Baroness Scotland of Asthal moved Amendment No. 169A:
Page 39, line 20, after "constable" insert "or customs officer"
On Question, amendment agreed to.
Clause 72, as amended, agreed to.
Clause 73 [Person arrested under provisional warrant]:
[Amendments Nos. 170 to 175 not moved.]
[Amendments Nos. 176 and 177 had been withdrawn from the Marshalled List.]
[Amendments Nos. 178 and 179 not moved.]
Page 40, line 31, leave out "40" and insert "45"
The noble Baroness said: In moving the amendment, I also want to speak to the two amendments on the same topic tabled in the name of the noble Baroness, Lady Anelay. The area is complex and it would be appropriate if I set out the background and what happens at present. I apologise in advance if I have to speak at some length. I hope that I shall be able to present the framework so that Members of the Committee can understand how everything fits in. It is a difficult little journey on which we have to go.
What we are concerned with here is provisional arrest in Part 2 cases and what happens immediately following it. In cases where the person has been provisionally arrested, he must be brought before a district judge for an initial hearing as soon as practicable. At the initial hearing, the judge must decide whether to grant bail or remand the fugitive in custody and give the fugitive information about consenting to extradition. He must also set the date by which the requesting state has to produce the full papers, and that is what the amendments are concerned with. Failure to meet the deadline leads to the fugitive's discharge.
That is all fairly familiar as it is similar to what happens under the present system, but there is one important distinction. The Extradition Act 1989 is essentially silent on how long the period should be. By seeking, as we do in Clause 73, to set a firm time limit, we are providing a degree of clarity and certainty that has always been lacking. I trust that Members of the Committee will welcome that.
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Given that the Extradition Act 1989 contains no defined periods, it is worth looking at what the established practice is, not least because it determined how we went about framing Clause 73(10). In deciding how long to give the requesting state to produce the full papers, the district judge will look at which requesting state it is.
Requesting states fall into three broad categories. The first is those countries which are parties to the European Convention on Extradition—the ECE—about which we have already spoken. In the case of a provisional request involving an ECE country, the district judge will apply the ECE procedures. Article 16(4) of the ECE states that following provisional arrest the requesting state has 40 days in which to produce full papers, and that, therefore, is the figure which our district judges will apply.
The second group of countries is our bilateral extradition partners, and here the picture is much more mixed. Quite simply, our bilateral extradition treaties contain a wide variety of figures and the district judge will use whatever figure is in the relevant treaty.
I shall give a few examples. Our treaties with Argentina and Ecuador put the figure at 30 days. Our treaties with the USA and Brazil put the figure at 60 days. Our treaties with Monaco and Iraq refer to two calendar months, while our treaties with Peru and Chile set the time limit at 90 days. I should make clear that, in relation to Monaco and Iraq, the two calendar months are not chosen. Therefore, we do not know whether those months will be February and December or whether some other arrangement will apply.
Incidentally, it gives me great pleasure to refer to our extradition treaty with Brazil. Thanks to the escapades of a certain Mr Biggs, the myth that the United Kingdom has no extradition relations with Brazil appears to be a very persuasive one, which I am happy to knock down. That is a digression.
The third group of countries which may be involved in provisional arrest cases is our Commonwealth partners. Here, the situation is even messier as our extradition relations with those countries are based on the Commonwealth extradition scheme, which does not contain any figure at all. The normal practice of our judges, when faced with a Commonwealth provisional arrest case, has been to set a 60-day deadline for the production of the papers, although it is fair to say that that has not been so in absolutely every case. Therefore, I hope that the Committee will see that at present we have a rather complex situation of which we must try to make some sense.
However, there is one further, but very important, factor which I need to throw into this delightful mix. When the judge sets the deadline, he sets the time by which the papers must be received by the Secretary of State. He is not setting the deadline by which he, the judge, must have them before his court. So long as the Secretary of State receives the full papers at the end of the period which the judge has set, the judge can then set a further deadline for the papers, accompanied by
the Secretary of State's authority to proceed, to come before him. Again, rather unhelpfully, the Extradition Act 1989 is silent on how long that second period should be. The normal practice is for it to be seven days, but there have been plenty of cases where longer periods—of 14 days or more—have also been set.
Therefore, having looked at what we have now, perhaps I may set out the approach that we have sought to adopt and say why we now believe that an amendment to the Bill is required. As I have already indicated, we took the view that it would be beneficial to spell out, so far as possible, on the face of the Bill the time allowed for the production of full papers following provisional arrest.
Accordingly, Clause 73(10) sets the limit at 40 days. Perhaps I may explain why we have gone for that figure. As I indicated, that is the figure in the ECE and we anticipate that a significant volume of Part 2 requests will come from ECE countries. For those countries, stating the 40-day limit in the Bill will make no difference in practice.
By contrast, for Commonwealth countries, which are used to having 60 days in which to produce papers, this represents a very real change. They may find it an unwelcome change. But I am sure that Members of the Committee agree that, in the interests of the fugitive, we should try to reduce the period so far as we can. A period of 40 days is all well and good but, as will be appreciated, for some of our bilateral treaty partners it is longer than the treaty allows. However, for the great majority of them, it is shorter than the treaty permits. That is why we included Clause 73(10)(b). It allows us to vary the period to reflect the terms of the particular bilateral treaty so that when we come to designate, for example, Brazil as an extradition partner, the order will provide that Brazil will have 60 days rather than 40 days to provide full papers, to conform with our treaty with Brazil. I remind Members of the Committee that, following an earlier government concession, all the orders will be subject to the affirmative resolution procedure.
If we did not have Clause 73(10)(b)—I am aware that one of the opposition amendments seeks to remove it—we could be faced with the situation where Brazil supplies full papers on the 55th day, fully in accordance with its international treaty obligations, only to find that the UK, contrary to its treaty obligations, has already discharged the person. I am sure that Members of the Committee would agree that that would be unsatisfactory. Equally, I am sure that they will recognise that seeking to renegotiate all our bilateral extradition treaties simply to deal with the issue would not be a sensible or practical approach. I hope that the Committee recognises that we need the flexibility provided by Clause 73(10)(b), and that the noble Baroness will not seek to press her amendment which removes it.
Having set out the case for 40 days—one rather feels that that is appropriate for being in the desert—let me explain why we seek to amend it and substitute 45 days. The key point is that the Bill specifies that at the end of the period the papers must be with the district
judge, having first been certified by the Secretary of State. We have deliberately sought to avoid the situation of the 1989 Act, where there is first a deadline for papers to get to the Secretary of State, and then a further deadline for him to get the papers to the district judge. Instead, there is a single deadline by which all the necessary documentation has to get to the district judge.
The problem arises if, say, an ECE country provided the full papers on the 40th day—as it would be fully entitled to do under the terms of the ECE—it is most unlikely that we could get the papers certified by the Secretary of State and to the court before the fugitive had to be discharged. Accordingly, the Government seek to build in an extra five days to allow for the Secretary of State's certification function. That is similar to the second period allowed for in current legislation. The Committee will recall that I said a few minutes ago that the practice is for that period to be set at seven days or longer, so again we are shortening the process to the benefit of the fugitive.
That is the case for the Bill and the amendment to it which we are proposing. I have already dealt with Amendment No. 181 from the noble Baroness, and explained why it would not be desirable in the circumstances. Let me turn to Amendment No. 180, which would remove the figure of 40 days and put in its place 28 days. It will not surprise Members of the Committee to know that I am not in favour of it. I have explained that we are bound by a number of international obligations. The shortest of those give our international partners 30 days to produce full papers, while most set a significantly longer period than that. Specifying 28 days in the Bill would lead to a large number of fugitives being released and the UK regularly breaching its treaty obligations. Neither of those would be desirable.
I apologise for having spoken at such length, but the issues are important. I hope that the Committee will feel that I could not have explained the complexities without going through the issues step by step. The Government's approach brings a measure of certainty to what I hope all Members of the Committee will accept has been a somewhat confused area. It allows the United Kingdom to comply fully with its international obligations, while, at the same time, in a number of cases significantly reducing the time that countries will have to produce full papers. For the reasons that I have given, we do not believe that we need to extend the period in the Bill further than 40 days, but extending the period to 45 days simply copies the seven or more days that exist in current legislation. If noble Lords are not totally exhausted by that explanation, I beg to move.