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Lord Lamont of Lerwick: My Lords, the Minister commented on the balance of probabilities. I hope that he will forgive me if I was out of the Chamber when he mentioned the relevant case, but will he comment on the South African case where the United States authorities sought the extradition of a British citizen who was the victim of a case of mistaken identity? The noble Lord, Lord Bassam, shakes his head as though that is an inappropriate question. However, he has just advanced the case that these matters are easily resolved. The man in question suffered terribly from being mistakenly identified.
Lord Bassam of Brighton: My Lords, I greatly respect the noble Lord's sincerity in advancing an alternative case, as it were. However, he is asking me to make a judgment. I am not prepared to make that judgment. It would be wrong of me to do so. It is not right for me to comment on that particular case.
I referred to a case which I believe supports the principles behind the Government's legislation. It is a serious matter which needs to be taken into consideration. I invite the noble Lord and other Members of your Lordships' House to reflect very carefully on that before they seek to press these amendments. I hope that, having heard the serious import of what I said, the noble Baroness will feel able to withdraw the amendment.
Baroness Anelay of St Johns: My Lords, the noble Lord, Lord Bassam, indulged in much rhetoric in trying to portray those who support the amendments as "do badders" who are keen to allow the worst terrorists to flee. He knows that that is not the case. I shall not indulge in the same kind of rhetoric. We are trying to catch the kind of circumstance that was recounted very carefully by the noble Viscount, Lord Bledisloe, in Grand Committee, and which we
tried to hint at in the amendment. There are occasions when someone is patently innocent and should not be subject to extradition proceedings. I confess freely that we have not found a way of addressing what we consider to be the vital point that the noble Viscount, Lord Bledisloe, raised. I shall continue to address that point.As noble Lords around the House said tonight, none of us would want an innocent person to be subject to these proceedings. None of us would want to sign up to legislation that would allow to go free a person who is accused of killing a member of our forces or our police or who is accused of an act of terrorism or a serious criminal act. However, we must serve the whole public. I shall consider how we can return to the matter at a later stage. I undertake to talk to the noble Viscount between now and Third Reading to see whether we can find an amendment which properly serves our joint objective. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 48 and 49 not moved.]
Baroness Anelay of St Johns moved Amendment No. 50:
- Page 5, line 34, at end insert—
The noble Baroness said: My Lords, in moving Amendment No. 50, I wish to speak also to Amendments Nos. 201 and 211 with which it is grouped.
The point at issue here is the provision of legal aid at the initial stage of proceedings and in connection with the giving or withholding of consent to extradition. When we debated the matter in Committee we thought again about how our amendments were phrased. We listened to the points made in Committee and studied Hansard carefully. Many noble Lords drew to our attention the drafting error in our amendments. We heeded their advice and changed them.
It is clear that we all agree that we must ensure that no one gives their consent to extradition unless they have had at least the opportunity to receive legal advice. The Government have already shown us their commitment to that principle through the amendments to Clauses 44 and 127. They put significant safeguards into the clauses on consent, which we certainly welcomed.
Our amendments are on the same theme, but are designed to strengthen the Government's commitment to the provision of independent legal advice throughout the Bill. Clause 8 lays an obligation on the judge to proceed under it by fixing a date for the extradition hearing, informing the person of the contents of the warrant, giving the person the required information about consent, and remanding the person in custody or on bail.
Initially, we intended to amend the clause by removing the duty on the judge to give the person the required information about consent, and by placing
We are concerned about the timing. At what stage will the lawyers have access to the defendant in order to run through the issues involved in giving consent? We want to make sure that the person has had time to talk matters through and reflect on which course is appropriate to the situation, without in any way opening the gate to people who want simply to extend the process for their own purposes rather than proper judicial reasons.
Under Clause 44, the person who has been arrested may have had legal aid for only a matter of hours before he is required to make his decision. We want the Bill to make sure that such a short time frame is not the case. By introducing a requirement for the defendant to have access to legal aid at the stage that Clause 8 describes, we would try to provide certainty that he had time to consider the very serious decision before him.
I make it clear that all the amendments are strictly probing. We are trying to get a picture on record of how the provisions will work. I beg to move.
Lord Bassam of Brighton: My Lords, as ever I am extraordinarily grateful to the noble Baroness, Lady Anelay, for having tabled the amendments and explained their purpose. She always gets her explanations spot on.
The amendments relate to the important issues of consent to extradition and, more specifically, of the legal advice available to a person in such circumstances. It may be worth recording that somewhere between a quarter and a third of those who are the subject of extradition proceedings in this country consent to extradition, so it is not an insignificant issue. It is also very significant for the individual concerned. Deciding whether to consent to the extradition request or to go back voluntarily is a very important decision.
That makes it absolutely vital that those concerned understand the full implications of granting that consent. For that reason, the judge is required at the initial hearing to explain to the fugitive about the possibility of giving consent and also about the implications and consequences of so doing. In particular, the judge must set out the consent procedure and make sure that the person is aware of the very important fact that once consent has been given it cannot be revoked.
The amendments would impose an additional requirement on the district judge at that initial hearing. He would also be required to ensure that the person has had the opportunity to receive legal advice about the implications of consenting to his extradition.
I am sure that many of your Lordships will regard this as a sensible proposition, as do I. I do not disagree with the underlying sentiment behind the amendments, but I want gently to suggest that they are superfluous. I remind noble Lords, first, that anyone who is the subject of extradition proceedings is entitled to legal aid. Every person who is arrested in an extradition case has the same entitlement as those arrested in purely domestic cases. That entitlement is to independent legal advice.
The duty solicitor scheme is designed precisely to ensure that this advice is available before the first court appearance. In the extradition context, that means that the legal aid is available before the fugitive has any opportunity to consent to extradition. So the advice is there before he is put in the position of considering consent.
As your Lordships will see from the draft code of practice on police powers, which we put out for consultation, the first duty of the custody officer following a person's arrest in an extradition case is to ensure that he is informed at the first instance of his right to free, independent legal advice. So right at the outset it is the duty of that custody officer to make that crystal clear.
I want to take this opportunity to put on the record one other point which arose in Grand Committee. My noble friend Lady Scotland has written to the noble Baroness, Lady Anelay, about it. The Government are engaged on a consultation exercise about possible changes to the duty solicitor scheme. However, extradition cases are of such a seriousness that they would not be affected by any such changes. We wanted that to be widely known and understood. In other words, the duty solicitor scheme will continue to be available to all those arrested in connection with extradition.
However, my reason for suggesting that these amendments are unnecessary goes beyond that. If noble Lords care to take a careful look at Clause 44 and the corresponding Part 2 provisions in Clause 127, they will see that they make clear that the district judge cannot accept a person's consent to extradition unless that person is legally represented or has had the opportunity to have legal advice. In other words—and I have chosen these words very carefully—it will never be possible for a person to consent to his extradition unless he has had the opportunity to take legal advice. That is what the Bill already provides for and, accordingly, I do not believe that these amendments are appropriate or necessary. I hope that, having heard that, the noble Baroness, Lady Anelay, will feel not only reassured but confident in withdrawing her amendment.
Baroness Anelay of St Johns: My Lords, I am grateful to the Minister. He has put the Government's arguments on the record more clearly than in Grand Committee. I certainly accept his assurances on those matters.
He was right to refer to legal aid. I asked questions in Grand Committee because I was concerned about the continuation of legal aid being available for serious cases. I was grateful to the noble Baroness, Lady Scotland, for writing to me to confirm that. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Baroness Crawley: My Lords, I beg to move that consideration on Report be now adjourned.
Moved accordingly, and, on Question, Motion agreed to.
Returned from the Commons agreed to.
"( ) ensure that the person has had the opportunity to receive independent legal advice about the implications of giving or withholding consent to extradition;"
House adjourned at four minutes past ten o'clock.
Correction
In col. 1549 on Tuesday 21st October, the first two sentences of the Lord Livsey of Talgarth on Amendment No. 4 to the Hunting Bill should read, "The passing of Amendment No. 2 incorporates specifically the principles of registration and exemption. The new clause contained in Amendment No. 4 clarifies and defines registration."
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