Immigration Bill

Debate between Lord Hodgson of Astley Abbotts and Lord Taylor of Holbeach

Thursday 3rd April 2014 Lords Chamber

[Lord Hodgson of Astley Abbotts (Con)]

My Lords, I made clear my support for the Government when I spoke on Amendment 23. Therefore, it will not surprise the House that I have some difficulty with the thinking behind this group of amendments. I shall not repeat my philosophical concerns, but where the matter comes to a sharp point is the position on overstaying and illegal migrants. We need to enforce immigration law. There is public concern about it. If we delay taking action, that public concern will increase and give rise to perhaps nastier people trying to ride that particular issue and gain publicity from it. I am interested in hearing how we minimise delays in moving this part of the legislation forward. When I heard the noble Lord, Lord Rosser, introduce Amendment 25 and how it could lead to a need for further primary legislation, it seemed to me that that could be a means by which the measure could be stopped altogether and the whole proposal would sink with all hands.

To a lesser extent, I have the same problem with the amendment in the name of my noble friend Lady Hamwee, which seems to add another cycle into the consideration of an issue which is very high on the public agenda. If we fail to address it, we will probably regret not having done so. I hope that my noble friend, as he has on other occasions having made concessions, will stick to his guns and make sure that we can move this secondary legislation forward in the very near future.

[The Parliamentary Under-Secretary of State, Home Office (Lord Taylor of Holbeach) (Con)]

My Lords, we have discussed at length and, I hope, to some good ends the important objective of this part of the Bill. I want to restate some of the background for the benefit of the House.

We are seeking in this Bill to control illegal migrant access to the private rented sector, because we have listened carefully to the public’s concern about the need to prevent illegal immigration. That follows on very neatly from the contribution of my noble friend Lord Hodgson of Astley Abbotts. To this end, the Government are committed to remaining firm on border controls, but we can provide a complete response to illegal immigration only if we work in partnership with those offering employment, housing and other services to deny the practical means of remaining to those without permission to stay.

The landlord provisions have been carefully drafted to deliver a scheme which works, which defines the differing responsibilities of landlord, agent and tenant, and which provides clear, robust safeguards for both landlords and vulnerable groups in need of accommodation. The drafting mirrors the existing civil penalty scheme for employers of illegal workers, which we know works well in practice. The proposed opposition amendment would sweep away these carefully constructed clauses and replace them with a pilot provision lacking the necessary detail and clarity.

I understand the desire of noble Lords to ensure that the landlords scheme is “workable” and that the provisions are tested and carefully evaluated. Indeed, it is our intention to adopt a carefully phased approach to implementation and to ensure that we get the guidance and support services absolutely right before considering wider implementation beyond the first phase. As we have made clear, decisions on further implementation will be taken after the general election during the next Parliament. I should make it clear to the noble Lord, Lord Rosser, that we need no further incentive to get this right than to deliver a policy which we consider is important for the control of illegal immigration to this country.

I am grateful to my noble friend Lady Hamwee for tabling her Amendment 24. The Government have given a commitment to a carefully managed, phased implementation of the landlords scheme. The scheme will be implemented initially, as has been said by noble Lords, following on from commitments that I have already made, in a single geographical area, and the Government have committed to a full evaluation of the first phase. Any decisions on a wider rollout will be taken in the light of the evaluation after the general election during the next Parliament.

My noble friend’s amendment is intended to be supportive, and I have considerable sympathy with the objectives behind it—my noble friend seeks reassurance on issues that I know concern her. As the House will know, I have been discussing the landlord provisions with my noble friend Lady Hamwee, the noble Lord, Lord Best, and a number of expert groups, including the Residential Landlords Association, Crisis and the British Property Federation. I completely share their concern that the scheme should be introduced carefully, with the benefit of advice and input from expert groups.

I can therefore inform the House that, following these discussions and in the light of the contributions that noble Lords across the House have made in debates on these provisions, we have decided to convene a formal consultative panel to oversee the operation and evaluation of the first phase. It will be chaired by a Home Office Minister. The panel will be established within the next few months and its full composition will be finalised once a decision has been reached on the location of the initial phase—we need local knowledge to support the group. I have invited the noble Lord, Lord Best, and a number of groups to join the panel. It will also include local representatives from the area covered by the trial. The panel will provide transparency, objectivity and the necessary degree of expert input for the first phase, the location of which will be determined and published before the House rises for the summer.

We expect to announce the location for the first phase at that time and will then indicate the principal proposed themes for the evaluation, leaving it to the panel to lead work on the development of specific evaluation measures and metrics. Of course, there are obvious areas that it would be sensible for any proper valuation to cover, as the noble Baroness, Lady Lister, made clear in her contribution, including the ease with which landlords and tenants can comply with the new checks and access the necessary guidance and support services. I hope that I can reassure the House that one objective of such an evaluation is to eliminate any impact on vulnerable groups or the incidence of unlawful racial discrimination by landlords. The desired objective, which lies at the bottom of the whole policy, is to deny rented accommodation to illegal migrants.

However, Amendment 25, proposed by the noble Lord, Lord Rosser, would remove the framework from primary legislation altogether and place it wholly in secondary legislation, lessening the degree of parliamentary oversight. That simply ignores the fact that the provisions have enjoyed the closest scrutiny in this Parliament. We have, as far as possible, placed details of the proposed scheme in the primary legislation, reserving the use of regulation-making powers only where necessary. The amendment would not provide a clear legal basis to operate new landlord duties, even as a pilot. It provides no mechanism for landlords to object or appeal against a penalty, rendering the new clause incompatible with human rights law. Neither does it provide transparency in the type of tenancy agreement to be exempt from the checking requirement.

The Bill makes those provisions clear in primary legislation, in the interest of providing certainty for vulnerable groups. The Government have worked closely with bodies representing landlords, students, the homeless and vulnerable and provided important safeguards in primary legislation. It would be understandable if they were concerned if those safeguards were no longer enshrined in primary legislation. The noble Lord, Lord Rosser, will know that the negative procedure provides for further scrutiny before any further rollout of the scheme.

The noble Baroness, Lady Lister, asked specifically about lodgers of social tenants. A social tenant who takes a lodger will be a landlord for the purposes of the scheme. The Home Office will work with social landlords to help their tenants understand their obligations.

Anti-social Behaviour, Crime and Policing Bill

Debate between Lord Hodgson of Astley Abbotts and Lord Taylor of Holbeach

Wednesday 11th December 2013 Lords Chamber

[Lord Taylor of Holbeach]

My Lords, as my noble friend Lord Faulks has just said, Clause 138 is dedicated to addressing this issue and bringing the fundamental concept of proportionality into extradition matters. Much of what my noble friend Lord Hodgson of Astley Abbots proposes has already been included within the Extradition Act 2003, as it will be amended by the Bill.

It is important to recognise that the judge will consider proportionality in addition to the existing bars to extradition, such as the passage of time and human rights considerations, including any impact on family and private life. Consequently, new paragraphs (d) and (e) as provided for in Amendment 78, which seek to merge these existing considerations into the proportionality bar, are unnecessary and would have little practical impact.

Turning to the proposed new paragraphs (f) and (g), which relate to the cost of proceedings in the UK and the duration and cost of proceedings in the issuing state, I do not believe that those considerations are relevant. The proportionality bar is designed to provide additional protection to those whose extradition is sought. It is appropriate that the matters concerned should relate to the alleged crime and the potential impact on the person concerned. Of course, costs are an issue for us all, and that is why the totality of our proposals is designed to improve the workings of the Extradition Act, including reducing unnecessary delays. However, costs to the UK arising from the extradition process should not mean a denial of justice where it is right that a person is extradited. On new paragraph (g), the costs and the duration of proceedings in the issuing state are a matter for the issuing state.

New paragraph (h) would require a consideration of the public interest. That is implicit in any consideration of extradition by the courts, which look at a range of factors alongside the proportionality bar. Taken together, the statutory bars to extradition provide a broad public interest test, so it is not necessary to include a separate test here in the Bill.

Finally, new paragraph (i), which refers to other matters that the judge believes relevant, is too open-ended and leaves too many issues that could be considered. It could lead to duplication and potential delay as a result of proportionality considerations overlapping with other considerations. My noble friend Lord Faulks talked about the complexity of these issues and the opportunity that he believed the provisions give for judicial consideration, deliberation and challenges. I think that the proposals in the amendment would complicate the matter further. I must emphasise that the proportionality bar is one among a number which must be considered already, not least whether extradition would be compatible with the requested person’s human rights.

Let me assure my noble friend that, in addition to the provisions in Clause 138, we will also take a more pragmatic approach to our administrative processes when an EAW is received. This will ensure that the most trivial requests are identified and, where appropriate, dealt with administratively before even getting to the courts. The aim will be to work practically with other member states to identify alternative solutions for trivial requests.

My noble friend Lord Faulks asked: why not merge proportionality and human rights? The proportionality bar deals specifically with the proportionality of extradition as a way to deal with the conduct alleged. Proportionality is indeed a factor when considering interferences with various rights under the ECHR, but it is considered when examining the specific rights one at a time. Our bar adds to that, but deals with the wider issue of human rights within the EAW.

I hope that both my noble friends are happy with the reassurances that I have given them and that my noble friend Lord Hodgson of Astley Abbots will be content to withdraw his amendment.

[Lord Hodgson of Astley Abbotts]

I am grateful to my noble friend. He rightly chided me about the list of matters in Amendment 78 and the wide-ranging nature of my proposed new paragraph (i), which would insert the text,

“any other matter which the judge considers relevant”.

Although I entirely accept that, I do not understand why three matters are chosen in subsection (3) and why a judge must not take any other matters into account. That seems to me to be erring on the other side of the argument. I hope that he will forgive me if I say that, when I hear Ministers say, “We should be pragmatic about this”, it does not reassure me, because in this area, where we are dealing with people’s liberty and livelihoods, pragmatism can go awry.

[Lord Taylor of Holbeach]

I understand the complexity of the issues that my noble friend is attempting to address in the amendments. If he feels it helpful for me to write a fuller explanation than I am able to give the Committee today, I would be very happy to do so. It may be easier if I do that; I hope that my noble friend will accept that.

[Lord Hodgson of Astley Abbotts]

Of course I would be delighted to receive a letter from my noble friend. That would also enable me to reflect fully on what has been said, take expert advice on the technical matters which we are discussing this evening and decide whether to take the matter further. In the mean time, I beg leave to withdraw the amendment.

--- Later in debate ---

[Lord Hodgson of Astley Abbotts]

My Lords, in moving Amendment 77, I shall also speak to Amendments 79, 80, 81 and 87. This set of amendments keeps us in the area we have just been talking about: one of the three specified matters. The amendments emphasise the importance of less coercive, less disruptive measures than a full European arrest warrant. Where a state issuing an EAW refuses to use them, the judge could take that refusal into account before granting an EAW.

New subsection (3)(c), which sets out the third of the three matters we have just been discussing, currently reads,

“the possibility of the relevant foreign authorities taking measures that would be less coercive”.

Amendment 77 replaces “possibility of”—a pretty low test, in my view—with “availability of”. Amendments 80 and 81 are essentially consequential.

The assumption underlying the provision relating to less coercive measures is that the severely restrictive measure of extradition, involving deprivation of liberty and the physical transport of a person away from home and family, should be used only as a last resort. The issuing state should therefore use that mechanism only when other, less restrictive measures are unavailable. If other such measures are available—for instance, because of the existence of mutual legal assistance mechanisms or, once it is negotiated, the European investigation order—extradition should be refused if they have not been used. The reference to the possibility of using such alternative measures may result in an issuing state avoiding their use due to a lack of resources and/or bureaucratic difficulties in liaison between the competent authorities of the issuing state and the judicial authority that issued the EAW.

I argue that, although the EAW system provides for extradition between judicial authorities, the physical transfer of a person under an EAW is still a process between two EU member states which are, as a whole, bound to observe the principle of proportionality. All their authorities, such as ministries of justice or the interior—where these are responsible for mutual legal assistance requests—should, therefore, be jointly expected to search for alternative solutions before choosing the heavy-handed option of extradition. Accordingly, if an alternative is available, under bilateral or multilateral arrangements between member states, this should be used before the EAW.

Amendment 79 would ensure that, if there are alternative mechanisms available to the issuing state, its failure to use them will always result in the refusal of the EAW, irrespective of the gravity of the offence or any other matter. The inclusion of the less coercive measures test appears to rest on the assumption that the step of issuing an EAW—which involves deprivation of liberty and serious human impact—should be taken as a last resort. The responsibility is on the issuing state to use less coercive measures if these are available. In the handbook on how to issue an EAW, to which I referred, the section on proportionality encourages the authority considering an EAW to use alternatives, including mutual legal assistance, videoconferencing or a summons. The logic that less restrictive alternatives should be used before issuing an EAW applies regardless of the seriousness of the allegation in question. The amendment therefore ensures that extradition is always considered disproportionate if other measures are available.

The case of Andrew Symeou demonstrates the need for it to be made clear that alternatives should be used in preference to the EAW, irrespective of the offence at issue. The Greek police and prosecution authorities could have made use of mutual legal assistance; for instance by asking UK authorities to obtain evidence from the witnesses who had allegedly incriminated Andrew. These witnesses would have been able to explain that they had been subject to police brutality and did not stand by their earlier evidence, which had been taken under pressure and without the assistance of an interpreter. Instead, the Greek authorities opted to have an EAW issued, requiring Andrew’s extradition to Greece to face trial for allegations which might have been found to be without basis much earlier if MLA had been used. The English court should have been able to refuse Andrew’s extradition on the ground that alternative measures were available. I beg to move.

[Lord Taylor of Holbeach]

My Lords, as my noble friend explained, his amendments in this group seek to widen yet further the proportionality bar to extradition in Part 1 cases. As I have already indicated, Clause 138 will allow the UK courts to deal with the long-standing issue of proportionality, which, as I have already said, is a fundamental principle of EU law.

Amendments 77, 79, 80 and 81 would require a judge to consider whether the requesting state has less coercive measures available to it. If so, the judge must bar extradition on proportionality grounds. However, even where such measures may exist, they may not be appropriate in each case, depending on the nature of the crime and other factors such as relevant previous criminal history. It would not be right to require a judge to bar extradition wherever less coercive measures are available. I therefore prefer the existing subsection (3)(c) of the new section inserted by Clause 138—to which my noble friend drew attention—which addresses the issue more attractively than the choice of words proposed in the amendment. That said, the existence of alternatives is clearly a relevant factor, and that is why the clause specifies that this is one of the factors that the judge must take into account when considering proportionality.

Amendment 87 to Clause 140 is consequential on the amendments to Clause 138. It would require a judge to conclude that less coercive measures were available if a person had made a request for temporary transfer, as envisaged by Clause 140, but the issuing state had refused that request unreasonably. This would mean that the judge would have to bar extradition on proportionality grounds. This would require our courts to make an assessment of the rationale of a decision made by the authorities in another member state. Given this, we do not think it appropriate automatically to link a decision not to agree to a temporary transfer with the consideration of proportionality. The EAW framework decision is clear that temporary transfer must be agreed by mutual consent, and it is therefore open to the issuing state to refuse a request, including the UK where we are seeking someone’s extradition to the UK.

--- Later in debate ---

[Lord Taylor of Holbeach]

My Lords, as my noble friend has explained, Clause 141 makes the right of appeal against a decision to order extradition subject to the leave of the High Court. Similarly, it makes the requesting state’s right of appeal against a decision to discharge a person from extradition proceedings subject to the leave of the High Court. Clause 141 also allows the requested person to make an application for leave to appeal out of time in certain circumstances. This does not apply to the requesting state.

The noble Lord, Lord Rosser, using his blunt instrument, gives me the opportunity to broaden the debate beyond the immediate amendments and explain how this process will work and why the Government feel justified in introducing Clause 141. My noble friend Lord Hodgson, in tabling his Amendments 88 and 90, challenges us on why we are making these changes. At present, a person has an automatic right of appeal against a decision to order his or her extradition, and the requesting state also has an automatic right of appeal against a decision not to order extradition—an important factor to bear in mind.

As noble Lords are aware, the Government commissioned a review by Sir Scott Baker of the UK’s extradition arrangements. One of the key findings of his review was that the success rate of appeals was extremely low: less than 13% in 2010. In other words, the court system is burdened by unmeritorious appeals, a fact to which my noble friend Lord Hodgson referred, which then delay hearings for all appellants and means that justice is deferred. Clause 141 addresses this problem by making appeals subject to permission from the High Court. This filter applies to appeals against, for example, a judge’s decision to order extradition to a Part 1 territory, that is, another member state; a judge’s decision to send a case to the Secretary of State to consider extradition in Part 2 cases, that is, where the requesting country is not an EU member state; and to a decision by the Secretary of State to order extradition in Part 2 cases. To provide parity, it also applies to appeals against decisions to discharge a person.

My noble friend Lord Hodgson asked what sort of issues a court would consider in deciding whether to allow an application to be heard. This will be, as one would expect, a matter for the judge concerned. They will, of course, give full consideration to all the relevant factors raised by the appellant before reaching a decision. We do not think that they are appropriate to be set out in legislation, as it is a matter for the court itself to consider. I understand that noble Lords will have questions about what safeguards will be available. Let me reassure noble Lords that this provision does not prevent anyone from applying for permission to appeal. Once an application has been made, the High Court will decide which cases proceed to a hearing, but each application will be considered by a High Court judge. Furthermore, Clause 141 sets out that the High Court must not refuse to entertain an application for leave to appeal by the requested person solely because it has been submitted outside the normal time period, if the person did everything reasonably possible to ensure that the notice was given as soon as it could be.

That point brings me to the matters that my noble friend Lord Hodgson raised in relation to this in his Amendments 88A, 89, 91 and 92. My noble friend proposes to amend Clause 141 to insert a requirement for the courts to allow an appeal to be made out of time if it is in the interests of justice to do so. As I said, Clause 141 allows the High Court to hear an out-of-time appeal where the person has done everything reasonably possible to bring the appeal as soon as possible. Our approach follows that of the Supreme Court, which ruled last year that out-of-time appeals should only be considered exceptionally. We believe that this provision gets the balance right: the timetable for an appeal is clear and there must be an onus on an appellant to meet the statutory requirements, as happens in the vast majority of cases.

My noble friend is also proposing to extend the time limit for appeals in Part 1 cases from seven days to 14 days. As he has explained, this was one of the recommendations that Sir Scott Baker made in his review of our extradition arrangements. We have therefore considered it very carefully in developing the provisions in the Bill. Our view is that extending the time limit in this way would have no practical effect beyond increasing the likelihood for delay. As I said, we have introduced new protections where people are unable to submit their appeals on time through no fault of their own. We believe that this new provision will address the concerns raised by my noble friend, and indeed by Sir Scott Baker, on this issue.

What safeguards will exist under these new provisions? We do not believe that we are removing any existing safeguards. We need to get the balance right between ensuring proper protection for those subject to an extradition request while ensuring that people do not delay their proper surrender by burdening the courts with unmeritorious appeals. We believe that this approach gets these matters right. The court itself will decide the issues and the relevance of any out-of-time considerations.

The changes set out in Clause 141 will allow the courts to focus their attention on the right appeals, removing the burden of unmeritorious appeals while ensuring that proper safeguards are in place for those subject to extradition. I commend the clause to the Committee and I hope that my noble friend will be prepared to withdraw his amendment, and that the noble Lord, Lord Rosser, will see the merit in the clause.

[Lord Hodgson of Astley Abbotts]

I am grateful to my noble friend for that fulsome reply. I am disappointed that the Government have not seen fit to follow up the Scott Baker proposal for 14 days instead of seven days, given the complexity of the appeal process, particularly when linked to the additional steps that the Government are taking to introduce prohibitions on and difficulties in getting an appeal process going in the first place. Obviously, however, this is not the time to take the argument further. I look forward to reading with care in Hansard tomorrow what the Minister has said. I beg leave to withdraw the amendment.

--- Later in debate ---

[Lord Hodgson of Astley Abbotts]

My Lords, Amendment 94, which is concerned with mistaken identity, and Amendment 95 would insert two new clauses into the Bill. Amendment 94 would enable the judge at the extradition hearing—whether it is a prosecution or a conviction warrant—to request more information where there is a real doubt as to whether the person sought is actually the person suspected or convicted. This would be particularly valuable in cases where there is a reasonable belief that the person sought has had his or her identity stolen or where there is a clear case of mistaken identity. In these days of cybercrime, the former is an increasingly common occurrence.

There are currently no grounds in domestic law on which to refuse extradition where there are serious doubts about whether the person sought is the person who committed the crime or is suspected to have committed the crime. Such a situation has arisen in several cases where the person subject to the EAW has had their identity stolen by the real perpetrator or where that perpetrator has identified someone else as the person who committed the offence.

This is demonstrated by the case of Edmond Arapi, who was tried and convicted in his absence in Italy and given a sentence of 16 years. He had no idea that he was wanted for a crime or that the trial or subsequent appeal had taken place until he was arrested at Gatwick Airport in 2009 on an EAW on his way back from a family holiday. The British courts ordered that Edmond be sent to serve the sentence in Italy, despite clear proof that he was at work in the UK on the day of the alleged offence. On the day that the High Court was due to hear his appeal against extradition, the Italian authorities decided to withdraw the EAW following a campaign, admitting that they had sought Edmond in error. He narrowly avoided being separated from his wife and children, including a newborn son, and spending months or years in an Italian prison awaiting a retrial. This amendment is needed to give courts greater discretion to request further information where there are reasonable grounds to believe that the person sought under an EAW is the victim of mistaken or stolen identity.

Amendment 95 seeks to clarify the approach that a judge should follow in relation to human rights and provide a stronger basis on which to refuse to execute an EAW on human rights grounds. Many have argued that the underlying assumption of the EAW system—that other Part 1 territories can always be trusted to respect the fundamental rights of those extradited—rests on shaky foundations. For instance, it has been reported that in the years 2007 to 2012, Greece violated Article 6(1) of the ECHR 93 times in criminal cases.

Garry Mann, giving evidence to the Home Affairs Committee, described his 2004 trial in Portugal as follows, stating that,

“the police … just told me it was some kind of public order offence … we went into court and there were 12 of us … we had one interpreter … she would try to say something and pass it down the line of 12, but we did not understand what was going on at all … They asked me what I thought in broken English, but again the judge and the lawyer did not speak much English … I never knew the charge that I was facing until 30 minutes before I was convicted at 11.30 that night … They said there was no time to call any witnesses. I said I would like CCTV; no time to call CCTV”.

An English court later called on to issue a football banning order against Garry refused, finding that the trial had not complied with Article 6 of the ECHR.

The courts have, however, given very short shrift to arguments alleging that extradition would lead to a violation of human rights. In accordance with the concept of mutual trust, on which the operation of the EAW is based, the courts assume that the issuing state will protect the extradited person against any unfairness and that past proceedings giving rise to convictions on which EAWs are based were fair. A person must show that they are at risk of a “flagrant” breach of their fair trial rights in order to resist extradition. The approach is difficult to sustain when there are ongoing systematic deficiencies in a justice system, which are liable to impact upon an extradited person. For instance, the European Court of Human Rights recently found Italy in violation of Article 3 of the ECHR and applied its pilot judgment procedure, recognising that widespread overcrowding was leading to systematic infringements of Article 3. The concept of mutual trust is difficult to defend in such circumstances. If an extradited person is going to be detained in the same prison, it is plainly likely that their human rights will be infringed.

The Government have taken the view that the EAW framework decision implicitly allows refusal to execute an EAW on human rights grounds, relying on recital 12 and Article 1(3) of the framework decision, which affirm that the latter shall not have the effect of modifying the obligation to respect fundamental rights and fundamental legal principles, as recognised by Article 6 of the Treaty on European Union and reflected in the European Charter of Fundamental Rights. However, the precise content of those fundamental rights obligations is not clear. In her opinion on the Radu case, Advocate-General Sharpston suggested that, under the charter, the test was whether there was a “substantially well founded risk” of a violation which would,

“fundamentally destroy the fairness of the trial”,

a slightly different test from the ECHR flagrancy test. However, for the time being, the precise requirements of fundamental rights are not defined in EU legislation. Accordingly the member states enjoy some discretion to apply fundamental rights as they understand them, provided that this does not compromise the unity and effectiveness of EU law. This amendment therefore falls within the permissible bounds of the EAW framework decision. I beg to move.

[Lord Taylor of Holbeach]

My Lords, the additional safeguards that my noble friend has proposed through Amendment 94 seek to introduce matters of mistaken identity. It is not something that we believe is necessary. Clearly, we do not want the wrong people to be extradited; the wider issues relating to identity were carefully considered during the review of the UK’s extradition arrangements. Sir Scott Baker did not find any evidence that a person who was subjected to mistaken identity had actually been surrendered to stand trial. He concluded that there was no need to amend the Act to require a judge to request further information concerning the requesting person’s identity. Nor did the Metropolitan Police, the Crown Prosecution Service or the Crown Office raise concerns about the issue.

I agree with expert opinion and I am not persuaded that a change is needed here. My noble friend asked about the case of Mr Arapi—I will try to avoid talking about particular cases—but, as my noble friend will be aware, Mr Arapi was not extradited and the Italian authorities admitted their error in making the request for him rather than another person of the same name. In his review, Sir Scott Baker found that no amendment was needed to the protections already afforded in the Act with regard to identity as there are already sufficient procedures in place to protect people who are sought as a result of mistaken identity.

The amendment raises the particular issue of a judge being clear that the person who has been arrested and appears in court is the person who is alleged to have committed the crime. This goes to the heart of the trial in the issuing stage. It is not a matter for the UK courts. The courts’ consideration of an extradition request is not one of guilt or innocence but of whether any of the statutory bars to extradition apply.

Turning to Amendment 95, my noble friend seeks to make changes to a judge’s consideration of human rights in EAW cases, including expanding the matters to which the judge should have regard when considering whether extradition would breach a person’s human rights.

We believe that there are already sufficient safeguards in the Extradition Act to allow a judge to bar extradition on human rights grounds. The 2003 Act is drafted to allow the courts to give the fullest possible consideration to human rights issues. We discussed this matter in earlier deliberations in Committee. In all cases, the judge must decide whether extradition would be compatible with the convention rights and must discharge the person if he or she decides that it would not be compatible.

In his review of the UK’s extradition procedures, Sir Scott Baker found that the human rights bar to extradition did not need amending. The review found that the bar did not permit injustice or oppression, and the Government agree with that assessment. We do not accept that a judge’s approach to human rights needs to be changed.

In conclusion, I am very grateful to my noble friend for giving the Committee this opportunity to consider various aspects of Part 12 of the Bill.

EU: Eurojust (EUC Report)

Debate between Lord Hodgson of Astley Abbotts and Lord Taylor of Holbeach

Monday 4th November 2013 Lords Chamber

[The Parliamentary Under-Secretary of State, Home Office (Lord Taylor of Holbeach) (Con)]

My Lords, I thank the noble Baroness, Lady Corston, and the European Union Committee, many of whose members have spoken in this debate, for bringing forward this Motion and for their work on this report. As noble Lords have said, we were here a week ago to debate the issue of the European Public Prosecutor’s Office when the House concluded that it should issue a reasoned opinion against that proposal as it breached the principle of subsidiarity. Today, we have turned to the related matter of the opt-in decision triggered by the European Commission’s parallel proposal for a Eurojust regulation. We have had a full debate and I have listened to it with great interest.

The Government’s view is that the UK should not opt in to the draft regulation on Eurojust at this time and we should conduct a thorough review of the final agreed text to inform active consideration of opting in to it, post adoption, in consultation with Parliament. I am pleased to say that a Motion to that effect was agreed in the other place last week. It has been very good to have the support of the noble Lord, Lord Rosser, expressing the Opposition’s view that this presented the right approach in the interests of Parliament and of Government.

The Government have said clearly that we value the current Eurojust arrangements, which is why we are seeking to rejoin them as part of the 2014 opt-out decision. I can only agree with the noble and learned Lord, Lord Hope of Craighead, and all other noble Lords who have pointed out the merits of the current Eurojust arrangements. Moreover, prior to the publication of the new Eurojust proposal, we said consistently that there was no need to reform Eurojust at this time; indeed, the Security Minister in the other place, James Brokenshire, made that case clearly at the 10th anniversary of Eurojust last year.

Current legislation is still undergoing a peer evaluation, which will not be complete until next year, and the Commission has not put forward a convincing case as to why the new proposal is needed. However, regrettably, it has come forward with a new Eurojust proposal that contains a number of substantial concerns. In particular, as the European Union Committee’s report elegantly describes, the Eurojust proposal is interwoven with the EPPO proposal. The reforms proposed to Eurojust would see deep connections made to the EPPO with operational, management and administrative links between the two bodies. At this time we cannot be certain either about the shape of the EPPO proposal itself—not least given the subsidiarity yellow card that has been issued, as we know, as a result of our debate and debates in other parliaments—or how the relationship between the EPPO and Eurojust might ultimately be defined.

I say to the noble Lord, Lord Elystan-Morgan, that our concerns articulated in this House last week have not gone away. To update the noble Lord, Lord Rowlands, who asked where we were now as a result of last Monday, the number of votes from national parliaments on the EPPO means that the Commission must now review its proposal. Officials speaking on behalf of Commissioner Reding, however, have interpreted this as being the majority of national parliaments not opposing the proposal. It would be a huge mistake no longer to consider the EPPO presenting a risk for the new Eurojust proposal. That is our view of the situation at the present time. The Government therefore believe that it would be extremely and unnecessarily risky to bind ourselves to the European Public Prosecutor’s Office through our participation in the new Eurojust proposal at the start of negotiations. This would be a needless risk when we can review our place in Eurojust upon its adoption.

The new Eurojust measure also proposes to create new mandatory powers for Eurojust national members—powers which would enable them to require coercive measures at a national level. The current Eurojust measure works well and it does not force member states to give their national members such extensive powers. The new proposal unnecessarily removes this discretion. These proposals would cut across the division of responsibilities and separation of powers between police and prosecutors in England, Wales and Northern Ireland. It is quite clear that these proposals would conflict with the role of the Lord Advocate in Scotland, who has been at the apex of the Scottish criminal justice system since at least the time of the first recorded holder of that office, Sir John Ross of Montgreenan, in 1483. Before this debate I had no idea that the office so ably held by my noble and learned friend Lord Wallace of Tankerness had such ancient roots.

The evidence that the Lord Advocate gave to the committee was on the existing Eurojust measure about which there is no dispute among us—it is a valuable measure—not the new proposal. That evidence is therefore not relevant: the new proposal might actually undermine the role of the Lord Advocate. It was following consultation with the Scottish Government that we came to our view. On consultation, we have consulted the devolved Administrations in Scotland and Northern Ireland. They have told us that they understand our reasoning and they would not seek to demur from our proposed approach. The concern in relation to the Lord Advocate’s role follows consultation with the Scottish Government. Our clear view is that we should not opt in to the new Eurojust proposal at the start of negotiations because the risks it presents are unacceptably high for our criminal justice system arrangements.

I hope that I can also allay some of the concerns expressed in the European Union Committee’s report that we might “miss out” on these negotiations. Indeed, in introducing the debate, the noble Baroness, Lady Corston, made such remarks and they have been reinforced by the speeches of the noble Baroness, Lady O’Loan and my noble friends Lord Hodgson of Astley Abbotts, Lord Stoneham of Droxford and Lady Hamwee. All have talked in terms of our missing out or not being involved in the negotiations. I assure noble Lords that where we do not opt in at the start of negotiations we will nevertheless be actively involved. Not only will we be present in the negotiating room at all levels, we will be able to intervene as and when we wish. If we do not opt in to this measure now, we will nevertheless be at the negotiating table energetically representing our interests, and we will be able actively to consider opting in post-adoption based on the final text and the further views of Parliament. I hope that reassures noble Lords that this may be an opt-out or a non-opt-in to the revised proposal but it is not an opting-out of our responsibility to negotiate and make a success of Eurojust, which it has been for all participating countries in the past. I assure noble Lords that we will vigorously represent our views on both the Eurojust and EPPO measures.

Moreover, as your Lordships may be aware, Ireland has also said that it will not opt in to the Eurojust proposal at the start and, of course, Denmark cannot participate in post-Lisbon justice and home affairs measures, so we are not isolated or alone in our position. I reassure the noble Lord, Lord Rosser, regarding the other issues we are concerned about. The coalition agreement is clear that the Government will consider the impact of any of these measures on the UK criminal justice system when considering an opt-in to any measure. We have set out our concerns on that point very clearly and it is an area that we want improved.

I conclude by making clear our commitment to the current Eurojust arrangements—

[Lord Hodgson of Astley Abbotts]

I am extremely grateful to the noble Lord and I am sure that I speak for a lot of noble Lords when I say that I am reassured by the energetic negotiations that will take place around the edge of the formal negotiations, and I hope that they are successful. However, the question we are left with is what happens if the final negotiations are not to our satisfaction. What happens to our membership of Eurojust in its present form? It is hard to believe that our fellow members will allow us to remain a member of Eurojust on the old terms and not accept the new terms which we will have no part—at least, no direct part—in negotiating.

Justice and Security Bill [HL]

Debate between Lord Hodgson of Astley Abbotts and Lord Taylor of Holbeach

Monday 19th November 2012 Lords Chamber

[Lord Taylor of Holbeach]

My Lords, I have a very full response to give to this amendment, but we have had a very full debate. It has been a very useful debate. I know that it is customary for Ministers to thank noble Lords who have presented amendments, but I thank my noble friends because they have brought to the Report stage an interesting idea about the relationship between the ISC, Parliament and the Prime Minister. Having said that, with even the noble Lord, Lord Campbell-Savours, having some doubts about the efficacy of this amendment, I am at one with the noble Lords, Lord Reid and Lord Gilbert, and my noble friend Lord King in seeing the great difficulties that this election might present. It was interesting to listen to the noble Lord, Lord Reid, analysing the motives that people might have for seeking to be rejected by the Prime Minister as being a suitable candidate. I have little doubt that some people would seek to exploit that situation.

I shall reiterate the Government’s position on this matter. This committee will be elected by Parliament and nominations will be provided by the Government. Parliament will be the final arbiter of who sits on the committee. The Government propose that the chairman of the committee will be elected by the members of the committee. That represents a sufficiently practical solution to the particular task that this committee undertakes. We have had some speculation about whether the chairman of the committee should be drawn from the Opposition. I have given the Government’s position, which is that it is for the committee to decide who should be the chairman of the committee. I do not believe that it can be done by an election by another place or by this House electing the chairman. For that reason, I ask my noble friend to withdraw his amendment.

[Lord Hodgson of Astley Abbotts]

My Lords, I am extremely grateful to all noble Lords who have contributed to the debate. I think I am probably the only person who has not served on the ISC. I think all the other speakers have served on it, so I am probably slightly blind-sided on some of this. The noble Lord, Lord Reid of Cardowan, said that the problem is that it would exclude Members of the House of Lords. It may possibly do so, but not necessarily. Secondly, he said that it would prevent the chairmanship going to a member of the Opposition. Again, it may possibly do so, but not necessarily. Both he and the noble Lord, Lord Gilbert, talked about the political fallout. Yes, but this is a very important committee, and it will be even more significant when we pass the rest of the provisions of the Bill. If the price of that is a little political disturbance, I do not think that is necessarily a bad thing. I understand his fourth argument, which was about political campaigning. At this end of the Palace, the arrangements for electing chairmen of Select Committees have gone pretty well. They have been shared out and fought over, and both parties have ended up with some chairmanships, but not all of them.

The issues are answerable. I am not saying that they are not challenging. I say to the noble Lord, Lord Martin of Springburn—

Extradition

Debate between Lord Hodgson of Astley Abbotts and Lord Taylor of Holbeach

Tuesday 16th October 2012 Lords Chamber

[Lord Taylor of Holbeach]

I thank the noble Lord. The question from the noble and learned Lord, Lord Morris, was about delays in the normal process and not about delays in the European Court of Human Rights in Strasbourg. I hope that I understood that correctly. Perhaps I may inquire about correspondence with this Government to see whether it is possible to release any of that for the noble Lord. If so, I will place a copy in the Library.

[Lord Hodgson of Astley Abbotts]

My Lords, I need to begin by declaring an interest as a trustee of Fair Trials International. I congratulate my noble friend and the Government on having introduced a forum bar. It will end the unattractive process of forum shopping, which is a search for judicial procedures that offer the greatest chance of conviction and the highest possible penalties. When the Government come to examine and review extradition arrangements, could they make sure that they include opportunities for common bail procedures and access to interpretation? Very often people operating overseas are unable to understand of what they are being accused, and access to interpretation is a critical part of their access to justice.

[Lord Taylor of Holbeach]

I am not in a position to comment in detail on those particular points, but I thank my noble friend for those suggestions. They will be borne in mind as we undertake a review of the process.