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Lord Clinton-Davis: Does my noble friend have any plans to introduce something of this kind by way of regulation? In principle, I very much agree with what has been said for the Opposition by the noble Lord, Lord Hodgson, and the noble Lord, Lord Goodhart. This issue of representation is very important, but, in my view, it can be dealt with procedurally as well as in the Bill.
It is incumbent upon my noble friend to say what are his intentions. At the moment, the whole thing is shrouded in mystery. I hope he can help the Committee to find a way through this shroud.
Viscount Bledisloe: I venture to suggest that both these amendments go too far. Amendment No. 55, in the name of the noble Lord, Lord Hodgson, makes it imperative that the judge ensures that the person has received independent legal advice. He may have refused it. The amendment does not say, "received or had available", it just says "received". So the man who does not want to be extradited refuses to see a lawyer; therefore, he has not received legal advice, and the judge has to discharge him.
Equally, the amendment in the name of the noble Lord, Lord Goodhart, would delete the provision covering a person who was granted legal aid but the legal aid was withdrawn. Let us suppose it was withdrawn because the person in question was racially abusive to the lawyer appointed and assaulted him. If the person knows that once legal aid has been withdrawn for that sort of reason, he cannot be sent back, it seems a rather easy way out of extradition.
Lord Clinton-Davis: The lawyer may have deserved it.
Baroness Carnegy of Lour: Amendment No. 218 in my name would amend Clause 125; it makes a small but necessary point about the matter of consent in Scotland. Subsection (9) states that, on consent, a person will be treated as legally represented only if,
- "he has the assistance of counsel or a solicitor".
The Law Society of Scotland points out that in Scotland there is an alternative. A solicitor could instruct a solicitor-advocate to represent his client—that is, a solicitor who has been granted rights of audience in various courts, including the High Court of Justiciary. To ensure that this is possible, this amendment would need to be inserted.
I should add, with apologies, that I should have tabled a similar amendment to Clause 44 relating to Part 1 consents. This amendment relates to Part 2. I apologise for that omission, but I think the point is made with this single amendment.
Unless it is absolutely certain that the word "counsel" in the Bill includes solicitor-advocates in Scotland, I hope the Government will accept the amendment.
Lord Bassam of Brighton: I am grateful to all noble Lords who have contributed to this debate. The amendments relate to the important issue of consent to extradition and, specifically, to the legal advice that is available to persons in such circumstances.
[The Sitting was suspended for a Division in the House from 4.56 to 5.7 p.m.]
Lord Bassam of Brighton: As I was about to say, it is worth recording that somewhere between a quarter and a third of those who are the subject of extradition proceedings in this country consent to extradition, so it is not an insignificant issue. That makes it all the more important that those concerned understand the full implications of giving consent. For that reason, the judge is required at the initial hearing to explain to the fugitive about the possibility of giving consent and the consequences of so doing.
We have gone further than that. Under Clause 44(5) and (6) and the corresponding provisions for Part 2 in Clause 125, the judge is not able to accept the fugitive's consent unless the fugitive has had the opportunity to take independent legal advice. I think that is pretty much what the amendments standing in the name of the official Opposition seek to achieve. I hope that they will accept that, on this occasion, we are, in effect, a step ahead of them.
The noble Lord, Lord Goodhart, by contrast, in his probing amendment, is aware of what the Bill provides but would like some changes. In particular, he seeks to remove Clause 44(6)(b) and (c). I hope I can also reassure him that every person who is arrested in an extradition case has the same entitlement to independent legal advice as those arrested in purely domestic cases. The duty solicitor scheme is designed to ensure that this advice is available before the first court appearance. In the extradition context, this means that legal aid is available before the fugitive has any opportunity to consent to extradition.
As I am sure noble Lords are aware, the availability of legal aid is no longer based on a means test but instead on an interests of justice test—a merits test. Anyone who faces the prospect of imprisonment is entitled to legal aid. By definition, therefore, everyone in an extradition case is entitled to legal aid. However, it is not impossible that the rules may change, though
I hasten to add that the Government have no plans to do so. At some future point, certain people, including those in extradition cases, may not be entitled to legal aid. That is a decision of Parliament. I do not see that such people should be prevented from being able to consent to extradition if that is their wish, particularly as they might well have made their own arrangements for legal advice.Clause 44(6)(c) deals with legal aid being withdrawn. The noble Viscount, Lord Bledisloe, got it absolutely right: it is very rare for this to happen, but it can happen in extreme cases where a person is obviously abusing the system by constantly seeking to dismiss his legal representative or by being rude, violent or unpleasant to his lawyer. It is very rare, but if a person abuses the system in this way and then wants to consent to extradition, we should not seek to stop this happening.
The effect of the Liberal Democrat amendment would be that a consenting defendant would be made to go through the whole extradition process, impacting not just on court time but also on costs and, possibly, the defendant's own well-being.
Amendment No. 218, in the name of the noble Baroness, Lady Carnegy of Lour, would ensure that the definition of being legally represented before the appropriate judge will extend in Scotland to solicitor-advocates. I can assure her that this is unnecessary, as solicitors in Scotland who enjoy, as she said, extended rights of audience, are still solicitors. They are therefore caught by the reference to "solicitor" in Clause 125(9). In every eventuality, the references are the same and the effect is the same. I hope that noble Lords and the noble Baroness will see that there is no further need to pursue these matters.
Lord Goodhart: I am grateful to the Minister. I am particularly relieved at his assurance that the criminal merits test will be applied here. I see some force in the argument relating to Clause 44(6)(c), as pointed out by both the noble Viscount, Lord Bledisloe, and the Minister, in that the person against whom an extradition order is sought might have had legal aid withdrawn because of gross misconduct. However, I found the Minister's argument on Clause 44(6)(b) distinctly unconvincing. If this is a protection of people facing extradition against the possibility that the rules might change as to the merits test, which was what I understood the Minister to say, I cannot see why Clause 44(6)(b) is relevant. Clause 44(6)(a), by necessary implication, means that there must be a right to legal aid which cannot be withdrawn. I should be reluctant to bring back an amendment which, it seems, would do no more than remove what appear to be some unnecessary words that would, in practice, have no effect. However, I will read what the Minister has said and consider the argument.
Baroness Carnegy of Lour: May I clarify what the Minister said in response to Amendment No. 218? I understood him to say that a solicitor advocate is still a solicitor and so he is included as a solicitor. My understanding was that the word "counsel"
represented the function in the High Court. My question was whether "counsel" included the solicitor-advocate. I want to be quite clear about this.5.15 p.m.
Lord Bassam of Brighton: It does cover the term.
Baroness Carnegy of Lour: The word "counsel" includes the solicitor-advocate?
Baroness Carnegy of Lour: That is not what the Minister said, actually. I just wanted to be quite sure. Thank you very much.
Lord Hodgson of Astley Abbotts: I, too, am grateful to the Minister for his comments. I understand the defects in the drafting as regards, "receiving independent legal advice". The fact that I did not see how such provision might be abused shows that I have lived in a very sheltered world. Clearly it is a drafting defect. There is another error. Clause 71(7) should have been struck out as subsidiary to Amendment No. 164. I point that out before anyone else does.
We were concerned about the timing. That is the real issue. Clause 44 comes into play when the whole procedure is under way. We are discussing the issue under Clause 8, which deals with the initial remand hearing. We wanted to give the person time to reflect. I am not quite clear, but the Minister can probably tell us, whether it is envisaged that after Clause 44 comes into play—which is when the train is rolling; and the Bill's purpose is to enable the train to roll swiftly—the procedure will allow adequate time for the person to obtain that advice. We are not arguing against what the Minister said. We are merely saying, "Should it not come a littler earlier so that the person has a chance to get legal advice?"
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