Mr. Hawkins: That is silly.
Mr. Ainsworth: What else are they trying to do? At present, the judge hears arguments for and against in the time-honoured way that the right hon. Member for West Dorset says is far superior to any other country's judicial system.
However, we have a request from the Opposition—the hon. Gentleman cannot push everything on to the Law Society, for whom he tabled the amendment—that the judge not only listens to the arguments for and against, but gets out of his chair and conducts his own investigations. That is not necessary. It is for the judge to draw his conclusions after having heard the arguments for and against in the good old, time-honoured way of the English and Welsh judicial system. I am sure that something very similar applies north of the border. I am extremely surprised, as are several other people who advise me, that the hon. Gentleman should suggest that the practice should be different.
Mr. Hawkins: I am sure that the Minister enjoyed that little flight of fancy. He knows perfectly well that our amendment begins
''on the evidence before him''.
We do not seek to replace the adversarial system. The words:
''on the evidence before him''
do not mean that we are turning the judge into an investigative magistrate. We are simply saying that the adversarial system should have another protection that in no way replaces it. The Minister can have his moment of fun. We do not seek to press the amendment to a vote, but there is a serious point to make, which my hon. Friend the Member for Stratford-on-Avon and the hon. Member for Torridge and West Devon reinforced, and we hope that the Minister will consider the matter more seriously than he has just done. I have no doubt that the matter will be considered again in another place and on Report. I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 21 ordered to stand part of the Bill.
Clauses 22 to 24 ordered to stand part of the Bill.
Physical or mental condition
Mr. Hawkins: I beg to move amendment No. 35, in
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I want to make it clear that this is a probing amendment. Did the Minister and his advisers at least consider whether protection for the public needed to be introduced into the Bill when considering what the judge's power should be in the case of someone with a physical or mental condition? Let us say that someone appears before a judge, and the decision is taken that, because of their mental condition in particular, they are not fit enough to be extradited. Clearly, someone in that mental state might pose a risk to the public.
The Government have sought to encourage an expansion of the law in relation to mentally disordered people who may pose a risk to the public, and they have received strong support from the Opposition Members. There has been strong support from me, from my right hon. Friend the Member for West Dorset and from the shadow Health Secretary, my hon. Friend the Member for Woodspring (Dr. Fox), about the need for more secure accommodation for mentally disordered offenders. The Government, including the Minister, know that they will always receive great support from us on tougher powers for the courts in respect of those who may be mentally disordered and may pose a risk to the law-abiding public.
I wondered whether there was an opportunity to put in the Bill something along the lines that I suggested. I do not claim that my wording is perfect, but I am interested to hear whether, even if the Minister cannot accept this wording, the hon. Gentleman might be prepared to reconsider the matter and table a Government amendment.
Mr. Ainsworth: The hon. Gentleman said that this was a probing amendment. I do not think that there is any disagreement between us, so I shall do what he asked and place something on the record, so that hon. Members and anyone else following our proceedings can examine whether anything needs to be added to the Bill.
I think that the hon. Gentleman and I agree that there needs to be some way of detaining those who pose a risk to the public because of their mental condition. However, no amendment to the Bill is necessary. A person can be detained for assessment under section 2 of the Mental Health Act 1983 if he meets the conditions in subsection (2): he is suffering from mental disorder of a nature or degree that warrants the detention of the patient in a hospital for assessment, or for assessment followed by medical treatment, for at least a limited period; and he ought to be so detained in the interests of his own health or safety, or with a view to protecting other persons. He cannot be detained for more than 28 days under that provision, but he can be detained indefinitely for treatment under section 3 of the 1983 Act.
I believe that those provisions would be available to the judge at the relevant time, so that he had the power to do what the hon. Gentleman asks.
Mr. Hawkins: I am grateful to the Minister for saying that, but will he consider whether, in normal circumstances, those Mental Health Act powers will be drawn to the judge's attention when he examines an extradition case? Might not it be helpful to say,
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perhaps in a different paragraph (c) from the one in my probing amendment, that the judge must consider his powers under section 2 of the Mental Health Act 1983, so that the court is alerted? When judges consider an extradition case, they inevitably consider legislation that affects extradition. Will the Minister consider referring in the Bill to those powers, which I accept exist? That might be helpful.
Mr. Ainsworth: It is impossible to refuse to consider a request that is couched in such reasonable terms. However, in agreeing to consider the hon. Gentleman's suggestion, I should point out that we cannot, in each piece of legislation, call to every judge's attention all the issues that they should consider. That is why the judiciary is obliged to make such judgments. I shall consider whether there is something particular or peculiar about extradition arrangements that warrants the powers being brought to the attention of a judge, although that would not be the normal procedure in dealing with other accused persons.
Mr. Hawkins: I am grateful to the Minister. In his usual reasonable fashion he has said that he will reconsider the matter. Although it would sometimes be entirely inappropriate to refer to another Act, that seems appropriate when there are cross-references to other legislation. The clause is entitled ''Physical or mental condition'', and it refers to the judge's powers. There should be a provision in the Bill to remind the judge when he is considering extradition that he has that power and that it is not simply a question of extradite or discharge if there may be a risk to the public. Our concern is to protect the public. However, I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 25 ordered to stand part of the Bill.
Clause 26 ordered to stand part of the Bill.
Court's powers on appeal under section 26
Mr. Hawkins: I beg to move amendment No. 166, in
The Chairman: With this it will be convenient to discuss the following:
Amendment No. 167, in
Mr. Hawkins: The amendments would insert a specific reference to habeas corpus. There are many important issues in the Bill, and some of them will come up towards the end of part 1. I therefore do not want to detain the Committee too long in making the case for these amendments today. However, I would not want my brevity to imply that we do not take the matter seriously. We feel strongly, as do many other organisations from Liberty and Justice to the Freedom Association, that there should be some reference in the Bill to the historic right of habeas corpus, which
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British citizens have had for hundreds of years. That is vital. We do not argue that our wording is absolutely perfect. I should pay tribute to the Clerk of the Committee who has helped me considerably with the drafting. As always, the Clerks of the House are helpful to all of us, particularly Opposition spokesmen.
I wanted to alert the Committee to the crucial significance of habeas corpus. We think that this is one of the most appropriate places to put a reference to it in the Bill. We will listen to the Minister with interest. I hope that even if he cannot accept the amendment today, he will recognise that a great deal of time in the other place or perhaps on Report may be taken up with much longer debates on habeas corpus. We feel absolutely passionately about not losing the historic freedoms and rights of British citizens to civil liberty. There is none more important than habeas corpus.
Mr. Ainsworth: The hon. Gentleman must be in a really good mood this morning. I do not know what happened to him earlier, but he has certainly toned down his allegations about habeas corpus. His only demand now is that it should be in the Bill, whereas previously he said that the Bill in effect removes it. It is a move in the right direction that he is not making that allegation today. I certainly hope that he will not make it again, because there is no justification for it. It is simply wrong. The common law right of habeas corpus goes back many centuries, and there is nothing in the Bill that affects it.
If the amendment were adopted the courts could allow an appeal if they decided that the principle of habeas corpus had not been applied properly at first instance. The principle of habeas corpus is well known. It is a cherished part of English law. Indeed, many see it as a defining principle. The amendments are unnecessary and misguided. It is always open to a fugitive to raise habeas corpus issues. At every stage, the district judge is required to consider whether remanding in custody or granting bail is appropriate, and to ensure that custody issues are properly taken into account. The Bill makes it clear that the designated authority must be satisfied that the requesting authority is legitimate. After arrest, the suspect must be brought before a judge as soon as practicable, and the judge must establish that the person appearing in front of him is the person named on the warrant. If he is not satisfied, the person must be released.
The hon. Gentleman has put around the idea that the Bill in some way seriously damages habeas corpus, so I want to put on record the statements of the Joint Committee on Human Rights. In its report on the draft Bill, it concluded that
''the provision for hearings before the district judge would be likely to be held to satisfy the right to take proceedings to test the lawfulness of the detention''.
It also noted:
''Judicial review and habeas corpus are important safeguards for human rights, although ECHR Article 5 and the Human Rights Act 1998 now give even stronger . . . protection.''
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It is clear that the Joint Committee on Human Rights believes that the Bill in no way detracts from the ancient common law right of habeas corpus. There is no need for amendment No. 166.