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Nottingham City Council Bill [HL]

Returned earlier from the Commons agreed to.

Mental Incapacity

A message was brought from the Commons that they concur with the resolution of this House of 13th June relating to a Joint Committee to consider any draft Mental Incapacity Bill and that they have made the following orders:

That a Select Committee of eight Members be appointed to join with any committee appointed by the Lords to consider any such draft Mental Incapacity Bill.

That the committee shall have power—

(i) to send for persons, papers and records;

(ii) to sit notwithstanding any adjournment of the House;

(iii) to report form time to time;

(iv) to appoint specialist advisers; and

(v) to adjourn from place to place within the United Kingdom.

Civil Contingencies

A message was brought from the Commons that they concur with the resolution of this House of 13th June relating to a Joint Committee to consider any draft Civil Contingencies Bill and that they have made the following orders:

That a Select Committee of 11 Members be appointed to join with any committee appointed by the Lords to consider any such draft Civil Contingencies Bill.

That the committee shall have power—

(i) to send for persons, papers and records;

(ii) to sit notwithstanding any adjournment of the House;

(iii) to report form time to time;

(iv) to appoint specialist advisers; and

(v) to adjourn from place to place within the United Kingdom.

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Gambling

A message was brought from the Commons that they concur with the resolution of this House of 2nd July relating to a Joint Committee to consider any draft Gambling Bill and that they have made the following orders:

That a Select Committee of eight Members be appointed to join with any committee appointed by the Lords to consider any such draft Gambling Bill.

That the committee shall have power—

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(i) to send for persons, papers and records;

(ii) to sit notwithstanding any adjournment of the House;

(iii) to report form time to time;

(iv) to appoint specialist advisers; and

(v) to adjourn from place to place within the United Kingdom.

        House adjourned at one minute past nine o'clock.

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Official Report of the Grand Committee on the

Extradition Bill

(Eighth Day) Thursday, 10th July 2003.

The Committee met at a quarter before four of the clock.

[The Deputy Chairman of Committees (Baroness Thomas of Walliswood) in the Chair.]

Clause 78 [Bars to extradition]:

Lord Goodhart moved Amendment No. 191:


    Page 42, line 36, leave out paragraph (c) and insert—


"(c) injustice and oppression;"

The noble Lord said: The purpose of the amendments is to bring back into Part 2 of the Bill a defence to extradition that is present in the Extradition Act 1989 and was present, as I understand it, in all earlier extradition Acts. The issue was raised by the organisation Liberty, and the defence that is to be brought back is that the extradition is unjust and oppressive.

Amendments Nos. 191 and 194 are based on Section 11(3)(c) of the 1989 Act, which provides for extradition to be refused, if the accusation that is the subject of the charge leading to the application for extradition was not made,


    "in good faith in the interests of justice",

and if the extradition would cause injustice and oppression. We are, of course, dealing with Part 2 of the Bill; Part 1 is based on the assumption that we can trust the legal systems of the category 1 states. There is no such assumption in relation to category 2 states. There have been two recent cases involving states that are not intended for inclusion in category 1, in which extradition has been refused by the court on the grounds that the accusation was not made in good faith. Those are the cases known by the names of Saifi, from India, and Murat Callis, in which the person concerned was from Turkey.

Without the amendment, the judge will not be able to refuse extradition, and the case would have to go for a decision by the Home Secretary. If the judge is satisfied, after hearing the evidence, that the accusation was not made in good faith, he should be able to refuse extradition. In the Commons, the Government said that the judge could reach such a conclusion on human rights grounds, relying on Clause 86. I believe that that is not true, and that is how I am advised by experts on extradition. The European Convention on Human Rights would apply only if the court hearing the extradition application believed that the person would not get a fair trial. That is a different question. If the court believes that the accusation was

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not made in good faith, it should be able to discharge the person, whether or not it believes that that person will get a fair trial, without having to send him or her back by making an extradition order subject to the final decision of the Home Secretary. I beg to move.

Baroness Anelay of St Johns: It might be appropriate if I spoke next, as I have my name to the amendment and I can be brief. I support the amendment fully. It picks up on a proposal that was brought to us by Liberty. As the noble Lord, Lord Goodhart, mentioned, Liberty briefed him too, as it does with all groups in the House. The importance of the issue was also emphasised to us by Mr Clive Nicholls QC, who is one of the most famous practitioners in the field in the world. In his opinion, failure to make the amendment could lead to some serious miscarriages of justice.

Lord Clinton-Davis: I also support the amendment. What have the Government got to fear from it? If Clause 86 were to apply—there is some ambiguity about that—a provision of this kind in the Bill would do nothing to subtract from the purpose that the noble Lord, Lord Goodhart, and the noble Baroness, Lady Anelay of St Johns, outlined, which I support. What have the Government got to fear? Would there be any conflict between the amended section and Clause 86? I see no reason to think that.

Lord Carlisle of Bucklow: Like other noble Lords, I support the amendment. It is right that there should be power to refuse to extradite, if the judge feels that the application will lead to injustice and oppression. Like the noble Lord, Lord Clinton-Davis, I cannot see why there should be any objection to putting it in terms in the Bill at this stage.

I have one question. I had assumed that the matter could be covered by the words "extraneous considerations". What are "extraneous considerations"? Would the fact that it was felt that the application was oppressive or unjust amount to an extraneous consideration?

The Parliamentary Under-Secretary of State, Department for Constitutional Affairs (Lord Filkin): I thank all noble Lords who spoke in the debate—

Lord Carlisle of Bucklow: I apologise. It has been pointed out to me that there is a definition. I had better read it.

Lord Filkin: The amendment gives the Committee a good opportunity to test, in a sense, whether the protections that we have put into the Bill are, as we believe, full and adequate. I shall start by giving an overarching view. The way that we have constructed the protections—all members of the Committee recognise that they are important—is different from the way in which they were constructed for the 1989 Act. I shall explain why and, in doing so, address the question asked by my noble friend Lord Clinton-Davis, who wondered why we could not make the amendment.

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In this part of the Bill, the protections relate to the double jeopardy test, the extraneous considerations, the passage of time and hostage-taking considerations. The extraneous considerations are particularly important in this regard. As the noble Lord, Lord Carlisle of Bucklow, suggested, they cover a situation in which a request has been made for improper motives or a trial may be prejudiced for those reasons. They are added to the further provisions concerning convictions in absentia, the death penalty, speciality and, in particular, as the noble Lord, Lord Goodhart, signalled, ECHR compliance in terms of the right to a fair trial. That adds up to a substantial package of protection for the individual against any form of illegitimate extradition. In a sense, the purpose of the discussion on the clause, in Committee and later, if needed, is to see whether there is any chink in what we believe to be the adequate and comprehensive armour against inappropriate extradition.

As the noble Lord, Lord Goodhart, said, the wording of the amendment comes from Section 11(3) of the Extradition Act 1989. On the face of it, it is a reasonable challenge to the Government: if it was good enough in 1989, why not now? Our response is twofold. First, the 1989 Act was, essentially, a consolidation of legislation dating back to 1870. Not only does it reflect the wording of that era, it conveys the spirit of that time—revolution in many countries, suspicion and mistrust between neighbours, infrequency of international travel and so forth. Obviously, the 1989 Act was passed before the Human Rights Act was passed, and ECHR legislation came into force. Both were more than 80 years after the Extradition Act 1870. For those reasons, we feel that the world has moved on since 1989.

The Extradition Act 1989 is all about generalities and discretion. It includes a section—Section 6—headed "General restrictions on return", and Section 11 invites judges to take decisions,


    "having regard to all the circumstances".

Our experience is that it is that scheme of generalities that has allowed the system of extradition law to be abused and choked up by lengthy and, at heart, spurious delay as a means of delaying or obstructing the return of a person to face trial when he ought to do so.

The current Bill does not approach those matters in the same way. It is clear to the judge what decision he is to take and the factors on which he is to base it. It is clear to him that extradition should be barred in specified circumstances but not in others. The bars and protections provide significant and appropriate protection against any abuse of the extradition process. As they are set out in such detail and with clarity, there is no need for a general, catch-all provision.

I should draw attention to two provisions in the Bill, both of which I have already touched on. The first is Clause 80, which provides that extradition is barred, if the extradition request has been made for the purpose of prosecuting or punishing the person on the grounds

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of his race, religion, nationality or political opinions, or if he will be prejudiced at his trial for those reasons. Those are strong safeguards—necessarily so. Then, there is Clause 86, which prevents extradition if it would be contrary to the person's human rights. At an earlier stage of our proceedings, my noble friend Lady Scotland of Asthal read the details verbatim. I shall not repeat them now.

Article 6 provides a clear guarantee of a fair trial. We discussed that on a previous day in Committee. If the district judge takes the view that the person will not receive a fair trial, he will not order extradition. It is as clear, as strong and as simple as that. The district judge has total discretion. If he is not convinced that there will be a fair trial, he will say, "No". So he should.

We cannot easily see what circumstances the amendments would deal with that are not already covered by the Bill. In other words, given the protections in the Bill, is there any chink in the armour? I invite officials to consider the Saifi and Murat Callis cases to see whether we have specific and direct responses to the concerns that they raise. We can point to chapter and verse in the Bill that says that extradition would be blocked in such cases. Without signalling for a second that we are conceding, I am happy to use that test to see whether we have an adequate and comprehensive set of protections against inappropriate and wrongful extradition.

At an earlier stage, we considered examples of countries, such as Singapore and Malaysia—perhaps I should not mention them—that might seek to abuse the extradition system to deal with political opponents of the current regime. Such cases would fall foul of Clause 80, as such requests would be politically motivated. Extradition would not be possible. If a judge in a requesting state had a personal animus against a person and sought to use the extradition process to take him back, there would be significant doubt as to whether that person, if extradited, would experience a fair trial. That, again, would be caught by the ECHR provision.

My noble friend Lord Clinton-Davis asked what was the harm in making the amendment. I think that I have signalled why we see harm in it. Such a broad and, apparently, open-ended provision would invite fugitives to seek to invoke it in just about every case. If I were suspected of a major crime that was likely to lead to incarceration, I would expect my barrister to act in that way and do everything possible to delay, prevent or frustrate my extradition. For those reasons, we think that the current Act has, in practice, proven to be defective in that respect and has led to frustration and excessive delays in extradition requests.

I shall not go on at any more length. I have sought to set out why we have approached the protection regime in a different way and why we believe that the range of mechanisms is adequate and satisfactory. The door is open to any specific examples in past practice or future about which members of the Committee would like to say, "What about X or Y?". If a chink in our armour is exposed, we shall examine it.

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4 p.m.


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