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Baroness Anelay of St Johns moved Amendment No. 89:

The noble Baroness said: I shall also speak to Amendments Nos. 90, 214 and 215. These deal with that most fundamental protection within our own legal system—that of habeas corpus. When my

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honourable friend Nick Hawkins raised questions on this matter in Committee in another place, the Minister replied as follows:

    "The common law right of habeas corpus goes back many centuries, and there is nothing in the Bill that affects it . . . It is always open to a fugitive to raise habeas corpus issues. At every stage, the district judge is required to consider whether remanding in custody or granting bail is appropriate, and to ensure that custody issues are properly taken into account".—[Official Report, Commons Standing Committee D, 14/1/03; col. 119.]

I feel that that is rather a disingenuous position to take, to say the least. It is a little more complicated than that. We have a specific law of habeas corpus here—it is a unique part and particular feature of our criminal justice system. Other countries do not have the same position. How is a fugitive to know his or her rights to raise habeas corpus matters—lacking, as he or she would, a detailed knowledge of British law? He or she may be unaware of how to go about raising those issues. That brings us back to the importance of something we discussed earlier—the provision of independent legal advice from the very start of extradition proceedings. However, I shall not abuse the Grand Committee by rerunning that—I am sure we shall have more to say on Report.

There is, of course, a corresponding point: our own citizens will not get the protection afforded by habeas corpus when they are returned to face prosecution in the requesting country. They will lose a key safeguard, which we believe is one of the cornerstones of our judicial system. I beg to move.

Baroness Scotland of Asthal: I was somewhat perplexed by some of the issues raised by the amendment, and I thank the noble Baroness for the clarity with which she has sought to enlighten me as to its purport.

Let me make clear from the start that there is certainly no attempt to remove habeas corpus by the measures in the Bill. The provisions seek to abolish the statutory habeas corpus, which was first introduced in 1967 and then consolidated through to the Extradition Act 1989, and replace it with a different appeal system. Habeas corpus, as we know and love it, which was given birth to by the Magna Carta, remains.

During the Bill's passage in the other place, various assertions were made that we might be abolishing habeas corpus. I want to make it absolutely clear that any such concerns are quite wrong. The common law right of habeas corpus remains; anyone who is subject to extradition can bring a common-law habeas corpus claim. Whether it will succeed is obviously an entirely different matter.

The principle of habeas corpus is that no one can be detained without proper statutory authority and due process. By virtue of Clause 4(5) and Clause 6(6), anyone arrested in Part 1 is treated as being held in legal custody. A person arrested under Part 2 is arrested on the basis of an arrest warrant, which similarly provides the legal basis for the person to be held in custody. Therefore, in every case the person must be brought before the district judge very shortly after arrest, and the district judge is required to take a

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view on whether the person should be remanded in custody or granted bail. If the judge decides on the former option and remands the person in custody, there is clearly a proper legal basis for that person to be detained.

I hope that Members of the Committee will accept that the procedures which the Bill puts in place comply fully with the principles of habeas corpus. And although, as I said, there would be nothing to prevent a person from bringing a habeas corpus claim, it is hard to see how it could possibly succeed, the principles having already been satisfied by the scheme created in statute. For that reason, I cannot see why we need to include a special provision requiring the High Court to consider habeas corpus factors.

Let me pray in aid the report of the Joint Committee on Human Rights. In its report on the draft Bill, the committee concluded:

    "The provision for hearings before the district judge would be likely to be held to satisfy the right to take proceedings to test the lawfulness of detention [under the ECHR]".

For the avoidance of doubt, let me deal with one other issue. Section 11 of the Extradition Act 1989 provides the fugitive with a right of appeal immediately after the judge commits the case to the Secretary of State. Rather confusingly, that appeal is termed habeas corpus, though it is clearly quite different as it is concerned with the substance of the case rather than simply the lawfulness of the detention.

The Bill also provides the fugitive with an appeal to the High Court, as the amendments recognise. In the interests of clarity, it is simply described as an appeal rather than a habeas corpus hearing, but the principle is the same. The fugitive can bring his case back to the High Court and seek to have the judgment of the lower court overturned. It is worth pointing out that the Joint Committee on Human Rights gave the appeals process in the Bill a clean bill of health, saying that it offered proper avenues for fugitives to challenge their detention and to appeal against the decisions that have been taken.

All that leads back to the conclusion that I have already outlined—that the amendments would serve no real purpose and that the rights implicit in habeas corpus continue and will not be expunged.

The noble Baroness raised the issue about independent legal advice. I am sure we will return to that on many occasions.

Baroness Anelay of St Johns: I am grateful to the noble Baroness, who has put on the record a far more persuasive case than did her honourable friend in another place. I think that she has done sufficient for me not to have to return to the matter on Report.

Baroness Scotland of Asthal: The noble Baroness is, as always, so gracious.

Baroness Anelay of St Johns: I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 90 not moved.]

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Clause 27 agreed to.

Clauses 28 to 30 agreed to.

Clause 31 [Appeal to High Court: time limit for start of hearing]:

Baroness Anelay of St Johns moved Amendment No. 91:

    Page 14, line 12, leave out subsection (1) and insert—

"(1) The High Court must begin to hear an appeal under section 26 or section 28 within 28 days of notice of appeal being received."

The noble Baroness said: I should like to make clear that even if we were on the Floor of the House, this would be a simple probing amendment only. It focuses on the timing within which an appeal to the High Court must commence. Clause 31(1) states that the rules of court must prescribe the period within which the High Court must begin to hear the appeal. We have suggested in our probing amendment a limit of 28 days, beginning from the time when the notice of appeal was received.

We appreciate that timing is a delicate issue. When I was watching an extradition case a couple of weeks ago, it was brought home to me with great clarity that one of the many problems that politicians cause for the smooth running of the judicial system is that we put a plethora of time limits within a plethora of different and competing pieces of legislation and then dump them on the courts and expect them to sort it out, with all the timetabling problems that they have. The amendment has been tabled against that background, which is why it is definitely only probing.

There is a balance to be maintained. We are asking the Minister to put on the record some information about the kind of timescale that the Government expect to be operating in these circumstances. We hope that a guarantee will come easily to her lips that this will not be an open-ended matter. We do not have a fundamental problem with leaving the period to be prescribed by the rules of court, as long as we can be assured of some protection for the defendant in terms of a sensible and workable timescale. I beg to move.

Baroness Scotland of Asthal: I am most grateful for the very helpful way in which the noble Baroness has phrased her amendment and for her understanding of the burden that we all too often place on courts in such matters. I can reassure her that the Rules Committee will consider the matter, but if it is helpful, I will go through a little detail so that we have it on the record. I hope, thereby, that the noble Baroness will have the sort of reassurance that she seeks.

A central tenet of the Bill and one of the driving factors behind the Government's determination to modernise the UK's extradition is the need to streamline and simplify our extradition process. For that reason, the Bill contains a number of time limits to ensure that proceedings are undertaken efficiently and without unnecessary delay.

We make no apology for the need to do that. Our history has demonstrated that we need to bring about some change. It is clear that our existing procedures have been abused by those determined to string out

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extradition for as long as possible. Although the new system offers far less opportunity for multiple and repetitive challenges, time limits will ensure that cases proceed with due expedition.

Clause 31 is one example: it provides that the rules of court be drafted, setting out the period within which the High Court must begin to hear an appeal under Clauses 26 and 28. It is normal and appropriate for such time limits to be set out in the rules of court—Clause 200(1) provides for this—to prevent legislation from becoming bogged down in administrative detail that pertains primarily to the administrative processes of the courts.

As the noble Baroness will know, one of the beauties of the Rules Committee is that it can take a more holistic approach in relation to the system and try to craft something that will enable the smooth administration of justice to be delivered without causing unfairness to those who have to participate in the process. We see that that has value and we do not propose to depart from that methodology in this case.

I understand that Members of the Committee may be concerned that in setting particular time limits, we do not allow sufficient time for the necessary court administration—especially for an appeal hearing to be listed, and for the preparation of the respondent's case. We share that concern. There would be absolutely no point in designing an extradition system which was so streamlined that it did not serve the interests of justice. Again, I am very grateful to the noble Baroness for raising the matter just to make sure we all keep on our toes—a skill she has honed over the last year or so in particular.

I am thus pleased to be able to reassure the Committee that we are in discussion with the Department for Constitutional Affairs, the Civil Procedure Rules Committee and senior members of the judiciary to agree an appropriate time limit for the start of appeal hearings under Part 1. I can also reassure the Committee that our thinking runs very much along the lines of the timescale proposed fortuitously in the amendment. So the noble Baroness need not be in the least bit hesitant about the time she has plucked out. A period of about four weeks from hearing to appeal seems about right to strike the balance between speed and ensuring that the system functions properly.

Of course all these details will be properly considered in the discussions to which I have just referred. I can assure the Committee that those members of the judiciary with whom we are in contact are very vigilant. They will ensure that the rules of court which finally emerge are both efficient and fair and make sense to those who will operate them.

I hope that I have said enough to reassure the noble Baroness and the Committee that we are looking at these issues very seriously and that we will have a framework which will be both practical and effective, but most of all fair and just. With that, I would invite the noble Baroness to withdraw her amendment.

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7.15 p.m.

Baroness Anelay of St Johns: I am very grateful to the Minister. She is absolutely right that it is vital to balance expedition with fairness. I certainly did pluck out 28 days because it seemed a fair period in comparison with other time limits. I am grateful to her for her careful response and that she has given us some advance notice of the consultation being carried out by the new Department for Constitutional Affairs, the judiciary and others. That is obviously the appropriate way forward. I certainly do not intend to return to this issue on Report. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 31 agreed to.

Clauses 32 to 38 agreed to.

Clause 39 [Position where asylum claimed]:

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