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Again, I am grateful to the noble Baroness for her concern and care in this matter. If we can proceed in this way, I think we can achieve jointly our objectives which I am sure are not totally dissimilar.
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Baroness Anelay of St Johns: I am grateful to the Minister for that sympathetic reply and I think that progress is being made here. I am also grateful to the noble Lord, Lord Hylton, for his support. He is absolutely right to point out that, when we talk about offences in these terms, we are also trying to protect children overseas who may be abused through the use of internet pornography. It would not be right to go into more detail on the Minister’s response except to say that I welcome his proposal for a meeting. I put it on the record that I would be grateful if the Home Office invited my honourable friend in another place, Sir Paul Beresford, to take part. I know that the Home Office has involved him in previous discussions and that he would value any continued participation.
Lord Bassam of Brighton: I am sure that that can be arranged.
Baroness Anelay of St Johns: I thank the Minister and I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 180 not moved.]
[Amendment No. 181 had been withdrawn from the Marshalled List.]
Baroness Linklater of Butterstone had given notice of her intention to move Amendment No. 182:
“Penal custody for childrenThe noble Baroness said: I shall not move this amendment for the time being. However, we attach great importance to this subject and we will return to it on Report.
[Amendment No. 182 not moved.]
Schedule 12 [Schedule to be inserted into the Protection of Children Act 1978]:
[Amendment No. 183 not moved.]
Schedule 13 [Schedule to be inserted into the Protection of Children (Northern Ireland) Order 1978]:
[Amendment No. 184 not moved.]
Clause 45 [Immigration and asylum enforcement functions: complaints and misconduct]:
[Amendment No. 185 not moved.]
Baroness Anelay of St Johns moved Amendment No. 185A:
“( ) Nothing in this section shall authorise the disclosure of documents or information subject to legal privilege.”
The noble Baroness said: I rise briefly to movethis amendment only because it was originally not grouped with Amendment No. 185 and because I think, without being rude to the Law Society of Scotland, that it may be disposed of by the Government with some assurances. Clause 45 provides that the reference to “enforcement
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This probing amendment follows concerns specifically raised by the Scottish Law Society, which states:
“Article 8 of the European Convention on Human Rights enshrines the right to privacy. The law society is eager to protect the relationship between a solicitor and his or her client and has made provision for the doctrine of legal professional privilege”.
“To preserve this relationship and ensure that such information and communications are privileged, provision should be made on the face of the Bill to the effect that a search warrant or powers to seize or detain property granted under clause 45 will not extend to the disclosure of information subject to legal privilege”.
I hope that the Minister can clarify the situation under this clause with regard to information subject to legal privilege and offer some assurance in response. I beg to move.
Lord Dholakia: I support the amendment for the reasons identified by the noble Baroness, Lady Anelay. It would be helpful if the Minister could give us an explanation about documents that have legal privilege.
5.15 pm
Lord Bassam of Brighton: I will go carefully over my speaking note. I can see that the amendment has three possible consequences, which I shall go through because I want to test them back to the noble Baroness. She will then, no doubt, tell me whether I have addressed the issues and satisfied the intent of the amendment and the probing nature of her comments.
First, if the amendment is intended to safeguard members of the public from the seizure of legally privileged documents belonging to them by immigration officers or officials of the Secretary of State exercising immigration and asylum enforcement functions, we argue that sufficient safeguards already exist in the current legislation. In this clause, enforcement functions exercised by immigration officers and certain other officials are defined as including the types of powers already exercised by those officers under the existing provisions of the immigration Acts. These include, for example, powers of arrest or powers of search and seizure. Thisis to enable the Independent Police Complaints Commission under future regulations to have oversight of these types of powers where they are exercised by immigration officers or certain other officials in the enforcement and removals context.
Clause 45 does not create new powers for immigration officers or other immigration officials. Where powers for such officers and officials to search and retain documents exist in the current law,
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If the amendment is concerned that the Independent Police Complaints Commission under future regulations will obtain legally privileged information belonging to a private individual, I can again reassure the noble Baroness. If the IPCC obtains such material in the course of one of its investigations, it would be obliged to return it unopened or unread unless the owner of the privilege had waived that privilege. IPCC investigators carrying out investigations have the same powers under the Police Reform Act 2002 as a constable in England and Wales. Therefore, the only warrants that they could seek are those under PACE or terrorism legislation. Legally privileged information will be outside the scope of these warrants, as provided for by Sections 8 and 10 of PACE.
The position where the Immigration and Nationality Directorate is the holder of the legal privilege will be different, however. Section 17 of the Police Reform Act 2002 currently enables the IPCC to require the disclosure of information, including legally privileged information held by the police, by Her Majesty’s Revenue and Customs or by SOCA, under equivalent provisions, where disclosure is required for the carrying out of an IPCC function. The intention of Clause 45 is to ensure independent scrutiny of immigration officers and officials exercising police-like powers within the community under future regulations similar to the scrutiny that is in place for the police. To require different practices for the disclosure of legally privileged information where IND is the holder of the privilege would be anomalous.
If the third interpretation is the intention of the amendment, the amendment could prevent the disclosure of legally privileged information between the IPCC and the Parliamentary Commissioner for Administration. We take the view that that would be undesirable. The IPCC and the PCA may wish to disclose legally privileged information under the gateway created by Clause 45(5) as part of their functions or for the purposes of a joint investigation under Clause 45(6).
I trust that I have dealt to the noble Baroness’s satisfaction with all the potential interpretations that might arise from the amendment. I hope that I have reassured her that the concerns that were quite properly raised by the Law Society of Scotland—it is very good at this—have been addressed and that she will feel able to withdraw the amendment.
Baroness Anelay of St Johns: After that comprehensive reply, it would be churlish to do other than say that I will make sure that the Law Society of Scotland has a good look at this. I agree with
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Amendment, by leave, withdrawn.
[Amendments Nos. 185B to 185R had been retabled as Amendments Nos. 191B to 191R.]
Lord Kingsland moved Amendment No. 186:
In the list of territories in paragraph 3(2) of the Extradition Act 2003 (Designation of Part 2 Territories) Order 2003(S.I. 2003/3334) “the United States of America” is omitted.”
The noble Lord said: In moving AmendmentNo. 186, I shall speak to the other amendments in the group. I shall speak also to Amendments Nos. 187 to 190 because, although they deal with a distinct matter, in a sense the two groups of amendments run together.
The issues raised by the amendments deal with two matters. The first is treaty ratification; the second is reciprocity—that is, the fairness of the test contained within the treaty itself. I shall begin by dealing with ratification, although necessarily, as I seek to develop my argument, I shall make some reference to reciprocity.
Our starting point is the existing international law between ourselves and the United States—the extradition treaty of 1972. That treaty still defines the international law obligations between the two countries. It is, broadly speaking, a treaty which contains tests which are balanced. If the United States wishes to extradite someone from the United Kingdom, it has to meet what is known as a prima facie case to succeed. Equally, when we apply to extradite somebody from the United States, we have to meet the test of probable cause. There is much debate in international law about the extent to which these two categories are balanced; but, broadly speaking, I think it is accepted that they are.
On 31 March 2003, Mr David Blunkett andMr John Ashcroft, respectively at that time, the Home Secretary of the United Kingdom and the Attorney General of the United States, signed a new extradition treaty. I say in passing that no prior notice was given to Parliament of the terms of this treaty before it was signed. Indeed, as far as I am able to determine, no one, outside Government, appears to have got wind of what was going on.
The whole question of parliamentary oversight of treaty negotiations was raised tantalisingly by the noble Lord, Lord Lester of Herne Hill, in his debate on prerogative powers earlier in the year. Although I shall not develop the arguments now, I believe that the manner in which that treaty was concluded deserves the closest attention of your Lordships' House.
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From our point of view, the most important thing about this treaty is that it changed the reciprocity test. Although we have to continue to show probable cause to the United States Government when seeking somebody’s extradition from the United States, the prima facie case no longer applies. That point was very fairly dealt with by the noble Baroness, Lady Scotland, during the debate on the Extradition Act 2003 (Designation of Part 2 Territories) Order 2003. She said that,
- “when we make extradition requests to the United States we shall need to submit sufficient evidence to establish ‘probable cause’. That is a lower test than prima facie but a higher threshold than we ask of the United States, and I make no secret of that. The fact is that under the terms of its constitution the United States of America cannot set its evidential standard any lower than ‘probable cause’”.—[Official Report, 16/12/03; col. 1063.]
The treaty is what today's debate is fundamentally about. The treaty needs to be ratified by both parties to give it binding effect in international law. Until it is ratified by both parties, the 1972 treaty in international law prevails. We are still waiting for the 2003 treaty to be ratified by the United States.
Meanwhile, in November 2003, the Extradition Bill became law. I need to refer to two provisions of the Bill, though telegraphically. The relevant part of the Bill is Part 2; Part 1 deals with arrest warrants. Section 84 of Part 2 provides for extradition to territories other than those covered by the European arrest warrant. In particular, Section 84(1) states that, faced with an extradition request, a judge must decide whether there is sufficient evidence to make a case requiring an answer from the subject of the request. That is to say, Section 84(1) establishes and repeats the prima facie rule. However, under Section 84(7), the need for prima facie evidence is excluded if the Secretary of State makes a designation so saying.
That further designation was made under the Extradition Act by an order which came before your Lordships' House in December 2003. Under that order, the United States was one of a number of paragraph 2 countries, most of which were signatories to the European Convention on Extradition. The act of designation by that order—its approval by both Houses of Parliament—meant that from 1 January 2004, we were required to meet our side of the bargain struck by Mr Blunkett in that treaty even though there was no obligation on the United States to meet its.
That point was freely admitted by the noble Baroness, Lady Scotland, in the December debate, but she was optimistic. She said:
- “and approved shortly thereafter. We do not anticipate that we shall encounter any difficulties in that regard”.—[Official Report, 16/12/03; col. 1071.]
Yet, here we are, two and a half years later. The United States has done nothing about ratification, in breach of the rules of international comity. But we have been acting as though the United States had ratified that treaty, to the astonishment of a number of Americans, some of whom gave evidence to the relevant Senate committee in November last year. We
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We believe that the time has come for your Lordships' House to act. The United States Senate is, after all, another upper House in an English speaking world; and we hope that a firm signal from your Lordships' House would be taken seriously by the United States Senate.
5.30 pm
There are two other amendments in this group—Amendments Nos. 191 and 191A. We intend to withdraw Amendment No. 191 in favour of Amendment No. 191A tabled by the noble Lord, Lord Goodhart. We are able to support that amendment although we are not totally content with it as it stands. We do so to give the other place the chance to consider the underlying operation of the treaty, and we do so with one very significant reservation—that when it gets to the other place, it must be revised to remove its application to acts of terrorism so as to ensure that we can maintain quick and efficient extradition of terrorists, which is a principle that I know the whole of your Lordships' House supports.
I move on to the question of reciprocity. I shall make no observations about the substance of the case known colloquially, in all the newspapers, as the case of the NatWest Three. However, it is fair to say that their case has thrown up a number of weaknesses in the treaty negotiated by Mr Blunkett as well as in the Extradition Act 2003. I shall pay some attention to both of them.
First, there has been no attempt whatever by the Government to incorporate the forum rules contained in the 1957 European Convention on Terrorism to which we are parties, although the United States is not. Article 7.1 of the convention is reflected, in essence, in our Amendment No. 189, which says:
“If the conduct disclosed by the request was committed partly in the United Kingdom, the judge shall not order the extradition of the person unless it appears in the light of all the circumstances that it would be in the interests of justice that the person should be tried in the category 1 territory... In deciding whether extradition is in the interests of justice, the judge shall take into account whether the competent United Kingdom authorities have decided to refrain from prosecuting the person whose surrender is sought for the conduct constituting the offence for which extradition is requested”.
That amendment in essence reflects terms to which we agreed in the 1957 treaty and the Council framework decision of 13 June 2004 on the European arrest warrant. It hands over to a judge the power to decide not whether there is a prima facie case but whether the nature of the offence, in all the circumstances, ought to be tried in the United Kingdom rather than the United States. In reaching that decision, the judge would take into account a number of factors—such as territoriality, the availability of witnesses, the nature of the evidence
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One interesting thing about the extradition treaty between Ireland and the United States is that it contains precisely that qualification. Like us, the Irish are no longer demanding prima facie evidence, even though the United States continues to demand probable cause. But the Irish Government have insisted that the courts apply a forum test. That is totally absent from the Extradition Act 2003, and we believe that it should be included.
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