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Lord Clinton-Davis: My Lords, I would like to hear from my noble friend that she supports the principle enunciated by noble Lords who have spoken in favour of the amendment. But the provision proposed in the amendment should not be included in the Bill. There should be a note from the Foreign Office, or whichever office is responsible, to ensure that those points are effectively enunciated in favour of the person concerned. However, the Bill should not contain every possibility.

The noble Lords and the noble Baroness have adduced important arguments. But they have not made out a case for including in the Bill the aspects being debated. I wish to hear from my noble friend that there is a possibility that the arguments adduced will be properly addressed in an explanatory document that will be made available to those who must speak on this important issue.

Lord Donaldson of Lymington: My Lords, the noble Viscount, Lord Bledisloe, raised the point about the solicitor who at the last moment is sent to the magistrates' court. It is very important that he can remind himself of the issues from a single document. The noble Lord, Lord Clinton-Davis, suggested that there should be a Foreign Office handout, but it is certain that it would never get to the solicitor's office.

The noble Viscount, Lord Bledisloe, asked whether it followed from subsection (2) that a judge could reject a written assurance. Surely, it must follow. He must be able to reject a written assurance in the light of subsection (4). I do not know whether he will, but he must be able to when the Secretary of State comes forward and says "I have monitored the past six extradition cases and the human rights have been abused in all of them". The judge might pay attention to that.

My final point may not be well received in some parts of the House. The Human Rights Act has a very bad name. Extraordinary defences are put forward from time to time in the Act's name. It is important, therefore, that the amendment is accepted and included in the Bill. Human rights matter in this context—of course, we know that they always matter. But some cases are different. For example, in Canada, a young man was in the habit of sitting during the religious proceedings at his school assembly and standing during the rest. When it was suggested that that was not a good idea, he said "But I have freedom of religious rights". Another gentleman in the Royal Canadian Mounted Police grew his hair down to his waist and said that that was in accordance with his rights under the Human Rights Act. Utter nonsense is

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talked from time to time, so it is important that it be made clear that Parliament attaches particular importance to genuine human rights in this context.

Lord Lamont of Lerwick: My Lords, I support the noble Lord, Lord Goodhart, and my noble friend on the Front Bench. The spirit of the amendments is extremely sensible and could be far-reaching in removing many of the concerns expressed about the Bill. It addresses the problem that the noble and learned Lord, Lord Donaldson, referred to previously, when he talked about different standards of justice, even in different EU countries, and our assumption that they are all the same. The noble Lord, Lord Goodhart, put the matter diplomatically and said precisely that many countries come up to our own standards of justice. But the implication was that few surpassed them and some did not reach them. He said that we must avoid offending people. I understand that consideration and the Minister's reluctance to engage in the point when concerns about individual countries have been raised. Ultimately, politeness must take second priority to preserving the rights of our own citizens and ensuring that they face fair trials and justice when arrested and imprisoned abroad.

The amendment also supports two points dealt with in three amendments that I have tabled, Amendments Nos. 315 to 317: translation and legal aid. The absence of translation facilities can make trials extremely difficult for people in a foreign country. Under the convention, it is meant to be a normal procedure that simultaneous translation is always available in trials.

The noble Lord, Lord Goodhart, referred to the observation made by Fair Trials Abroad that it had hardly ever come across a case in France where simultaneous translation was provided. By coincidence, I recently watched a television documentary about a famous sporting English figure who was tried in France. When asked what he thought about the court verdict, which went against him, he said "I did not understand a word of the proceedings". I am not commenting on that case, but a person should not have to go through legal proceedings without understanding a word of what is said.

The second point on which a person can be at a huge disadvantage is not having legal aid. There was criticism in the famous case involving plane-spotters in Greece about the quality of lawyers provided. There were different levels of charge against the different defendants. One was a lady who merely sat in a car reading a newspaper while whatever was going on went on. Most people would have thought that she should have a separate lawyer. There is an absence of adequate legal aid in many Mediterranean European countries. That is a denial of justice.

One of the reasons that I am so uneasy about the Bill is that, when the Government say that people should not evade justice by crossing national borders, they do not seem to acknowledge that a foreigner in another country is at a disadvantage with the legal proceedings, just as a non-British person might be at a disadvantage before our courts. That is why one must have safeguards in extradition. It is in contemplating the

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problem that I have come to realise why some countries refuse to extradite their nationals. I am not saying that we should refuse to extradite our nationals, but, in considering the sort of dilemmas that arise in the Bill, I am beginning to understand why some countries have refused so adamantly. I accept what the noble Viscount, Lord Bledisloe, said about monitoring. It raises an interesting point on which I hope the Minister, who was a Minister in the Foreign Office, will comment. I am not sure how much monitoring of individual cases goes on or whether the Foreign Office ever takes a view about procedural issues in legal cases. I know that it does in cases outside the EU, but it is my impression that little happens inside the EU. I am not sure how the Foreign Office addresses issues that arise in countries with relatively high standards of justice.

However, although the amendment addresses the translation and legal aid issues, it does not address the bail issue—the third important way in which a person in another country can be at a disadvantage. There is a presumption of a risk of flight if someone is from another country, so that person is not given bail. That is why, although I am reluctant to concede the logic that one step of European integration requires another, I have been converted by Fair Trials Abroad and people such as the noble Lord, Lord Goodhart, to thinking that we need a system of euro-bail, whereby a foreigner or EU citizen in another EU country would be given bail on much the same assumptions as a national of that country. If he absconded, he would be returned automatically by his own country to the prosecuting authorities. That is not covered in the amendment and ought to be addressed later in the Bill. The main thrust of what the noble Lord, Lord Goodhart, said is right. He is absolutely right about translation and legal aid.

5 p.m.

Baroness Carnegy of Lour: My Lords, when the noble Lord, Lord Goodhart, responds, will he clarify something for me? Subsection (2) of the amendment states that,

    "the judge may accept a written assurance".

I took that to mean what the noble and learned Lord was saying from the Cross Benches—that if a written assurance comes, the judge may accept it, but, equally, he may reject it. It does not mean that if a good written assurance comes the judge can simply say that written assurances are not on. It is the quality of the assurance that is referred to. I imagine that that is right, but I would like confirmation.

Baroness Scotland of Asthal: My Lords, I have listened very attentively to the debate that has ranged across the House. I take on board what noble Lords have said about the need for a procedure that is fair and honours the human rights of each individual as well as the need to have the European Convention on Human Rights totally respected. I agree with all of that. The amendments are very well-intentioned. However, I regret to say that they are wholly misconceived.

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The noble Lord, Lord Goodhart, says that he wishes to take a short cut in relation to the provisions in the ECHR and the Human Rights Act. The Government do not think that such a short cut should be taken. The noble Viscount, Lord Bledisloe, asked, "What about the hard-pressed solicitor?". We hope that we have changed that culture. In this country, we now have the Human Rights Act, which applies not only to extradition and this Bill, but to each and every Bill that comes before your Lordships' House. The issues in relation to the European Convention on Human Rights do not only apply as principles of the Extradition Bill. We have debated the same issues on the Criminal Justice Bill, the Anti-social Behaviour Bill, the Sexual Offences Bill and every other Bill that comes through. We must be aware that, if we pick and choose which bit of Article 6, which bit of the European Convention on Human Rights and which bit of the Human Rights Act apply, there is an inference that the other bits—the short cut that we have taken—have less importance and significance.

I reassure my noble friend Lord Clinton-Davis that I agree with the principles enunciated by the amendments and that there will be appropriate explanatory documents. However, I must say to the noble and learned Lord, Lord Donaldson, and the noble Lord, Lord Lamont, that we are talking about a culture of human rights, something that hard-pressed solicitors should have inculcated into their working practice. If they have not, I respectfully suggest that they should not be practising.

On the question of politeness, we are not introducing these provisions out of politeness to other countries. There are pressing rights. The noble Lord, Lord Lamont, is right: these rights are about the protection of our own citizens and the reason for them is to ensure a fair trial. That is the whole point of Clause 21 in this Bill, which applies to the whole extradition process. Clause 21(1) states:

    "If the judge is required to proceed under this section (by virtue of section 11 or 20), he must decide whether the person's extradition would be compatible with the Convention rights"—

that is, all of them, not a pick-and-choose short cut—

    "within a meaning of the Human Rights Act 1998",

which means all that Act.

We must transport each and every provision of the European Convention and each and every provision of the Human Rights Act into this Bill, not just pick and choose bits of it. I am very troubled by the suggestion that some provisions have greater significance than others.

Extradition is a classic balancing act, with the rights of the person whose extradition is sought on the one hand and the need for society to ensure that those who are accused of serious crimes are swiftly brought to justice on the other. The Government believe that this Bill strikes the right balance between the rights of the fugitive and the interests of justice.

We have built a number of important safeguards into the extradition process. Many of these safeguards are the same as those that can be found in our existing

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extradition legislation but, arguably, the most important is new. To be certain that the requested person's human rights are fully considered and safeguarded, we have included specific bars to extradition on human rights grounds in both Part 1 and Part 2 of the Bill—in Clauses 21 and 88 respectively. I have already mentioned Clause 21, but the same safeguards are reflected in Clause 88.

Those clauses are quite unambiguous. They provide that the judge must refuse to extradite a person if the extradition would be incompatible. Not only does that protect against the infringement of individual rights in this country, but ECHR case law has clearly established that these obligations extend to the likely fate of the fugitive if he is extradited. If there is a significant risk that his ECHR rights will be breached once returned to the requesting state, we cannot extradite him.

That is a very important point, and a reminder of the key jurisprudence might assist your Lordships. The key case in this regard is that of Soaring. The European Court of Human Rights in its judgment in that case said:

    "It would hardly be compatible with the underlying values of the convention, were a contracting party knowingly to surrender a fugitive to another State where there were substantial grounds for believing that he would be in danger of being subjected to torture, inhuman or degrading treatment or punishment, however heinous the crime allegedly committed. Extradition in such circumstances would be plainly contrary to the spirit and intent of Article 3".

In respect of Article 3 of the convention, the court went on to say:

    "The decision by a Contracting State to extradite a fugitive may give rise to an issue under Article 3, and hence engage the responsibility of that State under the Convention, where substantial grounds have been shown for believing that the person concerned, if extradited, faces a real risk of being subjected to torture or to inhuman or degrading treatment or punishment in the requesting country".

The court went on similarly to explain that Article 6 issues could arise in extradition proceedings when there was a significant risk of the denial of a right to a fair trial in the requesting state. I shall take up the point made by the noble Viscount, Lord Bledisloe: if Germany were to change in the way that it changed in the 1930s, the judge dealing with the case on an individual basis—they are skilled, and we have dealt with that matter—would have to examine the facts of the case, examine Article 21, examine the evidence produced before the court and decide whether the rights of that person, in those circumstances and on that evidence, were guaranteed in accordance with the ECHR and the Human Rights Act 1998. Any judge who did not discharge his or her independent duty in each individual case would renege on that duty. I do not believe that we need fear for the honour and integrity of our judges: they will do it.

We should be in no doubt that, when they come before our courts, fugitives will have an opportunity to be represented. They will be advised appropriately, and legal aid will be made available. The issues can be brought before the court. The hard-pressed solicitor may be hard-pressed on the first occasion on which he

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comes to court but, usually, he is able to draw breath before the substantive hearing and give expression to his client's rights, ably assisted—usually—by counsel employed for that purpose.

That brings me neatly to the amendment. It has four parts, and I shall deal with each in turn. The first part would require a district judge to have particular regard to Article 6.3 of the ECHR. As I am sure your Lordships are aware, Article 6.3 guarantees the right to a fair trial and refers to minimum rights. I reiterate: Article 6.3 is only one part, and the rest of Article 6 is of equal importance. They are all important rights, but I cannot see why that article must be singled out.

As I said, those representing fugitives will, doubtless, seek to argue that extradition should be barred on ECHR grounds generally. In many cases, their submissions will be built on likely breaches of Article 6.3, but there will be times when it is argued that extradition will lead to a breach of Articles 2, 3, 4, 5 or 6.2, to name but a few. Each of those would be a serious matter, and the district judge would need to give all such arguments serious consideration, whichever article was referred to. I do not see why we should make particular reference to one article. It almost suggests that potential breaches of other articles would be a lesser matter. They are not. I am sure that it is no part of the intention of the noble Lord, Lord Goodhart, or of other noble Lords who spoke to press the issue in that way, but that would be the inadvertent effect. We should trust the judges to deal with the matter properly.

The second limb of the amendment would enable the judge to accept a written assurance from the requesting state that the person's rights under Article 6.3 will be properly observed if he is extradited. Apart from the general point that we should not single out Article 6.3, I think that that would be an unnecessary provision, as it would already be allowed.

Under the Bill, it is open to both sides—the fugitive and the requesting state—to make representations to the district judge on the ECHR question, to advance arguments and to present evidence, written or otherwise. In accordance with normal practice, the district judge will weigh up the evidence and arguments put before him and reach a decision. In the course of that, it is open to the requesting state to submit evidence to the judge—in writing, if he wants—about its procedures or any other matter in an attempt to demonstrate that the person will indeed receive a fair, ECHR-compliant trial. The judge will decide how much weight to attach to such assurances. Again, I cannot see what the second limb adds.

The last limb of the amendment would require the Secretary of State to monitor proceedings, once the person had been returned. A moment's thought should demonstrate that that presents serious practical difficulties. Quite apart from the costs involved, we should consider the basis on which the monitoring could be carried out. How would the monitors decide whether ECHR rights had been upheld? I fail to see how it would work.

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The amendments also ignore the fact that the United Kingdom has had extradition relations with countries throughout the world for more than a hundred years. We conduct a large proportion of our extradition traffic with EU member states, and we have not previously thought it necessary for the Secretary of State to monitor their internal systems. If the situation in countries to which we already extradite were as bad as some imply, we would have stopped extraditing to them.

For the United Kingdom unilaterally and directly to monitor other EU member states' judicial systems, whether generally or specifically in extradition cases, would be a flagrant abuse of their sovereignty. I am sure that your Lordships appreciate that the United Kingdom would take great exception to other countries taking such drastically intrusive measures in respect of procedures in this country. I wonder how we would feel if, every time we got someone back from another country, he was accompanied by an official representative of that country checking to see whether our criminal justice procedures were up to scratch. Some in the Chamber might take mild offence at that.

I doubt that such provisions will be necessary. We must bear it in mind that no two cases are the same. I understand why noble Lords want to put the new clause into the Bill, but I disagree fundamentally with it. It would not inure to the advantage of the accused person; it would not inure to the advantage of the system; and it might lead many to err in believing that Article 6.3 was the only part of the ECHR with which they needed to concern themselves. That would be a tragedy, because it would be wholly and unacceptably wrong.

5.15 p.m.

Lord Goodhart: My Lords, I shall start my reply by dealing with two or three points made by those other than the Minister who spoke in the debate.

First, the noble Viscount, Lord Bledisloe, asked me whether it was intended that the judge should have a discretion under subsection (2) of the new clause. For the reasons explained by the noble and learned Lord, Lord Donaldson of Lymington, there would be a discretion.

The noble Viscount also asked whether subsection (4) should make it mandatory or optional for the Secretary of State to provide for monitoring of the trials. In principle, it would be appropriate that it should be mandatory for there to be some form of monitoring. We need to have a check to see whether assurances are being complied with, so that we do not keep on sending people to countries on the basis of assurances that are not complied with. If it were to make the difference as to whether the Government would accept the amendment—clearly, that is not the case—I would be willing to agree to its being made optional, rather than mandatory.

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I agree with the noble Lord, Lord Lamont of Lerwick, on the importance of the euro-bail system. It would be an enormous step forward if people who were arrested abroad, instead of being remanded to local prisons for a considerable time because of fears that they would disappear off home, could get their bail on the basis of a guarantee from the country in which they live that they will be returned. I raised that issue in an amendment tabled in Grand Committee, but it seems to be outside the scope of the Bill, as it applies not only to people who have been extradited but, more importantly, to people who have been arrested and detained in the country in which the offence was allegedly committed. There is some doubt whether it even falls within the Long Title of the Bill, so I thought it inappropriate to press the issue further at this stage.

I now turn to what the Minister said. She argued forcefully but not, when one considers the matter, entirely convincingly against the amendment. It is true that we do not say that some provisions of the Human Rights Act or the European Convention on Human Rights have greater importance than others. However, some are more likely to be relevant than others. When we are dealing with member states of the European Union, on the whole, general rights are usually observed—for example, the right to freedom of conscience, the right to freedom of religion, the right to freedom of expression and assembly; and the right to freedom of speech, and so on. Article 6, in general, and Article 6.3, in particular, are likely to be especially relevant.

The noble Baroness said that we do not need to include these provisions because the European convention will be observed and there does not need to be any special reference to it. I am not sure that that fits altogether clearly with what the Government have done in Clause 13, which deals with extraneous considerations where one of the grounds on which extradition is barred is that the warrant is,

    "issued for the purpose of prosecuting [someone] on account of his race, religion, nationality or political opinions".

We have now added further qualifications to that through an earlier amendment.

All those considerations seem to be caught by the European convention. On its own, Clause 21 would be enough to block that even without Clause 13. In our belief, the Government, rightly, thought it appropriate to draw particular attention to the matter, but that is inconsistent with their objection to what we are doing now.

The Minister asked how monitors could decide whether the European Convention on Human Rights had been complied with. If they are there, monitors could observe the standard of interpretation being used and observe whether the parties of the people being extradited are able to obtain competent legal aid. That certainly is within the bounds of possibility of monitoring.

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Finally, the noble Baroness said that we would object to other countries checking to determine whether criminal procedures are up to scratch. If there is anything like Clause 21 in other countries, we may find people from those countries checking on the court procedure here to use as a basis for a refusal of extradition in their home country. I hope that that will not be the case. I have little doubt that any such application would be rejected, but it certainly is a possibility.

This is an important amendment. I do not think that the Government have produced a satisfactory answer. I wish to test the opinion of the House.

5.23 p.m.

On Question, Whether the said amendment (No. 74) shall be agreed to?

Their Lordships divided: Contents, 125; Not-Contents, 122.

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