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The noble Baroness said: In moving this amendment, I shall speak also to Amendments Nos. 167 and 197 and the Question whether Clause 83 stand part. I have already drawn attention, when speaking to the Question whether Clause 68 stand part, to the fact that, whereas we welcome most of Part 2, there are some issues about which we need to raise questions and probe.
I shall begin with Amendments Nos. 150 and 167. Amendment No. 150 would remove subsection (4) from Clause 70, and Amendment No. 167 would remove subsection (5) from Clause 72. Those subsections allow for an Order in Council to designate specific category 2 territories so that when they issue an arrest warrant or provisional warrant they need supply only information, not evidence. Our problem with that is that it effectively involves the removal of the prima facie case requirement on the face of the arrest warrant for certain unspecified category 2 territories. Clause 83(6) goes further. Clause 83(1) requires the judge to decide whether there is sufficient evidence for a case to be answered by the defendant on trial. Subsection (6) provides for the judge to pass over that consideration in the case of specified category 2 territories and to move on to the next stage of the proceedings.
We have some concerns with that. We asked the Government to set out their justification for the exemption from prima facie evidence both for the warrant and for the judge's consideration at the hearing by an Order in Council which will not be subject to parliamentary scrutiny. I welcome the guarantee given by the Minister with regard to a designation of a country as a Part 2 extradition partner. He said that any orders designating a country as a Part 2 extradition partner will also, if appropriate, contain provisions removing the prima facie requirement.
Yet there still seems to us to be a potential for a new sub-tier of category 2 territories to be created, which essentially have one more safeguard for the British citizen removed. We are concerned about that. We have had plenty of debates in relation to Part 1 about the protection which the prima facie requirement provides. The country must provide information and we feel that it is important that there should be as much evidence as possible before someone is extradited. I believe that I can ignore some of my notes, given the Minister's response to the previous clause stand part debate.
Our concern with category 2 countries that have no guarantee of the European Convention on Human Rights is that if we relax the safeguard with regard to prima facie rules, we have no assurance that, when extradition takes place, it will happen only when there is enough evidence for the prosecution to go ahead safely.
Baroness Scotland of Asthal: I am grateful for the opportunity to respond to these amendments but on this occasion I cannot support them because they would put the United Kingdom in breach of its international obligations and be a great step backwards.
Clauses 70 and 72 deal with, among other matters, requirements of prima facie evidence to be produced in category 2 cases. Clause 70(4) and Clause 72(5) provide that a request from a country specified by Order in Council need be accompanied only by information rather than evidence.
Amendments Nos. 150 and 167 would remove those provisions with the effect that all Part 2 requests would have to be accompanied by prima facie evidence. I know that that is what the noble Baroness seeks to achieve. However, I am somewhat perplexed that she should do so on behalf of Her Majesty's Opposition, for reasons that I shall explore.
The provisions in question hardly represent a new or startling development. If noble Lords look at Section 8(3) of the Extradition Act 1989, they will see that very similar wording can be found; in particular, the substitution of evidence by the word "information". We are not doing anything new by preserving the status quo. Those subsections are designed to meet our existing obligations under the European Convention on Extradition, the ECE, which we have now been operating for about 12 years.
The UK ratified the ECE in 1991. It is hardly for me to make this point, but I am sure that the noble Baroness well remembers the complexion of the government who were then in being. Perhaps I need not remind noble Lords of the identity of the then Chancellor of the Exchequer, whose company we have had on a number of occasions, or of the venerable and much loved then Attorney-General, whose company we may have this afternoon. Under the terms of the ECE, we cannot demand prima facie evidence and if we were to seek to refuse a request from an ECE partner on the grounds that it lacked prima facie evidence, we would be in breach of our international obligations. That change was one with which the Government were content and, sparing the blushes of the noble and learned Lord, Lord Mayhew, I am in total agreement with the stance he took on that change. As on so many occasions, he and I seem to be at one.
Were the amendments to be made, we would require prima facie evidence to accompany every single Part 2 request. The UK would have to withdraw from the European Convention on Extradition and seek to negotiate a new bilateral treaty with every single non-EU Council of Europe country, which I had the pleasure of listing earlier. At best, there would be a gap while those treaties were renegotiated; at worst, other ECE countries might not take it entirely kindly that we had withdrawn from the ECE and refuse to negotiate, leaving us with no extradition relations with the countries in question. Removal of the prima facie requirement has caused us no difficulties with ECE countries during the past 12 years. To go back on that now would be a retrograde step.
Perhaps I may say something about the wider world outside the ECE. The Bill, like the Extradition Act 1989, allows for the removal of the prima facie requirement for any country in the world. However, there is one important difference. Following the recommendation of the Select Committee on Delegated Powers and Regulatory Reform, we have agreed that orders removing the prima facie requirement all be subject to the affirmative resolution
Until now, no non-ECE country has had the prima facie requirement removed. We do not intend to change that generally; we intend to go slightly further, but only in a limited way. As the Committee will be aware, the new bilateral extradition treaty that we have negotiated with the United States will remove the prima facie requirement in respect of requests made by that country. I know that the noble Lord, Lord Goodhart, is especially exercised and spoke strongly of his opposition to that withdrawal. I am sure that we shall read of that issue in due course.
However, we feel strongly that because of the history and nature of our long and well-established partnership with the United States, that will not cause us difficulty because it has faithfully honoured each and every agreement that we have ever had and given us no cause to believe that it will renege on the conditions that we have jointly set and agreed. I reiterate that we do not currently require prima facie evidence for a whole host of European countries, including places such as Latvia, Turkey and Albania. We can see no case for imposing a more stringent requirement on an established, mature democracy, such as the USA.
I know that the noble Lord, Lord Goodhart, is also concerned about the question of reciprocity. I must confess that I am a little puzzled about that concern. It is of course the job of this Parliament to decide what barriers and hurdles to extradition there should be. That includes setting the evidential test. If we take the view that for a country such as the USA, with a proper judicial system and where the rule of law is respected, the ECE standard is the appropriate one, that is an objective decision. So we must ask: why is that decision affected by what the other country decides to do? I cannot see how a decision to remove the prima facie evidential requirement from incoming USA requests becomes any more or less correct simply because, for constitutional reasons, the US cannot do the same.
Beyond that, I assure the Committee that we have no current plans to remove the prima facie evidential requirement for any other of our bilateral treaty partners. There is a case for removing the prima facie evidential requirement for a small number of Commonwealth partners whose criminal justice systems can be trusted and with whom we have a significant volume of business. No final judgments have been made, but we have in mind, as I mentioned the last time that we discussed the issue in Committee, countries such as Australia, Canada and New Zealand.
I am sure that noble Lords would not object to any of those three countries being exempted from the burden of having to supply prima facie evidence. Our relations with those countries are based on the Commonwealth extradition schemethe London Scheme for Extradition Within the Commonwealth, to give it its full name. The Commonwealth scheme does not take the form of a binding agreement. Rather, it is
If the amendment were made, that would become impossible, which would be a very unfortunate step. Knowing the warmth of feeling that exists within Her Majesty's Opposition for the Commonwealth, I should be surprised if they sought that. I also know of the long tradition of communication with and support for the Commonwealth among Liberal Democrats.
I hope that I have clearly stated the Government's intentions and that that has been useful. I remind the Committee that all Orders in Council designating countries as exempt from the prima facie requirement will be subject to the affirmative resolution procedure, so Parliament will have the fullest involvement.
The amendments are not desirable. The first two would result in the UK being forced to withdraw from the ECE, while the last would deny us the opportunity to treat trusted Commonwealth partners on a par with our Council of Europe partners. Having heard what I have said, I hope that the noble Lord will feel able to withdraw his amendment and that the Committee will recognise that Clause 83 effectively preserves the status quo. It is an important clause and I hope that the Committee will recognise that it should stand part of the Bill.
Lord Goodhart: The noble Baroness raised the question of reciprocity and spoke to it at some length, so I hope that the Committee will not object if I deal with my argument on that now. I intended to raise it by my next amendment, Amendment No. 151A, but if I speak to that now it will save us having the same debate again then.
I should say that Amendment No. 151A is probably in the wrong place; it should have been tabled as an amendment to Clause 83 rather than Clause 70. As I understand it, Clause 70 deals with the information that must be provided to obtain an arrest warrant, but the actual hearing is dealt with under Clause 83. It is at that point that the question of the need to produce evidence arises.
Having said that, it seems to me that it is inappropriate for the Government to have agreed to dispense with reciprocity in the new treaty with the USA. The United States gets from the agreement the benefit of the easier extradition of people it wants to have back in order to try them, but what does the United Kingdom get from it? I appreciate that other aspects of the treaty will simplify the extradition process on both sides and are unobjectionable, but I am concentrating on reciprocity. As far as that is concerned, the United Kingdom gets more or less nothing.
In some limited sense it is an advantage to the United Kingdom that we can now extradite alleged criminals to the USA more easily and therefore do not have to keep them in prison here, but that is a fairly minimal advantage. We lose something of considerably more advantagenamely, the bargaining power to get the Americans to change their laws to enable us to get defendants back here more easily.
There are other reasons for objecting to making extradition to the USA easierfor instance, the low standards of criminal justice in some states. While the noble Baroness refers to the observance in the United States of the rule of lawwhich is in general trueI am deeply concerned about agreeing a treaty of this kind at a time when the present Administration are showing their contempt for due process and the right to fair trial in relation to the prisoners in Guantanamo Bay.
It is correct as a general principle that rights under extradition agreements should be reciprocal. As I understand it, the Minister said that there is no other agreement to which the United Kingdom is a party in which we have dispensed with the need for evidence except where there is equal and reciprocal dispensation the other way. In that respect the American treaty is unique. If that is so, it creates a bad precedent.
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