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Mr. Hawkins: Once again, the Government have responded to a defeat that was inflicted on them in another place by my noble Friends, those of the hon. Member for Orkney and Shetland (Mr. Carmichael) and one or two Cross Benchers. I agree with the hon.
Member for Orkney and Shetland that given that the Bill is pretty much a year old—we debated it in Committee as long ago as January—it is a great shame that we finally have these last-minute concessions only because the Government were worried about fighting on too many fronts in the last few days of the Session and did not want a kind of ping-pong between the two Houses on several Bills at once. Nevertheless, the concessions are of course welcome.We defeated the Government on these matters in another place on 27 October—the debate starts at column 32 of that day's Hansard. We were seeking to provide further vital protection for UK citizens who may face extradition to countries with legal procedures that are very different from our own. We debated that at length in Committee back in January. Many organisations on both sides of politics—whether Liberty and Justice on one side, or the Freedom Association and the Democracy Movement on the other—expressed great concern about the provisions on the European arrest warrant. Organisations such as Fair Trials Abroad pointed out that because procedures in other countries are so different, the Bill needs to provide extra protection, especially in cases involving extradition for the purposes of retrial after conviction in absentia. As recently as yesterday, my noble Friends Baroness Anelay of St. Johns, Lord Lamont of Lerwick and Lord Pearson of Rannoch and Baroness Carnegy, among others, expressed concern about legal procedures in countries such as Italy. My hon. Friend the Member for Stratford-on-Avon (Mr. Maples), who had hoped to speak in this debate but sadly cannot be with us because of other parliamentary commitments, has done likewise in respect of other countries, including Spain and France. I am very pleased that the Government have agreed, albeit at the last minute, to deal with that.
The Minister has now finally agreed that there must be a right to legal aid and to recall and cross-examine witnesses. A great deal of discussion took place yesterday and on 27 October about the examples cited by organisations such as Fair Trials Abroad to the effect that legal aid, as we understand it, is sometimes unavailable even in major European countries such as Spain, Portugal and France. My noble Friend Lord Lamont, in particular, referred to that.
The Government have made it clear that all UK citizens who are extradited must have the benefit of their rights under the European convention on human rights. We understand their wish, as reflected in their amendments, not to create any loophole that might enable someone to escape a deserved extradition simply by not being present in court. That was the basis of the discussions between the Minister's noble Friend Baroness Scotland and my noble Friend Baroness Anelay on Tuesday afternoon. Our intention, as the Government recognise, was to avoid an overseas country being able to hold an improper retrial, or trial in absentia, of a UK citizen.
We are glad that the Government have accepted with good grace the defeat that we inflicted on them in another place, and we are reasonably content with their compromise version of our amendment. We wish, however, that it had not been necessary to keep pressing them—on three or four occasions, as the hon. Member
for Orkney and Shetland said. In all the previous debates, we were told that they had no plans whatsoever to give way; only at the very last minute, faced with the danger of ping-pong between the two Houses at the end of the Session, do we get some common sense. It would surely be better had the Government conceded this vital point at a much earlier stage, as they could have done.
Mr. Carmichael: The hon. Member for Surrey Heath (Mr. Hawkins) made repeated reference to his noble Friend Lord Lamont of Lerwick. I may represent one of the smaller constituencies, but we in the northern isles punch above our weight in terms of our contribution to proceedings in both Houses.
The Minister said that in absentia trials are relatively uncommon in this country. Indeed, they are extremely rare. I can think of only a small range of very minor offences, such as those under the vehicle excise duties legislation, where trials can be held in the absence of the accused. The situation is very different in other continental jurisdictions—in France, for example, one can be tried in absentia on a charge of murder. This is an important protection, and I am delighted that, albeit at this late stage in the proceedings, the Government have been persuaded of the merits of the arguments that were put to them in Committee and in the other place.
The availability of state-funded legal assistance is important. The hon. Member for Surrey Heath speaks with justifiable pride of the practice in United Kingdom jurisdictions in that regard. Although I understand that that is a 20th-century phenomenon south of the border, the Minister may know that an Act of the Scots Parliament some time in the 15th century first provided for that north of the border. I am therefore delighted that those south of the border have been able to catch up with us over time.
The right to be present at a retrial or review and to cross-examine witnesses is also important. I commend parliamentary draftsmen and counsel for their elegant re-expression of the provision, and the Minister for reintroducing the amendment in a way that does not significantly disturb the sense of the Lords amendment. Liberal Democrat Members have no difficulty with the amendments in lieu.
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Caroline Flint: Again, I thank hon. Members for supporting the Government amendment. It is designed to deal with those who commit crimes while ensuring that they have the protection that they deserve.
Government amendment (a) in lieu of Lords amendment No. 26 agreed to.
After Clause 21
Lords amendment: No. 27—a new clause.
Caroline Flint: I beg to move, That this House disagrees with the Lords in the said amendment.
I invite hon. Members to agree to remove the new clause, which was inserted on Report in the Lords. It is unnecessary and inappropriate, as I shall endeavour to explain. Extradition is a classic balancing act, involving the rights of the person whose extradition is sought on
the one hand, and the need for society to ensure that those accused of serious crimes are swiftly brought to justice on the other.The Government believe that the Bill strikes the right balance between the rights of the fugitive and the interests of justice. We have built several important safeguards into the extradition process. Many are the same as those in existing extradition legislation but the most important of them are new.
To ensure that the requested person's human rights are fully considered and safeguarded, we have included specific bars to extradition on the ground of human rights in part 1 and part 2—clauses 21 and 86 in the copy of the Bill that we are examining today. Those clauses are unambiguous. They provide that a judge must refuse to extradite a person if the extradition would be incompatible with the fugitive's convention rights under the Human Rights Act 1998. If extradition would breach the fugitive's rights under the European convention on human rights, it must not and cannot take place.
Not only does that protect against infringing individual rights in this country, but ECHR case law has clearly established that those obligations extend to the fugitive's likely fate if he is extradited. If there is a significant risk that his rights under ECHR will be breached when he is returned to the requesting state, we cannot extradite. That is important, and it might help hon. Members if I gave an example.
The key case is that of Soering. In its judgment in that case, the European Court of Human Rights stated:
- "It would hardly be compatible with the underlying values of the convention, were a contracting party knowingly to surrender a fugitive to another State where there were substantial grounds for believing that he would be in danger of being subjected to torture, inhuman or degrading treatment or punishment, however heinous the crime allegedly committed. Extradition in such circumstances would be plainly contrary to the spirit and intent of Article 3."
- "The decision by a Contracting State to extradite a fugitive may give rise to an issue under article 3 and hence engage the responsibility of that State under the convention, where substantial grounds have been shown for believing that the person concerned, if extradited, faces a real risk of being subjected to torture or to inhuman or degrading treatment or punishment in the requesting country."
Not only do our procedures have to comply with ECHR, but we could not extradite where there was a significant risk that the procedures in the requesting state would result in a breach of the fugitive's convention rights. We should be in no doubt that fugitives and their lawyers will not be slow to use the provisions and take every opportunity to argue that ECHR protection means that extradition should not take place.
That brings me neatly to the amendment that was made in another place. It inserted a new clause that contains four subsections, with which I should like to deal. The first subsection requires the district judge to have particular regard to article 6.3 of the ECHR. As I am sure hon. Members know, article 6.3 guarantees the
right to a fair trial and refers to minimum rights, including the rights to mount a defence, to have publicly funded defence lawyers, to call and cross-examine witnesses and to have an interpreter if necessary. Although those rights are important, I do not understand why the article needs to be singled out.As I said, those who represent fugitives will doubtless try to argue that extradition should be barred on the ground of the ECHR. In many cases, their submissions will be built around likely breaches of article 6.3. However, there will be times when it could be argued that extradition would lead to breaches of articles 2, 3, 4, 5 or 6.2, to name a few. A breach of any would be serious, and the district judge would need to give all such arguments serious consideration. I do not understand why we should draw attention to one specific article, almost suggesting that breaches of other articles are a lesser matter. I am sure that those who devised the amendment did not intend that, but we should avoid that inadvertent effect. We should trust our judges to consider all possible ECHR breaches carefully.
Subsection (2) of the new clause would enable the judge to accept a written assurance from the requesting state that the person's rights under article 6.3 will be properly observed if he is extradited. Apart from the general point that we should not single out article 6.3, the provision is unnecessary because the Bill already covers its substance. As the measure is currently drafted, it is open to the fugitive and the requesting state to make representations to the district judge on the ECHR question, to advance arguments and to present evidence—written or otherwise.
In accordance with normal practice, the district judge will weigh up the evidence and arguments and reach a decision, which can be subject to appeal. In the course of that, it is open to the requesting state to submit evidence to the judge—in writing if it wants—about its procedures or any other matter in an attempt to demonstrate that the person will receive a fair, ECHR-compliant trial. The judge will decide how much weight to attach to such assurances. I cannot understand what subsection (2) of the new clause would add, given that the requesting state can already give written assurances.
Subsection (3) would require the Secretary of State to monitor proceedings once the person had been returned. A moment's thought would demonstrate that that was not practical. Apart from practical difficulties and the costs, on what basis would the monitoring be carried out? How would the monitors decide whether rights under ECHR had been upheld? I fail to understand how the provision would be workable.
The amendment ignores the fact that the UK has had extradition relations with a variety of countries throughout the world for more than 100 years. We conduct a large proportion of our total extradition traffic with EU member states and we have not previously believed it necessary for the Secretary of State to monitor their internal systems. If the position in countries to which we already extradite were as bad as the amendment implies we would have stopped extraditing to them many years ago. Furthermore, for the UK unilaterally and directly to monitor other EU member states' judicial systems, whether generally or specifically in extradition cases, would be a flagrant abuse of their sovereignty.
I am sure that the House will appreciate that the UK would take great exception to other countries taking such drastically intrusive measures in respect of our procedures in this country. How would we feel if every time we got someone back from another country, they were accompanied by an official representative of that country checking on whether our criminal justice procedures were fully up to scratch?
Subsection (4) would require the Secretary of State to bring any deficiencies that the monitoring process highlighted to the district judge when he considered fresh requests from that country. I doubt whether that will be necessary, as a fugitive will not hesitate to bring any human rights breaches to the attention of the judge, especially when the circumstances are similar. If a person is wanted by country x, the fugitive will be quick, if it helps his cause, to point out what happened to the last person who went from Britain to that country.
There are deeper objections to the final part of the new clause. Requiring the Secretary of State to intervene in any subsequent cases involving requests from a particular country would effectively make the Secretary of State a party in an extradition case, and could have serious diplomatic ramifications if the requesting state took exception to his intervention.
While it is true that the Secretary of State is currently involved in extradition cases, and will remain involved in part 2 cases, he very deliberately acts in a quasi-judicial fashion. Asking him to intervene to comment on the quality of another country's criminal justice system is a very different matter. On the other hand, if the Secretary of State did not become involved in a particular case, the fugitive could seek judicial review of the Secretary of State's decision not to intervene in his case. Of course, we would expect the vast majority of such attempts to fail, but we would nevertheless be bringing in another avenue of challenge and delay of exactly the sort which plagues our present system and which we are trying to avoid.
It is already the job of the judge at the extradition hearing to determine under the human rights bar whether extradition poses a threat to the fugitive's convention rights. If there is a significant risk of article 6.3—or indeed any of the other convention rights—being breached in the requesting state, the bar to extradition will apply. The person will not be extradited. That could not be clearer and, indeed, the Bill has been given a clean bill of health in this regard by the Joint Committee on Human Rights.
Ultimately, we have to decide whether we trust our extradition partners. We have had that trust in other European countries for more than 100 years. If we trust them, we should be prepared to extradite to them without putting in place a complicated monitoring system as envisaged by the new clause. In the light of all that, I see no need for the new clause. I apologise for having spoken at some length, but these are important issues and I wanted to take the opportunity to explain the difficulties that we have with each part of the new clause. I hope that the House will see fit to remove it and send the Bill back to another place on that basis.
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