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Baroness Turner of Camden: Will the noble Lord, Lord Lamont of Lerwick, ask his question before I withdraw the amendment? That is probably the best way round.
Lord Lamont of Lerwick: Everything that the Minister said seemed to follow logically. Of course, there are all those provisions in the European Convention on Human Rights. I think it is the case that the Strasbourg court has judged that, for example, the practice of having investigating magistrates is consistent, as it chooses to define it, with the presumption of innocence.
For me, that does not satisfy. As a body passing the laws of this country, we must ask ourselves whether, in reality and in common sense, such practices are consistent with it. It may be an arrogant argument, but it is our duty to ask ourselves whether such practices comply with those concepts, when we make changes in the law.
Even if a country were judged to be compliant with the ECHR, we would not be justified in removing all the safeguards built into the existing extradition procedure. A country may be generally compliant, but there may be exceptions. If an exception arises in a particular case, the ECHR is of no use to the individual. It will take him years to get to Strasbourg.
For the convention to bite, every judge in every court throughout the European Union must be fully conversant with it and, in his daily professional life, make sure that the cases in which he is involved conform to it. With great respect, I must say that there is quite a lot of evidence that that is not the case.At Second Reading, several noble Lords quoted from the evidence of Fair Trials Abroad about legal aid. The noble Lord, Lord Goodhart, spoke about legal aid in southern Europe. We know that legal aid in Greece and Spain is thoroughly inadequate, whatever the convention says. We know that, whatever is said about translation facilities, Fair Trials Abroad said that France—I think that this is right, although I speak from memory—said that it provided all the translation facilities. Fair Trials Abroad said that it had never come across a case in which it had been involved in which France had met the standards that it said had been laid down. It also referred to several cases in Portugal.
Lord Hodgson of Astley Abbotts: The Fair Trials Abroad report on Teresa Daniels said that her conviction was on her diary entries in English which had been mistranslated into Spanish. It was as bad as that—a translation the wrong way convicted her eventually.
5.45 p.m.
Lord Lamont of Lerwick: Of course there may be one bad case in one country, but Fair Trials Abroad argued that there was a pattern of such cases. It is just not enough to argue, in order to persuade us to assent to these legislative changes, that all these countries have signed the European Convention on Human Rights. The question is whether these matters are, in reality, being observed as we would judge they ought to be observed, quite apart from how other countries choose to define them.
Lord Stoddart of Swindon: Before the Minister replies, could I ask a simple question? Would the insertion of this amendment do any harm to the Bill?
Baroness Scotland of Asthal: I think I have tried to explain that one of the important things that we have to ensure is that each applicant—each person who becomes subject to such an order—must have an opportunity to take advantage of all the provisions in relation to the ECHR, not only some of them. That is why I thought it might be helpful if we looked at the provisions of Article 6.2 and then those of Article 6.3, but we could have gone through the whole of the ECHR, picking out various parts on which we would say others were entitled to rely.
On the point of the noble Lord, Lord Lamont, each jurisdiction is equally jealous of the benefits of its own system. If you talk to Italians, French, Spaniards—
Lord Lamont of Lerwick: Not Italians.
Baroness Scotland of Asthal: Well, I have had the benefit of being involved in the Convention on the
Future of Europe for 15 months and I can assure the Committee that each jurisdiction believes that their excellent systems far outdo any other system known to man. This is particularly a feature of lawyers from the various jurisdictions, who are firmly ensconced in their own tradition. I do not hesitate to say that I have a huge fondness for the common law and think it is extraordinarily attractive and should be promoted. But that is an attraction which I daresay others may not feel if they come from a different tradition.So one has to look at the system overall to see whether the system in each of our countries complies with ECHR provisions. I am sure that other jurisdictions could point to miscarriages of justice and improper procedures which have, regrettably, happened on occasion in our jurisdiction and make very similar comments to those which have been made by the noble Lord in relation to our French and other European colleagues.
The important thing is that we all operate a system which is fair, which complies with the ECHR, and that there is parity of treatment. If the judge finding the matter before him is not satisfied that there is compliance with the whole of the ECHR, it will of course be open to that judge to so find. In this jurisdiction, we have some very robust and skilled lawyers who argue these cases very fully on a daily basis.
We also know that there are grounds upon which one can appeal if the district judge's decision is not found to be sound. So we believe that there are sufficient safeguards within the system to make us assured that this will work, and work well.
I remind noble Lords that we have for some time had difficulty in relation to extradition—in getting some of our colleagues to extradite those who committed offences from their countries to this country and vice versa. Those proceedings have been very lengthy. It will inure to our advantage to have a system whereby we can oblige other countries to comply in a way which we think proper in relation to extradition. The provisions are sufficiently robust to make us feel content.
Baroness Turner of Camden: Again, I thank Members of the Committee who participated in the debate—in particular the noble Lord, Lord Lamont, who spoke on the basis of his experience of European jurisdictions, and so on. I shall of course seek to withdraw the amendment. However, I should like to consider what has been said because I think that there is a case for saying that, as the presumption of innocence is so important in British law—this is after all a British Bill—we should perhaps have it written into the Bill nevertheless, despite the arguments advanced by my noble friend about that being unnecessary. In the meantime, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Goodhart moved Amendment No. 87:
- After Clause 21, insert the following new clause—
The noble Lord said: Amendment No. 87 is intended to be spoken to together with Amendment No. 207. Amendment No. 87 raises what I believe to be an issue of outstanding importance. Indeed, it is an issue which gives rise to what I see as the most serious objection to the European arrest warrant—the variable standard of legal process in some member states of the European Union. That is an issue which I find far more troubling than the abolition of dual criminality. I regret that a proposal that has been floating around for some time, for a framework decision on minimum standards of legal process, has not so far made significant progress.
Clause 21 provides an important—indeed a vital—safeguard for the European arrest warrant procedure. It says that the judge must decide whether the person's extradition would be compatible with that person's convention rights under the ECHR. Of course, if they are not compatible, that person must be discharged.
The most relevant convention right—although not the only one, as we have discussed in the past few minutes—is the right to a fair trial under Article 6 of the ECHR. Article 6.1 confers the right to,
Article 6.3 is, I believe, of particular importance because it covers the problems which are the most common grounds of criticism of the process in some of the EU states—in particular, the lack of adequate free legal assistance, under Article 6.3(c), and the lack of interpretation facilities under Article 6.3(e).
The European arrest warrant greatly limits the grounds for avoiding extradition. The main grounds on which someone who is anxious to avoid extradition would have to rely would be either the presence of one of the bars to extradition under Clause 11 or incompatibility with convention rights under Clause 21. Clause 21 is therefore likely to be used frequently as a basis for resistance to extradition. That means that
In that context, Amendment No. 87 has a number of purposes. The first is to ensure that a United Kingdom court pays proper attention to the requirements of Article 6.3—not of course in any way exclusively; but it draws those particular provisions to the court's attention, in the same way as, in the Human Rights Act 1998 itself, the need for freedom of the press was drawn to the attention of the court.
The second purpose of Amendment No. 87 is to allow the judge in a United Kingdom court, if the judge is not satisfied that the Article 6 requirements are regularly observed in the requesting state, to accept assurances that in the particular case before the court, those requirements will be satisfied. That proposal is drawn from the procedure under Clause 93, which applies to extradition to category 2 territories that still apply the death penalty. The Secretary of State can in such cases accept assurances from the requesting state that the death penalty will not be imposed.
So it seems to me that in an appropriate case the judge conducting the extradition hearing should be able to accept written assurances that the rights of the person whose extradition is being sought under Article 6.3 will be observed and that that person will be entitled to full legal aid—to appropriate legal aid—and to appropriate interpretation assistance. That will shorten proceedings in the United Kingdom by making it unnecessary to investigate whether, as a general rule, rights under Article 6.3 will be observed in the requesting territories. It will also help to ensure that the convention rights of the person facing extradition are duly observed.
It is of course important to ensure that promises by the requesting state are duly complied with. Clause 93, on assurances concerning the death penalty, does not provide for monitoring. I think that that is understandable, because either the death penalty is applied or it is not. If it is applied, there is no way of keeping that fact secret. But of course a question as to whether convention rights under Article 6.3 are complied with is open to argument and to a degree of uncertainty.
Therefore, whether in any case assurances have been complied with is something which requires monitoring. The new clause provides for monitoring. It does not specify how it is to be carried out, but it could be carried out by employing a properly qualified local lawyer, for example, to observe the case. The penalty in the case of failure to comply with the assurances is that the fact of non-compliance can be brought to the notice of a court in the United Kingdom on any subsequent request by the same territory, and it is therefore likely to mean that similar assurances will not be accepted in a later case if they have not been observed in an earlier one.
The new clause provided by the amendment therefore improves the existing procedure under the Bill in several ways. Where an assurance is given and accepted, first, the person extradited is given a specific promise that his or her rights under Article 6.3 will be observed, and that that promise is itself likely to be observed. Secondly, the new clause will obviate the need for lengthy evidence and argument about the standards of process in the courts of a requesting state in respect of which any doubt exists. Thirdly, whereas the Bill currently provides that extradition would have to be refused because of uncertainty about standards in the requesting state, the new clause will mean that in some cases a criminal will be returned to face trial.
Amendment No. 207 applies the same procedure to the human rights defence under Clause 86 in relation to extradition to category 2 territories. The same arguments broadly apply in that case as well.
If the amendments are not accepted, I fear that we may find that the extradition process is tied up by repeated arguments as to whether standards of justice in other member states are in fact in full compliance with Article 6. I believe that that is something which we should make every effort to avoid. I beg to move.
Baroness Anelay of St Johns: My name is attached to these amendments and I rise, very briefly, to lend them my full support. It would be wrong of me to go into detail; the noble Lord, Lord Goodhart, has made a formidable case. He said in his opening remarks how important were these amendments. Let the Committee be in no doubt that we agree with him that they are vital to the well-being of the Bill.
"MINIMUM PROCEDURAL RIGHTS
(1) In reaching a decision under section 21(1) the judge shall have particular regard to the person's Convention rights under Article 6.3 of the European Convention on Human Rights.
(2) For the purposes of subsection (1), the judge may accept a written assurance from an appropriate authority in the category 1 territory in which the warrant was issued that the person's Convention rights under Article 6.3 will be observed.
(3) Where a written assurance has been given under subsection (2), the Secretary of State shall make arrangements to monitor the future conduct of the proceedings in the category 1 territory to which the person has been extradited.
(4) If the Secretary of State concludes as a result of monitoring under subsection (3) that the person's Convention rights under Article 6.3 have not been observed, he may draw that conclusion to the attention of a judge acting under section 21 in relation to any proceedings for the extradition of any other person to the same category 1 territory."
"a fair and public hearing within a reasonable time by an independent and impartial tribunal".
Article 6.2, as we have just been debating, provides for the
presumption of innocence. Article 6.3 provides for a number
of more detailed provisions. I will not repeat it because it
has already been read by the Minister.
6 p.m.
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