Extradition Act 2003 (Amendment to Designations) Order 2006

My Lords, I would like to ask the Minister whether these states have given the benefit of the forum exemption to their own citizens, either with respect to Article 7(1) of the European Convention on Extradition, in the case of Montenegro and Bosnia, or to Article 4(7)(a) in the Council framework decision of 13 June 2002 on the European arrest warrant, in the case of Romania and Bulgaria. As your Lordships know, we have not done so in our own legislation. I raise this issue, first, in the context of reciprocity. That was, of course, the central question in the great debate over the United States extradition treaty. We could not understand why the Government negotiators had not sought, let alone achieved, what Ireland and France had succeeded in achieving effortlessly; that is to say, the insertion of forum protection in the treaty to offset the continued requirement of the United States that we show probable cause. The noble Baroness should not be lulled into thinking that, just because we decided not to vote to send the matter back to another place for a third time, we found the Government’s arguments in any way convincing. We, of course, have the right to do so, just as the Parliament Acts of 1911 and 1949 can, in response, be invoked by the Government. These are constitutional powers given to us by the elected House. This right, I entirely accept, should be used extremely sparingly and only in appropriate circumstances. In the American case, the view was taken that, despite the breathtaking irresponsibility of the Government in the way they conducted the negotiations, we were faced with a concluded treaty with both states on the point of exchanging instruments of ratification. Two other considerations influenced us. Our amendments were added to a really substantial Bill which otherwise had nothing whatsoever to do with extradition. If the Government had invoked the Parliament Act, the whole Bill—a Bill which contained many good things that needed speedily to reach the statute book—would have been delayed. Moreover, it was plain that the revolt by the Government’s Back-Benchers against ratification of the treaty was substantially at an end. It may be, of course, that if we are one day to become an elected House, in similar circumstances a different approach would be adopted. Today I am faced with a constraining convention of a different sort: that the House—apart from the most exceptional circumstances, one of which occurred this afternoon—does not vote against secondary legislation, although it cannot amend it. I recognise that. However, the Government have more room for manoeuvre than they claimed to have in the American case. There is no reason whatsoever why they cannot amend the Extradition Act 2003 to incorporate the terms of Articles 7(1) and 4(7)(a). Both the European Convention on Extradition and the framework decision on the European arrest warrant permit us to do that. Quite apart from whether reciprocity is a factor in this case, there is another reason why we should amend the 2003 Act in the way that I suggest. Concerns about the judicial system in Romania, freely acknowledged by the Government in another place—and in your Lordships' House today—give particular force to the argument that I am about to advance. As the noble Baroness is well aware, a recent Court of Appeal decision concluded that the terms of extradition treaties override the Human Rights Act, so the incorporation of the Human Rights Act inthe Extradition Act 2003 is of limited protection to the individual. That is all the more reason for the courts to have the right to assess the appropriateness of forum in the light of all the locational and evidential considerations of an alleged extraditable offence.