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25 Mar 2003 : Column 183—continued
Mr. Burnett: All that I said is that the issue needs to be looked at again more thoroughly, and that it will be scrutinised in the other place.
Mr. Ainsworth: If the hon. Gentleman supports me, I will accept his support, but I am not sure that that is the situation.
I turn to the reason why we intended to include the term "judicial authority" from the start, other than the existing transitional problem. As I have said, all the warrants currently on the Schengen information system were originally backed by a domestic warrant, which was cleared by a judicial authority. In order to give the
concession requested, and to make the permanent situation as clear as the hon. Member for Surrey Heath wants it to be, we need that transitional arrangement—unless we are to refuse to extradite where existing warrants apply, or to provide people with an opportunity to question their validity, despite their being backed initially by judicial decisions.2.15 pm
I thank my hon. Friends for their support on these issues, and I thank Members of both Opposition parties for their general tone, and for their welcome for the concessions that have been made. I am not surprised that I have been unable entirely to satisfy them, given some of the views that have been expressed. Those views were exposed by my hon. Friends in discussing amendment No. 18, for example. I ask the House to support the Government's amendments, and to reject those moved by the Opposition parties.
Clause read a Second time, and added to the Bill.
New Clause 11
Passage of Time
- 'A person's extradition to a category 1 territory is barred by reason of the passage of time if (and only if) it appears that it would be unjust or oppressive to extradite him by reason of the passage of time since he is alleged to have committed the extradition offence or since he is alleged to have become unlawfully at large (as the case may be).'.—[Mr. Bob Ainsworth.]
Mr. Bob Ainsworth: I beg to move, That the clause be read a Second time.
Mr. Deputy Speaker (Sir Michael Lord) : With this it will be convenient to discuss the following:
New clause 5—Unconscionable delay—
'(1) This section applies if the Secretary of State believes that the conditions in subsections (2) and (3) are satisfied in relation to a person.
(2) The first condition is that the person's extradition is sought or will be sought under Part 1 or Part 2 in respect of an offence.
(3) The second condition is that there has been unconscionable delay between the time when the offence for which extradition is sought was committed and the extradition request.
(4) The Secretary of State may certify that the conditions in subsections (2) and (3) are satisfied in relation to the person.
(5) If the Secretary of State issues a certificate under subsection (4) he may—
(a) direct that a Part 1 warrant issued in respect of the person and in respect of the offence is not to be proceeded with, or
(b) direct that a request for the person's extradition in respect of the offence is not to be proceeded with.
(6) If the Secretary of State issues a certificate under subsection (4) he may order the person's discharge (instead of or in addition to giving a direction under subsection (5)).
(7) These rules apply if the Secretary of State gives a direction under subsection (5)(a) in respect of a warrant—
(a) if the designated authority has not issued a certificate under section 2 in respect of the warrant it must not do so;
(c) if the person is brought before the appropriate judge under section 4 or 6 the judge is no longer required to proceed or continue proceeding under sections 7 and 8;
(d) if the extradition hearing has begun the judge is no longer required to proceed or continue proceeding under sections 10 to 25;
(e) if the person has consented to his extradition, the judge is no longer required to order his extradition;
(f) if an appeal to the High Court or House of Lords has been brought, the court is no longer required to hear or continue hearing the appeal;
(g) if the person's extradition has been ordered there is no requirement for him to be extradited.
(8) These rules apply if the Secretary of State gives a direction under subsection (5)(b) in respect of a request—
(a) if he has not issued a certificate under section 69 in respect of the request he is no longer required to do so;
(b) if the person is arrested under a warrant issued under section 70 or under a provisional warrant there is no requirement for him to appear or be brought before the appropriate judge and he must be discharged;
(c) if the person appears or is brought before the appropriate judge the judge is no longer required to proceed or continue proceeding under sections 71, 73, 74 and 75;
(d) if the extradition hearing has begun the judge is no longer required to proceed or continue proceeding under sections 77 to 88;
(e) if the person has given his consent to his extradition to the appropriate judge, the judge is no longer required to send the case to the Secretary of State for his decision whether the person is to be extradited;
(f) if an appeal to the High Court or House of Lords has been brought, the court is no longer required to hear or continue hearing the appeal;
(g) if the person's extradition has been ordered there is no requirement for him to be extradited.
(9) These must be made under the hand of the Secretary of State—
(a) a certificate under subsection (4);
(b) a direction under subsection (5);
(c) an order under subsection (6).
(10) The preceding provisions of this section apply to Scotland with these modifications—
(a) in subsection (8)(a) for "he has" substitute "the Scottish Ministers have" and for "he is" substitute "they are";
(b) in subsection (8)(e) for "Secretary of State for his" substitute "Scottish Ministers for their".
(11) In subsection (2) the reference to an enactment includes an enactment comprised in or in an instrument made under, an Act of the Scottish Parliament'.
'A person's extradition to a category 1 territory is barred by reason of the passage of time if it appears it would be unjust or oppressive or not proportional in all the circumstances to extradite him by reason of the passage of time since he is alleged to have committed the extradition offence or since he is alleged to have become unlawfully at large (as the case may be).'.
New clause 9—Referral of Part 1 warrant to Secretary of State—
'.(1) Where a Part 1 warrant has been issued in connection with conduct which would not constitute an offence under the law of the relevant part of the United Kingdom, that warrant must be
(2) The Secretary of State must make an annual report to both Houses of Parliament on the cases in which he has exercised his discretion as set out in subsection (1) above and the reasons for the exercise of his discretion in each case.'.
New clause 19—Injustice and oppression—
'.—A person's extradition to a category 2 territory is barred if it appears that because the accusation against him is not made in good faith in the interests of justice it would, having regard to all the circumstances, be unjust or oppressive to return him.'.
Amendment No. 23, in page 6, line 19 [Clause 11], at end insert—
'( ) passage of time;'.
Government amendments Nos. 47, 49, 51 and 52.
Amendment No. 5, in page 30, line 38 [Clause 63], leave out
- '12 months'
- '3 years'.
';—
(e) injustice and oppression'.
Mr. Ainsworth: This list of amendments is not quite so extensive, but there are still some issues to deal with, and I shall take the least controversial first. Government amendments Nos. 49, 51, 52 and 74 relate to the speciality waiver and further extradition to a category 1 territory. Under the Bill as drafted, the UK was able to adopt a higher position on speciality, which means that we could agree on a reciprocal basis with a part 1 extradition partner that they, and we, can, after extradition, presume our consent to the person being prosecuted for offences committed before extradition took place. However, grave concerns were expressed about this issue, and we listened to the worries expressed by members of the Standing Committee, and of the Home Affairs Committee. We have therefore decided that the reference to the use of the higher position on speciality and re-extradition should be removed from the Bill, and these amendments achieve that aim.
Government amendment No. 47 is a purely technical amendment. It takes account of the possibility that such conduct might not constitute a criminal offence in the UK. In such circumstances, the district judge is required to apply the test of assuming that the conduct is contrary to UK law, and of then establishing whether the rule of double jeopardy prevents extradition.
I turn to perhaps meatier issues: the passage of time bar to extradition, Government new clause 11 and Government amendment No. 45, and new clause 8 and its consequential amendment. The Government amendments duplicate the bar to extradition already contained in part 2 of the Bill. We made that change in the light of concerns expressed during consultation on the draft Bill, and in Standing Committee. Where extradition would be unjust or oppressive, as a result of the amount of time that has elapsed, it would in any case
be prevented under the Bill's provisions on human rights. However, we have listened to the arguments and see no harm in giving the judge the explicit direction to consider the question of the passage of time. I hope that Opposition Members will be happy to accept the proposed change.New clause 5 would give the Secretary of State the power to intervene in any case where there had been an unconscionable delay. I am not quite sure what Opposition Members believe the Secretary of State could bring to resolving such an issue, or how he could make a decision on unconscionable delay that contradicted the district judge. That judge's decisions are already subject to appeal to the High Court and, on points of law, to the House of Lords, so why add the Secretary of State to the process? That would open up the avenue for the legal challenge and judicial review, which would delay the proceedings. I hope that Opposition Members will accept that that the new clause is unnecessary, especially when we are including in the Bill the requirement for the district judge to consider the passage of time directly.
On new clause 9, the Opposition present us with an opportunity to say that, if the crime for which the person is requested is not an offence in the UK, the Secretary of State should decide whether that extradition would be proper. I am not sure exactly what that means. A warrant would be issued by a body that we recognise—and have recognised for some time—for extradition purposes, and certified by our central authority, the National Criminal Intelligence Service, for an offence committed in a requesting state that is punishable in that state by at least the threshold amount. The Home Secretary, we are told, should decide whether that is proper. I look forward to hearing Opposition Members explain how the Secretary of State should go about deciding whether the decisions taken by the judicial authority of one of our European partners are proper.
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