My Lords, as my noble friend explained, his amendments in this group seek to widen yet further the proportionality bar to extradition in Part 1 cases. As I have already indicated, Clause 138 will allow the UK courts to deal with the long-standing issue of proportionality, which, as I have already said, is a fundamental principle of EU law.
Amendments 77, 79, 80 and 81 would require a judge to consider whether the requesting state has less coercive measures available to it. If so, the judge must bar extradition on proportionality grounds. However, even where such measures may exist, they may not be appropriate in each case, depending on the nature of the crime and other factors such as relevant previous criminal history. It would not be right to require a judge to bar extradition wherever less coercive measures are available. I therefore prefer the existing subsection (3)(c) of the new section inserted by Clause 138—to which my noble friend drew attention—which addresses the issue more attractively than the choice of words proposed in the amendment. That said, the existence of alternatives is clearly a relevant factor, and that is why the clause specifies that this is one of the factors that the judge must take into account when considering proportionality.
Amendment 87 to Clause 140 is consequential on the amendments to Clause 138. It would require a judge to conclude that less coercive measures were available if a person had made a request for temporary
transfer, as envisaged by Clause 140, but the issuing state had refused that request unreasonably. This would mean that the judge would have to bar extradition on proportionality grounds. This would require our courts to make an assessment of the rationale of a decision made by the authorities in another member state. Given this, we do not think it appropriate automatically to link a decision not to agree to a temporary transfer with the consideration of proportionality. The EAW framework decision is clear that temporary transfer must be agreed by mutual consent, and it is therefore open to the issuing state to refuse a request, including the UK where we are seeking someone’s extradition to the UK.
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I turn to the government Amendment 81A in this group. This seeks to build on the proportionality bar operated by the courts by ensuring that robust, pre-court, administrative procedures are also in place. Amendment 81A amends Section 2 to stipulate that the National Crime Agency must not issue a certificate if it is clear to the NCA that a judge would be required to order the person’s discharge on the basis that extradition would be disproportionate. To facilitate this, the amendment will enable the Lord Chief Justice of England and Wales, with the agreement of the Lord Justice General of Scotland and the Lord Chief Justice of Northern Ireland, to issue guidance in relation to the proportionality bar to the NCA, which it must apply in deciding whether to issue a certificate under Section 2 of the Extradition Act 2003. The content of any such guidance will, as noble Lords will understand, be a matter for the judiciary.
I welcome the broad support for the principle of a proportionality bar to extradition. I recognise that my noble friend takes a slightly different view of how the proportionality bar should be constructed. However, I hope that he will accept that the provisions in the Bill, augmented by Amendment 81A, achieve much of what he is seeking and that he will understand our reasons for not wishing to deviate from this approach. I ask my noble friend to withdraw his amendments and support government Amendment 81A.