Joint Committee On Human Rights First Report



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 Bill.

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 Office Response

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 Bill—see clauses 25 and 88.

    —  the potential 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.

    —  the possible 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.

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