Dr.
Harris: I am pleased to be able to speak to these
amendments. First, I wish to raise a couple of concerns about the
structure of the extradition clauses, of which clause 55 is, I think,
the most important. I would be grateful if the Minister could give me
some reassurance.
The
Extradition Act 2003 was not particularly controversial in the House
but it attracted some controversy at that time, as it was a way of
implementing the European arrest warrant. Part of the basis of that
legislation, and of this Bill, is that there is no need for a UK court,
when it receives notice of a European arrest warrant, to look behind
that application for prima facia evidence or to have regard to the need
for dual criminality. In other words, it is perfectly possible, by
design, that someone should be extradited for an offence under a
European arrest warrant to a country where that offence is not
considered an offence. That produces problems and leads to legal
cases. Such
applications can create problems not only for the individuals concerned
and their human rights, but for our courts. For example, the
application could be vague. There have been examples in the press of
applications for swindling, computer offences and speech offences such
as xenophobia and incitement to hatred. Only incitement to religious
hatred is an offence without intent in this country and there are high
thresholds for other incitement offences. Is the Minister satisfied
that it is reasonable to base a clause on a presumption that all EU
member states that are subject to the European arrest warrant have fair
laws and processes?
4.15
pm For
example, we have specifically decided that holocaust denial, however
odious, will not be made a criminal offence, so is it appropriate that
we make it possible for other EU member states to seek to extradite for
such an offence someone who is not a citizen of their country and who
has not published in their country except on the internet? The Minister
will be aware of the controversy over the case of Dr. Toben, in which
the magistrates in Westminster dismissed the application, citing
vagueness, and in the end he was not extradited only because the German
Government decided not to appeal to the High Court. Is it right that we
should have legislation that fails to make it clear that that is not
the sort of case that is appropriate for extradition? Speech offences
are not offences in this country, so there is no dual criminality, and
what about cases in which a country seeks the extradition of a citizen
of another country—potentially a British citizen—for
publishing certain material? I would be grateful if the Minister
clarified that, because otherwise we will have to come back to that
issue at a later stage to debate more specific amendments.
The matter is
made worse by the fact that under the 2003 Act, as I understand it, the
Home Secretary may by Order in Council extend the provisions to non-EU
countries, such as Azerbaijan, Georgia and the Russian Federation,
which have all benefited from such Orders in Council. There is a
significant human rights concern underlying the whole framework of the
legislation.
I will now
turn to amendments 72, 73 and 74, the aims of which will be apparent to
Members, and outline them briefly, because we need to make progress.
They seek to remove the subjective view of the Secretary of State on
the question of whether a return would be incompatible with the meaning
of the Human Rights Act 1998. They would do several things. First, they
would make that decision the result of an objective test
so that the question of whether the Secretary of
State is satisfied is not simply the opinion of the Secretary of
State. Secondly, the
amendments would give full access to the courts and not simply access
to review that decision by judicial review, which is not the ideal way
in which to raise issues of fact that go behind the decision, although
the Minister might take a different view, as the Government often do,
depending on the case. Indeed, when the Government are defending a
judicial review, they often say that it is a matter of deciding whether
the process is wrong or whether the decision is so unreasonable as to
be an abuse of process. When someone is facing extradition to a country
where we cannot be sure that they will be looked after in compliance
with obligations that we have made, it must be reasonable that facts
should be clearly testable in court.
The
amendments seek to provide recognition not only for the European
convention rights, but for other international treaties. An example is
the United Nations convention on refugees, which was established after
the second world war to provide a haven for people who might otherwise
be persecuted, perhaps by prosecution, in another country.
The
amendments also include a provision that would require consideration to
be given to the wider interests of justice. I will give two examples in
order to save time. The first example is an undertaking that is given
prior to all the knowledge becoming available. Once a person is in this
country, it may become clear that they have a medical condition, for
example, that makes them particularly vulnerable and would put them at
risk if they were extradited to the country to which the Secretary of
State has given an undertaking to extradite them. A topical example is
the well-known case of Gary McKinnon, who has a mental health disorder
that would make him particularly vulnerable if he were transferred to
an American supermax prison. We need to be capable, within our law, of
giving consideration to that issue, because if someone is made to
suffer on the basis of being extradited to a country or is sent back
having been extradited here, that is not in the interests of justice
and might not be compliant with their human rights. That is not a
direct example and I am not seeking to raise that case
specifically.
Mr.
Coaker: I am concerned about our discussing the Gary
McKinnon case, because it is currently before the
courts.
Dr.
Harris: As I understand it, we are discussing legislation.
I am not asking the Minister to give an opinion on that case, but we
are entitled to raise cases under the sub judice
rule.
The
Chairman: Order. May I tell the hon. Member for Oxford,
West and Abingdon that, as long as he does not make specific reference
to that case, which is before the courts, he is quite in order to raise
the general principle? He must not refer to a specific case in any
detail.
Dr.
Harris: I am grateful, Sir Nicholas. I hope that I was
careful to state that I was referring to a case such as the one
involving Gary McKinnon. I was not talking about how that particular
case applies, because the facts differ in the clause under discussion;
we are talking
about someone who is extradited and brought to this country with a
pledge that they will then be returned. I am referring to cases
involving a medical condition, and the Gary McKinnon case is good
example, because it shows how different countries might treat a medical
condition. I will move swiftly on, as long as the Minister understands
that there is nothing in the clause that recognises a change in a
person’s medical condition. Neither does the undertaking to
remove a person to another country make such a change relevant for
consideration. The
second example relates to when conditions in the country to which a
person would be returned have changed since they first came here.
Again, that is not made clear in the clause, and it would not be in the
interests of justice for someone to be sent back to a country where
there has been a substantial change in circumstances and where a fair
trial, the person’s welfare, or, in the case of a UK citizen,
the oversight of their welfare cannot be
guaranteed. Those
are the concerns raised by Liberty in relation to the clause.
Furthermore, without being privy to the correspondence of the Joint
Committee on Human Rights—on which I serve with the
Minister—I believe that the clause will exercise that Committee
simply because it allows subjective tests, such as the Secretary of
State being satisfied, and only refers to one of the many treaties to
which we are party. It is appropriate to leave it there, and I am
grateful to the Minister for
listening.
James
Brokenshire: The amendments tabled by the hon. Member for
Oxford, West and Abingdon reflect, as he said, Liberty’s
concerns about clause 55. Amendment 72 would replace the
provision that the Secretary of State is not satisfied that the return
is compatible with the European convention on human rights with a
provision that such a return would be incompatible with the convention.
In other words, and as the hon. Gentleman said, Liberty wish to replace
a subjective requirement with an objective test.
While I fully
recognise and agree that the provision should be compliant with the
European convention, I question the application of these amendments and
the effect they would have. Even if amendment 72 were made, if power is
vested in the Secretary of State, notwithstanding that the wording
would have changed and it would be compliant with the relevant
convention or treaty rights, on the face of it, the assessment would
potentially still be made by the Secretary of
State. I
will make a further point on that because it is the sort of drafting
issue with which we are concerned. While I fully respect and understand
the intention behind the amendments, legal advice would need to be
provided to an individual at some stage, and a judgment would have to
be made on whether or not it was compliant. Therefore, without seeking
to undermine the intent behind the amendments in any way, I wonder
whether they will have the import that has been suggested. In all
circumstances, legal advice that relies on precedent in case law
provides a judgment or assessment. Therefore, I am not certain how far
the changes take us
forward. Justice
made an ancillary point on this
issue: “It
is disappointing that despite the aims of the Framework Decision to
abolish extradition between EU Member States and to replace this with a
system of surrender through judicial process,
the Secretary of State is to be given this power rather than a judge at
a hearing. We consider that the opportunity should be taken to amend
the provisions to allow a hearing before a judge who will consider
whether an undertaking should be given, at which the consent, or at a
minimum the representations of the affected person can be considered.
Without such a measure the scheme is at risk of interfering with the
right to a fair hearing under article 6
ECHR.” There
is an issue of practicality and balance. Justice argues that a court
hearing should be appropriate in any event. In other words, it takes
the line of argument that the hon. Member for Oxford, West and Abingdon
has set out from Liberty’s paper to its natural conclusion and
says that the matter should rest with the court rather than with the
Secretary of
State.
Dr.
Harris: I saw the Justice briefing. In taking out
“the Secretary of State”, I was not inserting “the
judge”. I believe that that is implicit because without having
to wait for the Secretary of State to announce whether they are
satisfied, the decision can be rolled into the same series of hearings
and deliberations that are held for those contesting their extradition.
That is my understanding, but it needs confirmation as I am not a
lawyer.
James
Brokenshire: The hon. Gentleman’s intervention is
helpful because it allows us to understand the purpose of his
amendments more clearly. There is a question of balance and
appropriateness in considering the application of these provisions. In
my view, the matter should reside with the Secretary of State rather
than automatically going to a court for determination. It will be
interesting to hear the Minister’s response and his views on
compliance with the relevant convention rights. That will inform the
debate
further.
Dr.
Harris: May I point out something that I might not have
done justice to in my original remarks? Amendment 74 is important and I
would like a specific response from the Minister. Does the hon. Member
for Hornchurch agree that the sort of wording in amendment
74 must be added to proposed new section 153D(1) to ensure that there
is no discretion because of the
words: “Nothing
... requires the return of a
person”? If
the original wording means that the Human Rights Act 1998 is likely to
be breached, the powers will be
nullified.
James
Brokenshire: It is interesting to hear what the hon.
Gentleman says. I respect the concern expressed by Liberty on
compliance with convention rights, which he has articulated. It is
important to ensure that there is clarity in the Bill. The current
wording expresses the judgment and the need for compliance with the
Human Rights Act. However, Justice and Liberty have raised interesting
questions and it will be interesting to hear the Minister’s
response and why he believes the provisions are compliant with
convention rules and will not be not subject to
challenge.
Mr.
Coaker: I thought that those were very good remarks. To do
what the hon. Member for Oxford, West and Abingdon suggests would be
illegal. The Secretary of State cannot ignore human rights issues in
making a judgment to send somebody back.
I will start
with amendment 74, which puts us slightly out of kilter, but it is
where the debate finished. That amendment would oblige the Secretary of
State not to issue an undertaking when it is found that a
person’s removal would breach their human rights. Who would
disagree with that? We agree with the purpose of the amendment, but it
is unnecessary to state explicitly that the Secretary of State cannot
extradite or send someone back where their human rights will be
breached, which is what amendment 74 does.
Dr.
Harris: It is not
that.
Mr.
Coaker: That is what amendment 74 does. All I am saying is
that I do not disagree with it, but that it cannot be done because it
is
illegal. 4.30
pm
Dr.
Harris: I probably did not do justice to
amendment 74, so I will be clear about what it seeks to do
in addition to the statement of the obvious that the Minister
has identified. It seeks to ensure that the powers set out in the Bill
that are consequential on the undertaking—for example, the power
to keep a person in custody until return—fall away if the
undertaking cannot be complied with. In other words, they are null and
void. It does not necessarily follow from this framework that those
powers are null and void even if they are not exercised. I think the
amendment is a tidier way than the current wording of making that
clear. It is not because I failed to grasp the
obvious.
Mr.
Coaker: I apologise. I was not trying to be disrespectful
to the hon. Gentleman. I take the point he is trying to make that what
he has pointed out could be consequential to all of this. That does not
alter the fact that it is unnecessary. Nobody disagrees with the point
that has been made.
Sir Nicholas,
if you remember in the evidence sessions, I was delighted with the
inclusion of new section 153D in the Bill. I sometimes go to the Joint
Committee on Human Rights and have a good relationship with it. The
hon. Gentleman knows that I spend a lot of time defending the need for
human rights to be protected in legislation. The Home Office and I have
had many fruitful discussions with the JCHR to try to do better with
respect to human rights compliance. One reason for this provision is
the fact that I—along with the Home Office—am
increasingly determined to ensure that human rights provisions are
contained explicitly within legislation.
The hon.
Gentleman was here this morning when I mentioned that Liberty had said
that though some improvements, debates and discussions might be
needed—which is what we are having—this is not a titanic
battle of principle. This is not necessarily a decision to extradite.
It is to return someone pursuant to an undertaking. Any decision to
extradite—or any of these matters—has to be compliant
with the ECHR and the Human Rights Act. As for the involvement of the
courts—to which the hon. Members for Oxford, West and Abingdon
and for Hornchurch referred—the Secretary of State is
accountable to the courts of the land. Although he or she may make
the initial judgment, such decisions, as we have seen in the past, can
be judicially reviewed. There has to be an undertaking that everything
done is consistent with that. A couple of
other points were made by the hon. Member for Oxford, West and
Abingdon. The terms of proposed new section 153D make it clear that a
person cannot be returned pursuant to a temporary surrender undertaken
where to do so would breach the ECHR. It is explicitly there. Whether a
return would breach the ECHR would be considered at the moment of
return. So any matters arising after extradition to the UK, for example
regime change, would be taken into account at that time. Again, some of
the things that the hon. Gentleman is pointing out—such as, what
happens if this happens—are partly what would be used to inform
the decisions made as to whether somebody should be returned. As to the
idea of leaving this to the discretion of the Secretary of State, the
Secretary of State does not have any discretion when it comes to acting
in a way that is ECHR-compliant. She has to act in that way. I became
slightly agitated because it is unlawful to do otherwise. This is the
point that I was emphatically trying to make to the hon.
Gentleman.
As he
mentioned, dual criminality is the principle that the crimes for which
a person is sought must be offences in both countries for extradition
to take place. He will know that there are 32 categories of
offence—the most serious cases—for which dual criminality
is not needed for a European arrest warrant to be issued. He mentioned
the case of Dr. Toben, who was the subject of an EAW request from
Germany for holocaust denial and was arrested at Heathrow in October
2008. Germany sought his extradition under the offences in the EAW for
which dual criminality does not apply: xenophobia, racism and
computer-related crime. The hon. Gentleman will also know that Dr.
Toben was ultimately discharged by the courts. The judicial process
worked.
The principle
of mutual recognition underpins law enforcement instruments within the
EU, including the EAW, and key to that is member states’ trust
of each others’ legal systems. I have said to his hon. Friend
the Member for Chesterfield that if the hon. Gentleman became an EU
Minister, he would have to be very careful about saying that he did not
trust the legal systems of other EU members. One of the conditions of
becoming an EU member is having a legal system based on the principles
that we all expect. None the less, we do not have to return somebody.
The terms of the Extradition Act 2003 make it clear that if there are
concerns about the fairness of a court system in a country, section 20
prohibits surrender to another member state.
I ask the
Committee to resist amendments 72 and 74. I do not see the need for
them and they are unnecessary as compliance with the ECHR is implicit
in the Bill. To show that I am not only kind to the main Opposition
spokesmen, I will say that the hon. Member for Oxford, West and
Abingdon has a point with amendment 73. I hope that he relays this to
his colleagues on the Joint Committee on Human Rights. The amendment
refers to other international treaties, which should be taken into
account when looking at issues of temporary surrender, extradition and
so on. In my view, the need to take into account other treaty
obligations, for example, the UN refugee convention, is implicit in the
terms of the ECHR. However, I will look at what amendment 73 suggests,
which is whether the Bill needs to be more explicit
about the fact that as well as complying with ECHR regulations and
requirements, some other conventions should be adhered to. Although I
was fairly robust on amendments 72 and 74 and the general points about
compliance with the ECHR, I hope that the esteemed member of the JCHR
will look at what I have said about amendment 73—I am frightened
of the JCHR. I think that the hon. Gentleman has an important point
about what may need to be in the Bill. Human rights considerations are
extremely important to me, which is why the proposed new section is in
the Bill. Everything that he is seeking to achieve through amendments
72 and 74 is already achieved through the provisions in the Bill. With
those remarks, I ask him to consider withdrawing the
amendment.
| 
