Mr. Hawkins: I was perhaps wrong to be so brief and moderate, because I urged the Minister not to take my brevity as a sign that what we were saying lacked significance. He did not respond in the spirit of my comments, and I do not resile from anything that I said earlier.
Although the debate has been brief, it has been useful because it has enabled the Minister to put on record the Government's beliefs about habeas corpus. However, he will find that in another place people are not so happy to accept his blandishments, and I have no doubt that the matter will take a great deal of further time and debate. We have got the Minister to put his beliefs on record, so that under the Pepper v. Hart rule they can be taken into consideration by future courts, and we will see whether his comments are borne out in later debates.
I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 27 ordered to stand part of the Bill.
Clause 28 ordered to stand part of the Bill.
Court's powers on appeal under section 28
Mr. Hawkins: I beg to move amendment No. 115, in
I can be brief. We felt that it would be helpful to add an exceptional circumstances provision. At the moment, subsection (3) simply says:
''The conditions are that—
(a) the judge ought to have decided the relevant question differently;
(b) if he had decided the question in the way he ought to have done, he would not have been required to order the person's discharge.''
The amendment would add:
''(c) and the circumstances of the case are exceptional.''
The amendment goes in a slightly different direction from some of our other amendments, and in some ways it could be seen as a toughening-up measure. We are simply probing at this stage, and it will be interesting to hear the Minister's comments. Once again we are not saying that our wording is absolutely perfect; we are just interested to test whether the Minister feels that it would be helpful to add the phrase.
Mr. Ainsworth: If we accepted the amendment, there would be some dangers and unintended consequences, which the hon. Gentleman admitted in principle. He said that the amendment was about toughening up the Bill, but it would change the powers of the court on appeals by the requesting state against the decision to discharge a fugitive. I do not think that it toughens up the Bill, as he suggests. It would provide
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that such an appeal could be successful only if the circumstances of the case were exceptional.
In practice, all those cases might be exceptional, but who will decide whether that is so? Such a stipulation would open up a whole new area of legal argument and potential delay. Moreover, imagine the circumstances in which a court decided that, on balance at appeal, the requesting state's request should be upheld, but also concluded that there was nothing exceptional about the case. Despite the fact that the court believed that the appeal should be upheld and that the person should be extradited, it would be unable to extradite that person because there were no exceptional circumstances.
The Court of Appeal has the powers that it needs to hear appeals from the defendant and from the requesting state, and to decide whether the right decision has been taken. The amendment would not add anything to the Bill, but would introduce a real complication.
Mr. Hawkins: In the light of what the Minister said, I do not seek to press the amendment. I wished to probe the matter, because I believed that it might be helpful to include provision for exceptional circumstances. The Minister has set out reasons why such a provision might have unintended consequences, and I accept those reasons. I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 29 ordered to stand part of the Bill.
Clauses 30 to 38 ordered to stand part of the Bill.
Position where asylum claimed
Mr. Hawkins: I beg to move amendment No. 49, in
clause 39, page 18, line 18, leave out 'must not' and insert 'may'.
The Chairman: With this it will be convenient to discuss the following:
Amendment No. 142, in
clause 39, page 18, line 39, leave out paragraphs (9) and (10).
Mr. Hawkins: Our amendment No. 49 is quite small, and the Liberal Democrat amendment No. 142 is grouped with it. Our amendment would replace the words ''must not'' with the word ''may''. Although it is a small amendment, it has a significance well beyond the small changes to the wording, as often happens in the law.
We suggest that the legislation, rather than stating,
''The person must not be extradited in pursuance of the warrant before the asylum claim is finally determined.''
should say ''may be extradited.'' That reverses the power of the courts.
I shall wait to hear what the Minister says about that, but I believe that it is a potential toughening up of the legislation. There is great concern in the United Kingdom that people can find legal loopholes by which they can stay in the country, when they should not be able to stay. We have repeatedly said that the Bill gives the Government powers that are too draconian, but we believe that, in this instance, there
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should be the opportunity to give the Government greater powers. We do not say that the wording of our amendment is perfect, and we will be interested to hear what the Minister has to say about the matter.
Mr. Burnett: I shall speak to amendment No. 142, which is in my name and that of my hon. Friend the Member for Orkney and Shetland (Mr. Carmichael). It would delete subsections (9) and (10).
Clause 39 relates to the interaction of asylum and extradition. As drafted, the clause, particularly subsection (9), removes all protection and the possibility of appeal when an asylum claim is rejected by the Secretary of State and certified as clearly unfounded. The certification procedures under the asylum legislation should not apply when the individual is subject to an extradition request. There is a danger of extradition being used to enable a state to persecute its own nationals. We must be particularly sensitive in these matters, and let the asylum and extradition procedures stand on their own merits. They should not be coupled together, as that could cause a serious failure of justice and give rise to events that all members of the Committee would find deeply abhorrent and thus deprecate.
Mr. Ainsworth: The amendments relate to the complex provisions of the Bill that deal with situations in which extradition and asylum meet. It is not a simple subject; strong and basic principles are involved.
Amendment No. 49 would add uncertainty to an already complex clause. It appears to breach the fundamental principles of an individual's rights. Amendment No. 142, on the other hand, would completely reverse our efforts to ensure that the asylum process should not, and cannot, be misused to introduce unnecessary delay to the extradition process.
The clause as drafted provides that no person who has claimed asylum shall be extradited until a decision has been reached on that claim. Amendment No. 49 would wipe out the basic right to seek refuge, and would mean that a person would be extradited regardless, before his asylum claim had been determined.
We are well aware that the asylum system can be abused, and we know that it has been used as a means to delay and frustrate the extradition process. We therefore included provisions to deal with that difficult situation and to address spurious asylum claims and appeals. If it is considered that the claim is unfounded, it can be certified as such by the Secretary of State when he refuses the claim. The effect of that certification will be that the person will be able to appeal against the asylum refusal but extradition can take place. However, the appeal will have to be from abroad and only when the Secretary of State is prepared to state that the claim is clearly unfounded.
I imagine that the hon. Gentleman's intention in tabling the amendment was that the extradition process should not be unduly delayed in the case of a spurious asylum claim, but that is already provided for by the clause. The Bill is drafted to prevent people from using the asylum system to delay extradition
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inappropriately. However, it is entirely different, and it would be wholly improper, for us to refuse even to consider representations from a person making an asylum claim before they are extradited, which would be the effect of the amendment.
Liberal Democrat amendment No. 142 would undo our efforts to reach a sensible and constructive solution by erasing the provisions on certification. I have just explained what the provisions do and why they were so drafted. They reflect the approach taken in the Nationality, Immigration and Asylum Act 2002. The arguments are well trodden and we do not need to waste the Committee's time repeating them. We can consider asylum appeals and prevent the abuse of the asylum system in inappropriate circumstances through the certification process. When we have decided that that should be done and the person is extradited, we can still listen to the appeal from abroad. That strikes the right balance. It ensures that people's fundamental convention rights are secure, yet it prevents them from abusing the system.
Mr. Hawkins: The Minister is right to talk about what we intended to achieve, and I am grateful to him for putting on the record how the system cannot be abused. Amendment No. 50, which was not selected, makes our intentions clear, but it would be out of order to discuss it. Amendments Nos. 49 and 50 taken together set out what we want to achieve. I am not convinced that there will not be problems if the Bill is unamended, but I accept what the Minister says, that in order to try to prevent people from slipping through loopholes, subsections (9) and (10) must be retained. On this occasion, I agree more with the Minister than with the Liberal Democrats, as amendment No. 142 would delete some of the protections against abuse that the Government introduced.