Crime and Courts Bill [HL]

Debate between Lord Lloyd of Berwick and Lord Dubs

Monday 25th March 2013 Lords Chamber

[Lord Lloyd of Berwick]

My Lords, I hope that what I am about to suggest will find favour with the noble Lord and the rest of the House. I remind noble Lords that we have 20 pages of amendments before us to consider at some time tonight. They were never considered at all on the Floor of the House of Commons and have never been considered by us at all, until now. They could have been brought before us last year. They were not. They have been brought before us at the last moment, and it is almost disgraceful for us to be asked to amend the law in an important respect that will undoubtedly affect our foreign relations without the matter having been properly considered in this House and the other place. I am sorry that the noble Lord does not immediately rise to that debate, but I seriously suggest to him—and I hope that there will be support for this—that instead of debating these 20 pages of amendments, the whole part that deals with extradition should be considered in the next Session of Parliament. It could easily be dealt with as a new Bill brought before either this House or the other place at the beginning of the next Session. That would be the proper way to deal with a matter of this importance.

[Lord Dubs]

I support the noble and learned Lord in what he said. It seems rather curious that the Government have introduced amendments in the Commons at the last minute that, by definition, we cannot debate fully because we are dealing with Commons amendments. We cannot have the proper debate that we would be likely to have in Committee and on Report. We are being treated rather badly by the Government. This is an important issue. A couple of years ago, when I was a member, the Joint Committee on Human Rights spent a lot of time considering extradition—it is an important issue. In terms of parliamentary democracy, the Commons did not consider these amendments at all, and we are being asked to do so in a truncated form late this evening when we will not have a chance for a proper debate. Surely the noble and learned Lord has a good case.

--- Later in debate ---

[Lord Lloyd of Berwick]

My Lords, perhaps I may speak to Amendment 24B, which is included in this group. Earlier today I suggested that Commons Amendments 24 and 136 should be postponed for the reason that these amendments, unlike all the others we have been discussing today, were not considered at all on the Floor of the House of Commons, and are only being considered at this very late stage in this House—one that is, let me say, barely full. This is not the way to legislate. It is also so unnecessary.

When I said earlier today that these two amendments should be postponed, I think I made it clear that the Government should withdraw these two amendments now and bring them back early in the next Session of Parliament when we can debate them properly both in the other place and here. I cannot see what the Government can possibly lose by taking that course. Yes, there would be some delay, but as it is seven years since we have had a forum bar on the statute book and it has never yet been put into force, I find it impossible not to ask what the hurry is now. Although there would be a delay of a few extra months, it would not make all that much difference, and at least it would mean that we had done justice to these very important amendments, which now we shall not be able to do.

I agree with almost every single word of the noble Lord, Lord Rosser, in his excellent speech, but he will not actually expect me to support the detail of his amendment. That is because we already have the Scott Baker review, which was published just under two years ago. What we ought to be doing today is implementing that review rather than legislating in its teeth and asking for another review in three years’ time. I repeat, what a way to legislate: to appoint a group like that led by Lord Justice Scott Baker to go into this question and then to ignore what it said. I believe that I am right in saying that the noble Lord, in proposing his amendment, did not once refer to Lord Justice Scott Baker’s report. Again, what a way to legislate.

I turn to the merits of the new forum clause and ask how it would fare judged against the Scott Baker report. I can say that it has all the defects of the 2006 forum clause, which was so strongly criticised by Lord Justice Scott Baker, with some more defects besides. The basic mistake is to believe that the question of where a defendant should be prosecuted when there are different countries claiming jurisdiction should be decided by a judge, on the grounds, so it seems, that that will produce a fairer result. I can understand that view but, in my strong opinion, it is not the way ahead. Where there are competing jurisdictions, the question can only sensibly be decided by agreement between the two competing jurisdictions. One of the main considerations in these cases must always be where the bulk of the evidence lies on which the defendant is to be convicted, if he is to be convicted. That is essentially a question for the prosecuting authorities. They will have all the material at their disposal. How is that material to be put before the judge? Are they to appear before the judge and argue the toss before him—is that what is proposed? If it is to be a judge, why should it be a judge in England rather than a judge in the requesting state? At pages 222 and 223 of the report, the authors give nine distinct reasons why a forum bar is not the way ahead. I would have liked to have heard the noble Lord’s answer to each one of those reasons. However, I will content myself with simply reading their conclusion, at page 228:

“However, in our firmly held view the issue of forum is better decided by the prosecuting authority than the court. A decision about where a case should be tried is par excellence a prosecutorial decision, as is a decision whether it should be prosecuted at all: the prosecuting authority will be familiar with the detail of the case, the available evidence and the viability of proceeding in one jurisdiction rather than another”.

That conclusion should have been accepted by the Government but it has not been.

That is only one of the reasons given in the Scott Baker report. Another, which I think the noble Lord has already touched on, is that it would necessarily generate satellite litigation. I will read what the report says the district judges, the people who decide these cases, had to say on that question:

“The evidence of the District Judges dealing with extradition cases was strongly to the contrary”—

in other words, against a forum bar. The report continues:

“They cautioned that if brought into force the sections would generate litigation and that it would be very difficult to control the evidence of the party seeking to resist extradition. For example, it will be contended that wide ranging disclosure of documents is necessary when an ‘all the circumstances interests of justice’ test has to be met”.

One of the many reasons why the 2006 forum bar was never brought into force was that it was thought to be too complicated. If the 2006 Act was complicated, how much more complicated is this forum provision, where we have prosecuting certificates of the designated prosecutors being questioned, under proposed new Section 19E in Amendment 136, before the High Court in judicial review proceedings? How is that going to speed up the process of extradition, which is the whole object of these proceedings? It is madness to think that it will; it will not.

Another reason that has been given—this is the last that I shall mention—is that enacting these provisions will automatically put us in breach of our international obligations. That is certainly a point which was carefully dealt with by the noble Lord, Lord Rosser, and I agree with what he said. In respect of category 1 countries, for example, we already have a system for deciding between two countries where there is a dispute as to where the proceedings should take place. That is known as Eurojust, and it is a system that is operating now and without any difficulty. If we pass a forum bar, we will have to opt out of Eurojust. Are we to be the only country to do so? No other country, so far as I know, has suggested anything similar to a forum bar.

What about the category 2 countries? Exactly the same applies as when we had existing extradition arrangements. Why should other countries which are not in Europe be satisfied with the decision of our court about which is the most suitable jurisdiction for the defendant to be prosecuted? Those are reasons which were given by the noble and learned Baroness, Lady Scotland, and they were absolutely sound. No answer to that objection has yet been given.

I come back to where I started. These are but three of the reasons why this forum will not work. I prophesy that it will not ever be brought into force. Like the 2006 Act, it will be found to be impracticable and actually impede the speed which is so essential in these extradition cases. I wish the noble Lord had accepted my suggestion that this matter should now be withdrawn by the Government and brought back again in the next Session when we could debate it properly. However, I understand that it is now too late to hope for that.

[Lord Dubs]

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.

Justice and Security Bill [HL]

Debate between Lord Lloyd of Berwick and Lord Dubs

Tuesday 17th July 2012 Lords Chamber

[Lord Dubs]

My Lords, let us suppose that we have the first case heard or not heard in public under these new procedures. There are bound to be doubts, particularly if it is a case that has achieved a certain amount of publicity and notoriety, about the reliability and integrity of a verdict that has been entered against a citizen after the court has heard the evidence against him or her in secret. It is something to do with the concept, in a phrase that I have heard, of the secret whispers that the judge will have heard. I am not for a moment suggesting that the judge would not behave with total reliability and integrity, but there is also the question of the public perception of how that has happened.

There has to be a concern that the public may perceive that a single judge might be thought of as being one-sided if he repeatedly hears the state’s evidence in secret and finds in its favour. All that we shall know is that the judge has heard a lot more than the rest of the world is able to discern. Is it possible to develop any safeguards against what would be a serious perception about how the judges have operated? I repeat that I am not in any way suggesting that the judge would not behave with integrity, but he has to be seen to do so by the public.

This probing amendment suggests that there is one way of lessening a critical perception on the part of the public. That would be to appoint judicial commissioners. They would be able to sit with the judge. It would not be the judge on his own, but there would be four judicial commissioners. As the amendment makes clear, these judicial commissioners would be security-cleared county court judges or retired members of the upper judiciary; they would be totally independent of the security services or the Armed Forces; and, wherever possible, they would not have sat on CMPs before. All I am talking about here is a very simple safeguard that would not affect the principle of what the Government are about.

By putting this amendment forward, I am in no way accepting the basic principle of CMPs, but if one tries to make something one does not like less bad, one is not necessarily accepting the principle of the thing—just in case there is any misunderstanding. Having said that, to make this work less badly than the Bill currently proposes, I am simply suggesting that it might be helpful to have independent commissioners sitting alongside the judge. I beg to move.

[Lord Lloyd of Berwick]

I have not had much time to consider this amendment but, on the face of it, it seems attractive. Of course, judges are quite used to sitting with assessors on questions of fact. Certainly that is true in patent cases at all levels and, if I remember correctly, the Restrictive Practices Court used to sit with lay assessors. It is true that in all those cases the assessor would be an expert rather than a judge, so he would not be able to overrule the judge on a question of fact. But that was not always so in other cases; for example, the president of an employment tribunal could always be overruled—and was sometimes overruled —by the two other members of the tribunal on a pure question of fact. Therefore, the idea of the judge in these cases sitting with other judges is not altogether startling.

However, the reason I support the amendment is rather different from the one given by the noble Lord, Lord Dubs. Being a judge can be a very anxious business. Of course, in the most serious criminal cases findings of fact are made by the jury, so the problem does not arise, but there are very serious civil cases where the judge has to make a finding of fact as to which side he believes, and that necessarily involves a finding that the other side is lying. I sat in many such cases and I often felt the need for someone sitting beside me who could either confirm or overrule my view. One surely cannot imagine a more serious sort of case than that which is going to be tried under the new closed material procedure, and I support the amendment for that reason.

I have doubts about subsection (3). I would have thought that two assessors rather than four would be sufficient for the noble Lord’s purpose. It would certainly have been sufficient for my purpose when I was sitting as a judge. I hope that the Minister will give a fair wind to this amendment, which I support.