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Viscount Bledisloe: Could one or other of the proponents of the amendment enlighten the Committee further as to how they see subsection (3) working? Perhaps understandably, the noble Lord, Lord Goodhart, skated rather lightly over it. Surely if the subsection were inserted in the Bill, an issuing state would be highly likely to send, almost automatically, a written assurance in this form with every warrant.
Does the noble Lord really envisage that in every such case an observer—whether local or from this country—will be sent out to watch the entirety of the trial and the proceedings before it to see whether adequate legal aid is given at the right time and whether the translator provided is competent? The amendment would involve this country in massive expenditure if every trial for which extradition is granted under Part 1 is to be observed and monitored throughout not only its proceedings but all the preliminary stages.
Lord Goodhart: Let me deal with that point now. I do not see any significant problems. The number of extraditions at present is under 50 a year. Even if that number is quadrupled because the process becomes easier, one is looking at 200 per year. In a considerable number of cases the extradition will be to countries where there are no problems with the local procedure.
In other cases the person extradited will live in and speak the language of the country to which he or she is extradited. Therefore the question of interpretation will not arise.The monitoring procedure will not necessarily require anyone to sit in the court and observe the proceedings for the whole time. Obviously a certain amount of visiting will be necessary, but I believe that one can safely assume that if the extradited person is suffering any problems he or she will be given the name of someone they can contact who will, on behalf of Her Majesty's Government, look into the matter and decide whether or not there are any problems.
The expense involved in what is bound to be a relatively small number of cases will be proportionate to the matters at issue. I suspect that there may well be a net saving to the state because proceedings in the extradition hearings in this country, which are extremely expensive, will be shortened.
Lord Filkin: I genuinely thank the noble Lord, Lord Goodhart, and the noble Baroness, Lady Anelay, for tabling the amendments, because they address central issues that it is right that we explore and test in Committee. At the risk of rashness, I shall seek to explain why, rather than the Bill weakening the rights of people who are requested for extradition to European Union member states or other signatories of the ECHR, in practice, it strengthens them. Let me explain why and suggest why the specific mechanisms suggested by the noble Lord, Lord Goodhart, and the noble Baroness, Lady Anelay, perhaps are not the best, because appropriate provision is already in place.
From discussion of earlier amendments, the Committee knows that we have built several important safeguards into the extradition process. I think that the Committee genuinely recognises the importance of trying to avoid the legalistic, hide-and-seek process that extradition has become—in some circumstances taking years—in ways that mean that people who ought not to be extradited are not in practice.
As we have said, the safeguards of Clauses 21 and 86, which we have inserted into Parts 1 and 2, are specifically intended to achieve that. The clauses are entirely unambiguous. They provide that extradition cannot take place if the extradition would be incompatible with the fugitive's convention rights under the Human Rights Act 1998. In other words, if extradition would breach the fugitive's ECHR rights, it must not and should not take place. Not only does that protect against the infringement of individual rights in this country, but ECHR case law has clearly established, as I said in response to an earlier amendment, that those obligations extend to the likely fate of the fugitive if he is extradited. If there is a significant risk that his ECHR rights will be breached once returned to the requesting state, the district judge must not extradite him.
I am therefore unsure why Members of the Committee feel that they need to raise a specific procedure for Article 6.3 of the European Convention on Human Rights. Article 6.3 guarantees the right to a fair trial and refers to minimum rights, to which I
spoke earlier, in very explicit terms. In that respect, the ECHR is extremely helpful, because the judge, knowing that one test he must satisfy is that a person will not have his ECHR rights infringed, will have that document before him. The tests of which he must be satisfied before he decides whether to grant extradition could not be clearer.So the judge is empowered to consider those issues without any need for a specific provision. More to the point, if there is the slightest suggestion that the person's ECHR rights will be breached, I am sure that the fugitive, or his lawyer—the noble Lord, Lord Goodhart, is absolutely right in this respect—will argue the case that it is unsafe for him to be extradited to country X, because he will not receive a fair trial for X, Y or Z reasons. In those circumstances, if the judge considers that argument valid, he must bar extradition.
In accordance with normal practice, the district judge will have such arguments put to him by the defence for the person who does not want to be extradited. I am advised that extradition advocacy comprises a specialist body of lawyers who understand and will be well steeped in the arguments and, as the noble Lord, Lord Goodhart, suggested, will attempt through Clause 21 to claim that it is unsafe for their client to be extradited, even if he meets the test in Clause 11.
That is good and right and must run its course. I am superficially attracted to the idea that one could save court time by avoiding the process of testing whether country X's procedures were compliant, but that is unworkable for several reasons.
First, the judge cannot decide whether country X is in general safe or compliant with the ECHR, he must make a judgment on the specific person at the specific time for the specific offence. A judgment must be made about the specifics of the case; that is, whether it is safe for that person at that time for that charge to be extradited to that country. Without going into detail, we can envisage circumstances in which a good advocate will argue that for a person charged with a particular offence in a particular country, given its history, culture and how the laws operate, that was not safe. Under the Bill, the judge has total discretion to make that judgment. That is absolutely right.
The second argument is that it might be safer if the Government themselves monitored any assurances to see whether they were compliant. Before I touch on that, there is the issue of certification. It is open to a state requesting the extradition of a person from the United Kingdom to send a certificate, if it wishes to do so, saying that it is compliant with the ECHR and giving evidence of how translations and so on are provided. We need not put anything in the Bill to make that clear. A country is at liberty to so do, if it wishes. The district judge still has the responsibility of making a judgment about whether he believes that it is true when he has heard what the defence advocate has to say, and whether it is true for the specific individual in the circumstances. The Bill gives a strong power to the district judge to make that judgment.
I was going to touch on why I did not think that the monitoring process would be appropriate. For a start, there are all sorts of practical reasons to do with how civil servants would monitor the judgments. However, even if one had that in place, it would not be desirable that the Secretary of State should make the decision that country X was safe for a person in the circumstances. The Bill puts responsibility for that judgment on to the district judge. It is right and proper that the district judge should make the judgment, and it should not be up to the Secretary of State to say that something was kosher or that people had not behaved in the past. The judge has full scope and full discretion to decide whether it is met.
The final argument is that, if we put in a clause to that effect, the way in which it operated would open up a further opportunity for judicial review. Undoubtedly, people would go for a judicial review on the basis that the Secretary of State had not exercised his discretion appropriately. That judicial review case would have to be heard, and we would have built another delay into the process.
For the reasons that I gave, I am completely with the noble Baroness, Lady Anelay of St Johns, and the noble Lord, Lord Goodhart, on how central it is to our attempts to ensure that people who should not be extradited are not extradited. The clarity and simplicity of Clause 21, underpinned by the clarity of Article 6, give massive power to the district judge. If the noble Lord, Lord Lamont of Lerwick, is right and it turns out that a particular country might be OK in some cases but not in the specific case, it is right and proper for the district judge to say, "No. I will not extradite this person because I do not believe that country X provides translation facilities. I have listened to what the defence has said, and I am convinced that it is a matter of doubt. I will not extradite". I see nothing wrong in a district judge making such a decision, and, if such a situation occurred, it would provide an incentive to ensure that it did not persist. The power is with the district judge, and that is helpful.
I shall make a final point. A district judge may make a judgment that, on the balance of the evidence that he has heard and of what the advocates have said, it is safe, in the circumstances, to send the person back. The person who is being sought for extradition and his lawyer have a further right of appeal to the High Court. The issue can be re-heard and re-tested in the High Court. That provides a strong set of legal protections for the individual, while not allowing the kind of perpetuation of a case that we currently have, which can turn into a hide-and-seek game lasting several years.
I hope that what I said—at some length, I fear—will go some way to meeting the tests and challenges that the noble Baroness, Lady Anelay of St Johns, and the noble Lord, Lord Goodhart, rightly raised.
6.15 p.m.
Lord Mayhew of Twysden: The noble Baroness, Lady Scotland, helpfully explained to the Committee
that Article 6.3 of the European Convention on Human Rights is very explicit. I had thought that it was less explicit and that it expressed matters more generally—I built some argument upon that premise at an earlier stage—but I am now quite satisfied that it is very explicit.
Can the Minister give an example of a feature of an individual case that is not covered by Article 6.3 but which might nevertheless lead the judge to withhold his consent to extradition on the grounds of incompatibility with the European Convention on Human Rights? As has been explained, one of the attractive features of the amendment is that it will save a great deal of time while, at the same time, preserving the essential criterion.
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