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9 Dec 2002 : Column 77—continued
Mr. Maples: The hon. Gentleman makes a good point. Of course, the problem would not exist if the defence of dual criminality remained. However, I am amazed that Ministers allowed the directive to appear in that form, with incredibly vague wording. To that extent, I agree with the hon. Gentleman. If Ministers are determined to maintain a category of offence for which dual criminality is not available as a defence, it is incumbent on them to tighten the drafting.
European Union directives and regulations and the European Acts are worded vaguely. That is acceptable in many European jurisdictions, but it is not acceptable to us. We define matters tightly in law, and we should not make the Bill an exception, especially as the liberty of British subjects is at stake.
I should be happy with part 1 if dual criminality remained a defence. It is an absolutely fundamental protection in our extradition law, but the Bill removes it. It also removes the Home Secretary's final discretion about whether to extradite someone. At least a British subject has someone—the Home Secretary—who is accountable to a democratically elected Parliament for his final decision. As I said earlier, we have already dropped the requirement for prima facie evidence.
Where will we extradite people? I do not have problems with France, although the divisional court in the Ramda case does. I do not have problems with most European jurisdictions, but that does not apply to them all. Has any hon. Member not had a constituent languishing in a Spanish jail for months awaiting charge and trial? Let us consider the recent case of the plane spotters in Greece. The point was made that if they had returned from their holiday, the photographs had subsequently appeared and they had been charged under the Greek terrorism Act, they would have been on the plane to Greece, with no defence. The hon. Member for Wrexham would have found it difficult to explain to his constituents, whose will he believes he is doing, if someone's son, daughter, father, mother, husband or wife was on the plane without a sniff of a defence that they had committed no offence in British law and no facts had been established.
Ian Lucas: Were not the Greek plane spotters acquitted?
Mr. Maples: After an extremely long time and a ridiculous, farcical procedure. I pray the case in aid as an example of a jurisdiction the equality of whose justice with ours I do not accept. I am prepared to accept that of France, Germany, Sweden or the United States. However, that does not apply to all the countries, and I have cited two examples.
The Bill will apply not only to existing but to new members of the European Union. Twelve years ago, some were communist countries and they have no tradition of impartial and independent judges. Their tradition is heavily politically motivated. Turkey may become a member of the European Union. There are so many awful stories about the administration of Turkish justice to foreign citizens that we would have serious difficulties if the Bill applied to Turkey.
The European convention on human rights is not adequate protection. We should include a requirement for minimum standards in the Bill. The Government clearly recognise the problem because two clauses deal with extraneous considerations. One appeared in a previous draft and the other did not. Their inclusion suggests that the Government accept the possibility of a category 1 jurisdiction seeking to pursue someone on the grounds of race, religion, nationality or political opinion. The incorporation of a human rights provision in clause 21 adds protection. The Government therefore appear to accept that that is necessary and that the jurisdictions are not perfect.
The other offences that the Bill covers at least require dual criminality to be proved. That makes them reasonably acceptable. I do not have great problems with category 2 because prima facie evidence is required in most cases, but it can be waived if the Government identify specific countries for which it is not required. Again, however, the Home Secretary's ultimate protection is very limited.
Under clause 193, the Home Secretary's discretion to disallow someone's extradition is severely curtailed. He would have to do it either in pursuance of statutory authority or in circumstances in which he had exempted the person from the possibility of prosecution. It would also have to be done in the interests of national security.
I would suggest that that does not go wide enough. We need to go further, and at least include the provision that someone should not be extradited if a serious miscarriage of justice were likely to occur, or if the national interest required it. The Home Secretary is the right person to make such decisions.I want to identify a couple of other weaknesses in the Bill. In many continental jurisdictions an investigating magistrate is entitled to arrest people in the course of his investigation, to examine them as witnesses and to collect evidence. Under the Bill, if such a magistrate had signed an arrest warrant he would be able to arrest someone, who might not then be charged for a long time, if at all.
I am also concerned that, under subsections (4) to (6) of clause 63, there is a possibility of a British Minister's extradition being sought by a category 1 country for something that that country might define as a war crime. I shall return to this matter in Committee or on Report, or perhaps the Minister will be able to deal with it when he replies to this debate. In the Pinochet case, a Spanish magistrate issued a warrant for Pinochet's arrest for something that had not happened in Spain or the United Kingdom. In the very special circumstances of that case, he was not extradited. Although few of us had a lot of personal sympathy with General Pinochet, we should not allow that to colour the fact that there could be a very dangerous hole in the law.
Let us take a relevant example that might touch a nerve with the Government. Our bombing of Kosovo was almost certainly illegal under international law. It is impossible to find a serious international lawyer who thinks that it was not. It may have been the right thing to do, but it was certainly illegal. Greece was very sympathetic to the Serbs in that conflict. I would like to be assured that the Bill could not be used in similar circumstances to those of the Pinochet case by, for example, a Greek magistrate bringing a prosecution against a British Minister for their action in connection with the Kosovo conflict, or to prosecute a Minister in the then Conservative Government over their action in the Falklands, as it could be argued that one or two things done there were outside the remit of international law. Ministers are responsible to the House for their actions, and I would like an assurance that that could not happen.
We have seen the consequence of this with the plane spotters, and the provisions could have all sorts of other hypothetical consequences. A British citizen could be investigated on the say-so of an investigating magistrate for a vaguely defined offence that was not an offence in the United Kingdom, with no prima facie case having been established, and no democratic accountability. That person could languish in a foreign jail for a long time without being charged, let alone tried. That is unacceptable, which is why I shall vote against part 1. I do not understand how anyone could vote for it.
I would like to suggest some possible amendments. First, the rule covering dual criminality should be retained in all cases. There should be no distinction between offences in the framework decision and offences outside it.
Dr. Palmer: I would like to ask the hon. Gentleman the same question as I asked the hon. Member for Old
Bexley and Sidcup (Derek Conway). Does he believe that, if someone commits an offence in Britain that is not an offence in his home country, that should be a sufficient defence?
Mr. Maples: Yes, I do, because I want that protection for our citizens. It is our job to protect the liberty of our citizens, and if the price to pay for that is that someone who commits an offence here goes back to Germany, Spain, Greece or wherever and cannot be extradited for that reason, I absolutely accept that. It is unlikely to occur in what we would consider to be very serious cases, such as crimes of violence, armed robbery, murder, or terrorism. It is likely to involve only trivial cases involving dealing in some of the less important kinds of drugs, for example, or photographing military aircraft in Greece. I do not think that the security of our country or the integrity of its criminal justice system will fall because of this issue.
Gareth Thomas : I am intrigued that the hon. Gentleman has referred to possible amendments. To what extent does he envisage that there should be an exact correspondence between these offences in different jurisdictions? Does he also feel that his overriding view in favour of streamlining the present system is consistent with his views on the dual criminality issue?
Mr. Maples: Yes, I do, because I have said that I would be perfectly happy if part 1 required dual criminality for both sets of offences—those in the framework document and those outside it. It is required for those outside it. If it were required for those within it, there would not be a problem. As to whether my amendments are consistent with the obligations to the European Union that we have undertaken, the answer is that I do not know. Clearly some exemptions are consistent, because the Government have already put them into the Bill, including those relating to extraneous considerations, human rights and one or two other things. Those are clearly acceptable. If my proposals are not consistent with those obligations, I hope that it will be the will of the House that the Government should go back and renegotiate, because what they have negotiated is absolutely unacceptable.
I shall continue through my list of possible amendments. If we cannot reintroduce dual criminality for everything, it would be right to adopt the amendment suggested by the Select Committee on Home Affairs, which proposed that a judge should certify that the case would not pass the dual criminality test, and that the Home Secretary should then take the final decision on it. I also agree with the hon. Member for Sunderland, South (Mr. Mullin) and his Committee that we should not lower the standard in this regard from three years to 12 months. I do not know why we have chosen to introduce a lower standard. The framework decision requires a maximum sentence of at least three years, and I cannot think why we have reduced it to 12 months.
The Home Secretary should have wider discretion under clause 193 than he has, and it should relate to questions of national interest, rather than national security. Category 1 offences should be confined not only to European Union countries but to those of whose judicial systems we in the House have specifically
approved. There should be minimum standards, and, under the Bill, a minimum guarantee that, if someone is extradited to another country, they should be charged within a certain time—a few weeks—and tried within a few months. If that does not happen, they should be returned.The Bill is just another example of the long list of freedoms with which the Government have become very careless. These freedoms are long held and hard won, and they are very valuable to the citizens of this country. Our history over the last 500 years has involved the acquisition by individuals of freedoms that used to be held in the power of the state. The Government are reversing that process in the interest of getting a few more convictions. Jury trial is being seriously circumscribed, and the presumption of innocence dramatically reduced in some cases. The burden of proof is being shifted in some cases, the admissibility of previous convictions is now being considered, and the double jeopardy rule is to change. All those provisions are being compromised. They are fundamental principles of our criminal law and of our rights and freedoms as British citizens, and the Government are getting very careless with them.
In some ways, the Extradition Bill represents the worst of all the proposed changes. At least in the other cases a British court and judge would try a person—often with a jury—in their own country and in a language that they understood. If a person is extradited, none of those things will apply. They will probably not understand the language, the law will not be familiar, and it will operate in a system that they do not understand and in which they may not have much confidence. In some ways, therefore, these freedoms are the worst ones to erode.
It seems that just about every Labour Member who has spoken—and who has thought about this—shares some, if not all, of my reservations. I hope, therefore, that there can be cross-party consensus and that we can collectively make the Government think again about this Bill. I want to know how Government supporters who do not vote against the Bill will explain—as I know I could not—to a constituent why their mother, father, son, daughter, husband or wife has been extradited under this procedure, as one of those plane spotters might have been, and is languishing in a foreign jail awaiting trial, as constituents of mine have done in Spanish jails.
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