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Lord Filkin: The noble and learned Lord, Lord Mayhew, is inviting me to find a hole in my argument and to shoot a bullet through it. Nevertheless, that is a perfectly fair challenge because these issues are serious rather than flippant.
My first reaction is that Article 6.1 deals with general issues. It states:
- "In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law".
The subsidiary paragraphs seek to unpack that for the avoidance of doubt. But if a defence barrister thought that something suggested that his or her client would not get a fair trial in country X, which was not covered by Article 6.2 or 6.3(a), (b), (c), (d) or (e), it would not be outwith the barrister's ability to argue that specifically.
Although I shall reflect on the issue, I believe that the article as currently drafted is effectively a catch-all, which allows other unspecified matters to be brought in as part of a defence that a person would not get a fair trial. I shall come back to the noble and learned Lord if, on reflection, I find a further hole in my argument.
Lord Goodhart: I am grateful to the Minister for that very full response. The problem at the root of the issue we are debating is that, although I speak as someone who supports the European arrest warrant in principle, I would have preferred that it was not brought into operation until a framework decision on minimum standards throughout the European Union could also be brought into operation. Unfortunately, as I suggested earlier, although the idea of a framework decision has been floated, it seems to be a good many years off. We therefore have to accept the position as we find it.
I accept that Clause 21 will provide significant protection for people who are faced with extradition to member states where the provisions of Article 6.3 are not adequately observed. I am not particularly wedded
to the method of dealing with that problem that I have put forward, although it is the best I could think of. I am concerned that in the next few years we will face a great deal of litigation about these standards. We may well end up with extradition to some of the member states becoming extremely difficult. That is a situation with which I would be unhappy and I have sought to deal with the problem. The same applies, of course, to category 2 territories.I shall obviously ask leave to withdraw the amendment.
Lord Filkin: I am grateful to the noble Lord for giving way. I wish to make one or two points that may assist him in his reflections. We extradite now to these countries; we have done so for many years. We have ECHR in place now; it is an issue that is before the courts now. All that Clause 21 does is to put it in the Bill in black and white terms. In many ways these tests exist already and it is open to advocates to use them now if they so wish.
All we have done in Part 1 is to put in place a system of hearings—initial, substantive, appeal—which ensures that there is an opportunity to resist improper extradition while not allowing the process to take two years in ways to which we are all opposed.
If it had been possible to get the Valhalla of a general view that every country had come up to an exactly similar standard that we all thought was perfect, we would still face specific issues. Times and circumstances can change. The defendant still needs the right to argue that, although country X may have been all right generally in the past, "For me it is not safe". Therefore one still needs the broad scope of the power given by Clause 21.
Lord Goodhart: While I fully accept what the Minister says I cannot be quite as confident as he is. The fact that this argument has not been raised on previous extraditions to countries where procedures are questionable does not mean that it will not be raised in the future. The restriction on other arguments against extradition is likely to lead to a search for new grounds on which to base arguments against extradition. I remember a few years ago the decision in the case of Chahal which prevented extradition to India of people accused of terrorist offences on the grounds that they were likely to be tortured. That was a bar under Article 3. It is equally possible that there could be successful arguments under Article 6.
Be that as it may, I shall take the matter away and consider it very carefully and decide whether or not a useful purpose will be served by bringing it back. As I said, I am not certain in my own mind. I may do, but I shall not make a commitment one way or the other. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Hodgson of Astley Abbotts moved Amendment No. 87A:
- After Clause 24, insert the following new clause—
The noble Lord said: In moving Amendment No. 87A, I shall speak also to Amendment No. 207A. The amendments are not grouped but they deal with exactly the same issue. Amendment No. 87A relates to Part 1 and Amendment No. 207A relates to Part 2. We may save a little time later if we do not have to go over the same arguments again.
Clause 198, to which the amendments relate, sets out the circumstances in which the Secretary of State may prevent a person's extradition where it would be against the interests of national security. The amendments do not seek to probe the nature of this power but how it will be exercised.
Amendment No. 87A seeks to insert a new clause after Clause 24 into Part 1 of the Bill to require a judge hearing an extradition case to draw that case to the attention of the Secretary of State if he or she believes that the criteria relating to national security in Clause 198 is met. Amendment No. 207A would insert a similar new clause after Clause 89 in Part 2.
The purpose of these two probing amendments is to clarify precisely how the Government envisage the Secretary of State will take action under Clause 198. The Bill's provisions remove or, at the very least, greatly reduce the role given to the Secretary of State under the 1989 Act in relation to extradition claims. In respect of extradition under Part 1, the Secretary of State's role is almost completely eliminated. As I understand it, it will be limited to activities such as issuing certificates to confirm that countries are party to the International Convention against the Taking of Hostages under Clause 16, or the absence of speciality arrangements under Clause 17.
The question therefore arises whether the Secretary of State—or perhaps one should say the Home Office—will no longer have any significant role in the extradition process under Part 1, and how the kinds of cases to which Clause 198 applies will come to the attention of the Secretary of State so that he—or "it" in the case of the Home Office—can judge whether national security is affected. Will the National Criminal Intelligence Service, which is to be the designated authority—or in Scotland the Crown Office—be under a duty to keep the Secretary of State informed about such cases?
What will happen if NCIS is unaware that the person's extradition might be against the interests of national security—for example, if the person is undertaking activities on behalf of another government agency, such as the Security Service, the Secret Intelligence Service or the Armed Forces, that NCIS may know nothing about? What channels of communication do the Government envisage there
In such cases, presumably, it would be up to the relevant intelligence or military agency to ring up the Home Secretary and say, "Sorry, Mr Blunkett, but such and such a person is working for us on a sensitive operation of major importance, so please can you use your powers to prevent extradition?". Is that how the Government intend the system to work?
As I said a moment ago, my amendments would place a duty on the judge to inform the Secretary of State if he believed that the criteria in Clause 198 were met. They seek to address the issue of how the Secretary of State will know about national security cases in the first place. No less important, they will make clear that the judges have the power or duty to bring such cases to the attention of the Secretary of State.
Without such an amendment, presumably, the judge will have to proceed with the extradition process laid down in the Bill without informing the Secretary of State. Is this allowed under the Bill or not? If not, is there any other person or body on which such a duty is to be placed? I am sure the Government will have simple answers to these simple technical questions. I look forward to the Minister's reply. I beg to move.
Baroness Scotland of Asthal: I thank the noble Lord for tabling this probing amendment. I can reassure him that the Secretary of State is content with the arrangements that have been made. It is a pleasure to explain how we believe these provisions will work.
As the noble Lord said, Clause 198 enables the Secretary of State to intervene in any extradition case and to prevent extradition from taking place where it would be contrary to the interests of national security. I know that we shall discuss the scope of Clause 198 at a later date—I look forward to those discussions—and I shall not trespass into those issues now.
In any case where national security considerations apply, it will be open to the fugitive to draw them to the attention of the Secretary of State so that he can decide whether or not his intervention is required. More than that, it is hard to imagine that national security considerations could arise unless one of the statutory intelligence and security agencies had been involved in the matter at some stage or in some particular way. The agencies are always, rightly, very concerned to protect their interests and they have very good channels of communications to Ministers. We have no doubt that they would bring the matter to the Secretary of State's attention at a very early stage indeed.
The amendments seek to impose a duty on the district judge to bring to the Secretary of State's attention any case that raises national security issues. For the reasons given, perhaps I may respectfully say that it does not seem as though such a provision would be necessary. However, there may be some more fundamental objections to the proposals. The reason why the Secretary of State has been given the power to
I am trying to envisage how a district judge would be expected to know whether issues of national security may in that particular case be engaged, unless he was made aware of such national security issues by the fugitive himself raising the issue. The effect of the amendment would be that instead of the fugitive raising national security issues discreetly with the Secretary of State, or perhaps the agencies doing so, the fugitive would be encouraged to raise them before the district judge in open court perhaps with the public or the press in attendance. We do not think that would be to the advantage of national security. It does not seem to us desirable and, from everything that the noble Lord said, is not something that he would want. The whole purport of the amendment is to ensure that national security issues are dealt with properly, sensitively and appropriately so that we do remain secure. I understand that absolutely.
The Bill, as drafted, allows for national security issues to be brought to the attention of the Secretary of State and for the Secretary of State to prevent extradition from taking place where that would be in the interests of national security. Furthermore, all this can happen in private rather than in public, which must be the best way forward. I appreciate why the noble Lord and noble Baroness have tabled these amendments. But I hope that I can reassure noble Lords that we are quite confident that these issues can be dealt with sensitively in a way that would be to the benefit of national security and, it is to be hoped, not to the disadvantage of the individual acting on behalf of our services. I hope that with that reassurance the noble Lord feels able to withdraw his amendment.
Lord Hodgson of Astley Abbotts: I am grateful to the noble Baroness for those answers. I accept that the Secretary of State will have the overview of the necessary information and the importance of discretion, that these matters are best not brought out in the open. Our amendments are probing—errare humanum est. We are concerned that, for a man or woman who is doing his "bit"—whatever his "bit" may be in connection with national security—he is not left in a situation where he is being extradited, because at that point he would be left hanging out to dry. From what the noble Baroness said, I take it that there would be nothing to prevent the individual raising Clause 198 in his or her defence at the time if he or her so wished. Would that be right?
"EXTRADITION UNDER PART 1: NATIONAL SECURITY
If at any time in the extradition hearing it appears to the judge that the conditions in section 198 may be satisfied, the judge must draw the case to the attention of the Secretary of State."
6.30 p.m.
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