My Lords, earlier today the noble and learned Lord, Lord Lloyd of Berwick, and one or two other Members of this House raised the question of the Government’s procedure in this matter. I have to say that I cannot recall an instance where the Government have introduced a fundamental amendment not in Committee or on Report, but actually when the Commons were discussing the Bill and amendments to our amendments. There would have been plenty of time in the early stages of the Bill in either House for the Government to have introduced the amendment. I cannot understand why this seems to be an afterthought.
Governments usually do these sorts of things when there is a real sense of urgency, when there is a dramatic reason why they have to move quickly. I cannot for the life me understand why they felt it necessary to do this at the last minute. Having heard the Minister earlier today, I feel that he was caught. Had he been a Back-Bencher—and I hope he is not going to be a Back-Bencher as a result of all this—I suspect that he would have agreed with out arguments. However, being the Minister, he is rather debarred from saying on the spot that the Opposition or other Cross-Benchers are right and the Government are wrong; he cannot say that. However, in his heart of hearts I suspect that is what he may have been thinking.
It seems to me that this is not a proper way to treat either House of Parliament, when there is absolutely no reason why the Government should behave in this way. The difficulty we are in is that there is no easy way of testing the arguments because the rules of procedure for this part of the Bill, when we are dealing with Commons Amendments, give us a very limited opportunity to be critical. We do not have the flexibility that we have in earlier stages of legislation. We are caught in a position where we have a very serious matter, and where we cannot do justice to the process of scrutiny in order to come up with a better answer. The Minister may have said one or two things which are now going to be difficult to put to the test.
The Minister mentioned the death penalty. As somebody who is very keen on campaigning internationally to abolish the death penalty, I had understood that it was absolutely accepted practice by
Britain that we would never under any circumstances let anybody be extradited to a country where there was no assurance that the death penalty would not be used. Why the Minister mentioned the death penalty, I do not know, but I hope that the existing policy will hold good.
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I will say something about the European arrest warrant. There are some flaws in it but fundamentally it is one way of bringing to justice people whom we as a country want to bring to justice or other European countries want to bring to justice. The very thought that the Government might abolish our participation in the European arrest warrant is a nightmare scenario. I hope that the Government will stop this approach because it is widely accepted that the European arrest warrant has played a very important part in bringing criminals to justice, whatever the faults in the system.
The amendments standing in my name are intended to introduce a proper forum bar. I very much agree with the arguments put by my noble friend on the Front Bench and the noble and learned Lord, Lord Lloyd of Berwick. My amendments go a bit further. Where most of the alleged conduct took place in the United Kingdom, there would be a presumption against extradition unless it could be established, based on a wide range of relevant factors, that the wider interests of justice demanded it. Such a decision would be taken by an impartial judge in open court. It seems to me that what should be taken into account—and this is not a limited list—would represent good procedures and a sensible approach by the courts.
I will give one or two examples from my amendments:
“Matters relevant to the interests of justice include but are not limited to”—
I will not go through the whole list—
“the extent and place where most of the loss or harm resulting from the extradition offence occurred or was intended to occur … the interests of any victims of the extradition offence … the availability of evidence necessary for a fair trial in the United Kingdom and in jurisdictions outside the United Kingdom … nationality, place of habitual residence and other connections with the United Kingdom”,
of the person to be extradited. If one takes these and the other considerations in the amendment into account, one would have a much better approach than the one that the Government have put forward.
Earlier the Minister said that he thought that all this would be done openly and there would not be any secrecy involved. I cannot put that to the test in the procedures we have before us. My understanding is that there might well be situations where the courts would operate in secret. My fear is that we have not got that properly under control. For example, if we did not have a forum bar, the UK prosecution would not be able to require disclosure of foreign secret evidence. If we had a forum bar, we could demand that as a condition of the extradition, and that would be an added way of having openness and secrecy in our procedures. The Minister said that there would be no secrecy so there is a bit of a dispute as to the facts here; perhaps the Minister could clarify that. For example, as it stands, if the United States refused to share evidence, the United States itself could guarantee
that extradition to the United States would happen. This does not seem how it ought to be and it does not give our courts the proper authority to decide.
I rest my case on the proposition that there should be a presumption against extradition unless it would be in the interests of justice that such extraditions should take place. That is the basis of my amendments and I hope that the Government will either take the point made by the noble and learned Lord, Lord Lloyd of Berwick, that we should delay discussing this until we can do it properly, or move towards accepting the amendments that I am putting forward.