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Lord Mayhew of Twysden: On this point about changing one's religion and seeing Caesar in a different light, I wonder whether the noble Lord does not see the distinction between a case where the person does not give his mind to what is relied upon as his consent and a case where he gave his mind to it but changed it subsequently? Surely they are quite separate.
5.45 p.m.
Lord Wedderburn of Charlton: I appreciate what the noble and learned Lord says. I was not putting forward the case where a man had merely changed his mind but where he had changed his fundamental premises, which everyone is entitled to do.
I know that we have had trouble lately with regulations relating to non-religious people not being covered against discrimination. Other Members of the Grand Committee may not have been there—it is the only occasion on which I have spoken at the wrong time in your Lordships' House—but, if they read Hansard, they will see that we have had trouble in that regard.
A person may not have a religious belief—he may have an atheist belief—but the fundamental premises of what he believes may have totally changed. But I have said enough on this subject. When the Minister looks again at this matter—as I hope he will—I urge him to consider the conditions under which revocability would be allowed.
I move the amendment in this form because the Government are in trouble on this issue. The Minister did not refer to the problem but if, for example, Parliament legislates on this, can he go back to our European partners and say "We want to give a late notice"? Or is European law on this matter so granite faced that he cannot change his position because of the framework decision? If he is able to go back, is he prepared to consider doing so?
It is all very well for the Minister to say that he still adheres to the view that Parliament is sovereign, but if he cannot go back and change our position under the framework decision—the noble Lord shakes his head—which is as binding as a directive in European law, the judge will have to take account of the framework decision whatever Parliament may enact. I am not sure what the judge will do in such circumstances. If the Minister could assure me that he would go back if Parliament legislated for a small area of consent to be revocable, that would be very satisfactory.
If the Minister wishes to add to what he has said before I withdraw the amendment I shall happily give way to him.
Lord Filkin: I am no international lawyer but my understanding is that framework agreements are international treaty agreements between member states; they do not apply to domestic law until such time as their provisions have been enacted in Parliament. Therefore the law of the land is the law as passed by Parliament. I have set out the Government's view. We do not want to go back because revocation is not desirable. Having said that, I have indicated to the noble Lord, Lord Goodhart, that I will reflect on the point he made.
Lord Wedderburn of Charlton: I am grateful to my noble friend. It would obviously be wrong of me to read the relevant parts of the preamble, but this is a European Council Framework Decision of 13th June 2002 issued by the Council of the European Union under Articles 31 and 34. Perhaps the Minister will have another look at that document.
The Minister has still not said whether he would be prepared to go back and ask if Parliament decided that he should. If Parliament instructed him to go back and ask to give a late notice to the General Secretariat, he still has not told us whether he would do so. That raises profound constitutional issues. However, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Goodhart moved Amendment No. 57:
- Page 6, line 6, leave out "are exceptional circumstances" and insert "is good reason"
The noble Lord said: In moving Amendment No. 57, I shall speak also to Amendment No. 59. The amendments are proposed by Liberty.
A judge who is required to proceed under Clause 8(1) of the Extradition Bill must fix a date on which the extradition hearing is to begin. Under subsection (4) that date must be not later than 21 days from the date of arrest. Subsection (5) states:
- "If before the date fixed under subsection (1)...a party to the proceedings applies to the judge for a later date to be fixed and the judge believes there are exceptional circumstances, he"—
- "may fix a later date; and this subsection may apply more than once".
That allows the date fixed for the hearing to be postponed only in "exceptional circumstances". But the right of a defendant—the person concerned is effectively a defendant—to time and facilities for the preparation of his defence is absolutely essential. It is a matter of common knowledge that there are frequently delays in getting authority for the grant of legal aid even where a hearing is imminent. Where the human rights of a defendant would not be observed in a requesting country—and therefore the extradition would be excluded by Clause 21 of the Bill—it may well take time to gather and present the necessary evidence.
These circumstances cannot be regarded as "exceptional". Indeed, delay for the purposes of obtaining legal aid is far from exceptional; it is all too common. But it does provide a very good reason for the extension of time and it is obviously desirable that a defendant who needs more time should not have to show "exceptional circumstances" but merely "good reasons".
I accept that what is sauce for the goose is sauce for the gander and that if a defendant can get a postponement for good reason even though the circumstances are not exceptional, the same rule should apply to the Crown Prosecution Service. The amendment provides that either side can apply for an extension of time where there is good reason.
Amendment No. 59, which is of somewhat less importance, would require the subject of the warrant to be a party to any application by the Crown Prosecution Service for the postponement of the hearing. It is plain that he should be a party to any application which might increase the length of his detention and—even if he is released on bail—the amount of time that an extradition order is hanging over his head.
Although the amendment is not drafted in this way, I would have no objection to all applications under subsection (5) being made inter-party—that is, in the presence of both parties—so that if the detained person applies for an extension of time the Crown Prosecution Service should have a right to be present at that application. I beg to move.
Viscount Bledisloe: The amendment must be right. I suspect that subsection (5) was drafted with a view to the person asking for delay being the Crown Prosecution Service, the prosecutor. It is perfectly reasonable that, before he sets extradition in motion, he should have his tackle in action and not have to keep asking for delays.
As the noble Lord, Lord Goodhart, said, it will happen very frequently that the lawyer instructed by an accused—if that is the right word—will say, "I have not had time to take full instructions" or, "My partner is ill and I am not ready". This happens all the time. To say that a lawyer saying "I need more time" is an exceptional circumstance is a remarkable proposition. I see that I have the support of most Members of the Committee on that.
It cannot be right to say that when the date may have been fixed at a hearing where the defendant was unrepresented—there is no reason why he should have been represented when the date was fixed—and may have thought that it was a very simple procedure. But when his lawyer comes along there may be difficulties. His lawyer may need to consult people; he may need to find out about foreign law; he may need to get translators; we know he will need to get an interpreter in many circumstances. So the lawyer will say, "I am sorry, I am not ready" and the judge may say, "Well,
that is not exceptional. It is absolutely commonplace. I am afraid you cannot have your adjournment". That plainly would be wrong.
Lord Carlisle of Bucklow: I support Amendment No. 57. I am sure that those advising the Minister will accept that the term "exceptional circumstances" has been narrowly construed by the Court of Appeal in many aspects of the criminal law. As the noble Viscount, Lord Bledisloe, said, it would not cover a person who said "For good reasons I am not ready to go on". The words "good reasons" rather than "exceptional circumstances" would meet the Government's requirements and would be fairer to the person who is to be extradited. It would be a sensible amendment.
The clause should perhaps go rather wider and, rather than stating that a judge should believe that there are exceptional circumstances, it should state that the judge is satisfied that there are good reasons.
Lord Mayhew of Twysden: Before the Minister replies, perhaps it would be worth considering a slightly different form of wording. One has to be loyal to the Government's policy—or, to put it another way, I share the Government's wish to speed up the process and to cut out factious delays and factious opportunities to occasion delays—but, at the same time, that cannot be at the expense of justice.
I agree with what has been said about the formulation of "exceptional circumstances", but a judge will require guidance as to what the language employed in substitution for that phrase really means. He will also need guidance on the circumstances in which it is to be used. I am not sure whether the phrase "for good reason" would give him enough guidance.
On reflection, perhaps it would better to use the phrase "where the overall interests of justice require". The phrase "for good reason" seems a little too bland to give a judge the necessary guidance.
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