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Baroness Scotland of Asthal moved Amendments Nos. 244 to 246:



    Page 58, line 23, after fourth "the" insert "relevant"


    Page 58, line 23, at end insert—


"(2A) The High Court may extend the relevant period if it believes it to be in the interests of justice to do so; and this subsection may apply more than once.
(2B) The power in subsection (2A) may be exercised even after the end of the relevant period."

On Question, amendments agreed to.

Clause 119 [Undertaking in relation to person serving sentence in United Kingdom]:

Baroness Scotland of Asthal moved Amendment No. 247:


    Page 62, leave out lines 28 and 29 and insert—


"(5) Subsections (6) and (7) apply if the Secretary of State makes an order for extradition subject to a condition under subsection (2).
(6) If the Secretary of State does not receive the undertaking before the end of the period of 21 days starting with the day on which he makes the order and the person applies to the High Court to be discharged, the court must order his discharge.
(7) If the Secretary of State receives the undertaking before the end of that period—"

On Question, amendment agreed to.

Clause 121 [Position where asylum claimed]:

Baroness Scotland of Asthal moved Amendments Nos. 248 to 250:


    Page 63, line 24, at end insert—


"(za) when the Secretary of State makes his decision on the claim, if there is no right to appeal against the Secretary of State's decision on the claim;"
Page 63, line 26, after "if" insert "there is such a right but"


    Page 63, line 39, leave out subsection (9).

On Question, amendments agreed to.

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Clause 122 [Withdrawal of request before end of extradition hearing]:

Baroness Scotland of Asthal moved Amendment No. 251:


    Page 64, line 14, at end insert "as soon as practicable"

On Question, amendment agreed to.

Clause 124 [Withdrawal of request while appeal to High Court pending]:

Baroness Scotland of Asthal moved Amendment No. 252:


    Page 64, line 40, at end insert "as soon as practicable"

On Question, amendment agreed to.

Clause 125 [Withdrawal of request while appeal to House of Lords pending]:

Baroness Scotland of Asthal moved Amendment No. 253:


    Page 65, line 21, at end insert "as soon as practicable"

On Question, amendment agreed to.

Clause 126 [Competing extradition requests]:

Lord Bassam of Brighton moved Amendment No. 254:


    Page 65, line 39, after "account" insert "in particular"

The noble Lord said: My Lords, these amendments have been brought forward in response to a point raised by the noble Lord, Lord Hodgson, in Grand Committee. They are concerned with the issue of competing requests, which is where we get two or more requests in respect of the same individual. I hasten to stress that competing requests are not at all common. Nevertheless, we need some means to determine which should receive priority.

The Bill provides just such a mechanism in three different places to cope with the three possible scenarios—two competing Part 1 requests, two competing Part 2 requests and a competing Part 1 and Part 2 request. In each case, the Bill sets a list of factors which the person making the adjudication needs to take into account—the seriousness of the offence, the place where the offence was committed, the date of the request and whether it is an accusation case or a conviction case.

I think it would be fair to say that we had an interesting discussion in Grand Committee about what should be on the list. I have no wish to go over that ground again since it is beyond the scope of these amendments. However, what did emerge was that the noble Lord, Lord Hodgson, was very concerned that the list should not be seen as exhaustive so that the person deciding between the competing requests could take into account any other relevant factors.

We have looked at this again, we agree, and we have looked at the drafting of the Bill. Clause 43, which deals with competing Part 1 requests, provides that the judge making the decision must take into account, in particular, the matters in the list. That makes it crystal clear that he can also consider other matters. By contrast, the words "in particular" do not appear in Clause 126, which relates to competing Part 2 requests, and Clause 181, which deals with competing Part 1 and Part 2 requests. These amendments rectify that omission and I hope they find favour with the noble Lord, Lord Hodgson. I beg to move.

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11.15 a.m.

Lord Hodgson of Astley Abbotts: My Lords, I thank the Minister for his explanation. We had two concerns—that the wording between Clauses 43, 126 and 181 was not consistent, and that the precision of the wording might inhibit the powers of the Secretary of State. We are grateful to the noble Lord, Lord Filkin, for having followed up his agreement to have another look at this point. We are happy with the amendments.

On Question, amendment agreed to.

Clause 127 [Consent to extradition: general]:

The Earl of Mar and Kellie moved Amendment No. 255:


    Page 66, line 39, at end insert—


"( ) In the application of this section to Scotland, "counsel" includes a solicitor who has the right of audience in the High Court of Justiciary under section 25(a) (right of audience in various courts in the High Court of Justiciary) of the Solicitors (Scotland) Act 1980 (c. 46)."

The noble Earl said: My Lords, Amendment No. 255 is, once again, inspired by the Law Society of Scotland. The amendment is relevant only in Scotland, and would be a useful and necessary clarification.

I suspect that the comparatively recent development of the solicitor-advocate and the associated right of audience in the High Court of Justiciary may have been forgotten. The amendment would ensure that everyone understands that the definition of being legally represented before the appropriate judge extends to and includes solicitor-advocates. At present, the Bill makes no provision by which a solicitor could instruct a solicitor-advocate to represent his client. It is not clear whether a solicitor-advocate is acceptable within Clause 127(9).

Solicitor-advocates came into being under the Solicitors (Scotland) Act 1980. In other legislation, it has been thought necessary to make express provision for solicitor-advocates—for example, in the Criminal Procedure (Scotland) Act 1995, as amended by the Sexual Offences (Procedure and Evidence) (Scotland) Act 2002 and in the Criminal Procedure (Amendment) (Scotland) Bill currently before the Scottish Parliament.

This amendment seeks only to clarify and include, not to alter the Bill. I beg to move.

Baroness Carnegy of Lour: My Lords, I have added my name to the noble Earl's amendment. I moved a similar amendment in Committee and thought I was satisfied with the Minister's apparently confident response at that time until the Law Society of Scotland came back this week with new information that is hot off the press, as the noble Baroness, Lady Scotland, probably knows.

It seems that the Scottish Executive has been following our Grand Committee proceedings. It has been convinced, as the Home Office has not so far been convinced, of the need in a similar context to make specific provision for solicitor-advocates. It has done it, as the noble Earl said, in a new Bill—the Criminal Procedure (Amendment) (Scotland) Bill which was introduced in the Scots Parliament just three weeks

30 Oct 2003 : Column 381

ago, on 7th October. The terms used in that Bill are similar to those in our amendment, which refers to the fact that "counsel" includes a solicitor with extended rights.

It is good to think that this House's discussions have apparently assisted the Scottish Executive and the Scots Parliament. But now, for the clarity of Scots law across two Bills, should the Home Office perhaps follow it? I should add that the noble and learned Lord, Lord Cameron of Lochbroom, has written a letter which I have just received saying that had he been here, he would have supported this amendment. He feels that the clarity would be a good thing, although he appreciates the point which was brought out in Grand Committee that solicitors have extended rights in England and Wales too, and that there is no mention of that in the Bill. But from the point of view of Scotland, he thought this was a good amendment, so I support it.

Baroness Scotland of Asthal: My Lords, I hope that I shall be able to reassure the noble Earl and the noble Baroness that the amendment is not needed and that we have taken the change into consideration. Because the matter has caused a bit of confusion, I shall take a little time to explain why we believe that to be so, so that the Law Society of Scotland will be more content.

I am grateful for the amendment, which relates to the important issue of consent to extradition and, more specifically, the legal advice that is available to a person in such circumstances, as the noble Earl said. I know that he is particularly concerned about how the provisions relate to Scotland. As the noble Baroness said, the matter was debated in Grand Committee.

Under Part 2 of the Bill, the appropriate judge is able to accept the fugitive's consent to extradition only if the fugitive is legally represented before the judge, if the fugitive has refused or failed to apply for legal aid, or if any application was refused or legal aid withdrawn. In Clause 127(9), a person is defined as being legally represented if,


    "he has the assistance of counsel or a solicitor to represent him".

The noble Earl's amendment would ensure that the definition of being legally represented extended in Scotland to being represented by a solicitor advocate. A solicitor-advocate is a solicitor who, under Section 25A of the Solicitors (Scotland) Act 1980, has rights of audience in the High Court of Justiciary, as well as in the District and Sheriff Courts. I am sympathetic to the motivation behind the amendment, which seeks to ensure that those who wish to consent to their extradition are given appropriate legal representation in order to understand the full implications of giving consent.

Happily, I can reassure the noble Earl, Lord Mar and Kellie, and the noble Baroness, Lady Carnegy, that there is nothing to worry about. A solicitor-advocate who has extended rights of audience in the High Court is still a solicitor within the meaning of the provisions, despite the wider scope of his role. As a solicitor, he is therefore caught by the reference to "solicitor" in subsection (9) of Clause 127. In any event, a person consenting to his

30 Oct 2003 : Column 382

extradition in Scotland is required to do so before the Sheriff of Lothian and Borders. There is absolutely no question that a person would consent under Section 127 before the High Court of Justiciary. The issue of extended rights of audience is, therefore, irrelevant.

I hope that I have reassured your Lordships that a solicitor in Scotland who has extended rights of audience would be entitled, as a solicitor, to represent a fugitive at the time of his giving consent to extradition before the Sheriff. I hope that with that even the Law Society of Scotland will be content.


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