That the Grand Committee do report to the House that it has considered the Extradition Act 2003 (Amendment to Designations) Order 2010.

Relevant Document: 8th Report from the Joint Committee on Statutory Instruments.

My Lords, the Extradition Act 2003 has played a vital role in ensuring that the UK’s extradition relations with countries around the world work efficiently and effectively. Today, in an effort to further improve international co-operation, we seek to add Libya to the schedule of territories designated as extradition partners under Part 2 of the Act.

We are concerned here with further secondary legislation required to amend the Extradition Act 2003 (Designation of Part 2 Territories) Order 2010. This instrument affects the UK’s extradition arrangements with Libya. This order reflects the fact that the UK and Libya have signed an extradition treaty and exchanged instruments of ratification. Designation of Libya as a category 2 country will enable the advantages of this agreement to be given full effect in the United Kingdom.

The extradition treaty between the UK and Libya, signed by the then Foreign Office Minister and the Libyan Minister for European Affairs in November 2008, is one of a package of measures designed to increase co-operation between the law enforcement agencies of our two countries. The package of measures also includes agreements on mutual legal assistance in criminal matters, on prisoner transfer and on mutual legal assistance in civil and commercial matters. The measures will play an important role in improving judicial co-operation between the UK and Libya. They were an integral part of wider discussions with Libya to improve diplomatic relations between our countries.

The extradition treaty allows extradition to be requested for any offence that attracts a maximum penalty of at least 12 months’ imprisonment in both the UK and Libya. The evidential requirements set out in the treaty mean that both the United Kingdom and Libya must provide a prima facie evidential case against any person whom they wish to extradite.

There are currently no formal extradition arrangements between the UK and Libya, outside a number of international conventions, to which we are both party, which deal with a limited number of specific offences concerning serious criminal conduct such as terrorism or drug smuggling. The introduction of a formal basis for extradition for conduct covered by the bilateral extradition treaty will lead to a more efficient and effective process of extradition between our two countries. This is preferable to relying on the ad hoc provisions in domestic extradition law for the many serious offences such as murder and rape that do not fall under the international conventions to which I have referred.

One key advantage of the new arrangements is that they will improve our ability to achieve justice for British victims of serious crimes. The extradition treaty between the United Kingdom and Libya will provide both Governments with a sound formal framework for future co-operation. We are clear that we will not allow criminals to escape justice by crossing international borders, and we are committed to assisting our international partners to do the same.

The amendments are necessary to ensure that the United Kingdom can comply with its obligations under the bilateral extradition treaty with Libya. That is what the order seeks to achieve, and I urge noble Lords to support it. I beg to move.

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 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.

My Lords, I, too, thank the Minister for his introduction of this order.

The Explanatory Memorandum on the treaty, on the Foreign and Commonwealth Office website, describes it as,

“one element in a package of judicial co-operation measures”,

which will,

“enhance our ability to work in close co-operation with … Libya on a range of judicial co-operation issues”.

There is an obvious question: have we missed out because of the eight-month delay? Are there any consequences from that?

I had thought that there was a good deal of coverage of the treaty at the time. My memory may be serving me wrongly, but there has been particular interest in Libya and our relations with that country. Indeed, in preparation for this afternoon, I read an announcementissued by the Ministry of Justice in the summer, at the time of the controversy surrounding Mr al-Megrahi, that the agreement was now in force. Obviously it has not quite noticed either. However, we are where we are and one does not want to spend too much time on criticisms of the administrative problems. Following on from this, is there anyone in this country whose extradition is currently sought by Libya? Is there anyone in Libya whose extradition the UK currently seeks?

The central question—the point on which the noble Baroness finished—concerns the safety of extradition to Libya. Amnesty International—which is not permitted to visit—has described this in damning terms and I intend to quote a number of extracts from its most recent report because it is important to put them on the record. The report states:

“Libya’s human rights record and continuing violations cast a shadow over its improved international diplomatic standing. Freedom of expression, association and assembly remained severely restricted in a climate characterized by the repression of dissident voices and the absence of independent human rights NGOs. Refugees, asylum-seekers and migrants continued to be detained indefinitely and ill-treated. At least eight foreign nationals were executed. The legacy of past human rights violations remained unaddressed”.

It continues:

“The government did not tolerate criticism or dissent and maintained draconian legislation … political expression and group activity is banned and those who peacefully exercise their rights to freedom of expression and association may face the death penalty. The authorities continued to take action against anyone who openly addressed such taboo topics as Libya’s poor human rights record or the leadership of Mu’ammar al-Gaddafi”.

The report refers to the State Security Court,

“whose proceedings do not conform to international fair trial standards … The defendants did not have access to court-appointed counsel outside the courtroom and … were not allowed to appoint counsel of their own choosing”.

It further states:

“The right to freedom of association was severely curtailed … The authorities failed to address the long-standing pattern of impunity for perpetrators of gross human rights violations ... There were persistent reports of torture and other ill-treatment of detained migrants, refugees and asylum-seekers”.

It refers to the mass expulsions of nationals of various countries and states:

“At least 700 Eritrean men, women and children were detained and were at risk of forcible return despite fears that they would be subjected to serious human rights abuses in Eritrea”.

I do not find the report reassuring.

I am aware of the provisions of the Extradition Act and the “procedural safeguards”—the term used—in place to protect against extradition in particular circumstances. I have given the Minister notice of my question—although not long notice, I accept—about how this works. Does the court consider the regime in general terms or can it consider only the circumstances of the individual in question? Does the individual have to persuade the court of his vulnerability? To put it another way, what is the presumption, what is the burden, on the individual? I find it difficult to imagine how an individual who is seeking to persuade a court that he is in particular danger because of the human rights attitude of the country which is seeking his extradition can provide evidence of that.

I also have a technical question. Am I right in thinking that the order, and the treaty that is the context for it, supersede the memorandum of understanding for protection against torture that this country had with Libya? Does that now apply only to deportation?

I thank both noble Baronesses for their contributions. As ever, the noble Baroness, Lady Neville-Jones, was forensic in her questions. Answering them is always at least uncomfortable for a Minister. I will start with what is almost a disclaimer: if I do not do justice to the questions, I will certainly look at Hansard and ensure that I send fuller replies to both noble Baronesses.

The first question was about whether the delay has had any impact. There have been no extradition requests from Libya nor any in the other direction, so, whatever the unfortunate nature of the delay, it has not on this occasion caused major problems.

Both noble Baronesses were rightly concerned about safeguards and evidence, and about what is meant by prima facie evidence and what the requirement is. Prior to issuing a warrant for arrest, a district judge would have to consider if there was evidence providing reasonable grounds. Libya has not been designated as a country that need only provide information, as opposed to evidence. During the extradition hearing, Libya would have to establish a prima facie case and could not be relieved of the burden of establishing such a case. Therefore, there could be no question of inconsistency between the treaty and the Extradition Act.

Both noble Baronesses were rightly concerned about the human rights record in Libya and how we will build in safeguards to protect both our own citizens and others from misuse of the treaty. We see human rights as extremely important. The judge in question must consider several facts. The first is identity. Extradition will be barred if the judge is not satisfied that the person before him is the person being sought. It will be barred if dual criminality is not established. The evidence must pass the test of reasonable suspicion. Extradition will be barred if the request is made for improper reasons—that is, if the judge decides that the request has been made to persecute or punish a person, or that the person will face prejudice at his or her trial on the grounds of race, religion, nationality, gender, sexual orientation or political opinion.

I understand the concern about mission creep. It is something that we must be constantly on guard against, because it applies in so many areas of international corporation, and in international treaties. The treaty does allow extradition offences that are not described in exactly the same way; the noble Baroness was correct in making that statement. It has long been clear that, in extradition cases, the key consideration is whether the conduct underpinning the extradition request constitutes a crime in the state receiving the request. If the question were whether the conduct was criminalised in exactly the same way in both countries, this would prevent extradition solely because of differences between countries in the drafting of laws, which is common. It is important to be clear that this is not an extension of the principle that has covered extradition for many years, namely that of dual criminality. Nothing in the treaty changes that.

The noble Baroness, Lady Hamwee, raised a number of questions. The easiest one to deal with is whether the treaty subsumes previous international obligations. The answer is that it provides for the first time a comprehensive framework for extradition between the two countries. Prior to the conclusion of this, as has been rightly stated, extradition relations were piecemeal under international multilateral agreements and discrete areas of criminality. The multilateral agreement will continue to apply between the countries but, in view of the more comprehensive agreement which now exists, and even though the previous agreements still exist, we expect any extradition requests to be made under this agreement, rather than under the international obligations entered into by both countries.

Another key question was: who has to supply evidence when there is a request for the extradition of someone from the United Kingdom? Within the framework of the new Libyan extradition treaty, and under the Extradition Act 2003, it is for the requesting state—in this case, Libya—to establish the evidential case justifying extradition. It would be for the Libyans to convince a UK court that there was evidence against the person in question that established, as I said previously, a prima facie case of guilt of the relevant offence. It would be for the authorities in Libya to assemble the evidence, which would then be presented and judged in a British court.

The other question that has been raised is the broader issue of human rights. The noble Baroness read extracts from Amnesty International reports which deal with issues as broad as freedom of association, which are constrained in a whole series of countries, not least Libya. She asked what we are doing. Such rights are a broader issue. We are strong supporters of the European Union’s attempts to negotiate a framework agreement with Libya that will provide a platform for dialogue on co-operation in the wide area of human rights and fundamental freedoms.

What have we done to assist the Libyan authorities in any way? Since 2004 the Foreign and Commonwealth Office has funded a large prison project, which is being implemented by the International Centre for Prison Studies in King’s College. Clearly, there are advantages to the United Kingdom in assisting Libya. Although there are rightly still criticisms of the Libyan record on human rights, it is a fact that it has improved. The Libyan media is not as free as we would wish, and domestic political opposition is clearly not as free and open as it should be. However, those issues can be better addressed in an ongoing, collaborative new relationship with that country. In that sense, the more we can build in treaties, milestones and even cornerstones, the easier it will be to build normal relationships—not only as we understand them in this country but as they are understood, and will be understood in the future, in many parts of the world where, at the moment, perhaps they are not.

To the extent that I have failed to answer the questions, I shall certainly look at Hansard and give both noble Baronesses a detailed reply. I commend the order to the Committee.

I obviously did not make myself clear. I was not asking about the prima facie evidence of the alleged crime, or about general improvement of human rights in Libya. It was a narrower question. The legislation refers to a person; I do not know whether he is the accused, an appellant or someone else in a particular situation. If that person seeks to rely on the provisions of the Extradition Act, to which a judge must have regard in considering whether to grant the extradition order, what must the individual do? Is he able to point only to the general human rights situation and argue that because of that context he would be in danger; or must he go further and give evidence of his own position and particular threats against him and people who have done what he is alleged to have done? I suggested that some of that might be very difficult. If the Minister can answer this now, that would be helpful. If he cannot, I just want him to be clearer than I have obviously been able to make it about what my question is.

The noble Baroness is absolutely right and I apologise to her. I did not understand the point and that must be down to my stupidity rather than her putting it unclearly.

Baroness Hamwee: I did not suggest that.

In truth, that is the case because the noble Baroness gave me notice of the question and I managed to misinterpret it in my own mind, and then in seeking expert opinion, I misled the experts.

When looking at the ECHR and other issues, the important thing I have been asked is whether the district court will have to look at the regime generally or at the specific circumstances of the case. That is the question as I now understand it. The answer is that it will have to consider both. The person whose extradition is being sought will be able to draw the court’s attention to the circumstances in Libya generally. If it concerns a crime with a sentence of more than 12 months for something that we may not recognise in the United Kingdom as being an offence, such as freedom of association, the rights of the media and so on, that can be brought to the attention of the court. Moreover, the person can bring in their personal circumstances in terms of whether they would be in danger and whether it is likely that they would be given a fair trial. A case could be made on the ground that extradition would risk a breach of the judgments reached by the European Court of Human Rights. That would be a factor that had to be taken into account by the district judge. I hope that my rather clumsy attempt to answer the question is sufficient. For my own conscience, if nothing else, I will write to the noble Baroness with a more articulate and expanded version of this response.