My Lords, I beg to move Amendment 24 and will speak to Amendments 25, 49, 136. I could use the wording that I have here, which is that I move that the House do agree with those amendments.
This group of amendments makes important changes to our extradition and deportation arrangements. Extradition and deportation are, of course, two entirely distinct legal processes and should not be confused. The fact that they are both being dealt with together in this group is simply for convenience.
Commons Amendments 24 and 136 amend the Extradition Act 2003 to provide for a new forum bar to extradition, to remove the Home Secretary’s obligation to consider human rights issues in extradition cases to non-European Union member states and to address several technical deficiencies in the 2003 Act in regard to Scottish devolution matters. Part 1 of the new schedule to be inserted into the Bill by Amendment 136 will amend the 2003 Act by requiring the judge at an
extradition hearing to consider the issue of forum—that is, where the offence should be prosecuted. The Government’s decision to introduce a forum bar to extradition responds to the widespread concern within Parliament, as well as among the public more generally, that insufficient safeguards are currently built into cases of concurrent jurisdiction.
As noble Lords may be aware, there is an existing uncommenced forum provision in Schedule 13 to the Police and Justice Act 2006. This provision has not been commenced for good reason; simply put, we do not believe that it is fit for purpose. It would be cumbersome in practice and lead to wholly unacceptable delays in the extradition process. Instead, the Government’s forum amendments to the 2003 Act introduce a very carefully constructed provision, which has been designed to provide greater openness and scrutiny in relation to the question of where the most appropriate jurisdiction for trial is for those facing the possibility of extradition, while minimising delays as far as possible.
Our forum amendments allow a judge to bar extradition, on forum grounds, if the extradition would not be in the interests of justice. In considering whether to bar extradition, a judge will have to consider whether a substantial measure of the alleged offences occurred in the UK and a list of other facts such as where the most harm occurred, the interests of any victims, the location of witnesses and the person’s connections with the UK.
In cases where the prosecutor has taken a formal decision not to prosecute in the UK, because there is insufficient admissible evidence available or because it is not in the public interest for such a prosecution to take place, a prosecutor’s certificate can be issued to that effect. This will prevent extradition being barred on forum grounds. The purpose of the prosecutor’s certificate is to ensure that the subject of the extradition request, who may be wanted for a very serious offence, does not escape prosecution altogether because a domestic prosecution is not possible, but the judge decides none the less to bar extradition on forum grounds. The amendments point to particular circumstances where a prosecutor’s certificate may be appropriate: namely, in cases where there is sensitive material which cannot be disclosed in open court because, for example, doing so would compromise national security or the investigation of terrorism or serious crime, or in cases where it is not in the public interest for such a prosecution to take place.
I believe that these measures will make our extradition arrangements more open and transparent and will ensure that, in cases of concurrent jurisdiction, due consideration will be given by the prosecutors to any decision about whether or not a person could be prosecuted in the UK. Under these new arrangements, prosecutors will know that they will be called upon to justify any decision in front of a judge in open court, not behind closed doors, as happens at the moment, and that any decision to issue a prosecutor’s certificate is judicially reviewable in the High Court.
Part 2 of the new schedule will transfer the discretion to consider final human rights representations from the Home Secretary to the courts. At present, the Home Secretary is obliged to consider human rights
issues raised after a person has exhausted their appeal rights because she is a “public authority” for the purposes of the Human Rights Act 1998. By specifically preventing the Secretary of State considering whether extradition is compatible with the ECHR and transferring examination of such matters to the courts, the amendments will strike a better balance between two competing considerations: on the one hand, ensuring late human rights issues which are deserving of the court’s attention are properly considered and, on the other hand, ensuring that people are not able to abuse the system and delay extradition endlessly by means of raising last-minute, specious human rights points which can then be the subject of judicial review.
It is legitimate for the Home Secretary to play some role in the extradition process and that will remain the case. Ministers will still sign an extradition order for Part 2 countries: that is, those countries not covered by the European arrest warrant, to confirm that there are no statutory bars to extradition once it has been approved by the district judge. This covers issues such as the death penalty, ensuring people are tried only for the charges on which they have been extradited, onward extradition from a third country and transfers from the International Criminal Court. These are areas where diplomatic assurances are occasionally required and it is right that Ministers, rather than the courts, should continue to deal with these.
Part 3 of the new schedule makes provision in respect of Scottish extradition proceedings. In extradition proceedings in England and Wales, it is possible for a point of law to be appealed to the Supreme Court. In extradition proceedings in Scotland, the final court of appeal is the High Court of Justiciary. There is one exception to this in that there can be an appeal to the Supreme Court against the determination of a devolution issue raised in Scottish extradition proceedings. Devolution issues include questions as to whether the Scottish Ministers have acted in a way that is incompatible with the European Convention on Human Rights or EU law and so can arise in Scottish extradition proceedings. However, the 2003 Act does not take account of devolution issues in Scottish extradition proceedings being appealed to the Supreme Court. The Supreme Court has expressed concern that this could create problems in certain cases about the power to detain a person pending the outcome of an appeal to the Supreme Court and the time limit for extraditing a person following such an appeal.
The amendments provide that where the authority or territory that issued the extradition warrant seeks to appeal a devolution issue to the Supreme Court, the court has power to remand the person whose extradition is being sought in custody or on bail. Where the person is remanded in custody, the court may grant bail at a later date. The amendments ensure that the court has this power until the person is extradited or the extradition proceedings are discharged. They also set up the time limit for extraditing a person where a party to the proceedings seeks to appeal a devolution issue, raised in Scottish extradition proceedings, to the Supreme Court. Part 3 of the new schedule essentially ensures that a consistent approach is taken in the 2003 Act to appeals to the Supreme Court in extradition proceedings.
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I turn to the matter of deportation in national security cases. Commons Amendments 25 and 49 limit the circumstances in which national-security-related deportations attract in-country rights of appeal on human rights grounds. The amendment would allow the Home Secretary to certify that removal pending the outcome of the substantive appeal would not be in breach of the appellant’s rights under the European Convention on Human Rights. The Home Secretary could make such a certificate on the grounds that temporary removal would not result in the individual facing a real risk of serious, irreversible harm, or that the underlying human rights claim was clearly unfounded. The certificate would render any in-country appeal against deportation out-of -country. The test of serious and irreversible harm is that used by the European Court of Human Rights when deciding when to issue a direction to suspend removal from a country prior to its substantive consideration of appeals against deportation or removal. Appellants will have a right to apply to the Special Immigration Appeals Commission for the certificate to be set aside. The commission would review such an application fairly but expeditiously.
The effect of a certificate made under this provision is obviously not to prevent an appeal. It is only to change the location of the appellant during that appeal. The change is not unprecedented. Out-of-country appeals already happen in relation to appeals against deportation which are certified under Section 94 of the Nationality, Immigration and Asylum Act 2002. Those certificates are issued when the underlying human rights claim is assessed to be “clearly unfounded”. As such the courts are well used to reviewing decisions that a human rights claim is clearly unfounded; and appeals are frequently pursued from overseas. It is the Government’s view that bringing an appeal from overseas does not of itself handicap the appellant’s ability to argue his or her case on appeal.
As national security deportation cases often involve human rights claims, where it is alleged individuals may face the risk of torture—or worse—on return, there are significant constraints on our ability to deport before an appeal is heard in the UK. The Government only ever take deportation action when they consider it lawful to do so and would not deport if they thought there was a real risk that the person would be tortured on return. Nevertheless, this amendment will support our ability to deport in future cases, in particular where individuals raise less fundamental human rights issues such as the right to a private life or where their human rights claim is unfounded. For example, a person may suffer no serious, irreversible harm in being away from their family for a few months while their substantive appeal is determined. The person will still have an appeal and if they win will be able to return to the UK. Having the individual out of the UK pending the appeal could be of real benefit in the context of the relatively small number of national security deportation cases.
This measure is one of a number of reforms being explored by the Home Office and the Ministry of Justice to support the Government’s ability to deport foreign national terrorists more quickly than at present.
I hope that the House will agree that these are sensible changes that will enhance the fairness and transparency of our extradition procedures and the effectiveness of our deportation arrangements.
Amendment 24A (as an amendment to Commons Amendment 24)