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Baroness Gould of Potternewton: Before speaking to the amendment, I must declare an interest as a patron of FORWARD, the Foundation for Women's Health Research and Development. For that reason and because of the debates that we have had in your Lordships' House on the subject, I was pleased to add my name to the amendment tabled by the noble Lord, Lord Hodgson of Astley Abbotts, and the noble Baroness, Lady Anelay of St Johns.
The noble Lord has outlined the purpose of the amendment, which, as he said, is a probing amendment. It would allow extradition back to the UK after conviction, if a sentence has been imposed for a crime in the UK under the Female Genital Mutilation Bill. The amendment specifies that FGM
should be a specific offence and should be classified as conduct that constitutes an extradition offence, if it occurs in the UK. If the conduct—FGM, in this instance—occurs outside the country, it would still amount to an extradition offence, if it constituted an extraterritorial offence and was, therefore, punishable in the same way. We had hoped that Ann Clwyd's Private Member's Bill would have completed its passage through the other place by now. However, it is encouraging to know that it will be completed, we hope, this Friday and that it has government support.As the noble Lord, Lord Hodgson of Astley Abbotts, said, FGM is already a criminal offence in the UK, under the Prohibition of Female Circumcision Act 1985. Legal action against FGM is also possible under the Children Act 1989. Even now, a court could take steps to prevent the removal of a child from the UK for the purposes of carrying out the mutilation abroad. To date, however, there have been no prosecutions under the Prohibition of Female Circumcision Act. I appreciate that it is difficult to obtain evidence to support prosecutions, but another reason for the lack of convictions may be that the law can be so easily evaded. People can circumvent the law by taking girls out of the country.
The FGM Bill would repeal and re-enact the provisions of the 1985 Act and give it extraterritorial reach. The specific clauses of that Bill are Clause 3, which makes it an offence for a person in the UK to aid, abet, counsel or procure the performance outside the UK of a relevant FGM operation, and Clause 4, which provides that any of the prohibited acts done outside the UK by a UK national and permanent UK resident will be an offence under domestic law and will be triable in the courts of England, Wales and Northern Ireland. Unfortunately, the Bill does not apply to Scotland.
Full credit must be given to the Government for their support for this important Bill. I know that long discussions have gone on, in order to make the Bill complete and workable in the UK. In a letter on the subject in April 2002, it was made clear to me that the Home Secretary was determined to make the taking of girls abroad for FGM illegal. The amendments would give added strength to that commitment.
The Committee may wonder why FGM has been singled out as a subject for cross-party amendments. There are two reasons: first, it is a serious crime; and, secondly, if the practice is to be stopped, we must send out constant messages to the practitioners that it will no longer be tolerated. I do not intend to delay the Committee, but it is important that there be a clear understanding of what female genital mutilation means. I introduced a debate on the subject in the House on 10th November, 1998. I did so because, as I said then,
- "The realities of FGM are grim. Reading about it makes you shudder; watching videos of the practice makes you sense the horror".—[Official Report, 10/11/98; col. 731.]
The noble Lord, Lord Hodgson of Astley Abbotts, outlined a little of the procedure. I shall elaborate a little, but not too much, as I do not want to horrify the Committee. There are three related, distinct
procedures. The first is the removal of the clitoris; the second is a partial removal; and the third is the removal of all of a woman's external genitalia, followed by the stitching-up of the tissue over the wound. One can imagine the consequences of doing that. How would a woman lead a normal sexual life in those circumstances?It is an unnecessary and very painful mutilation of the body—a horror that can affect the girl for the rest of her life. The long-term consequences can be particularly severe. There can be difficulties in pregnancy and childbirth. Women who have been mutilated are twice as likely to die in childbirth and three or four times more likely to have a stillborn child.
It is estimated that between 130 million and 150 million women have undergone FGM worldwide. With the increasing movement of people in Europe to countries where the practice is endemic, such customs and practices often travel with them. It is difficult to be accurate about the extent of practice in this country. Forward estimates that 74,000 first generation African immigrant women in the UK have undergone the operation, with as many as 7,000 girls under the age of 16 still at risk.
These amendments have been tabled to register what I hope is the cross-party support for the need to take the matter very seriously indeed. We await the Bill's passage to your Lordships' House, where it will be sponsored by my noble friend Lady Rendell. We hope that when it comes to this place it will receive full support from the Government as it has done in the other place.
We must repeatedly stress that such practices must cease or the consequences will be severe on those who inflict such horror on a young and innocent girl. That is why FGM has been singled out to be included as conduct that can result in extradition.
5.45 p.m.
Lord Filkin: I am very happy to place on the record that the Government are glad that the amendments have been tabled, and to explain why. Female genital mutilation is a sickening crime, and it is absolutely right that we have the appropriate legislation to enable us to combat it. The Government fully support the Private Member's Bill being considered in another place. My right honourable friend the Home Secretary has gone further and said that, had the Private Member's Bill not been brought forward, he would have looked to introduce a government Bill for the same purpose when and if a suitable opportunity presented itself.
The case has been made clearly as to why it matters, and why extra-territoriality is necessary in those circumstances. I therefore pay tribute to the two people who are championing the Bill, Ann Clywd in the other place and, in due course, the noble Baroness, Lady Gould of Potternewton, in your Lordships' House.
As a result of discussions on a cross-party basis on the issue, we also thought that it was convenient and useful to seek to use the opportunity of discussing an
amendment on the Extradition Bill. The noble Lord, Lord Hodgson, spoke clearly as to why it was relevant rather than a mere procedural device. But there is a purpose for that also. As I am sure Members of the Committee know, if the Private Member's Bill were amended in your Lordships' House, it would go to the bottom of the list when it returned to the other place and its chances of survival would be slim or remote.The happy opportunity to debate the issue today therefore gives Members of the Committee the chance to raise any concerns of detail—one hopes not of principle—about the issue. That would allow those discussing the Bill in another place to consider those concerns, and, if they were minded to do so, to consider whether any points of detail needed to be addressed. That would reduce the risk that an amendment in this place—however well intentioned—might have the unintended consequence of effectively destroying the Bill. There have been some discussions and understanding about the matter around the House.
For those reasons, I reiterate the Government's view that it is an important issue. We strongly support the measure and think that extra-territorial powers are needed. The noble Lord, Lord Hodgson, asked whether we would use the powers in practice. Undoubtedly, we would seek to use them if we felt that there was evidence to support it. We hope that the police would pursue such matters vigorously. As with any extradition case, there can be no guarantee that the request will be successful. However, that is not a reason not to have the power in statute to allow us to pursue it. The penalties that FGM already attracts mean that it is already extraditable, as I have indicated.
In response to the noble Lord's second question, we very much doubt that there would be cases where a person is given a custodial sentence of fewer than four months. So, in our view, there is no risk in that respect. For those reasons we support the Bill, but I understand that the amendment is likely to be withdrawn later in our discussions on this clause.
Lord Hodgson of Astley Abbotts: I am grateful to the Minister for his comments and his support for the prohibition and discouragement of this terrible practice. I am particularly grateful for his reassurance that the Government are prepared to use the extra-territorial powers—assuming the Private Member's Bill is enacted—and the powers in this Bill in support of the work to try to stamp out FGM. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 236 not moved.]
On Question, Whether Clause 148 shall stand part of the Bill?
Lord Hodgson of Astley Abbotts: It would be a mistake to let Part 3 of the Bill pass without opportunity for comments from all sides of the Committee. Clause 148 defines extradition offences for Part 3. It is perhaps, therefore, the easiest clause in Part 3 on which to have a general discussion about extradition to the United Kingdom and the offences
for which we would request extradition. We had a long, interesting debate on the corresponding clause in Part 1—Clause 63—and the appropriate thresholds. There is still some juice in the subject to be extracted at Part 3 in looking at the threshold for extradition offences for those being extradited to, rather than from, the United Kingdom.It will not have escaped the notice of all noble Lords who have been involved in the Bill for some time that 90 per cent of the briefing and input to amendments from outside organisations has concerned Part 1. Perhaps 8 per cent of such briefing related to Part 2 and a small proportion concerned Parts 4 and 5. For my part, I have not had a single comment from any outside group on provisions in Part 3. That is perhaps not surprising, but it is slightly concerning, because we welcome any proposals to make extradition to the United Kingdom as quick and efficient as possible so that those who have committed crimes here and then escaped overseas can be brought back to face justice.
Obviously, we do not have the same concerns as we would do under Parts 1 or 2, because the eventual prosecution resulting from extradition will take place in this country within a criminal justice system with which we are familiar and that, for the most part, we trust. The lack of amendments to this part of the Bill is therefore no reflection on the lack of scrutiny from our Benches or those elsewhere in the Committee. But the concern is that we may inadvertently overlook some aspect that, although non-contentious to us, is none the less considered highly controversial elsewhere.
The Minister has frequently reminded us at previous sittings of the Committee that we must not assume our superiority in matters judicial, and that each country believes that it has the best judicial system.
- "O wad some Power the giftie gie us To see oursels as ithers see us!"
Having expressed general support for the Government on the proposals outlined in Part 3, I wish to probe the Minister further on one area. Clause 148 defines an extradition offence for the purposes of Clauses 142 to 147—that is, extradition from category 1 territories. The question that I wish to raise is similar to that posed by the Liberal Democrat amendment, Amendment No. 115, which we discussed several Committee sittings ago. On Part 1, we argued that the threshold for extradition offences should be three years and not 12 months. That argument, the Committee will recall, was based on two points. The first was that we should follow the threshold of three years, as set out in the framework decision. The second was that we should provide further protection for our citizens from extradition for minor offences that fall within the framework and, therefore, are not subject to the dual criminality requirement.
The Government's only response was to say that the 12-month threshold is currently employed and there is no reason to change it. We are now looking at the other
side of the coin; that is, the threshold for offences for which we want to extradite people back here to the United Kingdom to face trial. I was particularly struck by the argument that the noble Viscount, Lord Bledisloe, put forward when we discussed thresholds in Clause 63 under Amendment No. 115. He remarked in Grand Committee on 1st July:
- "Those who have promoted the desirability of this whole system have done so on the basis that, 'Well, you must not think only of our people being taken there, you must think of the desirability of us getting people back here'. Surely, in that case, we should go below the three years but only for countries that have done the same for us. There is an argument for saying that the three years could be reduced to a lesser period by Order in Council where the requesting state in question had also reduced similarly. It would be very wrong if we sent people back to a country for 12-month offences when that country would not return people to us except for three-year offences".—[Official Report, 1/7/03; cols. GC 210–211.]
The question here is one of reciprocity. The Minister has argued that to have a three-year threshold for Part 1 and a 12-month threshold for Part 2 would lead to complications and a lack of consistency. I think that more confusion and lack of consistency will be created by some countries sticking to the three-year threshold of the framework document while we downgrade to 12 months. What will happen if we request the extradition of someone from France to be prosecuted for an offence which warrants 14 months but France has followed the framework decision and enacted that, in its equivalent to our Part 1 procedures it cannot extradite someone to face prosecution for anything less than a three-year offence? How does that lack of reciprocal arrangements fit with the spirit of mutual recognition and harmonisation which, as I understand it, the European arrest warrant was designed to produce?
I, therefore, want briefly to return to what I believe is the essential crux of this argument. Extradition requests between category 1 countries follow a procedure which is meant to implement the framework decision of the European arrest warrant. However much we may dislike the provisions of the arrest warrant, it is a decision which, as the noble Lord, Lord Stoddart, pointed out, was agreed under the intergovernmental pillar and therefore with unanimity. Will the Government seek to cause more problems by altering the threshold which was agreed at that time? We have not yet had a satisfactory answer to the gold-plating issue that the noble Lord, Lord Goodhart, raised before.
The noble Baroness, Lady Scotland of Asthal, said in reply:
- "The Government remain of the view that there is no reason why in implementing the European measures the United Kingdom should always do the bare minimum and only that. Our positive approach to implementing the European arrest warrant will, we hope, set an example to other member states to take a similarly constructive attitude".—[Official Report, 1/7/03; col. GC 211.]
Expressing hope that something may happen among our European partners when we are going to impose extra stringent regulations on our own citizens seems to me to be a mistake. What we need to know is where is the beef? Where is something definite that we are going to get back for this country in return for our gold-plating this particular piece of European legislation?
On the grounds of justice being done, do we set the threshold at three years and provide protection for our citizens against unfair extradition but accept that that may result in allowing others to escape being extradited for offences which fall between 12 months and three years? Or, conversely, as the Government argue, do we expose our citizens to what may often be unfair trial proceedings overseas where their civil liberties may well be infringed for trivial offences which we might not regard as crimes?
It is important for us to have a further debate at this stage on thresholds because in Clause 148 we are looking at the problem from a different angle—that is, from the point of view of extraditing people to the United Kingdom. We need to ensure that that important aspect has full discussion and scrutiny before we pass on to consider Part 4 of the Bill.
6 p.m.
Lord Filkin: I thank the noble Lord, Lord Hodgson, for explaining clearly the issues that he wished to raise. He took us back to some earlier debates. There is no harm in that as these are important issues.
I wish to make a few remarks initially about the Part 3 warrant and then I shall seek to address the specifics of some of the points that the noble Lord made. As the Committee will know, Part 3 warrants are to be used only when making requests to Part 1 countries. For all other extradition, partners' requests will, as now, be made under the Royal Prerogative. Because we have traditionally relied on the Royal Prerogative for all outgoing cases there has never previously been a provision of this kind in our law. As the Committee can see, the definitions in this clause are quite clear. They provide that the offence must be one over which the UK takes jurisdiction and attract a maximum penalty of 12 months' imprisonment or more. That is the traditional extradition threshold and the one that features in all of our bilateral treaties. There is nothing new. There is also nothing new about it as regards the European Convention on Extradition.
Where we are making a departure is by providing that in cases where the person has already been convicted and sentenced, a sentence of four months' imprisonment or longer must have been imposed by the court. Let me explain why we have done that. The Government believe that where a court of trial has
considered a case and passed a sentence, that should be the bench-mark used to determine the seriousness of the case. Traditionally in UK extradition law the threshold for extradition has been whether the conduct attracts a maximum penalty of 12 months' imprisonment or more in the requesting state, and that it would attract the same maximum sentence if it had occurred in the United Kingdom. That threshold has applied in both accusation cases and conviction cases.The effect of that has been that it has been theoretically possible for us to extradite or seek the extradition of a person who was sentenced to a week's imprisonment provided that the court could have sentenced him to a year or more in prison. That does not seem very sensible and the Bill seeks to rectify it. Clearly, in an accusation case, the only measure of how serious the crime is and, therefore, whether it justifies extradition, is the sentence that will be available to the court if the person is convicted. For that reason the Bill retains the traditional threshold in accusation cases.
However, the situation is different in conviction cases. In these cases the case has gone before a court and all the facts of the case have been properly examined. In these cases we can form a judgment of the seriousness of the offence on the basis of the sentence that has been imposed. Accordingly, the Bill provides that in conviction cases the threshold is determined not by the theoretical maximum sentence that could be imposed in the requesting state but by the sentence that the court which has considered the case has actually seen fit to impose. That is why the Bill provides that the threshold in a conviction case is that a sentence of four months' imprisonment must have been imposed.
I should point out that Clause 148 says nothing about dual criminality because for the purpose of extradition to the United Kingdom the conduct in question must clearly be an offence in our law. Whether it is an offence in the law of the requesting state and what difference that might make is a matter for that other country over which we have no direct control.
I appreciate that some Members of the Committee may not want Part 1 in the Bill or, alternatively, may want it solely for terrorist offences. But if the final decision of Parliament is that Part 1 should remain and be of general application, as I hope, I am sure the Committee will recognise that we need to set thresholds for outgoing requests and that these, we believe, are the appropriate ones.
I turn to some of the specific points raised by the noble Lord, Lord Hodgson. The threshold of the framework decision is one year. It is only three years for the removal of dual criminality. The framework decision provides for extradition in the one to three year bracket provided the dual criminality requirement is met.
The noble Lord made a number of general remarks about the Government's stance on Europe. I do not wish to excite or provoke a long debate but just to speak briefly from my own experience of being a combined interior and justice Minister, as it were, at the Justice and Home Affairs Council. The stance that
I and other Ministers took was to have an open mind to the possibility that collective action in Europe could be beneficial to the United Kingdom, but not to take the view that automatically moving towards harmonisation was necessarily a good thing unless there was clear evidence that a specific measure was likely to be of benefit, either directly or indirectly, to British citizens. That was the test that I frequently put to officials and to other justice and interior Ministers when we debated those issues; that is, where is the benefit that would apply to our citizens and, conversely, to their citizens? The view that harmonisation in itself is good is an argument that I and others frequently challenged as being specious and without foundation. From my biased viewpoint it had to be justifiable on the specific evidence that it would be of benefit to citizens of the United Kingdom.I shall not respond to the argumentation about unfair trial procedure as it will weary the Committee to rerun that debate. All I would say in response to why we have taken a view of retaining our current practice of one year—that is in a sense a discussion around minimalism—is to amplify what my noble friend Lady Scotland said. Measures which seem to us to be in the interests of promoting justice, whether in this country or abroad, aim to bring people who have committed an offence to trial and then to sentence after a proper process of law. That seems to the Government to be in the interests of British citizens. I refer to measures which increase, domestically and internationally, our means of bringing people who have committed crimes to trial and sentence. That is in the direct and indirect interests of British citizens, which is why we believe it is right to set the limit at the level that we have.
I do not wish to weary the Committee. I am certain that I shall not convince the noble Lord, Lord Hodgson, on those points but I wish to put them on record.
Clause 149 [The appropriate judge]:
[Amendments Nos. 237 and 238 not moved.]
Clauses 150, 151 and 152 agreed to.
Clause 153 [Return of person acquitted or not tried]:
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