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26AClause 20, page 10, line 26, at end insert— "(8 ) The judge must not decide the question in subsection (5) in the affirmative unless, in any proceedings that it is alleged would constitute a retrial or a review amounting to a retrial, the person would have these rights—

(a) the right to defend himself in person or through legal assistance of his own choosing or, if he had not sufficient means to pay for legal assistance, to be given it free when the interests of justice so required;
(b) the right to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him."

Baroness Scotland of Asthal: My Lords, I beg to move that the House do not insist on its Amendment No. 26 to which the Commons have disagreed and do agree with the Commons in their Amendment No. 26A in lieu thereof.

Your Lordships will have seen that all the amendments are concerned with convictions in absentia. The Bill provides that, in a case where the person has been convicted in absentia and did not deliberately absent himself, we cannot extradite unless the person is guaranteed a retrial or a review amounting to a retrial on his return. The amendments were agreed on Report in the Lords to try to make that clear in the Bill. We are again broadly accepting the spirit of the amendments, but using different wording that draws more closely on the wording of the ECHR.

We are not accepting one element of the amendments, as they would have given the person an entitlement to be present at the retrial. Although that appears unobjectionable, we have to recognise that the court must have the right to remove an abusive or disruptive person, so we do not believe that we can grant an automatic entitlement.

The wording that we have adopted has been drawn straight from Article 6.3 of the European Convention on Human Rights, so it certainly has impeccable pedigree, although I should repeat my concern about it being seen to highlight particular parts of the ECHR. I want to make it plain that we consider that all parts of the ECHR bite on the provisions of the Bill, and that nothing contained in it dilutes that reality.

I thank the noble Lord, Lord Goodhart, for giving such clear direction to his colleagues in the other place in relation to other matters.

Moved, That the House do not insist on its Amendment No. 26 to which the Commons have disagreed and do agree with the Commons in their Amendment No. 26A in lieu thereof.—(Baroness Scotland of Asthal.)

Baroness Anelay of St Johns: My Lords, I thank the Minister for the amendments on retrial. I accept the Government's reasons for omitting the section that does not appear in their redrafted amendments, where we required the defendant to be present. We discussed that at some length in Committee and on Report. I

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certainly appreciated the comments made by the noble Viscount, Lord Bledisloe, in particular, with regard to the practical difficulties that can ensue if one has an obstreperous defendant. It might appear in that person's interests to ensure that he is not present, as it might scuttle what is otherwise a very proper trial.

We also were concerned to find some way to redraft the retrial provisions so that they preserved the proper fairness and equitable procedure that one would want at a retrial, without in any way making provisions that would jeopardise that trial. The Government have achieved that. I note precisely what the Minister said with regard to the way in which all the articles on human rights are to be taken seriously. We, too, take them all seriously but it was right to focus on the particular explanation of retrial. I certainly welcome the amendments.

Lord Goodhart: My Lords, the provisions were moved in an amendment by the noble Baroness, Lady Anelay, but we supported them. We on these Benches are also happy with the version of the amendment now proposed by the Government.

On Question, Motion agreed to.


27After Clause 21, Insert the following new Clause— "Minimum procedural rights

    (1) In reaching a decision under section 21(1) the judge shall have particular regard to the person's Convention rights under Article 6.3 of the European Convention on Human Rights.

    (2) For the purposes of subsection (1), the judge may accept a written assurance from an appropriate authority in the category 1 territory in which the warrant was issued that the person's Convention rights under Article 6.3 will be observed.

    (3) Where a written assurance has been given under subsection (2), the Secretary of State shall make arrangements to monitor the subsequent conduct of the proceedings against the person in the territory to which he has been extradited.

    (4) If the Secretary of State believes as a result of monitoring under subsection (3) that a person's Convention rights under Article 6.3 have not been observed, he may draw that conclusion to the attention of a judge acting under section 21 in relation to any proceedings for the extradition of any other person to the same category 1 territory."

    The Commons disagree to this amendment for the following reason—

27ABecause it would not be appropriate to provide for the giving of an assurance, or for monitoring, of the kind described in the Lords Amendment.

Baroness Scotland of Asthal: My Lords, I beg to move that the House do not insist on its Amendment No. 27 to which the Commons have disagreed for their reason numbered 27A.

The new clause was inserted on a very narrow vote, as noble Lords will remember, by your Lordships on Report. I said on that occasion that I thought the clause unworkable and inappropriate, which is the very term which the Members of the other place use in their reason. I regret to tell the House that that remains the Government's view.

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I can be fairly brief because, on consideration of Lords amendments in the Commons on 13th November, my honourable friend Caroline Flint demonstrated in a masterly exposition precisely the difficulties attendant on the new clause. If your Lordships wish further enlightenment, by reading Hansard they will see that she went through every subsection and explained why it would not sit well in the Bill. For that reason, I do not intend to entertain your Lordships today with a recitation.

My honourable friend set out why it was inadvisable to single out one particular sub-article of the ECHR. She showed why we should not give my right honourable friend the Secretary of State, or any other Secretary of State who follows him, the monitoring role for which the amended Bill would have provided. She enumerated all the dangers that would flow from making the Secretary of State effectively a party to extradition proceedings.

However, I hope that your Lordships will be comforted to know that you do not have to rely on my logic or that of my honourable friend. During Commons consideration of Lords amendments, Mr Alistair Carmichael, the Liberal Democrat spokesman, revealed the contents of a memorandum which he had been sent by the noble Lord, Lord Goodhart. Apparently in respect of this amendment, the noble Lord, Lord Goodhart, had written:

    "The Government says that the new clause is unworkable (probably correctly!)".—[Official Report, Commons, 13/11/03; col. 446.]

I unreservedly agree with the noble Lord's assessment. I am grateful that Mr Carmichael decided to put this in the public domain, even if I can appreciate that the noble Lord would have preferred that he remained silent on the issue.

When your Lordships passed the amendment, the Government did, of course, look very hard to see whether any kind of compromise was possible, but I regret to say that, like the noble Lord, Lord Goodhart, we concluded that none could be forthcoming. The Bill already provides that the judge is required to consider whether extradition would be compatible with the person's ECHR rights, and that relates to all articles of the ECHR and not just Article 6.3.

It would simply be impossible to provide for the Secretary of State to undertake a monitoring role of trials held overseas, to say nothing of the potential abuse of sovereignty that that would entail. However, most seriously of all, the new clause sought to require the Secretary of State to intervene in, and become a party to, extradition cases. Under our current arrangements, the Secretary of State very deliberately acts in a quasi-judicial capacity in extradition cases and to depart from that would be dangerous.

The UK has had extradition relations with a variety of countries throughout the world for more than 100 years. We conduct a large proportion of our total extradition traffic with EU member states and we have not previously thought it necessary for the Secretary of State to monitor their internal systems.

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Ultimately, we have to decide whether or not we trust our extradition partners. We have had that trust in other European countries for more than 100 years. If we do trust them, we should be prepared to extradite to them without putting in place a complicated monitoring system, as envisaged by this new clause.

It was for those reasons that the other place decided to remove the new clause and I hope that your Lordships will see the wisdom of their decision and agree with them. I am confident of the position expressed by the noble Lord, Lord Goodhart, and I believe that I can have similar confidence in the noble Baroness, Lady Anelay.

Moved, That the House do not insist on its Amendment No. 27, to which the Commons have disagreed for their reason numbered 27A.—(Baroness Scotland of Asthal.)

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