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Mr. Ainsworth: That may be helpful. The hon. Gentleman says that the judge must be satisfied so that he is sure. If it is acceptable to hon. Members, we will leave it at that. I will try to consider the matter and to ensure that hon. Members are satisfied that an appropriate identification is required and that there is no risk that the wrong people will be shipped off to foreign jurisdictions. I shall reflect on that and may come back to the Committee.
Mr. Burnett: I am grateful. The fact that the Minister is prepared to debate in this way is a great credit to him. To sum up our short debate on amendment No. 132, the fact that identity is practically never an issue, as he said at the start, is immaterial. It may be a matter of doubt, and where it is, it falls on a person to make the case to prove something beyond all reasonable doubt. I am glad that
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the Minister recognises that. Having heard what he said, I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Question proposed, That the clause stand part of the Bill.
Mr. Carmichael: I seek clarification on a couple of points relating to remaining provisions in clause 7. First, with regard to subsection (6)(b), why is there no requirement for corroboration, which is fundamental to a summary prosecution under Scots law? I see no reason why the requirement for corroboration should be removed for these the proceedings.
Secondly, subsections (8) and (9) are rather inelegantly drafted. Surely it would be preferable to give the judge discretion on the question of bail in the first instance. The Committee will see that if the judge exercises his power to adjourn proceedings, he must remand the person in custody or on bail—[Interruption.] I am sorry; I had misread that. I withdraw that remark.
However, it would be useful if there were greater clarification of the circumstances in which bail might be considered under subsection (9).
Mr. Ainsworth: It is utterly outrageous that the hon. Gentleman should accuse me of inelegance. I have never been accused of that before.
I hope that subsection (9) is clear: it gives the judge discretion. If he decides to remand a person in custody he can return to that decision and change his mind. As to the hon. Gentleman's point about corroboration in subsection (6)(b), unless something pops into my mind in the next few seconds, I do not have the faintest idea of an answer. I will check it out and come back to him if it is important. I do not know what he is talking about, to be sure.
Question put and agreed to.
Clause 7 ordered to stand part of the Bill.
Clause 8
Remand etc.
Mr. Hawkins: I beg to move amendment No. 28, in
The Chairman: With this we may take the following amendments:
No. 29, in
clause 8, page 4, line 26, leave out subsection (3).
No. 119, in
No. 52, in
clause 44, page 21, line 7, at end insert 'as long as he has received independent legal advice prior to indicating his consent'.
No. 54, in
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clause 44, page 21, line 14, at end insert 'only after having received independent legal advice'.
No. 146, in
clause 44, page 21, line 16, at end add—
'(5) The judge before whom consent is given must be satisfied that—
(a) the person before him has been informed of his right to free legal advice and has understood that information, and
(b) that access to such legal advice was made available to him.'.
No. 157, in
No. 158, in
clause 73, page 37, line 42, leave out subsection (7).
No. 162, in
clause 123, page 61, line 13, leave out 'irrevocable' and insert 'only valid after the person has had an opportunity to receive independent legal advice, and can be revoked at any time until extradition takes place'.
Mr. Hawkins: Amendments Nos. 28 and 29 would ensure that the Bill guarantees that the person who is the subject of the new powers can receive independent legal advice. The amendments would also delete the inappropriate provisions about consent, which is taken far too readily. Amendment No. 119, tabled by the Liberal Democrats, would have a not dissimilar effect. It states that
''consent must be given before the judge who must satisfy himself that the suspect has had the opportunity of receiving independent legal advice and had opportunity to consider that advice.''
That, too, is the preferred wording of Justice. If I had had the advantage of seeing that before drafting amendment No. 28, I might have gone along with it. No doubt the hon. Members for Torridge and West Devon and for Orkney and Shetland will confirm that amendment No. 119 takes a similar direction to amendment No. 28. Each of us is trying to ensure that a suspect has independent legal advice before giving or withholding consent to extradition.
In an earlier debate, the Minister said that about 30 per cent. of people currently extradited consent to it. In discussing these new, much more wide-ranging powers, it is important that we ensure that independent legal advice is available to a person before he or she gives or withholds consent to extradition. The Liberal Democrats' amendment No. 133 goes further and would provide for free legal advice. We have not gone as far as that; we believe it more important that legal advice be independent than that it be free. No doubt the Liberal Democrats will seek to justify their proposals in their own way. However, we are all moving in a similar direction; a necessary pre-condition before someone gives consent to being extradited and deported to another country is that they should have the benefit of independent legal advice. The other amendments in the group are consequential.
Mr. Carmichael: I shall speak briefly to amendment No. 119. The position is straightforward: in practice, independent and free legal advice will be given by the duty solicitor under the legal aid scheme. As my hon. Friend the Member for Torridge and West Devon
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said, that will be dealt with in a later amendment. The point has been made that the proceedings are akin to summary proceedings; a person appealing from custody or summary proceedings is always entitled to the services of the duty solicitor under the legal aid scheme and I see no reason why the Government should object to it in this case.
Mr. Ainsworth: Every person arrested in an extradition case has the same entitlements as those arrested for purely domestic cases to independent legal advice. The duty solicitor scheme is designed to ensure that such advice is available before the first court appearance. In extradition cases, legal aid is available before the fugitive has the opportunity to consent to extradition. As an added safeguard, the district judge is required to explain to the fugitive the effect of consenting to his extradition and the fact that consent, once given, cannot be rescinded.
It is unprecedented to require a judge to check on the nature of the legal advice that a person before him has received. The Opposition amendments would require that the judge be satisfied that the fugitive has actually received that advice. Unintentionally, the amendments would make it impossible to conclude an extradition case in which a defendant refused to speak or to take the legal advice of a lawyer. Unless the judge is satisfied that the person has received legal advice, he could not proceed under clause 8, and the whole extradition process would grind to a halt.
Mr. Carmichael: Under amendment No. 119, the judge has to satisfy himself only
''that the suspect has had the opportunity of receiving independent legal advice and had opportunity to consider that advice.''
If the accused person refused to avail himself of that advice, it would not be a barrier.
Mr. Hawkins: Before the Minister responds, I want to make it clear that I tabled my amendments before I saw the wording recommended by Justice. Had I seen that wording, I might well have adopted it. I hope that the Minister will view the amendments in that light and not get hung up about the way the different Opposition amendments are worded. I agree entirely with the hon. Member for Orkney and Shetland.
Mr. Ainsworth: Hon. Members know that the opportunity must be afforded for a fugitive to have legal advice. For extradition fugitives, legal aid also has to be afforded. That is a requirement, so I do not really see the hon. Gentleman's point.
Mr. Carmichael: I am focusing on the practicalities. If we are talking about Edinburgh sheriff court on a Monday morning, the services of the duty legal aid solicitors are pretty thinly spread and it is by no means unusual for cases to be called before the accused have had the opportunity of speaking to a solicitor. Many people may not be familiar with court proceedings in this country or with the language. They may not expect the right to free and independent legal advice before a court hearing. It is surely an important and necessary safeguard to place a burden on the judge to ensure that all the appropriate proceedings have been gone through before the case is dealt with.
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Mr. Ainsworth: As a matter of principle, no one in this Committee wants anyone to find themselves in front of a district judge faced with extradition to another country without having had the opportunity of receiving legal advice. I am more than happy to assure the hon. Gentleman that I shall re-examine the provisions to make absolutely sure that that cannot happen. I hope that that will satisfy Opposition Members at least about some of the amendments.
Amendment No. 162 would introduce the additional notion that consent can be revoked at any point. We know that fugitives actively try to manipulate the extradition system and this would give them a wonderful opportunity to achieve maximum disruption. A fugitive may have given consent in front of a judge, but just when he is about to be put on a plane, he could change his mind and go back through it all again. As the amendment is currently worded, a fugitive could do so again and again. That might be wonderful for taxi services between here and the Heathrow or City airports, but it would not do much for our ability to extradite criminals under the European arrest warrant scheme. I ask hon. Members to think again about amendment No. 162.
I will check to ensure that individuals standing before a judge cannot face the danger of consenting to their extradition without having had the opportunity to receive legal advice, which would be pretty rough.
4.30 pm
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