Anti-social Behaviour, Crime and Policing Bill

Lord Faulks Excerpts

Wednesday 11th December 2013 Lords Chamber

[Lord Faulks (Con)]

I, too, am a member of the Joint Committee on Human Rights. Discussion, as your Lordships will anticipate, ranged far and wide over this new Schedule 8 amending Schedule 7 to the Terrorism Act. Giving the perfectly proper right to stop and seize and, at the same time, preventing so far as possible any abuse of that power is a difficult balance to strike. However, it is worth recording that we concluded that the Government had made out a case for a without -suspicion power to stop, question and search travellers at ports and airports, given the current nature of the threat from terrorism, the significance of international travel, the overall threat picture and the evidence seen by the independent reviewer demonstrating the utility of non-suspicion stops at ports in protecting national security. Therefore, we also concluded that the retention of this power under Schedule 7 was not inherently incompatible with Articles 5 and 8 of the European Convention on Human Rights.

We are in the slightly unfortunate position of still awaiting the report by the independent reviewer of terrorism legislation on the David Miranda case, which will perhaps shed some light on this power generally. The Government clearly pay considerable heed, quite rightly, to what the independent reviewer of terrorism recommends but, with great respect to my noble friend Lady Hamwee, simply subcontracting responsibility, as her Amendment 56YK would, from the Secretary of State to the independent reviewer would go rather too far.

This is a very difficult balance to strike. The Government have come some way towards a balance in favour of those who might become the victims of an abuse of power. The question is whether they have come far enough.

[Baroness Smith of Basildon (Lab)]

My Lords, this has been a useful debate. The issues that have been raised are around the difficult balance between civil liberties, national security and counterterrorism measures that the noble Lord, Lord Faulks, referred to. The points made today about those issues are extremely useful and I look forward to hearing the Minister’s comments on them.

We are greatly assisted today by the supplementary written evidence of David Anderson QC. We are indebted to him because, when giving evidence on 12 November, he was asked to spell out what changes he would recommend to the port powers in Schedule 7 and the Minister, Damian Green, had already said in the other place that he expected recommendations. At Second Reading in your Lordships’ House, I said that I thought it was optimistic of the noble Lord, Lord Avebury, to hope that we would be able to see any such recommendations from David Anderson while we were still debating the Bill. I thought he was being optimistic but that optimism was well founded. We are indebted and grateful to David Anderson for the efforts that he must have gone to in order to ensure that we had his recommendations before we had completed our deliberations—indeed, as we were having our Committee debates. I hope that the Minister will endorse that. That is very helpful and greatly welcomed.

I shall not comment on each individual amendment, but a number of the amendments before us today relate to his report. As I said, I will be interested to hear the Government’s response to them as there are areas to which the Government may want to give further consideration and on which they may want to bring forward amendments before the conclusion of proceedings on the Bill.

On Amendment 56YJ and the issue of privileged material, although David Anderson reflects that identifying the details of changes is difficult before we have the Miranda judgment, he identifies this as an area where there need to be safeguards and clarity around those safeguards. It is not an area where there should be any confusion or ambiguity. It would be helpful today if the Minister were to say on behalf of the Government whether they accept the principle of David Anderson’s recommendation in this regard. We are certainly sympathetic and would welcome the opportunity to consider further the kind of safeguards that could be introduced.

Also on Amendment 56YJ, I think it was in the Beghal v DPP decision that the court supported the introduction of a statutory bar to Schedule 7 admissions in a subsequent criminal trial, although it also recognised that this would have to be given detailed consideration. David Anderson has now added his support to that of the court and that also forms part of his recommendations. Again, we would be very sympathetic to that and would be interested to know whether the Government intend to support that recommendation, which this amendment reflects.

Amendments 56YK and 100A refer to a process by which effect could be given, almost automatically, to the recommendations of the independent reviewer of terrorism legislation. There is some merit in looking at how recommendations could be acted on more quickly but we would welcome the opportunity to see more detailed proposals. It would be helpful to have a mechanism to take action more quickly than always having to wait for the next legislative slot for primary legislation in the Government’s timetable. However, whether secondary legislation, even with the affirmative procedure, would give adequate opportunity for effective scrutiny by Parliament, which should be making the decisions, has to be looked at in some detail.

On Amendment 62A, in the names of the noble Lords, Lord Lester and Lord Avebury, we would certainly be supportive of removing the restrictions if the interview takes place in a police station. Amendments 57A, 61A and 61B would establish limits on the duty to give information and documents that are held electronically. We have concerns about how this law is currently being applied. I note that David Anderson has also called for appropriate safeguards regarding the use and retention of such data. It would be helpful to hear from the Minister whether the Government consider that the problem is a lack of clarity in the existing law or whether further action needs to be taken.

We would also be sympathetic to Amendment 64ZA on the periodic review of an individual’s detention. I would welcome the Government’s comments on David Anderson’s recommendation that the intervals for review should be specified in the schedule, as outlined in the amendment, and not just in guidance. There can sometimes be a lack of clarity around the purpose of guidance. The importance of it being in the schedule and not just in guidance was also included in the JCHR report. The Government have indicated that they may support this, so I am optimistic about a positive response on that one.

This is quite a difficult area in which to find the appropriate balance. The House has heard about the attention to detail that has been given to this range of issues. It would be helpful if the Minister could clarify in his response the Government’s views on these issues, particularly in the light of the amendments which reflect so much of what is in David Anderson’s recommendations.

--- Later in debate ---

To conclude, the Government’s proposed amendment of Section 11 of the Extradition Act by referring to a “prosecution decision” in Clause 137(1) has moved the game on, and I am grateful for that. But for the reasons explained, I do not think it goes far enough. In this very critical area, the decision to try must surely be the gold standard and these amendments will ensure this. I beg to move.

[Lord Faulks]

My Lords, I will add just a few comments to the excellent and clear introduction of these amendments by my noble friend Lord Hodgson. He stressed the importance of the matter being trial-ready before extradition takes place, and quite rightly drew a distinction between the adversarial system, which prevails here, and systems elsewhere of a more inquisitorial nature.

Of course, if somebody is awaiting trial here, the question of bail becomes highly relevant before a judge. Indeed, a judge will be able to exercise some pressure on prosecuting authorities to get on with it, in order to ensure that somebody is not kept in custody for too long. That becomes impossible once somebody has been extradited. The matter is then in the control of the local court, and there may be just the sort of delay described by my noble friend in the case of Symeou; not only was he in Greece for a very long time but when he was granted bail it was so-called local bail, which is not the same as being granted bail in your own country, because of all the compromises that have to be made in terms of work and family life.

As my noble friend acknowledged, the Government have responded to the Baker review but there is still anxiety, as he has so skilfully pointed out.

--- Later in debate ---

[Lord Hodgson of Astley Abbotts]

My Lords, I will speak also to Amendment 78. These amendments expand the issues a judge can consider in testing the proportionality of a European arrest warrant. Amendment 76 deletes the words,

“but the judge must not take any other matters into account”.

Amendment 78 extends judicial discretion as regards proportionality by a list of factors, including the cost of extradition, the consequences of extradition for the suspect and the public interest aspect.

Under the Bill, the judge must have regard to the specified matters relating to proportionality so far as he or she thinks it appropriate to do so, but must not take other matters into account. Thus, the judge is limited to the three specified matters but has discretion to ignore them. As a starting point, I would like the Government to justify why a judge should be able to ignore factors that will always be germane to the issue of proportionality. If an offence is serious, extradition is more likely to be proportionate but that does not mean that the proportionality test has no place in serious crimes. Amendment 76 therefore removes the discretion to ignore relevant factors.

Under the proposed test, the judge can take into account just three factors but it is unclear how they are supposed to relate to each other. In any case, the current list of specified matters does not allow a useful proportionality analysis. As drafted, the judge would be able to take into account the seriousness of the offence and the anticipated sentence, but since regard cannot be had to any other matter, the judge cannot balance these against the relevant considerations. For example, it is difficult to see how the judge can decide whether a less serious offence would make extradition disproportionate if the judge cannot also take into account the implication of extradition in terms of the human impact or, indeed, the costs for the UK taxpayer. The financial costs of extradition are high. The Government estimate that the execution of each EAW costs on average £20,000. In addition, the human impact of extradition can extremely severe. Recent cases under Article 8 of the ECHR have shown that the extradition of single parents can drastically disrupt the development of their children. There was the judgment of Lady Hale in HH v Deputy Prosecutor of the Italian Republic in 2012.

Recognising the need for proportionality checks on the operation of the EAW, the European Commission recognised that the issue was with,

“very minor offences which do not justify the measures and cooperation which execution of an EAW involves”,

and that there is a,

“disproportionate effect on the liberty and freedom of requested persons”,

when the EAW is used in such cases.

The point of a proportionality test should be to determine whether, on a case-by-case basis, the human and material costs are justified. Indeed, the Council of the European Union’s handbook on how to issue an EAW is 125 pages long and explains that,

“considering the severe consequences of the execution of an EAW with regard to restrictions on physical freedom and the free movement of the requested person, the competent authorities should, before deciding to issue a warrant consider proportionality by assessing a number of important factors. In particular these will include an assessment of the seriousness of the offence, the possibility of the suspect being detained, and the likely penalty imposed if the person sought is found guilty of the alleged offence”.

The Bill excludes a balancing exercise that takes into account all these relevant factors.

These amendments therefore provide the judge with sufficient discretion to consider these key factors and others, including the passage of time, since prolonged delays in prosecuting an offence and issuing an EAW may provide evidence of its very low level of seriousness, and the public interest in extradition, since this will vary in line with the seriousness of the offence. Other factors might include, for instance, the person’s conduct, in particular, whether they absconded in order to evade prosecution or left the issuing state unaware that they were being pursued.

I recognise that this will call for a case-by-case test and a fact-sensitive assessment. However, this need not affect the length or complexity of EAW proceedings. An issue raised in relation to human impact would in any event have to be considered under Article 8 of the ECHR. Under the operation envisaged by these amendments, the factors considered under Article 8 of the ECHR will be considered as part of the statutory proportionality test but alongside the cost of extradition to the United Kingdom and having greater regard to the seriousness of the extradition offence. Indeed, under the Government’s proposal, it can be argued that there will often have to be two separate proportionality analyses—one under the statutory test, excluding anything to do with family life, and another under Article 8 of the ECHR, potentially resulting in confusion and complication. Unifying the two tests, as would be achieved by these amendments, would, if anything, simplifying proceedings. I beg to move.

[Lord Faulks]

My Lords, Clause 138, “Proportionality”, will not be an easy one for a judge to interpret, as my noble friend has outlined. The question of proportionality under the Human Rights Act 1998 is one matter and then there is the statutory proportionality, which apparently is to be restricted to certain specific matters mentioned in subsections (2) and (3) of the new Section 21A that Clause 138 inserts into the Extradition Act 2003. I respectfully ask the Minister to explain why it is so necessary to distinguish between the two types of proportionality. Proportionality is a fundamental principle in EU law and, in particular, under the Human Rights Act. I suggest there is scope for confusion and therefore possible litigation if a judge misdirects himself or herself in applying proportionality in one sense and not in another.