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Lord Filkin: I shall respond for the Government. I start by thanking my noble friend Lord Wedderburn for the way in which he has made his case. It will not surprise the Committee to hear that we see extreme difficulties in acceding to the request.

First, the business of the House is fixed after careful discussions between the usual channels. It is a Herculean task to try to negotiate how the House's business will be dealt with between the parties in ways that are as fair as possible to all interests. The Government, as the Committee well knows, have no monopoly on that process. The inevitable pain of those processes means that almost every day someone is unhappy with the result. That is why officials, if not Chief Whips, have a difficult task in that process.

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Secondly, the House has agreed to the use of Grand Committee. In doing so, it is explicit—if not, it is certainly implicit—that at times the Grand Committee will be sitting while other business is taking place in the Chamber. That is almost axiomatic. Therefore, there are bound to be occasions, both in this House and in another place, when a busy House has parallel work streams, which means that all Members have difficult choices to make. The sadness is that one cannot possibly organise the business of the House through the usual channels in a way that would meet the wishes of all the more than 600 Members.

By implication of what I have said, it is not out of any obduracy on the Government's part; it is impractical and impossible—I put it at its clearest—for every Grand Committee to be brought to a stop because one Member, quite legitimately and understandably, has pressing interests either in the House or elsewhere. If so, Grand Committees would never sit.

The point made by my noble friend Lord Wedderburn is not quite as extreme as that. I do not think that he was being extreme at all. He was really talking about Bills that were constitutional. I hear what he says about the Fire Service Bill, but my limited experience of the House is that Members tend to feel that there is a constitutional element to virtually every Bill about which they feel passionate. They are not being duplicitous, but they believe that the issue is such a significant one that it goes to the heart of our state and national relationships. I wished to explain those reasons why the Government do not feel that this is a practical suggestion.

Baroness Carnegy of Lour: Am I right to say that this is an experiment; that the Grand Committee system is not necessarily permanent? The noble Lord has made a very important point. I already have an acute conflict of interest. I am sure that we shall have many more. Being a Peer is not really supposed to be about being asked to be in two places at once on two crucial issues, both of which are legislative. It really is not.

Knowing of the noble Lord's expertise, the Fire Service Bill is obviously extremely important to him. It is important to us all, but he will have a big contribution to make to it and he has a big contribution to make to this Committee. So there are problems. The Government cannot just say, "The usual channels have done this and so we shall not think about it any more". I think that the usual channels will hear about this. I just wished to say that the noble Lord is not alone in his problems.

Lord Filkin: In what I said, I sought to indicate that I was respectful of the fact that however the Business of the House is organised, it always causes discomfort and problems to Members. The point being advanced is that the Grand Committee may create slightly more inconvenience. I hear the point.

I am reminded that Grand Committees are not experimental but are part of our Companion. Nevertheless, it is open to the House to decide how it wants to review its arrangements at any appropriate

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point. I do not think that now is the time to go into the matter. Clearly, Members have strong views on these issues. I suggest that an appropriate course of action to follow is for them to make those known, perhaps in writing, to the usual channels.

Lord Wedderburn of Charlton: I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 51 not moved.]

Clause 6 agreed to.

Clause 7 [Identity of person arrested]:

Lord Goodhart moved Amendment No. 52:

    Page 5, line 9, leave out subsection (3).

The noble Lord said: Clause 7 deals with the identity of a person arrested and requires a judge to be satisfied that the person arrested is, in fact, the person in respect of whom the warrant was issued. That is provided by subsection (2), which states:

    "The judge must decide whether the person brought before him is the person in respect of whom . . . the warrant . . . was issued".

Subsection (3) then states:

    "The judge must decide the question in subsection (2) on a balance of probabilities".

Amendment No. 52 would remove subsection (3). It has the same purpose as Amendment No. 53, but it removes the whole subsection, instead of altering the words,

    "on a balance of probabilities",

to, "beyond reasonable doubt".

The Extradition Bill raises the issue of the liberty of the subject. "Liberty of the subject" is an archaic phrase, because it now applies to non-subjects as well as to subjects of the Queen. For category 1 states, with which the clause deals, there is no need to produce supporting evidence of the person's guilt, but it is necessary for the judge to be satisfied that the person before him or her is in fact the person named in the order, because to send the wrong person back to face a criminal trial is a serious miscarriage of justice, even if the mistake was discovered fairly swiftly after the extradition. Of course, one must remember the unfortunate gentleman, Mr Bond, the businessman arrested in South Africa on a warrant issued due to mistaken identity.

Judges should not send people back if the decision that they reach is, "This is probably the same person, but we are by no means certain". If the decision is to be made on the balance of probabilities, that is what judges will have to do. That would be a serious mistake.

I propose the removal of subsection (3) altogether rather than its amendment because I prefer to avoid the use of the words, "beyond reasonable doubt". Those words themselves are now somewhat out of date—for example, they are no longer be used in giving directions to juries in criminal trials, where a judge is required to say, "You must be sure".

In the absence of subsection (3), my understanding is that the court would normally apply the criminal standard of proof, or something close to it—as it does,

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for example, in cases in where an allegation of fraud is made in a civil action and the court does not decide on the balance of probabilities, but on a higher standard of proof. That is appropriate, but I do not think it necessary to specify the standard of proof in the Bill; it is adequate to leave that to the courts. My strong opinion is that the balance of probabilities is not the right test to apply here. I beg to move.

The Deputy Chairman of Committees (Baroness Ramsay of Cartvale): If Amendment No. 52 were agreed to, I could not call Amendments Nos. 53 or 54.

Lord Hodgson of Astley Abbotts: I have three amendments in this group . As the noble Lord, Lord Goodhart, said, Amendment No. 53 addresses precisely the same issue in respect of Part 1 arrests. Amendment No. 190 deals with category 2 territory arrests—the same issue. However, Amendment No. 54 comes from a slightly different angle in seeking to answer the question posed by the noble Lord in respect of our chosen wording.

As the noble Lord said, these amendments focus on Clause 7, on the "Identity of person arrested"—which, as he rightly said, is the first thing to be established at the initial hearing. We have taken up Amendments Nos. 53 and 190 from Liberty and Amendment No. 54 from Justice because of concerns about the drafting of the Clause 7 provisions for establishing the identity of the arrested person. That is why we have had a slightly less root-and-branch approach than the one that the noble Lord recommends.

Amendments Nos. 53 and 190 propose a change in subsection (3) from the civil "balance of probabilities" to the criminal test of "beyond reasonable doubt". We know that the civil test is considerably less stringent. In fact, Liberty has commented in its briefing, which I am sure that other noble Lords have received, that it is of "an unacceptable standard".

I understand the arguments which are undoubtedly in the Minister's brief against the proposed change. The initial hearing is a preliminary step and not part of the criminal procedure. However, we think that the amendment is justified for the following reasons. As the noble Lord, Lord Goodhart, again pointed out, no prima facie evidence is being provided. So long as the judge believes that the person in front of him is the same as the person named on the warrant, remand and further arrangements for the extradition will ensue automatically. If the judge is not satisfied, the person will be discharged.

We do not understand—and we share the concern of the noble Lord, Lord Goodhart, about this—how the judge will be able to satisfy himself on a balance of probabilities test. What identification methods will be used? There are many cases of stolen identity; examples have already been given. Indeed, noble Lords whose credit cards are stolen are probably contributing to the creation of fresh identities. Occasionally hugely high-profile cases come to light, such as that of Mr Derek Bond. However, it is

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remarkably difficult to assert one's innocence if for all intents and purposes it appears that one is the aforementioned person.

I turn briefly to Amendment No. 54, the amendment put forward by Justice. It comments that,

    "as currently drafted, clause 7 contains no specification on the evidential standard required or where the burden of proof lies in determining the identity of the accused. The drafting appears to create the role of an investigating magistrate, unknown to UK law. The proposed amendment would clarify this position in the interests of procedural rigour".

Justice's point is essentially to establish whether it is the judge or the prosecution—one or the other—who should have the task of asserting the person's identity. Justice would like the Bill to state clearly that it is for the prosecution to satisfy the judge that the "Mr Smith" before them is the same "Mr Smith" as named in the arrest warrant. Currently the Bill is vague about how the judge is to make his decision and on what evidence.

Although we understand and support the objective of the noble Lord, Lord Goodhart, we believe that in the interest of clarity it would be best if identity test procedures were made clear in the Bill. That is why we have tabled the additional amendments in this group.

4.15 p.m.

Lord Clinton-Davis: I support what the noble Lord, Lord Goodhart, said, and I prefer his approach to that set out in Amendment No. 53. I entirely agree with him that the use of the words, "beyond reasonable doubt", is, in this day and age, otiose. There is a duty on the authorities to establish that they have the right person. The argument that he adduced is entirely right.

In criminal law, or something akin to criminal law, the words,

    "on a balance of probabilities",

should not be used. Although I have something else to say about that, I do not want to delay the Committee, but the arguments offered to the Committee by the noble Lord are entirely right. Although he is of course obliged to withdraw the amendment, I hope that he will bring it back—or, better still, I hope that my noble friend will accommodate it.

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