Extradition Bill

HL Deb 27 October 2003 vol 654 cc101-26

8.37 p.m.

Further consideration of amendments on Report resumed on Clause 67.

Baroness Anelay of St Johnsmoved Amendment No. 184A: Page 36, line 35, at end insert— (7) Where an alleged offence is the subject of an arrest warrant but the offence was committed by a competitor in an international sporting event, that warrant must be referred to the Home Secretary who must make a decision separate to any decision of a United Kingdom court as to whether extradition to the requesting country would be proper in all the circumstances.

The noble Baroness said: My Lords, my noble friend Lord Moynihan has not managed to get back yet. We have progressed so rapidly—cantered is indeed the right word—that we have reached the amendment a little earlier than we thought we would. I make it clear from the beginning that I do not seek to press the amendment. It was tabled to invite the Government to give, in a sense, a progress report on their discussions since Grand Committee with the relevant organisations—those involved in international competitive motor sport, in putting together the Olympics bid for the future, and in preparing our athletes for competing in the Olympics in Greece.

The noble Lord, Lord Goodhart, has already mentioned that sometimes the judicial system in Greece appears to be a little wanting. There are concerns about the safety of our people who compete there and perhaps get into a position where an offence is allegedly committed that leads to a European arrest warrant being issued in their name.

In Grand Committee, I posed a series of questions for the Government and was trying to argue, particularly on behalf of international motor sport, that there ought to be some special procedure to give an extra safety valve if a person were accused of an extraditable offence and an arrest warrant were issued in their name. The safety valve in the amendment is to suggest that the person would not be extradited until and unless the case had been referred specifically to the Home Secretary, who would then consider whether extradition was right. In other words, the amendment introduces the back-stop of the Secretary of State through the back door for Part 1.

I am aware that those in both the Olympic sports and motor sports have particular anxiety about the issues, so I shall pose some questions. What discussions have been held with those representing international motor sport and the Olympics since Grand Committee? What assurances have been given to them about the operation of the European arrest warrant as it may affect competitors? I hope that it will not do so, but there may be circumstances in which it does. What advice in particular has been given to those assisting athletes and competitors to prepare for the next Olympics in Greece? I beg to move.

Lord Bassam of Brighton

My Lords, I do not think that we will make great progress with the amendment this evening and I am sorry that the noble Lord, Lord Moynihan, is not here to hear me say that. In a sense, I suspect that I owe him half an apology.

The amendment, graciously moved by the noble Baroness, Lady Anelay, is not one that we can support; nor, I suspect, does the noble Baroness think that we can support it. I am grateful to her for saying that it is probative of what discussions have taken place since Grand Committee. As I understand it, there have been no further discussions since then. I should be honest in saying that from the Dispatch Box.

The amendment does not take us very far. It is not half as useful as the noble Baroness would perhaps see it or as the noble Lord, Lord Moynihan, would see it. I should put on record why that is the case. In doing so, it is tempting simply to read the record and remind your Lordships of what was said by the noble Viscount, Lord Bledisloe. In his normal, forensic way, he destroyed both the drafting and the principle of the amendment.

On the drafting, he made a number of comments, the highlight of which was, it is not limited to offences committed in an international sporting event. If the fight Mr Tyson had in his hotel had been an international sporting event, it would have applied to him in relation to his rape". That is perceptive stuff. The minor drafting change which has been made to the amendment since then does not overcome that problem.

It was on the principle that the noble Viscount's arguments were particularly devastating. It is worth quoting them: Why on earth should those who consciously go to a foreign country to take part in a sporting event have greater protection than casual visitors to that country?… What criteria is it suggested that the Home Secretary apply?"—[Official Report, 8/7/ 03; col. CWH 69.] That is a very hard question to answer and it remains unanswered.

The other question which remains unanswered is: what is the mischief that the amendment would cure? In Grand Committee, the noble Lord, Lord Moynihan, made a long speech in which he alleged that all kinds of disasters would follow if the Bill went through unamended. All sports, it appeared, would suffer. Formula 1 would move wholesale out of the United Kingdom and the Government would have let down the whole of the sporting world. Those are serious allegations, but the noble Lord did not explain why those consequences would arise. Is it really the case that having an efficient extradition system will lead to the death of sport as we know it?

I should remind your Lordships that we already extradite to all other EU countries and would certainly have no cause to refuse an extradition case where it involved a matter as serious as death or grievous injury. The fact that we will now be able to do so more swiftly is a boon to justice which benefits those involved in sport every bit as much as it does the wider community. It is simply not sustainable to argue that efficient extradition procedures present a threat to sport.

Leaving all that aside, perhaps I should demonstrate why the amendment is unnecessary. It provides that where death or serious injury has resulted from a sporting event, the case should come to the Secretary of State for him to decide whether extradition would be proper. What does "proper" mean for those purposes? I foresee all kinds of legal challenges turning on that point.

It would not be sensible to single out sport in that way. Tragically, sport can lead to serious injuries and deaths, as we all know, but it is not the only such activity. If we were to accept the amendment, we would presumably face pressure for an equivalent provision from every UK mining company that engages in work overseas or from every construction company that takes on a job abroad. United Kingdom airlines would doubtless be in the queue for special exemption, as would just about any British company that owned or ran a factory outside these shores.

Quite simply, that is not workable. Individuals whose specific actions lead to death or injury will continue to be liable to extradition as they are at present. The Bill provides that if any part of the conduct occurs for which extradition is sought to the United Kingdom, we can extradite only if the conduct would be seen as illegal here. On that basis, I do not believe that those who run the UK-based Formula 1 teams need have any concerns about the introduction of the European arrest warrant.

Those who have not been directly involved but have, perhaps, set the general company policy and direction from the UK will be able to establish that part of their action took place in this country and therefore they will be safe from extradition as long as their conduct was not criminal here. If their conduct would constitute an offence in the United Kingdom, there is no reason why they should be exempt from extradition. However, as long as UK law does not regard their actions as criminal, they are protected from the possibility of extradition.

I do not want to stray into the whole issue of corporate manslaughter, as it goes far beyond the scope of the Bill. I simply say that it is a matter for this Parliament to determine whether the United Kingdom should have such an offence on its statute book. If Parliament decides that we should, we should be prepared to extradite for it.

I repeat that it cannot be right to single out one sphere of human activity from all others. If a motor racing driver kills four spectators, it is just as serious a matter—certainly to the families of the victims—as if a normal motorist kills four pedestrians on a high street. Why should we apply different tests for extradition?

The noble Baroness, Lady Anelay, asked some questions which I shall try to answer. No discussions with the sport have taken place since. No sporting body has come forward to make known to us its concerns about the points raised by the noble Lord, Lord Moynihan. No assurances have been given, because we do not recognise the problem. No advice has been given to the Olympic team because, again, we do not see a problem. However, we remain more than happy to discuss the matter with any sporting body that wishes to come forward because it believes that there is a problem. As yet, however, no sporting body has identified that problem, and certainly not in the terms outlined by the noble Lord, Lord Moynihan. I repeat that we do not see why introduction of the European arrest warrant will represent a particular problem for sport.

I am sorry that I cannot be more helpful. However, we do not think that there is half the problem that the noble Baroness and the noble Lord have outlined in the amendment. Nevertheless, we stand ready, as ever, to discuss these matters constructively if they are brought forward to us.

8.45 p.m.

Baroness Anelay of St Johns

My Lords, of course, the Minister will be aware that I made it clear in Grand Committee that the Government have been made aware of these problems by the international sporting body, which approached his honourable friend in another place, the then Minister, with its concerns. At that stage the Government held meetings with the international motor sport organisation. It was as a result of the motor sport organisation's dissatisfaction with the assurances that it had been given by the Government that it approached us and we subsequently tabled the amendments for Grand Committee.

As we are on Report, I did not seek to intervene when the Minister responded in detail to the text of the amendment. I stated in moving the amendment that I was not going to press it, that I was not wedded to the text itself, and that it is merely a lever to ask what the Government have done since Grand Committee. The Minister, in his honest way, says, "Well, nothing". I shall talk to my noble friend Lord Moynihan. He will talk further with those who have approached us and ask whether there is anything that we need to do on Third Reading, or whether we can "short circuit" the matter. I am not being flippant.

Lord Bassam of Brighton

My Lords, I would not normally do this, but I wanted to make it plain that I was aware of the discussions that had taken place with Bob Ainsworth, the Minister in another place. I simply repeat the offer: we have not had any response or reaction from sporting bodies since then but, if there is a continued and perceived need for further discussions, of course we stand ready to have them.

Baroness Anelay of St Johns

My Lords, that is a very helpful intervention. I am sure my noble friend Lord Moynihan will bring that to the attention of the relevant bodies, in both motor sport and the Olympics. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 185 not moved.]

Lord Pearson of Rannochmoved Amendment No. 186: After Clause 67, insert the following new clause—

"CONDUCT CONTRARY TO VALUES OF EU

For the avoidance of doubt, it is hereby declared that nothing in this Act shall permit the extradition to or from the United Kingdom of any person accused of insulting or undermining the European Union or any symbols of the European Union.

The noble Lord said: My Lords, I moved a similar amendment to this in Grand Committee in the Moses Room on 3rd June—as reported at cols. GC 175 to 180 of the Official Report. It was generally supported by my noble friend Lady Anelay from our Front Bench and by the noble Lords, Lord Wedderburn and Lord Stoddart of Swindon, the latter of whom asks me to apologise for his absence tonight, as, indeed, does the noble Lord, Lord Monson, who has also put his name to the amendment.

The Minister, the noble Lord, Lord Filkin, said that the best answer he could give at the time was that the Government did not think it would be possible to designate the EU itself, or any EU institution, as a Part 1 or, indeed, Part 2 territory because the EU did not constitute a territory, as required by Clause 1 of the Bill. However, he was good enough to say that he would reflect on what had been said to see whether the amendment needed a fuller response at that stage. Not surprisingly, I have heard nothing from the noble Lord and so assume that that remains the Government's position.

But things have moved on in Brussels since 3rd June, and I submit that the final content of M Giscard d'Estaing's proposals for the future constitution of the European Union strengthens rather than diminishes the need for this amendment. For example, on 3rd June I predicted that the Giscard convention would propose that the EU flag would acquire the status of a national flag—or, rather, a status superior to national flags, as we shall see—and that Beethoven's "Ode to Joy" would suffer the ignominy of becoming the new EU megastate's national anthem. I reminded your Lordships that it is already an offence in France to insult the president and, I believe, to whistle or show disrespect during the French national anthem. Of course, we all know the formative influence which the French have on EU legislation.

Sure enough, at the convention's very last session, the Eurocrats managed to slip in a new Article IV–1 under Part IV—"General and Final Provisions". It states: The flag of the Union shall be a circle of twelve golden stars on a blue background. The anthem of the Union shall be based on the Ode to Joy from the Ninth Symphony by Ludwig van Beethoven. The motto of the Union shall be: United in diversity. The currency of the Union shall be the euro".

I do not know whether the Treasury has spotted that one but no doubt it will have a look at it. Finally, it states: 9 May shall be celebrated throughout the Union as Europe day".

I am not pretending that I was particularly clever to forecast this development. Bitter experience has taught me over many years that the ratchet towards the creation of the corrupt, undemocratic EU megastate grinds only in one direction; indeed, the treaties say that it cannot be otherwise.

And so one learns that it is always wrong to think that surely the EU cannot be planning some ghastly new accretion of its powers. It always has been and always will be planning just such an accretion, and it will always get there, step by step, by unlocking doors in the various treaty renegotiations which may still appear shut to people unversed in its ways but through which the integrationists will later walk when the treaty has been ratified.

So I am reasonably sure that that is the process that we are looking at now. I fear that the noble Baroness, the Minister—or the noble Lord, the Minister; I do not know with whom we are to be honoured—will repeat that the EU is not a country and so one cannot be extradited to it for committing racism and xenophobia against it, for example (or whatever the crime may turn out to be), and therefore the amendment is unnecessary.

But we now know that other disturbing proposals from the Giscard convention have not only been confirmed in its final draft but have already been accepted by the Government and, as far as I can see, by most other European states, if not all. As far as I know—no doubt the Minister will correct me if I am wrong—they do not form part of the Government's famous red lines, which are not really red lines at all; they are just patsies set up to be heroically knocked down by the Government in the forthcoming IGC. These disturbing proposals include Article I–6 of the draft constitutional treaty, which states simply that the Union shall have legal personality. That is new and the Government appear to have accepted it. Hence the flag and the anthem, of course. One cannot imagine the United States of America without its flag and its anthem.

Article I-10 is delightfully clear in explaining the status of this new personality, as I mentioned in Committee. That states: The constitution, and law adopted by the Union's Institutions in exercising competencies conferred upon it, shall have primacy over the law of the Member States".

So this new European Union, with its new legal personality, now resplendent with its flag and anthem, not to mention its own Parliament, executive, Supreme Court, currency, foreign policy, police force, legal and tax systems, will have primacy over the law of member states. There is also Article I-12–2, which I also quoted in Committee. That states: The Union shall have exclusive competence for the conclusion of an international agreement when its conclusion is provided for in a legislative act of the Union, is necessary to enable it to exercise its internal competence, or affects an internal Union Act".

I confess that this article is couched in classical EU double-speak so it is very hard to know exactly what it means. But there are those better versed in EU verbiage than me who believe that it may be the back door which opens the whole of justice and home affairs to eventual control by Brussels. This evening perhaps the Minister can explain what it really does mean and what its limitations are, if any.

Whatever the answer to that, I should repeat a quote from the noble Baroness, Lady Symons of Vernham Dean, earlier this year, when the Government indicated that they might resist the EU's proposed new superior legal personality. The noble Baroness said: Conferring a single personality on the Union would give it the capacity to act within the legal system distinctly from the states that are its members.… In practice that would mean that the EU would have a capacity to make treaties, to sue and be sued and to become a member of international organisations".—[Official Report, 20/3/03; col. 377.]

To sue and be sued: that seems quite relevant to this amendment, does it not? Surely it does not take much imagination to see that the EU, with all these new powers, will eventually be able to add itself to the list of countries or legal personalities to which one can be extradited for committing the crime of xenophobia against it.

The amendment seeks to make that impossible, at least through this Bill, as far as the United Kingdom is concerned. I look forward to a somewhat fuller reply from the Minister than her colleague was able to give in Committee. I beg to move.

Baroness Anelay of St Johns

My Lords, I rise briefly to welcome the fact that my noble friend has given the Government a fuller opportunity to respond to the serious point of what the implications of the legal personality of the EU will be for extradition. I fully hope and expect that the Minister will say that the EU cannot now, nor at any stage in the future will be able to, act independently to become a member of Part 1 countries and then to exercise or issue European arrest warrants.

My noble friend goes to the heart of the problem as to what the EU comprises: whether it is the sum of its constituent parts or whether it takes on a character much greater than that.

9 p.m.

Baroness Scotland of Asthal

My Lords, I say straightaway that the noble Lord, Lord Pearson of Rannoch, never disappoints. Therefore, it was with a great deal of pleasure that I listened to the noble Lord's enunciation of his vision of Europe. I am afraid that I did not recognise it, but, none the less, I appreciated the vision.

It is very difficult to respond to the noble Lord at this stage as he conflates a number of issues. In due course we will have an opportunity—I anticipate an extensive opportunity—to discuss the final outcome of the intergovernmental conference which is now taking place at a series of meetings in Rome. We know not whether they will conclude in time to meet the end of the Italian presidency. The issues raised by the noble Lord are all matters currently under discussion. Nothing is settled and the noble Lord knows that well.

I wondered at one stage whether the noble Lord sought to make an illusion because he referred to patsies set up to be knocked down. I was one of those who represented our government at the convention and I am sure the noble Lord was not referring to me. I would like to thank the noble Lord seriously for the points he made. Perhaps I may direct my attention to the import of his amendment because there is a serious issue here. The noble Lord seemed to envisage a world where criminal law is harmonised throughout the EU and where Europol will come knocking on our doors to arrest and extradite people for anti-EU crimes.

I am afraid that that is not a world I recognise. The Government remain opposed to the idea of a European corpus juris, which is an entirely different concept from the European arrest warrant. Europol has no operational or coercive powers. That is the reality and we have no plans for that to change.

Apart from that, there has never been any suggestion that the European arrest warrant, or any other measure, should be used to arrest or extradite people for indicating any kind of opposition to the EU. That is a concept—invented and perpetrated by those who wish to oppose the European arrest warrant and the Bill—which has absolutely no foundation.

I am sure the noble Lord in tabling the amendment was merely seeking to protect the liberty of those who—like himself—take exception to the EU and what it does. Your Lordships will see that I am seeking to reply to the amendment as opposed to the way in which the noble Lord moved it. Clearly, the Government are completely at odds with those who would put the case differently.

It is quite clear that the noble Lord feels a certain degree of passion on the issue. The amendment states that no person should be extradited to or from the United Kingdom for insulting or opposing the European Union. I do not believe there has ever been a suggestion that any person should be extradited for such conduct, but that is what the amendment says.

Having listened to the noble Lord, I presume that he does not wish to press the amendment, but that he really wants to use it as a stalking horse to put his various concerns on record. Obviously, I have fully taken into account everything that he said.

The amendment does not address the issue of the EU's legal personality. However, the answer remains the same: the EU will never be designated as an extradition partner of the UK.

I hope that response helps the noble Lord. I could doubtless entertain your Lordships' House for some time, but I shall resist the temptation.

Lord Pearson of Rannoch

I am most grateful to my noble friend and to the Minister, if only for her words in confirmation that the EU will never be designated as an extradition partner of the United Kingdom. I really hope that not too far in the future the time does not arrive when we need to rely on those words.

I assure the Minister that of course I would never have described her as a patsy to be knocked down by the Prime Minister in negotiations in Brussels. I am sure that no one in your Lordships' House would make such a suggestion.

To me, a patsy in this sense is merely a scare. That is the system that has been going since, in my experience, the Single European Act, Maastricht, Amsterdam and Nice. Those were bugbears set up by the Foreign Office of frightening prospects from forthcoming treaty negotiations, when the Prime Minister of the day was able to say that he had negotiated them away and that therefore the whole process had been to the advantage of the United Kingdom. "Game, set and match" comes to mind in that respect. But of course the European juggernaut has meanwhile ground quietly on in the background.

I shall not engage with the Minister now about whether what we are considering is a vision or a nightmare. I agree that that will come out in the wash of our discussions over the results of the intergovernmental conference. I am most grateful to the Minister and to my noble friend for their contributions and beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 68 [Extradition to category 2 territories]:

[Amendment No. 187 not moved.]

Clause 69 [Extradition request and certificate]:

Baroness Scotland of Asthalmoved Amendment No. 188: Page 37, line 9, leave out subsection (2).

On Question, amendment agreed to.

[Amendment No. 189 not moved.]

Clause 70 [Arrest warrant following extradition request]:

Baroness Scotland of Asthalmoved Amendment No. 190: Page 37, line 17, leave out "Order in Council" and insert "order made by the Secretary of State

On Question, amendment agreed to.

Clause 72 [Provisional warrant]:

[Amendment No. 191 not moved.]

Baroness Scotland of Asthalmoved Amendment No. 192: Page 38, line 36, leave out "Order in Council" and insert "order made by the Secretary of State

On Question, amendment agreed to.

[Amendment No. 193 not moved.]

Clause 73 [Person arrested under provisional warrant]:

[Amendment No. 194 not. moved.]

Baroness Scotland of Asthalmoved Amendment No. 195: Page 39, line 15, leave out "and he asks to be shown the warrant

On Question, amendment agreed to.

[Amendment No. 196 not moved.]

Baroness Scotland of Asthalmoved Amendment No. 197: Page 39, line 16, leave out "request" and insert "arrest

On Question, amendment agreed to.

[Amendments Nos. 198 and 199 not moved.]

Baroness Scotland of Asthalmoved Amendment No. 200: Page 39, line 23. leave out from "with" to end of line 24 and insert "and the person applies to the judge to be discharged, the judge must order his discharge

On Question, amendment agreed to.

[Amendment No. 201 not moved.]

Clause 74 [Date of extradition hearing: arrest under section 70]:

Baroness Scotland of Asthalmoved Amendment No. 202: Page 40, line 23, leave out "Order in Council" and insert "order made by the Secretary of State

On Question, amendment agreed to.

[Amendment No. 203 not moved.]

Clause 75 [Date of extradition hearing: arrest under provisional warrant]:

[Amendment No. 204 not moved.]

Baroness Scotland of Asthalmoved Amendment No. 205: Page 41, line 8, leave out "and he asks to be shown the warrant

On Question, amendment agreed to.

[Amendment No. 206 not moved.]

Baroness Scotland of Asthalmoved Amendment No. 207: Page 41, line 9, leave out "request" and insert "arrest

On Question, amendment agreed to.

[Amendments Nos. 208 and 209 not moved.]

Baroness Scotland of Asthalmoved Amendment No. 210: Page 41, line 17, leave out from "with" to end of line 18 and insert "and the person applies to the judge to be discharged, the judge must order his discharge

On Question, amendment agreed to.

[Amendment No. 211 not moved.]

Baroness Scotland of Asthalmoved Amendments Nos. 212 and 213: Page 41, line 38, leave out "Order in Council" and insert "order made by the Secretary of State Page 41, line 39, leave out "Order in Council" and insert "order

On Question, amendments agreed to.

Clause 76 [Judge's powers at extradition hearing]:

[Amendments Nos. 214 and 215 not moved.]

Baroness Scotland of Asthalmoved Amendment No. 216: Page 42, line 14, leave out ''the person must be taken to be discharged" and insert "and the person applies to the judge to be discharged, the judge must order his discharge

On Question, amendment agreed to.

Clause 77 [Date of extradition hearing: arrest under provisional warrant]:

[Amendment No. 217 not moved.]

Baroness Scotland of Asthalmoved Amendment No. 218: Page 42, line 29, leave out "the person must be taken to be discharged" and insert "and the person applies to the judge to be discharged, the judge must order his discharge

On Question, amendment agreed to.

Clause 79 [Initial stages of extradition hearing]:

[Amendments Nos. 219 and 220 not moved.]

Clause 80 [Bars to extradition]:

Lord Goodhart moved Amendment No. 221: Page 44, line 3, after "affirmative" insert "or if it appears to the judge that the accusation against the person is not made in good faith in the interests of justice

The noble Lord said: My Lords, Amendment No. 221 would bring back into Part 2 of the Bill a defence to extradition that is present in the Extradition Act 1989 and all earlier Extradition Acts. The issue was raised by Liberty. The defence to be brought back is that the extradition is unjust and oppressive. Amendments Nos. 221 and 222 are based on Section 11(3)(c) of the Extradition Act 1989, which provides for the extradition to be refused if the accusation that is the subject of the charge leading to the application for extradition was not made in good faith in the interests of justice, and if the extradition would cause injustice or oppression.

We are dealing with Part 2 of the Bill. Part 1 is based on the assumption that we can trust the legal systems of category 1 states. There is no such assumption in relation to category 2 states. In fact, in two recent cases involving states not included in category 1 the court refused extradition on the grounds that the accusation was not in good faith. One of those cases is from India and the other from Turkey. In one of the cases, there was a lot of evidence to suggest that the person whose extradition was sought had been framed by the people who committed the offence. In the other case, there was strong evidence that the person was being blackmailed over an offence that he had not committed.

If one could be certain that there would be a fair trial if the person were extradited, one could then also assume that the court would consider the evidence, that a fair trial would take place, and that, if things were as they appeared to be when extradition was sought, the person being extradited would be acquitted. However, that cannot necessarily be the case in relation to some category 2 countries, at any rate. In some such countries there is doubt about the quality of justice that will be delivered, even if those doubts are not sufficient to satisfy the courts in this country that the person would not get a fair trial. Secondly, there is hardship involved in sending someone back to face a trial, even if it is assumed that the trial will be fair, if it appears to the judge hearing the application that the accusation was not made in good faith.

There are significant advantages in allowing that defence to be raised. Without the amendment, the judge could not refuse extradition and the case would have to be decided by the Home Secretary. If the judge is satisfied, after hearing the evidence, that the accusation was not made in good faith, he or she should be allowed to refuse extradition.

In the other place, the Government said that the judge could reach such a conclusion on human rights grounds, relying on Clause 88. However, I am not satisfied that that is true. The European Convention on Human Rights would apply only if the court hearing the extradition application believed that the person whose extradition was sought would not get a fair trial. That is a different question. If the court believes that the accusation was not made in good faith, even if it believes that that person will get a fair trial, it should be able to discharge him or her without having to send that person back by making an extradition order subject to the final decision of the Home Secretary. We believe that significant advantages can be gained from keeping such a defence in Part 2 of the Bill, as it has stood for many years in existing extradition legislation. I beg to move.

9.15 p.m.

Baroness Anelay of St Johns

My Lords, I rise to support this amendment, to which I attached my name. I agree with the noble Lord, Lord Goodhart, that it provides a significant defence. It is an important matter and it has served well in the past. During the course of the explanation by the noble Lord, Lord Goodhart, it would become apparent to the casual reader that we have slipped almost imperceptibly at long last into Part 2, because this is the first group of amendments in Part 2 to which noble Lords have spoken. The noble Lord, Lord Goodhart, rightly made it clear that we are now dealing with extradition to countries that will not form part of the European arrest warrant framework decision or of that agreement, and we must exercise even more caution in determining whether or not a person should appropriately be extradited.

Like the noble Lord, Lord Goodhart, we have received a lot of briefing on this matter. I particularly wish to thank Liberty and Mr Clive Nicholls QC who is, of course, an expert practitioner in this field. Those who practise in this field have told us repeatedly over the past few months that the provision of a bar to extradition if the accusation is not made in good faith in the interests of justice has been an invaluable protection in several cases that would indeed be Part 2 cases in the future if the like arose again. In Committee, the Minister tried to argue that the provision had been dropped from the Bill because its inclusion in the 1989 Act was a remnant from the 1870 Act which, as he said, conveys the spirit of that time—revolution in many countries, suspicion and mistrust between neighbours, infrequency of international travel and so forth".—[Official Report, 10/7/03; col. GC 107.] We are advised that there is nothing historic in the sense of the past about the need for this safeguard. It is just as relevant now as it has ever been. History has a purpose to serve when it shows a good example. The noble and learned Lord, Lord Goodhart—or "learned" in the normal sense of the word, but not yet learned within our rules—has made an invincible case.

Baroness Scotland of Asthal

My Lords, I only wish that I could agree. I do not think that I can, although it is right to say that, in Grand Committee and this evening, the noble Lord, Lord Goodhart, raised a number of good points;. My noble friend Lord Filkin said that he would take them away for consideration. We have taken them away and have given them in-depth consideration. I would normally wish to explore very fully the what and why of how we came to these conclusions, but I am conscious that it is now quarter-past nine o'clock and I hope that noble Lords will forgive me if I am a little shorter than I would have liked to be because, although many issues raised by the noble Lord were covered in Grand Committee, they are deserving of a more thorough response. I will give your Lordships a more telegraphic response, but if there are further and other issues that noble Lords feel may be assisted by further explanation, I shall be very happy to write to them with the full response that I have prepared.

Baroness Anelay of St Johns

My Lords, as this is Report, I can ask the Minister questions at this stage. If she were to write to us, would the letters automatically be placed in the Library of this House? Are they available to members of the public, because those additional answers need to be on the record?

Baroness Scotland of Asthal

My Lords, if I write to noble Lords, I am very happy to put letters in the Library of the House and make them publicly available. I had intended to go through some of the authorities that were raised in Grand Committee. For example, the noble Lord, Lord Goodhart, referred specifically to the cases of Saifi and Murat Callis. He also referred to various issues that had been brought to his attention, doubtless by the speech by Paul Garlick QC. There were some specific references and responses that I would have made. I may touch on some of them, but I am conscious that time is of the essence. In answering the noble Baroness and the noble Lord, I want to make it clear that we gave the matter in-depth consideration. Anything that I say now is a synopsis of the deliberations that the provisions engendered. We thought about the matter carefully and in some depth.

The amendments would create an additional bad faith bar to extradition in Part 2 cases. The second amendment is a drafting one that is consequential on the first. I think that the noble Lord, Lord Goodhart, moved similar amendments in Grand Committee.

Clause 80 sets out, for the purposes of Part 2, the bars to extradition that the district judge must consider. As noble Lords will know, there are separate bars that the Secretary of State must consider. In such circumstances, the judge must decide whether extradition is barred for any of the reasons specified in the provisions. If any of the bars apply, the judge must discharge the fugitive.

If the bars do not apply, the judge must go on to consider, in accusation cases, whether there is prima facie evidence or, in conviction cases, whether the person was convicted in his absence. That is the scheme that we have. The amendments would impose an extra step in the process. After considering whether the bars applied, the judge would be obliged to consider whether the accusation against the person was made, in good faith in the interests of justice". That is an extra layer. If the judge concluded that it had not, he would be obliged to discharge the person.

As the noble Lord indicated, the wording of the amendment is based on Section 11(3) of the Extradition Act 1989. It provides, in the context of statutory habeas corpus appeal, that extradition shall be barred, if it would be unjust or oppressive, for three reasons. One of those is the "good faith/interests of justice" test included in the amendment.

As consolidating legislation, the 1989 Act reflected the situation of 1870, when the original legislation was passed, including the diplomatic mistrust and infrequency of foreign travel that characterised the law on the subject at that time. I think that the noble Lord, Lord Filkin, made that point in Committee. The noble Baroness, Lady Anelay of St Johns, said that her view was that we had not moved on significantly since then. Respectfully, I disagree. We have moved on enormously since 1870. The sort of international travel that we have, the nature of international relations, the speed with which we communicate and our ability to work with our partners are light years away from where we were in 1870. Some of the difficulties remain, but in a different way. They can be addressed with greater efficacy and efficiency than could have been done many years ago. As consolidating legislation, the 1989 Act reflected the situation in 1870. The nature of international relations and access to foreign travel have changed significantly over the past 130 years.

The Bill contains specific human rights clauses that previous legislation did not and could not because the Human Rights Act was still nine years away in 1989 and the ECHR was drafted more than 80 years after the 1870 Act. It is not surprising that those differences exist. The Bill also contains bars against extradition for extraneous reasons—for example, prosecution, punishment or prejudice at trial on the basis of a person's race, religion, nationality or political opinions. Those, along with the other protections against unjust extradition—double jeopardy, in absentia, death penalty, speciality et cetera—provide significant and sufficient safeguards for the individual, without the need for a general discretion for the judge. It is clear what decisions are to be taken and on what grounds they are to be based.

The danger of reintroducing that kind of provision is that delays, which we are seeking to minimise under the new system, would be perpetuated by lengthy and possibly opportunistic legal arguments about good faith and the interests of justice. If fugitives and their lawyers are given additional grounds on which to challenge extradition, experience of the current system demonstrates that they will take every opportunity to make use of them. They should have proper opportunity to do so. We think that the Bill allows proper opportunity on proper grounds for those issues to be properly explored.

In particular, there is a worry that people will seek to allege, not that a particular country has an unsatisfactory criminal justice system, but that a particular judge is corrupt or has made the request for improper reasons. That could lead to endless legal challenges and arguments. As drafted, the Bill contains sufficient safeguards to deal with the situation.

In Grand Committee, the noble Lord, Lord Goodhart, mentioned the speech made by Paul Garlick QC. Some interesting remarks were made, but I found the conclusion of Mr Garlick's speech particularly interesting. It is worth reminding your Lordships of what Paul Garlick said: Supposing the judge (i.e. the District Judge at the extradition hearing) is satisfied that the accusation made against the fugitive is not made in good faith against the interests of justice, but for some other ulterior motive held by a potential prosecution witness or scurrilous prosecutor (perhaps seeking re-election or favour from his superiors). In those circumstances, does the judge have no power to stop the proceedings? If that is the case then, under the new regime proposed by the extradition Bill, the High Court would have no power to correct the position as its jurisdiction on appeal is limited to reviewing whether the judge should have answered one of the questions posed to him in a different way. Can it seriously be said that the High Court has no power to discharge a fugitive where it is plain that the accusation has been made in bad faith? Of course not, such a result would bring the whole extradition process into disrepute". In other words, Mr Garlick is confident that, even with the present drafting of the Bill, the courts would be able to act to prevent extradition in cases where the request had been made in bad faith. That goes to the very heart of the amendment. I therefore hope that your Lordships will be persuaded that these amendments are not necessary. Nevertheless, some of your Lordships might accept that, but still think that there would be no great harm in making them anyway.

However, the amendments would have very real disadvantages. A broad, apparently open-ended provision of this kind would invite fugitives to seek to invoke it in just about every case. We fear that there would be endless litigation on this point. I apologise for having spoken even now at such length, but we needed to encompass some of those issues. I shall be very happy to place an even fuller response in the Library if noble Lords think that that would be helpful.

Lord Goodhart

My Lords, I am most grateful to the Minister for her full reply. Even now, I am not sure that I am entirely persuaded by what she said, but this hour of the night is not a time for dividing the House. In any event, when deciding on what issues to divide, one must prioritise some at the expense of others: I do not think that this amendment is one which quite reaches that level of priority. I therefore beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 222 not moved.]

Clause 82 [Extraneous considerations]:

Baroness Scotland of Asthalmoved Amendments Nos. 223 and 224: Page 44, line 23, after "nationality" insert ", gender, sexual orientation Page 44, line 26, after "nationality" insert ", gender, sexual orientation

On Question, amendments agreed to.

Clause 85 [Case where person has not been convicted]:

Baroness Scotland of Asthalmoved Amendment No. 225: Page 45, line 45, leave out "Order in Council" and insert "order made by the Secretary of State

On Question, amendment agreed to.

Lord Goodhartmoved Amendment No. 226: Page 46, line 1, at end insert— ( ) A category 2 territory may not be designated under subsection (6) unless on the coming into force of the designation the legal conditions on which persons may be extradited from that territory to the United Kingdom are substantially similar to the legal conditions on which persons may be extradited from the United Kingdom to that territory.

The noble Lord said: My Lords, Amendment No. 226 is a matter which I raised in Grand Committee. It is something on which very strong feelings are held, not only by my noble friends but by many people across the country as a whole—well outside my own party.

The amendment is directed towards the issues raised by the agreement on extradition reached at the end of March between the USA and the United Kingdom. The agreement provides that there will continue, for the purposes of extradition to the United Kingdom from the USA, a requirement that a prima facie case should be shown. However, the agreement alters the position the other way round; that is, for extradition from the United Kingdom to the USA. It is no longer a requirement that the courts of this country be shown a prima facie case, but merely that various details of the kind which apply in extradition to category 1 countries should be shown. We believe this to be entirely wrong.

First, we think that reciprocity is a necessity here. Looking at the matter in purely financial terms, I suppose that one could say that there is a slight advantage to us in being able to get rid of people quickly instead of having to hold them over here while the court process goes through, but we do not see that as a justification for the difference. We recognise of course that the USA faces constitutional problems concerning not only its own citizens when seeking to extradite people to this country without a prima facie case having been shown against them. However, that seems to renounce any ability on our part to put pressure on the USA that might ultimately lead to a constitutional amendment if the problems became sufficiently severe. So we have to accept that as it is.

Secondly, it is generally known that standards of justice in the 51 different jurisdictions of the United States vary very widely indeed. Standards of criminal procedure in some stales, such as Massachusetts and New York—with which I have some acquaintance— may be regarded as perfectly satisfactory, and broadly the same is true of the federal jurisdiction. However, of some states, notably those of the deep South and Texas, one cannot say the same. There is serious concern about the quality of justice in those states and we do not think it appropriate for people to be sent back to face trial without the safeguards provided by insisting that a prima facie case be shown.

We should remember the recent case, heard over the past few months, of the Algerian pilot, Lofti Raissi, who was accused of being involved in the planning of the destruction of the World Trade Centre and the terrible events of 9/11. However, when it came to producing evidence against him, there was a notable failure on the part of the American authorities to do so. That is hardly an advertisement for saying that we ought to agree to send people back without a prima facie case.

I should make it clear that this is not an amendment which I propose to move to a vote. It may well be that we shall pray against the order which will be necessary to bring the agreement into force. That will be the time to vote rather than on this occasion. On that future occasion the vote will be specifically targeted on the particular agreement. But, as we have done before, we wish to make clear our very serious concerns about this agreement. I beg to move.

9.30 p.m.

Baroness Anelay of St Johns

My Lords, we support the amendment. The United States is a very close and enduring ally and the amendment is not targeted as a criticism of it. The noble Lord, Lord Goodhart, has rightly exposed the fact that there is no reciprocity in the agreement between the United States and ourselves in this matter. Indeed, on the previous occasion, the Minister pointed out to the Grand Committee that it was not possible for the United States to reciprocate because its constitutional arrangements are such that it is not allowed to relax the requirement for prima facie evidence to be presented.

In that, I envy the Americans. I do not envy them a written constitution, but I envy the fact that they have been able to hang on to that most vital of protections in a matter of reciprocity. The Minister has said in the past that Conservative governments had given up on prima facie evidence being a requirement in certain circumstances. Our riposte is always, "Ah but…". In this case, the Government are giving up far more at the same time.

My support is given on the basis of the principle of reciprocity to which the noble Lord, Lord Goodhart, referred. It is extraordinary that we should give up our right at a time when we know that the other party cannot give up its right.

Baroness Scotland of Asthal

My Lords, I am grateful to the noble Lord for the way in which he introduced the amendment and for indicating that he does not intend to press the matter to a Division but will raise it in its proper place when the agreement comes to be heard.

I hear what the noble Baroness, Lady Anelay, says about the amendment not being targeted towards America, but it most specifically is. The noble Lord, Lord Goodhart, made it clear that it was directed towards America. The noble Baroness is right to say that America is our closest ally but, if I can put it colloquially, it does not wash to say that we do not mean America when quite specifically we do. It is right that the noble Lord, Lord Goodhart, should make that plain.

The noble Lord also made plain that the reason he is concerned is because of the disparity in approach that he has identified between various states in America, not all of which share exactly the same jurisprudence. I was therefore not surprised when he mentioned the more liberal, or Democrat, states and referred to other states—which some have described in other places as "Bush country"—as being of a different ilk. So there is nowhere for the noble Baroness to hide.

Plainly the response that I gave on the previous occasion demonstrated why there was a difference of view. The noble Baroness was right to highlight the comments I made then about the constitutional difference in America, but the new bilateral extradition treaty between the United Kingdom and the United States of America, which was signed by my right honourable friend the Home Secretary and the US Attorney-General, John Ashcroft, on 31st March was very necessary. Our present treaty was negotiated in 1972. I believe that even the noble Lord, Lord Goodhart, while critical of our current position, would agree that that treaty is very much out of date. For example, the treaty contains a list of offences for which extradition is possible. For obvious reasons, the list does not contain computer-related crimes—a significant omission. We have moved on and we have to update the position.

I should put on record that the treaty was negotiated in exactly the same way as all our other extradition treaties and, for that matter, all other bilateral international instruments. The text of the treaty was published as a Command Paper shortly after it was signed. Again, the normal procedures, including the Ponsonby rules, were followed. The only unusual occurrence was that the gap between signature and publication was shorter than is customary because we were aware of the considerable interest in the new treaty.

I suspect that for the purposes of the amendment, the provision in the treaty that causes most interest is the one that removes the requirement for the United States to provide prima facie evidence to accompany the extradition requests. I make no apology for this. We do not require and have not for many years required the other countries in the European Convention on Extradition to provide prima facie evidence. This includes not just the countries of the EU but every country in the Council of Europe—countries which the noble Lord, Lord Goodhart, knows well, such as Albania, Turkey and Azerbaijan. I fail to see why we should impose a more stringent requirement on a mature, established democracy such as the United States than for the countries I have just mentioned.

Indeed, it was the noble Lord, Lord Lester of Herne Hill, who requested that we should obtain from the United States Government a statement of the protections available to those who might be extradited to the United States. We were happy to comply with this request and the reply from the United States Government was contained in our response to a report from European Union Sub-Committee E. Let me quote an extract from the report, which states: Every person who is extradited to stand trial in the criminal justice system within the United States is entitled to the fundamental right of due process under the United States constitution. All extraditees have the right to a fair trial, before an impartial jury, and enjoy the right to counsel, the right to confront adverse witnesses, and the right to compulsory process to call witnesses favorable to the defense. No extraditee can be convicted except on the basis of proof beyond a reasonable doubt. Every extraditee has the right to appeal a conviction". These rights apply irrespective of the nationality of the person concerned and irrespective of the state or jurisdiction concerned. Avenues of redress exist if these rights are not upheld.

I am pleased that the noble Lord—and, I take it, the noble Baroness—will not press these amendments today or at any other time. I look forward to the discussions we will probably have on these issues when the matter comes back for deliberation in its proper place.

Lord Goodhart

My Lords, I am grateful to the noble Baroness, once again, for a full reply to this matter. I should perhaps have disclosed to your Lordships' House, when I was referring to New York as an example of a state that had a satisfactory system, that a cousin of mine is and has for many years past been the District Attorney of Manhattan.

This is a serious issue that has caused and continues to cause much concern. As I indicated, I will not move the amendment on this occasion, nor will I bring it back at Third Reading. However, the Government should recognise that there is likely to be an objection when the Order in Council which is necessary to give effect to the agreement comes back. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 86 [Case where person has been convicted]:

Baroness Scotland of Asthalmoved Amendment No. 227: Page 46, leave out lines 10 to 29 and insert "whether the person was convicted in his presence.

1. (2) If the judge decides the question in subsection (1) in the affirmative he must proceed under section 88.
2. (3) If the judge decides that question in the negative he must decide whether the person deliberately absented himself from his trial.
3. (4) If the judge decides the question in subsection (3) in the affirmative he must proceed under section 88.
4. (5) If the judge decides that question in the negative he must decide whether the person would be entitled to a retrial or (on appeal) to a review amounting to a retrial.
5. (6) If the judge decides the question in subsection (5) in the affirmative he must proceed under section 87.
6. (7) If the judge decides that question in the negative he must order the person's discharge."

The noble Baroness said: My Lords, I beg to move.

Baroness Anelay of St Johnsmoved, as an amendment to Amendment No. 227, Amendment No. 228: Line 15, at end insert—

"(8) For the purposes of subsection (5), the judge should not regard as a retrial or (on appeal) a review amounting to a retrial, any proceedings that do not in particular include provision for—

1. (a) the suspect to be present at the retrial;
2. (b) the suspect to have like rights to hear and examine witnesses as he would have done at the original trial;
3. (c) the suspect to have the same right to publicly funded legal services as any suspect or defendant."

The noble Baroness said: My Lords, we have already debated this amendment in a group in which we won the vote on the lead amendment. Therefore, I beg to move.

On Question, Amendment No. 228, as an amendment to Amendment No. 227, agreed to.

On Question, Amendment No. 227, as amended, agreed to.

[Amendment No. 229 not moved.]

Clause 87 [Conviction in person's absence]:

Baroness Scotland of Asthalmoved Amendment No. 230: Page 47, line 24, leave out "Order in Council" and insert "order made by the Secretary of State

On Question, amendment agreed to.

Clause 93 [Case sent to Secretary of State]:

[Amendment No. 231 not moved.]

Clause 94 [Secretary of State's consideration of case]:

9.45 p.m.

Lord Bassam of Brightonmoved Amendment No. 232: Page 49, line 39, at end insert—

"(5) In deciding the questions in subsection (2), the Secretary of State is not required to consider any representations received by him after the end of the permitted period.

(6) The permitted period is the period of 6 weeks starting with the appropriate day."

The noble Lord said: My Lords, the proposals were trailed in Committee, and their purpose is simple to describe. The Bill provides that when the Secretary of State considers an extradition request, as he is required to under Part 2, he must reach his decision in two months. It will be the first time that there has been a statutory deadline governing the Secretary of State's decision, and I am sure that your Lordships will welcome that, although it is possible that future Secretaries of State will curse us for it.

All the experience of the present system shows that those who are the subject of extradition proceedings submit voluminous representation to the Secretary of State—and voluminous is certainly the correct term. We are talking about dozens and dozens of box files, all of which must be properly studied. Your Lordships will see why we need the amendment, which provides that all representations must be submitted to the Secretary of State within six weeks. That is designed to ensure that the Secretary of State has proper time to consider all representations.

The alternative would be that the person could submit their representations at the 59th minute of the 11th hour and then instantly challenge the Secretary of State's decisions on the ground that his representations had not been properly considered. That would not be a satisfactory way in which to proceed. By contrast, giving a clear deadline for representations to be made and clear deadlines for the Secretary of State to reach his decision provides both transparency and certainty. I invite your Lordships' House to take the same view. I beg to move.

On Question, amendment agreed to.

Clause 95 [Death penalty]:

The Earl of Mar and Kelliemoved Amendment No. 233: Page 50, line 6, after "assurance" insert "from the appropriate authority

The noble Earl said: My Lords, the amendment was inspired, as usual, by the Law Society of Scotland. It deals with the issue of the death penalty and the need for assurance that the person to be extradited would not be subject to the death penalty—or, indeed, to confirm that he would be so subject.

The amendment confirms that only the "appropriate authority" should grant the required assurance. As drafted, the Bill gives the judge discretion to consider whether a written assurance is adequate. The amendment would confirm that the judge must have the written assurance from the appropriate authority in the country concerned. Simply and straightforwardly, that would clarify the position and create the necessary procedure and, in so doing, presumably prevent anyone being extradited from this country to another country to face the death penalty.

In those few words, I beg to move.

Lord Bassam of Brighton

My Lords, as ever, we are grateful to the noble Earl, Lord Mar and Kellie, for tabling amendments. This one gives us the opportunity to explore what is certainly one of the most important, if not the most important, of the safeguards in Part 2. Nevertheless, I shall explain as briefly as I can why we do not believe that it would be wise to make the amendment.

Clause 95 concerns the death penalty and is clear in its effect. In death penalty cases, the United Kingdom requires assurances that the death penalty will not be imposed or carried out. If no such satisfactory assurances are received, the person simply will not be extradited.

The clause sets out our position on the death penalty under current extradition arrangements. In updating the legislation, we decided that it would be sensible to set out clearly and precisely how that would work. We have effectively formalised in legislation what already happens in practice. We feel that it is important to do that, especially given the gravity of the subject, and the examination that it rightly attracts.

Before I turn my attention specifically to the amendment, I should explain that the system that we set out in the Bill has never caused us any great difficulties. Clearly such an assurance must come from a person who is competent to issue it and it must bind the bodies which impose and carry out the sentence. It is on that basis that the clause was drafted and the Secretary of State can accept assurances that he considers an "adequate" guarantee that the death penalty will not be imposed or carried out.

The noble Lord's amendment stipulates that the assurance must issue "from the appropriate authority". We appreciate this sentiment. As I say, we would expect the assurance to come from a person who is competent to issue it and that it must bind the bodies which impose and carry out the sentence. Indeed, that is our experience. However, the amendment mentions "the appropriate" authority without defining it. It would be difficult, clearly, to define such an authority in the Bill for each individual country where this could be an issue. I am not sure that it would be any easier to define such an authority by a generic description, or by any other means.

Let us look at the most obvious example, the United States. The USA is our only regular extradition partner which uses the death penalty. In some cases the assurance will come from the Governor of the state concerned, in some cases the Attorney General of the state concerned and in some cases it will be the prosecutor in the case. Different rules apply in different cases. However, a very important point to make is that there has never been a case where an assurance, once given, has not been fully honoured. We feel that the amendment would add a note of ambiguity to the drafting quite contrary to the clarity and strength that I believe was intended by it. That ambiguity could open the process up to additional and extended challenges as to whether or not the authority is "appropriate", as the term is not qualified in any way. For example, a fugitive may argue that an authority, which we know, by experience, to be absolutely appropriate, is entirely inappropriate. As I explained earlier, I am not sure there is any way of getting round the lack of definition.

I respectfully suggest that what we have in the Bill now is correct. I repeat that before the Secretary of State accepts an assurance he will have to satisfy himself—as he does at present—that the person who has submitted it is in a position to do so and, more importantly, that it will have a binding effect. I also emphasise that we have had such a system for many years and it has never given rise to any problems or for that matter any attempts at abuse. I hope that the noble Earl, Lord Mar and Kellie, is reassured by these comments on the record and that he feels able to withdraw the amendment.

The Earl of Mar and Kellie

My Lords, I am grateful to the noble Lord for his answer. I am content at this point to take it that the Bill has described the process as adequately as it can be. This is a very serious subject. I also note that the noble Lord said that to date we have no axe to grind with any other country on this matter. I shall be interested to discuss this further with the Law Society of Scotland. At this point, 1 beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Goodhartmoved Amendment No. 234: Page 50, line 8, at end insert "or if conviction of the offence will result in a mandatory sentence of life imprisonment without possibility of release

The noble Lord said: My Lords, the amendment contains a misprint. It should refer not to "Page 50, line 8", but to "Page 50, line 4".

The effect of Clause 95 is to exclude extradition to a territory where someone may be sentenced to death unless the Secretary of State receives a written assurance that sentence of death will not be imposed. In the amendment we assert that there should not be extradition, if conviction of the offence will result in a mandatory sentence of life imprisonment without possibility of release".

I understand that the Conservatives feel unwilling or unable to support the amendment, nevertheless I wish to address it.

In this country, we do not have a mandatory life sentence without possibility of release. There are of course cases where a whole-life tariff is imposed by the judge in the exercise of his discretion, and there are obviously some circumstances, although they are fortunately rare, where the crime is so horrible or the condition of the accused is such that there is really no possibility whatever of that person being released. However, that is a different matter. We are concerned with the fact that, in other countries, there are circumstances in which it is possible for someone to be sentenced for a crime that actually carries a penalty of life imprisonment without release.

Where that condemns someone and there is no discretion on the judge to say that the sentence does not apply in a case, it can be described as a sentence to a kind of living death. Although such a sentence may have to be imposed in the exercise of a discretion, it should never be mandatory without any person—the judge or an outside authority—ever having power to review the case.

Article 5 of the European framework decision states that the execution of the European arrest warrant may by law of the executing member state be subject to conditions. One of those, in paragraph 2, is that, if the offence on the basis of which the European arrest warrant has been issued is punishable by custodial life sentence or life-time detention order, the execution of the said arrest warrant may be subject to the condition that the issuing Member State has provisions in its legal system for a review of the penalty or measure imposed, on request or at the latest after 20 years, or for the application of measures of clemency".

That would represent the right approach. There should always be some discretion exercisable in such a case. We believe that the principle should apply in category 2 states, and that there should not be extradition that will result inevitably, if there is a conviction, in mandatory life imprisonment with no possibility whatever of release. I beg to move.

Lord Mayhew of Twysden

My Lords, I am not able to support the amendment, because two factors in respect of the condition that we have applied for a long time about death sentences are not present. The first is that the death sentence is something forbidden by the convention, to which we are now subscribers. The second is that, once the sentence is executed, it cannot be revoked; that is it—there is no possibility of rectifying an injustice.

That is not the case with someone sentenced to life imprisonment with, under the law, no possibility of release. There is an opportunity for a rehearing, for the exercise of mercy later, and for revision of the law. Those are important distinctions. It would go too far in inhibiting extradition if we were to support the amendment. I regret to have to say so, but that is my view.

Lord Clinton-Davis

My Lords, the provisions referred to by the noble Lord are too restrictive. Although the amendment is not suitably drafted, what has been said is all-important.

I hope that my noble friend will look at the matter again; or maybe the noble Lord will come back at a later stage with a more appropriate amendment. The point that was made the noble and learned Lord, Lord Mayhew, is important. His point should be borne in mind, although it is not the final word. In any event, the amendment does not deal with the subject matter appropriately.

10 p.m.

Baroness Scotland of Asthal

Although I empathise with the noble Lord's intent in moving the amendment, I agree with its succinct treatment by the noble and learned Lord, Lord Mayhew of Twysden. We should of course exhort others to mercy and we should be mindful of that ourselves, but the imposition of a different criminal justice system on another state, as the amendment would have us do, is a different issue.

In essence, the amendment would insert into Clause 95 a provision that extradition would also be barred if conviction of the offence in question would result in the imposition of, a mandatory sentence of life imprisonment without possibility of release". That extra bar would be removed if the requesting state were to provide assurances that the sentence would not be imposed or carried out.

We should recognise that even in the states about which I know that the noble Lord is most concerned in the United States, which have a policy where life means life, the policy tends to allow for further appeals and the exercise of clemency by the state governor. There is nothing in the Extradition Act 1989 which would bar extradition in those circumstances. If a person could be or has been convicted of an offence that attracts a sentence of life imprisonment, that would not prevent extradition and we see no reason to depart from that position. Refusing to extradite in those circumstances would also put us in potential breach of our international treaty obligations. If another country were to refuse extradition to us, we would not take entirely kindly to it, because it would be an assertion that our rules did not meet the needs of other countries. Our own internal needs must meet the rights and responsibilities we have in relation to our citizens.

However, as was pointed out by the noble and learned Lord, Lord Mayhew, and by my noble friend Lord Clinton-Davis, the death penalty is a different matter. There is no such matter of principle in the case of mandatory life sentences. As the noble Lord knows, we have life sentences in the United Kingdom, but "life" means a period of time which does not necessarily extend until the end of the convicted person's life.

I understand why the noble Lord wishes to see such a provision in the Bill, but I say with the greatest gentleness to him that the amendment really will not do.

Lord Goodhart

My Lords, I shall make two points in response to the noble and learned Lord, Lord Mayhew of Twysden. First, he referred to the possibility of the exercise of mercy. Where there is a possibility under the law of the country concerned that a release might occur as a result of the exercise of mercy, I would not regard extradition to that country as coming under the prohibition that is envisaged by my amendment.

Secondly, as the noble and learned Lord rightly pointed out, the death penalty inevitably excludes the possibility of review, whereas a mandatory life sentence includes it. But that was no part of my argument. My argument was not based on the fact that there would be no possibility of review. My argument was based entirely on the thesis that it would be improper to provide for extradition where, under existing law—although there is always, I suppose, the possibility of a change in the statute law—there is an extradition where conviction would result in a mandatory life sentence with no possibility whatever of release either by something equivalent to our parole board or by the exercise of mercy.

I appreciate that this amendment does not seem to appeal to the House, or such of the House as is present at this rather late stage of the evening. It is not one that in the circumstances I shall press either now or later. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Bassam of Brighton

My Lords, I beg to move that further consideration on Report be now adjourned.

Moved accordingly, and, on Question, Motion agreed to.

House adjourned at six minutes past ten o'clock.