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Standing Committee D
Tuesday 14 January 2003
[Mr. Edward O'Hara in the Chair]
Extradition to category 2 territories
Question proposed, That the clause stand part of the Bill.
Mr. Nick Hawkins (Surrey Heath): I need not detain the Committee long, but I want to make some brief opening remarks about part 2 as we start to debate it. My right hon. Friend the Member for West Dorset (Mr. Letwin), the shadow Home Secretary, made it clear on Second Reading on 9 December that we do not have anything like as many objections to part 2 as we had to part 1. However, we continue to have objections, as demonstrated amply by the various votes throughout the first four Committee sittings, not least those before the luncheon adjournment this morning. Those Divisions showed our objections to part 1.
We want to analyse some detailed points in part 2 although, as on 9 December my right hon. Friend the Member for West Dorset said,
''Parts 2, 3 and 5 will, no doubt, repay attention in Committee, but do not involve vast matters of principle.''—[Official Report, 9 December 2002; Vol. 396, c. 52.]
I simply want to take the opportunity of once again urging the Government to reconsider whether we need the part 1 provisions except for terrorist offences and whether part 2 would be a much wiser way of proceeding for all others. I realise that the Government have got themselves into a difficulty by signing up to the framework directive, arguably without having the required authority to do so, as I stressed in referring to the distinguished opinion of Leo Price QC about whether the Government were acting intra vires when they signed up. We will undoubtedly deal with that on Report and in another place.
I remind the Minister about a point made by my right hon. and learned Friend the Member for Sleaford and North Hykeham (Mr. Hogg) on 9 December. He intervened on my right hon. Friend the Member for West Dorset to say:
''Is it not extraordinary that the part 1 procedure would apply to Greece yet the part 2 procedure would apply to Australia? Surely most people in this country would think that if the Government had such absolute confidence as to use the part 1 procedure, they would use it in respect of the courts of Australia and not in respect of the courts of Greece.''—[Official Report, 9 December 2002; Vol. 396, c. 58.]
In the light of the experience of the British plane-spotters, I can say only ''Hear, hear''. I wanted to put that point on the record again. We believe that the part 2 powers would have been sufficient, and the only justification that we could find for the extraordinary
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extension in part 1 was in relation to the extraordinary crime of terrorism.
The Parliamentary Under-Secretary of State for the Home Department (Mr. Bob Ainsworth): Considering those comments, I wonder why the previous Government removed the requirement for prima facie evidence in the case of extradition to Greece and yet kept it for Australia. That is strange considering those comments.
Question put and agreed to.
Clause 68 ordered to stand part of the Bill.
Clause 69 ordered to stand part of the Bill.
Arrest warrant following extradition request
Mr. Hawkins: I beg to move amendment No. 154, in
clause 70, page 35, line 33, leave out subsection (4).
We are once again putting forward the views of the Law Society of England and Wales. We share its view that there is no justification in the Bill for two different part 2 proceedings for what the Law Society calls category or part 2 countries. The clause provides that an Order in Council could in future designate the part 2 categories into sub-tiers: one that would require information; the other, evidence to support the warrant. The Opposition have not seen anything that justifies a requirement for a lesser degree of evidence for any part 2 state.
Issues relating to the Human Rights Act 1998 and procedural safeguards will not be so effectively monitored and enforced in part 2 proceedings. In the absence of such enforcement mechanisms, the Law Society of England and Wales says that there should be a requirement for prima facie evidence, which will provide protections against foreign states embarking on what the courts refer to as fishing expeditions. In my years in practice at the Bar, I worked on various cases that involved reducing the opportunities for parties to go on such fishing expeditions. I am sure that the hon. Member for Orkney and Shetland (Mr. Carmichael) will know from his experience north of the border—he is nodding—that the courts there are keen to avoid such fishing for evidence.
A requirement for prima facie evidence would avoid potential uses of the procedures for merely incompetent or mistaken investigations. Again, I am indebted to Mr. Roscoe of Victor Lissack and Roscoe Solicitors. As a specialist in the field, he drew my attention to several cases in which entirely trivial accusations appear to have been made against people in this country. One case was dropped in a matter of days after someone had been extradited. In the meantime, however, a huge amount of taxpayers' money had been wasted on extradition proceedings.
In another case, the Czech authorities sought to extradite a Mr. Sivak. I make no general criticism of those authorities, but I understand from Mr. Roscoe, who drew the case to my attention, that the Czech Republic—an applicant state to the EU—was pursuing investigations that it should not have been pursuing. The Czech Republic may, of course, become a part 1 country, but even in the case of part 2
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countries, we are concerned that there should be no possibility of sub-divisions, or of allowing requesting states to go on fishing expedition or pursuing trivial inquiries.
We will have other opportunities to consider de minimis provisions, which we will doubtless discuss in our debates on part 5. At this stage, I merely want to place on record the concerns of the Law Society of England and Wales and specialist extradition solicitors, which we share.
Mr. Alistair Carmichael (Orkney and Shetland): I generally concur with the views of the Law Society of England and Wales, as so ably expressed by the hon. Member for Surrey Heath (Mr. Hawkins). In particular, I can see no reason for the creation of two categories within category 2. My concerns stem from the point made by the hon. Member for Surrey Heath about fishing expeditions. During consideration of the Proceeds of Crime Bill, the Minister heard me make the point that wherever a power is made, the people who are given it will inevitably start to look for some way in which it can be abused. It is the proper function of Parliament to close down the options for abuse, but the proposal, with its distinction between evidence and information, is open to such abuse. There is no good reason for such a proposal in the first place, let alone one that almost invites fishing expeditions.
The hon. Member for Surrey Heath expressed another concern that I share, which I would be grateful if the Minister would address. The Human Rights Act 1998 issues procedural safeguards that will not be so easy to monitor or enforce, particularly in part 2 proceedings, which relate to enforcement mechanisms. Will the Minister clarify the Government's expectations on monitoring and enforcement?
Mr. Ainsworth: I would make a plea to get real on this issue and recognise that even the representations of an august body such as the Law Society of England and Wales cannot absolve us of the responsibility to consider treaty obligations and other longstanding arrangements, or of the need to consider in detail the workings of extradition procedures. These considerations may not be at the forefront of hon. Members' list of concerns, but they are important.
Amendment No. 154 amounts to opposition for opposition's sake. The clause deals with the requirement to produce prima facie evidence in category 2 cases. Subsection (4) provides that a request from a country specified by Order in Council need be accompanied only by ''information'' rather than ''evidence''. The amendment would erase that with no further comment, and no justification is provided.
In this context we are talking not about European Union countries, so the hon. Member for Surrey Heath should not get so excited. Does he really believe that we are removing essential safeguards and denying people proper consideration in extradition cases? That is not true.
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The subsection is designed to meet our existing obligations under the European convention on extradition, which was agreed by the Government—the hon. Gentleman supports it—and has operated for 12 years. The Conservative Government signed up to the ECE in 1990 and it was their introduction of the Criminal Justice Act 1988 and the Extradition Act 1999 that allowed prima facie requirements to be removed in the first place. Her Majesty's Opposition have some responsibility for bringing us to the present position, whereby such requirements were removed for those other than category 1 countries, so why are they suggesting that we should go back on that now?
The hon. Member for Surrey Heath asked why we insist on a certain set of regulations for Australia, but perhaps we are not. Australia is not party to the European convention on human rights and we have no intention of bringing the country into part 1 procedures. Is the hon. Gentleman seriously suggesting that we should enter into arrangements with countries that have a broadly similar criminal justice system to our own, in which we have a high degree of confidence, and remove the requirement for prima facie evidence? Has the Conservative party descended into that wholly inappropriate position?
We are talking about countries such as Switzerland, Canada and Australia, with which we have done considerable extradition business over time and for which sound judicial arrangements obtain. We deal with the Governments of those countries, whatever party is in power, so are we to enter into treaty arrangements with them on the basis of removing the requirement for prima facie evidence? What we are doing is common sense. The other provision concerns those countries for which we have already removed that requirement, which occurred when the Conservative party was in government.
Does the hon. Member for Orkney and Shetland really believe that we would allow category 2 countries to go on fishing expeditions? A proper judicial process would have to be followed. The application made would have to be stronger than that made for a part 1 case. I do not think that the hon. Gentleman seriously believes that the sort of countries to which I referred would be allowed to go on such fishing expeditions. I therefore wonder why he suggests that we rip up that convention and row back from it at a time when we are trying to encourage increased international judicial co-operation. He appears to be suggesting that we should say that although we have been party to that convention, which was negotiated a long time ago and has been in operation for the past 12 years, we intend to reimpose a prima facie requirement of evidence on those countries. Why should we do that at this stage? I do not see any justification for doing so.