Extradition Act 2003 (Amendment to Designations) Order 2010

My Lords, I thank the Minister for explaining the order. Does he agree that it is hardly acceptable that although the extradition treaty between the UK and Libya was signed on 17 November 2008 and ratified in April 2009, the Home Office was not informed until January of this year? That seems an extraordinary delay. Has the delay meant that the treaty has not taken effect up to this point? Presumably that must be the case. Have any extradition requests have been received from Libya since November 2008? If so, what has been their fate? I turn to the substance of the order. The Minister will be aware that concerns have been expressed by Members in this House and another place about the designation of countries as category 2 territories under the Extradition Act; and in particular the standard of proof that those countries are required to provide to justify their extradition requests. This is an area that I would like to probe. Under Sections 71(2) to 71(4) of the Extradition Act, a judge may issue a warrant if he has reasonable grounds for believing that there is evidence that would justify the issue of a warrant under his jurisdiction. However, in respect of category 2 countries, the Act specifies that information, rather than evidence, is to be provided. Later, the Act states that, at the extradition hearing itself, the judge must decide, ""whether there is evidence which would be sufficient to make a case requiring an answer by the person if the proceedings were the summary trial of information against him"." The Minister mentioned the prima facie evidence requirement. However, Sections 84(7) and 86(7) qualify that for designated category 2 countries. Those sections state that in relation to requests from category 2 countries, the judge must ignore the efficiency of evidence or information test. I am concerned and confused. At the extradition, may the judge take into account only human rights considerations and bars to extradition such as double jeopardy, passage of time and extraneous consideration? If that is the case, what is the meaning of "information"? In practice, there seems to be no clear requirement in the Extradition Act for the information provided by designated category 2 countries to satisfy what seems to be a normal requirement—that of the UK's domestic courts. My further point concerns the interplay between the Act and the treaty in this context. Paragraph (2)(b) of Article 6 states that the requesting state must provide, ""such evidence as would justify committal for trial under the laws of the requested State"." Likewise, the Explanatory Memorandum states: ""The evidential requirements set out in the Treaty mean that both the United Kingdom and Libya must provide evidence establishing a prima facie case against any person whom they wish to extradite"." My question is: which takes precedence? Does the treaty have precedence over the Act in referring to evidence rather than information? It is crucial to have clarity from the Minister about that. Can the prima facie case be re-established at the extradition hearing? Your Lordships' House debated these issues at length during the passage of the Policing and Crime Bill, and I will not rehearse the detail of old arguments, but at that time, I asked the noble and learned Baroness the Attorney-General whether a judge should not be able, at the point of the extradition hearing itself, again to establish the information being provided by category 2 countries in order to meet domestic standards. I fear that she did not, at that moment, give me an answer, but in this context, in relation to Libya, I would be grateful if the Minister could be explicit on that point. That is a simple check and safeguard, such as would increase public confidence in the extradition process. That would itself be valuable. The Minister will be aware that another concern of many is the mission creep of extradition treaties. This treaty is limited to any offence which attracts a maximum penalty of at least 12 months both the UK and Libya, or where a sentence of at least four months’ imprisonment has been imposed on conviction, as the Minister rightly said. However, Article 2(3) states that: ""For the purposes of this Article it shall not matter whether or not the laws of the Parties place the relevant conduct within the same categories of offences or denominate the offence by the same or similar description"." Where does that leave us? That seems to make nonsense of the previous requirement. How, in such circumstances, will the UK authorities make an appropriate assessment of an incoming extradition request in the context of two other requirements of the treaty—first, paragraph (2)(a) of Article 6, which requires Libya to provide, ""a statement of facts of the offence(s), of their legal classification and reference to applicable law in that instance"," and, ""the relevant text of the law prescribing punishment for the offence for which extradition is requested";" and, secondly, paragraph (2)(c) of Article 4, which states that extradition can be refused if, ""legislation is enacted in one of the states rendering the act unpunishable"?" Can the Government explain the apparent contradictions in that? Many Members of your Lordships’ House will be aware of the human rights concerns about conditions in Libya. The United States’ State Department’s most recent annual human rights report was critical of Libya for torture, arbitrary arrest, lengthy pre-trial and sometimes incommunicado detention, poor prison conditions, the denial of fair public trial by an independent judiciary and a lack of judicial recourse for alleged human rights violations. Will those aspects be taken into account when the Government consider extradition requests? In practice, despite the lack of definition in the Act about what constitutes a human rights consideration, would such consideration be regarded as covering the dangers of mistreatment for the person who might otherwise be extradited? That is not an academic point. The fate of political prisoners and the disappeared who have never been accounted for is on record. There is an example in the father of the novelist Hisham Matar, who disappeared in 1990 and has not been seen since. He may have been imprisoned. That reminds us that Libya does not have a spotless record. That case was some time ago, but in the light of the commitments that HMG are entering into, and particularly in the light of what the Minister himself said about judicial co-operation, it would be helpful to know whether the Government have taken and are taking active measures to help Libya to improve its criminal justice system and abide by international human rights obligations. For example, has there been any training that would support reform of Libya’s criminal justice system? If so, has it had any discernible impact? Have the Libyan Government shown any willingness to improve the openness to scrutiny of their system to make it more accountable? These are important points in the operation of an extradition system that is likely to command public acceptance and respect in this country. The assent of these Benches to the designation of Libya as a category 2 country under this order is extremely conditional on its satisfactory operation, which we shall monitor rigorously. Indeed, on a more general point, as the Leader of the Opposition said in another place, in our view the workings of the Extradition Act need to be reviewed. So we have some concerns about the order, but we will watch its operation and take a view on whether it is satisfactory.