LORDS AMENDMENT (Hansard, 18 November 2003)

§ Baroness Scotland of Asthal
My Lords, I beg to move that the House do not insist on its Amendment No. 27 to which the Commons have disagreed for their reason numbered 27A.
The new clause was inserted on a very narrow vote, as noble Lords will remember, by your Lordships on Report. I said on that occasion that I thought the clause unworkable and inappropriate, which is the very term which the Members of the other place use in their reason. I regret to tell the House that that remains the Government's view.
1908 I can be fairly brief because, on consideration of Lords amendments in the Commons on 13th November, my honourable friend Caroline Flint demonstrated in a masterly exposition precisely the difficulties attendant on the new clause. If your Lordships wish further enlightenment, by reading Hansard they will see that she went through every subsection and explained why it would not sit well in the Bill. For that reason, I do not intend to entertain your Lordships today with a recitation.
My honourable friend set out why it was inadvisable to single out one particular sub-article of the ECHR. She showed why we should not give my right honourable friend the Secretary of State, or any other Secretary of State who follows him, the monitoring role for which the amended Bill would have provided. She enumerated all the dangers that would flow from making the Secretary of State effectively a party to extradition proceedings.
However, I hope that your Lordships will be comforted to know that you do not have to rely on my logic or that of my honourable friend. During Commons consideration of Lords amendments, Mr Alistair Carmichael, the Liberal Democrat spokesman, revealed the contents of a memorandum which he had been sent by the noble Lord, Lord Goodhart. Apparently in respect of this amendment, the noble Lord, Lord Goodhart, had written: The Government says that the new clause is unworkable (probably correctly!)".— [Official Report, Commons, 13/11/03; col. 446.] I unreservedly agree with the noble Lord's assessment. I am grateful that Mr Carmichael decided to put this in the public domain, even if I can appreciate that the noble Lord would have preferred that he remained silent on the issue.
When your Lordships passed the amendment, the Government did, of course, look very hard to see whether any kind of compromise was possible, but I regret to say that, like the noble Lord, Lord Goodhart, we concluded that none could be forthcoming. The Bill already provides that the judge is required to consider whether extradition would be compatible with the person's ECHR rights, and that relates to all articles of the ECHR and not just Article 6.3.
It would simply be impossible to provide for the Secretary of State to undertake a monitoring role of trials held overseas, to say nothing of the potential abuse of sovereignty that that would entail. However, most seriously of all, the new clause sought to require the Secretary of State to intervene in, and become a party to, extradition cases. Under our current arrangements, the Secretary of State very deliberately acts in a quasi-judicial capacity in extradition cases and to depart from that would be dangerous.
The UK has had extradition relations with a variety of countries throughout the world for more than 100 years. We conduct a large proportion of our total extradition traffic with EU member states and we have not previously thought it necessary for the Secretary of State to monitor their internal systems.
1909 Ultimately, we have to decide whether or not we trust our extradition partners. We have had that trust in other European countries for more than 100 years. If we do trust them, we should be prepared to extradite to them without putting in place a complicated monitoring system, as envisaged by this new clause.
It was for those reasons that the other place decided to remove the new clause and I hope that your Lordships will see the wisdom of their decision and agree with them. I am confident of the position expressed by the noble Lord, Lord Goodhart, and I believe that I can have similar confidence in the noble Baroness, Lady Anelay.

§ Lord Goodhart
My Lords, I have a certain regret at seeing the last of this new clause and at some suitable time I may have words with my honourable friend for being perhaps a little too frank about what I had passed to him in an e-mail.
Undoubtedly, the real protection for people against whom extradition is sought is Clause 21. That makes it a ground that to order extradition would involve a breach of the person's convention rights under the ECHR. Those include rights under Article 6.3. The purpose of the new clause was to simplify the matter and avoid some of the problems. In my view, it is clear that defendants against whom extradition is sought will rely strongly on Clause 21 as grounds for objecting to extradition. I therefore suggested that matters might be simplified and speeded up if it were possible for an overseas territory seeking extradition to say, "You do not need to go into the whole question of whether our procedures generally meet up with the rights because we will give an undertaking that in this case the rights will be fully observed.".
It is fair to say that not many states would have done that because, by implication, it suggests that their proceedings in general do not meet up with convention standards. It may be that most of the other territories would have been unwilling to accept that implication. However, I do not see that that would have involved the Secretary of State as a party to proceedings because his role would have come in only at a later stage and only if the overseas territory had chosen to rely on subsection (2).
However, I see—and I have from the beginning—that there are certain practical difficulties in the clause and on the balance of what the Government have done it is not an issue I would want to press. I want to draw attention to the fact that the Government have not chosen to reverse what I regard as the more important amendments we made to the Bill; those leaving out the gold plating and the abolition of the dual criminality rule. They are important amendments and I am pleased that the Government have allowed them to stand. In those circumstances, I have no wish to press further the retention of Clause 22.

§ Baroness Scotland of Asthal
My Lords, I thank the noble Lord, Lord Goodhart, for his generosity in highlighting what we have achieved together. I want also to thank the Front Bench of Her Majesty's Loyal Opposition and in particular the noble Baroness, Lady Anelay, for the way in which she has done the job so well. I thank, too, the noble Lord, Lord Hodgson. I hope that your Lordships will forgive me if I also thank my noble friends Lord Bassam and Lord Filkin for the sterling way in which they have supported me with the Bill.