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Lord Goodhart: I am going to be, I think, a little more sympathetic to the amendment than the previous

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speakers. To give an unqualified right of revocation of consent might in some circumstances encourage people against whom a warrant is issued to play games with the legal system by giving consent and then being able to revoke it any time before they are actually put on the aeroplane and the aeroplane takes off. However, I think that there are circumstances in which it is possible that a right of revocation should be allowed. For example, if there is a substantial change of circumstances—say a regime change in the country to which the extradition is to be made, and as a result of that regime change the person who is to be extradited has genuine reasons for fearing that he might not get a fair trial—then I think that there would be justification for saying that there should be a chance to revoke.

So while I cannot support the amendment as it stands, if the noble Lord, Lord Wedderburn, brought back an amendment saying that consent could be revoked for cause with the leave of the court, I would support it. I would not expect that to happen, but it could. I think that that would not encourage people to play games because they would know that once they gave their consent, they would have to show a good reason why that consent should not be acted upon.

Lord Filkin: As I think has been understood, consent is a significant element in extradition. It is therefore important that we preserve it. However, it is also important that we ensure that proper safeguards are attached to its use. The noble Lord, Lord Wedderburn, asked me about my comments on parliamentary sovereignty. I have not changed my position—although it is not just my position. I think that I was merely stating the legal position. Parliament is sovereign. As that is so, Parliament legislates on what Parliament does. That legislation is effectively the law of this land.

The noble Lord asked why we did not choose the option given us by the article to have a revocation of consent. There was a conscious decision not to do so, for exactly the reasons set out by the noble Lord, Lord Hodgson. For reasons that I shall shortly set out in more detail, we believe that that would open the door to abuse. Instead, we have put in place what we think are proper safeguards around the giving of consent. First, the judge must explain to the person the significance and impact of consent. As we discussed in previous debates, the judge not only explains that but seeks through interpreters to ensure that it has been understood. Secondly, as we also discussed in a previous debate, the person must have legal advice, or at least the offer of legal advice, available to him.

I emphasise that everyone arrested in an extradition case has the same entitlement to independent legal advice as those arrested in domestic cases. The duty solicitor system scheme is designed to ensure that that is available before the first court appearance. In an extradition context that means that legal aid is available before the fugitive has an opportunity to consent to extradition, as well it should be. Nevertheless there is an additional safeguard that district judges are required to explain to the fugitive

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the effect of consenting to his extradition and the fact that consent, once given, cannot be revoked. Therefore, before the decision is taken, it must have been spelled out to them, "If you say yes to this, you cannot go back on it". That seems to us a right and necessary safeguard.

We do not think that Amendment No. 56 is appropriate for exactly the reasons that noble Lords have indicated. Imagine the person who has consented to extradition being taken to Heathrow and then, just as he is about to go on the plane, announcing that he has changed his mind and withdrawn consent. He would be brought back again and the extradition hearing would start again. In those circumstances he could give consent again. And so it could go on. Although that may sound farfetched, if one is charged with a very serious criminal offence and fears for one's liberty, one will do one's utmost within the laws and procedures to fight every such mechanism. That is not being farfetched; that is a statement of common sense and fact. That is often what extradition resistance is about.

For those reasons, I do not think that revocation is sensible—which is why we took that policy position. We have sought to try to ensure that people do not lightly, uninformedly or ill-advisedly give consent until they have been advised and are clear that it is not revocable.

I heard the interesting challenge from the noble Lord, Lord Goodhart, regarding regime change. One off-the-cuff answer is that if a country had regime change, it would, as we touched on earlier, be within the Government's power to remove it from Part 1. As that may not be a full answer I should like to reflect on it. As the noble Lord signalled, however, such a case is extremely unlikely. We hope that it will never happen with Part 1 territories. However, it would be an optimistic world if we thought that something could never happen. We should therefore—without implying that we necessarily think that there is a solution—consider the possibility. At this point, I simply suggest that the amendment might be withdrawn.

Baroness Anelay of St Johns: Before we come to the end of this amendment, I should like to raise an issue that the Minister prayed in aid to explain the Government's stance. He referred to the fact that there would be access to the duty solicitor scheme for the provision of legal advice. He has just joined a newly created department. However, as I understand it, last week, the existing department—until this week, the Lord Chancellor's Department—issued guidance on what may happen to legal aid. One of the proposals was that the duty solicitor scheme will be severely cut back. I am not asking the Minister to answer my question now on the future of the duty solicitor scheme. However, would he be kind enough to ask other Ministers in his new department whether it will be possible to give the Grand Committee an undertaking that the Government think that, at least

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in extradition cases, the duty solicitor scheme should always be available? Otherwise there will be concern about the issue before we reach Report stage.

Lord Filkin: I am pleased to agree to do so.

Lord Wedderburn of Charlton: I am grateful to everyone who has spoken to this amendment. Of course I tabled it in an absolute form because I wanted to raise rather different points, which I did raise. I noticed that the Minister—unless he wants to add something—did not suggest that he had had any discussions or consideration of reasons with the governments who notified the General Secretariat that they were going to allow revocation. It all seems to have happened without consideration of whatever those reasons were. As I understand it, there was an understanding that the provisions of domestic law as regards delay of proceedings could make whatever provision they liked.

All the abuses that have been put forward are abuses against which it would be quite easy to legislate. We had the same problem as was raised under a previous clause—constant reiteration of consent, or constant reiteration of release after provisional arrest. Of course we can legislate to give the judge guidance on dealing with that. We could even give the judge a discretion in cases where consent appears to be a manifest abuse. I agree that my amendment did not suggest that. However, it was tabled to see whether anyone would realise that.

The idea that if there is a regime change the Government will necessarily revoke the designated territory status under Clause 1 is somewhat fanciful. I was not going to put forward regime change, but I am grateful to the noble Lord for doing so as it is another case. I was going to put forward a case where consent to extradition had been given in the belief that there was no death penalty. That was correct at the time of designation, but subsequent to designation and to consent a death penalty had been introduced in the issuing territory.

The Government are in a bit of trouble on this. It seems to me that their only possible answer is that designation will be revoked. Quite frankly, I do not think that that is good enough. No one should be at risk of a death penalty introduced subsequent to designation and to their consent and forced to rely merely upon the speedy action of the executive—presumably within the 10 days—to revoke the designation order. The Government really must look at that again.

There is another, more homely example. I noticed that no noble Lord dealt with my case of consent obtained by the advice of a mystic. A judge can not necessarily spot that. I appreciate that judges are very wise. However, I do not subscribe to the proposition, as I understood the noble Viscount to say, that the English judiciary can easily solve all our problems. Even judges do not see the whole part of the game.

If we had someone whose religious persuasion told him that he must submit to Caesar in an absolute form and he gave consent on the basis of that faith, and after

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consent he saw Caesar in a different light and was converted to a different position, why should he not be allowed under at least some conditions to revoke or modify that consent? The judge can explain what he likes, and his lawyer can explain what he likes, but that is nothing whatever to do with his religious beliefs, which have changed. Yet noble Lords will stop him from following his belief. I do not understand that. I do not believe that it is impossible to modify the proposition in Clause 8(3)(c) regarding revocability with our perfectly sensible provision.


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