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Lord Goodhart: I start by declaring a couple of interests. I am a vice-chairman of the Council of Justice and a trustee of Fair Trials Abroad. They are both organisations that have taken an interest in the Bill.
I shall speak to all the remaining amendments apart from Amendment No. 261, to which noble Lord, Lord Hodgson, has already spoken. This group of amendments deals with the question of the appropriate parliamentary procedure for the approval of Orders in Council. I entirely agree with Amendment
No. 2: no country should be designated as a category 1 country except by an Order in Council that has received the actual approval of both Houses of Parliament. My amendments extend the same principle to a number of other Orders in Council. I welcome the fact that the noble Viscount, Lord Bridgeman, has put his name down in support of the amendments.Amendment No. 148 would require the affirmative procedure for designation of a territory as a category 2 territory under Clause 68(1). Under Clause 68, an Order in Council is needed when a country with which the United Kingdom has had no previous extradition arrangements is brought into the extradition net. Extradition has a very serious potential consequence for the individual whose extradition is sought, and it is plainly desirable that there should be parliamentary control over the designation of territories to which people in this country can be extradited. I recognise that our proposal goes beyond the existing practice in the Extradition Act 1989, but the Delegated Powers and Regulatory Reform Committee is right in saying that it is not a precedent that can be relied on and that the practice should change.
I should also mention the memorandum from the Home Office to the Delegated Powers Committee, which is printed as an annex to its report, which says in relation to designation under Part 2:
- "It may also be necessary to designate countries on an ad hoc basis".
Amendment No. 151 will require the affirmative procedure for an Order in Council under Clause 70(4), which removes the requirement for providing evidence to support a claim for extradition and substitutes a requirement to provide information. That would make it possible for the court to consider something in the nature of a written statement of the information on which the country requesting extradition relies, but nothing that is in the nature of evidence, which must be given and tested in the courts. That is a major step in making extradition easier. It therefore requires a high degree of confidence in the police and judicial system of the territory that seeks extradition. When that confidence exists, I have no objection in principle to the substitution of information for evidence.
I recognise, again, that what we propose goes beyond the existing requirements under the 1989 Act. I also recognise that the requirement to provide evidence is already excluded between parties to the European convention on extradition. That is a convention of the Council of Europe, not of the European Union, and therefore includes several states that are not members of the European Union and which therefore may not become category 1 territories.
I might not have objected to Clause 70(4) if it had been limited to designation of other parties to the European convention on extradition. Had that been so, it is possible that the negative procedure might have sufficed. However, as it is, Clause 70(4) can apply to any category 2 state. There are many states in that category where it would not be appropriate to dispense with the evidence requirement. I believe that the United States of America is one of them, given the enormous difference in the quality of judgments in the 50 different states, let alone in the federal jurisdiction. In fact, under the new treaty that has just been entered into with the United States, even the need for the provision of information, showing a reasonable basis for the belief that the defendant committed the offence, is excluded on requests for extradition from the United Kingdom to the United States. What is more, it is excluded on a non-reciprocal basis, since that information still has to be provided for the United Kingdom's requests for extradition from the United States. I find the fact that that is non-reciprocal absolutely astonishing.
I give notice to the Minister that we will pray against the order to give effect to the treaty when the Order in Council that gives effect to it is laid before Parliament. Owing to the contents of that treaty, under the Extradition Act 1989 it is subject to annulment under the negative procedure.
I agree with the Delegated Powers Committee that Clause 70(4) permits the removal of important procedural safeguards in relation to any designated territory. Therefore, I agree that it is necessary to use the affirmative procedure.
Amendment No. 168 raises the same issue as Amendment No. 148 in relation to provisional warrants under Clause 72. I do not believe that I need to add to what I have already said, except to point out that in the case of Clause 72 the Delegated Powers Committee also called for the affirmative procedure.
Amendment No. 182 requires the affirmative procedure for an Order in Council that extends in relation to a particular territory the period of 40 days from the date of arrest in the United Kingdom at the end of which the judge must order the discharge of the person whose extradition is requested if the necessary extradition documents are not received. That Order in Council creates a more limited power than others covered by this group of amendments. However, as the Delegated Powers Committee pointed out, even that extension could have a significant effect on the individual concerned. It could in effect amount to detention without trial. Again, I agree with the Delegated Powers Committee that the affirmative procedure should be required.
Amendments Nos. 198 and 205 cover the procedure in court. Amendment No. 198 applies to the procedure under Clause 83—extradition for the purposes of trial—while Amendment No. 205 applies to the procedure under Clause 85—extradition after a conviction in absentia. In both cases, the Order in Council may require the judge hearing the application not to rule on the sufficiency of evidence. It would
therefore remove an important procedural safeguard. Again the Delegated Powers Committee took the view that the affirmative procedure is required—as did the Home Affairs Select Committee in the Commons. Once again, we take the same view.Amendments Nos. 262 and 264 to 266 are consequential. As all those amendments echo the views of the Delegated Powers Committee—as does Amendment No. 2—I hope, as does the noble Lord, Lord Hodgson, that the Government will be able to give a sympathetic response to them.
4.45 p.m.
Viscount Bledisloe: I support the amendment moved by the noble Lord, Lord Hodgson. On the matter addressed by the noble Lord, Lord Goodhart, I confess that to me it is a pity that amendments relating to Part 2 of the Bill have been grouped with amendments relating to Part 1. Although I understand the force of what the noble Lord said—in particular, the iniquity of submitting to America not needing to give us reasons that we must give it—I shall not deal with that.
I seek clarification from the Minister on what countries will be designated and when. As I understood what he said on Second Reading, the intention was that all existing countries in the European Union would automatically be designated, if and when the Bill was enacted. On the other hand, in answer to the noble and learned Lord, Lord Mayhew, the Minister appeared to say that one reason why we must enact the Bill is that, unless we do so, we will not receive the benefits of extradition the other way.
If that is so for us, presumably, we shall not designate countries in the Union unless and until they have enacted similar provisions. First, will designation be automatic or will other European Union countries be designated only when they have enacted—if that is the right word in those countries—the provisions of the agreement?
Secondly, assuming that those countries are designated or remain designated only when they have implemented the agreement, to what extent must they implement it? Let us suppose that Parliament passes one or two amendments to the Bill that make it not strictly in accordance with the agreement. Would that mean that we should not receive reciprocity, or would we get extradition from those countries on a similar basis if we had enacted the bulk of the agreement, but with a few details altered?
Lord Mayhew of Twysden: In order to alleviate an embarrassing silence, perhaps I may, as a member of the Select Committee on Delegated Powers, express the firm hope that the Minister will accede to our recommendations. It is no doubt in the confident expectation that he will do so that the remainder of the committee has fallen silent.
Lord Filkin: I shall deal with the important questions in reverse order, and then return at the end to the two central questions raised by the amendments tabled by Members on the two Opposition Front
Benches. The noble Lord, Lord Goodhart, asked about ad hoc requests. The Extradition Act 1989 allows any country to make an ad hoc request to the UK, even if it has no standing extradition relationship with the UK. That is subject to no parliamentary procedure. We should want to be able to continue to receive such requests and to make judgments about whether it was reasonable to accede to them—for reasons that I hope would be understood.The noble Lord, Lord Goodhart, also stated his concern about the UK-US bilateral extradition treaty and his intention to challenge some of those measures when they come before the House. Let me speak briefly to that.
Why does the new treaty abolish the prima facie evidential requirement for requests from the UK, given that we shall still be obliged to provide it on request to the USA? US extradition law does not permit it to remove the prima facie evidential requirement, but we are in a different position. We have been able to lift the prima facie requirement since 1991. We have already removed it for more than 40 countries, including places such as Albania, Turkey and Latvia. Since the Conservatives introduced that change, there has not been great evidence that that has been a major source of problems.
So we see no need to impose a more stringent requirement on a well-established democracy, such as the USA. It is to our mutual advantage to remove the prima facie requirement and we see no reason why we should deny ourselves benefits simply because US law does not permit reciprocity. That is not the only incidence of absence of reciprocity in extradition. For example, New Zealand operates a backing of warrant scheme in respect of requests from the UK, even though we do not do so in respect of requests from New Zealand.
On the question of the noble Viscount, Lord Bledisloe, about which countries will be designated, I shall speak to the matter later, because I trust that we shall reach it, but our current intention is that Part 1 should constitute EU countries, plus Norway and Ireland.
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