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Lord Bassam of Brighton: I am grateful to noble Lords for having tabled the amendments and to the noble Lord, Lord Goodhart, for the amendment standing in his name. It will help us to put on the record and to clarify at least one issue to everyone's satisfaction.

The amendments are concerned with the provision in the Bill which ensures that no country retaining the death penalty can be designated as a Part 1 country. Perhaps I should explain the history of that provision, although the noble and learned Lord, Lord Mayhew of Twysden, has given us some of the history, since it was not in the Bill when it was first introduced.

As we have previously indicated, it is our current intention to designate only EU countries together with, perhaps, Norway and Iceland as category 1 countries. None of those countries retains the death penalty in any circumstances.

It is not impossible that Parliament might one day decide that certain key Commonwealth extradition partners should be in Part 1—Australia, Canada and New Zealand are countries which spring to mind. Again none of those countries use the death penalty in any circumstances.

The United States of America is the only country with which we have any significant volume of extradition business that retains, and uses, the death penalty. For the avoidance of doubt, let me make it clear that we have never had any intention of designating the USA as a Part 1 country, and, indeed, the USA Government have made it clear to us that they would not want to be so designated.

In addition, the human rights clauses in the Bill mean that we would be unable to extradite in any individual case where there is the prospect that a death sentence would be carried out. So I hope the Committee will agree that the prospect of anyone ever being extradited to a category 1 country to face the death penalty is remote indeed.

Nevertheless, the Home Affairs Committee in another place recommended that there should be an explicit provision to the effect that no country which retains the death penalty can be a Part 1 country. While we believed, for the reasons which I have just given, that this would make no difference in practice, we were happy to go along with the Home Affairs Committee's recommendation, as we were with many of its other recommendations. The result is now contained in Clause 1(3). It simply provides that no country which retains the death penalty can be designated as a Part 1 country.

So I can assure my noble friend Lord Clinton-Davis that the use of the word "may"—as several noble Lords have rightly recognised during the course of the

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debate—is absolute for these purposes and does not allow any means of getting around the provision. So, his amendment to substitute the word "must" will not serve any purpose. Similarly, I am not sure what the other amendment in the group would achieve. It may be that it is designed—

Lord Clinton-Davis: If we did use the word "must" instead of the word "may" my noble friend has implied that there would be no difference. So why do we not use the word "must"?

Lord Bassam of Brighton: The answer is because there is no need to. It is commonly used and understood in these circumstances—a point made by the noble Baroness, Lady Anelay, and equally well by other noble Lords. We are content with the current wording. To change it to "must" would not add anything.

It seems that Amendment No. 5 was inspired by concern about civil offences or perhaps military offences in particular. We are not aware of any such countries and there are certainly none among those countries which we could ever possibly consider designating as category 1 countries. We do not think that the amendments are necessary. I hope that the reassurance I have given, in particular with regard to Amendment No. 4, satisfies Members of the Committee. We cannot always satisfy everyone in these debates. I hope for those reasons that the noble Lord will feel able to withdraw his amendment.

Lord Corbett of Castle Vale: I apologise for having to slip out earlier and I in no way want to antagonise my noble friend, who is such a valuable member of the House of Lords' tug-of-war team. My noble friend twice spoke about countries which retain the death penalty. Twice in the last century, one current member and one prospective member of the European Union had military dictatorships imposed on them. I do not know the detail. Reference was made earlier to the possibility of martial law being introduced in those circumstances and the death penalty being extended to all kinds of offences that those responsible for the break in democracy did not like. Is the implication of Clause 1(3) and what the Minister has said, that in the circumstances where this is not retaining the death penalty and it is reintroduced, that the category 1 designation would then be revoked?

Lord Bassam of Brighton: It is rather better than that. If there was a military dictatorship, Clause 21, which relates to human rights, would of course prevent us from extraditing to those countries to which my noble friend has drawn attention.

Lord Mayhew of Twysden: The Minister might think that there is a case for reviewing the wording of the subsection. I am afraid that I do not have in my mind exactly what was in the mind of the Home Affairs Committee in another place. I suspect that it wanted an absolute assurance that no one would be sent back to a country which has the death penalty in respect of an offence that could carry the death penalty there. I do not feel that the Minister has quite addressed the

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point raised by the noble Viscount, Lord Bledisloe, about whether it really is the Government's policy that someone should no longer be able to be extradited for a serious fraud, for example, simply because it is a country which has become one that uses the death penalty. The issue needs to be looked at again. I quite see why the Home Affairs Committee in another place may very well have wished to be absolutely certain that no one should be sent back where there is a risk that they should suffer the death penalty in respect of the offence concerned, but there seem to be certain possible unintended or undesirable ramifications which need to be either addressed now or looked at again.

Lord Bassam of Brighton: I have listened with great interest to the noble and learned Lord, Lord Mayhew. Yes, obviously we will revisit the wording if that is helpful. I thought we had made clear what our position was and for that reason put in the new Clause 1(3). I hope also that the words that have been spoken today into the Official Report make it fairly clear that it is absolutely our intention that we would not seek to extradite in circumstances where someone was at risk from the death penalty. That is the Government's position.

Viscount Bledisloe: I am unclear what the noble Lord is saying. We have a country which does not have the death penalty at all. It is therefore able to be and is designated. It then has martial law introduced. That allows the death penalty for certain limited offences. Is it intended that that designation will immediately be revoked totally? Or is it intended merely that if the extradition is requested for an offence that could carry the death penalty, that extradition will be refused under Clause 21?

We have two very different circumstances. As I understand Clause 1(3), the Government have decided for some reason that if you have the death penalty for any offence however remote—for example, a special form of treason—you cannot be a category 1 country for any offence at all. The noble Lord's answer about a country that changes its laws appears merely to be saying, "They will remain designated, but if the offence in question is a death penalty offence, then Section 21 will bite and the person will not be extradited, on human rights grounds." Could the noble Lord more clearly explain the Government's position? If this is a new point and he would prefer, will he write to us about it?

6.30 p.m.

Lord Goodhart: I am sorry to intervene on this. However, would not the most likely position be that if a country reintroduced the death penalty, it would cease to be eligible to be designated under Part 1, but it would of course be possible to re-designate it under Part 2—in which case the protections against extradition for death penalty offences which apply to

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Part 2 would come into play, although it would still be open to extradite in that way for fraud or any other serious offence?

Viscount Bledisloe: With respect, the noble Lord has missed the point. Designation is a one-off event. If you are designated, you are designated by an Order in Council. That Order in Council, regardless of whether it is subject to the affirmative procedure, stands. It would be well and good if the Government were saying that we would immediately de-designate any country that had martial law and introduced the death penalty for an offence under it. However, they have not said that, and I do not believe that they mean it. I do not think that they should mean it.

Lord Bassam of Brighton: The noble Viscount, Lord Bledisloe, raises an important point. I thought and hoped that we were clear on that, but perhaps it is worth reflecting on it between now and Report. It is worth putting on the record the general point that both the human rights clause and ECHR case law have established that we would not extradite in any individual case where there was a prospect of the death penalty. It would then be for Parliament to revoke the designation order. However, that does not necessarily cover the noble Viscount's point. It is important that we reflect on this to ensure that we have the policy absolutely right.

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