Dr.
Harris: Flattery is very helpful with me, but cuts no ice
with the JCHR, so the Minister will still have to face the music there
in due course. Obviously, I welcome what he has just said about
amendment 73 and I will come on to that.
I would first
like to make a point regarding his response to my earlier points.
Membership of the EU does not, even in the Liberal Democrats, involve
the suspension of critical faculties; just as other countries, and
indeed the Council of Europe, can be critical of some of our laws, for
example, on terror. Just because we are a member of the Council of
Europe does not mean that, by definition, everything that we do is
acceptable. I do not think therefore—I am not suggesting the
Minister said this in these terms—that simply accepting someone
as a new EU member means that there is no appraisal to be made on an
individual case. I am not saying that he said that there was no
appraisal, but the point is that we need to keep our wits about
us. The
second point relates to Dr. Toben as an example of that. Although he
escaped extradition, it was only because the Germans decided not to
press their appeal in the High Court. So, it was not that the court
overruled them on the basis of it not being a good enough charge; nor
was it on the issue of the offence that he was charged with being
extraterritorial because of a website hosted in Australia; it was
because they chose not to, and I fear that there will be other people
who will be caught by that, but I accept that it is not a matter for
today. On
the issues raised by the amendments, the Minister has said—three
times now—that he notes that Liberty has said that there is no
titanic battle on this part of the Bill, and I think that is true.
However, I just hope that we come to a time when that will be obvious,
and the Minister is wise to rejoice, or express relief, that he is not
in a pitched battle with human rights organisations over this part of
the Bill. I think that is—I do not want to be too partisan about
this—more a judgment on some of the other legislation where he
has been engaged with them in such a contest, rather than necessarily
saying that everything in the Bill is fine.
Mr.
Coaker: Does the hon. Gentleman think that it is
actually because we have included proposed new section 153D on the face
of the Bill? Does he not also think that that is a part of why,
perhaps, compared with some of the battles that have been fought in the
past, they have not been fought as hard on this specific part of the
Bill?
Dr.
Harris: The Minister is very keen to get recognition for
the inclusion of proposed new section 153D. If it was not there, the
situation would be worse and it is a worthy step forward. I accept that
and I am sure that others will note it too, including in the other
place—of course I accept that.
Turning to
the descriptions he has made of the three amendments, I would like to
deal with what the hon. Gentleman said, briefly, on amendment 72. He
says that the Home Secretary has no discretion as to whether to abide
by the convention rights, and of course that is true. However, he still
has to accept a subjective provision here, because the Secretary of
State merely—I use that word appropriately and
deliberately—has to satisfy herself that
“the return is
compatible with the convention rights”.
As soon as she does,
that is it, subject only to judicial review and I do not think he
addressed the point that relying on judicial review of Executive action
or Executive decision-making is not satisfactory. We have just read
about the appalling case of the gay asylum seeker who was sent back as
a result of Executive action. Yes, the courts have intervened
post-facto to argue that that was wrong and have insisted that the Home
Department do what they can to get that person back—we do not
know the name or country for that person’s own
protection—but that is an example of a decision being judicially
reviewable. That can only be done while they are in the country and it
is not an ideal situation. So, although I will not press amendment 72
to a vote, I do not accept that the subjective test is adequate and the
Minister will have to come back with stronger arguments at a later
stage of the Bill.
Amendment 74
got some rough treatment from the Minister. I am not offended by that.
I did not make the point clearly enough; that is my fault, not
Liberty’s, and I take responsibility. Liberty’s point is
that the proposed new section 153D
states: “Nothing
in section 153A or 153C requires the return of a
person” in
these cases. But the question is: what about the powers that have been
taken after an undertaking has been given? It is not absolutely crystal
clear that they become null and void at that point. I am not suggesting
that the Government will return the person, given the provisions in
proposed new section
153D. 4.45
pm Sitting
suspended for a Division in the
House. 5
pm On
resuming—
The
Chairman: It is 15 minutes since we broke to vote in the
House on a private Member’s Bill; you will see the result on the
monitor. The hon. Member for Oxford, West and Abingdon was giving us
the benefit of his advice regarding his amendment and I call him to
resume his
address.
Dr.
Harris: I am grateful to have returned from what I
understand was a rare Liberal Democrat victory in the Chamber. We are
grateful for the support of those who shared our view on that
Bill.
Regarding
amendment 74, I was again pointing out to the Minister my concern,
which I do not think he has met, that although it is clear that no
return would take place if the Secretary of State were not satisfied
that the return were compatible with convention rights, it is not clear
what happens to the person. Certain things will have flown from the
undertaking, which is now vitiated by the Secretary of State’s
ruling on convention rights, and I ask the Minister to consider
further, perhaps in correspondence and at least before the next stage
of the Bill, whether there is absolute clarity about what happens to
the person left dangling in respect of either proposed new section 153A
or proposed new section 153C. In one of those scenarios it is more
likely that they will already be in prison, serving a sentence here
perhaps. Finally,
turning to amendment 73, I am grateful to the Minister for recognising
that it might be appropriate to mention the refugee convention in the
Bill, after the Human Rights Act. I will bank that, but it begs the
question: why not the international covenant on civil and political
rights, for example, which covers similar important
rights?
Mr.
Coaker: I used the refugee convention as an example; I am
not saying that that is the only thing that we should use. I will
consider whether we should put something in the Bill, and it may be
that we will use two things. With respect, I have said to the hon.
Gentleman that the refugee convention strikes me as an example that
should be in the
Bill.
Dr.
Harris: I am grateful for that clarification and I will
not comment further on the matter. I accept the Minister’s point
that changes in a country will be taken into account because the
decision has to be made before return. However, I will go away and
reflect on the last part of amendment 74, as it still concerns me that
there may be other circumstances that do not go as far as to affect
convention rights or to sufficiently persuade a Home Secretary or this
Home Secretary, but which might still be contrary to the interests of
justice. There can be no harm in the Government giving themselves some
wriggle room here, as long as the Home Secretary does not abuse it. I
cannot conceive of a Home Secretary willingly not wanting to live up to
the undertakings that they have given, which can be important for
diplomatic relations. Having said all that, I want to express again my
gratefulness to the Minister for engaging in the debate and I beg to
ask leave to withdraw the
amendment. Amendment,
by leave,
withdrawn. Clause
55, as amended, ordered to stand part of the
Bill. Clauses
56 and 57 ordered to stand part of the
Bill.
Clause
58Provisional
arrest
Mr.
Coaker: I beg to move amendment 230, in
clause 58, page 71, leave out lines 18 and
19 and insert— ‘(2) For
subsections (2) and (3)
substitute— “(2)
The person must be brought before the appropriate judge within 48 hours
starting with the time when the person is
arrested.
(2A) The documents specified in
subsection (4) must be produced to the judge within 48 hours starting
with the time when the person is arrested but this is subject to any
extension under subsection
(3B). (2B) Subsection (3)
applies if— (a) the
person has been brought before the judge in compliance with subsection
(2); but (b) documents have not
been produced to the judge in compliance with subsection
(2A). (3) The person must be
brought before the judge when the documents are produced to the
judge.”’.
The
Chairman: With this it will be convenient to discuss
Government amendments 231 to
238.
Mr.
Coaker: The amendment deals with provisional arrest. I
should like to make some introductory remarks and then respond to
questions that hon. Members may have. Provisional arrest is an
important tool in the fight against serious and organised crime. There
are cases, although rare, in which the urgency of the situation and the
complexity of the case, lead member states to ask one another to arrest
someone before the full European arrest warrant has been issued. Where
the UK receives such a request, and there are reasonable grounds for
believing that the full European arrest warrant has been or will be
issued, it is open to UK law enforcement officials to arrest the person
in
question. When
someone is arrested under the provisional arrest powers found in
section 5 of the Extradition Act 2003, section 6 requires that the
person be brought before a court and a full European arrest warrant
provided to the judge within 48 hours of arrest. While in the vast
majority of cases this will prove unproblematic, there are two
scenarios where the right time limits contained in the Act can cause
problems. The first of these is where the 48-hour period runs over a
weekend or a public holiday. In that situation no court would be open
before which the person in question can be brought. This could result
in a serious criminal being able to avoid extradition simply because of
the date on which they were
arrested. The
second problem with the current provisions arises in very complex cases
where the member state seeking extradition is simply unable to get the
formal documents justifying extradition in order within that 48-hour
period. Clause 58, as drafted, sought to address these problems by
allowing an application for an extension of 48 hours to be sought to
both the period within which the full documents must be provided and
the period in which the person must be brought before the
court.
On reflection
I feel that there is better and fairer solution to these problems which
Government amendment 230 and Government amendments 231 to
238 seek to provide. The first change to note is that it is no longer
open to the requesting state to apply for an extension of the 48-hour
period within which the person in question must be brought before a UK
court as the sole problem we are addressing here is that arising where
the 48-hour period falls over a weekend or a public holiday. I feel
that the better approach is simply to exclude these days from the
calculation of the 48-hour period. We see no reason why the person
arrested should not be brought before a UK court within the original
48-hour period where it does not fall on a weekend or a public holiday.
I hope that that is helpful because I certainly think it is a better
way of doing it.
That
change and the terms of the other amendments also mean that it is
absolutely clear that in the very rare cases where there is a need to
apply for an extension of the period for supplying the documents
justifying extradition, such an application will always be made while
the person who is arrested is present in court, whether in person or by
live link, so that they may resist the application and be in a position
to apply for bail. Again, I think that is a significant improvement on
the clause as drafted. I hope that the Committee will feel that these
amendments represent a careful and considered attempt to reduce the
scope of the provisional arrest amendments so as to make absolutely
sure that they strike the right balance between the need to safeguard
the liberty of the subject while ensuring that the UK does everything
possible to fight serious international
crime.
James
Brokenshire: The Minister’s comments on the
amendments are helpful. He will know that Liberty expressed concerns
about why the clause was necessary and the proportionality of the
provisions. His suggestion to clarify and restrict the ambit of the
clause is helpful in addressing some of those
issues. It
would be helpful for the Minister to address one further point. It is
worth putting the concerns of Justice on the record. It
states: “A
warrant can be transmitted electronically pursuant to section
204, thereby instantaneously and with the introduction of SISII, this
will be the normal means of transmission. We consider it inconceivable
that any scenario could justify an arrest without warrant, on
reasonable belief that a warrant will arrive rather than an offence
having been committed, and remand for 96
hours.” Justice
suggests that it should be more instantaneous. The Minister has
explained that circumstances may arise that fall outside
Justice’s concern that the instantaneous electronic transmission
of warrants might lead to situations where documentation is awaited. It
would be helpful to consider that. Any further clarification that the
Minister can provide on Justice’s concerns over the additional
time would be
welcome. If
there is an increase in the speed of transmission through the Schengen
information system or other forms of electronic transmission of
appropriate documentation, it would be appropriate to make it clear
that in one way we are moving in one direction and in another way we
are moving in
another.
Dr.
Harris: I echo the hon. Gentleman’s view. He
recognises, as do Justice and Liberty, the importance of article 5 of
the European convention on human rights. Even though the Minister gave
a good explanation of where we will be after we accept the amendments,
as I am sure we will, those will also be subject to scrutiny against
article 5. The hon. Member for Hornchurch made a good fist of analysing
the areas that we will have to look at further. That said, I too
welcome the
amendments.
Mr.
Coaker: I have tried with the amendments to address some
of the points that have been made. Like everybody else, I do not like
the idea of provisional arrests. We all agree that if we are not
careful, such procedures might lead to an unacceptable erosion of
liberty. There is a balance to be struck between the role of the state
in protecting the public and the need for citizens to be protected
against the encroachment of the state.
In answer to
the hon. Member for Hornchurch, the issue is not the time taken to
transmit the warrant, but the time taken to get the case together to
make the request to the court in the member state. In any case, a UK
court would grant an extension only when the documents could not
reasonably have been provided within the original 48-hour period. If
the requesting state had things sorted they would clearly be able to
get the documents there. I think that I have answered his questions. I
hope that the Committee will support the Government
amendments. Amendment
230 agreed to.
Amendments
made: 231, in
clause 58, page 71, line 20, at
beginning insert
‘While the person is
before the judge in pursuance of subsection
(2),’. 232,
in
clause 58, page 71, line 21, leave
out ‘(3)’ and insert
‘(2A)’. 233,
in
clause 58, page 71, line 24, leave
out ‘(2)’ and insert
‘(2A)’. 234,
in
clause 58, page 71, line 28, leave
out subsection
(3D). 235,
in
clause 58, page 71, line 31, at
end insert— ‘(3A) After
subsection (5)
insert— “(5A)
Subsection (5B) applies
if— (a) the person is
before the judge in pursuance of subsection (2);
and (b) the documents specified
in subsection (4) have not been produced to the
judge. (5B) The judge must
remand the person in custody or on bail (subject to subsection
(6)).” (3B) In
subsection (6) after “subsection (2)” insert “,
(2A) or
(3)”.’. 236,
in
clause 58, page 71, line 32, leave
out subsection
(4). 237,
in
clause 58, page 71, line 33, at
end insert— ‘(5) After
subsection (8)
insert— “(8A) In
calculating a period of 48 hours for the purposes of this section no
account is to be taken
of— (a) any Saturday or
Sunday; (b) Christmas
Day; (c) Good Friday;
or (d) any day falling within
subsection (8B). (8B) The
following days fall within this
subsection— (a) in
Scotland, any day prescribed under section 8(2) of the Criminal
Procedure (Scotland) Act 1995 as a court holiday in the court of the
appropriate judge; (b) in any
part of the United Kingdom, any day that is a bank holiday under the
Banking and Financial Dealings Act 1971 in that part of the United
Kingdom.”’. 238,
in
clause 58, page 71, line 33, at
end insert— ‘(6) In section
7(1)(b) of the Extradition Act 2003 (application of provisions for
verifying the identity of the person arrested) for “is arrested
under section 5 and section 6(2)” substitute “arrested
under section 5 is brought before the appropriate judge under section 6
and section 6(2A)”.’.—(Mr.
Coaker.) Clause
58, as amended, ordered to stand part of the
Bill.
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