Extradition: UK Law and Practice (Extradition Law Committee Report)

Lord Bach Excerpts

Wednesday 16th September 2015 Grand Committee

[Lord Bach (Lab)]

My Lords, I begin by thanking the noble Lord, Lord Inglewood, and his distinguished committee and congratulating them on their excellent report. I also thank all noble Lords who have spoken in this debate. All those noble Lords who were members of the committee undoubtedly had a lot to contribute, and we have heard from many of them today. I hope they will forgive me if I say this about the presence on the committee of the noble and learned Lord, Lord Brown of Eaton-under-Heywood, who has had the distinction of having heard and decided a number of the most important extradition cases over recent years. That seems to me a particularly telling point. The House of Lords has come in for much criticism recently, some of it no doubt justified, but in what other Parliament would it be possible for a committee to have the benefit of the expertise on the subject in question of a recently retired Supreme Court judge? It is a good example of how we can sometimes do better than people think.

Talking of legal luminaries, I am delighted that the noble and learned Lord will be replying for the Government. Having listened to this debate as I have, and read the Government’s response to the report, even he will have his work cut out to justify the negative tone—I am being polite there—of that government response. However, I do not want to be negative. There is a widespread and welcome consensus that,

“there is no systemic problem with the UK’s extradition regime”.

Systemic may be a rather important word in that sentence. That is what the committee found and what has been the spirit of all the contributions, more or less, today. The Labour Government, who were in power when the Extradition Act was passed in 2003, should get some credit, as should the present Government for changes that they have introduced. In such an important and sensitive area of law as extradition, there should be, if possible, broad agreement. I hope it may long continue. However, just in case all this sounds a little cosy and even a little self-satisfied, it is important to look at some of the recommendations made by the committee of the noble Lord, Lord Inglewood.

The conclusion in paragraph 90 of the report is that,

“it is questionable, in our view, whether the UK can be as certain as it should be that it is meeting its human rights obligations”,

because of the “flawed” nature of the arrangements in place for monitoring assurances. The committee argued for a clear government response on that, which leads to my first question to the Minister. Can he can tell the Committee today when the review of the monitoring of assurances will be completed? The noble Lord, Lord Inglewood, himself asked that question earlier today. What appears to be autumn in the Government’s response to that request can often turn out to the rest of us to be deepest winter in government-speak, and even, occasionally, when the first daffodils appear. It would be helpful to know when the review will be completed.

The next point I want to raise briefly is recommendation 8 at paragraph 199 and the relationship between extradition law and proceedings in family court child abduction cases and people-trafficking law. The committee asked the Government to commission a review, to which the Government said they would give further consideration. Have they done so, and if so, what are their conclusions?

It is on the disagreement about means-tested legal aid and the matter of legal advice that I want to comment in a little more detail. Chapter 6 of the report deals with legal advice, legal aid and expert evidence from paragraph 200 onwards. On legal advice, the committee was concerned, rightly, that the duty solicitor rota is not a satisfactory scheme. Unlike other duty schemes, there are no assessments, qualifications or mandatory training, which is particularly important. This is perhaps particularly unfortunate in this field of law, as anyone glancing at the report will understand that the first appearance can be so important in deciding which way the case will go—for example, how long it will take and how much it will cost. Those are considerations such that if you get it right on first hearing it can save everybody—for want of a better phrase—a great deal of agony later on.

Recommendation 9 was for a ticketing system so that proper expertise is there from the “earliest point”. Alas, the Legal Aid Agency said no through its witness,

“simply because of an issue of cost”.

The Government’s response puts it perhaps rather more elegantly, but it comes to the same thing. They state:

“The Legal Aid Agency … does not believe that the cost of introducing an accreditation scheme for extradition work is proportionate to the level of concerns reported to the Committee. Given that no accreditation scheme currently exists for extradition, costs would be incurred in the development of a scheme and defence solicitors would have to pay for training and examination”.

Will the Minister think again on that matter? Expert advice and representation from the start invariably has the advantage of not just being in the interests of justice but saves costs down the line. This is especially true in extradition cases.

As to whether requested people should be means- tested before being granted legal aid, there is a huge imbalance in opinion. Sir Scott Baker, in his review, leading lawyers in the field who gave evidence to the noble Lord, Lord Inglewood’s committee, the Office of the Chief Magistrate, and, of course, the committee itself in its recommendations, support a system that is not means-tested. Only Her Majesty’s Government oppose it in unambiguous—I think that that is being polite—terms; they really dismiss the idea. They of course deny any link between means-testing and all that it involves, and delays to the extradition process.

However, in a powerful passage in the report—I refer to paragraphs 216 and 217 on pages 62 and 63—the case is made out by the committee for no means-testing for automatic legal aid. It can just take too long for an award to be made—I do not think that one should hide away from that fact. An award is not often made straightaway and it is extremely difficult for many people who come before the court in extradition matters to be able to fill in the documentary requirement satisfactorily. There is also the argument about cost, as has been referred to, and the Government’s refusal to have a proper cost/benefit analysis, which, reading between the lines, it is clear the committee felt very strongly about.

Recommendation 10 of the committee is strongly worded. It states:

“The Government should conduct and publish a full and detailed cost-benefit analysis. In our view, unless a cost-benefit analysis very clearly favours retaining means testing, the interests of justice should take priority”.

That is a powerful argument and I look forward to the Minister’s response to it.

I wish that I could say that I am surprised by the Government’s written response, but I am not. Having closely—perhaps too closely for my own good—followed the Government’s approach to legal aid for five-and-a-half years or so, they have in my view nearly always got it wrong, and this is another instance of that. Can the Minister, who has a reputation for being a most persuasive advocate, go back to the department and ask it to think again about that matter?

I do not want to end on a discordant note. Extradition law, with its particular difficulties and its great human sensitivities, is in one way a very good mark of a country’s whole approach to the rule of law and the principles of access to justice—I hope that we can all agree on that. It is the committee’s view, and it is a view that I am happy to share, that on balance the United Kingdom does this pretty well. However, it would be good to see the further improvements that the committee recommends. The Committee looks forward to hearing from the Minister.