Speech – Extradition Legislation

SPEECHES

Extradition Legislation

Sir,

In rising to speak on this policy letter, I must begin by placing it in personal and political context.

The personal, then. Anyone who has visited my flat will know that it is pretty much furnished, insulated and decorated with books. That’s hardly a surprise. But a disproportionate number of those books come from within prisons, prison camps or places under occupation or oppression.

The reason for that, I’m afraid, does not flatter my character. It is simply this: I do not know how I could be good, or brave, or kind to others, in circumstances where my freedom was unfairly taken from me. I do not know – and yet goodness, and bravery, and kindness matter more to me than anything. So I am always looking to others who have been deprived of their liberty in that way, who often have been subjected relentlessly to the most dehumanising of conditions, and who nonetheless have retained their humanity, their compassion and their faith in others. I am constantly searching for clues, in the words of Viktor Frankl, as to how one “keeps one’s courage in the certainty that the hopelessness of one’s struggle does not detract from its dignity and its meaning.”

Sir, in a Guernsey context I am unlikely ever to be arbitrarily deprived of my liberty. If ever I find the courage to work in places that are less safe than here, who knows. Nevertheless, it is a visceral, almost existential, fear which I hold. It will, I think, shine some light on why I care so much about policy letters such as this.

As for the political context: The Committee for Home Affairs have already brought a number of reports to the States which, essentially, boil down to the question of what powers the government should have to deprive a citizen, an individual, of their freedom. In June we debated the annual report of the Police Complaints Commission – that is, the checks and balances necessary to ensure that powers to arrest, investigate and detain are used in the interests of justice and public protection, while ensuring that the freedom and dignity of islanders are not unjustly compromised. I mentioned in the Assembly, at that time, that misuse of police power would be a matter of concern under the Convention Against Torture.

Earlier this month, we approved the appointment of a new Chair of the Parole Review Committee. This, in the words of a former Bailiff, is a “public body” which has “the right to decide between a person’s liberty and their incarceration”. The people who compose it have to make decisions which go right to the heart of justice, public safety and individual liberty in this island – and do so, at present, without formal statutory guidance. At the time, I asked the Committee for Home Affairs for assurance on the recruitment process they had used; and was also grateful to be assured that new Parole legislation, which was approved by the States seven years ago, in 2009, is finally likely to be enacted, with its supporting secondary legislation, in early 2017.

Today we consider a proposal to update our Extradition Legislation. Once again, this is a subject where I have sought considerable further information behind the scenes – and Sir, through you, I would wish to thank Deputy Lowe and her Committee for their tolerance, engagement and help. My initial disappointment with the policy letter was that it served simply as a vehicle to transmit legal advice to the States, without the benefit of the Committee’s own considered analysis and policy conclusions alongside. By engaging with the Committee, I learned that much of that considered analysis had indeed taken place in the background – and I am grateful to Deputy Graham and Deputy Prow, who responded to me individually, and Deputy Lowe, who responded on behalf of her whole Committee, whose responses all demonstrated much substance and careful consideration, which usefully supplemented the policy letter.

The core argument of this policy letter is strong. Extradition from Guernsey is currently governed by the UK’s 1989 Extradition Act. It is a piece of law which has been repealed in the UK, but which lingers on in Guernsey until we modernise our own legislation. It is obviously becoming increasingly out of date. In bringing our law up-to-date, we will reduce the risk of poor outcomes and possible damage to our international reputation as a result of an ageing regime. We will put the island in a stronger position in respect of our own justice system and in respect of our outward-facing responsibilities.

Sir, I am not standing to speak because I do not like the proposal in this policy letter. On the contrary, I welcome it. But I have two concerns. The first is this: if I have not already laboured the point enough, extradition is a question of how and when and why we deprive people of their liberty in the interests of justice and public safety. It is a weighty matter which deserves careful consideration. It is not deportation: it is not about removing people who have no right to be here. It is about the way in which we permit island residents – including our own native citizens – to be tried and punished for crimes under the justice system of another country. It is, in other words, a big deal. It therefore deserves air time, and the scrutiny of States Members. I fear we will spend less time on this than on the schedule for 2017 which we are to consider next – and what does that say about the maturity of our democracy?

My second concern is this: it is a considerable leap from the six-page policy letter we have before us to a full draft Law, even one closely based on the UK’s Extradition Act. As with many such things, there are bound to be complications in the drafting, and questions about how it should be implemented in practice. As it is, I understand, rather harder to amend a draft law than it is to amend the policy letter providing the drafting instructions, I thought seriously about whether it would be appropriate to bring an amendment to this policy letter requesting a more detailed follow-up setting out precisely what the law is to cover. This would allow the Committee and the States to flesh out any areas of complexity, where we might otherwise fall into what my colleague, Deputy Graham, would call a Winnie-the-Pooh trap. However, the Committee for Home Affairs includes experienced politicians and politicians who have knowledge in this area by virtue of their background or professional training. This led me to trust that the Committee will have the collective judgment and wisdom necessary to decide, if appropriate, to bring an interim report back to the States, should it consider that there are issues in the drafting which need to be ironed out by the Assembly.

Sir, there are, even so, certain matters within the Extradition policy letter which gave me pause for thought.

The first and most fundamental of those was a question of capacity. The policy letter refers to one review of the UK’s current Extradition Act, which has resulted in some legislative changes. However, since 2003, there have been at least five reviews and reports into various aspects of the Act, including, most recently, a House of Lords Select Committee Report on “Extradition: UK Law and Practice”. In the words of that report, “the controversy which the 2003 Act has attracted is not unique to [it]. Its predecessors […] also gave rise to difficult cases. [… And] many other countries similarly grapple with the duties of comity between nations in the interests of international justice and the protection of their own citizens.”

In other words, extradition is a fraught area of policy, which nations much bigger than us continue to struggle with. We do not have the justice or international relations infrastructure to cope with some of the ethical and practical complexities which can arise from time to time.

Having discussed this with the Committee for Home Affairs, I was pleased to receive assurance this week that “any decision relating to human rights, designations, or other issues that engage foreign policy or similar matters would be taken after working closely with the UK”, following established practice in other areas with an international dimension. This is also, I understand, a continuation of the arrangements which exist under the current extradition legislation. It was readily acknowledged that “Guernsey does not have the resources that would enable [us] to do this alone, such as [our] own diplomatic or intelligence services.” I was a little disconcerted, however, to be advised that this “strays into […] issues of operational practice” which would not “ordinarily be included in a policy letter” – when, in fact, it seems to me that this is highly pertinent to questions of our international personality and our constitutional relationship with the UK.

While the UK’s own extradition regime is not perfect – either in policy or in practice, as the five reports I’ve referred to clearly demonstrate – close working with the UK will, without doubt, put us in a much stronger position than any we could achieve as a tiny jurisdiction working alone.

Sir, the policy letter also gave me pause for thought around the role of HM Procureur. It was unfortunate, perhaps, that the recommendation that the Procureur should be given powers equal to those of the Home Secretary in the UK should have been made in the Procureur’s own words. Again, it belied the careful consideration which the Committee have clearly given this matter. Since raising the question with Home Affairs, I have been advised that they sought advice on the appropriateness of assigning this role to various office-holders, and that their conclusion in favour of the Procureur was founded on parallels with existing roles held by that office in respect of other international functions, and on the fact that the Jersey system, which is similar, has already withstood comprehensive legal challenge. I found the more detailed information I was given reasonable and persuasive, and think it is helpful to make note of it here.

Finally, Sir, the policy letter gave me pause for thought in respect of its closing paragraphs, suggesting that we take the opportunity to “address extradition within the British Isles”. What, precisely, is intended here is unclear, although I understand that this is likely to be a consolidation of existing laws, rather than the creation of new rules. Again, this is an area where we will need to see the detail, in the draft legislation, and once more give it careful scrutiny.

Sir, I will support the Committee’s proposition, as I am sure most if not all of my fellow States Members will. I have made these remarks in the spirit of the careful consideration and scrutiny which I believe any wise and fair government should apply to matters which concern the potential deprivation of liberty of its citizens; especially where this could result in people being judged, not by our own justice system, but by that of another jurisdiction.

I apologise to the Committee for Home Affairs for what are becoming, in Deputy St Pier’s words, “predictable questions from a predictable source.” Almost by definition, the matters for which that Committee is responsible go right to the heart of the business of government. They are questions of justice and liberty, which speak to what it means to be a citizen, and what it means to be a civilised society. They are therefore, equally by definition, deserving of a high level of scrutiny by States Members – and I am sure that the Committee Members, more than anyone, recognise the importance of the Assembly acting as a check and balance on the powers of government, while respecting the interests of justice, public safety and individual liberty. I am grateful to them for their continued and patient engagement on this and other matters, and I look forward to debating the draft Extradition Law in due course.

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