Mr. Howarth: I am greatly entertained by the hon. Gentleman. Does he believe that there have been miscarriages of justice in this country?
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Mr. Johnson: I accept that there have been grave miscarriages of justice. It is not my purpose to extol our system of justice above all others, but to attempt to preserve the integrity of the British system and to assure the British citizen that the laws under which he or she lives are those made by his or her elected representatives, not by some foreign democracy that may produce laws further to those under the 32 categories.
Mr. Howarth: I am sure that I will incur the wrath of my hon. Friend the Member for Halton (Derek Twigg) by continuing to debate with the hon. Gentleman, but I will take that risk. Does he believe that it should be left to the Home Secretary to determine whether allegations of miscarriages of justice in this country are true or false?
Mr. Johnson: No. I believe that the ultimate jurisdiction should rest with the higher courts. There is no particular reason to invoke the Home Secretary. I am not sure what the purpose of the question is. This is not a matter of some final appeal, but of deciding prima facie whether the offence is extraditable.
I hope that the Minister will assure us that he will produce a list of all the offences that might fall under the 32 categories, that the Home Secretary will be given final authority in cases where no dual criminality applies, and that he will exterminate the term ''mutual recognition'', which is not applicable in the criminal justice system. I will be interested to know what his officials have been telling him.
Mr. Carmichael: I thought I understood what the debate was about, but I am not quite sure now that I have listened to the hon. Member for Henley. I am tempted to try to pick up some of his argument, but I will resist the temptation. In the interests of brevity, if nothing else, I simply make it clear to the Committee that the working definition of mutual recognition and extradition to which I seek to return is the one that we were dealing with up to that point.
Like the hon. Member for Knowsley, North and Sefton, East, I was not minded to take part in the debate. I do so, however, because I have listened to it with growing unease. It is an old saw that hard cases make bad law. At the risk of offending my hon. Friend the Member for Torridge and West Devon, I fear that we may lose sight of the point by concentrating on individual cases. From my experience in the criminal courts, with my hand on my heart I cannot say that the Kevin Sloan case could never happen in this country. We cannot exclude the possibility of a capricious judge taking a particular view of the credibility of a witness or witnesses, especially when dealing with summary procedure. Courts of appeal are very reluctant to overturn such judgments.
Other cases that spring to mind include the case of the Birmingham Six. Many people in many parts of the world would say that it was impossible for the Birmingham Six to get a fair trial in this country, but that should not be taken as a criticism of the legal systems within this jurisdiction. It is unhelpful to concentrate on individual examples, because every jurisdiction can produce bad cases. The key point is that we must observe minimum standards, and the
Column Number: 226proper assessment of such standards is surely the function of the Home Secretary. The new clauses are not intended to design the legal system in Spain or any other jurisdiction, but to allow the Government in this country to say that if the minimum standards are not met—we should not distinguish between category 1 and category 2 countries in that respect—we should adopt a different approach. That is what the new clauses are about.
Mr. Ainsworth: A sobering input from the moderate wing of the Liberal Democrats has brought us back to some issues of real import. I am grateful to the hon. Gentleman for tabling the new clauses in order to have a wider debate. I shall deal with them in turn before making some more general observations and dealing with clause 193. We are not having a separate stand part debate, and important issues are at stake.
I do not understand why new clause 6 should be added to the Bill. How does an unconscionable delay differ from a bar to extradition by reason of the passage of time? The provision already exists in clause 81 in part 2, and we debated the bar on 9 January when we considered new clause 1. I agreed to consider whether it would be appropriate to mirror the part 2 provisions in part 1. As I said, I see no difference, other than in language, between an unconscionable delay and a bar to extradition based on the passage of time.
Mr. Hawkins: I entirely take the Minister's point, and he was right to say that we tabled the new clauses to have a wider debate. He reminded us that he had already undertaken to reflect further on the mirroring of part 2 and part 1, but we felt that the issue should be put before the Committee at this point, together with the other new clauses. We have not detained the Committee on ''unconscionable delay'', so I accept the Minister's point, but I am glad that he is still thinking about it.
Mr. Ainsworth: I repeat that it would have been perfectly legitimate, for ECHR considerations, to raise these issues without the import of the part 2 provisions into part 1. We agreed to reflect on the problem to see whether it would make people feel happier about the proposals. I have heard no substantive argument to the effect that the unconscionable delay clause would differ from the import of part 2 provisions into part 1.
New clause 7 would require the Secretary of State to duplicate the decision already taken by the district judge under clauses 13 and 80 as to whether there would be a bar on surrender for extraneous considerations. The new clause states that he must decide whether the request was made for political reasons. I am not sure how that differs from the wording in clauses 13 or 80, under which extradition must be barred if the warrant or the request is issued for the purpose of persecuting or punishing the person on account of his race, religion, nationality or political opinions, unless the argument is that we should have a full-scale bar for offences committed for political motives. I am not sure whether the hon. Gentlemen are arguing for that. If not, I sincerely ask them to consider whether there is any difference between the provisions in clauses 13 and 80 and what is being sought in new clause 7.
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Mr. Hawkins: I am grateful for the way in which the Minister puts the matter. My hon. Friend the Member for Stratford-on-Avon and I made it clear that we did not want to open up another loophole for people like Ramda to slip through in future. We put the case in a certain way because we think that new clause 7 would provide protection if a Minister, senior official or military person in any Government faced extradition. We think that that is different to the bar on race or political opinions. We were trying to get something into the Bill that would specifically protect people on grounds of national interest.
With the helpful advice of the Clerk, we tried to mirror clause 193, and that may be why we were not able to narrow the matter down sufficiently. As the hon. Minister will understand, we have to be guided by what will make an amendment selectable by the Chairman. I would be quite happy if the Minister said that he would consider the matter and table a Government amendment later. I have said what we are trying to do under the new clause, and that vital protection is different to what is in the Bill.
Mr. Ainsworth: Having had that clarification, I can deal with the matter. The hon. Gentleman accepts—and I am glad that he does—that many horrendous crimes that should be extraditable are committed for political reasons.
Mr. Hawkins: Allegedly.
Mr. Ainsworth: Yes, allegedly, and that should not be a bar to extradition. On the other hand, seeking extradition for the purposes of political persecution most certainly should be a bar on extradition. The issue that the hon. Gentleman is concerned about was raised by the hon. Member for Stratford-on-Avon. The hon. Gentleman followed up, off the back of a particular case, the matter of whether a Minister or an official in this country could be extradited and persecuted by a magistrate in a third country.
The Bill does absolutely nothing to affect the position on state immunity. International law has established that actions taken by the Heads of Governments or officials acting in that capacity are not extraditable. The Bill could not be used to extradite an official, the Foreign Secretary or the Prime Minister. The State Immunity Act 1998, the Diplomatic Privileges Act 1964 and international law cover those points. Nothing in the Bill affects either international law in that regard or the protection given by those Acts.
Mr. Hawkins: It is helpful to know that, but I vividly recall the matter of Pinochet having to come back before the House of Lords a second time following the embarrassment of Lord Hoffmann having to withdraw because of his connections with Amnesty International. Admittedly, Pinochet was not a British Minister, but international law did not prevent the detention or the issue of whether Pinochet should be extradited to Spain at the request of Magistrate Garzon going as far as our highest court. I do not really think that the Minister can pray in aid international law. I have not had the chance to go into the same detail as he and his officials, and he may tell us that British Ministers are better protected
Column Number: 228by existing Acts. However, in the light of what happened to Pinochet, I do not think that the Minister can say that international law protects them from risk.
Mr. Ainsworth: The hon. Member for Stratford-on-Avon raised a serious point in a serious manner. I sought advice rather than answering off the top of my head. I could do no other than report that advice to the Committee. The circumstances that the hon. Gentleman mentioned would be covered, and nothing in the Bill makes the position any weaker than it already is. The hon. Gentleman seems to be arguing that we should strengthen that position by putting a provision into the Bill. However, nothing in the Bill detracts from the protections that already exist. Those protections cover officials who are acting in an official capacity, diplomats who are acting on behalf of the Government, and Heads of State. Nothing detracts from the existing ramifications of international law.
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