Extradition Bill

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Mr. John Maples (Stratford-on-Avon): My criticism of the Bill from the start has been that it removes a series of protections that have been built into our extradition law over a long period. One of those has been the Home Secretary's discretion to refuse to allow a case to proceed or the extradition to take place at the end of it. I understand what the Government are trying to do. I have to square my comments with my criticism of cases such as that of Rachid Ramda, who has strung out his extradition case for seven or eight years by means of the Home Secretary's discretion. It is right to reduce the number of times the Home Secretary becomes involved from two to one. As I understand it, the clause removes the

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initial stage in which the Home Secretary's fiat is required to proceed with extradition. It is also right to narrow down the circumstances in which the Home Secretary can refuse to allow someone to be extradited. However, the Government have gone too far. In narrowing down to this extent, they are removing a protection that is not only valuable, but essential. This is not just a judicial, but an administrative procedure in that the Government would forcibly move a British citizen to another country. People are entitled to expect the Government to be democratically accountable for the way in which they exercise that power. The Home Secretary is responsible to Parliament for the way in which he exercises his powers, and it seems to me that that would be the correct way to provide protection in this system.

If I understand clause 193 correctly, it limits the circumstances in which the Home Secretary can exercise his discretion to cases in which either

    ''the person was acting pursuant to a function conferred or imposed by or under an enactment, or . . . as a result of an authorisation given by the Secretary of State the person is not liable under the criminal law of any part of the United Kingdom for the conduct constituting . . . the offence''.

The third condition that must be met is that the person's extradition

    ''would be against the interests of national security.''

That restriction is far too narrow. I reiterate that I understand why the Government want to narrow this down, but I should like to suggest a couple of circumstances in which that should not apply. My hon. Friend the Member for Surrey Heath (Mr. Hawkins) has tabled some new clauses that deal with cases in which there has been unconscionable delay, an offence could be considered to be trivial or there are political reasons behind the request for extradition. That seems reasonable, but I shall leave my hon. Friend to argue the case for those new clauses.

The national security restriction should be expanded to include two circumstances: first, when it is clearly in the national interest not to extradite someone or when the Home Secretary believes that it is not in the national interest to extradite someone, and secondly when he believes that it would result in a manifest injustice. I do not pretend to be able to draft such a provision. The circumstances should certainly be narrowed down to those in which it would clearly be an injustice to extradite someone. I am not referring to cases similar to that of Mr. Ramda, who claims that as a Muslim he cannot get a fair trial in Paris. He seems to have convinced the House of Lords, but I believe that he would have great difficulty convincing many British and French citizens.

I certainly do not want to close off the avenue of extensive appeals to people whose extradition was being sought. However, there may be circumstances in which there could be manifest injustice and/or it would not be in the national interest to extradite someone. We saw an example of that in the Pinochet case, when a Spanish magistrate attempted to extradite a Chilean citizen from Britain for offences that he was alleged to have committed in Chile. Regardless of the rights and wrongs of General Pinochet's actions, that was an interesting development in extradition law. One

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country sought to enforce extraterritoriality against the citizen of another, who happened at the time to be a resident in a third country.

Some of the subsections to clause 63 deal with such situations. I am especially concerned about the possibility of this procedure being applied against British officials, whether they are British Ministers or, dare I say it, the Prime Minister—I mean any future Prime Minister, not the present one. I shall take the Kosovo war as an example. I do not need to go into detail, but I can posit a hypothetical case in which illegal international action has been taken. Most international lawyers would argue that the bombing of Serbia was illegal, whatever the necessity or the rights and wrongs of that humanitarian action. The bombing was carried out without a United Nations resolution, but was sanctioned by the British Parliament and a democratically elected Government. Regardless of whether one thinks that that was the right thing to do or not, I am not arguing for a moment that the Prime Minister was not right to do what he did.

I am concerned about the possibility that, if the Kosovo war became a political issue in a country friendly to Serbia, such as Greece, a Greek magistrate might seek the extradition of the British Prime Minister, the Defence Secretary, a military officer, a civil servant or a diplomat who had been involved in the decision to bomb Serbia, had then retired and happened to be in Romania or somewhere that had become a category 1 country. The Greek magistrate might seek that person's extradition under one of the various international conventions, or even under the international criminal court convention, for an offence committed outside the category 1 territory, which is one of the conditions in clause 63(4), (5), (6) and (7). Those subsections attempt to cover cases in which extraterritoriality applies.

As I understand it, under clause 63(4), if the alleged offence were committed in the UK, it would be up to the UK Government to deal with it by claiming jurisdiction and stating that they would not pursue the case. Subsections (5), (6) and (7) deal with cases in which the conduct occurred outside the category 1 territory and outside the UK, but it would have been an offence if it had been committed in the UK.

In the scenario that I described, British forces took international action that the British Prime Minister sanctioned. I am concerned that the extradition of people in government associated with that action might be sought, not from the UK but from a third country in which they happened to be on Government business, on holiday or for whatever reason, to a third country that was not involved in the initial dispute. I am not talking about a Serbian magistrate seeking extradition, but a Greek magistrate or another magistrate from a category 1 country in which the offence, if it were an offence, did not take place.

The Minister may be able to convince me that this could not possibly happen under the legislation. However, it would be appalling if, as in the Pinochet case, the Prime Minister had retired, was on holiday in Romania, Slovenia, or some category 1 country of the future and had to be extradited from the UK or from

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some other category 1 territory because his extradition was sought by a Greek magistrate with Serbian relatives who had been killed in the bombing. There must be a safeguard against such a situation. The Home Secretary would be such a safeguard. He should have the discretion to say that he does not believe it to be in the national interest for the extradition to take place. The only fall-back is the lack of security, which would be very difficult to substantiate in the case of a retired diplomat, Prime Minister, military officer or civil servant. There is nothing else to fall back on, and what worries me is that there will be no defence, either administratively or at law, to such an extradition.

Mr. John Burnett (Torridge and West Devon): Is the hon. Gentleman referring to Greece as a category 1 country seeking extradition to Greece rather than to the country in which the offence was committed?

Mr. Maples: Yes, I am. There must be many circumstances in which that would apply. I am anxious about what would happen if an event on which an allegation of an offence was based had taken place outside the United Kingdom and would have been an offence in the United Kingdom if it had taken place here. That takes us into clause 63. There are several circumstances in which a person's extradition could be sought either from the United Kingdom or from another category 1 territory to the category 1 territory that seeks that person's extradition.

In the case of the Kosovo bombings, it could be argued that all the decisions were taken in the United Kingdom, so it is not an issue. However, I suspect that some of the meetings, especially those that planned the bombing missions, took place outside the United Kingdom, in NATO headquarters. The Secretary of State was at NATO headquarters on many occasions. At that time, I was shadowing him closely, politically and physically, and I know he was there. I am not discussing the rights and wrongs of those policy decisions. We do not need to concentrate on Kosovo; I use it just as an example of a situation in which Ministers of this Government might be vulnerable. Our Ministers are accountable to Parliament and to the electorate for the exercise of their functions, and not to magistrates in other countries, especially when what constitutes the alleged offence did not actually take place there.

I want the Minister to deal comprehensively with this issue, because if he cannot satisfy the Committee, there is an overwhelming argument for building in a further discretion for the Home Secretary. That might even appeal to some of the Minister's Cabinet colleagues. If I could think of other examples I could stretch the area of national interest considerably further than the provisions of clause 193, which restricts it to national security in two pretty precisely defined sets of circumstances.

The second issue I want to raise is that of manifest injustice, which my hon. Friend's three new clauses attempt to deal with. If the Government are resistant to the idea, is it because of a drafting problem? Do they feel that it would not be possible to define manifest injustice tightly enough to prevent Rachid

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Ramda and people like him from spinning out their cases for a long time? If so, it would be worth having a go at it. I cannot believe that it is not possible considerably to restrict the Home Secretary's discretion without eliminating it completely.

The third area, which relates to clause 63 and a point made by critics of the Bill, is the absence of a requirement for dual criminality in a category 1 extradition. The Home Affairs Committee report suggested that in such cases the Home Secretary might be allowed to use his discretion. The summary of conclusions and recommendations on part 1 of the Bill states:

    ''We recommend that, in order to provide some safeguard against clear abuses of the new procedure introduced under the framework decision, the Home Secretary give consideration to the following proposal: that in each case the district judge should look at the terms of the offence specified in the European Arrest Warrant and make a statement as to whether dual criminality applies. In cases where the alleged offence is not a crime in the UK a separate decision about whether to extradite should then be made by the Home Secretary, who is responsible to Parliament.''

The gist is clear. If a case involving a category 1 territory in which an extradition is sought concerns an offence that falls within the list of offences in the framework decision but which would not constitute a criminal offence in the United Kingdom, the judge could so certify and the Home Secretary would have the final say. That would remove many of our objections to the vague descriptions of offences, such as ''computer-related crime'' and ''xenophobia'', which is not an offence in the United Kingdom but is in other countries. If the Home Secretary had residual discretion in such cases, it would not set my mind completely at rest but would deal with many of the difficulties I have with the removal of the dual criminality requirement.

Will the Minister respond to the shared concern, which the Home Affairs Committee expressed better than I, that the list of offences in the framework document is too vague? I do not want to repeat my criticisms of that list—I have mentioned just a couple of the offences—but merely to point out that the definitions are too vague and could include acts that are not offences in the United Kingdom. There is common ground, as the Minister says that we should be prepared to live with the criminal jurisdiction systems and law of our European partners. I agree up to a point, but a British citizen is entitled to have some concern about being extradited to another country, and we must remember that category 1 territories do not consist of only present EU members, but will include any country that accedes to the treaties. There is a long list of such countries, not all of which have a wonderful record of objective and independent judiciaries or of treating people accused under their criminal law with the respect to which they have become entitled here and in many western European countries.

If the Home Secretary had that discretion it would give people a safeguard. It is a reasonable suggestion, as it is a unanimous recommendation of the Home Affairs Committee, and it would go a long way towards meeting the concerns of people like me who

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are worried about the dual criminality requirement being overridden.

I want the Minister to answer three points. The first is about manifest injustice. The second point is that the national security provision should be widened to cover national interest, so that we protect Ministers and officials who have acted in the name of the Government and democratic authority but who might find themselves caught up in the system for alleged extraterritorial offences under the latter subsections of clause 63. The third point is about the Home Affairs Committee recommendation that the Home Secretary should have discretion in cases in which the judge certifies that, although the offence qualifies for extradition under the new law, it would not meet the dual criminality requirement if it were still in force.

 
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