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Lord Goodhart: My Lords, I am grateful to the noble Baroness, once again, for a full reply to this matter. I should perhaps have disclosed to your Lordships' House, when I was referring to New York as an example of a state that had a satisfactory system, that a cousin of mine is and has for many years past been the District Attorney of Manhattan.

This is a serious issue that has caused and continues to cause much concern. As I indicated, I will not move the amendment on this occasion, nor will I bring it back at Third Reading. However, the Government should recognise that there is likely to be an objection when the Order in Council which is necessary to give effect to the agreement comes back. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

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Clause 86 [Case where person has been convicted]:

Baroness Scotland of Asthal moved Amendment No. 227:


    Page 46, leave out lines 10 to 29 and insert "whether the person was convicted in his presence.


(2) If the judge decides the question in subsection (1) in the affirmative he must proceed under section 88.
(3) If the judge decides that question in the negative he must decide whether the person deliberately absented himself from his trial.
(4) If the judge decides the question in subsection (3) in the affirmative he must proceed under section 88.
(5) If the judge decides that question in the negative he must decide whether the person would be entitled to a retrial or (on appeal) to a review amounting to a retrial.
(6) If the judge decides the question in subsection (5) in the affirmative he must proceed under section 87.
(7) If the judge decides that question in the negative he must order the person's discharge."

The noble Baroness said: My Lords, I beg to move.

Baroness Anelay of St Johns moved, as an amendment to Amendment No. 227, Amendment No. 228:


    Line 15, at end insert—


"(8) For the purposes of subsection (5), the judge should not regard as a retrial or (on appeal) a review amounting to a retrial, any proceedings that do not in particular include provision for—
(a) the suspect to be present at the retrial;
(b) the suspect to have like rights to hear and examine witnesses as he would have done at the original trial;
(c) the suspect to have the same right to publicly funded legal services as any suspect or defendant."

The noble Baroness said: My Lords, we have already debated this amendment in a group in which we won the vote on the lead amendment. Therefore, I beg to move.

On Question, Amendment No. 228, as an amendment to Amendment No. 227, agreed to.

On Question, Amendment No. 227, as amended, agreed to.

[Amendment No. 229 not moved.]

Clause 87 [Conviction in person's absence]:

Baroness Scotland of Asthal moved Amendment No. 230:


    Page 47, line 24, leave out "Order in Council" and insert "order made by the Secretary of State"

On Question, amendment agreed to.

Clause 93 [Case sent to Secretary of State]:

[Amendment No. 231 not moved.]

Clause 94 [Secretary of State's consideration of case]:

9.45 p.m.

Lord Bassam of Brighton moved Amendment No. 232:


    Page 49, line 39, at end insert—


"(5) In deciding the questions in subsection (2), the Secretary of State is not required to consider any representations received by him after the end of the permitted period.
(6) The permitted period is the period of 6 weeks starting with the appropriate day."

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The noble Lord said: My Lords, the proposals were trailed in Committee, and their purpose is simple to describe. The Bill provides that when the Secretary of State considers an extradition request, as he is required to under Part 2, he must reach his decision in two months. It will be the first time that there has been a statutory deadline governing the Secretary of State's decision, and I am sure that your Lordships will welcome that, although it is possible that future Secretaries of State will curse us for it.

All the experience of the present system shows that those who are the subject of extradition proceedings submit voluminous representation to the Secretary of State—and voluminous is certainly the correct term. We are talking about dozens and dozens of box files, all of which must be properly studied. Your Lordships will see why we need the amendment, which provides that all representations must be submitted to the Secretary of State within six weeks. That is designed to ensure that the Secretary of State has proper time to consider all representations.

The alternative would be that the person could submit their representations at the 59th minute of the 11th hour and then instantly challenge the Secretary of State's decisions on the ground that his representations had not been properly considered. That would not be a satisfactory way in which to proceed. By contrast, giving a clear deadline for representations to be made and clear deadlines for the Secretary of State to reach his decision provides both transparency and certainty. I invite your Lordships' House to take the same view. I beg to move.

On Question, amendment agreed to.

Clause 95 [Death penalty]:

The Earl of Mar and Kellie moved Amendment No. 233:


    Page 50, line 6, after "assurance" insert "from the appropriate authority"

The noble Earl said: My Lords, the amendment was inspired, as usual, by the Law Society of Scotland. It deals with the issue of the death penalty and the need for assurance that the person to be extradited would not be subject to the death penalty—or, indeed, to confirm that he would be so subject.

The amendment confirms that only the "appropriate authority" should grant the required assurance. As drafted, the Bill gives the judge discretion to consider whether a written assurance is adequate. The amendment would confirm that the judge must have the written assurance from the appropriate authority in the country concerned. Simply and straightforwardly, that would clarify the position and create the necessary procedure and, in so doing, presumably prevent anyone being extradited from this country to another country to face the death penalty.

In those few words, I beg to move.

Lord Bassam of Brighton: My Lords, as ever, we are grateful to the noble Earl, Lord Mar and Kellie, for tabling amendments. This one gives us the opportunity to explore what is certainly one of the most important,

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if not the most important, of the safeguards in Part 2. Nevertheless, I shall explain as briefly as I can why we do not believe that it would be wise to make the amendment.

Clause 95 concerns the death penalty and is clear in its effect. In death penalty cases, the United Kingdom requires assurances that the death penalty will not be imposed or carried out. If no such satisfactory assurances are received, the person simply will not be extradited.

The clause sets out our position on the death penalty under current extradition arrangements. In updating the legislation, we decided that it would be sensible to set out clearly and precisely how that would work. We have effectively formalised in legislation what already happens in practice. We feel that it is important to do that, especially given the gravity of the subject, and the examination that it rightly attracts.

Before I turn my attention specifically to the amendment, I should explain that the system that we set out in the Bill has never caused us any great difficulties. Clearly such an assurance must come from a person who is competent to issue it and it must bind the bodies which impose and carry out the sentence. It is on that basis that the clause was drafted and the Secretary of State can accept assurances that he considers an "adequate" guarantee that the death penalty will not be imposed or carried out.

The noble Lord's amendment stipulates that the assurance must issue "from the appropriate authority". We appreciate this sentiment. As I say, we would expect the assurance to come from a person who is competent to issue it and that it must bind the bodies which impose and carry out the sentence. Indeed, that is our experience. However, the amendment mentions "the appropriate" authority without defining it. It would be difficult, clearly, to define such an authority in the Bill for each individual country where this could be an issue. I am not sure that it would be any easier to define such an authority by a generic description, or by any other means.

Let us look at the most obvious example, the United States. The USA is our only regular extradition partner which uses the death penalty. In some cases the assurance will come from the Governor of the state concerned, in some cases the Attorney General of the state concerned and in some cases it will be the prosecutor in the case. Different rules apply in different cases. However, a very important point to make is that there has never been a case where an assurance, once given, has not been fully honoured. We feel that the amendment would add a note of ambiguity to the drafting quite contrary to the clarity and strength that I believe was intended by it. That ambiguity could open the process up to additional and extended challenges as to whether or not the authority is "appropriate", as the term is not qualified in any way. For example, a fugitive may argue that an authority, which we know, by experience, to be absolutely appropriate, is entirely inappropriate. As I explained earlier, I am not sure there is any way of getting round the lack of definition.

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I respectfully suggest that what we have in the Bill now is correct. I repeat that before the Secretary of State accepts an assurance he will have to satisfy himself—as he does at present—that the person who has submitted it is in a position to do so and, more importantly, that it will have a binding effect. I also emphasise that we have had such a system for many years and it has never given rise to any problems or for that matter any attempts at abuse. I hope that the noble Earl, Lord Mar and Kellie, is reassured by these comments on the record and that he feels able to withdraw the amendment.


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