The Chairman: In view of what the hon. Gentleman said about the relationship between clause 201 and new clause 3, I shall now group them together. The hon. Gentleman will have the opportunity to come back on that.
Mr. Hawkins: I would be happy to do that. The clauses cover the same point, as your Clerk has realised Mr. O'Hara, so if we can debate them together that would be great.
Mr. Ainsworth: That is helpful because the points made by the hon. Member for Surrey Heath will inevitably be raised on the debate on new clause 3. The matter raised by new clause 3 is of no small importance. I shall try to convince the Committee and the hon. Gentleman that it is not necessary to amend the Bill in this way. If he is going to go all the way in terms of retrospective application of the Bill to alleged criminal behaviour, I am not sure that he would want to make this amendment if he thought about it in detail.
New clause 3 would provide that the new powers under the Bill would apply only to conduct that takes place after Royal Assent. That might appear to make sense, but if it is followed through, the conclusion is far from logical. Let us say that a person commits a murder shortly before Royal Assent. Because the conduct occurred before the 2003 Act came into force, an extradition request for the offence could be made only under the former provisions. That might not be too bad if the request comes within a few months, but what if it comes five years from now, because the murder is only discovered five years from now? What about accusations of paedophilia, which by their nature are often made some years after the acts themselves?
If the new clause were accepted, the existing legislation would need to remain on the statute book in parallel with the new regime as long as it might be possible to extradite a person for an offence committed before Royal Assent. That could mean that we had two systems running in parallel for many years.
Mr. Hawkins: I take the Minister's point. As I hoped, he is taking this matter seriously. However, I made it clear that I am not saying that we or Liberty have necessarily got the provision exactly right. Does the Minister understand that we are trying to avoid improper restrospectivity? It would be helpful if he at least kept the matter under review to see whether there is a way to address Liberty's concern while not having two systems running in parallel as he described. I understand the Minister's point about paedophiles and murders that are discovered many years after the event. We do not want two systems running in parallel, but equally we do not want improper and unnecessary
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retrospectivity. Will he at least undertake to continue considering the issue?
Mr. Ainsworth: Unreasonable lapses of time can be prayed in aid against extradition requests. I should have thought that the point that most concerns Liberty, which the hon. Gentleman has raised on its behalf, would have to be dealt with in that context. We have had lengthy discussions in Committee about how long certain extradition cases can be protracted by determined individuals with legal resources. It escapes me to understand how we could put something in the Bill that defined an inappropriate degree of retrospectivity but that did not allow people to fall through the net or place an obligation on us to keep both pieces of legislation running in tandem for many years.
The hon. Gentleman makes a genuine point about people seeking many years after the event to use a piece of legislation that was not in place at the time, and about the ability to extradite people years after a crime was committed. Such a person would be able to raise that point with a district judge in respect of part 1. Other ways that are appropriate in part 2 would be covered by the time bar for an unreasonable passage of time.
Mr. Hawkins: I hear what the Minister says and, as I said, I hope that he will continue to consider the matter. Those in another place who have even greater experience of the way in which the law operates and issues of retrospectivity may want to debate it. I do not wish to push the matter at this stage. We have placed it on the record, and those who look at our proceedings will see what I have said and the Minister's response. I suspect that this will once again be a live issue in another place.
Question put and agreed to.
Clause 201 ordered to stand part of the Bill.
Existing legislation on extradition
Question proposed, That the clause stand part of the Bill.
Mr. Burnett: I am proud to rise to debate this clause. My hon. Friend the Member for Orkney and Shetland and I find it offensive in the extreme—
Mr. Carmichael: Obnoxious.
Mr. Burnett: I am grateful to my colleague. This is a classic Henry VIII clause, conferring power on the Executive to make fundamental amendments to primary legislation through secondary legislation. We have been fortunate to have the Select Committee's comments on the Extradition Bill. I refer to page 29 of its excellent report and we have all noted its conclusion. With the backing of my party, which responded to requests to express its views on the Bill, I shall attempt to précis the report. It states:
''The Bill provides no indication of what provisions of these Acts''—
the Backing of Warrants (Republic of Ireland) Act 1965 and the Extradition Act 1989—
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''the Government intends should be amended or repealed. Clause 205 provides that any Order in Council made under clause 165 would be subject to the negative resolution procedure, whereby it may be annulled in pursuance of a resolution of either House.''
''The Home Office has told us that it considers Clause 202 needs to be drafted in its present form because the Government intends that the Bill will apply to all extradition requests received after the Bill comes into force. Consequently, it intends to repeal both the 1965 and 1989 Acts in their entirety. However, these Acts cannot be repealed until all cases which are in the system at such time as the Bill comes into force have been finally disposed of.''
The Home Affairs Committee makes it quite clear that it considers the clause to constitutionally inappropriate. As I said at the outset, it is a classic Henry VIII clause and it is objectionable because we have no idea, beyond a bland assertion from the Home Office, what parts of the Acts will be repealed, or what the principles or guidelines for appeals will be.
Fortuitously, on 14 January 2003, at the behest of the noble Lord Dahrendorf, a debate on the third report of the Delegated Powers and Regulatory Reform Committee took place in another place. The debate centred on the key constitutional question of the limits of Executive power, and Parliament's ability—and its duty—to prevent the unchecked expansion of those limits. The conclusion was that, although Henry VIII powers could occasionally be justified through the negative procedure, the fundamental principle was that there
''should always be a presumption in favour of the affirmative procedure. That means that whenever it is not adopted reasons must be given in the Explanatory Notes accompanying Bills why this should be so.''—[Official Report, House of Lords, 14 January 2003; Vol. 643, c. 169.]
We shall press for a Division on these obnoxious, objectionable and unparliamentary provisions. I hope that Labour Members will support our endeavours to ensure that Parliament regains its authority and the principle of parliamentary democracy is retained. We have discussed this before in Committee. This is a slipshod little clause that has no place in the Bill.
Mr. Hawkins: I am glad that the hon. Gentleman has expressed his views in such strong terms, as it has saved me the trouble of doing so. I will not bore the Committee by repeating what he said, but I agree with every word. It is rare for me to agree with every word uttered by a Liberal Democrat, but it is more likely to happen with the two Liberal Democrats on this Committee. The Minister has sought to drive a wedge between them based on their lack of communication. He also described the hon. Member for Torridge and West Devon as being the Eurosceptic wing of the Liberal Democrat party, but he is also on its constitutional wing, as is his hon. Friend the Member for Orkney and Shetland. They believe in the historic traditions of Parliament, and long may they continue to do so; even so, I wish that their views were more widely shared by their parliamentary colleagues, who so often vote with Labour to undermine our constitutional traditions.
The Conservatives, too, object to Henry VIII clauses. Since he became shadow Home Secretary, and probably for many years before that, my right hon. Friend the Member for West Dorset (Mr. Letwin)
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has voted against every Henry VIII provision that the Government have sought to slip in. My hon. Friends and I will certainly support the Liberal Democrats in voting against the clause for all the reasons that the Select Committee set out. I have no doubt that there will be a huge amount of opposition, including from Labour peers, when the provision comes before another place. Often the only way we have managed to preserve our constitutional traditions recently has been when Labour peers have voted with Conservative and Liberal Democrat peers. Long may that continue, as well.
Mr. Carmichael: I share the pride expressed my hon. Friend the Member for Torridge and West Devon. The hon. Member for Surrey Heath says that it is unusual for him to agree with every word uttered by my hon. Friend. I understand where he is coming from. I, too, find myself in that happy position. There is an important constitutional point here which my hon. Friend, in his typically understated way, brings to the attention of the Committee. The issue is well explored by the Home Affairs Committee report on the Bill. The Minister may not be aware that that is a Labour-dominated Committee—[Laughter.]
The extent of the discretion that the clause gives the Government is quite unnecessary. Unless there is some compelling reason why the provisions could not be achieved by some other way, perhaps by specification of sections in a schedule, which might be brought into force by order at a later date, I can see no reason why we should be asked to give the Executive a power of this sort.