Moved by
Lord Rosser
24A: Line 2, at end insert—
“(1) The Secretary of State shall commission a review of this section, to consider in particular improvements to its functioning in relation to inter alia—
(a) the speed of extradition procedures;
(b) existing agreements with category 2 territories as designated under Part 2 of the Extradition Act 2003;
(c) future agreements with territories that would be designated under Part 2 of the 2003 Act.
(2) A review under this section must report to both Houses of Parliament no later than 3 years following enactment.”
Lord Rosser: My Lords, I shall speak also to the other government amendments in the group.
This part of the Bill is an example of how not to legislate. We have been faced with some 18 proposed new clauses and significant new provisions since the Bill’s Second Reading in this House. Some of the changes, such as Amendments 24 and 136 on extradition, which we are considering now, were introduced by the Government on the final day of the Committee stage in the other place, despite the Government having announced their intention last October to go down the road of a forum bar. The impact of this late and significant change to the Bill was then compounded by there being no scrutiny of these late changes on Report in the other place because they ran out of time. This is no way to make substantial changes to our extradition arrangements.
Almost inevitably, these amendments raise a number of issues. On the one hand, they introduce a forum bar, presumably with the purpose of devolving responsibility to the courts for a decision on whether to bar extradition on the basis of the interests of justice. On the other hand, the amendments grant the prosecution a veto over that decision if it decides not to bring a prosecution in the UK. The question then for the Government is to clarify what will change materially. If the purpose of the forum bar is to improve the transparency of decisions by allowing the courts discretion to determine whether extradition is in the interests of justice, rather than a decision negotiated and made behind closed doors, why is the prosecution being given what is in effect a veto?
Under the procedure set out in Commons Amendment 136, a judge would be prevented from deciding on a forum bar if prosecutors decided not to prosecute the individual in the UK on the basis of insufficient evidence or public interest, if they were concerned that a prosecution might risk the disclosure of sensitive material of a nature that might put at risk other cases, or on the basis of national security or our relationship with foreign partners. Those are certainly relevant considerations for any prosecution, but the purpose of a forum bar is to take these decisions away from the
prosecution, as proposed new Section 19B actually requires the judge to consider a very specific list of matters when deciding whether the interests of justice test has been met, including,
“any belief of a prosecutor that the United Kingdom … is not the most appropriate jurisdiction in which”
the individual should be prosecuted, the availability of evidence for prosecution in the UK, and the desirability of the disclosure of evidence in UK courts. Why then are the Government including this prosecution veto? Is it because they do not trust the courts’ discretion over these matters? Is it because they are concerned that without the veto the introduction of a forum bar might undermine the extradition agreements negotiated with other territories on the basis that it would add an additional significant element of uncertainty over whether the Government could successfully seek extradition of an individual from the UK to face trial?
When the forum bar was proposed in 2006 as an amendment to the Police and Justice Bill, my noble and learned friend Lady Scotland of Asthal, then Home Office Minister, stated in a letter to noble Lords:
“It is also important to stress again that none of the UK’s bilateral treaties allow extradition to be refused on the basis of forum”.
She went on to say:
“The House should be in no doubt about the consequences of the proposed amendment. The UK’s judicial co-operation system with the rest of the world would be seriously damaged, the UK would be in immediate breach of a range of bilateral treaties and, perhaps most importantly, the international reputation of the UK would be significantly affected”.
As there could be more than one legal opinion on the issue, can the Minister say whether it is still the view of the Home Office that the introduction of the forum bar would put us in breach of existing treaties, as was the case in 2006? Can the Minister also say whether it is the belief of the Home Office that it will need to renegotiate any of our existing agreements as a result of the proposed changes to our extradition arrangements?
In 2010, the Government commissioned an independent review of the UK’s extradition arrangements by Sir Scott Baker and David Perry QC. It concluded that,
“forum bar provisions should not be implemented”,
on the basis that there was no clear evidence to suggest that the present arrangements were causing injustice. The review raised the concern that the introduction of a forum bar would create long delays in the extradition process and give rise to a whole host of satellite legislation, increasing both the cost and length of such processes, which would not be in the interests of justice, the victims or, least of all, the individual accused. We must ensure that the new procedures and arrangements do not lead to the sort of lengthy delays that we have seen in the cases of Gary McKinnon and Babar Ahmad. In that regard, one notes that under the new forum bar procedure, the prosecutor’s certificate effectively applying a veto is judicially reviewable, but only against the tests set out in the Bill.
This is why we propose, with our amendment to Amendment 24, that the Government should conduct a full review of the new forum bar procedure after no more than three years following enactment to assess
how well it is or is not functioning and, specifically, what effect it has had on the speed and efficiency of extradition arrangements and decisions and the impact on our existing extradition agreements, as well as our ability to negotiate further agreements. That review must result in a report to both Houses of Parliament. Clearly, it is in the interest of all parties, and in our national interest, that we have effective and just extradition procedures that ensure that criminals cannot use the UK as a safe haven and equally cannot evade facing justice for crimes committed in the UK by fleeing abroad.
I now refer to Commons Amendment 25 which concerns deportation. It seeks to speed up the deportation process and to avoid a succession of appeals that suspend deportation and undermine the purpose of the decision to deport an individual on grounds of national security. The new clause would allow the Secretary of State to remove the in-country right of appeal against the deportation on national security grounds where she can certify that either the individual would not face the risk of serious irreversible harm or where the whole or part of any human rights claim made by the person is clearly unfounded. That raises a couple of points in relation to this test. As the Minister has said, the test of serious irreversible harm is one that was established in a European Court of Human Rights judgment. However, the other test, that any human rights claim is “clearly unfounded”, is less clear. Can the Minister explain what exactly the Government mean by this? What sort of claims may fall within this definition?
In addition, the new clause provides,
“the grounds upon which a certificate”—
that is a certificate that gives no in-country right of appeal—
“may be given under subsection (2B) include (in particular)”.
In other words, it allows the Secretary of State to issue a certificate against suspensive deportation on grounds that are not exclusive to the two tests relating to serious irreversible harm or whole or part of any human rights claim being clearly unfounded. That must be the inference of the words “in particular”—that there is something in addition to what is listed. It would be helpful if the Minister could clarify what other grounds could be used by the Secretary of State in addition to the two outlined in the Commons amendment and whether this means that suspensive appeal rights could be prevented even where the individual would face the risk of serious irreversible harm because apparently there might be other undisclosed reasons on which it could be declined.
There are also other questions on the practicalities of this proposal. Will the Government be taking steps to ensure that an individual so deported will physically be able to appeal and will not be prevented from doing so by the authorities in the country concerned? Will the Government be advising a person about to be deported of their right of appeal and how and to whom such an appeal should be made? Will the Government be advising a person appealing how legal representation can or will be arranged, and will they ensure that an individual appealing will not be stopped from communicating with their legal representative?
I hope that the Minister will respond fully to the points I have raised on the four Commons amendments and that the Government will give serious consideration to our Amendment 24A and the proposal for a review of this new procedure on extradition,
“no later than 3 years following enactment”,
when there will have been sufficient time to see how well or otherwise it is working. I beg to move.
9.15 pm