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The Earl of Mar and Kellie: Were my noble friend Lord Goodhart in his place, he would make two points, which I shall make very briefly. We believe that the involvement of the Home Secretary in proceedings would be unnecessary for category 1 territories, and we fear that that will create increased opportunities for judicial review to delay proceedings.
Baroness Carnegy of Lour: I was not previously able to take part in proceedings on the Bill. The Second Reading debate was arrangedpresumably knowinglyon the day of the Scots Parliament and local government elections. Anyone who took part on that very important day was not able to come here. I am glad that the noble Lord gave in today. I thought that that was a great mistake on the part of the
I was surprised by the comments of the noble Earl, Lord Mar and Kellie. I know from talking to members of the public that what worries people most about the Billif they realise that it is the caseis that it would be possible for someone from this country to go abroad to commit an offence, which they did not know was an offence, to come back and find that they could not be protected from extradition under any circumstances. They feel that they should be able to trust this country to have a Home Secretary who could protect them from extradition if the circumstances were such that he felt that that was appropriate.
People are worried enough about politicians at the moment. Cynicism is becoming a very dangerous thing for democracy in this country. We all understand the problems with that; there are problems for politicians, and particularly for the Government. This is a great mistake. It is the one proposal in the Bill that the public would like changed. I support my noble friend's amendment.
Lord Donaldson of Lymington: The spectre of judicial review keeps rising from one quarter or another. I have no hope of nailing it finally. However, I point out that the judges are no keener than the executive on people using judicial review for improper purposes. It can be and is very easily stopped by judicial management. There are two methods involved. One is providing that permission is required before one can begin judicial review proceedings and the other is after consultation with the judges. There is nothing wrong about consultation with judges. They need to know what are the problems on the ground.
The other point is that under the judicial review regime applicants must act promptly. There is a longstop provision of three months, but there is absolutely no reason why the court should be bound by that. It would be perfectly open to the courts to let it be known that any application must be made within three days, or whatever. Any attempt to do an American-style"keep on thinking of new ideas and bring them to the court"could be quashed very quickly and simply on a permission basis.
I turn to anecdotes only because I know about them. In the Court of Appeal, on at least one occasionand there is no reason why there should not have been othersan appeal court stood by to cut out delay, so that it could at any time during the evening or the night have gone into session immediately the judgment was given below because the life of a Jehovah's Witness was at stake.
In the industrial relations eraperhaps one must not mention that nowadaysthere was a line of communication between the Secretary of State and the court. Therefore the court could be told the moment the Secretary of State made a reference to it and it could convene within the hour to deal with directions. These things can be done; there is no problem.
Lord Filkin: I am grateful to the noble Baroness for tabling the amendments, which would partially re-introduce the "authority to proceed" stage in extradition. Under the Extradition Act 1989, the Secretary of State must issue an authority or order to proceed for each extradition case. The amendments reinstate this stage only when the warrant requests the person for an offence that is not an offence in the UK.
That brings me to my first practical question: who decides whether the warrant is for an offence that has an equivalent offence in the UK? Amendment No. 11 suggests that it is the designated authority, which in the UK's case will be the National Criminal Intelligence Service, or the Crown Office. So we have a dual criminality test that was previously a matter for the courts being applied by NCISor the Crown Office, in Scotland. That seems slightly curious.
NCIS or the Crown Office, having thus identified that dual criminality did not apply, would then be required to send the warrant to the Secretary of State, who may issue an order or authority to proceedon what basis, we are not clear. Under the amendment, a warrant would be issued by a body we recognise, certified by our central authority, for an offence committed in the requesting state that is punishable in the requesting state for the threshold that we have set in law and the Home Secretary would have to decide whether to issue an authority to proceed. On what precise grounds could he refuse?
Any decision made by the Secretary of State would have to be subjectivewhich, with no apologies to the noble and learned Lord, Lord Donaldson, would of course mean that it could be judicially reviewed, and we would return to the process of appeals and delays that we on this side of the House, at least, want to do away with. The Bill has been drafted precisely to avoid avenues for defendants to delay extradition and, although I know that Members of the Committee did not intend to recreate those avenues, the amendment does so.
Having set out the disadvantages of the amendments, I turn to any advantages that they might bring. What or who exactly are we seeking to protect? The noble Baroness, Lady Anelay, went some way to advance an argument for them. In principle, it is that if a person goes to another EU country and commits an offence against the law of that country while there, he or she should expect to face justice if arrested in that country. We see no reason in principle, just because they have then left that country, for them not to face
If a person from another EU country comes here and breaks our law, we would expect to put them on trial. The fact that the conduct in question happens not to be contrary to the law of his home country would not be an excusenor should it. If he had managed to cross our border before being arrested, we would want to be able to extradite them. That is a central point.
However, I reiterate that the Bill makes it quite clear that no one will be extradited for conduct that occurs here that is not contrary to our law. I shall now address directly the question raised by the noble Baroness, Lady Anelay: whether people would be extradited only for what are offences in the UK. The answer is that not all offences of xenophobia in EU member states will necessarily be offences in the UK.
In the European Union Committee, we have several times discussed the specific issue of denial of the Holocaust, which is an offence in Germany but not here. In a sense, that is the point of mutual recognition. Such offences will be extraditable in the same way that those who break UK laws while here will be returned here, even if the conduct would not constitute an offence in their country.
Howeverthis is an important point and relevant to the point about Holocaust denialwe are amending the Bill to make it clear that, if any part of the conduct occurs in the UK, we will extradite only if the dual criminality test is met. So, for example, if someone writes an article in the Sun or posts it on a website denying the Holocaust or saying that it did not matter, we might think that they were mad, but that would not be an offence in the United Kingdom. Because there is not an equivalent United Kingdom law of denial of the Holocaust, the person would not be extraditable from the United Kingdom, because the act had occurred here and there was not a matched offence here. So the only circumstances in which a person would be extraditable for Holocaust denial would be if he had gone to Germany, stood up, for example in Koln market place and repeatedly said, "We deny the Holocaust".
Having said that, one should bear common sense in mind. In the circumstances I have described, in theory, the German authorities could apply to the United Kingdom to extradite a person who had committed such an act in Koln market place but, in practiceI hope to give the Committee more chapter and verse at a later dateI know, because I pressed officials on the matter, that the German authorities do not act in any way vigorously in that respect. So if we are focusing on Holocaust denial, the German authorities are not exactly zealous in pursuing it.
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