§ 3.10 p.m.
§ Report received.
The Lord Chancellor (Lord Mackay of Clashfern) moved Amendment No. 1:
Page 108, line 26, leave out ("facts on which his return is granted") and insert ("particulars furnished to the Commonwealth country on which his return is grounded").
§ The noble and learned Lord said: My Lords, along with Amendments Nos. 3, 5, 13 and 14, this 87 amendment is intended to cope with a problem that was raised during the Committee stage on the use of the words "evidence" and "facts". It was the view of some of your Lordships that the terminology used in Part I of the Bill was somewhat inconsistent, and that this inconsistency was being added to by the amendments placed before the Committee. An undertaking was given by my noble friend Lord Caithness to consider the points that were made then.
§ The amendments before your Lordships seek to get round the problem identified in the earlier consideration of the matter. It is intended that the provisions covering specialty should relate to "particulars" which had been furnished in support of an extradition request. This avoids the difficulty caused by reference to "facts". As the noble Lord, Lord Mishcon, pointed out in Committee, something may be found to be a fact or it may be found not to be a fact. That is not perhaps a shattering revelation but in relation to the matters that were then in issue it was an important point to make.
§ In Amendment No. 5 the term to be used in Clause 4 is, for obvious drafting reasons, different. There, it is our view that on reflection a simple reference to the "offence" will cover adequately both the facts or alleged facts of the matter and the law under which the person was accused. Amendment No. 13 rectifies a drafting defect. A fugitive is returned in respect of an offence, not on the ground of that offence. I beg to move.
§ Lord Simon of Glaisdale
My Lords, I trust that it is not inconvenient if I mention at this stage something about the Marshalled List. I imagine that most of your Lordships make notes on the Bill of the numbers of the amendments on the Marshalled List. When we collected the Marshalled List this morning that was virtually impractical. In one case, there was no number printed. In other cases, a digit was cut out. In other cases still, the numbers were under the staples. The Marshalled List was reprinted. Perhaps I may make one comment and one plea. What happened was in no sense the fault of the noble Earl or his department. However, it is the sort of thing that inevitably follows if we try to over-legislate and to legislate too urgently. We discussed that matter last Wednesday.
My plea is this. In view of the difficulties that, under the circumstances, many of us have undergone, would noble Lords in moving amendments allow time for us to cross-reference? My noble and learned friend on the Woolsack has just given us a model of how to deal with a grouping of amendments. Could that model be followed, and in particular, could noble Lords with young and agile minds make some allowance for those others of us?
§ 3.15 p.m.
§ Lord Mishcon
My Lords, as one who hopes that he has a young and agile mind, perhaps I may be permitted to thank the noble and learned Lord the Lord Chancellor for drawing attention to the extremely original thought of mine that sometimes a fact can be shown by evidence not to be a fact. The 88 amendments that have been moved today remove any ambiguity of language and I am sure that we are all obliged for it.
§ Lord Hutchinson of Lullington
My Lords, I wonder whether the noble and learned Lord can assist me. Under Clause 3(4)(b) we now have particulars,in respect of which his return was ordered".We have under Clause 4(2)(b) "particulars". We have under the schedule "particulars of the facts". The point was made in Committee that nowhere in the procedure to be followed before somebody is extradited can one find the word "evidence" used. Yet the word "evidence" appears under Clause 6(4). We shall be discussing that shortly. Although the words "particulars of the facts" are mentioned as the foundation for the authority to proceed, which is the whole basis of this procedure—that the Secretary of State has to look at the particulars of the facts—when it gets to the magistrates' court, we have under Clause 6(4) for the first time:the court of committal shall not consider whether the evidence would be sufficient to warrant the trial of the arrested person".Further down, under Clause 6(8), when the magistrate is deciding in the normal case he has to see that the evidence would be sufficient,to warrant his trial if the extradition crime had taken place within the jurisdiction of the court".I certainly find it difficult to understand what the distinction is between facts and the evidence and why we do not have the word "evidence" through the earlier procedure.
§ The Lord Chancellor
My Lords, I am grateful to the noble Lord, Lord Mishcon, for welcoming these amendments. I am extremely sorry that my noble and learned friend Lord Simon of Glaisdale should find himself in any difficulty. Certainly, anything that we can do to assist in clarification in the course of the debate will be done. I do not for one moment accept the distinction which he makes between persons of a young and agile mind and himself. Those of us who know him know that, whatever his age, his mind is an extremely agile one.
The noble Lord, Lord Hutchinson of Lullington, wishes me to explain the distinction between particulars of an offence and the evidence for that offence. In a sense I am slightly surprised that that should be a difficult question. The particulars of the offence are the details of the allegations which are made in the complaint or other documents setting out the offence. I believe that it is a familiar phrase from the indictment rules requiring that there should be a statement of the offence and a statement of the particulars of the offence. The evidence is what is tendered when the case comes to trial, or where proceedings are required in respect of committal. The evidence is what is tendered in order to persuade the tribunal of fact as to whether or not these particulars of allegations have been established. This is a fairly well known and basic distinction of our ordinary law, and it is on the basis of that distinction that these amendments have been drafted. I hope that they meet the point made by the noble Lord, Lord Mishcon, and others in the course of the Committee stage.
§ On Question, amendment agreed to.89
§ Clause 2 [Orders in Council as to arrangements for extradition]:
Lord Irvine of Lairg moved Amendment No. 2:
Page 4, line 1, leave out subsection (5).
§ The noble Lord said: My Lords, I think the position in relation to the second grouping of amendments—Amendments Nos. 2, 6, 7, 8, 9 and 10—is that your Lordships may feel that Amendments Nos. 2 and 8 are consequential in the sense that if Amendment No. 7 succeeds then Nos. 2 and 8 are purely consequential on the success of Amendment No. 7. Amendment No. 7 should therefore be regarded, I respectfully suggest, as the principal amendment to be considered in the context of this grouping. Thus if Amendment No. 7 were to fail, Amendments Nos. 2 and 8 would fall.
§ Amendments Nos. 6 and 10 are amendments brought forward by the Government which concern the fugitive making representations to the Minister and there being a power available to him to seek judicial review of the Minister's decision on these representations. I therefore respectfully suggest to the House that it would be premature to hear arguments on Amendments Nos. 2 and 8 which are consequential on No. 7 and that the better course might be to consider No. 7 at the same time as Nos. 6 and 10.
§ Lord Denham
My Lords, if I may come in at this stage, this is the generally accepted way that the House proceeds. I understand that Amendment No. 2 is a paving amendment to the noble Lord's definitive amendment later. Normally in this House we discuss the whole matter on the paving amendment. If any decision takes place, it takes place on the paving amendment. It is generally accepted that the result on that amendment governs the result on the substantive amendment later. I think we would be getting into a great deal of difficulty if we varied the procedure in this case.
§ The Lord Chancellor
My Lords, I should have thought that the noble Lord, Lord Irvine of Lairg, may be able to deploy the main argument in respect of any of the amendments. In view of the position as explained by my noble friend the Chief Whip, it may be wise that he should consider raising the main argument under Amendment No. 2. When replying to that I shall be able to indicate the substance of the amendments that the Government are proposing on the central issue of this matter, and then the result of any Division that there may be on Amendment No. 2 would determine the matter of principle.
I hope that this course may commend itself to the noble Lord and that he will feel able to follow it. I do not think it matters much from the point of view of substance on which particular amendment the matter arises. The question is one of important principle and it is one on which we could presumably deploy the full argument on any particular amendment.
§ Lord Irvine of Lairg
My Lords, conscious as I am that I am speaking to an amendment which appears to me to be purely consequential upon an argument of principle which your Lordships will have to 90 consider on Amendment No. 7, nonetheless I address your Lordships ostensibly, as it were, on the subject of Amendment No. 2; but, as I have said, it is purely consequential upon the main issue in Amendment No. 7.
§ Viscount Whitelaw
My Lords, perhaps I may come in for just a moment, because I think the correct word is "paving" and not "consequential". It is not just a form of words; it is actually an important matter.
§ Lord Irvine of Lairg
My Lords, I accept that it paves and is not consequential. The main argument on this issue is that it is a grave matter to send a man or a woman to face trial in a strange country, perhaps a country they hardly know, whose language they do not speak, where they have no friends or family to turn to for advice and support, no lawyer with whom they are familiar, and no Member of Parliament of either House to champion them. Such a person, although still presumed innocent, will be far more cut off from his roots than a person remanded in custody in his own country. For our part we find it almost inconceivable that we should be extraditing a person to a country other than his own without at least a judicial examination of the evidence against him.
If I may venture to quote the words of my noble and learned friend Lord Elwyn-Jones in the debate on this subject at Committee stage on 20th October, he said, at col. 37 of the Official Report:it is quite wrong that a British national or indeed any national who is in this country should be extradited to face trial abroad on the basis of evidence which would not be sufficient to commit him or her for trial should he or she be prosecuted in this country. It imposes complete inequality of treatment as between one proceeding and another".There has been, and there can be, no serious denial that the prima facie requirement is an important civil liberty and that it is being taken away. The reason is that a number of continental countries want extradition on demand. It is unwelcome to them to have the evidence in support of the charges that they are bringing forward judicially evaluated in England. They do not want an English court to decide whether there is a case to answer, and the Government are weakly, we would submit, yielding to them.
After a full debate, the gravest disquiet was expressed from many quarters in the Committee. For example, the noble Earl, Lord Onslow, said at col. 42:The argument seems to be that some of us on this side would be just about 'happyish'—and I quote him—if the Minister took his decision with evidence. It strikes me that it is not the Minister's job to hear evidence. It is the job of the magistrate. Therefore why do we not leave it exactly where it is? Why should we give foreign governments powers over our citizens which we do not take ourselves?The noble Earl ended his contribution to the debate by saying that he had not heard anything which made him think that the case for overriding our historic liberties had been put with any conviction whatever.
The noble Earl, Lord Caithness, in replying, said that he differed from those who had stressed the prima facie safeguard as an important civil liberty. In reply to the noble Earl, Lord Onslow, he said, at col. 46: 91I remind my noble friend Lord Onslow that the prima facie requirement is not a feature of Scottish procedures in any case".A heresy has grown up about Scottish practice in extradition cases. The noble and learned Lord the Lord Chancellor is of course uniquely qualified to confirm that the prima facie requirement is as much a requirement of Scots extradition law as it is of English extradition law. First, there are in practice very few extradition cases heard in Scotland. This is because arrests are made in Scotland on a warrant issued by the metropolitan magistrate in London and he proceeds on an order from the Secretary of State. The warrant is enforceable in Scotland without the need for any independent judicial endorsement in Scotland. Then the individual concerned is brought to Bow Street and there the prima facie safeguard applies.
Next, the Act deals with a special case where a crime has been committed on a vessel on the high seas which has put into a port in the United Kingdom. Suppose that it is a Scottish port. In these cases there is an extradition request; the sheriff takes the place of the Bow Street magistrate and applies the prima facie requirement.
Finally, there are cases where it would be prejudicial to the health of the individual concerned for him to be taken from Scotland to Bow Street. In those cases Parliament requires that the case should be heard by the sheriff principal or the sheriff of the place of apprehension. In hearing that case the sheriff is deemed to be a police magistrate within the meaning of the Extradition Act, and therefore in Scotland the prima facie safeguard applies.
The position is—and I invite confirmation from the noble and learned Lord the Lord Chancellor—that in every extradition case that can arise in Scotland the prima facie safeguard applies. I contrast that with what was said by the noble Earl, Lord Caithness, at col. 46 of Hansard in reply to the debate in Committee:I remind my noble friend Lord Onslow that the prima facie requirement is not a feature of Scottish procedures in any case".In Commonwealth cases, where the Scottish courts deal with applications under the Fugitive Offenders Act, the prima facie safeguard applies in Scotland in precisely the same way as in England.
The fact is that in cases of extradition, Scotland, in line with England, applies the prima facie safeguard, but in practice there are few extradition cases in Scotland because the individual is arrested there and taken to Bow Street. The point is that the law and practice of Scotland afford no justification for removing in England the benefit of the prima facie safeguard from English persons whose extradition is sought by foreign countries.
There is another and important aspect to this debate. The Government's response to the extreme disquiet expressed in many parts of the House, not least by the noble Lord, Lord Boyd-Carpenter, about the removal of the prima facie safeguard is: give the fugitive a statutory right to see the papers on which the extradition request is sought from the requesting state and give him a statutory right to make 92 representations to the Secretary of State within a very few days of committal. Then, if judicial review of the decision to order the return of the fugitive is sought, defer the return of the fugitive until judgment is given.
Those noble Lords who in Committee experienced the gravest disquiet at what the Government would have this House do in removing the prima facie safeguard should see this response as an embarrassingly transparent piece of window-dressing. It should convince no one at all.
In place of the prima facie safeguard we have what is a mouse of a right: to make representations but not about the evidence that may lie behind the allegations. Let us suppose that the individual in his representations to the Secretary of State says, "The statement of so-called facts put before the court is wrong. Here are signed statements from witnesses to prove it. Would you please see them and hear them? Please could I be told what evidence and what witnesses this European country has to support its allegations in what it calls a statement of facts?" In those circumstances the Minister will say this: "It is not for me. I have nothing to do with evidence and the courts have nothing to do with evidence. Parliament legislated away the prima facie safeguard in 1987. That apart, I have considered your representations with great care but off you must go". That is totally unappealable.
I make the confident forecast that no judicial review will ever succeed because the only issue will be whether the Minister read the representations and thought about them. This remedy is no substitute whatever for the prima facie safeguard. It is a mouse of a right. It is a simulacrum and a sham and it should be rejected by the collective conscience of this House.
Amendment No. 2 paves the way towards Amendment No. 7. The great issue, and the only issue, is whether this House will insist upon the retention of the prima facie safeguard in all cases. I beg to move.
§ Lord Lloyd of Kilgerran
My Lords, before the noble Lord sits down, it is with the greatest temerity that I, as a Silk at the Patent Bar, should presume to intervene at this stage among the Titans of the criminal law. However, I listened to what was said by the noble Lord, Lord Denham, and the noble and learned Lord on the Woolsack a few minutes ago as regards postponing this issue for discussion to a later stage. I should like to ask the noble Lord, Lord Irvine of Lairg, whether it would not be in the interests of the House to postpone the discussion until the later stage of the Bill in order to save time. I may be entirely wrong, but I heard what was said by the noble Lord, Lord Denham—I do not often agree with him—and I heard the noble and learned Lord the Lord Chancellor ask for a postponement of the discussion in order to save time on the Bill.
§ Lord Mishcon
My Lords, I think that for once the noble Lord, Lord Lloyd of Kilgerran, is wrong, even if for once he agrees with the noble Lord, Lord Denham. As I understand the situation, my noble friend was called upon to rise in order to deal with the whole of the matters which began with the paving 93 amendment, Amendment No. 2. My noble friend asked whether he could delay the debate, and the ruling of the House, through the noble Lord, Lord Denham, was: get on with it and deal with the whole area under discussion, and do it under Amendment No. 2, which is the paving amendment. For my noble friend to be castigated for doing what he did under the guidance of the House is a little unfair.
§ Viscount Whitelaw
My Lords, needless to say, the House will appreciate that I have taken advice before saying what I am about to say. No one would expect me to know this without first taking advice, and it is perfectly plain and clear. It is that in the normal way we discuss the paving amendments and that leads into discussions as regards the other amendments. I understand that to be the normal way in which the House proceeds and the noble Lord, Lord Irvine, has acted correctly, if I may say so to the noble Lord, Lord Lloyd. He acted upon the advice that was given to him at the time.
§ Lord Lloyd of Kilgerran
My Lords, I have been reproved by the noble Lord, Lord Mishcon, and now by the Leader of the House. I was trying to be helpful from a procedural point of view but, as I was entirely wrong, I apologise to the House for having intervened on this occasion.
§ Lord Campbell of Alloway
My Lords, I wish to oppose Amendment No. 7 because it goes to the heart of the matter. It was aptly described by the noble Lord, Lord Mishcon, at the Committee stage as being the issue. Are we to retain the prima facie rule or are we to have an administrative decision? That is the issue and it is within Amendment No. 7, the crucial government amendment with which we are concerned.
I oppose the amendment because I support the principle that, subject to certain safeguards as to court procedure—for example, whether or not an offence is a political act—reciprocity, as a matter of international comity, demands that we now abandon the prima facie rule. The decision, as with other signatory states to the convention, must now be an administrative decision. I have already made that point (and my remarks can be found at cols. 18, 19, 38 and 39) and would not dream of repeating it.
My support for this principle was conditioned by the express assumption that this administrative decision would be subject to judicial review as it exists today and as it will develop from time to time. It is only in the interests of justice as between the individual and the state that such should be the case and any misuse of administrative power should be subject to review by a body such as, for example, in France the Conseil d'Etat and the administrative courts in many other states on many grounds including want of sufficiency of evidence.
That leads one straight to the other side of the problem which is raised by Amendment No. 10, because under that amendment it is now apparent that judicial review will lie. However, it will not lie in the ordinary way in which I certainly thought that it would lie. I respectfully suggest that the order, which is an administrative order of the Secretary of State, should take the form of a reasoned decision on the 94 basis of the evidence adduced unless national security or interests of state are involved. If such is the case it should be stated in the order and of course be conclusive for all court purposes.
Secondly, I respectfully suggest as a matter for consideration that this novel curtailment of the scope of judicial review, which is to be found nowhere else in our law—and I am open to correction on that point—and which one finds in one area at the foot of the page, is not acceptable because it could work injustice where there was no evidence sufficient to justify making the order.
For those reasons, although the spirit of Amendment No. 10 is entirely welcome and broadly acceptable as a whole, I ask my noble and learned friend who sits on the Woolsack whether he will perhaps give further consideration to those suggestions before Third Reading. Alternatively, can he allay the fears that I have expressed or expose them as being wholly misconceived, as may well be the case? They are genuine fears and expressed, I hope, with appropriate humility.
There is a further matter that arises, because my noble friend the Minister expressly envisaged that certain documents would be furnished: first, documents emanating from the requesting state, with a full statement of facts describing the alleged conduct; secondly, evidence as to identity; thirdly, evidence as to the law of the requesting state. I am not quoting the Minister's words verbatim because they can be found in the Official Report, Vol. 489, No. 20, at col. 45; I am merely seeking to give the substance of what he envisaged. I merely advert to the fact that in Amendment No. 10 there appears to be no reference to any of these matters and, as this is the occasion for only one speech and this is a serious matter of principle, I wondered whether somehow or other Her Majesty's Government could take further time for consideration.
§ 3.45 p.m.
§ Lord Hutchinson of Lullington
My Lords, I support this amendment. However, as mine is the first name of those tabling Amendment No. 7, I shall concentrate my remarks on that amendment, which is the crucial one that the House is to discuss. Your Lordships will remember that when this amendment was moved in Committee, as has already been mentioned, it gave rise to expressions of view that varied between out-and-out condemnation, anxiety and unease. Once again I should like to spell out the remarkable, indeed revolutionary aspect, of Clause 6(4) to which Amendment No. 7 refers.
At present when a foreign state alleges that a person within our jurisdiction has committed a crime in that state, it must provide evidence which is publicly in court at Bow Street sufficient to satisfy the experienced stipendiary magistrate there that it would warrant committal if the same crime had been committed in this country; that is, a prima facie case. The accused may be represented and the evidence may be examined publicly as to its quality, credibility and sufficiency.
Under this Bill that procedure will continue in respect of requests from all Commonwealth countries 95 and from the United States of America, but as regards foreign states described by the Secretary of State as "respectable European countries", Clause 6(4) prohibits the Bow Street magistrate from considering the sufficiency or the quality of the evidence that is being produced. The procedure under Clauses 4 and 6 will therefore consist of a request to the Secretary of State from the foreign state which includes three items: particulars of the person, particulars of the facts and of the law and a warrant of arrest.
I suggest—and this is why I asked the question of the noble and learned Lord in relation to the earlier amendment—that on those particulars which are particularly not described as evidence (the particulars of facts containing hearsay, opinion, hearsay on hearsay or whatever) the Secretary of State will issue an authority to proceed. He will have received those three items and will issue an authority to proceed on that basis. That authority will be sent down to Bow Street, a warrant will be issued by Bow Street and the person will be brought before the court.
What is the role of the magistrate under Clause 6? It is solely to satisfy himself that the alleged crime is indeed an extradition crime. That can be found at Clause 6(8) and it is all that the magistrate will do. If the alleged crime is an extradition crime, he must then issue a certificate and commit the person to await the Secretary of State's decision finally to extradite.
The noble Lord, Lord Campbell, described that procedure as a purely administrative act and from these Benches it was described as "extradition on demand". The noble Lord was perfectly right. He also said it was the price that we had to pay to enable us to adhere to the European Convention on Extradition. It is not the price that we shall have to pay. It is the price that the citizen who lives under our jurisdiction will have to pay.
There will be no public presentation at all of the facts. There will be no review by any court of those facts. There will be no opportunity for the accused to test or contradict those facts. The court will be a clear rubber-stamp of the decision of the Secretary of State. And who will draw up this statement of facts—which is different, as the noble and learned Lord pointed out—on which the whole of this procedure depends? That statement no doubt will be drawn up by some executive in the foreign state who is very eager to secure the return of the fugitive. No doubt he will be on the telephone or on the telex to his counterpart in the Home Office saying, "Will a statement in this form or that form be acceptable to your Minister?".
That is the mischief of bureaucracy, of internal, unseen executive acts as opposed to open, impartial, judicial examination of evidence according to well-established and accepted principle—that which the Home Secretary has had the audacity to describe as a shield against justice. Are all those Commonwealth countries, are the United States of America, the wielders of that shield against justice? The Home Secretary has had a distinguished career in the diplomatic service and no doubt to him the demands 96 of the Foreign Office appear more important than those of the rule of law, but I hope your Lordships will take a different view.
At the end of our debate in Committee on 20th October, the noble Earl at col. 52 of the Official Report gave an assurance that he would discuss the matter urgently with his honourable friend Mr. Patten, that he would come back at a later stage and that he would indeed consult your Lordships between then and Report so that we could endeavour if possible to get something that would satisfy all sides. I wish it to be on the record that there was in fact no consultation whatever. There was a meeting with the Minister last Thursday and at that meeting we were presented with a fait accompli. We were presented with the intentions of the Government set out in a letter which I have in my hand written to a Member of the other place— not to any noble Lord in this House—and the amendments which we now see on the Marshalled List.
Speaking for myself, the constructive ideas which one took to that meeting, hoping that there would be some attempt at a consensus, were simply not discussed. The Government's proposals, I regret to say, are clearly cosmetic and it is important that your Lordships appreciate that. The contents of this letter, which was released to the press—and some of your Lordships may have seen the result in the press—I have to say are highly economical with the truth. Indeed they amount to veritable parsimony, in my view, with this much abused constituent.
The letter states:Some commentators have erroneously suggested that our proposals would reduce the granting of extradition to an executive function. This is quite wrong. The Home Secretary's discretion … remains a long-stop against individuals being extradited who risk facing an unfair trial but the key decision will continue to rest with the courts".The key decision will not remain with the courts and, unless the Minister has something to say about that, I suggest that that is a most misleading observation.
The letter goes on to say:When dealing with other stable liberal democracies it is invidious to try and gauge whose system of justice, taken in the round, is superior".We do not seek to gauge one system against another but only to ensure quite simply that no one is dispatched to stand trial under an unfamiliar system, in a foreign language, under a different legal system, with many months of incarceration in a foreign gaol, to face compulsory interrogation without a public judicial examination of the reliability and sufficiency of the evidence.
Finally, the letter alleges, as no doubt the Minister will allege today, that the need to establish a prima facie case is the biggest stumbling block to successful extradition by our responsible European neighbours and that the credibility of our international commitment to tackling crime is at stake. Once again, I fear that this is hyperbole rather than factual truth. All extradition from England, Scotland and Wales is dealt with at Bow Street Magistrates' Court and the facts are to be found there, accessible to the Home Secretary, accessible to myself, and here they are for consideration by your Lordships.
97 Between January 1985 and today there have been 89 cases at Bow Street seeking extradition. Of those 89, 62 have been successful, 29 have been discharged and only seven of those discharges were on the grounds of insufficiency of evidence. So there were seven out of 89 cases since the beginning of January 1985. What a block on the European desires to extradite people from this country—only seven out of 89 failed on that basis! Seven were withdrawn before the fugitive was arrested, in five cases the fugitive returned voluntarily, two of them died, in two cases the evidence did not arrive within the time limit and in one case it turned out to be the wrong person identified. Your Lordships will see by that narration that there are many reasons why applications for extradition may fail.
Also in the letter France is highlighted as having a 50 per cent. failure rate and two cases failed on the ground that statements made by co-accused had not been made on oath, when in French law it is not permitted for a statement to be made on oath.
What are the facts? The facts obtained from Bow Street are these. In the four years between 1984 and 1987 France made eight applications of which five were successful, two failed and one fugitive was never arrested. The two cases mentioned cannot be traced and the allegation made in that letter is very surprising, because Bow Street knows, as anybody who is involved in extradition law knows, that there is no requirement for statements to be made on oath. There are cases which establish that.
Turning from facts as opposed to hyperbole, let me turn shortly to the concessions, so-called—Amendments Nos. 6 and 10. What are these concessions? First, there is a statutory right of the fugitive to see the papers on which the extradition is based.
That is breathtaking, is it not? It is breathtaking in the revelation of the authoritarian nature of this new procedure. How could the legislation have ever been drafted without a right being given to the accused to see the evidence on which he was being extradited? How gracious of the Government now to give that concession.
The second concession is a statutory right to make representations. The noble Lord, Lord Irvine of Lairg, has already referred to that in Amendment No. 10(1B) on the Marshalled List. The first thing to notice about that right is that it can only be exercised after the fugitive has been committed by the magistrates' court and not before.
In putting questions to the Minister at our meeting it became clear, as the noble Lord, Lord Campbell of Alloway, has appreciated, that no representation will be acceptable that seeks to query or examine the sufficiency, the credibility or the quality of the evidence. In Committee, the noble Lord, Lord Boyd-Carpenter, demanded the right to full argument with evidence and representation by counsel. There is no such right in this second concession, as it is called. There is no right to call any evidence, no right to an oral hearing and no way of attacking a corrupt, biased or mistaken witness.
The third concession is judicial review. This is an entirely empty concession. There are only three 98 grounds on which judicial review can be mounted. I am sure that I shall be corrected from the Cross-Benches if I am wrong about that. The first ground is illegality. Has the magistrate or the Secretary of State gone wrong in law? The second ground is irrationality. Is his decision so outrageous as to be in defiance of logic and one that no sensible person could possibly have arrived at? The third ground is procedural impropriety. In other words, has he failed to follow the rules which are laid down? Those are the only grounds on which this matter can go to judicial review.
On the sufficiency or the quality of the evidence there can be no judicial review, as the noble Lord, Lord Campbell of Alloway, has pointed out specifically in this amendment. Therefore if the Minister follows the simple rules set out in Clauses 4 and 6 his decision cannot be assailed. If the magistrate finds that an extradition crime is alleged his decision cannot be assailed.
If we wish to adhere to the convention there is no need to abrogate the evidence rule. We can make reservations, as other countries have done. I quote the reservation of Israel as an example:Israel will not grant extradition unless it is proved in a court in Israel that there is evidence which would be sufficient to commit for trial in Israel".If Israel and other countries which adhere to the convention can do that, why cannot we do that? I ask the Minister to tell us why.
I have some constructive suggestions which I should have put to the Minister if there had been consultation. For example, we can relax the rules of evidence here in favour of foreign governments, as is done in the United States of America. We could refuse to extradite our own nationals, as the amendment of the noble Lord, Lord Irvine of Lairg, which we shall discuss later, suggests.
I have been a passionate supporter of the European ideal. I left the Labour Party largely on that issue. I believe equally passionately in our long tradition of liberty and justice, the principle of all citizens being treated equally before the law, the principles of natural justice and the openness of procedures that involve the liberty of the subject. I suggest that the Government surely should be asked to think again.
§ Lord Boyd-Carpenter
My Lords, it is natural and understandable that lawyers should attach greater importance to adopting the best possible rules of procedure and should perhaps give less weight to the broad intergovernmental considerations which arise in this as in many other cases. But your Lordships' House has the difficult task of weighing the one to some extent against the other.
I fully share the views that were expressed at some length by the noble Lord, Lord Hutchinson of Lullington, in favour of the system which we operate in this country. I believe that our legal system is probably better than that of any other country in the world. We need not spend very much time in arguing that. But the practical problem is this. It is obviously important, particularly in these days of international terrorism, that we should be able to join the European convention. It is a fact, whether we like it 99 or not, that the system of procedure and justice exercised in the major European countries is different from ours. We think ours is the better. I have not the slightest doubt that they think theirs is the better. Therefore we must consider whether some sacrifice in what we regard as the ideally best system is or is not justified by the very important public considerations of our being able to adhere to the convention.
Your Lordships heard what the noble Lord, Lord Hutchinson of Lullington, said about the possibility of entering reservations. He quoted the case of Israel. I should be interested to hear either from the noble and learned Lord the Lord Chancellor or from the noble Earl how far that is a real possibility and how far that has been examined with our European friends. But I am bound to say that I start from the assumption that any radical alteration, any radical movement away from the European system and from a decision by the Secretary of State, is not a feasible achievement.
I do not believe that Her Majesty's Government, who no more want to bring trouble on themselves than any of the rest of us, would have introduced this particular part of the Bill if they had thought that possible. That would seem to involve an almost masochistic wish to inflict hurt on themselves. Therefore I consider this from the point of view of seeking to balance the ideally best—the British system of adjudication—in these cases against the very real and important advantages, particularly in the present world situation, of adherence to the convention. That surely is the problem.
It was with that in mind that in Committee a good many of my noble friends and myself concentrated our attention on securing improvements in the system proposed by the Bill. That system would be acceptable to our European friends. I wholly agree with noble Lords opposite that as the Bill was introduced what was proposed would undoubtedly have been in certain respects oppressive and unfair to the person sought to be extradited.
As some of your Lordships will recall, for that reason I pressed my noble friend as to the question of the full working of judicial review and in particular as to whether it would be possible to send the accused person out of the country before the procedure of judicial review had gone its full course. Several amendments of that kind were moved and discussed from these Benches in the hope that we could alleviate some of what seemed to be the difficulties in the Bill as it was introduced.
I think that the Minister and the noble and learned Lord the Lord Chancellor have responded extremely well to the points that we made. Amendment No. 10 contains considerable improvements. Those do not go as far as the noble Lord, Lord Hutchinson of Lullington, would like or as far in one respect as my noble friend Lord Campbell of Alloway would like. But I hope your Lordships will feel that they amount to a very considerable improvement within the framework of a system of decision-making by the Secretary of State for alleviating what seemed to be some of the difficulties which the system was going to cause.
100 When one is concerned with practical legislation, one must be concerned with the two points which I should like to leave with your Lordships. The first is whether we should be right to risk inability to adhere to the convention by insisting on 100 per cent. continuance of what has been the British system and what will, as has been pointed out, continue to be the British system in respect of extradition to other non-European countries.
Secondly, we must ask ourselves whether the Government, under some criticism at Committee stage, have not produced sufficiently substantial alleviation of the system to justify support. My own view is that some of us should feel ungrateful if, having had our points of view met so well and so fully, we did not feel able to support the Government. They have done very nearly all that we asked of them. Therefore the amendment, and in particular Amendment No. 7, should be rejected.
§ 4.15 p.m.
§ Lord Grimond
My Lords, I do not fully share the optimism of the noble Lord, Lord Boyd-Carpenter, that governments always choose the course of freedom and enlightenment unless they are compelled by force majeure majeure and foreign treaties to do otherwise. I should be particularly interested to hear the answers to three questions which have arisen during the debate. Up to now, I should have thought that the case deployed by my noble friend Lord Hutchinson and the noble Lord Lord Irvine, was absolutely overwhelming. I am astonished that there should be any doubt that this House should go against the arguments put forward.
My first question concerns the fact that at an earlier stage it was not so much the convention which was used as a powerful argument by the Government but rather the fact that we must extradite criminals. They were using the law and order argument that criminals were escaping because of the extradition system in this country. Are the Government relying on allegations that innumerable criminals are escaping justice because of our extradition procedures? That argument seems to me to have been knocked on the head by the noble Lord, Lord Hutchinson. Do the Government accept the noble Lord's statistics, which I understand come from the court itself? If so, what has become of the French allegation that they have given up proceedings of extradition from this country because so many of their criminals have been enabled to remain here?
Secondly, do the Government agree with my noble friend Lord Hutchinson that amendments have been made to our laws of evidence which would satisfy the convention and could be put into operation?
Thirdly, I think that at Committee stage my noble friend Lord Hutchinson said that those countries which are demanding that we go against all the principles of our law themselves refuse to extradite their own citizens. Is that true? If so, that again seems to knock on the head the suggestion that those countries have any particular right to demand that we change our law in the way indicated.
Those are matters of fact. I think it is particularly alarming that the Government appear to have alleged 101 statistics which are not facts. Before we come to a conclusion, we should get those three questions cleared up. Certainly it will take much more in the way of argument than has so far been advanced to suggest that we in this country should give up our traditions when there are ways, as I understand it, of meeting the convention without doing so, and when no evidence has been produced that by doing so we shall greatly increase the chances of terrorists and other criminals being properly convicted.
§ Lord Harmar-Nicholls
My Lords, I think we must face up to the fact that we are living in a different world from the world which existed when our procedures were formulated, as described by the noble Lord, Lord Hutchinson. It is a new and different world. The problems, if they are not different, are greater in scope and in the damage that can result. I feel that, quite apart from this Bill, we ought to have in mind making certain that we are bringing ourselves up to date in being able to play our part in bringing ordered government to the rest of the world.
At Committee stage I expressed doubts, and they have been almost completely met. However, perhaps the Minister can clear up one point. The noble Lord, Lord Hutchinson, in explaining the available step by step procedure, said that if the accused wanted to submit his point of view that point of view only came to the Secretary of State after it had been remitted to Bow Street, and not before. I should like to be completely satisfied that the Secretary of State will have the answer of the accused to the documents that he has read before he remits the matter to Bow Street.
§ Lord Hutchinson of Lullington
My Lords, that would take place after he had been committed from Bow Street. The decision would therefore have been made at Bow Street and the accused would be committed to be sent abroad.
§ Lord Harmar-Nicholls
My Lords, that helps me; it clears up my doubts. It is absolutely right that Bow Street should make the decision. As I said in Committee, I feel that after the matter comes back to the Minister, who has the final word. The Minister ought to have the statement from the accused so that before a final decision is made both sides are in his mind and in front of him. That will be done if we accept the amendments. My doubts as expressed at Committee stage have been removed, particularly in view of that intervention.
The final point I wish to make, as a layman intervening in what is almost a monopoly of lawyers, is that in matters such as extradition—and perhaps in other matters as well—I am not certain that the nit-picking which is part of the old procedures and which was applauded in the speech made by the noble Lord, Lord Hutchinson, is a good idea. We may not get out of that the justice which we are all after. On matters such as this, there must be a finishing point so that the matter can be dealt with and brought to a proper end. We must take into account, as my noble friend Lord Boyd-Carpenter has said, that if we accept the terms that enable us to accept the convention, we are keeping in step with our partners. It is not for us to 102 say that they are denying justice by applying their particular procedures.
My doubts, as expressed at Committee stage, are satisfied, and I shall be happy to accept the Bill as it will stand with the amendments that have been put forward by my noble friend.
§ Lord Harris of Greenwich
My Lords, perhaps I may ask the noble Lord a question. He said a few moments ago that he was delighted to hear that the magistrate was going to make the decision and that this was absolutely right. Does he realise that the magistrate will not be making a decision on the evidence?
§ Lord Harmar-Nicholls
My Lords, he will be making the decision. If the objection is to there being no appeal to the Court of Appeal, the final decision will be made by the Secretary of State under the Bill. The Secretary of State will have the accused's own defence in detail so that he can arrive at what he thinks will be a justified decision.
§ Lord Morton of Shuna
My Lords, there is continual reference to Bow Street. I was pleased by the reference in the Bill to the Sheriff of Lothian having something to do with the matter. It is a pleasure to note in Clauses 5 and 6 that Scotland has a jurisdiction. Under these amendments, however, it seems that it has not. The rules in Amendment No. 6 are to be made under the Magistrates' Courts Act 1980 which so far as I know, does not apply to Scotland. The rules in Amendment No. 10 are to be made under the Supreme Court Act 1981. Is there to be a right of judicial review in Scotland or not? If there is, perhaps the noble and learned Lord when he replies, perhaps with some Scottish bias, can make clear those cases that will be regarded as Scottish and those regarded as English. There is nothing in the Bill to decide which case goes where.
§ Lord Denning
My Lords, I should like to say one word. Up to now, in order to extradite a person there has had to be prima facie evidence before the magistrate at Bow Street. I can understand that that involves our obligations under the convention. All well and good; let it be altered. I gather that the Bill gives the decision to the Secretary of State. The particulars have to be put before him. He may have particulars on both sides. He then makes his decision. I agree that this step is in accordance with the convention. There is then the important safeguard in Amendment No. 10 (1G) which states:At any time…the person to whom the order would relate may apply for leave to seek judicial review of the Secretary of State's decision to issue the order".On one point I join with my noble friend Lord Campbell of Alloway. Amendment No. 10 (1M) states:Judicial review may not be granted in respect of an order under this section on the ground that the Secretary of State did not have before him evidence sufficient to justify the making of the order".Judicial review should not be circumscribed in any way. There should be a proper application of judicial review to ensure that the Secretary of State has acted properly.
103 That is my only objection. I join hands with my noble friend Lord Campbell of Alloway that it is all very good except Amendment No. 10 (1M).
§ 4.30 p.m.
§ Lord Mishcon
My Lords, it is correctly said that lawyers perhaps try to take the monopoly of wisdom and discussion in your Lordships' House when matters of this kind are being discussed. It is wrong for the House to think that that is so. The issues here are important for every one of our citizens. It would be an insult to suggest that your Lordships could not readily grasp the issues involved. They are very simple.
The existing law provides that, before we can send out a citizen from our country to a strange one to be charged with an offence, he has to come before a court. We have great faith in our courts, and I hope that we always shall. There is the safeguard not of a transient Minister looking at something from an administrative point of view but of a qualified lawyer who has met with the distinction of being appointed a stipendiary magistrate. The safeguard is that, before someone can be sent by extradition to take his chance before a foreign court, the learned magistrate has to be satisfied that there is a prima facie case against him, not that the case is shown to be proved beyond reasonable doubt. In ordinary language, that means it looks as though he has a case to answer. That has been a safeguard for our subjects for many a long day.
Europe comes along with a convention. Subject to the interesting point as to whether it would be all right to sign the convention but to insist upon the prima facie rule, the Government—without yet having answered the question—are saying to all of us that this age-old protection for our subjects has to go because there is inconvenience somewhere with our European partners. The noble Lord, Lord Harmar-Nicholls, says that we live in different days. I hope that we shall never live in different days in the sense that we shall want to give up without good reason the fundamental principles of the liberty of the subject.
It is suggested, as I say, that the prima facie rule is to be given up. Has anyone paused to think—I say this with all humility—where we are going down this slippery slope? Europe is responsible for our doing this. We do it out of co-operation and friendship because of our membership of the European Community. Is Africa less just than Europe? Is Asia to be deemed less just than Europe? Where is it going to end? How long can we resist the call from other countries not within the European Community when we endeavour to have extradition treaties with them? Are we to say, "You are not as good as Spain"? Spain—as the noble Lord, Lord Boyd-Carpenter, knows from Question Time, especially over issues like Gibraltar and the use of the airport there—"is terrifically reasonable, extremely just." Has Greece had such a history of justice and good government? Possibly it has in centuries gone by, but not in recent times. Are we to say that countries outside the European Community also must have, when they ask for it, exemption from our prima facie rule?
104 I repeat that it is a slippery slope. I believe that the noble Lord, Lord Hutchinson, suggested that there might be some Foreign Office influence being brought to bear. I cannot see much Foreign Office diplomacy in giving way on the prima facie rule to the European Community and being called upon to advise the Foreign Secretary and the Home Secretary, "Do not give way on the prima facie rule when you are entering into a convention with country "Y" which is outside Europe. Tell them they are not as good as the people within the European Community with their system of justice." What a slippery slope that is. It is not a matter for lawyers; it is a matter for responsible parliamentarians to understand.
The Government endeavour to shift us away from that and to do away not only with the prima facie rule but also with anything that suggests that the stipendiary magistrate at Bow Street has any duty at all except to put his rubber stamp on a document. This goes now not to a stipendiary magistrate trained in the law and permanent in his position up to pensionable age. It goes to the transient Secretary of State—a worthy soul at the moment who has, I am sure, the respect of this House wherever we may sit. But who in your Lordships' House would forecast that those words could be used for every one of his successors?
However, it is the Secretary of State, part of the executive branch and not of the judiciary, who in future will have in hand the whole destiny of a subject whose extradition is sought. When the Government moved in that direction, the noble Lord, Lord Boyd-Carpenter, and those in your Lordships' House who fight so zealously for freedom—I say this with no disrespect—spoke up valiantly at Committee stage. They said to the Minister—I am sure I am fairly paraphrasing the speech of the noble Lord, Lord Boyd-Carpenter—that the Minister had better be careful before he tried the loyalty of those who sit on Government Benches. There must be safeguards. The raw clause, as it then appeared, did not commend itself to many Members of the Committee, wherever they sit.
The Government and the Minister took the clause away. I am not going to grumble about the lack of consultation between Committee stage and Report. I shall grumble if there is no real consultation on this issue between Report and Third Reading. On the last sitting at Committee stage we had a discussion about judicial review. Everybody thought, be it lawyer or layman, that this was possibly the answer if you are to move away from the courts to an administrative act of the Secretary of State. At least there would be judicial review.
I humbly rose and said that I thought judicial review would not be available on the issue of raising the adequacy of evidence. The Minister, in his reply, was as honourable and honest as he always is. He said that it was a matter he would have to look into. However, I recall one noble and learned Lord telling me that I was wrong and that judicial review in regard to looking at the evidence available would be open to the subject. The noble and learned Lord who said so is now nodding his wise head. It was the noble and learned Lord, Lord Denning.
105 We now have Amendment No. 10. We have gone away from our old tradition. The courts are not there any more; it is an administrative act. Judicial review, says the noble and learned Lord, Lord Denning—subject to a very wise remark that he made thereafter about subsection (1F)—is to be available. I ask myself: on what? What is the point of a judicial review when one is prohibited from raising the point as to whether there is any evidence at all upon which an extradition order can be made?
Is the point to be made—I am not being facetious with your Lordships—that the Secretary of State was irresponsible that evening and that there is evidence of the fact that he over-indulged himself at a dinner party? Is it to be suggested on judicial review that the Secretary of State did not read the papers? What else can you do if acting on behalf of someone whose extradition is sought but say on judicial review, "But this man is innocent. He says he is innocent, and there is no evidence against him"? But you cannot do it. You cannot do it because of subsection (1M). You are barred.
We are doing something desperately serious here, and I do not, I hope, exaggerate. I am now speaking personally and it may well be that others sitting on my Front Bench who are much more learned than I shall ever be will differ from me. However, I venture to say that to rush into the Division Lobby in support of, "No, in spite of the European convention and everything else, we keep the prima facie case rule and we do it before magistrates alone; we favour that and want it" or to vote for an amendment which shifts the whole of this onto administration and the executive and debars the rights of judicial review on the one material matter that counts, would be sheer recklessness and make a mockery of your Lordships' Division Lobbies.
What really ought to take place is this. The Minister—I say this with respect to the noble and learned Lord the Lord Chancellor—should say that there is enough strength of feeling in this House to justify thinking again before Third Reading, having proper consultation before Third Reading, and arguing out subsection (1M) before Third Reading, to see whether it ought not to go. We need to argue the case for a retention of the powers, rights and traditions which we have had over the centuries and which should not easily be tampered with because of a European convention.
I have one last comment to make after that rather heavy subject. I noticed in Amendment No. 10, as I suppose your Lordships did, one safeguard in subsection (1C):A notice under subsection (1A) above shall explain in ordinary language the right confirmed by subsection (1B) above".I welcome, with all my colleagues in the legal profession, the opportunity of arguing before the court that the whole of the extradition proceedings are a nullity and that the order made could be set aside because I deem the language of this notice not to be ordinary but extraordinary.
§ Lord Trafford
My Lords, I was one of those who expressed reservations about this matter in Committee. Like my noble friend Lord Boyd- 106 Carpenter, I feel that the Government have moved considerably towards meeting many of those reservations. I was fairly happy when I read the amendments, in particular Amendment No. 10, and especially when I reached subsection (1G). However, as has been said by the noble and learned Lord, Lord Denning, my anxieties returned somewhat when I read subsection (1M).
It still seems to me—I hope that the Minister will be able to reassure me on this point—that there is no overwhelming virtue in the retention of that part of the amendment and that its deletion would meet most of the requirements—certainly those expressed on this side of the House, in particular by my noble friend Lord Campbell of Alloway. In all other respects I am grateful to the Minister and to the noble and learned Lord the Lord Chancellor for having met my reservations. On this issue it would seem to me not unreasonable if the Government were to look again at the necessity of retaining subsection (1M) in what is otherwise an excellent series of amendments.
§ Lord Ackner
My Lords, I wonder whether your Lordships will allow me to say just a word on the subject of Amendment No. 10(1M) and in particular on the subject of judicial review. It is not a modern panacea to achieve a form of appeal; it is a procedure to attack, not the merits of the decision, but the decision-making process. It seems to me that there is confusion in thinking that without subsection (1M) there would be a right of appeal on the merits of the decision. Subsection (1M) takes away from the judicial review process one of its vital constituents—that is, the right to challenge an irrational decision, a decision which no reasonable person would make.
Why the Government should require that protection for the Minister I for the moment do not follow. If a Minister has acted wholly irrationally then there should clearly be access to the courts. I think that there may be confusion in thinking that judicial review gives the right to attack the merits of the decision, whereas it attacks only the decision-making process.
That brings me to my second point. When my noble friend Lord Hutchinson mentioned the three constituents of judicial review he referred to the "breach of rules", not completing the vital sentence, "breach of the rules of natural justice". I cannot find anything specific in the amendment that provides to the applicant—the person who wishes to challenge the order—any right to be told the basis upon which the order is sought to be made. The rules of natural justice are merely rules of fair play. I cannot for the moment—no doubt I have misread something—see how the person has the opportunity to make full representations unless he is provided with particularity of the very basis upon which the proposed order is to be made.
Amendment No. 5 seems to make matters worse, because the Minister no longer receives particulars of the facts but particulars of the offence. I cannot find any express provision—no doubt it is my incompetence. I have been involved in other problems earlier in the day. I think that the obligation upon the Minister to give full particulars as to why 107 the order is sought should be spelled out. Without those particulars, the rules of natural justice seem to me to be offended, because one cannot prepare one's answer to the charge unless one knows what the charge is about.
Those are my two points. In short, if judicial review is to be allowed, subsection (1M) should go out, otherwise we emasculate judicial review, and if judicial review is to stay in, with the obligation to make a decision according to the elementary rules of natural justice, there must be a clear obligation to give full details of what is alleged against the person who wishes to make representation.
§ 4.45 p.m.
§ Lord Hutchinson of Lullington
My Lords, before the noble and learned Lord sits down, if subsection (1M) goes, there would still be no possibility of taking a case to review on the sufficiency or credibility of the evidence.
§ Lord Ackner
My Lords, as I understand it, without subsection (1M) one can attack the Minister's decision on the ground that it is irrational. Under judicial review one cannot attack the merits of the decision as one would by way of appeal. As I understand it, judicial review is designed to see that the decision-making process has been conducted in accordance with the law, not irrationally, and in compliance with the rules of natural justice.
§ Lord Moran
My Lords, as a layman, I intervene in this debate with considerable trepidation. I listened carefully to the arguments in favour of the amendment put forward with great eloquence and ingenuity by the noble Lords, Lord Irvine, Lord Hutchinson and Lord Mishcon. But I must confess that I did not find them wholly persuasive.
We are after all talking not about citizens being sent away to some grisly fate but to face a trial in another country in Western Europe. The real question that should concern us is whether a person extradited from this country will or will not receive a fair trial. Consequently, we should, I am sure, only have extradition arrangements with countries where those accused of offences can expect to be given such a trial. It must be for the Government to judge which those countries are.
Having then restricted extradition arrangements to those countries, I think we should make the actual procedures as simple and as expeditious as possible. It is surely right that persons accused of terrorism, fraud, drug trafficking and other crimes should face trial with the minimum of delay in the country where the alleged offence has taken place and that terrorists and murderers should not evade justice because of technicalities.
We know that in the recent past the procedures have not worked well, at any rate for some countries. For a foreign country with a different, but possibly equally valid, legal system, it has often been difficult in practice to prove in a British court that there is a prima facie case against a suspect.
As I understand it, the Spanish Government became so exasperated with their inability to get 108 wanted persons delivered from the United Kingdom to face charges in Spain that they denounced their extradition treaty with the United Kingdom. As a consequence, as we all know, numbers of British criminals were able to settle safely in Spain on what became known as the "Costa del Crime". That was hardly in our interests or those of the Spaniards.
Again when with the help of the Irish Government we have sought to extradite persons wanted to face terrorist charges, our efforts have on a number of occasions been frustrated by the Irish courts on pure technicalities.
As I see it, what has caused the trouble in this country has been the requirement that the requesting state should submit prima facie evidence in a form admissible in English court proceedings. The Government's proposal to remove that requirement seems to me in the light of experience to be fully justified, as we are talking only about those countries which have fair and honest legal systems.
There should, I believe, be the minimum of technical hurdles. There have been too many in the past, so that this country has become something of a haven for criminals, including some accused of the gravest crimes. I think that is wrong. Consequently, we ought, I suggest, to reject Amendment No. 7.
§ Lord Harris of Greenwich
My Lords, I am not quite sure what evidence the noble Lord, Lord Moran, possesses that this country has become a haven for foreign criminals. Having been a Home Office Minister for five years, no such facts were ever drawn to my attention at any ministerial meeting, through the Foreign Office or through any other source. I hope very much that we are going to make a decision about this very grave matter on the basis of evidence and not on the basis of fairly wild assertions of that sort.
The issues before us were very fully deployed during the Committee stage. I took particular notice, and I am sure the Government did also, of what was said by the noble Lord, Lord Boyd-Carpenter, on that occasion, and also what was said by a number of his noble friends.
The noble Lord, Lord Boyd-Carpenter, in his speech this afternoon said that at Second Reading this Bill was oppressive. He said that there is now considerable improvement. He said that there had been substantial alleviations.
I wonder what these substantial alleviations really amount to, particularly after the speech we have just heard from the noble and learned Lord, Lord Ackner. What is this massive sea change with which we are now confronted? What is the huge difference that we now see before us?
There are three issues which have been identified in government Amendment No. 10 and set out in the letter from the Home Secretary to Mr. Stanbrook. The first is that the person in peril of being extradited will see the papers. To be absolutely frank, it never occurred to me that he was not going to see the papers. I am not sure whether on the last occasion the noble Lord, Lord Boyd-Carpenter, took the view that the person in such a situation was not going to see them. It did not occur to me that the Home Office—
§ Lord Boyd-Carpenter
My Lords, if the noble Lord will allow me, I should like to say that the noble Lord referred to me, but I simply point out to him that as the Bill started there was no specific provision that the person concerned should see the papers, and there now is.
§ Lord Harris of Greenwich
My Lords, that is undoubtedly true, and to the extent to which it is set out in the Bill it is now explicit rather than implicit; and that is an improvement. In my view, it is no substantial improvement. It does not represent a major change in the position of the Government.
The two issues which involve substantial change in the position of the Government are these. The first is the question of a judicial review. I do not propose to go over that ground again because the noble and learned Lord, Lord Ackner, dealt with it very fully and I think most of us agree with everything he said.
The other issue is the question of representation. What do representations amount to? What is particularly interesting is: what does the noble Lord, Lord Boyd-Carpenter, imagine that they amount to? I give him the point that it is now spelt out on the face of the Bill. But let us examine again the example which I gave in the debate at Committee stage. A British national returns from Italy. He is not an international terrorist. He may be accused of committing a serious assault on an Italian police officer while on holiday.
The Italian Government ask for him to be extradited. We now know that the magistrate will have no power to examine the evidence on which he makes a determination of the matter. He has no power whatever. The one right the person at risk of being extradited possesses is the right to make representations to the Secretary of State. What does that actually amount to? I should be very grateful if we could have some assistance on this matter from the noble and learned Lord the Lord Chancellor.
Is the accused going to be given an oral hearing? If I may go back to the example I gave at Committee stage, it is alleged by the Italian authorities that he was identified by an Italian police officer as the person concerned and the basis of his defence is that it was a false identification—an error of judgment, either honest or otherwise, by the Italian authorities. Before he is sent to Italy on the basis simply of a process of certification—because that is all we are talking about here—is he going to have the right to have his views on the matter conveyed orally to the Home Office officials who are going to make a recommendation to the Secretary of State?
My suspicion is that he will not have any such right, so I think the noble Lord, Lord Boyd-Carpenter, will find, when the noble and learned Lord speaks, that these major improvements he detected are a result of a rather optimistic evaluation of the Government's position at the moment. Suppose a person is denied the right of making oral representation in what is going to be an act by the executive. I should like to draw the noble Lord's attention to this fact. He cited the example of international terrorism, which is a very serious matter. At the moment, if a person is going to be removed from this country under the terms of the 110 Prevention of Terrorism Act and taken either to the Irish Republic or somewhere else, he has the right to make oral representations to an adviser nominated by the Secretary of State. Is a person in the situation I have described going to have any similar right?
We should have no doubt what we are talking about. To those who constantly use the term "international terrorism". I say that in the overwhelming majority of cases we are not talking today about international terrorists. We are talking about a whole range of people who are accused of different criminal offences. It seems to me essential that there should be the clearest statement from the noble and learned Lord the Lord Chancellor as to what are going to be the rights of the person who wishes to make those representations. Will they be equivalent to those rights under legislation specifically designed to deal with the question of international terrorism? Or will they, as I suspect, be far less substantial?
The other two issues I should like to touch on relate to some of the arguments which have been used to justify this very substantial change in our procedures. We have the letter sent by the Home Secretary to Mr. Stanbrook, dated 12th November, which the Government have very kindly made available to us. They point out the difficulties which have arisen. I have no doubt that difficulties have arisen in a number of cases and it would be foolish to suggest that no problems have ever arisen in extradition cases.
I am sure that the noble and learned Lord the Lord Chancellor will share my surprise at the suggestion that the Austrians have been so remarkably unsuccessful since 1933. It is not perhaps the most powerful argument in the Government's case because of the fact that Herr Hitler was responsible for the affairs of Austria very soon after 1933. I should have thought it mildly surprising if any British court had sent back an alleged offender to Austria in such circumstances.
Finally, perhaps I may ask the noble and learned Lord this question. Given the fact that there is going to be a withdrawal if we accept the Government's proposal of the prima facie rule, what happens if an error is made? What is the attitude of the Home Secretary going to be to the person who is removed to Italy and then found by an Italian court to be innocent of the offence for which he was extradited? The Home Secretary is the person who decided to allow him to be removed to Italy. Two years later, perhaps after the man has been committed and kept in custody in an Italian gaol awaiting trial, it is found that he is wholly innocent of the offence for which he was extradited. Will the Government give him any right of compensation for the error committed in this country? These are interesting questions and many of us look forward to hearing the reply of the noble and learned Lord.
§ 5 p.m.
§ Baroness Macleod of Bone
My Lords, before the noble Lord sits down—I am making a comment, as I may on Report—I am sure that he would not wish the House to think that the noble Lord, Lord Moran, 111 has less knowledge of what he is saying than the noble Lord has. He has just resigned as Ambassador to Portugal and has had a very long history in the diplomatic corps. He therefore knew what he was talking about.
§ Lord Harris of Greenwich
My Lords, I think when the noble Baroness examines what I said she will find that the point she has made has no validity whatever.
§ The Earl of Perth
My Lords, I rise with considerable hesitation for two reasons. One is that I was not present at the Committee stage and the second is that I am no lawyer. Other noble Lords may be in the same position. We may have to go into the Lobby, one way or the other, tonight. The problem seems to me to hang on one single issue; that is, subsection (1M) in Amendment No. 10. I say that because I heard the noble Lord, Lord Campbell of Alloway, and other noble Lords drawing attention to this, particularly the noble and learned Lords, Lord Denning and Lord Ackner. The noble Lord, Lord Mishcon, made the suggestion that the Government should defer this until such time as there has been consultation and then come forward at Third Reading. I can understand that suggestion but I am not sure that it is very satisfactory.
What I hope is possible is that whoever is to answer for the Government will say "Please believe that we shall go ahead on a thorough review of subsection (1M) before we come to Third Reading. On that basis we ask you not to support the amendment". If we had that as an assurance I should feel much happier about which way to go. It goes a long way towards meeting the point of the noble Lord, Lord Mishcon, and it would meet the worries of many of your Lordships who have spoken today.
§ Lord Havers
My Lords, I intervene because I was slightly concerned about the speech of the noble and learned Lord, Lord Ackner. What I say is designed to be helpful to the Minister. I had read Amendment No. 10, subsection (1M) as meaning evidence in its true sense and therefore fitting with the abolition of the prima facie rule. But having heard the noble and learned Lord, for whom I have the greatest respect as a lawyer, I am a little concerned, just as I am a little concerned with the other point which he made about particulars being given to the person who is under the threat of being extradited. That can be easily done, but I should feel more reassured if the Minister either in winding up today or if necessary at Third Reading can give the House an assurance that Amendment No. 10 subsection (1M) was designed to cover the abolition of prima facie and did not go so far as to affect irrationality.
§ Lord Bonham-Carter
My Lords, I hesitate to speak. I speak as a layman and I had not intended to speak. But the arguments I have heard in Committee and this afternoon from the Benches opposite have so astonished me that they have—I was going to say rendered me speechless, but that would be an inaccurate description of what I am doing.
112 The arguments which have been presented to laymen from the Benches opposite seem to me to be in direct contradiction of what I have always believed to be the doctrines of conservatism. It was the noble Lord, Lord Harmar-Nicholls, who said that we were living in a new world to which we must adjust, apparently by adjusting the principles on which our judicial system has been based for many centuries and has grown over many centuries. I think he referred to the extremely convincing speech of my noble friend Lord Hutchinson as nit-picking. I do not say that he necessarily meant that, but if it was nitpicking I think we could do with some more of it in this House.
The arguments that have been put forward are astonishing to me, particularly coming from the Benches opposite. We have been told, first, that we are living in a new world to which we must adjust by abandoning systems of justice that have been developed over hundreds of years. Secondly, we heard from the noble Lord, Lord Boyd-Carpenter, that in the matter of conflicts of interest between the Government and what I think he called judicial procedures or legal procedures—he will correct me if I have the phrase wrong—
§ Lord Boyd-Carpenter
My Lords, the noble Lord could hardly have got my speech more wrong. What I said was that there was a natural affection on the part of lawyers for our traditional procedures—an affection which I share—but that your Lordships' House and the Government had to weigh the matter very carefully when an important matter like the international convention was also in issue.
§ Lord Bonham-Carter
My Lords, I accept the noble Lord's accurate repetition of the words he used, which I remember less accurately than he did.
It is the contemporary patron saint of conservatism, Adam Smith, who said that wherever one saw two producers talking to each other one must assume that there was a conspiracy against the consumer. It is my view that it has been a tradition in British politics that wherever one sees two Ministers talking together one must assume that the interests of the individual public citizen might be at risk and that it is the duty of the Opposition to expose that. I therefore feel that where this careful balance, of which the noble Lord, Lord Boyd-Carpenter spoke, between the preoccupations of lawyers—who in this case I am glad to say are concerned with defending the rights of an individual and, I may say, the rights of the innocent individual—and the interests of the Government, my natural predisposition would be to be in favour of the lawyers and to be highly suspicious of the motives of the Government.
Thirdly, we have had arguments from the opposite Benches, from the Conservative Party, that we must abandon in the case of extradition the principles of natural justice on which we have all been brought up. The Minister shakes his head, but he will have an opportunity later to answer the arguments both of the noble and learned Lord, Lord Ackner, and of my noble friend Lord Hutchinson. Having listened to the arguments today and in Committee, I am fairly convinced that we are being asked to abandon the 113 rules of natural justice on which I have been brought up, which every employer has to follow, which every officer in the army has to follow and on which the whole basis of British justice is built. I find it truly astonishing that the great Conservative Party of Edmund Burke should be advocating this here today. It was he who said that we have a responsibility for the past, we have a responsibility for the present and we have a responsibility to those who have still to be born. It seems to me that those responsibilities are being abandoned in a cavalier way.
Fourthly, the Government are asking us to abandon, to deny or to give up the separation of powers on which our constitution has not been written but on which it has always been based. In the distinction between the role of the judiciary and the role of Ministers the Minister is being asked to act in a judicial capacity. The separation of powers is something which we should preserve.
We have been given three arguments why these major abandonments of important traditions are found to be acceptable. First, the noble Lord, Lord Boyd-Carpenter, told us that he cannot believe that the Government would have done it unless it was necessary. I confess that I find that argument less than convincing. When I see the things that this Government have done I find it most unconvincing.
Secondly, we are told that significant concessions have been made. The speeches of the noble Lords, Lord Hutchinson and Lord Mishcon, have made it clear that those concessions are cosmetic, transparent and virtually without value. Thirdly, we are told that we have to do it because we are members of the European Community. Like the noble Lord, Lord Hutchinson, I have long been a passionate advocate of our joining the European Community. Indeed, in 1958 I tried to move an amendment in the other place advocating just such a course when the party opposite was resolutely opposed to it. But still I believe that there are other ways in which we can be good members of the European Community without abandoning the heritage of British law.
Nor, as some people have suggested, are we saying that English law is better than anybody else's law. All we are saying is that English law is our law. We have developed it and we have found it satisfactory. We think it should be preserved. I hope that noble Lords on the Benches opposite will remember their old traditions and their historic role and will conserve the traditions of English law.
§ Lord Sefton of Garston
My Lords, I did not intend to speak and I hoped that somebody else would say what I am about to say. I shall be very brief. The noble Lord, Lord Moran, said or implied that really we are not talking about the be all and end all of a serious matter but are only sending somebody to be tried in a court that we consider to be just. That is a brief summary of what the noble Lord said. Nobody replied to that. It seems to me that that accepts the proposition that through a process of what may be law in this country an individual, one of our kinsmen, can be sent abroad to be tried for a crime. Is that not rather serious? I rather suspect that in his journeys 114 around the world the noble Lord, Lord Moran, has lost touch with ordinary people.
I have recently experienced the suffering of people being extradited who maintained that they were innocent. I have seen their families go through torment and anguish. They claimed that they were innocent. But here we are talking about extraditing somebody and seeming to imply that it is not a serious move. Of course it is a serious move and of course one could be tearing a family to pieces. One could be doing it on the basis of removing the right of a person to give evidence and for that evidence to be examined before he is committed to what, for him, is a terrible situation. It is a right that this Chamber has always advocated.
§ 5.15 p.m.
§ The Lord Chancellor
My Lords, in seeking to deal with the matters of principle that arise on Amendment No. 2 and the later amendments to which the noble Lord, Lord Irvine, has referred, it is important to begin by looking at the background against which this question arises. A number of noble Lords have indicated some degree of hesitation in entering this debate on the basis that they are not lawyers. I should like to start by giving my understanding of the procedure that we have in mind as a result of the various amendments which the Government have proposed, taken along with the original proposals.
The noble Lord, Lord Bonham-Carter, talked about the separation of powers. It is vitally important to remember that the extradition procedure with which we are dealing starts with a judicial act in the foreign state. It is a judicial warrant issued in the foreign state as part of a criminal process in that state. It is not started by a foreign government. It is started by a judicial officer in a foreign state as a result of proceedings taken before him. The second point is that before this requirement that is fundamental to these amendments is dispensed with, there must be a mutual recognition between the United Kingdom and the foreign state that the system of justice in that foreign state is sufficiently acceptable to enable this requirement, which I shall call the prima facie rule for the moment, to be dispensed with in this country.
What happens is this: the judicial officer in the foreign state, the requesting state, issues a warrant. He issues it on the basis of information which has been put before him. We have concluded after examination of the matter that that is a reasonable judicial proceeding as part of an accepted system of law.
It is traditional and obviously convenient that instead of courts communicating directly, one to another, requests from one court in one country to the courts of another country should go through the diplomatic channels of those countries. Accordingly, when it comes to executing a warrant issued, let us say, in France, in this country the request must come through the Government. But when that request comes, according to Clause 4 of the Bill, as amended, 115 in the light of the provisions that we are now considering there shall be furnished:particulars of the person whose return is requested; the particulars of the offence of which he is accused or was convicted (including information sufficient to justify the issue of a warrant for his arrest under this Part of this Act); in the case of a person accused of an offence, a warrant for his arrest issued in the foreign state".It is essential that these particulars, plus the warrant, come with the request. That is the foundation of the proceeding. That is the same kind of proceeding as would apply against a person resident in that state.
It is important to bear in mind that the basic extradition Act of 1870 on which this has been grafted generally applies only to offences committed within the territorial jurisdiction of the requesting state. As many of your Lordships know, it is perfectly possible in some foreign systems for the state to try offences committed outside its geographical boundaries. If there is a system of that kind available, where, for example, France can try its nationals for an offence committed beyond France, it is perfectly natural that it should prefer to try these nationals itself rather than send them abroad to the other country.
However, our system of law is and has always been that the procedures for trial in this country are of such a kind that it is extremely difficult to have extraterritorial criminal jurisdiction, and accordingly our courts generally will only deal with offences committed within the territorial jurisdiction of the United Kingdom. There is an exception in relation to murder, manslaughter and the Scottish equivalent, culpable homicide, but generally these are the rules. One has to have that in mind in comparing our system with other systems. It was said that some foreign systems do not allow their own nationals to be extradited. They may cope with that by trying them themselves for offences committed abroad. But when we do not have that we must take account of it in considering our extradition arrangements.
The warrant arrives with the supplementary particulars and information to which I have referred. It is then the subject of an order to proceed by the Secretary of State issued to a judicial officer in this country. Up until now the situation was that such extradition matters to be dealt with by a judicial officer in this country were to be dealt with by the police magistrate at Bow Street. This Bill recognises that there is a possibility of justice being dispensed in Scotland in extradition matters and makes provision accordingly, which I am sure your Lordships would welcome.
The result is that there is a judicial hearing at Bow Street. At Bow Street the judicial hearing will be concerned with three principal questions. The first is whether the person subject to the arrest in this country and brought before the magistrate in Bow Street—I am taking Bow Street now as the paradigm example—is the person whose extradition has been sought and who is the subject of the foreign warrant. That is the first question. The second question is whether the offence, or offences, in respect of which his extradition is being sought are indictable offences within the meaning of the statute. The third question is whether these offences or any of them are political 116 offences, in which case no warrant of commital would be granted.
The magistrate at Bow Street has to deal with these matters as a judicial officer. He is proceeding on the basis of the warrant granted by his colleague in the requesting state. He deals with it dealing principally with the questions to which I have referred. Of course he is open to argument and evidence, for example, that the offence in question is a political one and that no warrant of committal should be granted.
At this stage the accused has had the judicial process in Bow Street: he has had served on him a copy of the material provided under Clause 4; and he has now got a warrant from the magistrate at Bow Street against him authorising his committal for extradition. What is proposed is that at that stage the accused person should have the fullest opportunity of representing whatever he likes to the Secretary of State against the extradition. Any reason he has; any reason he may have.
At this stage I should like in passing to mention the example that the noble Lord, Lord Harris of Greenwich, gave of some person whose extradition was sought to Italy, and was contending that the indentification in Italy was mistaken. Of course, as your Lordships who understand the phrase "prima facie evidence" know, the question of whether the evidence is credible or incredible, whether it is wrong or right, is a question that will have to be decided at the trial. If there is evidence from somebody who indentifies the person, and that evidence is competently given in proper form, then there is prima facie evidence that that was the person.
In this procedure which we are proposing the Home Secretary would have perfect entitlement to consider as part of the representation a question such as the noble Lord, Lord Harris of Greenwich, raised. He could represent that the evidence of this Italian policeman was subject to various difficulties, various inhibitions, possibly something about the lighting or the circumstances in which the evidence was given. The Home Secretary would be perfectly entitled to consider that and consider the weight to be attached to it, and, if he thought that representation was a good one, to give effect to it.
§ The Lord Chancellor
The noble Lord asks me a question somewhat silently but sufficiently for me to pick it up. He asks how would the Home Secretary know? Well he would know in exactly the same way as the magistrate at Bow Street would know, because the magistrate at Bow Street is not to decide the case. He is not there to try the case. Conflicts of evidence are, generally speaking, matters for trial but the Home Secretary would certainly have a right to look at, and a duty to look at, the representations in the light of all the circumstances, and he might well feel that the representations were sufficiently strong for him in the exercise of his discretion—because he has no duty to order extradition—not to allow this person to be extradited.
The representations are representations at the conclusion of the judicial proceedings at Bow Street, and any representations are open. There is a full and 117 unrestricted right to make representations. Of course the Secretary of State in considering these representations might well find it necessary to follow them up, for example, with a request for further information to the requesting state, or the like.
At that stage, when he had considered fully the representations and all the other matters before him, the Secretary of State would have a duty to come to a conclusion. That conclusion, if it was against the person to be extradited, would be in the form of a notice of intention to proceed. At that stage the amendments that we propose provide that the intention will not be given effect to until after an interval sufficient to enable an application for judicial review to be made. That application for judicial review would be open on all the grounds on which judicial review has been developed by the courts of this country as a safeguard for the propriety of administrative action.
My noble and learned friend Lord Ackner has described these, and I would not venture to repeat what he said. He pointed out that the process of judicial review is a process basically to ensure that the decision-making process has been properly carried through; that the matters that have to be considered have been properly considered, and that rules of law which apply have been properly applied.
This brings me to Amendment 10 and in particular to the last part of that amendment on page 3 of the Marshalled List, which has been the subject of somewhat distinguished criticism. This is (1M), which provides:Judicial review may not be granted in respect of an order under this section on the ground that the Secretary of State did not have before him evidence sufficient to justify the making of the order.My noble and learned friend Lord Ackner was inclined to criticise this provision on the ground that whoever thought of it did not fully understand judicial review. Well, I of course can see that views may differ upon these matters, but the idea behind this subsection (1M), was to prevent the requirement of prima facie evidence, or sufficient evidence, coming in by a back door. Not to impose some special restriction on judicial review, but to prevent the substitution of a requirement of this kind in judicial review for the requirement that presently obtains in respect of the magistrate at Bow Street.
These are the procedures and I do not think, with respect, that anyone who has surveyed the judicial creativity that has been exemplified by the development of judicial review over the past period, particularly in England and Wales, can doubt the ability of the courts to secure justice in these matters. There is certainly no attempt in these clauses and these amendments in any way to limit or inhibit the courts' power to do that; to secure that the decision is reached in accordance with the principles of natural justice and fair play according to the rule of law.
The criticism that has been offered of these proposals as I understand it—and I think it would take me unduly long to deal with all of it in detail—is to some extent founded on the misapprehension that the case does not start with a judicial act in the foreign jurisdiction in a legal system which is 118 recognised as being a fair and reasonable legal system operating in that country. I think it is fair to say that over the years what has been called the prima facie rules as applied in practice has been found to give rise to extreme technicality. Various noble Lords have said that it is a simple requirement. It is not so simple to put into English and perhaps that is the reason why the phrase "prima facie rule", or "prima facie evidence", has been used instead of the English.
If one looks at the phrase "sufficient evidence to justify a committal for trial", or something of that kind, it must be sufficient in accordance with the laws of competency in English law, if we are dealing with a jurisdiction exercise at Bow Street. That is by no means a simple matter. Many technical questions have arisen, some of them reaching your Lordships' House in a judicial capacity. I think that I am entitled to say that the judgment of my right honourable friend the Secretary of State for Home Affairs is that the result of the technicalities that have been put in the way of foreign states in seeking extradition in this country is such that a considerable number of people who, in his judgment, if matters were regarded as dealt with on the basis of pure justice, should be extradited are not, in fact, extradited.
The noble Lord, Lord Hutchinson of Lullington, has reminded me that he earlier mentioned the figure seven. I intended to deal with that point in any event but perhaps I should deal with it now. The noble Lord said that if one looks at the results in Bow Street seven cases failed because of the absence of sufficient evidence. Most people who think of starting legal proceedings first see whether or not they are likely to succeed. If for some reason they conclude that they will not be successful then they do not start those proceedings. The noble Lord is referring to the lack of success in cases which have started. However, I do not think that there is any doubt that there are formidable difficulties in the way of foreign extradition of this kind.
One of the difficulties arises from the circumstance to which I have drawn attention and which, in my view, is fundamental. The process starts with an order of a foreign judicial official. That Government cannot influence the process. Can noble Lords imagine a Minister in this country telling the magistrate at Bow Street how to carry out his business? Equally, can noble Lords imagine a judge in a European country—let us say Switzerland—being told by the executive how to carry out his judicial business? There is no doubt that they have found it extremely difficult to present the material in a way which complies with the requirements of English law.
In case it is thought that the matter of prima facie evidence is fundamental to our system, it is worth pointing out, first, that in cases of extradition requested by the Republic of Ireland the prima facie rule does not apply. It is entitled to extradition on a backed warrant because of the history of our connection. The authorities in the Republic of Ireland will proceed on a proper judicial determination in this country. Therefore it is not correct to say that this requirement has been fundamental to all extradition. It is true to say that it has been a requirement under the Extradition Act 119 1870 and that a similar requirement arises under the Fugitive Offenders Act which applies in the Commonwealth.
That does not mean that there are no safeguards for individual liberty except the prima facie rule. There are other ways of dealing with the matter. When my noble friend Lord Caithness dealt with the matter in Committee and said the words to which the noble Lord, Lord Irving of Lairg, referred, he was referring to the fact that in Scotland committal before magistrates on the basis of prima facie evidence is not a requirement of proceeding to trial. The act of putting someone on trial in Scotland is essentially an administrative act of the law officers and their deputes. In practice in Scotland, as a result of long tradition, that has been thought to be a sufficient safeguard for not being put on trial improperly.
In this case we are saying that in the present state of the development of the law of a number of countries to which the provision would be applied, the stage has been reached when we have sufficient confidence in their procedures that warrants for committal will not be granted unless there are sufficient grounds to merit going to trial. That is what this matter is about: the preliminary stage enabling a trial to proceed.
As the noble Lord, Lord Harris of Greenwich, said, the result may be an acquittal. In the same way, people in this country are committed to prison, their family life is severely disrupted by having to wait sometimes for a long period before going to trial (as anyone who knows about prison will confirm) and then they are perhaps acquitted.
Sadly, as a necessary consequence of seeking to do justice, the same may occur in the case of extradition. However, there is generally no greater hardship in that than there is in the situation that I have just described. In recent times the experience of extradition has shown that some foreign countries are more liberal as regards releasing people than procedures here would suggest. It is not without notice that some of those people extradited in connection with the case in Belgium have been released by the Belgian authorities, although they were committed by the authorities in this country in a case that eventually reached your Lordships' House.
In my submission to your Lordships, the principle that we are seeking to establish here is important in giving proper effect to the development of international co-operation in connection with the suppression of crime. It is a logical step when one recognises the strengths of the legal systems of others as well as our own. I believe that in order to accede to the convention it will not be necessary for us to accede to it fully. Of course, we could have a reservation but the real justification for this advance in our legislation is that the result will be effective. We want effective co-operation in relation to this matter across purely national boundaries, between legal systems with mutual respect for one another. For that reason I submit to your Lordships that the amendments in principle should be approved.
A good deal has been said by authorities entitled to great weight about the wording of Amendment 120 No. 10 relating to Clause 9 (1M). I have already explained to the House the purpose of that clause; namely, to prevent the requirement of what I have called prima facie evidence, or sufficient evidence, to be taken out by one hand and put back into judicial review by the other. As was pointed out by the noble and learned Lord, Lord Ackner, it is not necessary if one properly understands what judicial review is about. It was included as a matter of caution in order to prevent it being thought that we were bringing in by the back door what we were taking out by the front door. However, if your Lordships see fit to decline to agree to the amendment proposed by the noble Lord, Lord Irvine of Lairg, I shall undertake to look again at the wording of Clause 9 (1M) to see whether we can take account of the concerns which have been expressed in order that the principle which I have tried to describe comes through clearly and unambiguously. For those reasons I invite your Lordships not to agree to the amendment.
§ Lord Elwyn-Jones
My Lords, before the noble and learned Lord sits down, is he prepared to give an undertaking to the House in regard to subsection (1M)? That will make a good deal of difference to the attitude that the House may take about a vote at this stage.
§ The Lord Chancellor
My Lords, I am perfectly prepared to give an undertaking to the House that we shall look again at the precise wording of Clause 10 (1M) in order to ensure that it has only the effect which I have sought to explain to your Lordships and not any greater effect. Such is the purpose that we had in mind in putting in Clause 10 (1M), and I certainly give that undertaking. I am of course asking your Lordships to decide now on the fundamental principle of these various amendments. However, I certainly undertake to reconsider the precise wording of Amendment No. 10 (1M).
Since the noble and learned Lord has kindly brought me to my feet, I should perhaps say something in answer to the noble Lord, Lord Morton of Shuna, who pointed out that these proposed amendments did not perhaps entirely meet with the specialties of the Scottish system. It will not surprise him to learn that, because of the history of extradition matters and the fact that so far they have been confined to Bow Street, the full detail of the Scottish aspect of these amendments has not been completely finalised. I hope that at Third Reading we shall be able to satisfy him in detail on that matter.
§ Lord Irvine of Lairg
My Lords, having neither planned nor desired to open this debate, I find myself in the equally unsought position of replying to it. The noble and learned Lord the Lord Chancellor spelt out what I may call a paradigm of an extradition request commencing in Europe, in which the first step would be a judicial act. There would of course be an anti-judicial act and that would be the decision of the executive or the police authorities to set the procedure in motion. The matter would then come to this country.
From much that the noble and learned Lord said, I received the impression that he did not hold the 121 prima facie requirement in English law as a particular safeguard which he valued or cherished. The noble and learned Lord told the House that the prima facie safeguard does not apply in Scotland in ordinary criminal cases when the sheriff commits for jury trial in Scotland. Scotland departs from England in that, but for quite separate, historic reasons. It is quite different in extradition cases, because in extradition cases the prima facie requirement always applies.
Be that as it may, it is nothing to the point. The only concern that I should like to express in replying to this debate is whether the noble and learned Lord's reliance upon the absence of the prima facie safeguard in ordinary Scottish criminal cases indicates some lack of regard for the prima facie case in general and heralds an attempt in the future to remove the self-same safeguard in ordinary committals for trial in England.
I take it to be self-evident and not disputed by any serious argument advanced in this House that the prima facie safeguard is of great value. It applies in every domestic case in this country and there is no question of its being removed there. The proposed legislation to which we object will achieve a standard of justice enjoyed by our citizens in extradition cases lower than that which they enjoy in ordinary criminal cases in this country. Once that basic proposition is accepted, one must ask what principle of comity with our European friends requires us to remove a safeguard whose value everyone acknowledges.
As the noble Lord, Lord Grimond, pointed out, there are many European countries that simply will not extradite their own nationals. Therefore, I ask why we should diminish a cherished and valued civil liberty which our nationals enjoy, when on the whole those countries to which we are referring will not extradite their nationals to us. We are willing to extradite our nationals to them, subject to the safeguard of the prima facie requirement.
In the course of the debate the noble Lord, Lord Moran, raised the suggestion that this country is a haven for criminals. On that subject, I should have thought that the statistics obtained recently from Bow Street by the noble Lord, Lord Hutchinson of Lullington, are statistics which stand, so far as this debate goes, as unanswered and reassuring. All that is said is pure assertion, unsupported by anything that merits the name of evidence; namely, that there are applications that otherwise would be made but are not made by foreign countries because of the prima facie protection.
I find it an entirely plausible view that, ours being a country with sea boundaries and well-regulated airports, it simply does not have the same problems in that regard as have countries with borders that are more regularly and easily crossed. I do not for one minute accept that there is any evidence that this country is a ready haven for criminals in comparison with other European countries. I think it intrinsically likely that we are not. The figures put forward by the noble Lord, Lord Hutchinson of Lullington, for successful applications for extradition made by European countries to our courts show that, when those countries bestir themselves to comply with our 122 perfectly reasonable procedures, such applications are well able to succeed.
One comes to the provision that the Government have brought forward which was designed to meet the anxieties expressed from many quarters in the course of the debate in Committee. Looking at Amendment No. 10, subection (1B) reads:The person to whom such an order would relate shall have a right to make representations … as to why he should not be returned to the foreign state".Having listened to the whole of this debate with a deal of care, I am left in some doubt about the content of the representations that that person may permissibly make.
Then subsection (1C) states:A notice under subsection (1A) above shall explain in ordinary language the right confirmed by subsection (1B)".I think that, should someone who is responsible for carrying that injunction into effect set out to explain in ordinary language what the right consists of, he will have the gravest difficulty in explaining in ordinary language the content of that right.
I turn to the vexed subsection (1M). Having listened to the noble and learned Lord, Lord Havers, I am bound to say that I too gave subsection (1M) precisely the sense that he did. I understood that it underscored the fact that the prima facie protection had gone and that the subsection was, as it were, for the avoidance of doubt; so that no one should think hereafter that the Secretary of State, as the recipient of the representations, could be placed in the position of the Bow Street magistrate and be required to hear and consider representations on the evidence. I understood from the remarks of the noble and learned Lord the Lord Chancellor that that is indeed the intention.
However, it is of course noteworthy that, as I understood him, that is not how the matter at first sight struck the noble and learned Lord, Lord Ackner. He rightly made the point that judicial review is not a modern panacea to achieve a new form of appeal in which the merits of the underlying decision under challenge are examined by the court. As the noble and learned Lord said, judicial review attacks the correctness of the decision-making process rather than the merits of the decision itself.
The noble and learned Lord's concern was that that provision would take away from the judicial review process the right to challenge the decision as irrational. But how does one attack a decision on the basis that it is irrational because there is no evidence to support it if the Secretary of State is under no obligation to consider the evidence? It is precisely because the Secretary of State is under no obligation to consider the evidence, that the decision of the Secretary of State cannot be challenged as irrational on the grounds that there is no evidence to support it.
It was precisely for that reason that when I ventured to open the debate I made the point that the House must recognise that if someone went along to the Secretary of State and made representations saying, "Well, here are signed statements from all manner of reputable witnesses who would like to be heard by you, if you will hear them, to demonstrate beyond peradventure that these assertions"— 123 because particulars are only assertions; they are not evidence—"are unfounded" the Minister would have to say something like, "Well, then, you cannot say that I am being irrational in saying that you must go there, because you put in front of me evidence which you say shows conclusively that you did not commit this offence. It is no part whatever of my function to consider all the evidence that goes to guilt or innocence. Therefore, because Parliament has legislated away the prima facie requirement—Parliament did not intend to retain it; Parliament did, indeed, put in subsection (1M), as the noble and learned Lord, Lord Havers, correctly said in my submission, so as to underscore it—the prima facie requirement has gone. So I have considered your representations, to the extent that I can, but the one thing that I cannot consider is all the evidence that you would have me consider which goes to guilt or innocence."
I think that the noble and learned Lord the Lord Chancellor said that there were certain respects in which the Secretary of State would consider and evaluate evidence. I understood that to be in reply to a point which the noble Lord, Lord Harris of Greenwich, made. As I understood him, the noble and learned Lord the Lord Chancellor indicated—but I may be wrong—that where there was a pure issue of identification in a case, then the Secretary of State would consider evidence in relation to it. But, as I understood him, he was not saying that the Secretary of State would or, indeed, could consider evidence going to guilt or innocence in the generality of the case. That being so, I am left somewhat puzzled as to how the Secretary of State both could, and would, as regards the procedures that he would apply, consider evidence in relation to identification.
Therefore, I further invite the noble and learned Lord to say whether, in view of the doubts that have been expressed and the difficulties of interpretation that have arisen in relation to subsection (1M), and its precise scope in relation to the identification cases that the noble and learned Lord appeared to envisage, the proper course today would not be to press the amendment to a vote, but instead to take time for consultation and further consideration about the entire subject matter of Amendment No. 10.
§ 5.54 p.m.
§ On Question, Whether the said amendment (No. 2) shall be agreed to?
§ Their Lordships divided: Contents, 121; Not-Contents, 194.125
|DIVISION NO. 1|
|Airedale, L.||Ardwick, L.|
|Amherst, E.||Aylestone, L.|
|Ampthill, L.||Barnett, L.|
|Annan, L.||Basnett, L.|
|Birk, B.||Longford, E.|
|Bonham-Carter, L.||Lovell-Davis, L.|
|Boston of Faversham, L.||McCarthy, L.|
|Bottomley, L.||McGregor of Durris, L.|
|Brockway, L.||McIntosh of Haringey, L.|
|Brooks of Tremorfa, L.||McNair, L.|
|Bruce of Donington, L.||Mais, L.|
|Burton of Coventry, B.||Mason of Barnsley, L.|
|Campbell of Eskan, L.||Milford, L.|
|Carmichael of Kelvingrove, L.||Mishcon, L.|
|Carter, L.||Molloy, L.|
|Chitnis, L.||Morris of Kenwood, L.|
|Cledwyn of Penrhos, L.||Morton of Shuna, L.|
|Cocks of Hartcliflfe, L.||Mulley, L.|
|David, B.||Nicol, B.|
|Davies of Penrhys, L.||Ogmore, L.|
|Dean of Beswick, L.||Oram, L.|
|Diamond, L.||Paget of Northampton, L.|
|Donaldson of Kingsbridge, L.||Perry of Walton, L.|
|Dormand of Easington, L.||Peston, L.|
|Elwyn-Jones, L.||Pitt of Hampstead, L.|
|Ennals, L.||Ponsonby of Shulbrede, L. [Teller.]|
|Evans of Claughton, L.|
|Ewart-Biggs, B.||Prys-Davies, L.|
|Falkland, V.||Rea, L.|
|Fisher of Rednal, B.||Ritchie of Dundee, L.|
|Foot, L.||Robson of Kiddington, B.|
|Gallacher, L.||Ross of Marnock, L.|
|Galpern, L.||Sainsbury, L.|
|Gladwyn, L.||Seear, B.|
|Glenamara, L.||Sefton of Garston, L.|
|Graham of Edmonton, L.||Serota, B.|
|Gregson, L.||Shepherd, L.|
|Grey, E.||Silkin of Dulwich, L.|
|Grimond, L.||Simon, V.|
|Hampton, L.||Simon of Glaisdale, L.|
|Harris of Greenwich, L.||Stallard, L.|
|Hatch of Lusby, L.||Stedman, B. [Teller.]|
|Hayter, L.||Stoddart of Swindon, L.|
|Heycock, L.||Taylor of Blackburn, L.|
|Houghton of Sowerby, L.||Taylor of Mansfield, L.|
|Howie of Troon, L.||Thomas of Swynnerton, L.|
|Hughes, L.||Tordoff, L.|
|Hunt, L.||Underhill, L.|
|Hutchinson of Lullington, L.||Wallace of Coslany, L.|
|Irvine of Lairg, L.||Wedderburn of Charlton, L.|
|Jacques, L.||Wells-Pestell, L.|
|Jay, L.||Whaddon, L.|
|Jeger, B.||White, B.|
|Jenkins of Putney, L.||Wigoder, L.|
|John-Mackie, L.||Williams of Elvel, L.|
|Kearton, L.||Wilson of Rievaulx, L.|
|Kennet, L.||Winchilsea and Nottingham, E.|
|Kirkhill, L.||Winstanley, L.|
|Llewelyn-Davies of Hastoe, B.||Wyatt of Weeford, L.|
|Lloyd of Kilgerran, L.||Ypres, E.|
|Abinger, L.||Brookeborough, V.|
|Ackner, L.||Brougham and Vaux, L.|
|Airey of Abingdon, B.||Broxbourne, L.|
|Alexander of Tunis, E.||Bruce-Gardyne, L.|
|Allerton, L.||Butterworth, L.|
|Arran, E.||Buxton of Alsa, L.|
|Astor, V.||Caccia, L.|
|Beaverbrook, L.||Caithness, E.|
|Belhaven and Stenton, L.||Cameron of Lochbroom, L.|
|Beloff, L.||Campbell of Alloway, L.|
|Belstead, L.||Campbell of Croy, L.|
|Benson, L.||Carnegy of Lour, B.|
|Bessborough, E.||Carnock, L.|
|Blatch, B.||Cathcart, E.|
|Blyth, L.||Chelmer, L.|
|Borthwick, L.||Chelwood, L.|
|Boyd-Carpenter, L.||Colnbrook, L.|
|Brabazon of Tara, L.||Colville of Culross, V.|
|Bramall, L.||Constantine of Stanmore, L.|
|Broadbridge, L.||Cork and Orrery, E.|
|Cottesloe, L.||Mersey, V.|
|Cowley, E.||Milverton, L.|
|Cox, B.||Monk Bretton, L.|
|Craigavon, V.||Montgomery of Alamein, V|
|Craigmyle, L.||Moran, L.|
|Craigton, L.||Morris, L.|
|Cranbrook, E.||Mottistone, L.|
|Crickhowell, L.||Mountevans, L.|
|Croft, L.||Mountgarret, V.|
|Cullen of Ashbourne, L.||Munster, E.|
|Dacre of Glanlon, L.||Murton of Lindisfarne, L.|
|Davidson, V. [Teller.]||Nelson, E.|
|De La Warr, E.||Newall, L.|
|Denham, L. [Teller.]||Norrie, L.|
|Denning, L.||Nugent of Guildford, L.|
|Dilhorne, V.||Orkney, E.|
|Donegall, M.||Orr-Ewing, L.|
|Dundee, E.||Oxfuird, V.|
|Eccles, V.||Pender, L.|
|Eden of Winton, L.||Penrhyn, L.|
|Edmund-Davies, L.||Perth, E.|
|Elibank, L.||Peyton of Yeovil, L.|
|Ellenborough, L.||Portland, D.|
|Elliot of Harwood, B.||Prior, L.|
|Elliott of Morpeth, L.||Radnor, E.|
|Ely, Bp.||Rankeillour, L.|
|Erne, E.||Reay, L.|
|Erroll of Hale, L.||Reigate, L.|
|Faithfull, B.||Renwick, L.|
|Fanshawe of Richmond, L.||Rochdale, V.|
|Fortescue, E.||Rodney, L.|
|Fraser of Kilmorack, L.||Romney, E.|
|Fraser of Tullybelton, L.||St. Davids, V.|
|Gisborough, L.||St. John of Fawsley, L.|
|Glenarthur, L.||Salisbury, M.|
|Grantchester, L.||Saltoun of Abernethy, Ly.|
|Gray of Contin, L.||Sanderson of Bowden, L.|
|Gridley, L.||Selkirk, E.|
|Grimston of Westbury, L.||Sempill, Ly.|
|Grimthorpe, L.||Shannon, E.|
|Harmar-Nicholls, L.||Sharples, B.|
|Harvington, L.||Shaughnessy, L.|
|Havers, L.||Skelmersdale, L.|
|Hertford, M.||Slim, V.|
|Hesketh, L.||Somers, L.|
|Hives, L.||Stodart of Leaston, L.|
|Holderness, L.||Strange, B.|
|Hood, V.||Strathcarron, L.|
|Hooper, B.||Strathclyde, L.|
|Hunter of Newington, L.||Sudeley, L.|
|Hylton-Foster, B.||Suffield, L.|
|Ilchester, E.||Swinfen, L.|
|Johnston of Rockport, L.||Terrington, L.|
|Joseph, L.||Teviot, L.|
|Kaberry of Adel, L.||Teynham, L.|
|Kimball, L.||Thomas of Gwydir, L.|
|Kimberley, E.||Thorneycroft, L.|
|Kinloss, Ly.||Thurlow, L.|
|Kinnaird, L.||Torrington, V.|
|Lane-Fox, B.||Trafford, L.|
|Lauderdale, E.||Tranmire, L.|
|Lloyd of Hampstead, L.||Trefgarne, L.|
|Lloyd-George of Dwyfor, E.||Trumpington, B.|
|Long, V.||Ullswater, V.|
|Lucas of Chilworth, L.||Vaux of Harrowden, L.|
|McFadzean, L.||Vinson, L.|
|Mackay of Clashfern, L.||Waldegrave, E.|
|MacLehose of Beoch, L.||Ward of Witley, V.|
|Macleod of Borve, B.||Westbury, L.|
|Manton, L.||Whitelaw, V.|
|Mar, C.||Wilberforce, L.|
|Margadale, L.||Windlesham, L.|
|Marley, L.||Wise, L.|
|Marsh, L.||Wolfson, L.|
|Marshall of Leeds, L.||Wynford, L.|
|Masham of Ilton, B.||Young, B.|
|Merrivale, L.||Young of Graffham, L.|
§ Resolved in the negative, and amendment disagreed to accordingly.126
§ 6.5 p.m.
§ Clause 3 [General restrictions on return]:
The Lord Chancellor moved Amendment No. 3:
Page 4, line 47, leave out ("facts in respect of which his return was ordered") and insert ("particulars furnished under section 4(2)(b) below").
§ The noble and learned Lord said: My Lords, this is one of the amendments to which I spoke when moving Amendment No. 1. I beg to move.
§ On Question, amendment agreed to.
Lord Hutchinson of Lullington moved Amendment No. 4:
Page 4, line 48, leave out from ("ordered") to end of line 3 on page 5.
§ The noble Lord said: My Lords, I intend to move this amendment, though it is not one of a group. I wonder whether it is right to move it at this stage. I understand that it is right, so I shall move it. Your Lordships will have to forgive me, because this amendment is not grouped with the others and is separate. Therefore I shall move it.
§ The amendment refers to Clause 3, which covers general restrictions on return. Your Lordships will have realised that the Secretary of State has overwhelming powers in a case where Clause 6(4), which we have been debating applies. He has power to issue an authority to proceed under Clause 4(1) on receiving a request from the foreign state on the particulars and facts supplied by that foreign state and, as we know, on no criteria and on no principle.
§ One of the basic safeguards of our extradition law for the past 100 years has been what is called the speciality rule, which is that a person shall not be charged with another and different offence from that on which the foreign state has put forward its case for extradition. In this Bill, under Clause 3(4), we see the speciality rule spelt out, and a person shall not be returned to a foreign state unless provision is made by the law of that state for securing that he will not be dealt with in that state for any offence committed before his return, other than,
- "(a) the offence in respect of which his return is ordered;
- (b) an offence … which is disclosed by the facts"
That is perfectly sensible and is a safeguard against a state asking for the extradition of someone on an inoffensive offence, and then when they get him back charging him with a far more serious offence or an offence of a completely different nature. But paragraph (c) of subsection (4) reads:
subject to subsection (6) below"—
it need not worry us; it merely means that it must be lawful—
any other offence being an extradition crime in respect of which the Secretary of State may consent to his being dealt with".
§ So in those few words the whole of the speciality rule is undermined. The Secretary of State on his own whim and off his own bat as it were may agree, in the case of someone who has been extradited, gone to the magistrates' court, and been committed of an offence of say, theft, to that person when he gets back to the foreign country, possibly being charged with rape, robbery or whatever. The speciality rule goes out of 127 the window. The purpose of this amendment is to leave out Clause 3(4)(c) which concerns the extra power given to the Secretary of State. That is an additional power. Having regard to the enormous powers which the Secretary of State already has, I would suggest that there is absolutely no reason for him to have that extra power. I beg to move.
§ Lord Irvine of Lairg
My Lords, your Lordships in considering the previous group of amendments have just voted to remove the prima facie safeguard but in a limited class of case only. We have the assurance that the prima facie rule will only be abolished by Order in Council and in the case of states which are members of the Council of Europe and which adhere to the European convention. Therefore it is important to appreciate that the prima facie safeguard will remain in full force and effect in the case of extraditions to very many countries. We have extradition arrangements both with countries which do not adhere to the European convention and with other countries which we would not regard necessarily as democratic countries.
It must be appreciated that this power which is given to the Secretary of State is given in all cases. Our concern is whether Clause 3(4)(c) can make a nonsense of the prima facie rule in such cases. The court in the first instance considers carefully whether there is a prima facie case on the offence which is the subject matter of the request. If there is such a case and there is extradition, and the person going abroad is acquitted on the charge on which he was sent to face trial abroad, the Secretary of State has a power under Clause 3(7) to consent to that person being tried abroad, where he has just been acquitted on the charge on which he was sent, for more serious offences although those are charges where the prima facie safeguard would have applied had the foreign government applied for extradition on those charges in the first place. The important question which we think arises can be illustrated if I read Clause 3(6).The Secretary of State may not give consent under paragraph (c) of that subsection in respect of an offence in relation to which it appears to him that an order for the return of the person concerned could not lawfully be made, or would not in fact be made, in accordance with the provisions of this Part of this Act".I invite your Lordships to focus on the words:or would not in fact be made".The example that I am supposing is someone in respect of whom the requesting state has surmounted the prima facie requirement on one charge. The person goes out and is acquitted but the Secretary of State then consents to his facing other and, let us say, more serious charges abroad without returning a free man to this country. The Secretary of State cannot give his consent under paragraph (c) unless it appears to him that an order for the return of the person concerned,would not in fact be madein respect of the new charges.
The important question is: do the wordsor would not in fact be mademean that the Secretary of State has to put himself in the position of the Bow Street magistrate as if an extradition request were being heard by the Bow 128 Street magistrate and ask the same questions based on evidence which must be put before him as the Magistrate would have to ask in deciding whether there is a prima facie case? If the answer to that question is "Yes", this is a function judicial in nature where the Secretary of State must be considering and evaluating evidence. That we would say, is naturally a judicial and not an executive function.
But if the answer is "No" and he does not have to consider evidence in that sense in cases where the prima facie safeguard remains and will continue to remain after the Bill becomes an Act of Parliament, we call attention to the fact that the prima facie safeguard can be bypassed by the Secretary of State sanctioning further charges abroad which are not the subject of the initial request and are not the subject of any judicial proceedings. So the question to which we desire an answer and to which the House with respect is entitled to a clear explanation is: what is intended by this provision? Is the Secretary of State going to consider evidence in deciding whether the new offences proposed to be charged would not in fact be the subject of an order under this Act? Is he going to consider the evidence and if so in what form and in what manner?
§ 6.15 p.m.
§ The Lord Chancellor
My Lords, this provision is intended, as your Lordships have heard, to give the Secretary of State power to consent to a person who has been extradited being tried in the foreign country on another charge than that in respect of which his extradition has proceeded. A similar provision is a feature of the Fugitive Offenders Act as presently in force and it has been a feature of our arrangements with the Commonwealth for some 20 years. When these matters were under review, the possibility of making this change to our foreign extradition provisions was set out plainly in the 1985 Green Paper on extradition.
I think I am right in saying that every response which touched on this matter supported the policy we see reflected in Clause 3(4)(c). In other words it is a proper power for the Secretary of State to have. But it is thought right that that power should be restricted by the provisions of Clause 3(6) so as to make it plain that it is not a way round the provisions of the Extradition Act. That depends of course what those provisions actually are in relation to the particular foreign state in question. I venture the view that they are intended to prevent the Secretary of State consenting to a person who has been extradited being tried in the foreign country in respect of an offence which in his judgment would not succeed in procuring an order under the relevant provisions of the Extradition Act. Therefore, it is the Secretary of State who makes the judgment on the basis of the way the case appears to him. Subsection (6) states:The Secretary of State may not give consent under paragraph (c) of that subsection in respect of an offence in relation to which it appears to him that an order for the return of the person concerned could not lawfully be made, or would not in fact be made".The words "could not" touch on full powers and the words "would not" touch on the particular circumstances as they appeared to the Secretary of State at the time his consent was asked for. I hope that answers the noble Lord, Lord Irvine.
129 Concerning the main principle of the amendment, my answer is that it seemed a reasonable provision to include; it is in the Commonwealth arrangements and everyone who commented on it seemed to think that it was a good idea. Therefore, not surprisingly, we put it into the Bill. If the noble Lord, Lord Irvine, has further doubts on the matter, perhaps we may correspond between now and Third Reading. However, what I have said reflects my understanding of the effect of the provision.
§ Lord Hutchinson of Lullington
My Lords, with great respect to the noble and learned Lord, everyone does not agree that it is a good thing that the power should be in the Bill. Certainly two speakers in your Lordships' House do not agree. Under subsection (6) it is of course recognised that the power would not be used by the Secretary of State to get round the terms of the Bill. That was never thought to be its purpose. The mischief is that although this Secretary of State would not give his consent where it would be obviously unjust to do so, once again the subsection gives a power to whoever is the Secretary of State at the time. We object to the giving of that power.
Nevertheless, having regard to the long time which we have taken on previous amendments this afternoon, I should not wish to take the matter to a Division at this stage. Perhaps if there is further correspondence between the noble Lord, Lord Irvine, and the noble and learned Lord the Lord Chancellor we may find some developments at the next stage. I beg leave to withdraw the amendment.
§ The Lord Chancellor
My Lords, perhaps your Lordships will allow me to say that I shall copy to the noble Lord, Lord Hutchinson, any correspondence that we may have on that particular question.
§ Amendment, by leave, withdrawn.
§ Clause 4 [Extradition request and authority to proceed]:
The Lord Chancellor moved Amendment No. 5:
Page 5, line 29, leave out ("facts upon which and the law under") and insert ("offence of").
§ The noble and learned Lord said: My Lords, this is an amendment to which I spoke when dealing with Amendment No. 1. I beg to move.
§ On Question, amendment agreed to.
§ The Lord Chancellor moved Amendment No. 6:
Page 5, line 36, at end insert ("and copies of them shall be served on the person whose return is requested before he is brought before a court under section 6 below.
(2A) Rules under section 144 of the Magistrates' Courts Act 1980 may make provision as to the procedure for service under subsection (2) above in England and Wales.").
§ The noble and learned Lord said: My Lords, this is one of the amendments on which I relied in my defence as regards Amendment No. 2. It contains one of the expressed safeguards which we sought to add in order to make plain what we had in mind in relation to the general principle. I beg to move.
§ On Question, amendment agreed to.130
§ Clause 6 [Proceedings for committal]:
§ [Amendments Nos. 7, 8 and 9 not moved.]
§ The Lord Chancellor moved Amendment No. 10:
Page 9, line 30, at end insert—
("(1A) The Secretary of State shall give the person to whom an order under subsection (1) above would relate notice in writing that he is contemplating making such an order.
(1B) The person to whom such an order would relate shall have a right to make representations, at any time before the expiration of the period of 15 days commencing with the date on which the notice is given, as to why he should not be returned to the foreign state, and unless he waives that right, no such order shall be made in relation to him before the end of that period.
(1C) A notice under subsection (1A) above shall explain in ordinary language the right confirmed by subsection (1B) above.
(1D) It shall be the duty of the Secretary of State to consider any representations made in the exercise of that right.
(1E) Any warrant under this section shall recite that the Secretary of State has considered any representations made in the exercise of that right before deciding to return the person to whom it relates to the foreign state.
(1F) A person shall not be returned in pursuance of any such warrant until the expiration of the period of 7 days commencing with the date on which the warrant is issued or such longer period as rules of court under section 84 of the Supreme Court Act 1981 may provide.
(1G) At any time within that period the person to whom the order would relate may apply for leave to seek judicial review of the Secretary of State's decision to issue the order.
(1H) Unless the person to whom the order relates waives the right conferred on him by subsection (1G) above he may not be returned to the foreign state before the end of that period.
(1J) If he applies for judicial review, he may not be returned until the end of the proceedings for judicial review.
(1K) Proceedings for judicial review shall be treated for the purposes of this section as continuing until any appeal in those proceedings is disposed of: and an appeal shall be treated as disposed of at the expiration of the time within which the appeal may be brought or, where leave to appeal is required, within which the application for leave may be made, if the appeal is not brought or the application made within that time.
(1L) An order under this section shall set out in ordinary language the rights conferred by the two preceding subsections.
(1M) Judicial review may not be granted in respect of an order under this section on the ground that the Secretary of State did not have before him evidence sufficient to justify the making of the order.").
§ The noble and learned Lord said: My Lords, as your Lordships will know, the amendment is the cornerstone of our attempt to meet the difficulties that were expressed at Committee stage. In my ardour to get to the argument on the main matter I omitted one or two preliminary matters which I had originally intended to mention.
§ The first matter is that all of your Lordships who had the pleasure of listening to my noble friend Lord Caithness dealing with the Bill up to this stage will have recognised what a tremendously powerful job he made of it. The only reason it was thought right for me to participate with him in certain matters which are subject to consideration on Report is that some of the questions are questions which depend to some degree on legal experience. My noble friend, with all his qualities, does not have that particular type of experience. Therefore, it was thought right that I might assist. As has been pointed out to me, he also comes from a good place and that is a great qualification. My mother came from the same place!131
§ My other point is a reflection of something said by the noble Lord, Lord Hutchinson of Lullington, concerning my right honourable friend the Secretary of State for the Home Department. I believe that he was indicating that my right honourable friend had spent a good part of his life in the diplomatic service. I think I am right in saying that the noble Lord was perhaps suspicious that the decisions of my right honourable friend on such matters were more influenced by his affinity to the Foreign Office than his desire to promote the rule of law in this country.
§ Perhaps I may say that I know from my own knowledge that my right honourable friend the Secretary of State has personally considered all the matters that were raised at Committee stage on the Bill. In particular it is within my knowledge that he has carefully considered all the matters raised in connection with the main point which we have been discussing. He applied his own very considerable talents to deciding what should be done about those matters. With great respect to the noble Lord, Lord Hutchinson, it would not be right to say that he was influenced by anything other than the purest and highest consideration for the rule of law and justice in this country.
§ Lord Harris of Greenwich
My Lords, I am not seeking to reopen issues which were discussed on the previous amendment moved by the noble Lord, Lord Irvine, this afternoon. However, as we shall obviously be coming back on Third Reading to what appears as Amendment No. 10, and particularly to subsection (1M), I and many of my colleagues would be grateful if before the next stage of the Bill we could have a letter from the noble and learned Lord dealing with the three specific questions I asked. The first question concerns the Home Office and oral hearings when requested. Secondly, there is the question of whether the Secretary of State is prepared to set up a system whereby, in appropriate cases, he can appoint an adviser on a similar basis to that contained in the provisions of the Prevention of Terrorism Act. Finally, there is the question of compensation. I am not asking for an immediate reply but I should be grateful for a reply before Third Reading.
§ Lord Ackner
My Lords, I raise one matter for clarification. Should there not be spelt out, either in the amendment or elsewhere, a specific obligation on the Secretary of State to provide not only notice that he is contemplating making an order but the facts and the law relied on for the making of that order? There has been removed, by virtue of the previous amendments, the phrase:facts upon which and the law underand in its place we have only the word "offence". Unless there is a specific obligation spelt out, all that the defendant (if I may call him that) will get is a notice of the intention of the Secretary of State which will no doubt fill him with gloom but no wisdom. I suggest that there ought to be a specific provision, either continuing on from subsection (1A) in the amendment or elsewhere, that he is to be given particulars of the facts and the foreign law relied upon in support of the application.
§ Lord Boyd-Carpenter
My Lords, as the greater part of the amendment is to deal with points raised in Committee, in some of which I was involved, and which the noble Earl undertook to consider, I wish to express gratitude to him and to the Government. It shows that the time spent in Committee was far from wasted. It is also an indication of the sensitive and intelligent way in which my noble friend handled the Bill.
§ 6.30 p.m.
§ Lord Mishcon
My Lords, I should like to underline any adjectives that are complimentary of the noble Earl. I do not quite follow the noble Lord, Lord Boyd-Carpenter, in admiring what has happened by way of amendment as a result of the discussion, but that is a side issue. We all admire the way in which the noble Earl has dealt with the Bill.
Perhaps I may add one question regarding the right of oral representation. Is it envisaged that there will be the right for legal representation also when the oral representations are made? One quakes to think of some poor individual being faced by the Secretary of State in person in order to make oral representations and finding that the lawyer he brought with him is asked to remain outside.
§ The Lord Chancellor
My Lords, perhaps I may attempt to deal with that when I deal with the questions raised by the noble Lord, Lord Harris of Greenwich.
So far as concerns the question of my noble and learned friend Lord Ackner, we had thought that point was covered by Clause 4 and Amendment No. 6. It may be that we can discuss the matter conveniently between now and Third Reading.
§ On Question, amendment agreed to.
§ Clause 9 [Order for return to requesting state]:
Lord Hutchinson of Lullington moved Amendment No. 11:
Page 10, line 1, leave out ("may decide not to") and insert ("shall not").
§ The noble Lord said: In moving the amendment, I speak also to Amendment No. 12 as the amendments go together.
Amendment No. 11 deals with the question of a person being sent back from this country to face the charge of committing an offence where the penalty may be or is a sentence of death. Under Clause 9, at page 9, certain matters are set out that the Secretary of State must take into account in deciding whether to make the order. Clause 9(2) states:
Without prejudice to his general discretion as to the making of an order for the return of a person to a foreign state under this Part of this Act".
Paragraph (a) states that,
the Secretary of State shall not make an order in the case of any person if it appears".
There follow sub-paragraphs (i), (ii) and (iii) as to the trivial nature of the offence, the passage of time and the question whether the accusation is not made
in good faith in the interests of justice. Paragraph (b) states:
the Secretary of State may decide not to make an order for the return of a person accused or convicted of an extradition crime constituted by conduct not punishable with death in Great Britain if that person could be or has been sentenced to death for that offence in the state by which the request for his return is made".
The amendment seeks to alter the wording of paragraph (b) to read,
the Secretary of State shall not make an order
unless he receives a satisfactory undertaking from the state that the death penalty would not be carried out.
§ The amendment was moved in Committee and had some support, notably from the noble and learned Lord, Lord Roskill. In moving the amendment, I am much encouraged that the noble Lord, Lord Allen of Abbeydale, has added his name to the list of those who support it.
§ The Minister's attitude in Committee was as follows. Whereas he had the greatest sympathy with the intention of the amendment, he could not accept it because of the federal nature of the United States legal system. In fact, this was the kind of undertaking that the Government would seek from the federal authority in America, but that authority would be unable constitutionally to give the assurance that Amendment No. 11 seeks to include in the Bill. All the Government could do was to ask the federal government in America to undertake to convey the wishes of the Government of the United Kingdom to the relevant judge at the trial, which in the normal way was what happened. As we have abolished capital punishment, I suggest that it would strengthen the hand of the Government if there was a statutory obligation to seek an undertaking.
Secondly, Article 11 of the convention specifically says that extradition may be refused by the requested state unless the requesting state,
gives such assurance as the requested party considers sufficient that the death penalty will not be carried out".
Why should we not include this in the Bill on the basis that this country would ask to be given such assurance as we consider sufficient that the death penalty will not be carried out?
Thirdly, a number of countries have entered reservations to the convention to this specific effect. I need quote only that of Austria, which states:
Austria will refuse extradition requested in order to carry out the death penalty. Extradition will only be granted if the requesting state accept the condition that the death penalty will not be pronounced".
Austria and certain other countries have done that. I ask forensically whether those countries are havens for American murderers.
§ When the United States Government apply for the extradition of a citizen from one of the states in America, as I understand it, the federal government do so on behalf of the attorney-general of the state concerned. Under the attorney-general comes the district attorney. It is he who will or will not demand the death penalty at the trial of the person in question. I ask the Government why the federal government should not ask the attorney-general of the state for whom he is acting for an undertaking that the death penalty will not be invoked.134
§ Finally, murder is one of the few offences for which we have extraterritorial jurisdiction. Therefore, we should be in the same position in this case as those countries who, in fact, have entered a reservation. In those circumstances, I beg to move.
§ Lord Allen of Abbeydale
My Lords, perhaps I may add one or two words. I had intended to add my name to Amendment No. 11 as well as No. 12 to make sense, but no doubt if it was agreed in principle the parliamentary draftsman would not accept any of the drafting, so perhaps it does not matter all that much.
I am not unfamiliar with the United States' judicial system and I well recognise that it presents problems, but I still cannot see why the federal Government should not tell the state concerned that it will not have the individual sent back to it unless it can give an undertaking that he would not be executed. If that undertaking is given by or on behalf of the US Attorney-General, or by or on behalf of the governor, and there is then a change of governor—a point made at the Committee stage—I find it difficult to believe that even in the United States such an undertaking would not be honoured by his successor or, at the very least, that it would not be an undertaking good enough to meet the words quoted by the noble Lord, Lord Hutchinson, I hope, therefore, that whatever the wording and however it is expressed in the statute, this point can be met.
§ Lord Elwyn-Jones
My Lords, I support the two amendments which have been moved. I hope and expect that the United States' authorities will find a means of ensuring that what we have in mind will be carried out. As I shall visit the United States to celebrate the bicentennial of the American constitution in two days' time, I shall mention that we shall expect them to do their stuff on this important matter.
Lord Paget of Northampton
My Lords, I believe that on the whole this country has generally recognised that to take somebody out in cold blood and kill him is indecent. To send him away for somebody else to kill is even more indecent. I believe that if we cannot explain that simple proposition to the Americans, our alliance would be imprudent.
§ The Lord Chancellor
My Lords, I do not believe that it is of value for me to go over the ground that was covered in Committee on this point and the matter does not really arise under the European convention. It is in the United States that the problem has arisen and it arises from the federal nature of the United States. As I understand the position, the federation, the United States, is the requesting state for extradition and is not able, according to our information, to give an undertaking that the state concerned will, in fact, not carry out the death penalty on someone extradited and facing a capital charge.
What happens in practice is that in deciding that but for this difficulty, extradition would be proper, the Secretary of State attempts to extract such an undertaking. As has been said, the most he has been 135 able to achieve is a statement that the views of the requested state—namely, ourselves—will be put before the judicial authorities of the state concerned in the United States which is dealing with this specific offence.
In practice, so far that has been sufficient to prevent the dreaded result, even on conviction. But it is recognised that it is not so guaranteed that an arrangement of this kind would meet the statute, if amended in the way proposed by the noble Lord, Lord Hutchinson of Lullington. Therefore, with the present United States arrangements, if this amendment were to be approved, I think it would mean that the Secretary of State could not lawfully agree to send anyone facing a capital charge back if the offence arose in a state where, at that time, capital punishment was being exacted. As your Lordships know, the state can change these arrangements.
As the noble and learned Lord, Lord Elwyn-Jones, is going to America soon, and knowing his powerful Welsh eloquence, he may well be able to produce a change in the arrangements in the United States which will mean that we can reasonably accept this amendment. It is imposing rather a heavy timetable on him, but if the result were to come through in time for Third Reading, obviously the matter could be reconsidered.
§ 6.45 p.m.
§ Lord Harris of Greenwich
My Lords, I believe it would be mildly surprising were the noble and learned Lord, Lord Elwyn-Jones, to be as speedily successful as that. I believe that most of us recognise the problem, which I know has been discussed before, and I do not doubt that the Home Office has, as on a number of previous occasions, tried to do something about this and come up against this substantial obstacle of the division of powers between federal states and the United States government.
The only matter which does trouble me, as I am sure it troubles the noble and learned Lord, the present Home Secretary, and will no doubt trouble future Home Secretaries, is what happens in the future if a district judge in one state decides, notwithstanding the view of the State Department, to execute the person who has been extradited. I consider that that would cause very substantial problems, to put it mildly, with regard to Parliament. It would have a rather more substantial effect on the person who had been extradited in the belief that he would not be subject to capital punishment.
I recognise, of course, that this matter has been looked at on a number of occasions but I hope that the noble and learned Lord will agree to take into account some of the arguments put forward; notably that of the noble Lord, Lord Allen of Abbeydale, who has substantial experience as former permanent Under-Secretary at the Home Office. Perhaps we can then see whether at some later stage during the progress of this Bill through Parliament we can arrive at a form of words which will not create the sort of mischief described by the noble and learned Lord himself but nevertheless will guarantee that we do not 136 have this appalling consequence which arises if someone is subjected to capital punishment. I believe that that is a modest request and I hope that the noble and learned Lord will respond favourably.
§ The Lord Chancellor
My Lords, no one knows more about these matters than the noble Lord, Lord Harris of Greenwich, learned as he is with his experience at the Home Office. His remarks and those of other noble Lords who have spoken will be taken into consideration by my right honourable friend. This has been before my right honourable friend on a number of occasions, as the noble Lord, Lord Harris of Greenwich, said. Certainly, until now, we have not been able to find an answer but we are not giving up. If the assurance that we will continue to look for a solution is acceptable, no doubt the noble Lord will feel able to act accordingly.
§ Lord Hutchinson of Lullington
My Lords, I am obliged to the noble and learned Lord. Perhaps I may add one other matter to help him in his resolve not to give up and as an increased incentive to incorporate such an undertaking into the Bill. He will probably know that two cases certainly have been taken to the Court of Human Rights. One of them failed on a technicality and the other seemed to be progressing well when the applicant decided he would rather return to be executed, and the whole matter was brought to an end. There is now, in fact, a third case going to the court and it might avoid yet another situation in which something like this has had to be put into a Bill because of the decision of the Court of Human Rights. That might be an added incentive. The noble and learned Lord might send his Welsh envoy with a packet in his pocket to give him extra power when he gets there. In those circumstances, I am prepared to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ [Amendment No. 12 not moved.]
§ Clause 16 [Restrictions upon proceedings fir other offences]:
The Lord Chancellor moved Amendment No. 13:
Page 12, line 30, leave out ("on which his return is grounded") and insert ("in respect of which he was returned")
§ The noble and learned Lord said: This amendment follows Amendment No. 1. The same principle applies and I beg to move.
§ On Question, amendment agreed to.
The Lord Chancellor moved Amendment No. 14:
Page 12, line 31, leave out ("facts") and insert ("particulars furnished to the foreign state").
§ The noble and learned Lord said: My Lords, this again is an application of the principle that I sought to explain in relation to Amendment No. 1. I beg to move.
§ On Question, amendment agreed to.137
§ Clause 21 [First-hand hearsay]:
§ The Earl of Caithness moved Amendment No. 15:
§ The noble Earl said: My Lords, In moving this amendment I wish to speak at the same time to Amendments Nos. 20 and 136. These amendments are consequential on the provision to which we agreed in Committee, that the Court of Appeal should have power to order a retrial. I beg to move.
§ On Question, amendment agreed to.
§ Report stage interrupted.