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Baroness Scotland of Asthal: My Lords, I only wish that I could agree. I do not think that I can, although it is right to say that, in Grand Committee and this evening, the noble Lord, Lord Goodhart, raised a number of good points. My noble friend Lord Filkin said that he would take them away for consideration. We have taken them away and have given them in-depth consideration. I would normally wish to explore very fully the what and why of how we came to these conclusions, but I am conscious that it is now quarter-past nine o'clock and I hope that noble Lords will forgive me if I am a little shorter than I would have liked to be because, although many issues raised by the noble Lord were covered in Grand Committee, they are deserving of a more thorough response. I will give your Lordships a more telegraphic response, but if there are further and other issues that noble Lords feel may be assisted by further explanation, I shall be very happy to write to them with the full response that I have prepared.

Baroness Anelay of St Johns: My Lords, as this is Report, I can ask the Minister questions at this stage. If she were to write to us, would the letters automatically be placed in the Library of this House? Are they available to members of the public, because those additional answers need to be on the record?

Baroness Scotland of Asthal: My Lords, if I write to noble Lords, I am very happy to put letters in the Library of the House and make them publicly available. I had intended to go through some of the authorities that were raised in Grand Committee. For example, the noble Lord, Lord Goodhart, referred specifically to the cases of Saifi and Murat Callis. He also referred to various issues that had been brought to his attention, doubtless by the speech by Paul Garlick QC. There were some specific references and responses that I would have made. I may touch on some of them, but I am conscious that time is of the essence. In answering the noble Baroness and the noble Lord, I want to make it clear that we gave the matter in-depth consideration. Anything that I say now is a synopsis of the deliberations that the provisions engendered. We thought about the matter carefully and in some depth.

The amendments would create an additional bad faith bar to extradition in Part 2 cases. The second amendment is a drafting one that is consequential on the first. I think that the noble Lord, Lord Goodhart, moved similar amendments in Grand Committee.

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Clause 80 sets out, for the purposes of Part 2, the bars to extradition that the district judge must consider. As noble Lords will know, there are separate bars that the Secretary of State must consider. In such circumstances, the judge must decide whether extradition is barred for any of the reasons specified in the provisions. If any of the bars apply, the judge must discharge the fugitive.

If the bars do not apply, the judge must go on to consider, in accusation cases, whether there is prima facie evidence or, in conviction cases, whether the person was convicted in his absence. That is the scheme that we have. The amendments would impose an extra step in the process. After considering whether the bars applied, the judge would be obliged to consider whether the accusation against the person was made,

    "in good faith in the interests of justice".

That is an extra layer. If the judge concluded that it had not, he would be obliged to discharge the person.

As the noble Lord indicated, the wording of the amendment is based on Section 11(3) of the Extradition Act 1989. It provides, in the context of statutory habeas corpus appeal, that extradition shall be barred, if it would be unjust or oppressive, for three reasons. One of those is the "good faith/interests of justice" test included in the amendment.

As consolidating legislation, the 1989 Act reflected the situation of 1870, when the original legislation was passed, including the diplomatic mistrust and infrequency of foreign travel that characterised the law on the subject at that time. I think that the noble Lord, Lord Filkin, made that point in Committee. The noble Baroness, Lady Anelay of St Johns, said that her view was that we had not moved on significantly since then. Respectfully, I disagree. We have moved on enormously since 1870. The sort of international travel that we have, the nature of international relations, the speed with which we communicate and our ability to work with our partners are light years away from where we were in 1870. Some of the difficulties remain, but in a different way. They can be addressed with greater efficacy and efficiency than could have been done many years ago. As consolidating legislation, the 1989 Act reflected the situation in 1870. The nature of international relations and access to foreign travel have changed significantly over the past 130 years.

The Bill contains specific human rights clauses that previous legislation did not and could not because the Human Rights Act was still nine years away in 1989 and the ECHR was drafted more than 80 years after the 1870 Act. It is not surprising that those differences exist. The Bill also contains bars against extradition for extraneous reasons—for example, prosecution, punishment or prejudice at trial on the basis of a person's race, religion, nationality or political opinions. Those, along with the other protections against unjust extradition—double jeopardy, in absentia, death penalty, speciality et cetera—provide significant and sufficient safeguards for the individual, without the need for a general discretion for the judge. It is clear what decisions are to be taken and on what grounds they are to be based.

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The danger of reintroducing that kind of provision is that delays, which we are seeking to minimise under the new system, would be perpetuated by lengthy and possibly opportunistic legal arguments about good faith and the interests of justice. If fugitives and their lawyers are given additional grounds on which to challenge extradition, experience of the current system demonstrates that they will take every opportunity to make use of them. They should have proper opportunity to do so. We think that the Bill allows proper opportunity on proper grounds for those issues to be properly explored.

In particular, there is a worry that people will seek to allege, not that a particular country has an unsatisfactory criminal justice system, but that a particular judge is corrupt or has made the request for improper reasons. That could lead to endless legal challenges and arguments. As drafted, the Bill contains sufficient safeguards to deal with the situation.

In Grand Committee, the noble Lord, Lord Goodhart, mentioned the speech made by Paul Garlick QC. Some interesting remarks were made, but I found the conclusion of Mr Garlick's speech particularly interesting. It is worth reminding your Lordships of what Paul Garlick said:

    "Supposing the judge (i.e. the District Judge at the extradition hearing) is satisfied that the accusation made against the fugitive is not made in good faith against the interests of justice, but for some other ulterior motive held by a potential prosecution witness or scurrilous prosecutor (perhaps seeking re-election or favour from his superiors). In those circumstances, does the judge have no power to stop the proceedings? If that is the case then, under the new regime proposed by the extradition Bill, the High Court would have no power to correct the position as its jurisdiction on appeal is limited to reviewing whether the judge should have answered one of the questions posed to him in a different way. Can it seriously be said that the High Court has no power to discharge a fugitive where it is plain that the accusation has been made in bad faith? Of course not, such a result would bring the whole extradition process into disrepute".

In other words, Mr Garlick is confident that, even with the present drafting of the Bill, the courts would be able to act to prevent extradition in cases where the request had been made in bad faith. That goes to the very heart of the amendment. I therefore hope that your Lordships will be persuaded that these amendments are not necessary. Nevertheless, some of your Lordships might accept that, but still think that there would be no great harm in making them anyway.

However, the amendments would have very real disadvantages. A broad, apparently open-ended provision of this kind would invite fugitives to seek to invoke it in just about every case. We fear that there would be endless litigation on this point. I apologise for having spoken even now at such length, but we needed to encompass some of those issues. I shall be very happy to place an even fuller response in the Library if noble Lords think that that would be helpful.

Lord Goodhart: My Lords, I am most grateful to the Minister for her full reply. Even now, I am not sure that I am entirely persuaded by what she said, but this

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hour of the night is not a time for dividing the House. In any event, when deciding on what issues to divide, one must prioritise some at the expense of others: I do not think that this amendment is one which quite reaches that level of priority. I therefore beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 222 not moved.]

Clause 82 [Extraneous considerations]:

Baroness Scotland of Asthal moved Amendments Nos. 223 and 224:

    Page 44, line 23, after "nationality" insert ", gender, sexual orientation"

    Page 44, line 26, after "nationality" insert ", gender, sexual orientation"

On Question, amendments agreed to.

Clause 85 [Case where person has not been convicted]:

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