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Lord Pearson of Rannoch: I am most grateful to my noble friend and to the Minister, if only for her words in confirmation that the EU will never be designated as an extradition partner of the United Kingdom. I really hope that not too far in the future the time does not arrive when we need to rely on those words.

I assure the Minister that of course I would never have described her as a patsy to be knocked down by the Prime Minister in negotiations in Brussels. I am sure that no one in your Lordships' House would make such a suggestion.

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To me, a patsy in this sense is merely a scare. That is the system that has been going since, in my experience, the Single European Act, Maastricht, Amsterdam and Nice. Those were bugbears set up by the Foreign Office of frightening prospects from forthcoming treaty negotiations, when the Prime Minister of the day was able to say that he had negotiated them away and that therefore the whole process had been to the advantage of the United Kingdom. "Game, set and match" comes to mind in that respect. But of course the European juggernaut has meanwhile ground quietly on in the background.

I shall not engage with the Minister now about whether what we are considering is a vision or a nightmare. I agree that that will come out in the wash of our discussions over the results of the intergovernmental conference. I am most grateful to the Minister and to my noble friend for their contributions and beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 68 [Extradition to category 2 territories]:

[Amendment No. 187 not moved.]

Clause 69 [Extradition request and certificate]:

Baroness Scotland of Asthal moved Amendment No. 188:


    Page 37, line 9, leave out subsection (2).

On Question, amendment agreed to.

[Amendment No. 189 not moved.]

Clause 70 [Arrest warrant following extradition request]:

Baroness Scotland of Asthal moved Amendment No. 190:


    Page 37, line 17, leave out "Order in Council" and insert "order made by the Secretary of State"

On Question, amendment agreed to.

Clause 72 [Provisional warrant]:

[Amendment No. 191 not moved.]

Baroness Scotland of Asthal moved Amendment No. 192:


    Page 38, line 36, leave out "Order in Council" and insert "order made by the Secretary of State"

On Question, amendment agreed to.

[Amendment No. 193 not moved.]

Clause 73 [Person arrested under provisional warrant]:

[Amendment No. 194 not moved.]

Baroness Scotland of Asthal moved Amendment No. 195:


    Page 39, line 15, leave out "and he asks to be shown the warrant"

On Question, amendment agreed to.

[Amendment No. 196 not moved.]

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Baroness Scotland of Asthal moved Amendment No. 197:


    Page 39, line 16, leave out "request" and insert "arrest"

On Question, amendment agreed to.

[Amendments Nos. 198 and 199 not moved.]

Baroness Scotland of Asthal moved Amendment No. 200:


    Page 39, line 23, leave out from "with" to end of line 24 and insert "and the person applies to the judge to be discharged, the judge must order his discharge"

On Question, amendment agreed to.

[Amendment No. 201 not moved.]

Clause 74 [Date of extradition hearing: arrest under section 70]:

Baroness Scotland of Asthal moved Amendment No. 202:


    Page 40, line 23, leave out "Order in Council" and insert "order made by the Secretary of State"

On Question, amendment agreed to.

[Amendment No. 203 not moved.]

Clause 75 [Date of extradition hearing: arrest under provisional warrant]:

[Amendment No. 204 not moved.]

Baroness Scotland of Asthal moved Amendment No. 205:


    Page 41, line 8, leave out "and he asks to be shown the warrant"

On Question, amendment agreed to.

[Amendment No. 206 not moved.]

Baroness Scotland of Asthal moved Amendment No. 207:


    Page 41, line 9, leave out "request" and insert "arrest"

On Question, amendment agreed to.

[Amendments Nos. 208 and 209 not moved.]

Baroness Scotland of Asthal moved Amendment No. 210:


    Page 41, line 17, leave out from "with" to end of line 18 and insert "and the person applies to the judge to be discharged, the judge must order his discharge"

On Question, amendment agreed to.

[Amendment No. 211 not moved.]

Baroness Scotland of Asthal moved Amendments Nos. 212 and 213:


    Page 41, line 38, leave out "Order in Council" and insert "order made by the Secretary of State"


    Page 41, line 39, leave out "Order in Council" and insert "order"

On Question, amendments agreed to.

Clause 76 [Judge's powers at extradition hearing]:

[Amendments Nos. 214 and 215 not moved.]

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Baroness Scotland of Asthal moved Amendment No. 216:


    Page 42, line 14, leave out "the person must be taken to be discharged" and insert "and the person applies to the judge to be discharged, the judge must order his discharge"

On Question, amendment agreed to.

Clause 77 [Date of extradition hearing: arrest under provisional warrant]:

[Amendment No. 217 not moved.]

Baroness Scotland of Asthal moved Amendment No. 218:


    Page 42, line 29, leave out "the person must be taken to be discharged" and insert "and the person applies to the judge to be discharged, the judge must order his discharge"

On Question, amendment agreed to.

Clause 79 [Initial stages of extradition hearing]:

[Amendments Nos. 219 and 220 not moved.]

Clause 80 [Bars to extradition]:

Lord Goodhart moved Amendment No. 221:


    Page 44, line 3, after "affirmative" insert "or if it appears to the judge that the accusation against the person is not made in good faith in the interests of justice"

The noble Lord said: My Lords, Amendment No. 221 would bring back into Part 2 of the Bill a defence to extradition that is present in the Extradition Act 1989 and all earlier Extradition Acts. The issue was raised by Liberty. The defence to be brought back is that the extradition is unjust and oppressive. Amendments Nos. 221 and 222 are based on Section 11(3)(c) of the Extradition Act 1989, which provides for the 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 or oppression.

We are dealing with Part 2 of the Bill. Part 1 is based on the assumption that we can trust the legal systems of category 1 states. There is no such assumption in relation to category 2 states. In fact, in two recent cases involving states not included in category 1 the court refused extradition on the grounds that the accusation was not in good faith. One of those cases is from India and the other from Turkey. In one of the cases, there was a lot of evidence to suggest that the person whose extradition was sought had been framed by the people who committed the offence. In the other case, there was strong evidence that the person was being blackmailed over an offence that he had not committed.

If one could be certain that there would be a fair trial if the person were extradited, one could then also assume that the court would consider the evidence, that a fair trial would take place, and that, if things were as they appeared to be when extradition was sought, the person being extradited would be acquitted. However, that cannot necessarily be the case in relation to some category 2 countries, at any

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rate. In some such countries there is doubt about the quality of justice that will be delivered, even if those doubts are not sufficient to satisfy the courts in this country that the person would not get a fair trial. Secondly, there is hardship involved in sending someone back to face a trial, even if it is assumed that the trial will be fair, if it appears to the judge hearing the application that the accusation was not made in good faith.

There are significant advantages in allowing that defence to be raised. Without the amendment, the judge could not refuse extradition and the case would have to be decided by the Home Secretary. If the judge is satisfied, after hearing the evidence, that the accusation was not made in good faith, he or she should be allowed to refuse extradition.

In the other place, the Government said that the judge could reach such a conclusion on human rights grounds, relying on Clause 88. However, I am not satisfied that that is true. The European Convention on Human Rights would apply only if the court hearing the extradition application believed that the person whose extradition was sought would not get a fair trial. That is a different question. If the court believes that the accusation was not made in good faith, even if it believes that that person will get a fair trial, it should be able to discharge him or her without having to send that person back by making an extradition order subject to the final decision of the Home Secretary. We believe that significant advantages can be gained from keeping such a defence in Part 2 of the Bill, as it has stood for many years in existing extradition legislation. I beg to move.

9.15 p.m.

Baroness Anelay of St Johns: My Lords, I rise to support this amendment, to which I attached my name. I agree with the noble Lord, Lord Goodhart, that it provides a significant defence. It is an important matter and it has served well in the past. During the course of the explanation by the noble Lord, Lord Goodhart, it would become apparent to the casual reader that we have slipped almost imperceptibly at long last into Part 2, because this is the first group of amendments in Part 2 to which noble Lords have spoken. The noble Lord, Lord Goodhart, rightly made it clear that we are now dealing with extradition to countries that will not form part of the European arrest warrant framework decision or of that agreement, and we must exercise even more caution in determining whether or not a person should appropriately be extradited.

Like the noble Lord, Lord Goodhart, we have received a lot of briefing on this matter. I particularly wish to thank Liberty and Mr Clive Nicholls QC who is, of course, an expert practitioner in this field. Those who practise in this field have told us repeatedly over the past few months that the provision of a bar to extradition if the accusation is not made in good faith in the interests of justice has been an invaluable protection in several cases that would indeed be Part 2 cases in the future if the like arose again. In Committee, the Minister tried to argue that the

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provision had been dropped from the Bill because its inclusion in the 1989 Act was a remnant from the 1870 Act which, as he said,


    "conveys the spirit of that time—revolution in many countries, suspicion and mistrust between neighbours, infrequency of international travel and so forth".—[Official Report, 10/7/03; col. GC 107.]

We are advised that there is nothing historic in the sense of the past about the need for this safeguard. It is just as relevant now as it has ever been. History has a purpose to serve when it shows a good example. The noble and learned Lord, Lord Goodhart—or "learned" in the normal sense of the word, but not yet learned within our rules—has made an invincible case.


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