugitive would seek to claim that his extradition was barred by reason of his patent innocence.

One might say: what is wrong with that? At the least, if such a provision were enacted, the fugitive would be able to secure a delay—potentially a substantial one—to the proceedings, if the requesting state had to bring in other witnesses before the district judge to refute the claim by the person whose extradition was sought that he was not the person.

On Second Reading, the noble Viscount said that he was not seeking to re-introduce the prima facie evidential test. But that is precisely what the amendment proposes. Indeed, it goes beyond that. It would ensure that virtually every extradition hearing became a mini-trial with evidence and counter-evidence. There are therefore fundamental practical reasons why, although the amendment appears seductive, it would in practice drive a coach and horses through what most Members of the Committee—I include the noble Viscount in this—seek to achieve.

The crumb of comfort that I can offer is that, if there were really to be such cast-iron evidence, the fugitive or his lawyer could submit it to the prosecuting authorities in the requesting state. If it were persuaded by it, it could withdraw its request. That is within its power.

If we weaken the Bill as proposed, for reasons that are clear, that would have an enormous wrecking effect on what we seek to achieve. The only other comfort that I can offer is that there are many cases in which people who claim that they are innocent are able to claim that they were not the person. There is already an opportunity under the Bill for them to advance that case; so that point is covered.

On the question of guilt or innocence, it is a cardinal principle of extradition that that question must be a matter for the court of trial. We should not seek to resolve that question at the extradition hearing. On the point about Andrew Smith being one of many in the house, the Bill already allows for that. If the Andrew Smith seized said, "It was not me, but my brother", the judge has discretion to decide the matter.

On the absolutely accurate point raised by the noble Baroness, Lady Anelay, an extremely large number of credit cards is stolen or used fradulently. I recollect that it happened to me when we last went to France last summer. That is all too easy, given our system. But in that case, it was not me, as the owner of the credit card, who would have been charged with fraud; effectively, the fraud was committed against me.

Baroness Anelay of St Johns

I am grateful to the Minister for giving way. I must not have completed the picture. The problem is that in some circumstances, the fraud perpetrated is that the credit card is used beyond the limit—for example, if it is used several times during the day. As the Minister will be aware, at present there is not the same protection in this country as there is in the rest of Europe, so someone—not the Minister, I am sure—could, although he had not used the card, be accused of and summonsed for fraud.

Lord Filkin

I am grateful to the noble Baroness for her clarification, but in the circumstances that she describes, if my credit card had been stolen and used on several occasions that exceeded the frequency or total credit limit, that would be for transactions not made by me or with my consent and would therefore be a fraud against me. If I checked my credit card details regularly, I would identify those transactions and draw them to the attention of my bank to say, "My credit card has been used fraudulently". So in those circumstances, I would initiate the action.

If I had not noticed and my bank raised it with me, I would say, "Hang on, I see that my card has been used four times for sums of £3,000 a time. I was not in that town". My experience—and that of most people, I think—is that credit card companies are aware of the level of fraud in such circumstances and pursue it vigorously. They usually put a stop on the account while they pursue it.

So I respect the issue raised by the noble Baroness of the frequency of such events, but they do not seem to me likely to be the stuff of Part 1 extradition warrants.

Viscount Bledisloe

I am grateful both to those Members of the Committee who spoke in favour of the amendment and the Minister for his careful answer. First, on paragraph (b), with which he dealt first, with respect, his answer does not deal with the point.

Let us say that the warrant is addressed to Mr Andrew Smith of 4 Railway Cuttings. The person in the dock is asked: "Are you Mr Andrew Smith of 4 Railway Cuttings?" He says, "Yes". He is then asked: "Are you the only Mr Andrew Smith of 4 Railway Cuttings? Then you are the person named in the warrant". But the person in the dock—this happened in a major trial that was all over the German newspapers with photographs of the accused being taken to court every day—said, "But that was my father. He used to be Mr Andrew Smith of 4 Railway Cuttings, but he fled to Panama in the middle of the trial. He has been there ever since and it is he who was convicted, not me". So he was the person named in the warrant but not the person who had been convicted.

Turning to paragraph (a), which is. as I said, probably more important, the Minister recognised that in unusual cases such as I suggested, it was unfair on people that they were being taken back to be tried. but said that that unfairness paled into insignificance compared to the inconvenience of the risk that numerous fugitives would use that defence as a method to delay extradition, although they could not in the end satisfy the conditions within it. I fully accept that that is a problem, and that many extraditees will use any weapon to hand to try to postpone the evil day.

But it is surely not beyond the bounds of the ingenuity of the serried ranks behind the Minister to devise words that exclude such cases, except where the matter is really beyond doubt. The burden of proof may be placed high; there could be a requirement that before anyone could submit such a case, he had to submit to the judge a statement of the grounds on which he was patently innocent; and the judge could say, "Even if you established all that, that is not enough". Surely that should debar the relatively rare case when, as I suggested, it is absolutely plain on the evidence that that evidence could not possibly be contradicted.

I cannot conceive how any evidence given by the issuing country could convince someone that the noble and learned Lord, Lord Irvine of Lairg, was not sitting on the Woolsack on a day on which 500 people had seen him there. My example of the crippled and disabled person is similar. I ask the Minister to take the matter away and consider whether there is a way to deal with such a case, but, for the moment, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Baroness Anelay of St Johns moved Amendment No. 65: Page 7, line 13, at end insert— ( ) territorial bar. The noble Baroness said: I shall speak also to Amendment No. 77. The amendment deals with the matter of territorial bar. I am of course aware that in response to the previous amendment moved by the noble Viscount, Lord Bledisloe, the Minister pointed out that if a bar exists, fugitives will seek to use it. So I make plain from the start that I am trying to probe some of the more complex parts of the Bill regarding where and when offences occur in the Part 1 country, and how that interacts with the existence of dual criminality.

I raise those issues as a result of a briefing from Justice. It pointed out that the amendments are designed to implement Article 4.7 of the European arrest warrant. Article 4 is entitled, Grounds for optional non-execution of the European Arrest Warrant", and states: (the executing judicial authority may refuse to execute the EAW … Where the EAW relates to offences which: …are regarded by the law of the executing Member State as having been committed in whole or in part in the territory of the executing Member State or in a place treated as such; or…have been committed outside the territory of the issuing Member State and the law of the executing Member State does not allow prosecution for the same offences when committed outside its territory". The new clause would effectively bar extradition on territorial grounds if any part of the extradition offence had taken place in the territory of the United Kingdom. That safeguard is optional, as set out in the European arrest warrant, but we should of course welcome the incorporation into the Bill of any part of the arrest warrant which gives added protection. Our amendments would make that a mandatory consideration by the judge in the extradition hearing. It would effectively ensure that extradition could not take place where the individual was to face prosecution for acts carried out in the United Kingdom which do not constitute offences in that part of the United Kingdom.

I am aware that the Minister has tabled a new amendment to Clause 63—Amendment No. 112—that will address a similar point. However, I should be grateful if the Minister would respond to this amendment, because there must be some protection in the Bill to ensure that requests for extradition can be deflected on territorial grounds. I beg to move.

7 p.m.

Lord Filkin

The two limbs of the optional bar in Article 4.7, to which the noble Baroness spoke and which the amendment utilises, have the following separate effects. Where the bar would apply for offences that are deemed to have occurred in part or in whole in the UK, it would have the effect of barring extradition completely. Of course, the intention is that British citizens should not be extradited for conduct which they commit in the UK legally. The Government agree with that. But the Opposition Front Bench amendment goes further than that.

A quick example may show how. If a major drugs trafficker—without exciting the noble Lord, Lord Lamont, major drugs trafficking certainly constitutes a significant part of extradition cases—had committed serious crimes in Denmark, but a small part of his offences in the UK, under this new bar, his extradition would be barred, despite the fact that it would be much more sensible in terms of justice for him to be extradited to the place where the majority of his crime took place, where the majority of his victims were and where, probably, the most solid evidence existed to bring him to justice.

What if there was not a strong enough case in the UK to prosecute the person for the small part of the offence in the UK, but there was overwhelming evidence in the requesting state? We would not want to let those potential criminals have a get out of any obligation to face trial for the offences for which they were charged in those circumstances. We do not want to open a loophole for the professional criminal who wilfully commits crimes, knowing that his extradition will be barred if he is canny enough to commit part of it in the UK. That is clearly unacceptable to both the Government and the victims of crime and, I suspect, the Committee.

As the Committee will be aware, the Government have tabled amendments—Amendments Nos. 112 and 126, to which the noble Baroness referred—to strengthen Clauses 63 and 64. Their effect will be that if any part of the conduct that constitutes the offence occurs in the UK, we will be able to extradite only if the dual criminality requirement is satisfied. In other words, to put it at its crudest, if someone denied the holocaust in the UK by whatever means, it would not be possible to extradite that person for that action, even though it might be an offence in Germany.

These amendments will put beyond any shadow of doubt that no one will be extradited for conduct which takes place in the UK which is not contrary to our law. I apologise for labouring the point, but it is a sensitive issue and it is important to put it clearly on the record.

On the other hand, we cannot really see why a serious criminal who happens to have undertaken some of his activities in the UK—activities which we consider to be criminal—should escape extradition. That is reinforced by the point that, as we have discussed in previous Bills—the Crime (International Co-operation) Bill—so much of the serious crime about drugs and so forth is the nature of international crime. Therefore, this is not necessarily a remote or hypothetical example. Nor, I suspect, do the Opposition believe that that is what they will want to happen.

I hope therefore to see that the Government's policy delivers the outcomes that we all surely want; the protection of British citizens as well as the enforcement of justice on a cross-border basis.

The second limb of the new bar proposed by the Opposition relates to extra-territorial jurisdiction and, again, can be found in the framework decision as part of one of the optional bars to extradition. This limb of the amendment would mean that any warrant received by the UK for an offence committed extra-territorially, that is not in the requesting state, could be proceeded with only if the UK also claims extraterritorial jurisdiction over the conduct in question.

This seems more than reasonable and it is why I would ask Members of the Committee to look at Clauses 63 and 64 of the Bill. They contain the definitions of extradition offences for the purposes of Part 1 of the Bill. In each case, subsection (4) is concerned with conduct [which] occurs outside the category 1 territory". In such instances, the conduct will constitute and extradition offence, and therefore be extraditable, only if, in corresponding circumstances equivalent conduct would constitute an extra-territorial offence under the law of the relevant part of the United Kingdom". In other words, the Bill as drafted already provides that in extra-territorial cases the offence has to be a UK offence and that if any part of the offence has occurred in the UK we can extradite only if we too take extra-territorial jurisdiction.

Under Clause 10(2), the judge at the very beginning of the extradition hearing must decide whether the offence specified in the Part 1 warrant is an extradition offence. If it does not meet the requirements of either Clauses 63 or 64, proceedings must be halted and the person discharged.

We believe that the definition of extradition offences in the Bill, with the amendments that we have tabled, strike the right balance in protecting those who have acted lawfully while in the United Kingdom, while allowing for the extradition of those who have transgressed both our own laws and those of the requesting state.

I have spoken at length, but I hope that the reply was helpful to explain our resistance to the amendments.

Baroness Anelay of St Johns

I am grateful to the Minister for his care in responding to the amendment. He is absolutely right in his surmise that we certainly do not intend to make it easier for people to evade justice if they are trying to commit crimes across borders. I note that several offences in the list could not be committed in more than one country—such as arson—but I well take his point that if one is dealing with sabotage or trafficking in illegal drugs, the offence could indeed be split across borders.

We have clarified the problems surrounding the issues. I give notice that I shall raise a further problem and invite the Minister when he reaches Amendment No. 112 to explain how a company would be protected where, say, its international office is in this country and one employee is involved in an activity that leads to an offence being committed. Could the person with responsibility for the overseas employee he in any way held to be guilty of an offence under the Bill? I shall give the Minister, or his Bill team, the specifics of that case in time for him to respond when we reach Amendment No. 112.

I recognise that throughout the Bill the Government have been trying to flesh out the detail of how this especially complicated— at least it is for me—part of the law will work. We are beginning to make progress on that. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 11 agreed to.

Clause 12 [Rule against double jeopardy]:

Baroness Anelay of St Johns moved Amendment No. 66: Leave out Clause 12 and insert the following new Clause—

"RULE AGAINST DOUBLE JEOPARDY (NO. 2)

A person's extradition to a category 1 territory is barred by reason of the rule against double jeopardy if the judge is satisfied that the person has been finally judged by a category 1 territory in respect of the same acts and would be entitled to be discharged under the law of that territory."

The noble Baroness said: We now turn to the issue of double jeopardy. I shall speak also to Amendment No. 192. The amendments are intended to clarify an important point regarding double jeopardy that was brought to our attention by Justice. That is that abolition of the dual criminality requirement in relation to 32 types of serious offence means that a request for extradition under the warrant need not be based on an offence known to UK law. So, if a request were made on the basis of an offence in another member state that was not an offence in the UK, the defendant must lose the protection of the rule against double jeopardy, using the proposed text in the Bill. Presumably, that is not the Government's intention.

The European arrest warrant clearly states that a final judgment on the same acts—those are the important words—shall be a mandatory bar to surrender. Implementing legislation should reflect that broader notion of double jeopardy in order effectively to protect the rights of the individual.

Justice has provided us with relevant recent judgments. They refer to the following cases—I apologise in advance for my pronunciation—C-187/01 Gozutok and C-385/01 Brugge, judgment of 11th February 2003. In those cases, the European Court of Justice clarified the position in relation to double jeopardy—ne bis in idem— as found in Article 54 of the Schengen convention. I am advised that it is clear from that judgment that the principle of double jeopardy, when applied in a context of mutual recognition in criminal proceedings in the EU, should be given a broad interpretation allowing for the differences in what is perceived to be a "final judgement" in the various member states.

Justice argues that this European notion of ne bis in idem should be reflected in the text of the Bill to implement the European arrest warrant. But under current UK law, the wording contained in the Bill may provide greater procedural safeguards than a draft more closely based on the European arrest warrant provisions. I am advised that, given the provisions relating to double jeopardy contained in the Criminal Justice Bill, which has just started its long progress through your Lordships' House, it is not certain that applying the UK law in relation to double jeopardy will in fact result in a higher level of safeguard.

In applying a test based purely on UK domestic rules of law relating to previous acquittal or conviction, the executing court would be unable to implement fully the notion of double jeopardy applying across borders within the European Union. That notion is a key development in EU judicial cooperation based on the principle of mutual recognition. As that is what the Government say they are trying to achieve, I assume that my amendment may be welcome. I beg to move.

Lord Bassam of Brighton

I am grateful to the noble Baroness, Lady Anelay, for tabling the amendments. We are not far apart—picking up the point that she made just before she sat down—but that is not to say that I accept the amendments.

As we all appreciate, double jeopardy is a well-established principle in extradition law, as it is in the general law in this country and legal systems across the world. That is why protection against being convicted twice for the same offence is included in the framework decision on the European arrest warrant.

We have sought to transpose this protection from existing legislation and from the framework decision into the Bill. That is what Clauses 12 and 79 are designed to do. I believe that that is what your Lordships would want to happen, too. Clauses 12 and 79 provide that a person's extradition is barred if he would have been entitled to be discharged in equivalent circumstances in a domestic UK case. That is to say, because of a previous acquittal or conviction, assuming it were a case under domestic UK law, the person could not be prosecuted again for the same offence.

This position, then, is quite clear. Regardless of where the previous acquittal or conviction took place, the question is whether the person would be entitled to be discharged now if it had taken place in the UK.

These amendments would remove the existing clauses. They would put in their place an alternative double jeopardy provision. The new clause for each part would provide that extradition were barred if the person had finally been judged in a category 1 territory and would be entitled to be discharged under the law of that territory.

The current provisions on double jeopardy are not dependent on where the conviction or acquittal took place. They simply provide for the person to be discharged if he could not be put on trial in the UK in equivalent circumstances.

The amendments would require the judge to decide whether the person would be entitled to be discharged under the law of the country where he was finally judged, rather than under UK law. We do not believe that that enhances or adds to the existing double jeopardy provisions. A judge in this country is surely more likely to be in a position to decide whether the person would be entitled to be discharged under UK law as opposed to another country's law. Quite simply, we cannot ask or expect our district judges to become expert in the finer points of the double jeopardy laws of all other EU member states.

The Bill as it stands provides for judges in this country when considering extradition to apply the rule against double jeopardy as we understand it in this country. I would hope that your Lordships consider this a sensible approach to deal with the issue.

The noble Baroness raised the issue of the new Criminal Justice Bill. No doubt it will take time to roll through, but rolling through it certainly is. That Bill will reform the UK's double jeopardy law to allow for retrial where new and compelling evidence of guilt has emerged. Obviously, I cannot say too much about the Bill, but I can say that if Parliament agrees to changes that are contained in the Bill it will need to be cross-referenced and we will need to monitor carefully how the Bill progresses and what changes are made. We will have to be most careful in carrying out that monitoring.

The proposed changes would allow us to seek to have the acquittal of a person quashed so that they could be put on trial for a second time. In cases where the person was abroad, we would seek to get the acquittal quashed before making the extradition request. Whether that request succeeded would depend on the domestic law of the requested country, in particular how absolute the provisions in its law on double jeopardy were. Turning the situation the other way round, if we get a request from a country for someone who has previously been acquitted, our courts in that situation would be expected to apply UK law on double jeopardy as it emerges from the Criminal Justice Bill.

If the person's acquittal had not been quashed, we would have to refuse the request, even if the requesting state told us that it intended to seek to quash it. Similarly, we would have to refuse the request if the acquittal had been quashed in a manner which did not command confidence. Indeed, the ECHR would prevent extradition in those circumstances.

However, imagine that we received a request from Canada for the extradition of a person who had been previously acquitted there. If the Canadians could demonstrate that the acquittal had been quashed by a High Court in Canada with due process, and with the person having the right to attend and participate in the hearing at which the quashing of the acquittal was considered, then, applying our law, extradition would not be barred on double jeopardy grounds.

I apologise for speaking at some length, but thought it would be useful and for the benefit of the Committee for me to give some exposition as to how we see things working in the future.

I turn back to the amendments before us. I want to make the point again that it is much better to ask our judges to apply UK law standards than try to apply the law of the requesting state. If they do, there may be many attendant difficulties. The Bill offers proper double jeopardy protection. I therefore hope that the amendment will be withdrawn.

7.15 p.m.

Baroness Anelay of St Johns

I am grateful to the Minister for his full and mostly helpful answer. I certainly shall refer back to Justice to see whether it wishes to raise any extra views that I did not spot while he was answering. I was intrigued by his reference to the Criminal Justice Bill. I noted that he said that there would have to be a cross-referencing between the two Bills. Is the Minister saying to the Committee that achieving Royal Assent for the Extradition Bill will be held over until after the Government achieves Royal Assent to the Criminal Justice Bill?

Lord Bassam of Brighton

I am not saying that, no.

Baroness Anelay of St Johns

The Minister is not too willing to be drawn on that matter at the moment. Perhaps he will survive another few reshuffles. I am sorry to be so naughty. I am grateful to the Minister. He has put a very helpful explanation on the record with great courtesy. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 12 agreed to.

Clause 13 [Extraneous considerations]:

Lord Clinton-Davis moved Amendment No. 67: Page 7, line 38, after first "of" insert "or is likely to result in The noble Lord said: In moving Amendment No. 67, I think that it would be for the convenience of the Committee if we took the whole batch of amendments—Amendments Nos. 67 to 72—now. My noble friends Lord Wedderburn and Lady Turner of Camden are detained by another Bill on the Floor of the House. For that reason, I would ask my noble friend to put on record his reply to the amendments. I beg to move.

Lord Filkin

I indicated informally to my noble friend Lord Wedderburn that were he to be out of the room at this point, I should seek a method to put on the record what I would have said to him had he been here. In essence, that is not to delay the Committee unnecessarily over points of detail if it is possible by a little felicity to find ways of making progress.

I would have said to him that we would feel that it was most unsatisfactory to have to extradite a person who was going to be prejudiced at his court trial on the grounds of gender or sexual orientation. We think that is most unlikely in Part 1 countries, for reasons to which we have previously spoken. We also think that the human rights clause in the Bill, Clause 21, already prevents us from extraditing in such circumstances.

Nevertheless, I can see little damage in our looking again at Clauses 13 and 80 to see whether, in the light of the amendments, any improvements can be made. I say that openly. On Report, we will see where we are on these matters.

Lord Clinton-Davis

Having regard to what my noble friend has said, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 68 to 72 not moved.]

On Question, Whether Clause 13 shall stand part of the Bill?

Baroness Anelay of St Johns

Although Clause 13 was grouped for debate with Part I stand part, I made it clear at our previous Committee meeting that I wanted to say a few words with regard to it. The grouping on the first day was a device for one particular amendment.

Yesterday, the noble Lord, Lord Bassam, referred to what he thought was the "paranoia" on Opposition Benches with regard to the Bill. This is no paranoia. We are certainly concerned about the removal of the protection and safeguards that are inherent in our current extradition system. We certainly want a speeding up of the process, but not at the risk of increasing miscarriages of justice. Specifically we object to the removal of the dual criminality requirement in the final discretion of the Secretary of State.

We have been told that all states which would be designated as category 1 territories had subscribed to the ECHR and believed in the right of every individual to a fair trial; and that they had signed up to the framework decision which enshrines an obligatory degree of protection to those defendants involved in the extradition hearing, surrender and subsequent trial in the requesting country. We have been told that our own judicial system is by no means 100 per cent perfect.

Clause 13, so far as we can see, exposes the fundamental falsity of the arguments raised by the Government when we say we are concerned. Why do we need a clause which bars extradition to category 1 territories on the grounds that the defendant might subsequently be prosecuted because of his, race, religion, nationality or political opinions", unless there is a well founded fear that it will actually happen? Examples were given in another place in which that has already happened in existing law.

One case repeatedly referred to there and in this House is that of the seven-year delay in the extradition of Rachid Ramda to France for prosecution for his alleged part in the Paris bombings. On appeal, his extradition case was thrown out by the House of Lords. It found favour with his view that as an Arab Muslim he would not receive a fair trial in France. The conclusion is that we cannot trust our closest neighbours—geographically from London—within the European Union, with regard to a fair trial without prejudice on religious and racial grounds.

In the past the Government have said, "Well, we are damned if we do and we are damned if we don't". They put this provision in as an extra safeguard, but the very fact that they conceded that it was needed proves that there is a real concern that there could be a miscarriage of justice.

I put on record that we shall need to return to these issues in amendments on Report after we have properly considered the views put forward with regard to the Part 1 problems of protection and safeguards.

Lord Filkin

The noble Baroness, Lady Anelay, is correct: Clause 13 was not in the Bill as originally drafted because the Government did not think it was necessary. The Joint Committee on Human Rights made a specific request to us to put in such a provision. We did so not because we think that there is a risk, but because we were happy to go along with the request of an important parliamentary committee when it seemed to us that in so doing there was no damage or harm whatever. It feels a little rough, having done that, and having so responded for those reasons to be told, "That proves the point that Part 1 territory countries are inherently unsound. Everything the Government have been saying on the Bill is so much rubbish". I am sure that the noble Baroness, Lady Anelay, did not put the matter quite so robustly, but that is how we feel she advances the logic of the position.

There is no harm done by acceding to the request of the Joint Committee on Human Rights. We have done so. We do not think the provision was necessary, but it puts beyond peradventure any doubt that people cannot be extradited for these reasons. I had hoped that the Committee would welcome that because, in a sense, it is just wearing a belt as well as braces.

Clause 13 agreed to.

Clause 14 [Passage of time]:

Baroness Anelay of St Johns moved Amendment No. 73: Page 8, line 5, leave out from "offence" to end of line 6. The noble Baroness said: In moving Amendment No. 73, I shall speak also to Amendment No. 193, which is supported by the noble Earl, Lord Mar and Kellie. The amendments are probing in nature and query a particular issue in Clause 14, "Passage of time". This is another new clause introduced by the Government. It was welcomed in another place on Report when it was introduced into both Parts 1 and 2. We wholeheartedly support the principle that extradition should be barred if the offence in question took place an unreasonably long time ago and that for that reason it would be unjust or oppressive for the person to be extradited.

I put on record that we appreciate that the Government had to weigh very carefully in the balance whether such a provision should go in because, as we said a short while ago, people will make the most possible use they can of any kind of bar to extradition. We are keen, as are other noble Lords, that those proved to be guilty of offences, should not be able to escape justice and extradition.

The concern I raise is based on a point made by the Law Society of Scotland in its briefing, to which noble Lords have previously referred. There is, I believe, an important difference between being extradited for prosecution for a crime committed at some point in the past and being extradited to be returned to custody after becoming unlawfully at large.

In the first case, it is clear that in some extradition cases the defendant may he simply unaware that some 20 years ago he committed an offence. Consequently, he might contest his prosecution since he believes himself to be innocent. Delay in extraditing him could be due to lack of evidence. We do not know. It is easy to understand why it might be advisable to bar the extradition because of the significant time span.

In the second case the circumstances are very different. The person in question has already been found guilty before a court of law and has started serving his sentence; so there is no lack of knowledge. Somehow he manages to escape or abscond; therefore, he is unlawfully at large. Is it right to say that as long as he manages to avoid detection for an unspecified length of time, he should benefit from a guaranteed immunity from extradition? That is what worries us.

How long is this "passage of time"? It seems obscure that someone who has evaded justice should, just because he has been in hiding for a period of time, become untouchable. I rather suspect that that is not what the Government ever intended. I hope that the Minister will put me right and explain how a fugitive could not benefit from the Government amendment that was moved in another place on Report. I beg to move.

Lord Goodhart

The name of my noble friend Lord Mar and Kellie is attached to the amendment. As he is not here, I rise to support it. I must say that in this context the name Ronnie Biggs comes to mind. That was the reverse situation. In some ways, that was about as strong a case as one can get for asking why he should not have been extradited. But it was not strong enough. If someone has been convicted of an offence, unless there are genuinely humanitarian grounds for non-return, which I think could be dealt with in a different manner, I do not think that there should be a legal bar to his being returned.

7.30 p.m.

Lord Bassam of Brighton

I am grateful to the noble Baroness for tabling the amendment. It provides us with the opportunity to explain an important bar to extradition in the Bill on grounds of the passage of time.

I am rather enjoying the slight role reversal. We usually want tougher safeguards; the noble Baroness wants fewer safeguards. I am therefore defending a different position and shall approach it rather differently.

As I am sure the Committee knows, as currently drafted, Clauses 14 and 81 bar a person's extradition if it appears that it would be "unjust or oppressive" to extradite him because of the time that has elapsed since the person is alleged to have committed the offence, or since he is alleged to have been unlawfully at large, following conviction.

The Committee may be aware that that bar was originally included only in Part 2. However, in response to an amendment proposed by Opposition Benches in another place, we agreed that the passage of time bar is an important safeguard which should also apply in Part 1 cases.

I am puzzled why the noble Baroness should now seek to remove the safeguard. Are we really saying that even if the extradition of someone is indisputably unjust or oppressive because of the passage of time since his conviction, his extradition would have to go ahead anyway?

I quite accept that circumstances are unlikely to arise in which it would be unjust or oppressive to return someone simply because of the length of time since his escape from custody. I certainly would not want to suggest that we should in any way reward those who have successfully managed to evade capture for many years. Equally, it is not totally impossible to envisage such circumstances.

I invite the Committee to imagine, for example, that a person is wanted for extradition on the ground that 40 years previously he failed to serve out the full length of his sentence following a conviction for a relatively minor crime. During that time the authorities in the requesting state had known of his whereabouts and had not attempted to seek his extradition. The person had been living openly with his family as a settled—perhaps even highly responsible—member of the community. I do not say that extradition in such circumstances is unjust or oppressive. That is a question for the courts to determine. But, equally, I do not think that we can totally discount that possibility.

Since 1978, there have been six cases only in which the passage of time has been successfully put forward as a defence against extradition. One of those related to a person who had been convicted and was deemed to be unlawfully at large. I think that serves to illustrate the point that the circumstances are very rare indeed. but not impossible.

Ultimately, if we are content to provide a safeguard for a person accused of offences whose extradition would be unjust or oppressive because of the passage of time, I cannot see why we should deny that safeguard for a person who is alleged to be unlawfully at large.

In view of those considerations and the lack of a compelling argument to remove the safeguard, I hope that the amendments are not pushed—I know that they cannot be tonight.

Baroness Anelay of St Johns

The Minister is quite right in his last assertion; that the amendments cannot be pressed tonight. I note that, as I speak, the noble Lord, Lord Wedderburn of Charlton, is speaking on the Fire Services Bill. I feel for him that this group of amendments—his pride and joy—have to pass without his being present, although we are grateful to the Minister for attempting to try to respond to them.

The noble Lord, Lord Bassam of Brighton, seemed surprised that I was trying to assist the Government in bringing criminals to justice. Perhaps I may remind him that the slogan I have adopted for the Criminal Justice Bill is, "In this party we believe in being tough on crime, but we don't believe in having rough justice". So I am trying to work the issue both ways.

I accept what the Minister said: courts will have to take many factors into account. The noble Lord, Lord Goodhart, raised a good point—I am grateful for his support—when he mentioned Ronnie Biggs. It is true that we are talking about rare cases. The Government say that there will be more cases as a result of the Bill. Therefore, one assumes cases will become less rare.

One could have a case of an imprisoned, convicted serial murderer who escaped after one day and who was tracked down only some 30 years later. Of course it must be for the court to decide in each and every case. We are trying to assist the Chamber by looking to see whether the provisions introduced in another place fairly reflect what safeguards should be in the Bill—not only against mistreating people who are innocent, but also against treating too leniently those who have been found guilty.

So I shall carefully consider the point made by the noble Lord, Lord Goodhart, that there could be separate means with which to deal with humanitarian reasons. However, the Minister has gone a long way by putting some good arguments on the record. Perhaps not quite the whole way, but that is a matter for another time. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 14 agreed to.

Clauses 15 and 16 agreed to.

House adjourned at twenty-four minutes before eight o'clock.