8. LETTER FROM BOB AINSWORTH MP, PARLIAMENTARY
UNDER-SECRETARY OF STATE, HOME OFFICE TO THE CHAIRMAN
When I wrote to you on 2 August, I said that I would
provide you with a detailed response to the points which the Joint
Committee on Human Rights raised in its report on the draft Extradition
We are grateful to the Committee for the interest
which it has shown in the Bill and were pleased to note its conclusion
in paragraph 19 of the report that the Bill contains sufficient
protection for convention rights. The conclusion was, I appreciate,
tempered by specific concerns and I hope that I can reassure you
in respect of those.
The Extradition Bill was introduced earlier today
and, as you will see, the Bill has been changed in a number of
places to take account of points which the Committee raised.
I attach a note setting out a response to the specific
point which the Committee raised.
If there is any further information you require,
please do not hesitate to ask for it. I would also be happy to
meet you and discuss this if you would find that helpful.
14 November 2002
Draft Extradition Bill
Twentieth Report of Session 2001-02: Home
Summary of Conclusions
We conclude that the draft Bill gives rise to serious
concerns on human rights grounds in the following areas:
the lack of
clarity on the face of the draft Bill as to the relationship between
its proposals and the provisions of the Extradition Act 1989,
and the possibility of amending or repealing protections in that
Act by Order in Council (paragraph 3);
It is the Government's intention that the new arrangements
for which the Bill will provide will apply to all extradition
requests received after the new legislation comes into force.
It is therefore the Government's intention to repeal
both the Extradition Act 1989 and the Backing of Warrants Act
1965 in their entirety. However, this can not happen until all
cases in the system at the time when the new arrangements come
into force have been finally disposed of, which is why the power
to repeal by Order has been included in the Bill.
the lack of
express provision for mental or physical capacity to be a bar
to extradition (paragraph 6);
In the light of the JCHR's comments, the Bill has
been amended so that physical and mental incapacity appears in
both part 1 and part 2 of the Billsee clauses 25 and 88.
for removing the rule under which a person may not be extradited
to a country to face trial or punishment for a political offence,
and possibility of achieving that result by Order in Council subject
only to the negative resolution procedure (paragraph 22);
As explained above, it is the Government's intention
that the Extradition Act 1989 should be repealed in its entirety.
The safeguards that will be available to a fugitive
are set out in the new Bill. You will see that clauses 13 and
80 provide that a person may not be extradited if the request
for his extradition has been made for the purpose of prosecuting
or persecuting him on account of his race, religion, nationality
or political opinions or if he might be prejudiced at his trial
on these grounds. These provisions mirror closely Sections 6(1)(c)
and 6(1)(d) of the 1989 Act.
The new Bill does not replicate Section 6(1) (a)
of the 1989 Act which provides that extradition is barred where
the person is accused or convicted of a political offence.
The political offence exception is a 19th century
notion which has largely fallen into disuse. It is now very rarely
invoked as a defence against extradition and there are no recent
cases in this country where it has been successfully used.
In addition, a number of international conventions
have limited the scope of the political offence exception so that
it can not be used as a bar to extradition in cases of alleged
terrorism or other crimes of violence.
The Government believes that all the other safeguards
that will exist mean that no fugitive will suffer as a consequence
of the decision not to include a provision preventing extradition
for politically motivated crimes.
weaknesses in the arrangements which the draft Bill contemplates
for accepting assurances from requesting States about compliance
with Convention rights on their territory concerning both the
range of rights in respect of which assurances could be sought
and accepted (particularly the right to be free of torture and
forms of inhuman or degrading treatment or punishment unrelated
to the death penalty) and the means whereby the reliability of
such assurances would be assessed (paragraphs 27-28).
Assurances in respect of the death penalty are a
long-standing feature of extradition. They serve an important
role not least because we believe it should be possible to extradite
in cases where the fugitive might be eligible to receive the death
penalty so long as a satisfactory assurance has been received
that the death penalty will either not be imposed or, if imposed,
will not be carried out.
We have for a number of years extradited to countries
(notably the United States) in potential death penalty cases on
the basis of assurances received that a death sentence will not
be carried out. Clearly such an assurance must come from a person
who is competent to issue it and it must bind the bodies which
impose and carry out the sentence.
This will continue to be the case under the Bill
and the District Judge will need to be satisfied that any such
assurance that is given is indeed binding. There is no reason
why an assurance must automatically come from a state's executive
branch. Rather it could come from, say, the prosecutor concerned
who has discretion whether or not to seek the death penalty.
There have not been any problems in recent years
in regard to death penalty assurances and we see no reason why
the new provisions should give rise to any difficulties.
There is no precedent in legislation for seeking
assurances as to other convention rights and we see no need to
make it a mandatory requirement. Clauses 21 and 86 prevent extradition
in cases where it would be incompatible with the fugitive's convention
rights. Clearly this enables the fugitive to raise any concerns
he might have on these issues at the extradition hearing. If the
requesting state believes that offering undertakings in response
to any such concerns that have been raised would be of assistance
to the District Judge, it will be free to do so.