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The Earl of Mar and Kellie: I have tried to listen to the argument made by the noble Lord—I always have a problem listening to other people's arguments. At times, I thought that he was making my point for me. I would have preferred him to like this amendment. I do not think that it would have harmed the process at all. However, at this stage, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 124 agreed to.

Clause 125 [Consent to extradition: general]:

[Amendment No. 217 not moved.]

Baroness Carnegy of Lour moved Amendment No. 218:

"( ) In the application of this section to Scotland, "counsel" includes a solicitor who has a right of audience in the High Court of Justiciary under section 25A of the Solicitors (Scotland) Act 1980 (c. 46) (rights of audience in various courts including the High Court of Justiciary)."

The noble Baroness said: With the permission of Members of the Committee, I should like to speak briefly to Amendment No. 218, although it has been discussed previously. This amendment relates to a question of whether in Scotland a solicitor advocate is

10 Jul 2003 : Column GC128

able, under the Bill, to appear in the High Court of Justiciary when someone is appealing against extradition. The Minister must not be too frightened that I am speaking to this amendment and I shall have one question at the end.

I was slightly confused when the noble Lord, Lord Bassam, replied to this amendment. He kindly wrote a very helpful letter to explain that the Bill allows the solicitor advocate to appear in the High Court of Justiciary. I am grateful for that. That was the point of the amendment. The noble Lord, Lord Bassam, also pointed out that in this clause the Scottish court in question is the sheriff court, where a solicitor and not an advocate appears. So the amendment is actually misplaced. I accept that.

Having said that, I should like to ask the Government one question. In Clause 125(9), the English court, about which we are speaking, is the magistrates' court. I wonder why counsel is mentioned at all. The noble Lord might like to write if he cannot obtain advice about that. It is a small point, and perhaps a rather naughty one, but the point does not fit with the letter written by the noble Lord, Lord Bassam. I beg to move.

5.15 p.m.

Lord Davies of Oldham: I do not think that there is anything naughty about moving the amendment; the naughtiness may lie in the inadequacy of the reply. As the noble Baroness indicated, my noble friend Lord Bassam hoped to clear up the matter.

We think that the amendment is misplaced. My major task is to defend the Bill against amendments. I understand that the noble Baroness may not press her amendment so far. On the technical question of whether the reference in this crucial clause is accurate, the noble Baroness may not be quite foursquare with the Scottish experience. A barrister in England can appear in the magistrates' court; therefore, we can refer to "counsel" quite accurately.

Baroness Carnegy of Lour: I confess to have had great ignorance on that matter. I thank the noble Lord very much. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 125 agreed to.

Clause 126 agreed to.

Clause 127 [Consent to other offence being dealt with]:

Baroness Anelay of St Johns moved Amendment No. 219:

    Page 65, line 31, leave out "section 93" and insert "sections 78, 93, 94 and 95"

The noble Baroness said: This group of amendments—Amendments Nos. 219, 220 and 223—focuses on Clause 127, which covers consent to other offence being dealt with. When making a decision under the clause, the Secretary of State must decide whether the offence is an extradition offence. If it is, he must then decide whether extradition would be barred by virtue of Clause 93, which deals with the death

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penalty. We have tabled the amendments to probe why, at this stage, that is the only bar to extradition which the Secretary of State should take into consideration.

Amendment No. 219 ensures that the Secretary of State must also take into account the other bars to extradition contained in the Bill—for example, the rule against double jeopardy; extraneous considerations; the passage of time and hostage-taking considerations—before giving consent to another offence being dealt with in a category 2 territory.

The amendment was brought to our attention by the Law Society of England, which believes that in the interests of parity and fairness the other factors should be considered for the purposes of Clause 127. I emphasise that the amendment is tabled as a probing matter and would be so even on the Floor of the House. It is simply a matter of asking why there is different treatment. I beg to move.

Lord Goodhart: Amendment No. 220 is tabled in my name. It is in the same form as that which has just been moved by the noble Baroness, Lady Anelay, with one exception: it adds to the grounds on which the Secretary of State must refuse consent on speciality grounds the fact that a trial for the second offence would be rejected on an application for extradition from the United Kingdom on grounds that a trial would be in breach of the human rights of the defendant. It therefore adds Section 86 to Sections 78, 93, 94 and 95 as a section that bars the consent of the Secretary of State to the trial of the defendant in the country to which he or she has already been extradited for a second offence.

Lord Davies of Oldham: I am grateful for the way in which Members of the Committee moved their amendments. Quite rightly, the amendments have been identified as probing. For once, I suggest that such probes have been accurately deployed, so I may be able to offer considerable sympathy with the issues raised. We may need to look at the matters further. We are certainly willing to reconsider whether Clauses 127 and 128 could be redrafted to make clearer the matters that the Secretary of State must consider.

Clauses 127 and 128 are concerned with what happens after a person has been extradited from the UK to a category 2 country. Clause 127 is concerned with requests for waivers of speciality; that is, where the country to which the person was extradited wants to prosecute the person for an offence other than the one for which he was extradited. Clause 128 is concerned with onward extradition from the country to which he was originally extradited to another category 2 country.

The Bill provides that, where we get such requests, the matter goes to the Secretary of State for him to consider whether they should be acceded to. The Committee will recall that the Government have already indicated that we are happy to consider whether it would be possible to include some form of provision to ensure that the person concerned is made aware of all such requests so that he can make such representations as he wishes.

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The provisions in Part 2 of the Bill are somewhat different from those in Part 1. Part 1 sets out clearly each and every bar that the district judge must consider. The reason for that distinction can be found in Clauses 54(6) and 56(6). In such cases, if none of the bars to extradition apply, the district judge must give his consent. By contrast, in Clauses 127(7) and 128(7), the Secretary of State may give his consent. That is the key point.

As under current legislation, the Secretary of State has almost complete discretion in those matters. It follows that he can take account of every relevant factor in reaching his decision without the need to spell it out in the Bill. If, for example, further extradition would infringe the fugitive's human rights—the noble Lord, Lord Goodhart, made that point—or the further offence for which the other country wants to put him on trial is one for which he has already been tried, the Secretary of State can take those matters into account when deciding whether to give consent. One can probably go further and say that if, in such circumstances, the Secretary of State failed to take account of those factors, he would be subject to challenge very quickly.

Having said that, it follows that, if it is our expectation in Part 2 cases that the Secretary of State should consider all the normal bars to extradition, there is likely to be no great harm in making that explicit in the Bill. That is why I am prepared to give an undertaking to look again at Clauses 127 and 128 to see whether we can make them more explicit to take account of the points made by Members of the Committee.

Baroness Anelay of St Johns: I am very grateful to the Minister for that offer to look at Clauses 127 and 128 again. It was our intention to ensure that it was clear that we were not trying to fetter the work of the Secretary of State and the decision to which he or she may come. I am grateful that the Minister will reconsider whether there is no harm in being able to direct the Secretary of State's attention to the variety of bars that might apply in a particular case. At this stage, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 220 to 222 not moved.]

Clause 127 agreed to.

Clause 128 [Consent to further extradition to category 2 territory]:

[Amendments Nos. 223 to 225 not moved.]

Clause 128 agreed to.

Clause 129 [Consent to further extradition to category 1 territory]:

[Amendments Nos. 226 and 227 not moved.]

Clause 129 agreed to.

Clause 130 [Return of person to serve remainder of sentence]:

[Amendments Nos. 228 and 229 not moved.]

Clause 130 agreed to.

Clause 131 agreed to.

10 Jul 2003 : Column GC131

Clause 132 [Costs where discharge ordered]:

[Amendment No. 230 not moved.]

Clause 132 agreed to.

Clause 133 agreed to.

Clause 134 [Documents sent by facsimile]:

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