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Lord Lamont: Surely if that had been an extradition case, prior to this Bill, would not dual criminality have applied? It would have been said that there was no case for extradition. We all know that the case against those people was absurd and a disgrace. What defence could they have made? I am astonished to hear the Minister say that we would not have objected to their extradition. Of course it is a matter for the courts, but
it would have been a scandal if they had been extradited. Again, surely they would have been protected by dual criminality.
Viscount Bledisloe: With respect, perhaps the noble Lord has misunderstood the rule against dual criminality. The charge made against them was one of espionage. As the Minister pointed out, that is also a crime in England. The complaint made was that we did not think that the evidence added up to espionage. But so far as dual criminality is concerned, they would not have got out of it on those grounds.
Lord Filkin: That is exactly correct. The charge of espionage meets the dual criminality test. I shall not delay the Committee on that point, but return to the heart of the matter.
Lord Lamont of Lerwick: Is that all?
Lord Filkin: On the Greek plane-spotters? Yes, it is.
If Part 1 should be used to extradite terrorists, that begs the question why it is not appropriate for other serious criminals. All Members of the Committee understand that international crime seriously affects the lives of our fellow citizens, whether it be the scourge of the trade in illegal drugs, of people trafficking or of promoting illegal immigration into this country.
The amendments could lose the great benefits afforded us by the EAW framework decision—the real benefits of being able to seek the return of nationals from countries which currently refuse to extradite their own nationals. We would lose the benefit of being able to extradite those who commit fiscal offences. I indicated that previously in relation to someone who had defrauded the Exchequer of more than £1 million. The Italians would not extradite him to face trial in this country because they did not have an exactly identical charge or crime in their country. That person therefore escaped justice. We would also lose the benefits of the speed of extradition that the instruments would give us with our own fellow member states.
There is a significant difference between three months and six months. If the person is brought to trial within three months, the prospect is greater that he will face justice appropriately than if it is six months or more. The delay is not in the interests of the victims of crime who, as we signalled previously, must be paramount. We do not see why those who commit serious crimes should not also be subject to the fast-track procedures that we propose for Part 1, which strike the right balance between ensuring the right to fair treatment under the law as well as speed of decision.
We have already heard, and will no doubt hear further, that that is too different from current procedures. However, we need to start unpacking why that is. What is it in Part 2 that is lacking in Part 1 that makes Part 1 so unacceptable? It seems to boil down to two issues, or three at the most.
First, people might cite the ability to have repeated judicial review challenges that seek to delay the day. I do not in all honesty believe that that is the thrust of
the argument from Members of the Committee who are concerned about the measure. I do not believe that the repeated delaying mechanism—the ability to keep on mounting a judicial review even though it has no merit or hope—is what is really being sought.Perhaps, then, Members are concerned about the other two issues: ministerial involvement and dual criminality. I am slightly surprised to hear the charge that ministerial involvement is something that we need to keep in these Part 1 cases. In essence, we should be open about what value it would add in the Part 1 cases. In short, Ministers exercising ministerial judgment in this respect have always to be thinking of the judge on their shoulder and whether any judgment that they make would stand the test of judicial review.
Therefore, Ministers must, if asked to make a ministerial judgment, reflect as to what the court would decide if it was challenged. They are almost acting in a quasi-judicial function already. Our position is that we should let the court decide those issues in the limited circumstances in which Part 1 cases seem to us appropriate. Clearly, we are not for a second saying that Part 1 cases are appropriate for all countries.
On dual criminality, I put two questions. Do we believe that when someone is residing in a country they should obey its laws? If the answer is yes, do we think that it is unacceptable that a person should be able to evade justice if they manage to get over the right border before being brought to justice? Without wishing to be contentious, those are the questions that we should all ask ourselves.
The Government's position is clear: if we wish to have a reduction in international and domestic crime, we must have an effective system that brings people to face justice speedily and effectively while giving them the protections to which they are entitled against unfair process.
Lord Lamont of Lerwick: Would that not depend on the gravity of the offence? Does a sense of proportion not come into it? I have read in newspapers that France is introducing a new offence of whistling during the national anthem. I do not know whether that carries more than one year and therefore becomes an extraditable offence but, if it does, in common sense someone should not be extradited for that.
Lord Filkin: That touches on an important issue. The noble Lord, Lord Lamont of Lerwick, is again right about the threshold for the processes. We will debate that in some detail when we come to it. The noble Lord signalled that the threshold that we propose or that the framework decision proposes is too high and that he would be happier with a framework based on a five-year sentence. We will debate those issues. In a sense, we are arguing about a threshold, rather than a principle.
Lord Carlisle of Bucklow: The Minister posed two questions. Is there not a third? If the person has come
back to this country from another country, should he be returned to that country to stand trial for something that would not be an offence if done in this country?
Lord Filkin: The Government's position is that he should. When in Rome, one should do as the Romans do. If we do not take that position, we are basically saying that, as long as someone can run for a border fast enough, he will escape justice. That is not a credible or responsible position, given the reality of international crime. I do not wish to put it too bluntly, but, if I were a terrorist, I would hope that the amendment would be made.
Lord Carlisle of Bucklow: The Minister must agree that the sort of serious crime that he mentioned is already covered by the Bill. We are talking about the removal of dual criminality in cases that may be of minor importance.
Lord Filkin: I do not think that some of the examples that I gave were of minor importance, in terms of the statute of limitations, which we talked about at Second Reading, or in terms of fiscal offences, in some countries. We will come to the matter in more detail at another time, but the thrust of the dual criminality issue is that we do not want to have a pedantic, if I may put it that way, emphasis on having an exactly identical law for serious matters—we will discuss those serious matters later—that would prevent someone from facing justice.
If we adopted such a position, we would make it more difficult to bring to trial people who should be brought to trial. That is not to say that they should be convicted, but they should, at least, be brought to trial.
5.45 p.m.
Lord Stoddart of Swindon: Like others, I believe that, in the last analysis, it is the Government who should protect the citizen and the citizen's rights. The Home Secretary believes in intervention in judicial decisions. Only recently, he said that he intended to take certain actions that would allow Ministers to intervene in matters of sentencing and in decisions on asylum and immigration. Ministerial involvement is not necessarily a bad thing. The Home Secretary believes in it in certain circumstances.
I believe in ministerial involvement in this circumstance. A citizen will be physically removed from this country to another jurisdiction, where, as has been said, the laws will not be properly understood and will not equate to those to which he or she is used in this country. So that there is, in my mind anyway, a case for ministerial involvement. I hope that the Government will reconsider their attitude on this issue, particularly bearing in mind the Home Secretary's announced views with great press coverage that he also believes that Ministers should be involved in the judicial process.
Lord Mayhew of Twysden: Perhaps I may intervene while the Minister is considering how to reply to that. I would not wish to align myself with everything that the Home Secretary has recently been saying about the
judges. Indeed, I do not think that I would wish to align myself with anything the Home Secretary has recently been saying about the judges.I was touched and gratified to hear the Minister speak of Ministers always having regard to the "judge over their shoulder" because when I was the Attorney-General I sponsored the little booklet with very entertaining graphics entitled Judge Over Your Shoulder. That has had a salutary effect because it has meant that Ministers in purporting to exercise their functions have had to have regard to the limits of judicial review. They do not put themselves in the position of the judicial authority. All they do is to look at the road that he or she has taken. If he has taken a wrong turning and misdirected himself and behaved unfairly, the judge says, "Go back and do it again. Start again and see where you get to this time following the right road".
So I believe that judicial review, contrary to the opinions of the Home Secretary and be it said some of his predecessors in my government, will be an effective curb upon the abuse of executive powers. That is not to say that there does not remain a place for ministerial involvement in extradition, or so I believe. The Minister will not have the answer at his fingertips now, but I should like him to reflect on why the extradition legislation for over 100 years has involved a ministerial position.
I can think of a rather sensible reason. However, I do not know whether research shows that this has been the explanation all along. It is that it is extremely important that any extradition procedure in this country should carry the confidence of the ordinary public. Let us take the perhaps slightly fanciful example of a British citizen who is arrested in Spain for interfering out of principled motives with a bull fight because he takes a particular view about bull fights. He returns home and extradition is sought to enable Spanish law, which may be a savage law in those circumstances, to take its course. It seems important from the point of view of confidence among the ordinary public in the extradition system, that a Minister should have the ability to decide whether extradition using British law enforcement officers should be activated to send that person back to undergo trial.
I am not presuming to say what the answer should be but I think that there is, in terms of public confidence, a proper place for a Minister at the process end of the judicial proceedings. Perhaps the Minister might care to reflect upon that.
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