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Lord Hodgson of Astley Abbotts: Before the noble Lord withdraws the amendment, perhaps I could raise one further point. It is a narrow, specialist point on which I shall not pretend that I am fully up to speed, but the noble Baroness referred to the Criminal Justice (International Co-operation) Act 1990 as one of the bases for her view that the amendment is superfluous. Justice points out that that is not the case because Section 4 of that Act, to which she referred, relates to gathering evidence in the UK for use overseas, which has nothing to do with the European arrest warrant; it is to do with traditional mutual legal assistance and requires the Secretary of State's assistance.
The Secretary of State must nominate a court to consider that evidence. So we are reintroducing the Secretary of State into an area—the European arrest warrant—from which we have been trying desperately to remove him or her. If that is what the noble Baroness is advised, we are undoing some of the work that we were trying to achieve—namely, removing the political element from that part of the extradition process.
Baroness Scotland of Asthal: That is not what we are suggesting. In response to the noble Lord, Lord Goodhart, Article 19 is a hearing for the purposes of the preliminary, pre-trial matters in the requesting state. That is quite different. There is nothing in the Bill or that we have been able to identify elsewhere that would allow for temporary surrender in the circumstances that the noble Lord described.
Of course I hear what the noble Lord, Lord Hodgson, says about Section 4 and the construction put on it by Justice. We do not agree with that construction. We do not think that the provisions reintroduce the Secretary of State's political arm in an inappropriate way or would undo all that which we have done to date. I shall certainly take the issue away for consideration, but that is our current view of the proper construction.
Lord Goodhart: I am grateful to the noble Baroness. I shall consider the matter and, if I am satisfied that there is no legislation which would enable such a temporary transfer, it will be unnecessary to return to it. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 25 [Physical or mental condition]:
Baroness Anelay of St Johns moved Amendment No. 88:
- Page 12, line 4, at end insert—
The noble Baroness said: I shall speak also to Amendment No. 208. The amendments pick up a point first aired in Committee in another place. Clauses 25 and 90 confer an obligation on the judge to
In another place, my honourable friend Nick Hawkins pointed out to the Minister that it might be pertinent, in the interests of public safety, to have another alternative: to admit the patient to hospital for assessment, rather than simply discharging him or adjourning the hearing. The then Minister said that the judge would anyway be free to detain such a person under Section 2 of the Mental Health Act 1983 if the relevant conditions that warrant the person's detention were met.
We have redrafted the amendment to draw the judge's attention to that section of the 1983 Act. That is the third option for the judge under Clause 25. As that provision is there, it should be clearly stated in the Bill.
In another place, at column 118, the Minister, Mr Ainsworth, said that he did not accept that each and every piece of legislation should call the judge's attention to every issue that he might consider, but that he would consider whether something special about the new extradition arrangements warranted the mental health powers being specifically drawn to the judge's attention.
The Bill makes significant changes; the amendment gives the Government the opportunity to put on record the results of the further consideration of Mr Ainsworth—or, since his departure, that of his colleagues. I beg to move.
Lord Clinton-Davis: Although I have no quarrel with the noble Baroness for raising the issue, will my noble friend confirm that when the judge considers whether the condition in subsection (2) is no longer satisfied, he can order that a suitable examination should be made under the provision invoked by the noble Baroness? Is it not equally true that the judge can have regard to other provisions that may become highly relevant? So there is no cause specifically to refer to that provision.
Lord Bassam of Brighton: I am grateful to the noble Baroness for having tabled the amendments, which enable us to clarify our position. As she said, the issue was raised in another place.
The amendments are important because they concern the issue of the physical or mental condition of the person facing extradition. That is a proper concern; that is why the clause has been included. This is one of those amendments where I do not think that there is any real difference between us about our objective.
It is right that we should not extradite in cases where the fugitive's mental or physical condition would make that unjust or oppressive. That is exactly what Clauses 25 and 90 achieve. Those clauses are drafted in such a
Turning to the amendments, I am sure that every Member of the Committee would agree that we need some way to detain those who, because of their mental condition, need to be compulsorily detained. Where we may part company is on the question of whether the amendments are required. We contend that they are not.
As the noble Baroness explained, Amendments Nos. 88 and 208 would require the judge to have regard to the provisions of Section 2 of the Mental Heath Act 1983 when considering questions of the mental or physical condition of the fugitive. Section 2 of that Act allows for a person, on the application of two medical practitioners, to be detained for assessment for a period of up to 28 days where there are grounds to believe that he poses a risk to himself or the public at large.
The first point to make is that Clauses 25 and 90 cover both physical and mental incapacity, so there will be plenty of occasions when they may come into play where Section 2 of the Mental Health Act 1983 is not relevant. That may be because what is being considered is a physical disability or because the fugitive's mental condition is such that, though it makes extradition inappropriate, it does not warrant compulsory assessment or treatment under the Mental Health Act 1983.
A few sittings ago, I asked the Committee to suspend belief and, to argue a point, suggested that I be considered as a judge. I could ask the Committee to suspend belief and imagine that I was a social worker. I was one, briefly, in a short and somewhat inglorious career.
Lord Hodgson of Astley Abbotts: Not a paranoid one.
Lord Bassam of Brighton: Not a paranoid social worker— but I had to deal with paranoids. The truth is that sectioning someone is a serious business. I had to have a card that enabled me to do that, identifying me as the person whom I said I was. Sectioning may well be entirely inappropriate on occasions, nevertheless, someone's mental condition may be such that the judge would feel that it was not right to extradite.
My point is that the Mental Health Act 1983 deals with mental disorder of a nature and degree that require compulsory treatment. I saw plenty of people who did not require compulsory treatment but whose mental condition—because they were depressed or stressed—was such that they required treatment. In such instances, it would probably be right for the judge to consider that they should not be extradited.
A person brought before an extradition hearing will often have spent a period in prison on remand. If he needed compulsory mental health treatment, that is likely to have been identified in prison, from where he could have been transferred to hospital for treatment under the Mental Health Act 1983.
However, our primary concern about the amendments is this. Section 2 of the Mental Health Act 1983 is used and can clearly apply in any case where it is appropriate. If the district judge takes the view that the person before him needs to be detained—perhaps on the basis of the evidence presented to him in the extradition hearing—he can take steps to alert the appropriate authorities. That power exists at present and applies in the domestic context, just as it does in that of extradition.
The danger is that if we spell out one piece of legislation of which judges are required to be mindful—such as mental health legislation—we call into question every other piece of legislation in which mental health provisions are not directly referred to. I am sure that that is not what the noble Baroness intends by the amendment, but we must take into account the law of unintended consequences.
Although the spirit in which the amendment has been moved is helpful, those unintended consequences have not been thought through. Our mental health legislation is already capable of coping with the situation in which a person's mental condition requires compulsory treatment. It is open to both sides in the proceedings to commission medical evidence.
Judges can have regard to all relevant considerations—provisions—in those circumstances. District judges in extradition cases will have few problems in ensuring that appropriate references are made if they feel that a second or third opinion is required.
Bearing in mind the drawbacks of raising that as a specific reference for the district judge and, as I said, the law of unintended consequences, I hope that the noble Baroness will feel confident in withdrawing the amendment.
Baroness Anelay of St Johns: I am grateful to the Minister for his reply. One of the genuine reasons for tabling amendments in this House that have previously been debated in another place is so that the Government can be asked to fulfil their commitments. I believe that the Minister has done just that, and I give notice that I shall not consider returning to this on Report. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 27 [Court's powers on appeal under section 26]:
"( ) In discharging his duties under subsection (3), the judge is to have regard to the provisions of section 2 of the Mental Health Act 1983 (c. 20) (admission for assessment)."
7 p.m.
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