Mr. Hawkins: The Minister wonders about putting a provision in the Bill, and I argue clearly that we should. For the foreseeable future, people in this country will look to this Bill to cover the whole law of extradition. In the light of lessons learned from what happened to Pinochet, the protection available ought to be clearly stated in the Bill, even if other Acts offer greater protection to British Ministers and officials than was available to Pinochet. This Bill, in whatever final form it takes before becoming an Act of Parliament, will be our extradition legislation. Everything to do with extradition ought to be in it.
The Bill already contains provisions to do with the Secretary of State's decisions on national security. It ought also to contain something—perhaps along the lines of our proposed new clause—that sets out what protection is available for people who are acting in the national interest. That ought to be put into the Bill before it becomes an Act. I hope that the Minister will consider that point very seriously.
Mr. Ainsworth: The hon. Gentleman is entitled to his view that there is a real danger and that his suggestion is a priority for legislation. However, unless he has supporting evidence, he should not suggest that, with this Bill, we are damaging the present situation and putting British officials, diplomats or Ministers in danger. We are not.
Mr. Maples: Of the three points that I raised, I probably consider this to be the most important. I will read carefully what the Minister has said, and I will consider the Bill. However, subsections (6) and (7) of clause 63 specifically refer to offences under the International Criminal Court Act 2001 and to
Almost by definition, those crimes are committed by officials or functionaries of the state.
If I remember the Pinochet case rightly, the third decision of the House of Lords was that Pinochet's immunity as a Head of State would not have overridden the international convention against torture, had that convention been in operation at the
Column Number: 229time of the offences that he was alleged to have committed. The offences with which the Spanish magistrate wanted to charge him occurred before the international convention against torture had been signed. If it had been the other way round, and the offences that he was alleged to have committed had occurred after the international convention against torture had been signed, his immunity as a Head of State would not have protected him from extradition. I seem to remember that that is what the House of Lords said.
I feel that there is a problem in that war crimes or crimes against humanity can be widely interpreted, especially if there is a political motivation for doing so. We may or may not approve of the political motivation in the Pinochet case, but we would not approve if a foreign magistrate were trying to get hold of one of our Ministers or officials. I am concerned that naming those offences in this Bill means that people who are charged with them will not necessarily be protected by the Acts that have been mentioned. I pray in aid, or at least ask the Minister to consider, the judgment in the Pinochet case, which seems to bear out what I am saying and not what he is arguing.
Mr. Ainsworth: The hon. Gentleman has made his point well. He has made it in a serious manner and I can only respond to him by explaining what I understand the situation to be. We are not altering that position in the Bill, and that is something for him to consider, as I will.
Mr. Hawkins: I am grateful that the Minister said that he will continue to consider the point, because I agree with what my hon. Friend just said and want to add one point. The Minister quoted an Act from 1998 in his first response. The Pinochet case post-dates that, and we should consider how the Bill works in relation to war crimes, which as my hon. Friend the Member for Stratford-on-Avon pointed out are widely defined. The way in which the Law Lords examined the international conventions has to bear on both the Bill's drafting and effects and how the 1998 Act was thought to protect people pre-Pinochet.
We know that the Government do not intend to weaken the protection, but they have included provisions that, as my hon. Friend noted, might cause a problem in the light of the Law Lords' wide interpretations in the Pinochet case. I am glad that the Minister has said that he will examine the point seriously, because we think that it is important. We are not suggesting that the Government intend to weaken the position, but that they might do so inadvertently unless the national interest safeguard with the Secretary of State's discretion is included in the Bill. Even if we might be wrong, the fact that we might be right is a good reason for including it for the avoidance of doubt. I hope that the Minister will consider that.
Mr. Ainsworth: The hon. Gentleman should not try to push what I said further than I did. Also, I should clarify that I meant to refer to the State Immunity Act 1978. I apologise if I misread that.
Another point that the hon. Member for Stratford-on-Avon raised and majored on was the need to include a definition of ''manifest injustice'' in the Bill.
Column Number: 230All I would ask is how would we define such a thing? He saw the problem in his presentation to the Committee. He was raging about how a particular case had taken an inordinate length of time, and the argument could be made in such cases that it would be manifestly unjust to extradite. How would we define such an issue? By giving responsibility to the Secretary of State to define such a matter, we would leave the matter open to judicial review and delays.
I do not think that the hon. Gentleman has fully expanded his reasons for his proposal, because in some categories of persons he would like us to go further and be more robust in our dealings, but for others he is extremely reluctant and wants to build in safeguards. He wants to draw the Secretary of State back into extradition proceedings that lead to the delays that he complains about, and I do not know how we could define the law so that it applied more robustly in some cases than in others, which appears to be his desire in pushing for the inclusion of a safeguard of manifest injustice that the Secretary of State could use to overrule some extraditions. He is right to say that it is a drafting problem, but it is an insurmountable difficulty unless we accept consequences that he would not want.
On the de minimis requirements and trivial offences, I rest on what has been said repeatedly in Committee. There is an argument that we have to settle. For someone to be extraditable both under existing law passed by the hon. Gentleman's party when it was in power and operated without a difficulty and with what we are proposing in parts 1 and 2 of the Bill, the offence will have to attract a maximum penalty of at least 12 months' imprisonment in the requesting state. That is a significant threshold.
I know that the Home Affairs Committee said that we should go for three years and asked why we were going further than the framework decision requires us to do. Why? The reason is that under both parties we have been prepared over a number of years to behave in an outgoing and fairly internationalist way. We have been prepared to co-operate with other jurisdictions and to allow them to seek extradition where they thought it was appropriate above a certain threshold. The threshold has been 12 months. In return, we would ask others to be prepared to extradite to our jurisdiction where we thought it appropriate.
The issuing state has to decide whether it is worth the candle to seek extradition, because the offence is so trivial. Some hon. Members disagree with us and think that we should not be prepared in any circumstances to extradite people for less than three years. That is not what the Home Affairs Committee argued, by the way, as the hon. Member for Torridge and West Devon appears to think. It argued that dual criminality should not be dropped for less than the three-year sentence. He should not misinterpret the Home Affairs Committee report.
Mr. Hawkins: The hon. Gentleman is being quite robust in his response. Will he seriously consider two of the points? He says that there have not been any significant problems under the current legislation where the 12-month maximum sentence applies. With great respect to him, that is not right. I refer
Column Number: 231him again to the evidence. I will not go through all the cases again, but experienced specialist extradition solicitors—the firms that deal with these cases day in, day out—advise us through the Law Society that there have been a number of cases where requesting states such as Belgium and the Czech Republic have used the current law in a way that was quite wrong and led to manifest injustice because the offences were too trivial.
The second point is that where one is talking about a maximum sentence of 12 months, even in UK law that can be a minor crime. It can be the kind of crime that none of us in Committee would think would lead to extradition. There is a serious concern here when we are talking about the protection of British citizens. I hope that the Minister, even if he does not do so today, will think quite seriously about that. It would be different if the Bill said that the threshold would be where the normal practice is for a sentence of at least 12 months' imprisonment, but it says it is when the maximum sentence is 12 months.
There are many crimes in UK courts where the maximum sentence is 12 months' imprisonment but where a fine of £50 is normally imposed. Most of us would think that the kind of offence that regularly attracts a fine of £50 should not be extraditable. The Government are in fact putting forward that kind of threshold if we translate UK law into foreign law.
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