All 9 contributions to the Extradition (Provisional Arrest) Act 2020

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Tue 7th Jan 2020
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Tue 4th Feb 2020
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Thu 5th Mar 2020
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Mon 23rd Mar 2020
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Mon 15th Jun 2020
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Mon 22nd Jun 2020
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Tue 8th Sep 2020
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Wed 14th Oct 2020
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Thu 22nd Oct 2020
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Extradition (Provisional Arrest) Bill [HL]

1st reading & 1st reading (Hansard): House of Lords & 1st reading (Hansard)
Tuesday 7th January 2020

(2 years, 7 months ago)

Lords Chamber
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First Reading
15:18
A Bill to create a power of arrest, without warrant, for the purpose of extraditing people for serious offences.
The Bill was introduced by Baroness Williams of Trafford, read a first time and ordered to be printed.

Extradition (Provisional Arrest) Bill [HL]

2nd reading (Hansard): House of Lords & 2nd reading (Hansard) & 2nd reading
Tuesday 4th February 2020

(2 years, 6 months ago)

Lords Chamber
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Second Reading
15:34
Moved by
Baroness Williams of Trafford Portrait Baroness Williams of Trafford
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That the Bill be now read a second time.

Baroness Williams of Trafford Portrait The Minister of State, Home Office (Baroness Williams of Trafford) (Con)
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My Lords, I start by making clear what this Bill does not do. It does not change our extradition process or any of the existing safeguards in extradition proceedings. It does not make it more or less likely that a person will be extradited. It does not in any way affect the current judicial oversight of the extradition process or the character of the court proceedings themselves. Nor is it concerned with the UK’s extradition relationships with other countries or the recent case of Anne Sacoolas. It is concerned only with how suspects enter the court system. The only thing that this Bill changes is when and how a fugitive wanted for a serious offence by a trusted country is brought before the UK court.

Currently, when UK police have a chance encounter with a suspect who is wanted by a non-EU country, they cannot arrest them. The officer is required to walk away and obtain a warrant from a judge, only to try to relocate that individual later to make the necessary arrest. This means that fugitives known to the police to be wanted for serious offences remain free on our streets to abscond or offend. In 2017, an individual wanted by one of the countries in the scope of the Bill, for the rape of a child, was identified at a routine traffic stop. Without the power to arrest, the police had no power to detain him then and there. That individual is still at large.

This Bill will change that. It will ensure that fugitives identified by the police or at the UK border can be arrested immediately. They can be taken off our streets and brought before a judge within 24 hours. This ability for the police to arrest these fugitives as soon as they are encountered will prevent them escaping and evading justice or harming the UK public. The usual way in which police officers become aware of an international fugitive is the circulation of alerts through Interpol channels. Interpol alerts from all countries are now routinely available to UK police and Border Force officers. This circulation of Interpol alerts has created a situation whereby a police or Border Force officer might encounter an individual whom they can see, by performing a simple database check, is wanted for a serious offence by another country. These front-line officers need the power to act immediately on this information to keep our citizens safe.

Many countries, including most EU member states, afford their police the power of immediate arrest on the basis of Interpol alerts. The Bill will create a limited version of that power, with appropriate safeguards. It will apply only to alerts from countries that do not abuse Interpol systems, that respect the international rules-based system and that have criminal justice systems we trust; and only to alerts relating to sufficiently serious offences.

The need for this immediate arrest power is clear. Noble Lords will no doubt be aware that the European arrest warrant carries an immediate power of arrest for individuals wanted by EU member states. Last year, over 60% of the EAW arrests made by the Metropolitan Police were the result of a chance encounter. Without a similar immediate power of arrest for people wanted by non-EU countries, known fugitives walk free. I will give noble Lords a further example. In 2016, UK authorities were alerted that a fugitive wanted by a country in the scope of this Bill, for crimes involving sexual offences with a minor, had entered the UK. He could not be arrested there and then, although the police did obtain a warrant. However, that suspect was not arrested until he was re-encountered in 2019. For those three years he was at large on our streets. We cannot allow that situation to continue.

I turn to the provisions in the Bill. The Bill proposes a power for UK law enforcement officers to arrest an individual on the basis of an international arrest request, typically an Interpol alert, without a UK warrant having been issued first. The new power will apply only where the request has been issued by a specified country. These countries are ones in whose criminal justice systems and use of Interpol alerts we have a high level of confidence. Initially the power will apply to requests from the USA, Canada, Australia, New Zealand, Liechtenstein and Switzerland. It will also apply only where an individual is wanted for a sufficiently serious offence, one that would be a criminal offence in the UK and which could result in a custodial sentence of three or more years.

It is not front-line police officers who will have to decide whether an Interpol alert is from a specified country or for a sufficiently serious offence. The National Crime Agency receives Interpol requests and it will identify which alerts have been issued by a specified country and for a sufficiently serious offence. The NCA will then certify those alerts as carrying the power of immediate arrest. These certified alerts will be clearly distinguishable on the databases available to police officers and Border Force officers. Those officers will be able to tell which alerts relate to individuals who are eligible for arrest. This process will ensure that the power is used appropriately and as we intend it to be.

The arrested person must be brought before a judge within 24 hours of arrest. Thereafter, this legislation does not change any part of the subsequent extradition process. The safeguards that exist in extradition proceedings, set out under Part 2 of the Extradition Act, will continue to apply. For example, the person will not be extradited if doing so would breach their human rights, if the request is politically motivated or if they would be at risk of facing the death penalty.

Without this power, a potentially dangerous individual who is known to the police can remain at liberty on UK streets, able to offend or abscond. The new power will see people who are wanted for a serious crime by a trusted country, and who may be a danger to the public, off our streets as soon as they are encountered. We will continue to strengthen our security with like-minded security partners across the globe. In future, additional countries whose criminal justice systems and use of Interpol systems we trust can be specified within the legislation, if both Houses approve.

Our commitments to human rights protection and the rule of law remain unchanged. The arrested individual will be in front of a judge within 24 hours of arrest, and the existing safeguards afforded to each and every person before the UK courts for extradition will remain as now. We are not removing any of this judicial oversight from the extradition process; in fact, we are not making any changes at all to extradition law. We are making changes to police powers of arrest for international fugitives.

As a global leader in security, we want to make the best use of our overseas networks and international tools. The new power will enable us to do so. The Government are committed to doing all that we can to protect the public, and the Bill is directed to that end. I beg to move.

15:43
Baroness Hamwee Portrait Baroness Hamwee (LD)
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My Lords, I thank the Minister for her explanation of the Bill. We understand its limited scope but she will understand that the subject of extradition is bound to tempt observations on the whole issue of extradition, not just on the narrow scope of the Bill. No doubt there will be some creative attempts, though not from me, to bring concerns within the scope of the rather cunningly narrow Long Title.

The big question for me, and the immediate one, is not just “why?” but “why now?” The Minister is clear that this has nothing to do with leaving the EU and the unavailability of the European arrest warrants but, frankly, given the timing of the Bill, that defies credibility. The game is given away by the letter from the Metropolitan Police, the National Police Chiefs’ Council, Counter Terrorism Policing and the National Crime Agency which the Government have prayed in aid for the need for the Bill. They start their letter to the Home Secretary of 6 January by saying that they are writing to highlight the operational gaps to which the Minister referred. They say:

“The risks in this area are not new, but have been brought into sharp focus as a consequence of our collective efforts to plan for the United Kingdom’s exit from the EU. The European Arrest Warrant enables an officer to arrest a wanted subject there and then.”


They go on to explain the process used when that is not available.

We will not oppose the Bill from these Benches but we will take opportunities to explore some of the issues it throws up and get some assurances on the record. However, I am afraid it will not be possible to avoid mention of our leaving the EU entirely. I wish we were considering the security and law-enforcement measures that will be needed in the absence of our EU membership as a package, because they are interconnected. However, some of them may be a way off.

The political declaration stated that the EU and the UK should

“establish a broad, comprehensive and balanced security partnership.”

Even without the reference to a balanced partnership, however, I would have expected reciprocity in the arrangements between the UK and each other state. In an extremely helpful briefing meeting yesterday, for which I thank the Minister and her officials, the Minister told us that the Government were not seeking reciprocity. Could she unpack what that means and explain why not? Could she tell us the position regarding Germany, whose constitution precludes the extradition of German nationals to a non-EU state? I understand that there are similar issues regarding Austria and Slovenia.

During the transition period, Article 185 of the withdrawal agreement allows any member state that has raised reasons related to fundamental principles of national law to refuse to surrender its nationals to the UK in response to a European arrest warrant. This is an issue for now, not the end of the implementation or transition period. The House would welcome being informed on this.

No two states are the same, so I would be grateful for a specific assurance on the following point; the Minister is aware that I will ask about this. Under the Bill, countries can be added to the schedule through a statutory instrument subject to the affirmative procedure. Of course, statutory instruments are not amendable, so it seems to us that it would be inappropriate for any SI to add more than a single country. It would not be possible for your Lordships to delete one country from a list presented in a statutory instrument, so I hope the Minister can confirm that there will be no bulk orders, if I may put it that way.

I shall make a wider point relating to EU states, but it is relevant to replacements for the EAW. As I said, states are not the same as one another. I recall evidence given to the Select Committee on Extradition Law, which sat in 2014, I think. I was a member and we may hear more from the noble Lord, Lord Inglewood, who chaired it. We heard concerns about the treatment of prisoners in other states, for instance. The extradition power of arrest introduced by the Bill raises human rights issues, as well as political motivations. The courts have applied a human rights lens, including, for instance, on the condition of prisons in EU states.

The Minister mentioned the death penalty. It is a matter for the Secretary of State. There should be no extradition if the person

“could be, will be or has been sentenced to death for the offence”

unless the Secretary of State receives a written assurance, which he considers adequate, that the sentence of death will not be imposed, or that, if it is imposed, will not be carried out. That is in the 2003 Act. However, we have had a recent example, in quite a different context, of where death penalty assurances were not sought by the predecessor to the current Government—which I think of as the same Government.

There are ethical issues, too. Topically, is live facial recognition technology being used to find the subjects of extradition requests? Are the subjects of Interpol red notices on watch lists? The use and reliability of the technology are controversial.

Other noble Lords may refer to the United States and its criminal justice system. That is not a new issue, and it is very important—but I think I have made the general point.

When one thinks about safeguards, that is in part a question about holding to account and the governance of the arrangement. How will the designated authority, the NCA, be held to account? In particular, how will it demonstrate the steps taken before certifying a request? This is the triage process referred to in the impact assessment.

Finally—for today, at any rate—I will ask about consultation. What discussions have there been on the Bill with interested organisations—apart from the police, of course—and what consultation will there be as countries are added? We know that the police are keen to see this implemented and we understand the benefits. What is proposed by way of consultation when it comes to adding category 2 countries?

I am not surprised that this is one of the first Bills of the Session. It will have fitted the Government’s agenda well. As I said, we are persuaded that it is right to go ahead, and the police have explained that very clearly. But I will quote from an article by a solicitor, Rebecca Niblock, to which our ever-excellent Library has pointed us. She wrote:

“Whilst the impact assessment makes reference to the possibility of using the scheme for arrests which would have been EAW arrests but for Brexit, this is painted as an additional benefit, ancillary to the primary one. This seems, at best, disingenuous. Whilst speeding up the apprehension of six serious criminals a year is a laudable aim, a far graver concern is the immediate loss of the EAW scheme. Promoting the Bill as one which is primarily concerned with the problem of arrests from non-EU countries has the benefit of avoiding an emphasis on what will be lost when we leave the EU, whilst giving the appearance of enhancing law and order.”


We on these Benches heartily concur.

15:52
Lord Judge Portrait Lord Judge (CB)
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My Lords, there was a beguiling opening to the debate from the Minister. “Really, this is no more than a new extradition-based arrest power.” And so it is. Of course, we all want criminals, whether they are British criminals or foreign visitors, to be arrested to face justice. The process envisaged in the Bill for this purpose is on the basis of a warrant issued in a foreign country, and then a certificate issued here by an authority designated by the Secretary of State. You may be arrested by a police constable or others—I need not go through them—without any pre-reference to any domestic judicial authority.

The reference to the domestic judicial authority occurs after you have been arrested. So the entire fairness of the process—its “trustworthiness”, to use a word that has been used in the papers—is dependent on the quality of the judicial processes available in the foreign country.

The six countries identified range from tiny Liechtenstein to probably the most powerful nation on earth, the United States of America. Speaking personally, I have no problem with them.

However, the Bill gives the Secretary of State wide powers. When did a modern Bill not give the Secretary of State wide powers? To the six territories currently listed there may be added 16 or 60, or every single country in the world, by the Secretary of State in making his or her decision. While I certainly excuse our present Minister from this, in the real world we are surely not going to be so naive as to believe that all sorts of motives—a possible trade deal, a plea just to be good friends with us, political beliefs, sympathy with a tyrannical regime—may not lead a Minister, at some time in the future, since elections bring different parties to power, to be subordinated to the single imperative that the only question which needs to be answered is that the country to be added to the list should have a credible, independent judicial system, so that when the request is received, it is based on an entirely—to use the word again—trustworthy system of administering justice. This is a huge power being given to the Minister.

Being modern legislation, that is not the end of it, of course. We have that monstrous ogre Henry VIII in full operation, tucked away in paragraph 29(2), by which regulations can be made which would

“amend, repeal or revoke any provision made by primary legislation”.

Then, we have the great advantage of the Bill going on to tell us what primary legislation is. I am sure we all know, but it tells us: every Act of this Parliament, the Scottish Parliament, the National Assembly for Wales and the Northern Ireland Assembly. All this is to be done by secondary legislation. We have to be tough about extradition, as I said, and the Minister is entitled to point out, as no doubt she will, that all this will be based on affirmative resolution.

I should like to focus attention on paragraph 29(6), which contains a power to annul regulations. That is a welcome addition to any Bill. This Bill would be so much more impressive and hold the balance so much better if all regulation-making powers, including the use of Henry VIII regulation-making powers, were made subject to annulment on the basis of a resolution of either House of Parliament. That, I respectfully suggest, would be proper and sensible parliamentary control over the processes. It would also provide us, the nation and its citizens with a serious safeguard against an overambitious Executive or, as the years unfold, what may become an unduly craven one bowing to a foreign power. Will the Minister consider at least reflecting on the constraints currently imposed on the annulment process? Will she also assure us that in whichever form the annulment process is finally left, the use of it by this House will not be treated as a constitutional outrage?

15:58
Lord King of Bridgwater Portrait Lord King of Bridgwater (Con)
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My Lords, I am not happy to follow the noble and learned Lord, Lord Judge, into his legal arguments. I will leave the Minister to deal with them because, having listened to the noble and learned Lord, I simply make this point: where are we coming from, where have we been, and to what extent were some of those arguments relevant under the European arrest warrant and current procedures as well?

I strongly support the Bill. My question is not “Why are we doing it now?” but “Why didn’t we do it some time ago?”. If the European arrest warrant made sense, what about all the other countries where we could have made this possible with, in the phrase used in the literature, a “trusted partner” whose legal systems and the fairness of whose operations we respect? If we look at the situation, although the noble Baroness, Lady Hamwee, saw frightfully sinister timing in it, if we should have done it before, let us get on with it now. Realising the problems that could arise if the European arrest warrant was not proceeded with begs the question: why do we not have a proper procedure to deal with this? The government briefing assumes that the European arrest warrant will continue, but if it does not, we need something to put in its place very quickly, or we will see a huge waste of police time as they chase after people whom they were not allowed to arrest when they saw them and whom they have to try to find again if they can.

I am afraid that I worry very much about the world in which we now live. This has become a much more dangerous world, in which the role of the police becomes ever more important for the maintenance of public confidence and security. Looking at yesterday’s Hansard, I was struck that three of the items that occupied the House’s business were, respectively: “Coronavirus”, “Streatham Incident” and “Terrorism: Contest Strategy”, all of them representing in their own different way extra problems and challenges for the police—a police force which I have to say was unfortunately reduced at a time when things seemed a little quieter but which now quite clearly faces serious challenges in making our country safe. The Contest strategy was yesterday discussed in the context of safety in public arenas. Opening the newspapers today, I noticed the argument about the COP—the climate change conference—in Glasgow, where a key issue seems to be the huge cost of policing it, with 200 world leaders turning up, and the amount of additional police responsibility involved. That is not in the original five-year police programme; it has suddenly been introduced and will put enormous extra responsibility on them.

Some noble Lords may have seen the headline in the Times today about the unfortunate and terrifying incident in Streatham, and it being the ambition of the perpetrator to murder an MP. What does that mean for extra police responsibility? I had to live for 20 years with police security. As threats and issues arise, I know the extraordinary manpower challenges they represent. We know that the gentleman in Streatham is not a lone eccentric; my understanding is that there are very many in our prisons who might be much like him and pose a similar threat.

Added to that challenge are the complaints of police failure to follow up all the incidents of internet fraud that there are—the number of people being hacked, the amount of money they are losing. They are completely new challenges that certainly did not exist 20 or 25 years ago, but they now put extra demands on the police.

Knife crime is prevalent. I listened with interest to the Question earlier on cash machines. I think that noble Lords are aware that cash machines are not the safest bits of equipment in the world. We need think only of the amount of crime and the number of attacks associated with them, and the difficulties they present for our police as they become more isolated. There is the growth of serious organised crime as well. I noticed in the government briefing on this that, in 2018, 352 arrests were made under the European arrest warrant, half of them after chance encounters. The other half—I make it about 180—came from following up known criminals or someone for whom there was an overseas request for extradition. There is little argument about the extra police hours represented by having to go off and get a warrant then going to look for the person again.

In this troubled world, with the mass migration of people and the growth of transnational crime, the capability gap has been clearly exposed. There is a shortage of manpower to deal with these issues. We should support anything which the Government or the legislature can do to make the police’s job more efficient and effective. This should not be without proper safeguards, including the phrase about dealing only with trusted partners, in whose handling we can have confidence. As I understand it, this does not make any difference to the standard extradition arrangements and the requirements that have to be observed. It deals merely with the specific issue of somebody being recognised as being wanted as an established criminal somewhere else and an extradition request existing for them. It would be quite unsatisfactory for the policeman to have to say: “Sorry, I can’t do anything about you now. I’m just popping off to see the judge. Make sure you’re here when I come back.”

Without belittling it, this is an important, sensible step. I hope to goodness that the European arrest warrant remains operational and well. If it does not, the Bill, when it becomes an Act, will be important in replacing it with an effective arrangement. I hope that, with our trusted partners, we can be a reliable ally in fighting crime, wherever it comes from.

16:06
Lord Brown of Eaton-under-Heywood Portrait Lord Brown of Eaton-under-Heywood (CB)
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My Lords, extradition has long been an area of our law in which I have been interested and concerned. For some years before my retirement in 2012, I appeared in most of the cases on this sometimes rather arcane topic. It was, therefore, a great pleasure and privilege to have served, alongside the noble Baroness, Lady Hamwee, on the Extradition Law Select Committee of this House chaired by the noble Lord, Lord Inglewood, in 2014-15. Its report on extradition law and practice, the EAW and our relations with the States and around the world is a sound text on which to consider any future development of this topic.

I speak today not because I have any particularly penetrating questions for the Minister, nor to note particular areas of concern. Rather, in the same spirit as the noble Lord, Lord King—whom it is always a privilege to follow—I lend the Bill my full-hearted support. Various questions will, no doubt, arise in today’s debate. My noble and learned friend Lord Judge raised the ever-possible threat that regulation-making powers may be abused. We may need to reconsider aspects of those in Committee; they will then be considered on their merits. Meanwhile, the Government have my backing on a sound, sensible and essentially modest piece of legislation. Despite the Government’s disavowals, I rather hope that the Bill is designed, at least in part and prospect, to meet the threats that would arise if we were to lose the EAW scheme following Brexit.

Echoing what the noble Lord, Lord King, said, in the global and all too lawless world in which we now live, cross-border crime is an ever-growing threat to international peace and prosperity. It is difficult to overstate the importance of extradition in the armoury of the law-abiding majority. I emphasise that effective extradition is an imperative for both states in the process. It is essential for both the country where the criminality occurs and the country to which the perpetrators have escaped to bring the fugitive perpetrators of crime back to their home country to stand trial and, if they are convicted, be punished for their offence. If not, one finds oneself with sanctuaries and safe havens, and those countries to which fugitives flee and in which they feel safe will inevitably attract others to do likewise.

It was those sorts of considerations that led to the framework decision in Europe in 2002, the European arrest warrant and, in turn, the 2003 ruling Act in this country. It is all that which makes the prospective loss of the scheme deeply concerning to so many of us. Plainly, it is therefore sensible to do what we can now in advance to seek to combat the risk that one day we may lose the benefit of that scheme.

This modest Bill will not—and, alas, cannot—fill all the gaps in extradition law to which the loss of the European arrest warrant would give rise, but it can certainly help enormously in at least making this country a less appealing sanctuary for those who have committed crimes and are wanted to be extradited for their trial or to serve a punishment or sentence already imposed abroad. Its initial, immediate effect, as the Minister has explained, is entirely independent of the future fate of the European arrest warrant: to plug a gap which has now existed for some little time in the extradition process with regard to the arrest of those who flee from certain non-EU states. EU states are covered by Part 1 of the 2003 Act; it is the non-EU states that have concerned us hitherto. In the language of the governing 2003 legislation, it is for those fugitive, as explained, from six Part 2 countries: the other four in the Five Eyes agreement—New Zealand, Australia, Canada and America—and Switzerland and Lichtenstein.

As it is now, having initially spotted somebody you need to arrest, you need to obtain in advance a court warrant as a requirement to arrest and extradite them to one of those countries, with the delay and inevitable opportunity to reoffend or, more likely, go to ground to which that gives rise. Under this Bill it will instead be possible, with what I suggest are the ample safeguards put in place, to arrest initially with no court warrant, although of course you have to take that person to court in 24 hours. That then locks in all the safeguards which exist under the legislation.

If we are to lose the European arrest warrant scheme, this Bill cannot improve the prospects of our receiving here those who have fled from criminality in the UK and whom we want back here for trial. For that we will need to look elsewhere. It is my fervent hope that the Government are earnestly in the process of looking elsewhere against the risk that the EAW may all too soon disappear. I support the Bill.

16:14
Lord Anderson of Ipswich Portrait Lord Anderson of Ipswich (CB)
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My Lords, the objective of the Bill is worthy and uncontroversial: to enable persons wanted in approved countries to be brought more efficiently into extradition proceedings, so as to reduce the prospect of absconding or further offending while they are in the UK. I entirely accept that, as the Minister said, it does not diminish the safeguards in the extradition proceedings themselves. However, the chosen mechanism is a new power of arrest without warrant. That is sufficiently unusual to require a little more reassurance than appears in the Explanatory Notes, helpful though they are, and I would be grateful if the Minister would comment now, or at any rate before Committee, on six gentle questions on this short Bill.

First, could the Minister explain why the existing powers of urgent arrest under Sections 73 and 74 of the Extradition Act 2003 before an extradition request has been submitted or certified are not considered sufficient? There may be a good reason but it needs to be made known. My understanding is that a request from the issuing state for the accused’s provisional arrest can already be the subject of a provisional warrant application by the CPS to the court—an application which, in urgent cases, can be made out of hours to the relevant duty judge, if necessary by email.

Secondly, does the Minister accept that the new procedure will itself take time? The NCA, as designated authority under the Bill, will have to review any extradition request and decide whether to certify it as creating a provisional arrest power. That may be a substantial exercise, given the need not to interfere arbitrarily with the rights of extradition subjects, even for 24 hours, the well-documented abuses of Interpol red notices, and the possibility that the list of category 2 territories may be substantially expanded in the future—to which I will return.

Thirdly, and staying on that subject, can the Minister tell us more about the nature of the triage process that the designated authority will conduct? In particular, will it be part of the NCA’s function to verify that extradition requests comply with the human rights requirements under Interpol’s constitution, and with any procedural or human rights requirements under the US-UK extradition treaty or its equivalents? Finally, the impact assessment states that the new policy is

“expected to result in 6 individuals entering”

the criminal justice system

“more quickly than would otherwise have been the case.”

It seems pretty plain that this Act of Parliament has not been constructed just for those six people, whoever they may turn out to be, and that the list of specified category 2 territories is likely to be significantly expanded.

Therefore, my fourth question is: the Minister spoke of trust, but what precisely are the criteria that will be applied by Ministers in determining to designate a new category 2 territory for new Schedule A1, and, in view of the potential for abuse identified by the noble and learned Lord, Judge, why are they not set out explicitly in the Bill? I remind your Lordships that category 2 territories include the likes of Russia, Turkey and Zimbabwe.

My fifth question: is it envisaged, as the noble Baroness, Lady Hamwee, thought, that the member states of the European Union, or some of them, will find their place in the schedule?

My sixth question: will reciprocal powers to those in the Bill be sought from the EU in negotiations for whatever will replace the European arrest warrant and, more broadly, can the Minister give any further indication of the type of replacement to which we aspire? Are we aiming to adapt the European arrest warrant itself, or the Norway-Iceland agreement with the EU, or are we looking for something of a different nature?

As the noble and learned Lord, Lord Brown, just said, many of us would greatly regret the loss of the European arrest warrant, which, since its political awakening in the weeks after 9/11, has exemplified both the effort required for meaningful co-operation in Europe and the enormous benefits to be derived from it. We can be particularly grateful to the noble Baroness, Lady Ludford, who will follow me, for her tireless work on improving it over the years.

Forebodings that any replacement will be inferior have already been borne out by the EU’s declaration of 31 January that Germany, Austria and Slovenia will not surrender their own nationals to the UK, even during the transition period. But Brexit has happened, its consequences must be faced, and we all share the same objective of ensuring that the best possible alternative is negotiated. I hope that the Minister will at least be able to tell us what we are aiming for.

Lord Bethell Portrait Lord Bethell (Con)
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My Lords, there is a technical problem with the clocks. We have moved to using the old-fashioned clocks, which we believe are still working. An engineer has been called and we hope to resolve the problem shortly.

16:19
Baroness Ludford Portrait Baroness Ludford (LD)
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So I have not already been speaking for 13 minutes.

The justification for the Bill rests on the claim that there is a gap in law enforcement capability which requires primary legislation to create the power for UK police to arrest immediately if an individual is wanted by a trusted partner. We were told in a briefing session yesterday that there are possibly 20 to 30 persons at any one time from across the world in a police “wanted pot”, but that does not equate to the number of cases where police actually come into contact with someone—perhaps through a stop due to a traffic offence—discover that the person in front of them is wanted for a serious offence and fear that they may abscond before a judge’s warrant can be obtained unless arrested on the spot.

The impact assessment states that the policy is expected to result in six individuals entering the criminal justice system more quickly than would otherwise be the case. As the assessment period is 10 years, this is less than one person a year. In her speech, the Minister gave one example from 2016. It is important to get clear the real necessity for the Bill. As the noble Lord, Lord Anderson, mentioned, the provisional arrest powers under Sections 73 and 74 of the Extradition Act 2003 already adequately cover urgent arrests before a full extradition request is submitted from a category 2 territory, with the CPS able to request a provisional warrant from the court which can be made urgently out of hours.

In addition, the impression conveyed that the Bill will give an instantaneous power of arrest once a warrant is issued in a designated Part 2 country is not true. The warrant would still have to go through a review and certification process at the National Crime Agency and there would be a triage process to ensure that only alerts which conform to legislative intention are certified. Perhaps the Minister can confirm that all those three steps—triage, review and certification—will have to take place. Can she also confirm that the NCA would be able to filter out cases where it has reason to believe that one of the statutory bars to extradition, such as the human rights bar, will apply, and that a victim of a politically motivated request would be able to provide the NCA with advance notification why it should not be certified? Will the NCA also ensure that any requests comply with the human rights requirements under Interpol’s constitution and with any procedural or human rights requirements under the US-UK extradition treaty?

While, if all those filter mechanisms apply, it would provide some reassurance, it would also mean that the new process was not necessarily very speedy. It would require careful scrutiny, not an instant, heat-of-the-moment decision after a person is identified entering the country. While that is good from the point of view of the care to be taken in the process, it means that the new power is unlikely to save time, as well as applying only to a handful of people, which makes the power, as justified by the Minister, largely otiose. The new power permits someone to be arrested and their liberty restricted without judicial oversight—a potential interference with Article 5 of the ECHR. The justification is pretty vague. Bypassing the judicial warrant is premised in the impact assessment only on the rather vague aspiration of

“reducing the opportunity for the subject to escape and potentially commit further crime, which may lead to an economic and social impact upon society”,

but:

“It is not possible to give a precise estimate of the impact of the legislation as it is unclear how much re-offending will be prevented”.


That is hardly convincing in justifying the potential interference with convention rights. Although the Bill covers any international request for extradition, it seems clearly anticipated that an Interpol wanted person alert or a red notice against a person would be the primary trigger. It is crucial that the Bill is not taken as a stamp of approval for such red notices, as they are not trusted enough to be in themselves a basis for an arrest. Under the Bill, the NCA will have to assess the validity of such a notice and the degree to which it is based on evidence, rather than mere assertion, without any judicial, or even prosecutorial, oversight.

Like the UK, many countries do not allow warrantless arrests based on Interpol red notices. The US does not allow them because it does not view red notices as satisfying the probable cause standard required by the US constitution to arrest someone. It is well known that Interpol red notices have been misused for political purposes by a number of its member countries, targeting political opponents, journalists, peaceful protesters, refugees and human rights defenders. The UK should continue to push Interpol to introduce safeguards against abuse. Can the Minister tell us what action the Government have taken in that respect?

It is critical that the list of specified category 2 countries in the Bill is limited to those where there really is a basis of trust—not countries such as Russia, Turkey, Venezuela or Syria. What factors will the Government take into account when proposing to add countries to those covered by new Schedule A1? It is already of concern that the US is on the list. While the ability would still exist to seek assurances that a person would not be subject to the death penalty, there was a case in July 2018 when the Government did not exercise that option, which caused deep concern.

As I have said, the necessity for the new power seems pretty slim in the case of existing trustworthy Part 2 countries but, as other noble Lords have said, in paragraph 7 of the impact assessment we get to what must surely be the real reason for this Bill, even if the Minister demurred at her briefing session yesterday. It is worth reading it out:

“In a ‘no deal’ scenario or in the event of a Future Security Partnership which does not support the retention of EU Member States in Part 1 of the Extradition Act, the current capability gap would extend to EU Member States. 15,540 requests were made under the EAW process in 2018/19. In that same year, 1,412 arrests were related to EAWs”.


That is more than 150,000 EAWs over a 10-year period, compared to the six EAWs forecast for the new procedure under the Bill. I think we can gather what scenario the Bill is really planned for. Can the Minister give us an update on the prospects for future UK-EU criminal justice co-operation, including extradition? Although there are concerns about the operation of the EAW—six years ago, my last project as an MEP was a report calling for its reform; I thank the noble Lord, Lord Anderson, for his kind remarks—it is much better than the alternatives.

Both my noble friend Lady Hamwee and the noble Lord, Lord Anderson, referred to the Commission declaration under Article 185 of the withdrawal agreement in which Germany, Austria and Slovenia may not extradite their own nationals—even during the transition period, let alone after December. This was expected but it is still discouraging. How will we get any reciprocity? If the Bill covers incoming extradition requests, what will happen to outgoing ones to EU and EEA countries?

Finally, how does yesterday’s categorical assertion of no alignment advance the prospect of the UK retaining something approaching the EAW without legal challenge if the minimum rights of defendants developed by the European Union are not respected?

16:29
Lord Hannay of Chiswick Portrait Lord Hannay of Chiswick (CB)
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My Lords, some seven years ago I chaired, together with the noble Lord, Lord Bowness, an inquiry at whose heart was the issue of whether it was in this country’s interest to remain within the scope of the European arrest warrant. The evidence we took demonstrated overwhelmingly that it was in Britain’s interest to do so. I am glad to say that that view was shared by massive majorities in both Houses and we did, indeed, stay within the European arrest warrant.

I note from the impact assessment with which we have been provided for the Bill—for which I express my gratitude as impact assessments for Brexit-related Bills are rare birds indeed—that in 2018 and 2019, as the noble Baroness, Lady Ludford, just mentioned, 1,412 arrests related to European arrest warrants were made and a substantial number of possible criminals returned to their own countries for trial. I suggest that those figures show that the European arrest warrant has come through with flying colours. It is for that reason, if for no other, that I personally welcome the Bill, one of whose objectives, if I understand it rightly, is to enable us to continue to operate something that could perhaps loosely be called a European arrest warrant-type procedure, even now that we are no longer a member—and will no longer be a member—of the European Union. I would be most grateful if the Minister, when she winds up, could answer the following questions. They cover similar ground to those of my noble and learned friend Lord Brown and my noble friend Lord Anderson.

First, is it correct to think that the Bill will enable us to operate something that could loosely be described as an EAW-type procedure, even after we have left the European Union and even after we have exited the transition period?

Secondly, will the powers in the Bill actually be needed during 2020 with respect to EU member states, while we are still in the transitional period provided for in the withdrawal agreement, or does that agreement suffice for the calendar year 2020?

Thirdly, if by mischance—I think no one who has read the Prime Minister’s speech made in Greenwich yesterday could doubt that mischance could happen—we found ourselves without a new relationship agreement with the EU at the end of this year, would the powers in the Bill enable us to respond to requests from any of the 27 EU member states in a manner similar to the way we have responded to European arrest warrants?

Fourthly, as several noble Lords have asked, will we, in the negotiations that will begin in March, try to achieve some degree of reciprocity with the 27 member states so that they too will operate something similar to a European arrest warrant procedure, even if the conditions for that are not yet agreed in the new relationship, or if the possibility of a new relationship has collapsed? I know that the answer for this Bill is that it does not and cannot provide those powers.

These are important matters. I think we can reasonably ask the Government simply to say now that, yes, when we sit down in March and work with the European Union on a security agreement that covers this area, we will be asking for reciprocity and we will be offering procedures that are as solid as we can make them and similar to the European arrest warrant. If, as I hope, the answer to all four questions I have posed is positive, I would be a strong supporter of the Bill. It will send a good signal that we are entering the post-Brexit negotiations in a positive spirit and with a determination to continue the closest possible co-operation with our former EU partners in the fight against serious international crime.

Lord Bethell Portrait Lord Bethell
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My Lords, I can confirm that the new clocks are now working, and those are the ones we will use.

16:34
Lord Robathan Portrait Lord Robathan (Con)
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My Lords, I am delighted to follow the noble Lord, Lord Hannay, because I agree with most of what he said—which, I think he will accept, has not always been the case. My noble friend the Minister has a galaxy of learned and expert people to speak on this Bill. It seems to me that the Government should be grateful that they are getting legal advice from three very learned retired judges. It would cost the Government a great deal of money if they had to ask for the advice, so I think she should be grateful.

My contribution will be much more modest. I say to the noble and learned Lord, Lord Judge, who speaks with great authority and expertise on these things, that I do not see that we need to be particularly concerned that China, let us say, should be allowed to extradite people under this measure. Given the problems that China has had with Hong Kong, which started off with extradition from Hong Kong to China, we would be unlikely to take that sort of decision. It seems to me, and others have said, that the Bill rightly and sensibly caters for the changes to the European arrest warrant now that we have left. The 24 hours within which somebody arrested under this has to be seen by a judge is reasonable. I agree with the noble and learned Lord—I will come to this later—that not all countries share the same standards as us. That also applies to European Union countries.

I support the Bill because it is sensible and very modest. So far it is certainly countries that we trust to abide by the rule of law that are included. For instance, Australia, New Zealand and Canada all take a great deal of their legal systems from us anyway—so, given the situation, it is not controversial.

Part 1 of the Extradition Act 2003 was about the European arrest warrant. I will concentrate on that, because it is more controversial. Like the noble Lord, Lord Hannay, I think the European arrest warrant can be hugely valuable. For instance, it gets nasty criminals out of the UK to face justice—paedophiles, drug dealers, murderers, whoever. That is all to be welcomed. I think the noble Baroness, Lady Ludford, said that in 2017 there were 15,000 or so requests to the UK; I thought it was more like 17,000, but I may be wrong. I think we issued fewer than 400, but with my limited knowledge of the internet I had some trouble getting the correct details.

I will concentrate on Romania, which I think is the country that issues the greatest or second-greatest number of European arrest warrants in the European Union. That may be a reflection of crime in Romania. I will concentrate first on the general situation and then on one case, which shows why we should be very wary of believing that, just because a country is in the European Union, it follows all the rules and values that we have in this country and follows the rule of law as we do. We assume that because a country is in the European Union, it abides by the rule of law.

I will not mention the case I know of for two reasons. First, it is sub judice and, although I believe that under parliamentary privilege I could mention it, it would be improper to do so. Secondly, I used to have—I stress that I used to have—a financial interest in the case, in that I was advising somebody on this. That ended several months ago, but again it would be straying into difficult territory if I were to mention the case in particular.

The issues I will raise now on Romania have all been covered in the press. I start with a newspaper article from 10 April last year. I mention only this one—there are many others—because its headline is: “Romania’s child traffickers walk free to mock the British police”. It was an operation called Golf, and the person in charge of it said:

“Let me tell you, there was tonnes of evidence against that gang … Dozens of child witnesses were interviewed, and we found hundreds of forged birth certificates. It beggars belief that all 26 suspects have walked free. On our side, we secured convictions, but Romania has not … If we cannot get Romanian courts to convict the most serious crimes it has an impact across the whole of Europe.”


The case that I know about concerns political interference and deaths in prison. The Prime Minister of Romania stated on television before an arrest that an arrest would happen. I think we would all agree that that would be completely improper in this country. The same person died in prison. That was surely political interference. I would say so, but so does the European Bar Association—the Fédération des Barreaux d’Europe—which mentioned in a resolution on 19 April 2018

“the right of access of Romanian citizens to a free and independent court and about the situation of judges, prosecutors and lawyers from Romania, noting that there is an interference with the independence of judges, prosecutors, lawyers and the administration of justice due to the intervention of Romanian Intelligence Service”

and called on the justice organisations to “cease the secret protocols” with the intelligence services

“and to restore independence of the judicial system by destroying also secret Protocols and … respect the right of Romanian citizens to a fair trial.”

If that was said about the United Kingdom, we would rightly be horrified.

The issue of prison conditions is more difficult. We would wish to send back a murderer from Romania, but I note that the European Court of Human Rights said some two and a half years ago that the detention conditions in Romanian prisons are in breach of the convention and

“a violation of Article 3 (prohibition of inhuman or degrading treatment) of the European Convention on Human Rights.”

As I said, the case with which I am dealing involved somebody dying in custody because he was not given proper treatment. In his judgment on that case, which, again, I will not name, a UK judge said not two years ago, after the events I have cited, that Romania was a signatory to the European Convention on Human Rights and that he was

“entirely satisfied that it will abide by its Convention obligations”,

which the European Bar Association and the European Court of Human Rights did not agree with.

I ask my noble friend the Minister: should we see some changes to the European arrest warrant, as I believe is likely, could we look very closely at the conditions in each country in Europe and at how they follow the rule of law? It is not just Romania, but I will not spread my wings too far on this. We need to make sure that other European countries are abiding by the rule of law as we see it before we admit them into what is already working under the European arrest warrant.

16:42
Baroness Clark of Calton Portrait Baroness Clark of Calton (Non-Afl)
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My Lords, it is a great privilege to appear again and speak in your Lordships’ House after a long absence. I listened with interest to the Minister’s speech about the Bill’s context and purpose. I also thank her for being so open and willing to meet with people to discuss it.

The extradition Bill might appear deceptively modest, but does it propose a mere technical amendment? In essence, it sets out a new system to justify arrest without advance judicial scrutiny and will give sweeping powers to the Secretary of State to change extradition law by delegated legislation.

The Bill seeks to amend complex legislation in the Extradition Act 2003. Many Members of this House know how complicated that Act is. It was the result of detailed domestic review, public consultation and development in international criminal law that introduced fast-track extradition arrangements, mainly for EU states, using the European arrest warrant. The 2003 Act introduced two very different systems of extradition. It distinguished between category 1 territories, based on the European arrest warrant, and category 2 territories, where there was no agreed reciprocal recognition of the judicial process.

The concept of provisional arrest in this Bill will no doubt take many people by surprise, particularly if they are reflecting on that concept from a police cell. A person is either under arrest or at liberty. There is nothing provisional about the consequences of being arrested. The 24-hour limitation period provided in the Bill excludes weekends and bank holidays. The consequences of provisional arrest are serious and would not be eradicated by any subsequent decision of a judge to discharge the person.

I share the concern of noble Lords who have queried the Government’s justification for introducing this Bill: that there might be a delay of some hours in obtaining an arrest warrant from a judge, creating the possibility that the person concerned could offend or abscond before being detained. We hear that the numbers are tiny. However, Section 73 of the 2003 Act already allows a provisional warrant for arrest to be issued by a justice of the peace. This may be used by the police in an emergency, for example. Can the Minister tell us what the difficulty is with using it in the circumstances she has talked about?

So far, I am not persuaded by the factual evidence that there has been a problem in the extradition process caused by police and judicial delay, resulting in an inability to bring to justice individuals sought for extradition. To assist our understanding, if possible I would like some statistics to be provided before Committee stage: the number of arrests over the last three years under Sections 4 and 5 of the Extradition Act 2003, and the number of cases refused a certificate by the designated authority when performing its statutory function in relation to category 1 territories under Section 2. In relation to category 2 territories, I would be grateful for similar statistics for warrants issued under Sections 71 and 73 respectively.

If, as the Government contend, there is a problem in relation to extradition to category 2 territories, any solution may lie in better co-ordination between the police and the judiciary to enable a warrant to be obtained at an early stage. Another solution might be the involvement of the judiciary in a screening process, instead of the designated authority which the Bill seeks to establish.

I understand that the Government intend that the National Crime Agency be appointed, in regulations made by the Secretary of State, as the designated authority. The NCA is essentially a police body, not a judicial authority. Such a body is not a proper substitute for the independent scrutiny and decision-making of a judge in the UK. In any event, it is surely unacceptable that a body meant to carry out a function which directly affects individual liberty is not even named in this Bill.

The Government may seek to rely on the existence of a screening process by a designated authority—the National Crime Agency—in Part 1 of the Extradition Act 2003 in relation to category 1 territories. However, this is very misleading and does not bear scrutiny.

It is clear from the history and development of the Part 1 legislation that the justification for arrest flows directly from a judicial source: the judicial grant of a European arrest warrant by the foreign territory. The European arrest warrant scheme is complex, with detailed codes of procedure. Extradition to category 1 territories has become exclusively a judicial procedure; that contrasts with category 2 territories. The category 1 scheme in the 2003 Act is tied to that. The legal basis for arrest is founded on the decision by a judge from the foreign territory to issue a European arrest warrant. Any later screening process by the designated authority in the UK postdates that earlier judicial decision, and it is the judicial decision which provides the legal basis for the arrest.

The scheme applying to category 2 territories under the 2003 Act is very different. There is a total lack of that agreed basis of common rules and the complex safeguards which have been built into the European arrest warrant scheme. A decision by a judge from one of the UK jurisdictions provides the legal basis for arrest in category 2 territory cases. This Bill seeks to introduce a form of arrest where there is no advance judicial scrutiny and no judicial warrant from this country to justify arrest.

I am particularly concerned about the terms of new Sections 74A and 74B. I note that there is no limitation in the wording to restrict this to an emergency situation where obtaining a judicial warrant is somehow impossible. In summary, the new sections allow a provisional arrest to be made provided that the designated authority has issued a certificate. The designated authority is required to apply legal tests which can be complex and are appropriate for judicial determination.

There is nothing in the Bill to stop this easy certification process becoming the normal procedure in all or most cases. So, if someone somewhere sends the appropriate paperwork to the designated authority and this non-judicial authority issues a certificate, many people may find themselves in custody without any judicial consideration in this country. All of this affects the system of justice in Scotland. I would be very grateful to learn from the Minister the views of the Scottish Government. I would be surprised if there was support in Scotland for a system of arrest being legally justified by certification by a police body, rather than a judge.

I also note with concern, as have other noble Lords, the terms of paragraph 29, which gives the Secretary of State powers, including the power to

“amend, repeal or revoke any provision made by primary legislation”

in certain circumstances. None of this is acceptable in such wide terms.

It is plain that we are all aware that there may be problems for the Government if, as a result of their Brexit policies, the UK is unable or unwilling to participate in the European arrest warrant scheme. But in that event, we need a mature debate about extradition to find a way forward. We cannot permit the Secretary of State merely to certify any territory that he or she wishes, and allow the arrest by the police of potentially thousands of people, including many UK citizens, on the certification of the National Crime Agency or some other non-judicial authority thought up by the Secretary of State.

I am not opposed to reform of the Extradition Act, and I am certainly not opposed to a system of extradition that works effectively. But the proposed changes in the Bill cause me concern in their present form and I hope that in Committee, we will be able to consider them further.

16:52
Lord Hogan-Howe Portrait Lord Hogan-Howe (CB)
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My Lords, I support the Bill and have just one suggestion for how it could be improved. Martin Hewitt, chair of the National Police Chiefs’ Council, described this legislation as filling a loophole in the law, which is a fair description. It is also supported by Lynne Owen, the Director-General of the National Crime Agency. Neither person would generally want to widen police powers, but they do want to make them effective.

Presently, police officers have powers of arrest only for category 1 countries, which includes all members of the European Union, so it is not a radical departure to give them powers to arrest before the extradition warrant has been agreed. Although people have expressed concerns about that, in this sense, it is a power that exists already for category 1 countries, unless a judicial warrant has already been sworn.

The problem is that in category 2 countries, an officer may become aware that a person has been notified as wanted for extradition, but until the warrant has been sworn out, they cannot arrest. Of course, there is no warrant because the UK was not previously aware that the person was in the UK—or I guess police would have been looking for them—and therefore no one has been able to apply for a warrant of extradition. I wonder whether the comments of the noble Lord, Lord Anderson, and the noble Baroness, Lady Ludford, about Sections 73 and 74—neither of which I am an expert on—rely on the fact that someone knows that those people are in the country. These changes are merely to cope with the fact that an officer may come upon or discover that someone who was not previously known to be in the country is available and may therefore need to be taken into custody for a warrant to be applied for.

A series of helpful and reasonable steps have been put into this Bill. It does not cover all category 2 countries—it is the Five Eyes countries. They are all our significant partners, relying on jurisprudential rules which are very similar to ours, as well as Switzerland—I do not think anybody would doubt that it observes the rule of law—and Liechtenstein. Some people have expressed a view that perhaps Russia might be included as a category 2 country. It is not. We have no extradition agreement with Russia. In fact, I think its constitution prevents anybody being extradited from Russia, so even if we were to decide to have an extradition treaty, it would have something of an obstacle to overcome should it decide to agree with us.

The circumstances that this power might be involved are: a stop and search of a pedestrian or a vehicle, which has already been mentioned; an arrest for another offence when the arrest is refused or when the person is released before the warrant can be sworn out; or when an officer starts an investigation, during which they come across a suspect or witness who is wanted.

Although it has not been mentioned tonight, it is possible to argue that the officer should not advise the person that there is a notice in place and that there is to be a hearing to avoid warning him and him absconding. However, if that was a strong argument we would not already have this power for category 1 countries, so I do not think that is the best argument to pursue. It is quite possible that if someone is arrested in this country from a category 2 country for an offence that is nothing to do with the extradition and is then released it might put him on notice that the police might start checking to see whether there is an extradition warrant and if the individual knows he is wanted for a serious offence he may then abscond, or certainly be hard to find, so there are good reasons why the arrest power for category 2 countries is a good idea. It creates a level playing field with category 1 countries. I do not think that is unfair or unreasonable.

A further safeguard is to be added for category 2 offences, which is that the offence for which the suspect is wanted needs to be classified as serious. That test is whether somebody in this country would serve three years’ imprisonment. That is not available for category 1 countries, such as those in the European Union. Poland has not been mentioned today, but it has been criticised for seeking extradition of its citizens for very minor offences, such as shoplifting, and clearly wasting everyone’s time. Poland is a member of the European Union and a category 1 country.

The first test is whether a three-year term of imprisonment is available. If it passes that test the second test is whether the National Crime Agency is prepared to certify that the offence remains serious. Someone can go to prison for 10 years for criminal damage, but criminal damage worth £25 will not lead to a 10-year prison sentence. It would lead to a minor outcome. It is therefore very unlikely that the NCA would certify that it was an offence that should be put on the police national computer to make sure that that person was excluded from the country.

Some people expressed the view that the NCA may not apply human rights conventions. It already does that, even with European Union extradition warrants. Those rules will not change. It has excluded some applications on those grounds, such as sexual orientation, political affiliations or things that are disproportionate.

Baroness Hamwee Portrait Baroness Hamwee
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I do not doubt what the noble Lord is saying, but my question was about how we can be assured about transparency in holding to account those issues. We may know that things are hunky-dory now, but I am sure that the noble Lord would accept that that is not quite the same has having the procedures available to test them.

Lord Hogan-Howe Portrait Lord Hogan-Howe
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I agree. We should be reassured in two senses. The NCA is one arbiter. It has been putting things on the police national computer for many years. Individuals can pursue their civil rights if they think or find they have been wronged. If an arrest is made, these cases will of course be heard in a court, where suspects are legally represented and able to make the case that this is an improper allocation of a notice. It is a fair challenge, but there are systems in place that would provide a remedy within a fairly short period of time.

We all understand why it is difficult to calculate how often the power of arrest for category 2 countries will be used. However, we know that in 2018 there were 1,394 arrests in England and Wales for category 1 offences. Interestingly, only 28% of those cases would pass the seriousness test if they were moved to category 2. Fewer people would be affected by the powers of arrest and extradition if any European countries were to come within category 2.

Some may argue—and have argued—that, in negotiating with other countries, we put ourselves at a disadvantage by unilaterally helping another country to extradite criminals it takes to its country. However, for serious offences, the UK has the benefit of excluding a suspect from the UK until their criminal justice process is completed; we get a definite benefit from that.

It is also true that the constitutions of some countries require another country to have constitutional arrangements in place to enable extradition before they can reciprocate. In that sense, this is an enabling provision; it allows a country to respond to the fact that the UK would have this in place.

I have a quick suggestion for improving the extradition process—which, in my view, has long been unhelpful. All those arrested, with or without warrant, have to be transported to one court in Westminster. These are long journeys for the suspect, their families and everybody else involved in the case—the police, witnesses et cetera. It takes time and money, and with weekends, and this potentially extends to a four or five-day period. Surely it should be possible to have regional courts in our big cities, which could hear these cases. I think it has been suggested in the past that, due to its specialised nature, the London Bar is the best place to respond to these cases. However, surely there should be a system designed for the suspects and, in this instance perhaps, not for the Bar.

I agree with the noble and learned Lord, Lord Judge, that we do not want to see countries added to the list if they have systems that we do not respect. I also agree with the noble Lord, Lord Robathan, that there are already at least two countries in the European Union which we might challenge as to whether they would pass that test. In one country—we do not need to name it—political interference, or attempted interference, has been apparent in the selection of judges, yet there is a very low bar for getting an extradition warrant. In another country, both politicians and police are corrupt. Noble Lords may ask why we have extradition treaties with these countries, but we do—we still allow for extradition to these countries. That seems quite a challenge in the European Union, let alone somewhere else; we have to be careful and ensure that we are on a level playing field with everyone.

I support the Bill, which will create a level playing field and, in part, provide a flexible opportunity to retain an effective process as we leave the European Union—although I acknowledge that the Government have said that that is not their intention.

17:02
Lord Inglewood Portrait Lord Inglewood (Non-Afl)
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My Lords, as a number of noble Lords have commented, it was my privilege and pleasure five years ago to chair the House of Lords committee on the workings of the Extradition Act 2003. I found it a challenging assignment; while once upon a time, long ago, I knew a bit of law, I had forgotten most of that and this involved areas I had never known about in the first place. However, we reached the conclusion—shared, I believe, not only by members of the committee but the House—that our extradition arrangements were, essentially, systemically acceptable, albeit involving a series of problems and shortcomings and, in some respects, less than perfect.

I remember becoming very clear on the importance of understanding that extradition is based on the principle of comity; in other words, it is based on a recognition of other people’s criminal laws, which may be a bit different from your own. At the same time, this recognition has to be locked together with recognising the importance of human rights; the one thing you cannot do is triangulate one off against the other. That is why in my view, when thinking about the extradition system generally, it is important to be clear about what bars exist under our system regarding people who otherwise would be extradited, and the protections that that confers.

Against that background, the essential case for the Bill has been that we should change the basis on which a person subject to extradition proceedings abroad could be arrested when identified. The basic principle seems to me, as for almost all Members of the House, to be a sound one, and to bring Part 2 of the legislation in line with the reality of the processes in Part 1 is a good step. However, as a number of your Lordships have said, this particular Bill really falls into two parts: there are the specific provisions about provisional arrest that are contained within the Title of the Bill, and then there is the dog that does not bark, or perhaps the dog that just whines in the corner: paragraph 29 at the end of the Schedule, which in my view is a completely separate issue from the specific one.

In his remarks at the beginning of the proceedings, the noble and learned Lord, Lord Judge, rightly focused on the potential mischief that these provisions, as drafted, could bring about. After all, we know that we are in a world where any piece of legislation that the word “European” comes into is as toxic to the Government as the coronavirus. The reality, which has been accepted by almost all the speakers this afternoon, is that the workings of the system of the European arrest warrant are to everyone’s advantage, yet we are living at a time when we are almost certainly going to see changes introduced to that. Exactly what they will be, no one knows—anything from a slightly tweaked version of the existing form of arrangements through to, I suspect, adding some or all the European countries to Part 2 of the Bill. Who knows? This issue is very important for this country, and I do not think that kind of thing should be determined by secondary legislation.

There is an important fundamental principle here, quite separate from the specific business about provisional arrest, that this House ought to take extremely seriously. To encapsulate it in a few words, it seems strange that we need an Act of Parliament to bring about changes regarding provisional arrest while by secondary legislation we can turn the system of extradition law that we have in this country on its head.

17:07
Baroness Jones of Moulsecoomb Portrait Baroness Jones of Moulsecoomb (GP)
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My Lords, I have very much enjoyed the contributions to this debate—particularly the ones that I agreed with, obviously. I do not have the legal knowledge that so many of the noble and learned Lords in this House do; on the other hand, I have quite a lot of common sense, and I can spot something that is a complete nonsense.

Noble Lords have called this measure modest; well, it is so modest that it is almost invisible. The biggest question facing the Bill is why we even need it. The size of the problem that we are seeking to resolve—the seriousness of the threat—has still not really been fully explained to us. The Minister might explain in exactly how many cases the police and other authorities have failed to lawfully detain a suspect as a result of the current legal requirement to obtain an arrest warrant. Put simply, how many people have got away? We have heard about two cases from the Minister and both of them involved paedophilia offences, which of course are a red flag. I would like to know exactly how many people have escaped.

The Home Office explains in its analysis in the published full economic impact:

“The policy is expected to result in 6 individuals entering the CJS more quickly than would otherwise have been the case.”


Is it correct that the Home Office is saying that only six people a year will be arrested under the powers in the Bill? Even then, it is only a question of that happening more quickly regarding these six people who would otherwise have escaped. If that is the case, is the size of the problem really so substantial that the Bill is necessary or even a worthwhile use of precious legislative time when so many other much more important Bills are coming to us in this House? I would like to know just how serious the threat is. It would also be good to have some idea of the threats that offenders have posed under the current system which would be fixed by this power to arrest six individuals.

The threat has to be real and significant if we are expected to remove the judicial process of granting an arrest warrant. However, at the same time, the Government cannot perceive the threat to be too great because they have chosen to limit this arrest power to extraditions to only a handful of countries. If a dangerous criminal is wanted in America or Australia, then they will be arrested without a warrant. However, the same dangerous criminal could, according to the Government, escape as long as they are wanted in countries that we do not consider trustworthy.

In this debate, some noble Lords have suggested that this is a sort of backstop to the European arrest warrant. If that is so, the Government ought to be open about this. We should know exactly why they want to introduce it. That would certainly make a lot more sense than this forecast of six people. We cannot have a Government asking for powers without being honest about what they are for. The Bill poses an ineffective solution to a tiny, or even imaginary, problem. There is absolutely no justification for removing the arrest warrant process and, if there were, it would be applied to a much longer list of countries. I suggest that the Government drop this Bill, do not bring it back for any further stages and stop wasting our time.

17:11
Lord Ricketts Portrait Lord Ricketts (CB)
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My Lords, I have followed this debate with enormous interest. I feel a little daunted, given the enormous experience of many of the speakers so far. In fact, it has been so fascinating a debate that I thought time had stood still, but then I discovered that actually the clocks were not working.

I am here really as an informal emissary from your Lordships’ European Union Select Committee, chaired by the noble Earl, Lord Kinnoull, and the EU Home Affairs Sub-Committee, chaired by the noble Lord, Lord Jay, neither of whom can be here. As a member of both committees, I wanted to at least draw attention to the work on the issue of extradition done over a number of years by the two committees and, in particular, do a little plug for two of the committee reports done under the chairmanship of the noble Lord, Lord Jay: Brexit: Judicial Oversight of the European Arrest Warrant of July 2017 and Brexit: The Proposed UK-EU Security Treaty of July 2018. Both are very relevant to the wider context of this debate.

Like others, I wanted to explore a little the relationship between the powers sought in this Bill and the EAW world—this has been a theme throughout the debate. As other noble Lords have noted, there is a somewhat delphic remark in paragraph 7 of the Explanatory Notes which says that, should the UK lose access to the EAW, a statutory instrument could be made to designate some or all EU members. This has been the elephant in the room throughout this debate, but it appears only very briefly in the explanatory material. I think it deserves a little more explanation.

There is a lot of useful detail about the value of the EAW in the reports that I have mentioned, as was apparent in the statement we had this afternoon. As a lay man, it has always seemed to me that it is a way of making extradition far easier, more rapid and more straightforward than the alternative, the 1957 Council of Europe convention. Under that, it took an average of 18 months to achieve an extradition; that fell to below two months with the arrival of the EAW. Given that we are talking about exporting—to use that word—up to 1,000 people a year under the EAW, the idea of going back to the 1957 convention arrangements seemed to us and all the expert practitioners we heard from in the sub-committee to be an enormous retrograde step. I think of my own period as ambassador in France. A regional procureur’s office in a small French city will have got completely out of practice with the 1957 arrangements, which involve diplomatic notes and passage through interior ministries. This risks a considerable delay in what has been a very effective process.

A number of noble Lords spoke in the conditional tense about “if we lose access” to the EAW arrangements. But it is clear that, at the end of the transition period, Britain will not be in the EAW process, which is for EU member states, and that, as others have made clear, the process of disengagement has already begun, with the operation of Article 185 and the own-national provision. Germany, Slovenia and Austria have already applied it—so even now, in the transition period, we are already seeing a restriction of our access under the EAW. The issue therefore is whether we will be able to negotiate an agreement with the EU that allows what the then Minister of State in the Home Office, Nick Hurd, spoke to the committee about in 2018: “effective arrangements” on the lines of the EAW.

The only precedent for this is the agreement that the EU has with Norway and Iceland. But we should not hold our breath—that negotiation took 13 years. It was finally agreed in 2014 but, as far as I know, is not yet in force. So there is potentially a very long time gap between us leaving the transition period at the end of this year and reaching an agreement.

The European Commission published its draft negotiating mandate yesterday, which indeed contains a reference to continued extradition arrangements. It uses the term “effective arrangements” but there are markers about judicial control and the own-national provision.

Given the importance of the EAW for the whole law enforcement process in this country, I therefore think that it is worth the Minister responding to a number of the questions that have been asked in this debate. I too came armed with many of them, but I have tried to filter mine, given that a number of other noble Lords on the list asked them. It would be helpful if the Minister could make it clear that, as from 1 January 2021, we will not be part of the EAW, and whether it is still the Government’s intention to negotiate effective arrangements to parallel it as far as possible. If so, what is the likely timescale and what about judicial control, given the EU’s attachment to ECJ involvement in the arrangement?

Secondly, given that it is very likely that we will not have an agreement by the end of the year, will the Minister accept that the designation arrangements in the Bill are in no sense a substitute for the speedy and effective arrangements in the EAW, and that they do not begin to address the issues of mutual recognition and the own-national problem. Personally, I can see the importance of the Bill for closing a gap in the UK domestic arrangements for arrest, but it is very important that it should be recognised that it can be only a very small step in addressing the much larger and more difficult problem of how to replace the many advantages we have had through the EAW.

17:18
Lord Paddick Portrait Lord Paddick (LD)
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My Lords, this has been a fascinating debate, as the noble Lord, Lord Ricketts, has just said. The Minister said in her briefing yesterday to noble Lords and again today that the Bill was nothing to do with the UK leaving the European Union and nothing to do with losing the European arrest warrant. She will certainly correct me in her summing up if that is not the case, but she is nodding. So, despite what the noble Lord, Lord Ricketts, has just said—I was very grateful for his contribution—I think that it is very relevant, despite what the Government say. As my noble friend Lady Ludford asked, if that is the case, is this legislation therefore really necessary?

In the briefing yesterday was the lead on this for the National Police Chiefs’ Council. We asked him—I think before the Minister arrived in the room—“What is the biggest problem in this area?” He said, “The biggest problem is getting police forces to take international criminality seriously.” Arresting people wanted for crimes committed overseas is not seen as a priority by forces, according to him. Yet it seems to be a priority for the Government, to the extent that they need to bring forward this legislation.

The question we have to ask is: if it is nothing to do with the European arrest warrant, what problem is the Bill trying to fix? The noble Lord, Lord King of Bridgwater, and the noble and learned Lord, Lord Brown of Eaton-under-Heywood, asked why this has not been done before if it closes a loophole. But how many Interpol red notices are there from countries listed in the Bill? In how many live cases of Interpol red notices was there intelligence that the person wanted may be in the UK? We were told it was between 20 and 30; as other noble Lords pointed out, the impact assessment refers to perhaps six people being brought to justice under these provisions. When we asked how many instances there were of people subject to red notices being encountered by police who could not arrest the person there and then, and where the police then sought a warrant but were subsequently unable to locate that person—the loophole that this legislation is supposed to close—nobody knew; not even the police, or the lead for the National Police Chiefs’ Council, knew what problem the Bill is aimed at fixing.

The Minister mentioned a case where intelligence was received in 2016 that a person who was wanted for sexual offences was in the UK; a warrant was obtained but the subject was not re-encountered until 2019. She said that the Government could not allow such a dangerous person to be on our streets for so long, but that begs the question: how dangerous was this individual? How many offences did that person commit between 2016 and 2019, while at large in the UK? I did not hear—perhaps the Minister can enlighten me—whether that person was encountered in 2016.

Other noble Lords, including the noble and learned Baroness, Lady Clark of Calton, and the noble Lord, Lord Anderson of Ipswich, mentioned the urgent applications for provisional warrants under Section 73 of the 2003 Act. Can the Minister explain whether a warrant can be issued on the basis of intelligence that a person who is wanted under a red notice is in the UK, even if they have not been encountered by the police? If that warrant can be issued, why is the Bill necessary?

My noble friend Lady Hamwee asked: why now? Until recently, the fact that someone was subject to an Interpol red notice was not recorded on the police national computer; that is what we were told in the briefing. So a police officer could have been talking to someone who was wanted but did not know that, and now they would know.

As I said, the Minister assures us it has nothing to do with the European arrest warrant. But I will refer to the letter written to the Home Secretary by the Metropolitan Police, the National Police Chiefs’ Council, and the heads of counterterrorism policing and the National Crime Agency—and here I fear that I may take issue with the comments made by the noble Lord, Lord Hogan-Howe. Contrary to what the Government say, the letter keeps referring to the European arrest warrant and the loss of it. The letter says:

“The risks in this area are not new, but have been brought into sharp focus as a consequence of our collective efforts to plan for the United Kingdom’s exit from the EU. The European Arrest Warrant enables an officer to arrest a wanted subject there and then. Outside of this mechanism a domestic warrant must be obtained; a process that can take up to 24 hours and sometimes longer.”


That translates to me as, “We’ve been asked to write this letter to support a government move”, but apart from the European arrest warrant—noble Lords have said how many cases there have been under that—they seem to be scratching around and wondering why the Government are bringing forward this legislation.

The noble and learned Lord, Lord Judge, and the noble and learned Baroness, Lady Clark of Calton, pointed out that the Bill places a lot of power in the hands of Ministers in terms of adding countries that could be included in the list. As the noble and learned Lord, Lord Judge, said, countries could be added for ulterior motives, perhaps because we want to have a free trade agreement with them and want to be in their good books. As my noble friend Lady Hamwee said, if a group of countries is included in the statutory instrument that comes forward under the affirmative procedure, we cannot edit the list. The question asked by my noble friend is therefore important: will those additional countries come in one at a time or will more than one country be in those statutory instruments?

The noble Lord, Lord Ricketts, and others said that we will definitely lose the European arrest warrant because it covers only European Union members. The noble Lord mentioned Norway and Iceland. After 13 years, they now have an agreement—it came into effect on 1 November last year—but that agreement says that European Union countries do not have to extradite their own nationals. That is completely different from what the European arrest warrant says. Not only do we not know how long it will take for us to get a replacement for the European arrest warrant but the best that we can hope for is that it will be a shadow of its former self in that we are unlikely to be able to extradite own nationals from other countries.

The noble and learned Baroness, Lady Clark, made the important point that, in respect of category 1 countries, the warrant issued by that foreign country which leads to a European arrest warrant is issued by a judge there, whereas category 2 requests—red notices—are not necessarily at the request of a judge; presumably in the United States of America the district attorney can make the request for somebody to be arrested, without the judicial oversight. That is a crucial difference between category 1 and category 2 countries. This legislation fundamentally changes that. At the request of a foreign country, somebody can be arrested without warrant or any judicial input, whereas at the moment all requests from foreign countries for somebody to be arrested, whether it is under the European arrest warrant or otherwise, must have judicial involvement before the person is arrested. Yes, we are talking about 24 hours before it comes before a judge, but it fundamentally changes the situation.

Despite all this, the Government still try to give the impression that this has nothing to do with leaving the European Union, in the same way as letting other countries use e-gates at UK airports has nothing to do with the European Union. Suddenly e-gates at UK airports become available to American, Australian, Canadian, Japanese, New Zealand and South Korean nationals. Why and why now? It is perhaps because, as part of taking back control of our borders, the Government promised that we would not give EU citizens preferential treatment, but, instead of curbing the right of EU citizens to free movement across the UK border, they give it to the citizens of half a dozen other countries just to prove that they are not giving EU citizens preferential treatment. Of course, if every EU citizen had to be spoken to by an immigration officer, the system would collapse under the pressure. Meanwhile, while American citizens can use the e-gates at UK airports, if UK citizens go to the United States they have to convince the immigration officer that they are not going to stay longer than they said were, and have their photograph and fingerprints taken. However, as the Minister said, we are not seeking reciprocity.

The noble and learned Lord, Lord Brown of Eaton-under-Heywood, talked about the importance of extradition, which is absolutely right. However, the Bill is a unilateral move, with no attempt to encourage other countries to do the same—a point also made by my noble friend Lady Ludford. Now, suddenly, one serious foreign fugitive on the streets of the UK—who might be stopped by the police, but the officer cannot make an immediate arrest because they need to get a warrant, and the person has not committed an arrestable offence in the UK—is one too many. That was the explanation given yesterday, and the Government try to tell this House that this is nothing to do with losing the European arrest warrant. We are not as green as we are cabbage looking. The noble Lord, Lord Hogan-Howe, also mentioned people being extradited using the European arrest warrant for minor offences such as shoplifting. Will the Minister confirm that the maximum penalty for theft is 10 years’ imprisonment, so it would be covered by the three-year maximum in this legislation?

Most science is accepted as fact when in fact it is the simplest and most plausible theory that fits the facts. My theory is that this is everything to do with losing the European arrest warrant. If it is not, then there are far more important matters that this House should be considering, as the noble Baroness, Lady Jones of Moulsecoomb, has said. It is time for the Government to decide. Is it to close our side of the gaping hole left in our security by losing the European arrest warrant, in which case we should support it, or is it to catch little more than a handful of foreign fugitives who might otherwise escape justice? I look forward to the Minister’s response.

17:31
Lord Kennedy of Southwark Portrait Lord Kennedy of Southwark (Lab Co-op)
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My Lords, this Bill is short, but has important implications and will need careful consideration in your Lordships’ House. As has been said, the Bill creates a power of arrest, without warrant, for the purpose of extraditing people for serious offences, particularly as a result of an Interpol alert. It will apply to the countries specified in the Schedule to the Bill. I can, generally, support what is being proposed here but that is not to say that I will not propose amendments—or support those proposed by other noble Lords—that seek to provide protections, and conserve important freedoms and rights, highlighted by many noble Lords this afternoon.

We are told that the Government have identified a problem with category 2 territories under the present system which means that it can take at least a matter of hours. This creates the possibility that an individual could abscond or commit further offences in the UK. The Minister gave one example in her opening remarks. We need more than one Can she give the House some more examples when she responds to this debate?

The Bill proposes to amend the Extradition Act 2003 to get over this problem so that constables, customs officers or service police officers, on receipt of a certificate, following a valid request from a country listed in the Schedule to the Bill, can make an arrest quickly. Can the Minister set out what the designated authority in the UK—I believe it is going to be the National Crime Agency—will be required to do to satisfy itself about the request received before action is taken? What does she expect the timescales will be from receiving a request to an arrest being sought? I get the point about speed, but we must also be satisfied that due care and consideration is given to the request before a certificate is issued to authorise the arrest.

The noble and learned Baroness, Lady Clark of Calton, questioned the need for the powers in the Bill. Apparently, we already have the powers. I would be interested to hear the Minister’s response to that. When a person is brought before the court, having been arrested, the court is making a judgement on the evidence before it and, if necessary, the proceedings can be adjourned for more evidence to be provided before a decision is made. If the proceedings are being adjourned for more evidence to be provided, what would be needed by the National Crime Agency to issue the certificate in the first place? How do we ensure that, as far as possible, the evidence to issue a certificate would be at a level to satisfy a court without the need for adjournments? What I am trying to get at—I am probably not being very clear—is that the National Crime Agency can issue a certificate only where, among other things, it is satisfied that the seriousness of the conduct constituting the offence makes it appropriate to do so. That should be at the level we have today; I hope we are not proposing a lower level just to be able to issue more certificates. It is just not very clear and it would be helpful if the Minister could explain it further, to reassure me and other noble Lords.

I further understand that powers taken in the Bill would enable a process to be put in place with some EU member states if we lose access to the European arrest warrant. It seems many noble Lords think it is lost already. That is a terrible situation. We have to have something in place. The only beneficiaries will be criminals if we end up with less than we have now. I note the concern of the noble Lord, Lord Ricketts, in that regard. The noble Baroness, Lady Hamwee, asked “Why now?”, and the noble Lord, Lord Paddick, referred to this. She made a valid point about the European arrest warrant and the risk that losing these powers will entail to our safety and security. I fear that she was right to voice her concerns. I agree with the noble and learned Lord, Lord Brown of Eaton-under-Heywood, that the Bill will help make the country a less attractive place to find refuge from the authorities in the countries in the Schedule. If we lose the power of the European arrest warrant, we have to have something in place; this is about that as well. I also support his call for the Government to look for mechanisms to ensure that we can get individuals wanted in the UK back to the UK if we lose the powers we have presently.

I agree with the noble Lord, Lord Hannay of Chiswick, about reciprocity. It will be a very important principle if we find ourselves outside the European arrest warrant scheme in the coming months.

A number of category 2 countries are specified in the Schedule, and there is a power to add further countries. Can the Minister confirm the UK Government’s position on this in respect of the death penalty in the United States? I think she said to us that that will never happen but, as other noble Lords have said, in one case we did not ask for the assurance, so we need to know the Government’s position on this. As the noble Baroness, Lady Hamwee, referred to in her contribution, can the Minister set out the process to add new countries to this list?

The noble and learned Lord, Lord Judge, made an important contribution on the constraints in the Bill, specifically the Henry VIII powers set out in paragraph 29(2) of the Schedule. I am drawn to support his suggestion to allow all powers to be subject to the annulment procedures.

The noble Lord, Lord Hogan-Howe, made a valid point suggesting a reasonable change to allow courts in our major cities to hear these matters in addition to the courts in London, particularly where suspects are arrested many miles from London.

I am happy to support the Bill generally but will seek further reassurances from the Minister as it proceeds through the House, and support amendments that in my opinion strengthen the Bill and introduce necessary safeguards and protections.

17:39
Baroness Williams of Trafford Portrait Baroness Williams of Trafford
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My Lords, I thank all noble Lords across the House for their very good contributions to this debate. We should not forget that without this new power a potentially dangerous individual encountered by the police, whom they establish is a fugitive, might remain at liberty on UK streets, able to offend or abscond before they can be arrested. I can confirm that in both the cases I voiced today the individuals were encountered by chance; the police did not have the power to arrest them and had to let them go.

I am sure everyone in this House will agree that we should unite across parties to give the police the power they need to protect the public, while always ensuring that the appropriate safeguards are in place. My noble friend Lord King and the noble and learned Lord, Lord Brown of Eaton-under-Heywood, described in great clarity not only the changing face of crime and the huge demands on the police but the international aspect of crime in all its forms.

Several noble Lords have voiced concerns that this Bill is an attempt by the Government to replicate the capability of the EAW. As I hope I have explained, this is not the case. The new power is about only how wanted individuals enter the court system, not how the courts will conduct their extradition proceedings. I emphasise that, with or without access to the EAW, UK police officers are unable immediately to arrest these fugitives wanted by countries outside the EU without first going to the court for a warrant.

The noble Lord, Lord Ricketts, rightly raised the future of the EAW post transition period. The UK will approach the negotiations on these issues with practicality and pragmatism. The political declaration calls for practical operational co-operation, data-driven law enforcement and multilateral co-operation through EU agencies. The detail of this agreement will be a matter for negotiation, but it does not just apply to the EAW. It applies to several other instruments of the EU. I absolutely acknowledge his concern.

The noble Baroness, Lady Hamwee, and the noble Lord, Lord Anderson, asked whether the EAW would continue to be enforced during the transition period; they talked specifically about Germany, Slovenia and Austria. It applies during the transition period, but where a member state cannot for reasons related to the principles of their national law surrender an own national to the UK during the transition period, they will be expected—as they have been—to take over the trial or sentence of the person concerned. UK policing and courts have extensive experience of working with these countries to ensure that justice is carried out. By way of background, since 2009 five German nationals, one Austrian national and no Slovenian nationals have been extradited to the UK from those countries. We are well used to the situation. It is nothing to do with this Bill. The power of provisional arrest is for Part 2 non-EU countries.

The noble Lord, Lord Hannay, asked about replacing other aspects of the EAW. He asked whether the power will replicate other aspects of capability from the EAW such as the expedited extradition process. It will not. This new power is similar to the EAW only in so far as it provides for an immediate power of arrest. It does not change the subsequent extradition proceedings or the role of the Home Secretary in extraditions, which are dealt with under Part 2 of the Extradition Act. The person who has been arrested must be brought before a judge within 24 hours of arrest—although I take the point of the noble and learned Baroness, Lady Clark, that if it happens on a Saturday night it might be a bit more than that—and the subsequent extradition process remains as it exists now.

The noble Baroness, Lady Hamwee, and my noble friend Lord King of Bridgwater asked two equal and opposite questions: why now, and why not before now? Interpol data is now routinely uploaded to UK systems to make it available to front-line law enforcement officers. This means that the UK police might encounter an individual who, by performing a simple database check, they can see is wanted for a serious crime abroad. That was not previously the case. As I said, within the current system, the police are unable to arrest the individual immediately. There is an obvious gap, we have responded to that with the Bill, and Interpol is now available to front-line police.

A couple of noble Lords asked about reciprocity. Why is the power being extended to cover countries that will not arrest on the basis of an Interpol notice issued in the UK? Why is there not a reciprocal arrangement? We need to be clear that under the Bill we are creating powers for the UK police, not obligations to the countries concerned. The Bill will enable UK police officers to protect the public more effectively. It is about ensuring that UK police officers have the power to remove dangerous individuals from our streets before they can abscond or offend, not about bringing more wanted individuals back to the UK from other countries. Were this new power restricted to operating on a reciprocal basis, police officers could be put in a situation of encountering a dangerous individual on the street but being unable to arrest them due to the legal provisions of another country, and that does not make any sense.

The noble Baroness, Lady Hamwee, and the noble Lord, Lord Kennedy, asked what safeguards there are to show what steps the NCA has taken. It is a requirement of the Bill that the NCA issues a certificate setting out the category 2 territory, confirms that it is a valid request, certifies that it has reasonable grounds for believing that the offence is a serious extradition offence, and that the conduct is sufficiently serious that the certificate must be given to the arrested person as soon as is practicable after that arrest. The noble Lord, Lord Paddick, talked about sentences such as 10 years for theft. In fact, this not only applies to prison sentences of at least three years but, as I said, it applies to sufficiently serious offences. Offences such as stealing a bike or shoplifting would not satisfy that second point.

The noble Baroness, Lady Hamwee, and the noble Lord, Lord Kennedy, talked about human rights considerations. It is right that noble Lords interrogate this point, but the Bill is purely about shifting the point at which the police can intervene and arrest a wanted person. It in no way reduces the safeguards that must apply to any subsequent extradition proceedings considered by the court or the Home Secretary. Judicial oversight will continue as it does now after any arrest. The courts will continue to assess extradition requests as they do now, to determine, for example, whether extradition would be compatible with the individual’s human rights or whether the person would receive a fair trial. If they would not do so, extradition would be barred. That would include things such as the prison conditions that they might face and of course the death penalty, which the noble Lord, Lord Kennedy, raised.

The noble Lord, Lord Anderson, asked about the triage process. First, it applies only to specified countries; countries with a poor human rights record are not in scope. The addition of any other country will require the consent of both Houses of Parliament. Secondly, it applies only to sufficiently serious offences; the power will be available only in relation to offences that would be criminal in the UK and for which an offender could receive a prison sentence of at least three years.

The noble Lord, Lord Anderson, the noble and learned Baroness, Lady Clark of Calton, my noble friend Lord Inglewood and the noble Baroness, Lady Jones of Moulsecoomb, asked whether we already have the power to get an emergency warrant in urgent cases under the current mechanism for provisional warrants—basically, do we not already have the correct provisions in place? Crucially, however, under the current mechanism the police must already be aware that the individual is in the UK. It is not relevant here, as this legislation is concerned with chance encounters. The Bill creates an additional, different mechanism, which deals with these chance cases.

The noble Baroness, Lady Ludford, the noble and learned Baroness, Lady Clark of Calton, my noble friend Lord Inglewood and the noble Baroness, Lady Jones of Moulsecoomb, interrogated again the necessity for the Bill because of the numbers that might be involved. Obviously, it is a new power, so there is no accurate way to predict how many people it will apply to, and there is no quota, which makes this the right thing to do for security and public safety. It is about ensuring that UK police officers have the power to arrest dangerous individuals whenever they come across them on the street, to prevent them offending or absconding. However, I am clear today, as I was yesterday, that one dangerous fugitive on the streets of the UK whom we cannot arrest is one too many.

On some of the figures we have now, as of 31 December last year, over 4,000 Interpol alerts were in circulation from the countries specified in the Bill. Not all will be for fugitives in the UK, and not all will meet the seriousness criteria for this new arrest power. However, they include requests relating to terrorism, rape and murder, and if any of these wanted fugitives enter the UK or are encountered by police on UK streets, the police would not currently be able to arrest the individual. One dangerous fugitive is one too many.

The other question about necessity relates to the point made by my noble friend Lord King, which I echoed, on the international nature of crime now.

The number six in the impact assessment has been interrogated widely. It is not an indication of the number of dangerous individuals who would be arrested under this power; it is an analysis to assess the economic impact on the wider system. It is not a prediction of arrest numbers; that is to misunderstand the analysis. We cannot quantify how many opportunities to arrest dangerous fugitives have been missed because they have been missed. We can quantify the 4,000 Interpol alerts currently on the UK systems from specified countries; of course, the police would not have powers to arrest without the Bill.

Baroness Ludford Portrait Baroness Ludford
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I put it to the noble Baroness that the statement in the impact assessment seems pretty clear. It says:

“The policy is expected to result in 6 individuals entering the CJS more quickly than would otherwise have been the case.”


That seems pretty simple. How can it mean anything but that?

Baroness Williams of Trafford Portrait Baroness Williams of Trafford
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I am clarifying why that is not the case but if I am not clear, I will write in further detail to noble Lords before Committee. I am aware that time is pressing and I have a few more points to cover.

The noble and learned Baroness, Lady Clark, mentioned the lack of judicial scrutiny. That will come after the 24-hour period through the courts.

The noble Lord, Lord Anderson, talked about abuse of Interpol channels. International organisations such as Interpol are critical to our vision of a global Britain and international law enforcement co-operation beyond the EU. Interpol provides a secure channel through which we exchange information on a police-to-police basis for action. The UK continues to work with Interpol to ensure that its rules are robust. The former chief constable of Essex was recently made the executive director of policing services for Interpol—the most senior operational role in that organisation. Also, a UK Government lawyer was seconded to the Interpol legal service to work with it to ensure that Interpol rules are properly robust and adhered to by Interpol member states. I know the issue to which the noble Lord refers, but I hope that this gives him some comfort.

Baroness Jones of Moulsecoomb Portrait Baroness Jones of Moulsecoomb
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My question is crucial to my understanding of the Bill. If it not a replacement for the European arrest warrant, can the Minister confirm that the Government will not add the list of EU countries to the list we have already?

Baroness Williams of Trafford Portrait Baroness Williams of Trafford
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I said that it is not a replacement for the EAW, but of course the Government can make that request of Parliament. I was going to come to that point a bit later; in fact, no, I think I answered it. The Government can request Parliament, through the affirmative procedure, to add countries.

Lord Hannay of Chiswick Portrait Lord Hannay of Chiswick
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I am sorry to interrupt the noble Baroness but I simply do not understand why she spent a huge amount of time telling us that this has nothing whatever to do with the European arrest warrant—that it has no relevance and is not in the same context. She has told us that again and again. Why on earth did this point elude police officers who wrote about this measure? Why did it elude a large number of extremely well-informed—much better informed than me—people in this House who think it relevant? I simply do not understand why she is so determined to say so. All my questions, which she has not answered, were designed to get a positive answer, which would increase support for this measure—for example, if she said that it was a step that would enable us, in certain circumstances, where we have definitively lost the European arrest warrant, to do things that might then enable us to have reciprocal arrangements with other members of the European Union. She has not said a word about the security negotiations with the European Union.

Nobody asked that this measure should not be reciprocal; I did not and neither did any other noble Lord. We asked whether we will use this legislation—these powers—to persuade the other members of the European Union that we need a solid reciprocal arrangement if, by any chance, we get to the end of this year and such an arrangement has not been negotiated. Can the Minister explain why she is so keen not to refer to any of these issues?

Baroness Williams of Trafford Portrait Baroness Williams of Trafford
- Hansard - - - Excerpts

I hope that I talked about the other EU instruments we are negotiating on; I think I did so at the beginning of my closing speech. I was asked about reciprocity twice, which is why I answered. I also stated quite clearly that it was our intention to do this with or without our membership of the European Union, which is why the Bill was put forward. I am not trying to deny anything about the European arrest warrant; all I am saying is that we are doing this with or without our European Union membership because it is a gap in our capabilities regarding category 2 countries.

Lord King of Bridgwater Portrait Lord King of Bridgwater
- Hansard - - - Excerpts

My Lords, as I understand my noble friend’s position, she is not going to stand at the Dispatch Box and say that she is sure that all the negotiations that are now going to be conducted will go wrong. For a Minister to admit that in the House of Lords would be a remarkable headline, and if I may say so, her position is exactly right. At the moment, we hope that we will travel happily and arrive successfully. If we do not, then the Bill will come into play and obviously it will make sense.

Baroness Williams of Trafford Portrait Baroness Williams of Trafford
- Hansard - - - Excerpts

I thank my noble friend for being much clearer than I can be. The whole point is that we have identified a gap. The police now have access to the Interpol red notice system, and we should use it to pick up international criminals who are walking our streets.

I have gone over my time, and because of the interventions I cannot respond to the further points noble Lords have made. I shall answer those points in a letter, and I will follow up on any further questions. On that basis, I beg to move.

Bill read a second time and committed to a Grand Committee.

Extradition (Provisional Arrest) Bill [HL]

Committee: 1st sitting (Hansard) & Committee: 1st sitting (Hansard): House of Lords & Committee stage
Thursday 5th March 2020

(2 years, 5 months ago)

Grand Committee
Read Full debate Committee: 1st sitting (Hansard) Page Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: HL Bill 3-I(Rev) Revised marshalled list for Grand Committee - (4 Mar 2020)
Committee (1st Day)
14:00
Baroness Henig Portrait The Deputy Chairman of Committees (Baroness Henig) (Lab)
- Hansard - - - Excerpts

My Lords, if there is a Division in the Chamber while we are sitting, the Committee will adjourn as soon as the Division Bells are rung and resume after 10 minutes.

Clause 1 agreed.
Amendment 1
Moved by
1: After Clause 1, insert the following new Clause—
“Report on risk of abuse in Interpol Red Notices
(1) The Secretary of State must, before the end of the period of 12 months beginning on the day this Act is passed, lay before both Houses of Parliament an assessment of the reliability of Interpol Red Notices as a basis for arrest under this Act.(2) The report must include an assessment of the extent to which there is a risk of abuse by territories issuing notices.”Member’s explanatory statement
This amendment would require the Secretary of State to prepare and publish a report on Interpol Red Notices.
Lord Kennedy of Southwark Portrait Lord Kennedy of Southwark (Lab Co-op)
- Hansard - - - Excerpts

My Lords, Amendment 1 in my name seeks to add a new clause to the Bill that would require the Secretary of State, within 12 months of the Bill becoming law, to lay before Parliament

“an assessment of the reliability of Interpol Red Notices as a basis for arrest”

under the Bill. That assessment must address the extent to which there is a risk of abuse of the red notice system. There are eight different types of Interpol notice, but most of the recent controversy has been over the red notices. My amendment seeks to shed some light on them to ensure that they are used properly; that, where we are complying with a request under a notice, we are more confident that we are working towards getting them to be more accurate; and that the risk of their being politically motivated is drawn out.

We have to recognise that some of Interpol’s member countries do not have as good a human rights record as others. There are allegations of corruption against some and some regimes have been accused of using red notices for political purposes to attempt to capture dissidents and people who oppose them. That is why I want to hear from the Minister how we will ensure that they are not abused.

Amendment 2 in my name, also in this group, is very straightforward. It would require the Secretary of State to report to Parliament, again, within 12 months and every 12 months after that, to provide us with a statement that ensures that what happens under the Act complies with Section 4 of the Equality Act 2010. I hope the Minister will be able to respond positively to both amendments, which are simple, straightforward and attempt to address issues of concern by providing information useful to government, policymakers and Parliament. I beg to move.

Baroness Hamwee Portrait Baroness Hamwee (LD)
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My Lords, red notices are indeed controversial because they are open to abuse by authoritarian regimes seeking the apprehension of dissidents or “criminals” whose crime is dissidence. The House has talked about abuse in the cases of Russia, China, Turkey and a number of other countries. I understand that there are also sometimes queries about red notices from Latin American and Middle Eastern states. Of course there is a risk of political abuse, corruption and malicious notices.

I had forgotten, but recalled when I was preparing for today, the case of the footballer granted refugee status and residence in Australia three years ago, after fleeing Bahrain. He was arrested on his honeymoon in Thailand and held in detention for a while until he got back to Australia. Questions were raised about Interpol’s neutrality. I appreciate that reforms have been introduced over the past five or so years, but controversies do and will continue over red notices and Interpol’s diffusions, which serve as an international alert mechanism.

It is important to have as much transparency and availability of information as possible on how the recipient of the notice treats its subject, which is why the involvement of the judiciary at a later stage has such importance, and on how the NCA or any other designated authority triages the information—we seem to have adopted that term.

The fact that there is a risk of abuse seems no reason not to proceed with the legislation and I acknowledge that the amendment does not propose that. In any event, I understand that the certificate, not the red notice, is the basis for arrest, which is an important distinction.

I wonder whether this is the moment to ask the Minister about the EU’s future relationship with other European countries. The document published last week on the future relationship refers to achieving extradition arrangements with

“appropriate further safeguards for individuals beyond those in the European Arrest Warrant.”

I am sorry that I did not think to warn the Minister that I would ask this, but I imagine that it is pretty much at the top of everybody’s minds. What are the “appropriate further safeguards”? In other words, what are the problems with European arrest warrants that led to that statement in the document?

I am a member of your Lordships’ EU Select Committee. We took evidence on Tuesday about the future relationship. I asked an academic who was giving evidence what he thought this was about. He said that it was probably about human rights concerns. Of course, the noble Baroness will understand that I will not object to human rights safeguards.

On the noble Lord’s second amendment, as I have said, transparency is important. However, I was not aware that there was a major concern about discrimination, which is what is protected—as it were—by the protected characteristics. One would perhaps want to know the situation in other countries. I thank him for raising the issues and giving us the chance to discuss these subjects.

Lord Inglewood Portrait Lord Inglewood (Non-Afl)
- Hansard - - - Excerpts

My Lords, if I may, I shall raise one small point. We are talking here about the ability to effect an arrest, not an obligation on the person who discovers and identifies somebody who is suspicious and to be arrested. To clarify, if it against public policy for somebody to be extradited, there is no obligation on the person concerned who has been granted this power to carry out the arrest. Is that correct?

Lord Mackay of Clashfern Portrait Lord Mackay of Clashfern (Con)
- Hansard - - - Excerpts

My Lords, I assume that the process of extradition occurs under judicial control after the arrest and after the person arrested is in the custody of the judiciary or under the control of the arrangements made by the judiciary. That is quite important. In most of the speeches made at Second Reading, we distinguished between the Executive and the judiciary. They are two distinct parts of government. It is the Executive’s responsibility to take people before the judiciary, which is then responsible for how they are treated, subject to the Executive sometimes being part of the treatment afterwards. It is important to distinguish between the two. Therefore, it is acceptable that the authority deciding whether this arrest should go ahead is not a judicial authority but the responsible executive authority.

As far as both amendments are concerned, the information sought is reasonable and might be subject to risk, but it would be very easy, particularly if there seemed to be any public concern about the matter, for a parliamentarian to raise this as a Parliamentary Question, rather than have an obligation on the Secretary of State to keep to a time when there might not be much in the way of information to put out. I can see why these arrangements are a subject of public interest, but the Parliamentary Question system is a good way to deal with that as and when they seem important.

Lord Deben Portrait Lord Deben (Con)
- Hansard - - - Excerpts

I support what my noble and learned friend Lord Mackay just said. There is a fundamental distinction between the Executive branch and the legal branch. My objection to the Bill is that it includes a country where that division is nothing like as strong as ours. One of the issues is that these mechanisms for extradition are politically motivated in one of the five countries. The distinction between the Executive and the judicial system is crucial in people’s protection. Therefore, I very much support my noble and learned friend making that distinction, which distinguishes us and four of the other countries from the fifth. We ought to underline that very strongly.

Baroness Williams of Trafford Portrait The Minister of State, Home Office (Baroness Williams of Trafford) (Con)
- Hansard - - - Excerpts

My Lords, I thank all noble Lords who have made their points on these amendments and the noble Lord, Lord Kennedy, for moving Amendment 1. To recap, at Second Reading there was considerable cross-party consensus on the Bill’s aims and measures, alongside the robust scrutiny that I expect from the House, and now the Committee. The amendments before us rightly tease out some of those points.

Noble Lords will be interested to know that the Director of Public Prosecutions, Max Hill QC, wrote to the new Security Minister on 2 March. His letter, which I will put in the Library following Committee, says:

“Overall, it is the firm view of the CPS that this Bill strikes the right balance between ensuring sufficient human rights safeguards and delivering the capabilities that the police and CPS require in order to safeguard the public … under the current process there remains a risk that UK law enforcement could encounter a potentially dangerous person wanted for a serious crime by a trusted partner, but for whom they would have no power to arrest and detain … The Bill does not make it more or less likely someone will be extradited, but it does increase the chances that persons wanted for serious offences by some of our closest and trusted partners will enter, with all the existing safeguards, the extradition process.”


I know that reporting on the effectiveness of the legislation, and the reliability of Interpol alerts, is a topic of interest. If the Committee will allow it, I will address Amendments 1 and 2 together as both concern reporting on the legislation’s effectiveness.

On the perceived risk of abuse of Interpol notices highlighted in Amendment 1, I reassure the Committee that the immediate power of arrest proposed in the Bill will apply only to requests from specified countries—currently the US, Canada, Australia, New Zealand, Liechtenstein and Switzerland. These countries have been specified as we have a high level of confidence in their criminal justice systems and use of Interpol notices. The Government have no intention of specifying countries likely to abuse the system to political ends.

Additionally, the UK is currently working with Interpol to ensure that its rules are robust, effective and complied with. The former chief constable of Essex was recently made the executive director of policing services for Interpol, the most senior operational role in that organisation. A UK government lawyer has also been seconded to the Interpol legal service to work with it to ensure that Interpol rules are properly robust and adhered to by Interpol member states. We will continue to work with Interpol to increase the reliability and trustworthiness of the whole red notice system.

14:15
International organisations such as Interpol are critical to our vision of a global Britain and international law enforcement co-operation beyond the EU. Interpol provides a secure channel through which we exchange information, on a police-to-police basis, for action. It is important to remember that we are putting our trust in particular countries and that we will certify certain international arrest requests from only those countries, not any other Interpol notices. An arrest request from our trusted partners may be in the form of an Interpol notice, but it will be certified not because of the method by which it is sent to us but because it comes from a specified country and is for a serious offence.
The noble Baroness, Lady Hamwee, asked about the safeguards that will be provided that go beyond those provided for under the EAW and what they will be. We are seeking to enshrine important safeguards in our extradition arrangements, including the ability for a judge in the UK to dismiss a warrant from an EU member state on the basis of proportionality and, if there has not yet been a decision, to charge and try the wanted person. Judges will also be required to establish that the offence is also an offence in the UK—we discussed that the other day, I remember. We will also retain the ability of courts to refuse extradition on the basis that it is incompatible with the requested person’s human rights.
My noble friend Lord Deben asked about political motivation by “one country”. We do not accept that any of the countries concerned will be in the habit of making politically motivated requests. All those specified have justice systems in which the Government are prepared to put their trust.
Lord Deben Portrait Lord Deben
- Hansard - - - Excerpts

Did my noble friend notice that the President of the United States has just taken credit for 3,000 judicial appointments and said that he has therefore ensured that those judicial appointments will make decisions in line with his and Republican Party policy? How can one possibly say that this is the same kind of judicial system that we have?

Baroness Williams of Trafford Portrait Baroness Williams of Trafford
- Hansard - - - Excerpts

A judge would take a view on whether something was politically motivated. Something blatantly politically motivated would be rejected.

Lord Deben Portrait Lord Deben
- Hansard - - - Excerpts

I understand that, and we have the protection that the request has to go before a judge but, in this document, the Government give accreditation to the United States, which has no reciprocal arrangements with us, and talk about a “trusted partner” when it is not a partner. It will not do this the other way around and, clearly, it asks for the extradition of people on political or commercial grounds, which would not happen with Canada, Australia, New Zealand, Liechtenstein or Switzerland. We are saying something about the United States that surely none of us believes.

Baroness Williams of Trafford Portrait Baroness Williams of Trafford
- Hansard - - - Excerpts

I think my noble friend is referring to the Extradition Act itself, not the pre-extradition arrest process. I do not know whether he is questioning the Extradition Act’s efficacy, but that is not what we are talking about in the Bill. He also has an amendment down for later in Committee so perhaps we could come back to this at that stage if he wants to make further points.

Lord Deben Portrait Lord Deben
- Hansard - - - Excerpts

I am happy to do that; I merely say to my noble friend that I have tabled the amendment and wish to discuss it because this is our opportunity to do so and we are repeating our view. My noble friend is using phrases that are, I think, unsuitable, given the relationship. We are, after all, extending—perfectly properly, I think—the way the Extradition Act works. It seems reasonable at this point, before we go any further, to question whether one ought to use those phrases in these circumstances.

Baroness Williams of Trafford Portrait Baroness Williams of Trafford
- Hansard - - - Excerpts

We will get on to my noble friend’s point, but we use Parliament to make law rather than to make points. I hope he will respect the point that I make.

The noble Lord, Lord Inglewood, asked about obligation to extradite. He is absolutely right. The Bill creates powers for the police, not obligations to other countries.

Amendment 2 requests the publication of an annual statement on arrests. The NCA already keeps data and publishes statistics around arrest volumes in relation to Part 1 of the Extradition Act. It does it without being required to do so by primary legislation. We have no doubt that it will similarly do so in respect of arrests under this new arrest power, as this is a sensible operational practice. I have sympathy for the amendment, so I have asked officials to look at how we can give the noble Lord, Lord Kennedy, some reassurance. I hope he will accept that I will liaise with him between now and Report.

I am not persuaded that the either the Secretary of State or the NCA require a statutory obligation to take these steps. I hope I have been able to persuade the noble Lord not to press his amendments, but we will have further discussions between now and Report.

Lord Kennedy of Southwark Portrait Lord Kennedy of Southwark
- Hansard - - - Excerpts

My Lords, I thank all noble Lords who have spoken in this short debate. I am obviously happy to withdraw my amendment for the moment.

I agree with the point made by the noble Lord, Lord Inglewood. The noble Lord, Lord Deben, has also made some important points, which I know we will come to later.

The noble and learned Lord, Lord Mackay, mentioned Parliamentary Questions. Sometimes, the Answers we get are not very good, to say the least. That goes across government. I am going to have to start tabling Questions about Parliamentary Answers. I asked one recently of another department. I asked, “What do we here?” and the Answer had no bearing whatever on the Question. I raised that with the Minister concerned and he accepted that. I thought, “Just answer the Question. If you can’t answer it, tell me you can’t answer it.” They had sent back a ridiculous Answer that had no bearing and it is not good enough. Unfortunately, that is a problem across government. Maybe we need a debate in the House about it. I am going to try putting in FoIs and comparing answers between PQs and FoIs. Will the answers be as bad there? We will see. But that is a separate issue. I would love to think that PQs were the answer; unfortunately, in my experience of being here for nearly 10 years, they are not.

Having said that, I am pleased with the Minister’s response, especially to my second amendment. I look forward to further discussions between now and Report. On that basis, I am happy to withdraw my amendment.

Amendment 1 withdrawn.
Amendment 2 not moved.
Clause 2 agreed.
The Schedule
Amendment 3
Moved by
3: The Schedule, page 2, leave out lines 17 to 19
Member’s explanatory statement
This amendment precludes the period of imprisonment extending beyond 24 hours before the person is brought before a judge.
Baroness Hamwee Portrait Baroness Hamwee
- Hansard - - - Excerpts

My Lords, I tabled this amendment following the speech of the noble and learned Baroness, Lady Clark of Calton, at Second Reading. She raised the issue of the time that a suspect—the person who has been arrested—might spend in custody before coming before the court. Someone arrested on the Friday before a bank holiday weekend might not go before the court until the Tuesday, if one excludes weekends and bank holidays. The impact assessment tells us that the legislation is likely to involve only half a dozen people, so without wanting to impose too much on our judiciary—I accept that it is pretty hard pressed these days—I do not see that it would be too much of an extra strain on them or on the police to deal with these matters over the weekend.

I am grateful to the Minister for calling me just before we started the Committee stage to say that, basically, I had got the drafting wrong. Okay, this is what Committee stages are about: to raise issues and to see how we can deal with them. The schedule provides that in calculating the 24-hour period before a person is brought before a judge, no account is taken of weekends, bank holidays and so on. Reference is made to provision elsewhere. I understand that the noble Lord, Lord Parkinson, will deal with this matter. I look forward to him explaining this to me because I believe the argument is that that would mean that no one could be arrested on a Saturday or a Sunday. I am not quite sure that I follow that, but no doubt he will put that right.

When the noble and learned Baroness, Lady Clark, spoke at Second Reading on 4 February, she asked, at col. 1743, for some statistics on the number of arrests. I thought I should check on whether those have been made available. It may be that the matter was not pursued, the Minister having spoken to her. But as she said then, if there is a problem in relation to extradition to category 2 territories, the solution might be better co-ordination between the police and the judiciary to enable a warrant to be obtained at an early stage, or the involvement of the judiciary in a screening process instead of the designated authority. This is a useful opportunity for us to consider these points and I beg to move.

Lord Kennedy of Southwark Portrait Lord Kennedy of Southwark
- Hansard - - - Excerpts

I rise briefly to welcome the noble Lord, Lord Parkinson of Whitley Bay. If he will now be covering some Home Office matters, we will be spending a lot of time together and will get know each other well, so that will be welcome.

The amendment moved by the noble Baroness, Lady Hamwee, is very sensible and I am happy to support it. She set out the issue clearly: someone can be picked up on the Friday before a bank holiday weekend and potentially wait until the Tuesday morning before being brought before a judge. That is a fair point. If people are arrested, they should be brought before a judge quickly, so I look forward to the noble Lord’s response.

Lord Judge Portrait Lord Judge (CB)
- Hansard - - - Excerpts

My Lords, I also support this amendment. Would you believe it, there is a judge on duty all weekend, every weekend, and all night? If the period is reduced to 24 hours and this happens over a weekend, it can be treated as urgent business.

14:30
Lord Parkinson of Whitley Bay Portrait Lord Parkinson of Whitley Bay (Con)
- Hansard - - - Excerpts

My Lords, I thank noble Lords for their words of welcome. There will, indeed, be plenty to keep us busy on the home affairs front. Amendment 3 in the name of the noble Baroness, Lady Hamwee, concerns the period of detention. It seeks to delete the provision that, in calculating the 24-hour period within which an arrested person must be brought before the appropriate judge, no account should be taken of weekends, bank holidays and the like, as she explained.

It might be helpful if I first reassure noble Lords that this provision does not arise from any desire of law enforcement agencies to detain individuals for prolonged periods without judicial oversight. The Government have been very careful to ensure that sufficient safeguards exist against this. Our operational partners have already proved themselves effective at producing wanted persons before courts within strict timeframes. The practical question at the heart of this issue is one of being certain that, when a person is produced at court, an appropriate judge is available to hear their case. The key aspect perhaps is that, rightly, the requirement under the Act is for the person to be brought before the judge, not simply for a judge to consider the case on paper. I hope that addresses the point raised by the noble and learned Lord, Lord Judge. If the Bill were to be amended along the lines suggested, it would render the power largely unworkable; in some instances, because of perfectly normal court closure times, if a judge were not available for the wanted person to appear before them—

Lord Judge Portrait Lord Judge
- Hansard - - - Excerpts

I am sorry to interrupt the noble Lord. It is questionable whether the word “brought” requires the physical presence of the judge and the particular person so that they should be facing each other directly. Nowadays we have all sorts of technology that enables people to encounter each other while not in one another’s physical presence.

Lord Parkinson of Whitley Bay Portrait Lord Parkinson of Whitley Bay
- Hansard - - - Excerpts

To be clear to the noble and learned Lord, it is the statutory intention that the person should be brought before a judge in person. It is an additional safeguard and a better situation for them to be seen in person before a judge. If the Bill were amended along the lines suggested, it would make the power operationally unworkable because, in some instances, normal court closure times would preclude that. As we have discussed, it could mean, practically, that arrests could not be made on a Saturday or on the Sunday before a bank holiday.

Lord Judge Portrait Lord Judge
- Hansard - - - Excerpts

I am sorry to interrupt the noble Lord again. This is his first outing and we are throwing bouncers at him. If that is the problem, we need to amend the legislation to make it clear that “brought before” does not mean that there is a personal, direct, physical confrontation. I would be very willing to talk to him about this at any time but, so far, I am not entirely satisfied with what he has had to say.

Lord Parkinson of Whitley Bay Portrait Lord Parkinson of Whitley Bay
- Hansard - - - Excerpts

I thank noble Lords for their forbearance on this, my first outing. It is our intention to replicate the existing provisions under the Extradition Act. It may be helpful for me to speak to the noble and learned Lord and others in greater detail about the statutory intention of what the Government propose. We seek to mirror the provisions already there, which are caught up in the usual formulation of “as soon as practicable” that already exists in the Extradition Act. There are precedents for these arrangements for provisional arrest under Part 1, under which a person may be provisionally arrested without warrant and brought before the appropriate judge within 48 hours of their arrest, subject to exactly the same conditions as set out in the schedule under discussion here.

My noble friend Lady Williams of Trafford has already cited the letter sent by the Director of Public Prosecutions to the Security Minister earlier this week, which welcomes the way the Bill, as drafted, will avoid unnecessary delay and ensure initial judicial scrutiny as early as possible, before the case proceeds through extradition proceedings in the usual way. It is for that reason that the Government are not persuaded that the amendment is needed. I hope that gives some reassurance to the noble and learned Lord, the noble Baroness and others.

Baroness Hamwee Portrait Baroness Hamwee
- Hansard - - - Excerpts

My Lords, I did not expect it to go in this direction, but I thank the noble Lord for his explanation. I am left a bit thrown and not entirely satisfied. I decided that I would not bring my iPad into Committee to scroll up and down through the 2003 Act; I reckoned it could wait until later, but clearly I should do so.

If this provision is to mirror the 2003 Act, which talks about bringing someone before a court as soon as practicable and in any event within 48 hours, that still does not meet the provisions of new Section 74A(4) because, as I said, if someone is picked up on a Friday afternoon, 48 hours lands them on a Sunday. There is an important point of principle in this: the way it operates—the noble Lord used the term “workability”—in terms of the position of the Executive and the work it has to do with the police and the rights of the individual who is the subject of this. That is why the judiciary is involved: to ensure that that person’s rights are properly protected. It looks as if the noble and learned Lord, Lord Mackay, wants to intervene.

Lord Mackay of Clashfern Portrait Lord Mackay of Clashfern
- Hansard - - - Excerpts

I shall wait until the noble Baroness has finished.

Baroness Hamwee Portrait Baroness Hamwee
- Hansard - - - Excerpts

I think I pretty much have finished.

Lord Mackay of Clashfern Portrait Lord Mackay of Clashfern
- Hansard - - - Excerpts

I think the position is that, as times have changed and we are more modern than we once were, a judge is now available at all times to deal with this matter. Therefore, it is not necessary to leave out weekends or bank holidays because the reason that was put in was that the judge might not be there. Now, under the rules of the system, the person can have his case before the judge in the holidays because a judge is always there. Therefore, it needs to be changed to take account of that. That is my understanding. I hope the noble and learned Lord, Lord Judge, agrees with me.

Lord Kennedy of Southwark Portrait Lord Kennedy of Southwark
- Hansard - - - Excerpts

My Lords, we have just heard from two very experienced former members of the judiciary. The noble Lord, Lord Parkinson, would be very wise to agree to take this matter away and try to sort it out.

Baroness Hamwee Portrait Baroness Hamwee
- Hansard - - - Excerpts

As my noble friend Lord Paddick says, this is what Committee is about. He has reminded me that some courts are open on a Saturday to deal with custody cases, which adds another dimension to this. I look forward to discussing this to get the right balance, which is what we always seek. I thank the noble Lord, Lord Parkinson. I am sorry that, as the noble and learned Lord, Lord Judge, said, we have been bowling him googlies on his first outing. I beg leave to withdraw the amendment.

Amendment 3 withdrawn.
Amendment 4
Moved by
4: The Schedule, page 3, line 9, at end insert “and
(e) it is satisfied that the request is not politically motivated.”Member’s explanatory statement
This amendment is to probe the propriety of requests, and whether paragraph (d) provides adequate protection.
Baroness Hamwee Portrait Baroness Hamwee
- Hansard - - - Excerpts

My Lords, I beg leave to move Amendment 4 and will speak to my Amendments 11, 11A and 11C.

Amendment 4 would insert into the criteria for a certificate under new Section 74B that the designated authority is

“satisfied that the request is not politically motivated.”

This takes us back to our first debate and is intended to probe how the propriety of requests is dealt with. We already have new Section 74B(1)(d), which says that the authority

“is satisfied that the seriousness of the conduct constituting the offence makes it appropriate to issue the certificate.”

I am not sure quite what that paragraph means. What is “appropriate”? It may go only to the offence for which the possible sentence meets the threshold. What is the seriousness of conduct constituting the offence? How does one assess the conduct as distinct from the offence as it is legally defined in the country in question? I am quite prepared for the Minister to tell me that this is in the 2003 Act and that there is case law on it. I will wait and see.

Amendment 11 would amend new Section 74C, which concerns the validity of requests, including from the requesting authority. The designated authority —in our case, the NCA—must believe that the authority in the other state has the function of making these requests. As my explanatory statement says:

“The amendment is to probe whether the designated authority should rely on a request if there is any doubt as to whether the requesting authority has this function,”.


The word “believes” made me hesitate over this provision.

Amendment 11A would provide that, where someone has been discharged, the person should not be arrested again in reliance on the same certificate. There should be a further certificate. I am not sure that we have the amendment in quite the right place. However, it seemed worth raising the issues of concern to the organisation Justice, which has been following—and, in some cases, leading us on—the proceedings on the Bill. It is concerned about it being quite wrong for there to be a new power in respect of the same extradition request should the designated authority issue a fresh certificate. Justice understands that the Government do not intend for fresh certificates to be issued where the first has been produced incorrectly and that this would be a matter for judicial scrutiny. I am again grateful to the Minister for having a word with me about this. I hope she will put on record what I know to be the Government’s position on this.

Amendment 11C would provide for

“the affirmative procedure for regulations to designate the ‘designated authority’.”

We have been told that the designated authority will be the National Crime Agency, although it is not specified in the Bill. Given that reorganisations in the police service are not that unusual, I understand why one might need the opportunity to change the reference. There is clearly concern about ensuring that a future designated authority has the requisite expertise, as there is in the service at the moment. It would therefore be appropriate to use that procedure. I beg to move.

14:45
Lord Kennedy of Southwark Portrait Lord Kennedy of Southwark
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Amendment 5 in this group is in my name. It would simply put “National Crime Agency” into the Bill. Throughout the Bill, there are references to the “designated authority”, but there is no mention of a specific agency. I am sure that the Minister will set out why the Bill is framed in that way and I look forward to that explanation.

Other amendments in this group are in the name of the noble Baroness, Lady Hamwee. They are all useful, as they give the Minister the opportunity to explain further the Government’s reasoning in specific areas and to convince the Grand Committee of the protections in the Bill.

On Amendment 4, who will be responsible and accountable if the safeguards fail and we end up complying with a request that is politically motivated? Amendment 11 would take away the uncertainty built into the Bill. I do not like phrases such as “the designated authority believes”. “Believes” is a strange word to have in legislation. I like there to be a bit more certainty than is offered by a word such as “believes”. It seems very loose and open to all sorts of interpretations by all sorts of people.

Amendment 11A raises the circumstance where somebody could be rearrested under a new certificate. I accept that circumstances can change and maybe those powers are needed, but if somebody has been released under one certificate, we need to make clear what would need to change for them to be rearrested under a new one.

Amendment 11C has my full support. In many ways, it is a compromise between what the Bill says and what Amendment 5 says. Doing it through an SI is probably the best way forward, so I fully support Amendment 11C. I look forward to the Minister’s response.

Baroness Williams of Trafford Portrait Baroness Williams of Trafford
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I thank the noble Lord, Lord Kennedy, and the noble Baroness, Lady Hamwee, for their points on these amendments. They have been grouped together as dealing with the functions of the designated authority and the criteria applied by it in certifying requests.

Amendment 4 proposes a new criterion for certification. This would require the designated authority to be satisfied that the request is not politically motivated. Making consideration of political motivation a precondition of certification for the designated authority would reverse the present position for arrests under the Extradition Act 2003. Presently, the courts are required to consider during the substantive extradition hearing whether any of the statutory bars to extradition apply. These statutory bars include whether the request for extradition is made for the purpose of prosecuting or punishing an individual on account of their political opinions—that comes under Section 81 of the Extradition Act 2003. The Government’s position remains that it is right that the judge considers these points based on all the evidence before him or her during the substantive hearing and not the NCA prior to arrest. It is the judge who is ultimately accountable.

Furthermore, we are all aware that the Extradition Act contains substantial safeguards in respect of requests motivated by reason of the requested person’s political views. These safeguards will continue to apply, and we fully expect the courts to continue to exercise their powers of scrutiny as usual.

Arguments of political motivation are of course not usually simple. It is right that the question of whether an individual extradition request can be described as politically motivated should be assessed by a judge before an open court. It is vital, of course, that the requested person should be able to put their arguments on this basis to a judge, but it is also crucial, in the fulfilment of our obligations under the international arrangements on extradition that give rise to such proceedings, that the requesting authority should be able to respond to such arguments and put their own case as to why the request is not politically motivated. This should be openly and fairly arbitrated, so importing this consideration into the process for determining whether an individual may be arrested would be at odds with existing extradition law. Noble Lords will be aware that judges and justices of the peace are not required to consider such factors when deciding whether to issue an arrest warrant under Section 71 or Section 73 of the 2003 Act.

Were the designated authority to make such a deliberation in effectively, it would need to be able to invite representations on the point from both the requesting authority and the requested person in each case before certification. Not only would this be hugely resource-intensive, it would also advertise to the wanted person that they are wanted. I should note that the designated authority, as a public body, would already be under an obligation to act compatibly with convention rights under Section 6 of the Human Rights Act 1998. At the point of certification, this will include consideration of whether an arrest is ECHR-compatible.

I bring the attention of noble Lords to the types of territories proposed as appropriate specified territories. These are democracies whose criminal justice systems are rooted in the rule of law. I am certain Parliament would not accept the addition to the schedule of territories that we believed would send the UK politically motivated arrest requests. I hope I have been able to persuade the noble Baroness that there is no gap in safeguards here and that, consequently, she will be content with withdraw her amendment.

She also asked what is meant by the “seriousness of the conduct”. The language mirrors the test in Part 1 of the Extradition Act 2003. As she thought, there is indeed case law on the point. The intention is to capture only conduct sufficiently serious to ensure that the power is used only where proportionate. For example, the minor theft of an item of food from a supermarket or a very small amount of money is unlikely, without exceptional circumstances, to be sufficiently serious. Only when the designated authority decides that the offence satisfies the test will it be able to certify the request.

I turn now to Amendment 5, which seeks to define the designated authority as the National Crime Agency in the Bill. Our approach here mirrors that of the designation of the authority responsible for certification of European arrest warrants under Part 1 of the Act. The Government consider that the designation of the authority responsible for issuing a certificate is an appropriate matter to be left to secondary legislation. A regulation-making power affords the appropriate degree of flexibility to amend the designated authority in light of changing circumstances, including alterations to the functions of law enforcement bodies in the UK. To future-proof the legislation, the Government believe that the current drafting leaves an appropriate amount of flexibility. As I said, the Government’s intention is initially to designate the NCA, which is the UK’s national central bureau for Interpol, as the designated authority. I hope I have persuaded the noble Lord that we have got the balance right and that he will be content not to press his amendment.

I turn finally to Amendment 11, on requests made in the “approved way”. My noble friend’s amendment suggests that a request should be considered to have been made in the approved way only if it is made by an authority that has the function of making such requests in the territory concerned, rather than an authority which the designated authority believes to have this function.

Perhaps I may momentarily be a bit philosophical. The amendment attempts to base the assessment of the authority’s function on an objective truth. That is admirable from the point of view of legal certainty, but the designated authority does not have a monopoly on truth. The best it could do in practice, when making the assessment described in the amendment, would be to decide, to the best of its ability, whether the authority in question has the function of making such requests, arriving at what I think we would characterise as being a belief that it does so. Of course, the designated authority, as a public body, must take decisions that are reasonable and rational.

As such, we expect there to be no difference between how the assessment would be made in practice under the amendment and how it would be made under the existing text. The benefit of the text, as we have proposed it, is that it mirrors language elsewhere in the Extradition Act—for example, when the designated authority under Part 1 may issue a certificate in relation to a warrant and when the Secretary of State may issue a certificate under Part 2.

On the perceived risk implicit in Amendment 11A—that an arrested person could be rearrested for the same thing, having been discharged by a court, perhaps because they were not produced at court on time or for some other failing—I reassure the Committee that this is neither the intention nor the effect of the new sections in the Bill. New Section 74A(8) makes clear that an arrested person may

“not be arrested again in reliance of the same certificate”

if they have previously been discharged. The intention of this drafting is to stipulate that an individual may not be arrested again on the basis of the same international arrest request once a judge has discharged them. This mirrors Section 6 of the Extradition Act 2003, which provides for the same thing, where a person provisionally arrested on the basis of a belief relating to a European arrest warrant may not be arrested again on the basis of a belief relating to the same European arrest warrant.

On top of that, new Section 74B(3) requires that a certificate has to have been withdrawn before any arrest takes place to allow a new one to be issued relating to the same request. This again illustrates that a further certificate cannot simply be issued on the basis of the same request once an individual arrested under this power has been discharged by a judge.

Of course, it is vital that a certificate can be issued on the basis of a new request, or on the basis of a wholly different request, so that an individual wanted for another crime is not immune to any further arrest because they were once arrested and discharged for a different crime. Organised transnational offences, such as people trafficking, often involve offences in different countries, on different dates, with different victims, and no individual should be able to avoid answering for more than one serious crime using a legal loophole. The amendment would create that impunity. For that reason, I hope I have been able to persuade the noble Baroness and that she will be happy not to press that amendment.

Amendment 11C would require an affirmative resolution procedure to apply to any statutory instrument that designates an authority as a “designated authority”. Given that the framework and criteria for the issuing of a certificate are provided for in the Bill, we consider that the negative resolution procedure affords an appropriate level of parliamentary scrutiny. We have plainly set out what the designated authority will do and how they must do it. Which particular body exercises that function is not, in our view, a matter that needs to be subject to debate in both Houses. The use of the power to designate an authority is necessary to accommodate any changing circumstances, including alterations to the functions of law enforcement bodies in the UK, and we consider it appropriate that we can respond to this promptly. The application of the negative procedure is also, again, completely consistent with the procedure for designating an authority for the purposes of issuing a certificate in respect of a European arrest warrant under Part 1 of the Extradition Act 2003.

I am sorry for my long-winded response to these several amendments. I hope the noble Baroness and the noble Lord are happy not to press their amendments.

Baroness Hamwee Portrait Baroness Hamwee
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I do not think the Minister was long-winded; it is quite a long group of amendments. I am grateful to her for that. I should have brought my iPad so that I could have followed all the references to the 2003 Act. I take all the points that the Minister made—in particular, the point about organised crime. One does not always remember how the nature of crime changes. I beg leave to withdraw the amendment.

Amendment 4 withdrawn.
Amendment 5 not moved.
15:00
Amendment 6
Moved by
6: The Schedule, page 3, line 34, leave out “, vary”
Member’s explanatory statement
This amendment is to probe the variation of a reference to a territory, as distinct from an addition or removal.
Baroness Hamwee Portrait Baroness Hamwee
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My Lords, I beg to move Amendment 6; I also have Amendments 7, 9 and 10 in this group. I start with Amendment 9, which I think is the most important. This amendment would restrict additions to Schedule A1 to one territory at a time. Orders are not amendable; one says either yes or no—and it is rarely no—to the whole thing. Let us consider an order seeking to add, say, Turkey and the Netherlands—it might not happen but I am thinking of two very different states—where one might want more protections than are proposed by the Government, but one would not want to reject an order to add the Netherlands. I think that is a sufficiently stark pairing to enable your Lordships to understand why I am concerned about this. I have written myself a note about the delegated powers memorandum. I cannot now find it but I am sure that it said something quite relevant. I might be able to find it by the end of the debate. Anyway, that is my particular concern. I do not think that I need to expand on it any further. I am grateful to the noble Lord and the noble and learned Lord for adding their names to this.

Amendment 6 is to probe how a territory can be varied, as distinct to being added or removed. It did not seem to me that one could vary a territory to make it part of a state. If it is about a change of name—some states do change their names—surely legislation here is not necessary. Amendment 7 is to take out the provision in new Section 74B of the Act that regulations can amend new Section 74C consequential on the addition, variation or removal of reference to a territory. New Section 74C is about the validity of requests for an arrest, which have to be made in an approved way; so, again, I am probing. What could be amended other than that the request comes from an authority with the requisite function? I table this because I am uncomfortable that there might be regulations in contemplation that widen the category of authorities entitled to make the request.

Amendment 10 would deal with the basis on which the Secretary of State may add a territory. The Minister at Second Reading said that we would apply the provisions only to

“alerts from countries that do not abuse Interpol systems, that respect the international rules-based system and that have criminal justice systems we trust; and only to alerts relating to sufficiently serious offences.”—[Official Report, 4/2/20; Col. 1727.]

I do not quarrel with a word of that. This amendment seeks to transfer those words into the legislation. I beg to move Amendment 6.

Lord Deben Portrait Lord Deben
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My Lords, I very much support this Bill. My Amendment 11B relates to the names of territories that were not in the original legislation but are in this Bill. My noble friend perfectly reasonably suggested that I might be objecting to our extradition system in general and that that would not be suitable. I agree with her. However, this Bill has a list of “trusted partner” countries. That is true of all but one of them. All the others have a system of justice that is removed as far as humanly possible from politics. In this country, we are proud of that. That would not matter if one could not show—as I hope to—that the United States, because of its different kind of legal system, is using the extradition arrangements in a way that my noble friend rightly objects to, and why quite a number of other countries are not this list. The problem is that, by putting the United States on this list, we are making a statement about its use of extradition which seems unjustified. I will explain why.

We know that, unlike with the other countries, there is no reciprocal arrangement because the United States has said that it is contrary to its constitutional arrangements to have reciprocity. Our original Act is not reciprocated by the United States. I find that difficult anyway, but we are not discussing that issue here. In the case of the United States, unlike many other countries with which we have had and probably will have reciprocity after negotiation, we accept that it will not extradite people to us in circumstances in which we are extraditing people to it. We are confirming that by saying that we will extend our extradition procedure—perfectly properly in other circumstances, I think—to enable us to arrest people in the circumstances that this Bill makes clear.

We are very fortunate in this country because the whole system is overseen by the judiciary. It would be arguable that it does not matter because the new arrangements will mean that the judiciary will still be able to oversee that. After all, we are not putting every country on the list. We are not saying that the judiciary oversees everybody; we are saying it about these countries and distinguishing them from others.

I will remind your Lordships about two cases that show why I think that this is very real. We have the case of a woman who killed a British boy in Britain, has admitted it and has not been extradited although we have asked for that extradition. Not only has she not been extradited but the United States has refused to reveal what it claims are the special and secret arrangements under which the extradition cannot take place because the person is supposedly covered by diplomatic immunity. However, the United States will not publicly explain the special arrangement. Not only is the lady not extradited, although we have asked for it, but it is on a basis that the United States has refused to reveal. Were this Turkey, Bangladesh or another country, this would be a very good reason for not putting the name on this list.

There is a second reason: the use of the extradition arrangements to pursue a political or commercial end. For the United States it is very often a commercial end. In this I speak of the case of my former constituent Dr Mike Lynch, chairman of one of our most successful companies. He sold his British company to an American company; it was sold under British law in Britain, bought by an American company and operated in Britain. After a bit, the American company had so badly mucked up the running of this business that it wanted an excuse for the sum it had paid, so it called on the British authorities to prosecute Dr Lynch, saying he had misled it. That may or may not be true. It had done very extensive due diligence before, so it is difficult to believe that so great an American company with so much opportunity to look beforehand should have been misled, but that is what it said.

The British authorities investigated and found that there was no case to answer. Therefore, they declined the prosecution. The American company, Hewlett Packard, perfectly rightly—I have no objection to this—went to the civil courts to claim its case. That case has now been heard at great length. It is probably the longest case of this kind ever held in this country. Dr Lynch was cross-examined for many days. The case is over as far as the evidence is concerned, but there has so far not been a judgment, so we do not know whether the civil courts in this country will find my former constituent guilty or innocent. Hewlett Packard is clearly worried about this case. Indeed, to read it one might be worried oneself if one were on that side. But still, we do not know. It is for the judge to decide.

British justice is known internationally as the fairest system in the world. That is why lots of companies that are not here agree with other companies that are not here for their court cases, should they come up, to be decided in British courts; they know that they will get a fair deal. Hewlett Packard has however demanded that Dr Lynch be extradited from Britain to have the case heard not in this country but in the United States. I am quite sure the reason is that it feels a United States court is more likely to make a decision which pleases it—particularly given the geographical position of the court calling for the extradition and its long-standing relationship with Hewlett Packard—and more likely to accept its case than the British one.

We all know that there are many situations in which British companies have found that courts in the United States make decisions that we would find, let us say, commercially political rather than judicially objective. Here we are, saying that this “trusted partner” should be treated in the same way as Canada, Australia, New Zealand, Switzerland and Liechtenstein, all of which have systems that any of us in this Room would be happy to be tried before, but how many of us would genuinely say that, if we had a commercial disagreement with an American company with power and political punch, we would wish to be charged before an American court? That is a different situation.

I have tabled the amendment not because I seek to undermine the original Act, although I think it was a mistake to allow a non-reciprocal arrangement with the United States. I am merely saying that I do not think that the United States should be one of those countries that benefits from a perfectly proper extension of our laws.

My noble friend said that she would not want to have this kind of arrangement with anyone whose judicial system was subject to political influence. President Trump has pointed out that he has changed the judges in the Ninth Circuit because it was

“a big thorn in our side”.

He has now appointed judges who will not be a big thorn in his side. He has made, I think, 181 judicial appointments and encouraged the majority Republican Senate to change as many as possible while he is there so that they get the judges who will to make the sort of judgments that suit the right-wing Republican that he is.

15:15
I say to my noble friend that it is no good saying that America is so like us, that they speak English and all the rest of it. The truth is that, in this area, America is different. It is using the extradition system to promote its commercial interests. The case I referred to was of a British company—of a Brit who has created very many jobs in this country, is a serial entrepreneur and who the Government have used and lent upon because of his extreme expertise. Yet we are allowing ourselves to be used by the Americans to try to ensure their commercial interests are advanced.
I am perfectly happy to stand by whatever a British court decides, but I have certainly seen too many examples of American courts making decisions that would never be made in this country. Therefore, I ask the Government to remove the United States from the named countries, instead seek with it an understanding that has the reciprocity necessary and then add it to the list. Unless we have that reciprocity and can be assured that it is not being used for commercial or political reasons, I do not believe it ought to be given the status that is being given in these circumstances.
Lord Judge Portrait Lord Judge
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My Lords, I support Amendment 9. As I indicated at Second Reading, I support the Bill. There is a great deal to be said for the proposition that there should be reciprocity between countries that respect the rule of law on the administration of criminal justice. However, I strongly support this amendment; I see absolutely no inconsistency between the two propositions.

The reasons why are very simple. We all know that there are countries in the world that do not respect the rule of law. I will not set about trying to give your Lordships a list because the list itself changes. Countries that respected the rule of law no longer do. Weimar Germany did; Hitler’s Germany did not. This is a moveable feast.

My concern is that we are giving the Secretary of State wide powers to add different nations to the list by regulations. At Second Reading I went through the possible reasons, and they are still there: political motivation, getting a good deal on a treaty, the fact that we need a bit of support on this or that, so we put a country on the list. There is a whole series of reasons why, in years to come, since this Act will be in force for many years, Ministers—not, I hasten to assert, either of these Ministers—will think it appropriate to add to the list countries that this House and the other place together think are inappropriate to be added.

We are doing this by way of regulation, as the noble Baroness, Lady Hamwee, pointed out. The consequence is that the Prime Minister of the day or his acolyte—and we are talking about a Prime Minister who would not perhaps respect the rule of law himself, but who knows what could happen—would insist on having a country that we in both Houses would regard as totally inappropriate to be a brother or sister nation on such a list and with whom we would think it quite inappropriate to have any sort of arrangement of this kind simply because it does not respect the rule of law. I have been through that.

What are our processes? They are that such a country could be included in a list of perfectly acceptable countries—the noble Baroness, Lady Hamwee, said the Netherlands and Turkey—but can we just cut down a little further into that? It means that when the House considers the regulation, it will have to decide whether to exclude Turkey—to use the country that the noble Baroness used—because it is really rather important and because we greatly respect the Netherlands, or whether to reject Turkey and the Netherlands. Or, to go the other way, we must have the Netherlands, so we must therefore have Turkey. If one or other of these courses is taken—whichever way round it is—if there is any amendment, the whole thing falls to the ground. We will not want the Netherlands to fall to the ground, nor Denmark, France or Germany. There are many countries that we would want to espouse as colleagues in respect for the rule of law.

What is proposed in this amendment is utterly simple. What is the difficulty in doing it one country by another? It might take a little longer; there might a little more typing, a little more printing—we could even have all the countries, except the ones objected to, come through as a job lot. I gave a little cricketing analogy earlier and I am sorry that I bowled bouncers not googlies at the Minister. One of the most famous things ever said at a cricket match was when, in 1902, Hirst came out to bat against the Australians with 15 runs to get on a difficult wicket in the dark; the story goes that Rhodes met Hirst and exchanged the words, “We’ll get them in singles”. Let us get this done in singles.

Lord Hope of Craighead Portrait Lord Hope of Craighead (CB)
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My Lords, I cannot match the noble and learned Lord’s eloquence, except I remember that Lord Bingham used to use that phrase to describe how judges should nudge the law forward gently, step by step, rather than sit hitting sixes and fours.

I support this amendment for the reasons that have been explained. There are two features of the issue that are worth bearing in mind. First, the standard that the Government have set, which was described by the Minister, is a relatively high standard and, therefore, we are not talking about large numbers. Indeed, the Schedule itself demonstrates that we are not expected to have a great list, they will come in twos or threes at the worst, preferably ones, as the amendment seeks. Secondly, the issue of a standard is something that we would wish to debate, as the noble Lord, Lord Deben, demonstrated in his contribution. It is a great shame if we are masked, as it were, by having one good country on the list that we would not object to but which is in the kind of pairing that the noble Baroness, Lady Hamwee, mentioned, so that we cannot really grapple with the one to which we are objecting because the instrument is not amendable.

With great respect, this seems a very sensible amendment that meets the problem of the non-amendable instrument without at the same time creating an insuperable difficulty for the Government. It enables a debate to take place that would have a real point to it instead of one that really does not have a point because one part of the list—if it is a list—is unobjectionable. I very much support the amendment.

Lord Inglewood Portrait Lord Inglewood
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My Lords, I add my general support to the proposition and arguments that have been made. When I had the good fortune to chair the ad hoc committee looking at the workings of this legislation three or four years ago, this was one issue that the committee spent a long time discussing. Our concern throughout was essentially—and, I believe, entirely properly—about injustice. We must have an extradition system that is just at its heart. If there is any risk or probability of people being extradited into circumstances in which their human rights will be abused or ignored, or in which injustice will be meted out to them, we should not be party to it.

I was particularly grateful for the remarks by the noble and learned Lord, Lord Judge. He has touched on a point that I will come to when I move my amendment later on in the proceedings. I will not say that he has stolen my thunder—he has made the point a lot better than I might have.

Lord Kennedy of Southwark Portrait Lord Kennedy of Southwark
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My Lords, Amendment 6 is a very good probing amendment from the noble Baroness, Lady Hamwee. As I raised on the previous group, the words of the Bill need clarifying. This amendment gives the Minister the opportunity to do that and to explain why the word “vary” is in new Section 74B(7)(a). We have to be very careful with the words that we use in legislation. I can see why we would want to add or remove a territory, but why vary it? Is it to address a name change? I am sure that the Minister will tell us why. Amendment 7 allows the Minister to explain the need for this power. It may be perfectly sensible, but to make that clear would be most welcome.

My Amendment 8 is fairly simple. It seeks to improve the Bill—as do all my amendments—by requiring the Government to report changes before adding, removing or varying a reference to a territory. What is the process for adding a country? How will additions to the list be approved? What would the parliamentary scrutiny be? What is the process for the talks?

I also have my name to Amendment 9, which has been referred to in a number of contributions. The Government would have to add territories one at a time; I very much agree with that. Parliament could reject a specific country or territory, which seems very sensible and proportionate. However, this came out in Second Reading: is this Bill also a back door to some sort of protection from the loss of the European arrest warrant? I know the Government said that it was not, but this would allow them to add the European Union straight away and in one go. That would be an interesting thing for the Government to do. When I thought of that, I was reminded of the interesting PNQ that the noble Lord, Lord Paddick, recently asked about the European arrest warrant. I also recalled the comments of the noble Lord, Lord Robathan. He asked a question of the Minister:

“My Lords, is it not the case that not all European arrest warrants are the same? A European arrest warrant from France or Germany, with whom we share the same respect for the rule of law, is one thing, but a European arrest warrant from one or two other countries—here I particularly mention Romania—is not the same because often political interference has taken place in the judicial system.”


The Minister replied:

“My noble friend makes a very good point about political interference. In fact, that is one of the safeguards within what we are seeking. He is right to make the point that not all EU states are the same.”—[Official Report, 2/3/20; col. 398.]


If the Government decide to put in the European Union in the future, that point could not be addressed. It is a valid issue—or, of course, it may not be an issue at all. It would be useful to have a response on that.

Amendment 10 should cause the Government no problem at all; I look forward to the Minister’s response on that. The noble Lord, Lord Deben, makes a valid case in Amendment 11B. “Levelling up” is the new buzzword in the Government. I think that we need a bit of levelling up in our special relationship with our friends across the pond as far as it applies to extraditing suspects who are wanted for crimes committed in this country. They must be very serious crimes which need to be investigated. Questions need to be asked, and potentially the evidence test is made and the matter is put before a court in the UK. The noble Lord cited two cases to illustrate that, which is very important in this respect. We are seeking a bit of reciprocity here, so I strongly support what he said and I hope that the noble Baroness can give a full response to these points because he has made the case very well.

15:30
Baroness Williams of Trafford Portrait Baroness Williams of Trafford
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I thank all noble Lords who have taken part in the debate. The amendments before us relate to the delegated power to specify any additional territories to which this new power may be extended. As I have said, in the first instance, the powers afforded by the legislation would be granted only to the UK’s closest criminal justice co-operation partners, these being the Five Eyes powers and the EFTA states. These are the countries in whose criminal justice systems and use of Interpol systems we have a high level of confidence. The amendments address the power to add, vary or remove countries from the Bill and a minor consequential amendment to vary what is meant by making an extradition request in the approved way if there is a good justification for doing so in the future.

I shall start with Amendment 9 because the noble Baroness, Lady Hamwee, began with it and other noble Lords have expressed a great interest in it. It specifies that territories should be added one at a time. I am grateful to the noble and learned Lord, Lord Judge, for speaking to me about this and I did slightly warn him ahead of time that we are not going to agree with it. That is not to say that we would want to add territories in multiples, but it is common practice to allow for multiple territories to be specified together for similar legislation. Noble Lords will know that this is the process for adding territories in Part 1 and Part 2 of the Extradition Act 2003. I hope that the affirmative resolution procedure would give Parliament the opportunity to scrutinise the Government by voting either for or against a resolution and to express an opinion towards any country being added to the Bill. I expect that if the Government attempted to add a territory which Parliament did not agree with, it would act accordingly. However, I understand the substance of the point that the noble and learned Lord made.

The noble Lord, Lord Kennedy, referred to our debate the other day on the Norway/Iceland issue. The Norway/Iceland surrender agreement operates under Part 1 of the 2003 Extradition Act, so an agreement with the EU based on that precedent would keep EU member states in Part 1 of the Act, where the power of immediate arrest already exists. The Bill is only for specified Part 2 countries where currently there is no power of immediate arrest. I do not want to prejudge the outcome of the negotiations, but we may well return to this issue.

I shall reverse engineer, as it were, and go back to Amendment 6. It looks to determine how varying a reference to a territory will be distinct from the addition or removal of a reference. I assure noble Lords that the term “vary” aims to future-proof the legislation and to ensure that technical changes do not place a restriction on the use of the power. An example of such a technical change would be a situation where part of a territory seceded from a specified territory and the Government wished to maintain this power in relation to only the successor state. This is of course not a particularly likely scenario but one for which it is responsible to be prepared.

Amendment 7 proposes to remove the power to vary the meaning of making a request “in the approved way” under new Section 74C. In the current draft, a request is made “in the approved way” if it is

“made by an authority of the category 2 territory which the designated authority believes has the function of making such requests in that territory.”

The power in new Section 74B(7)(b) is included to enable similar provision to be made, where appropriate, to that in Section 70(5) and (6) of the 2003 Act. These subsections set out the variations to the meaning of “the approved way” for extradition requests made from British Overseas Territories and for the Hong Kong Special Administrative Region. I will set out some examples of how that power might be used.

Where a newly specified territory had a number of different authorities which had the function of making requests, the power in new Section 74B(7)(b) would enable one or more authority to be singled out as the appropriate authority for making valid requests, should that be necessary. A further example might be if the Government sought to specify one or several of the British Overseas Territories. In such a scenario, the Government may wish to provide for requests to be made by the governor-general of the territory rather than the authorities within it. In such circumstances, the regulations might provide for requests to be made in the approved way by or on behalf of a person administering the territory.

Regarding preparing and publishing a report on adding a new territory, as well as any intention to add further territories or negotiations with prospective territories, to the scope of this legislation as specified in Amendment 8, the Government are committed to ensuring that Parliament has the ability to question and decide on whether any new territory could come within scope. Therefore, it is mandated in the Bill that any Government wishing to add a new territory to the scope of this legislation should do so through the affirmative resolution procedure. Any statutory instrument laid before Parliament will of course be accompanied by an Explanatory Memorandum, which will set out the legislative context and policy reasons for that instrument.

This procedure will give Parliament opportunity for scrutiny and will allow the House to reject the addition of any new territory to the Bill. Any Minister looking to add a new territory to the Bill would be expected to give Parliament good reason for doing so, therefore negating the need for this amendment. Having said that, I have sympathy with the spirit of the amendment and have asked officials to look into how we can give the noble Lord some reassurance on this. I will continue to liaise with noble Lords ahead of Report.

Amendment 10 would add a specification criterion for new countries to the Bill. This has not already been included to ensure that Parliament is given the full freedom to decide on any new territory. If criteria were to be added, Parliament might be put in the invidious position of having to accept that a particular territory that was not appropriate for specification for other reasons should be added. In this circumstance Parliament would likely want to consider all aspects of the proposal, so adding these criteria would limit Parliament’s discretion. As I have outlined, any Government proposing to add a new territory would also need to give clear reasons for doing so, both in the explanatory documents accompanying any statutory instrument and during any subsequent debate. We would not want to bind the hands of future Governments to decide on the criteria they use to specify a new country.

I think we can all agree that the factors identified by my noble friend will of course be important and relevant considerations that we would expect any Government to take into account when deciding whether it is appropriate to seek to add a new territory. However, we do not consider that they need to be in the Bill. The current drafting ensures that Parliament can assess the merits of each territory which is due to be added to the Bill and scrutinise any addition through the affirmative resolution procedure. I am not persuaded of the need for this amendment.

Amendment 11B aims to remove the United States from the Schedule. The US is a critical partner in fighting terrorism and international organised crime. It is a responsible user of Interpol and has a criminal justice system with extensive checks and balances. We are confident of these points in relation to the US as much as to the other countries that we seek to specify. The new power of arrest, which is designed to protect the public in this country, has nothing to do with whether UK extradition requests to other countries are successful. It is about ensuring, when we have robust and trustworthy information that a person is wanted for a serious offence, that the police can arrest that person. Requests from the US are backed by judicial warrants predicated on probable cause. This is a firm ground on which to bring a person before a judge in the UK to decide on their further detention.

My noble friend talked about the US President’s comments on judicial appointments. Of course, this was raised by the leader of the Opposition in another place. We need to bear in mind the context in which the President might have said that in an election year. The Prime Minister made his views on the US treaty very clear in another place last month. The Government’s long-standing position is that the treaty with the US is fair and balanced in practice.

Lord Deben Portrait Lord Deben
- Hansard - - - Excerpts

Will my noble friend give way?

Baroness Williams of Trafford Portrait Baroness Williams of Trafford
- Hansard - - - Excerpts

Not at the moment. If my noble friend could wait until I have finished my comments, I will be happy to take his intervention. It is just that I have a number of points to make; I hope that is okay. The Prime Minister has committed to looking into the questions raised by the leader of the Opposition, so I am sure that my noble friend will look forward to that. This issue should not delay or undermine our efforts to ensure that police in the UK have the right powers in place to get wanted fugitives off British streets.

My noble friend talked about Anne Sacoolas, which is a valid issue; the US refusal to extradite her is a clear denial of justice. The Government and UK law enforcement continue to explore all opportunities to secure justice for Harry Dunn’s family. I bring to my noble friend’s attention the fact that this is the first case that has ever been refused under the UK-US extradition treaty. By contrast, we have refused 19 cases. The Government’s long-standing position is that the treaty is fair and balanced in practice. My noble friend also mentioned Dr Lynch. As we have stated, consideration of the substance of an extradition request includes any statutory bars to extradition such as political motivation. These are properly a matter for a judge at the extradition hearing. I will not comment any further as this is before the courts.

My noble friend also talked about reciprocity. What we are doing in this Bill is creating powers for the UK police, not obligations on the countries concerned. I know that he is concerned about reciprocity, but the Bill will enable UK police officers to protect the public more effectively. It is about ensuring that UK police officers have the power to remove dangerous individuals from our streets before they can abscond or offend, not relying on some sort of reciprocity that may depend on the nature of the regime in the other country. I am happy to take his intervention now if he wishes.

Lord Deben Portrait Lord Deben
- Hansard - - - Excerpts

I thank my noble friend the Minister. I realise what she is saying and acknowledge the care with which she is saying it; I thank her very much for that. I tried to intervene earlier specifically on the issue that President Trump had said what he said. The Minister said that we had to realise that that was an election situation. She then moved on to the Prime Minister. I put this to her: how happy would she be if our Prime Minister got up during an election and said, “I am very pleased that there are 181 judges that I have managed to get appointed, who will make decisions much closer to the Conservative Party’s views than the judges whom they replaced.”? I think that she would be deeply upset and would feel that that struck at the very heart of British justice. I am trying to make the point that the United States makes political decisions about judges, who are very often able to act in support of American business. In fact, this is one of the issues that President Trump has always raised—“America first”. My concern is that there is an actual case where that appears to be what happened. I do not think that it helps us to give the impression that the United States’ legal system is on a par with that of Switzerland, because it is not.

15:45
I also ask my noble friend to reply to the noble and learned Lord opposite, who made a very important point about this, which is that if we say this about one country that is so different in a group such as this, we also say it about that group. It would be better if we offered Parliament the chance to make a decision on each country. In this case, it would be better not to give the impression that we were doing this because we wanted a favour from the United States on trade. That is what it looks and sounds like. Having read what the Prime Minister said, that is what I think. It is about doing nicely with the United States. The point about other countries that the noble Lord opposite made is a dangerous one.
Baroness Williams of Trafford Portrait Baroness Williams of Trafford
- Hansard - - - Excerpts

On the point about taking the countries one by one, and the group that a country is in, as I said, in any secondary legislation that comes before your Lordships’ House there has to be a statement about the rationale for that secondary legislation, which Parliament can reject if it wishes. However, as I said to the noble and learned Lord, Lord Judge, I utterly understand where he comes from.

On the point about judicial appointments in the US, putting aside what President Trump said, I think that the US judiciary is very protective of its independence. Certainly, on the issue of arrest warrants, the US has a criminal justice system in which we can justifiably put this level of trust.

I have a note from the Box about favours from the US. This power is, of course, in our interests. It benefits UK police. On that note, I hope noble Lords will feel content not to press their amendments.

Lord Mackay of Clashfern Portrait Lord Mackay of Clashfern
- Hansard - - - Excerpts

My Lords, I will say a word on Amendment 9. I obviously agree with what has been said by a number of noble Lords about it. The views of the noble and learned Lord, Lord Judge, suggest that a Minister putting forward a list would have to be mightily careful that the list was of all good, or at least equally good, countries. If there was a doubtful one it would have to be separate. That lesson should be taken to heart. It is very unwise to have a great big list where we are not sure about two or three countries, because we would just lose the whole lot. I suspect that we may be faced in due course with a fair group about which we have some knowledge already. I do not think that that has anything to do with the Bill, but it might be a consequence of granting this power. I imagine that any Minister contemplating this who wished to be successful would be very careful to leave a country out of a list of very good countries and have it in a separate list if he thought that it would risk the others.

I have my own view on how judges are appointed in the United States and am rather anxious that nothing of the sort should appear here. On the other hand, judges in the United States, although they may be appointed for various reasons, have responsibility as judges. The point about this matter is that extradition to the United States or any other country will be decided by a judge, though ultimately subject to the discretion of the Home Secretary. The judiciary here will be in charge of that and obviously the degree to which the explanation given by the United States carries weight will be quite important.

Baroness Hamwee Portrait Baroness Hamwee
- Hansard - - - Excerpts

My Lords, this is an interesting group. With regard to the United States and one of the Five Eyes seeing things a bit differently, if this matter comes back on Report, as it may, it would be helpful if the Minister could explain to the House how the human rights criteria that will be applied at the judicial stage would apply in any given situation without using specific cases. That is part of the whole picture.

On Amendment 6 and my suggestion that the word “vary” be deleted, we are told that this is to future-proof the arrangements in case one part of a territory secedes. I find it difficult to envisage all this and I do not see why the Government would not in that situation just delete the original but add the substituted territory. On Amendment 7, I confess I need to read properly what the Minister said. On the criteria listed in Amendment 10, the Minister said that Parliament would have to reject a territory if the criteria were not met. Actually, that is not the way round the amendment is written. Parliament would not be required to reject it but a reference to a territory could be added “only if”. I think those are different; these are on minima.

However, I see absolutely no down side to agreeing the amendment which at the start I said was the most important of this group with respect to the position of the United States. The justification proposing it is that it is not common practice. That does not mean that it is good practice in every situation. I am absolutely with the noble and learned Lord, Lord Judge, who said that it is entirely consistent with support for the Bill. I will not follow his cricketing analogies because I will probably get them wrong again. As I said at Second Reading, we should not be in the business of bulk orders, if I may put it that way.

The Minister said that the affirmative resolution procedure gave Parliament the opportunity to scrutinise. Scrutiny means different things to different people, but it does not mean that you go straight from scrutiny to the remedy you are seeking. I do not think that it is an adequate response to an amendment which I really do not think would cause, as has been said, much more than a few more pieces of paper—a little more typing and standing up and sitting down. We will come back to this at the next stage. It ought to be such an easy one for the Government to concede to divert us from other amendments. For the moment, I beg leave to withdraw Amendment 6.

Amendment 6 withdrawn.
Amendments 7 to 11C not moved.
Amendment 12
Moved by
12: The Schedule, page 10, line 14, leave out sub-paragraph (2)
Member’s explanatory statement
This amendment removes the provision in the bill that allows regulations to amend, repeal or revoke any provision made by primary legislation.
Baroness Hamwee Portrait Baroness Hamwee
- Hansard - - - Excerpts

My Lords, I shall speak also to Amendments 13, while Amendment 14 in the name of the noble Lord, Lord Inglewood, is also in this group. Amendment 12 would remove the provision allowing

“regulations to amend, repeal or revoke any provision made by primary legislation.”

This is something to which I have a natural aversion. I appreciate that the regulations in question, in paragraph 29(2) of the schedule, are limited by paragraph 29(1) which refers to regulations

“consequential on the amendments made by this Schedule.”

Is paragraph 29(2) necessary? It suggests that the drafters were anxious that they did not have time to prepare the Bill. I have looked at what the 2003 Act says on this point. Section 219 provides for amendments, repeals and revocations but can deal only with one

“contained in an Act passed in a Session after that in which this Act is passed.”

I do not think that alters my central point, which is my natural aversion to regulations amending primary legislation. Amendment 13 deals with the same point. I beg to move.

Lord Inglewood Portrait Lord Inglewood
- Hansard - - - Excerpts

My Lords, I shall speak to Amendment 14 in this group. I owe the Committee an apology for not adding an explanatory statement, but essentially this is a probing amendment. The reason is that when I tabled it, I was not entirely sure exactly what my anxieties about the proposed legislation might be, but I have spoken to the Minister about my general unhappiness. Interestingly, the noble Baroness, Lady Hamwee, has just talked about paragraph 29(2). It strikes me as extremely clumsy and I am uneasy about it. As I say, that is why I have tabled this amendment and discussed it with the Minister.

Throughout the passage of the Bill thus far, the Government have emphasised that it is about powers of arrest. Of course, much of the Bill is about those powers, but it is clearly set within the context of the extradition system as a whole. One has not only to look at the Title of the Bill to see that; if you look at its substance, it becomes apparent. In the nicest possible way, I think “the Lady complaineth too much” in talking about the focus of the Bill on powers of arrest. The Bill is essentially about the workings of our extradition system as a whole. As the Committee knows—and does not need me to point out—it is essentially divided into two parts; I oversimplify, of course. There is the bit that relates to the European arrest warrant and the bit that relates to the rest.

16:00
We know that, at the time that I was chairing the House’s committee that looked at the workings of the 2003 Act, the question arose of whether the country should opt back in to the EAW. We on the committee believed that it was the right thing to do; we were clear but not unanimous about that. It was discussed on the Floor of the House and that view was endorsed by the House as a whole. Now, as everybody knows, there is a real possibility that we may leave the European arrest warrant. I was slightly surprised when looking at the Explanatory Notes to the Bill that there was not a great deal of reference to that. However, I then went further into the matter and got hold of a copy of the memorandum from the Home Office to the Delegated Powers and Regulatory Reform Committee. Paragraph 29 says:
“The Department considers that the proposed regulation-making power provides the appropriate level of flexibility to amend the list of specified category 2 territories, and to amend the definition of making a request in the “approved way”, in response to changing circumstances. Leaving such matters to secondary legislation ensures that the Government can respond in timely fashion to potential future developments, and that such response provides certainty and clarity as to the appropriate manner of request from amended or newly specified territories. For example”—
this is the important bit—
“if the UK were not to have access to the European Arrest Warrant or a similar tool, with the effect that EU Member States become re-designated as category 2 territories, it is likely to be appropriate to specify some or all of them for the purposes of this legislation (thereby replicating the immediate power of arrest which applies to a certified European Arrest Warrant).”
The point here is that it is clearly envisaged that, in some way, Part 1 of the 2003 Act will be collapsed. This power, and the powers contained within it, which may appear somewhat ancillary to the whole question of arrest, are—if I might use a cricketing analogy to follow that used by the noble and learned Lord—rolling the pitch, even if, to mix my metaphors, they are not a Trojan horse for bringing that about.
Clearly, if we are to leave the European arrest warrant scheme, something needs to follow. But it is objectionable and inappropriate that the substantial part of the extradition code of this country is not to be modified as a result of primary legislation. Extradition law is an important component of our country’s wider constitutional framework. As was pointed out by the noble Baroness, Lady Hamwee, and the noble and learned Lord, Lord Judge, and others, we will be faced with Hobson’s choice. This is not in any way desirable. That is the point about which I am concerned and the rationale that I worked out for my amendment.
Lord Judge Portrait Lord Judge
- Hansard - - - Excerpts

My Lords, let us just look at what we are saying in paragraph 29(2): “Let’s pass this Bill, which is a very good idea, and let’s pass it in such a way that regulations may change the whole thing.” Is that really what we want to do?

Lord Deben Portrait Lord Deben
- Hansard - - - Excerpts

My Lords, I feel very strongly that although we may have disagreed on the subject of the United States, that should not stop us recognising the wider argument to which the noble and learned Lord, Lord Judge, has referred. Far too much legislation going through both Houses ends up leaving everything to be decided in secondary legislation where it is almost impossible to make changes, and this is another example.

I want to underline what my noble friend Lord Inglewood has said, which is that extradition is far too important a matter to leave basic, material decisions merely to secondary legislation. This is part of the freedom that people in this country rightly feel they have and I do not believe that we should allow the Government to have the powers that this seems to allow. I hope that my noble friend will recognise that this is a matter of real principle, a principle that the party to which we both belong is supposed to believe in above all things—constitutional propriety. This is not constitutional propriety, but sleight of hand.

Lord Kennedy of Southwark Portrait Lord Kennedy of Southwark
- Hansard - - - Excerpts

I do not have many remarks to make on this and I could not think of a quixotic quote. However, I really like Shakespeare because he is connected with the borough I grew up in, so I will remind you of this quote

“haste is needful in this desperate case.”

Some of the points which have been made are very important and should be taken on board. What are we doing here? We support the legislation in principle, but we have asked for reasons why we are doing this and we have gone through some of the wording before.

I look forward in particular to the Minister’s response to Amendment 12 because when you look at the wording it seeks to take out, it is quite worrying that it is in there at all. It may well be that there is a perfectly understandable explanation and I will be able to get up in a moment and say, “I fully support what the Minister intends to do”, but as it reads now, I am worried about what we are passing here. Perhaps she will say that it is fine because it talks about further consequential provisions in the sub-paragraph above and the Government will do nothing. However, there is an issue about the powers we are giving to the Executive and our ability to scrutinise or change them at a later date. That point has been made by the noble Lord, Lord Inglewood, so I want this to be looked at.

Amendment 13 seeks to remove regulations about “saving” or “incidental” provision. What is that about? We could make all sorts of changes by saying that something is a saving. We could get rid of whole swathes of stuff, so what are we agreeing to? We do not want to find ourselves saying months or years ahead that we did not realise when we agreed to this that we were giving those powers to the Executive. I will leave it there and look forward to the Minister’s response, but I may intervene at some point for further clarification.

Baroness Williams of Trafford Portrait Baroness Williams of Trafford
- Hansard - - - Excerpts

I thank noble Lords for the points they have made and I hope to be able to allay any fears around what Amendments 12, 13 and 14 seek to address.

As noble Lords have said, paragraph 29(1) confers a power on the Secretary of State to make further provisions that are consequential on the amendments made by the Schedule to the Bill. This is a standard power which is commonplace in legislation and is naturally constrained. It can be used only to make provisions that are consequential and it is not a power to make substantive policy changes. Rather, it will allow the Government to make small, technical amendments for good housekeeping to ensure that that statute book is consistent and functions well.

As we implement the new arrest power, it is in everyone’s interests to ensure legal continuity for law enforcement partners and those subject to arrest for extradition purposes. While many of the amendments required to other enactments are made by Part 2 of the Schedule to the Bill, it is anticipated that further consequential amendments may be identified as part of the implementation process. That is why the standard power is taken to provide the flexibility to ensure that the new arrest power can operate smoothly and efficiently. Placing a timeframe such as 12 months on the use of the power would unnecessarily frustrate the aim. In any event, as noble Lords will know, the power cannot be used to amend future legislation.

As to the scope of the possible amendments, the Bill is narrowly focused. Its purpose is to provide a power of provisional arrest for specified category 2 territories for extradition purposes. I stress the point that it does not affect or relate to the subsequent extradition process. The purpose of the consequential power is to deal with the consequences of those changes to the statute book. As such, just as wider amendments to the Extradition Act 2003 fall outside the Bill’s ambit, so amendments to effect wider extradition policy would fall outwith the consequential amendments power. The power extends to provisions that amend, repeal or revoke any provision of primary legislation. As I hope I have made clear, this is not unusual or exceptional. It is standard practice to take such a power to provide flexibility for smooth and efficient implementation.

Similarly, the power to make saving or incidental provision by regulations found at paragraph 29(3) of the Schedule is a standard power commonly given in legislation for the purposes of smoothing the introduction of a change to the statute book. Incidental provision would include only amendments that are necessary or expedient to make the Bill’s substantive provisions work. Saving provisions are required where it is necessary to preserve existing law following a change to legislation —for example, to ensure fairness or consistency in court proceedings in progress at the time of a change to legislation. As I have stated, these are standard clauses. Any amendment by regulations that amended, repealed or revoked primary legislation would be subject to the affirmative resolution procedure by virtue of paragraph 29(5), as befitting a Henry VIII power of this type. I hope that I have allayed noble Lords’ fears about that.

As a final point to my noble friend Lord Inglewood, the power in this Act would not allow us simply to move countries from Part 1 to Part 2 of the Extradition Act, nor to substantively amend Part 1. Those are not consequential amendments. With those explanations, I hope that noble Lords will feel happy to withdraw their amendments.

Lord Kennedy of Southwark Portrait Lord Kennedy of Southwark
- Hansard - - - Excerpts

I thank the Minister very much for explaining that. I am reassured to a large extent by what she said. Would it be possible to give an example of one of those little technical things that would be changed so that we are clear what we are all talking about? If she cannot now, maybe she could write to us.

Baroness Williams of Trafford Portrait Baroness Williams of Trafford
- Hansard - - - Excerpts

I am very happy to do that.

Baroness Hamwee Portrait Baroness Hamwee
- Hansard - - - Excerpts

My Lords, I acknowledged that the regulations referred to in paragraph 29(2) must be within paragraph 29(1). I come back to the point that good housekeeping should be done before a Bill is presented to Parliament, not least because it would reduce the amount of time needed on the Bill in Parliament. For many years, I have recognised that it is a great deal easier to sit on this side of the House or Committee and pick holes than it must be to draft this stuff. Nevertheless, it is our job to pick some holes.

I do not apologise for raising this and cannot say that my concerns are wholly allayed: the words “necessary” and “expedient” were used in the delegated powers memorandum, along with “detailed and technical” about the nature of the amendments. I would like to assure myself that the words in the Bill reflect what has been said. I will possibly talk to the noble and learned Lord before the next stage. I beg leave to withdraw Amendment 12.

Amendment 12 withdrawn.
Amendment 13 not moved.
16:15
Amendment 14
Tabled by
14: The Schedule, page 10, line 25, at end insert—
“( ) Sub-paragraph (1) and any regulations made under this paragraph expire at the end of the period of 12 months beginning with the day of this Schedule coming into force.”
Lord Inglewood Portrait Lord Inglewood
- Hansard - - - Excerpts

My Lords, I thank the Minister for her words and put on record, which I have not yet done this afternoon, that I support the basic principles surrounding the provisions relating to arrest in this context. I heard what she said about the powers in the Bill and the withdrawal of countries from Part 1 of the 2003 Act. I think I read earlier today that the powers to do that by secondary legislation are contained in the 2003 Act itself, so there is a possibility of the whole EAW system, if I can call it that, collapsing. Then something has to be done next, but I will not major on that any more at this point. The Minister said that these were usual provisions; they may be usual provisions in usual times, but we are in slightly unusual times.

Amendment 14 not moved.
Amendment 15
Moved by
15: The Schedule, page 10, line 29, leave out “the National Assembly for Wales” and insert “Senedd Cymru”
Member’s explanatory statement
This amendment replaces the reference to the National Assembly for Wales with a reference to Senedd Cymru, reflecting the change made by the Senedd and Elections (Wales) Act 2020 (anaw 1) to the name of the Assembly.
Baroness Williams of Trafford Portrait Baroness Williams of Trafford
- Hansard - - - Excerpts

My Lords, the Government have laid Amendment 15 to reflect Section 2 of the Senedd and Elections (Wales) Act 2020, which changes the name of the Welsh legislature to “Senedd Cymru or the Welsh Parliament”. This amendment is a technical consequential amendment. It follows the new practice of using the Welsh name when referring only to the Welsh legislature. I hope noble Lords will be able to join me in voting for this amendment.

Lord Kennedy of Southwark Portrait Lord Kennedy of Southwark
- Hansard - - - Excerpts

I am very happy to support this amendment. While looking at it, I was thinking that Members of the Welsh Parliament are called Assembly Members. What will they be called in future? They are in a Parliament and are called AMs—will there be some consequential change there? Maybe someone could clarify that at some point.

Baroness Williams of Trafford Portrait Baroness Williams of Trafford
- Hansard - - - Excerpts

I will try to do that. It is a technical point to which I do not know the answer.

Lord Beith Portrait Lord Beith (LD)
- Hansard - - - Excerpts

My Lords, it might assist the noble Lord if I point out to him that they are Aelodau Senedd, or AS, in Welsh. It is “Senedd” with a “th” sound, not a “d” sound.

Amendment 15 agreed.
Schedule, as amended, agreed.
Bill reported with an amendment.
Committee adjourned at 4.18 pm.

Extradition (Provisional Arrest) Bill [HL]

Report stage (Hansard) & Report stage (Hansard): House of Lords & Report stage
Monday 23rd March 2020

(2 years, 4 months ago)

Lords Chamber
Read Full debate Report stage (Hansard) Page Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: HL Bill 106-I Marshalled list for Report - (19 Mar 2020)
Report
15:47
Schedule: Power of arrest for extradition purposes
Amendment 1
Moved by
1: The Schedule, page 3, line 15, leave out from “judge” to end of line 19 and insert “as soon as practicable.”
Member’s explanatory statement
This amendment is to make the period within which a person must be brought before a judge consistent with other provisions of the Extradition Act 2003.
Baroness Ludford Portrait Baroness Ludford (LD)
- Hansard - - - Excerpts

My Lords, my noble friend Lady Hamwee, who has led for the Liberal Democrat Benches until now, regrets that under the advice of the Government and the Lord Speaker she cannot be here today.

Amendment 1 addresses new Section 74A, which requires someone who is arrested to be brought before a judge within 24 hours of arrest. However, no account is taken of weekends and bank holidays in calculating 24 hours—so, for example, someone could be arrested without judicial involvement on the Friday afternoon before a bank holiday until the following Tuesday. Concerns were expressed about this on Second Reading, and in Committee on 5 March in debate on my noble friend Lady Hamwee’s then Amendment 3. We have now reworded the amendment so that this Amendment 1 would add that someone should be brought before a judge “as soon as practicable”. The Government claim that wording other than that in the Bill is operationally unworkable because the courts do not sit at the weekend, but in Committee the noble and learned Lord, Lord Judge, who sadly also cannot be in his place today, said in support of changing the wording:

“Would you believe it, there is a judge on duty all weekend, every weekend, and all night”,


and that, if the provisional arrest happens over the weekend,

“it can be treated as urgent business.”

Both the noble and learned Lords, Lord Judge and Lord Mackay, took issue with what the phrase “brought before” means in 2020, with the noble and learned Lord, Lord Judge, pointing out that:

“It is questionable whether the word ‘brought’ requires the physical presence of the judge and the particular person so that they should be facing each other directly. Nowadays we have all sorts of technology that enables people to encounter each other while not in one another’s physical presence.”


The noble Lord, Lord Parkinson of Whitley Bay, said on behalf of the Government in Committee that it was

“the statutory intention that the person should be brought before a judge in person. It is an additional safeguard and a better situation for them to be seen in person before a judge.”

I am not really in a position to assess it, but I must admit that I am not convinced that is necessarily the case. We will of course see remote digital contacts in the justice system rolled out even more in present circumstances. In any case, the noble and learned Lord, Lord Judge, responded:

“If that is the problem, we need to amend the legislation to make it clear that ‘brought before’ does not mean that there is a personal, direct, physical confrontation.”


He said he was very willing to talk to the Government about that.

On another angle, we were told in Committee that it was the Government’s

“intention to replicate the … provisions under the Extradition Act”,—[Official Report, 5/3/20; cols. GC 367-368.]

with the implication that new Section 74A did that. But the noble Lord, Lord Parkinson of Whitley Bay, also explicitly acknowledged that the words in that Extradition Act 2003, in Sections 72(3) and 74(3) covering both an arrest under warrant and a provisional arrest in a Part 2 scenario, say:

“The person must be brought as soon as practicable before the appropriate judge.”


That is precisely the wording we want in Amendment 1. We on these Benches remain simply puzzled. If the Bill replicates or mirrors an existing provision—one we have not managed to find—can the Government explain precisely how? At the moment I cannot see how that is the case. In the absence of that explanation, we continue to believe that the Government need to change course. As far as we can see, it is Amendment 1, not the wording in the Bill, that mirrors that in the 2003 Act and aims for—and, we believe, achieves—clarity and consistency.

Lord Wood of Anfield Portrait Lord Wood of Anfield (Lab)
- Hansard - - - Excerpts

My Lords, the amendment tabled by the noble Baroness, Lady Hamwee, highlights the need for caution over any period of detention before an individual is brought before the judge. From the points just made, I think the House can agree that it is unclear why these detention periods are inconsistent in different cases. The efforts to draw the House’s attention to this certainly have the support of this side of the House. I hope the Minister can offer the House an explanation as to the reason behind this inconsistency between urgent cases under the 2003 Act’s category 1 and category 2.

Baroness Williams of Trafford Portrait The Minister of State, Home Office (Baroness Williams of Trafford) (Con)
- Hansard - - - Excerpts

I thank the noble Baroness, Lady Ludford, for her explanation and the noble Lord, Lord Wood. As noble Lords will know, the courts to which all extradition suspects must be taken, whether arrested under Part 1 or Part 2 of the Extradition Act 2003—as currently or as amended by this Bill—are Westminster Magistrates’ Court for England and Wales, Edinburgh Sheriff Court for Scotland and Belfast magistrates’ court for Northern Ireland. Currently, the person arrested under the Act must generally be brought before the appropriate judge “as soon as practicable” following arrest. Under the new power of provisional arrest in this Bill, it must occur “within 24 hours”.

The reason the Bill was originally drafted in this way was to strike a balance between getting arrested individuals before a judge as quickly as possible—the point the noble Lord, Lord Wood, makes—and allowing the police sufficient time to gather supporting information. This mirrored, in a more stringent form, the approach to provisional arrest in Part 1 of the Extradition Act 2003, which requires an individual to be brought before an appropriate judge within 48 hours of arrest. But I am conscious that the drafting departs from the general requirement currently imposed on the police after they make arrests under other existing powers in the Extradition Act 2003—the point that the noble Baroness, Lady Ludford, makes.

I listened carefully at Second Reading and in Committee, and I have concluded that the new power of arrest in the Bill should be consistent in this respect with existing law and practice in relation to Part 2 of the 2003 Act and should therefore mirror the wording “as soon as practicable”. This will ensure that individuals are not detained for any longer than is strictly necessary. If, for example, an individual is arrested in central London, “as soon as practicable” would in all probability be within 24 hours. Our operational partners have already proved themselves effective at producing wanted persons before courts within strict timeframes, and the three UK extradition courts have proved strict arbiters of police actions under the “as soon as practicable” requirement.

Therefore, I intend to introduce a government amendment to this effect at Third Reading to address those concerns. The amendment will leave out the words “within 24 hours” and insert “as soon as practicable” in their place, as well as consequently deleting the express exclusion of weekends and bank holidays in the calculation of the 24-hour period. While the language will not explicitly rule out production on weekends or bank holidays, these factors will, of course, be relevant to the practicability of bringing an individual before an appropriate judge. If public holidays or court opening times were to change in future, the legislation would not need to be amended to take account of that. It remains the Government’s intention that the arrested person be brought before a judge sitting in court and so the concept of “as soon as practicable” will remain subject to court sitting times, which are determined by the judiciary. There may, of course, be a multitude of other factors which affect, in the individual case, the practicability of bringing an individual before a judge, such as distance, natural disasters or illness of the arrested individual. We continue to think it is right, therefore, that the judiciary is the arbiter, in the individual case, of whether this test of “as soon as practicable” is met, and it will be able to do so in determining any application for discharge under Section 74D(10).

I hope that the noble Baroness and the noble Lord are content with those intentions, which I will bring back at Third Reading and that the noble Baroness will be happy to withdraw the amendment.

Baroness Ludford Portrait Baroness Ludford
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My Lords, I am very grateful to the Minister for having productively reflected on this. I can see the original attraction of a rigid time limit, and the Minister is right that there is inconsistency in the Extradition Act 2003, because there is a 48-hour limit for provisional arrest in Part 1. Perhaps that is what guided the drafting of the original Bill. As the Minister said, the experience of the relevant courts dealing with extradition in the different jurisdictions is that they are prompt and do not sit on these things. Therefore we can rely on the operations of the courts to make sure that “as soon as practicable” happens and that it is only some kind of force majeure that stops that being very soon, taking into account what the noble and learned Lord, Lord Judge, said at Second Reading and in Committee about the ability of a judge to be available, certainly in the Westminster court, on a Saturday. I am very grateful and look forward to the amendment that the Minister intends to bring back at Third Reading.

Forgive me if, in all the turmoil at the moment, my knowledge of procedure has gone slightly AWOL: I think I still need to move the amendment. No? Okay, then I shall withdraw it. I am obviously not very good at this—that is why we need my noble friend Lady Hamwee here. I end by saying that on the basis of the assurances and promises of the Minister, I beg leave to withdraw the amendment.

Amendment 1 withdrawn.
16:00
Amendment 2
Moved by
2: The Schedule, page 4, line 38, at end insert—
“( ) Regulations made under subsection (7)(a) shall designate no more than one territory.”Member’s explanatory statement
This amendment would require regulations which add, vary or remove a reference to a territory under Schedule A1 to contain no more than one territory. This will allow Parliament to reject a particular territory.
Baroness Ludford Portrait Baroness Ludford
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My Lords, again I am moving this amendment on behalf of my noble friend Lady Hamwee. It is the same as Amendment 9 in Committee, though with a slight drafting change to refer to “regulations” rather than “orders”. We are pleased that the noble and learned Lord, Lord Judge, and the noble Lords, Lord Anderson and Lord Kennedy, have added their names and we understand why they are not able to be here today. I think that the noble Lord, Lord Inglewood, would have added his name had there been space.

As my noble friend Lady Hamwee explained in Committee, it is essential to allow additions to the Schedule for only one territory at a time. We can envisage a scenario in which the Government wish to add a whole raft of states to the Schedule all at once. For the sake of argument, let us imagine that would consist of all EU and EEA states and that in the list there is a country that might be an EU associated country, such as Turkey, but one over which considerable human rights concerns exist. I seem to be quoting a lot from the noble and learned Lord, Lord Judge, but he always says very wise things. In Committee, he said:

“We all know that there are countries in the world that do not respect the rule of law. I will not set about trying to give your Lordships a list because the list itself changes. Countries that respected the rule of law no longer do. Weimar Germany did; Hitler’s Germany did not. This is a moveable feast.”—[Official Report, 5/3/20; col. 378GC.]


That is a very good point. Turkey was making very good progress in democracy and human rights a decade ago, but it regressed, regrettably.

There is great concern that the Government want to give themselves wide powers for the Secretary of State to add countries to the list en bloc. I think it was in Committee that the Minister said that the Government had no intention of specifying countries likely to abuse the system to political ends. I utterly believe what she said, but I again quote the noble and learned Lord, Lord Judge, who raised at Second Reading the fear that

“in the real world we are surely not going to be so naive as to believe that all sorts of motives—a possible trade deal, a plea just to be good friends with us, political beliefs, sympathy with a tyrannical regime—may not lead”—[Official Report, 4/2/20; col. 1731.]

to an addition to the list in the Schedule, although he certainly excused our present Minister from falling prey to such motivation.

The non-governmental organisation Fair Trials International, for which I have been pleased to work for 20 years and of which I am a patron, has done excellent work on the abuse of Interpol red notices where countries use them against political opponents, human rights defenders and journalists living in exile. The journalist Bill Browder was famously the victim of one from Russia and wrote a book called Red Notice. There are numerous examples of such countries and one would not expect them to be added to the list—Azerbaijan, Venezuela, Egypt and many others where Interpol red notices have been used in a very questionable way. I do not think that the argument the Minister used in Committee—essentially that “one at a time is not how we do things”—is quite good enough. She said

“it is common practice to allow for multiple territories to be specified together for similar legislation.”—[Official Report, 5/3/20; col. 382GC.]

But I am not convinced that it needs to be invariable practice. It may have been common practice up to now, but we are not obliged to follow that. It is perfectly simple to do it one country at a time. This will not cause Whitehall to collapse in shock.

Our amendment could actually help the Government, as it would avoid Parliament rejecting the inclusion of a list that had good states as well as a bad state. We would not have to reject them all because of the inclusion of a single bad state, if I can use that shorthand. It would allow for the sensible, responsible outcome of bringing the respectable states into the provisional arrest arrangement while excluding a state that did not respect the rule of law and human rights.

Accepting this amendment would not lead to any delay as two or more sets of regulations, each relating to a single territory, could be tabled at the same time. We would not lose time. Ministers have been keen to stress that the Director of Public Prosecutions, Max Hill QC, supports the Bill, but I as I read his letter, he was supporting the general proposition, which is fair enough, but he was not commenting on this sort of detail, so will the Minister have a another look at this? We on these Benches would be happy to have a meeting to discuss it. We are keen to understand whether there is any substantive reason for rejecting the amendment, which, to be honest, we do not see at present.

In normal circumstances, we would be keen to test the opinion of the House on this, but since these are not normal times, will the Minister let us return to this matter at Third Reading, in the way that she has so helpfully promised that we could do on Amendment 1? We are firm on the substance of Amendment 2, in the same way as on Amendment 1, but we are flexible on the timing, so I hope that the Minister can respond in that vein. I beg to move.

Lord Wood of Anfield Portrait Lord Wood of Anfield
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I will speak to Amendment 2, and Amendment 3 in the name of my noble friend Lord Kennedy, who is unable to be here today. As we have just heard, Amendment 2 would require regulations that add, vary or remove a reference to a territory to contain no more than one territory. Allowing Parliament to reject a single territory would a create a valuable scrutiny mechanism for when either House has concerns to raise over a specific individual country that the Government intend to add because there will be occasions when the merits of adding individual territories are disputed. The amendment would create an important safeguard to exercise scrutiny in such circumstances and we support it.

In recognition of the powers in this Bill to add, remove or vary territories, Amendment 3 would create conditions for when the Government choose to exercise these powers. To this end, the amendment seeks to create a new process that means that the Government must take three further steps before adding and removing territories. The first condition for the Government to meet is to consult with the devolved Administrations and non-governmental organisations—the devolved Administrations because there will be certain powers relating to justice, policing and prisons that are devolved, and the non-governmental organisations to understand better any issues that arise from individual territories relating, for example, to the human rights records of the countries concerned.

The second condition is that the Government must produce an assessment of the risks of each change, which would put on record the Government’s rationale for signing the agreement, and allow for parliamentary scrutiny. The final condition is that if a new country is added, the Government must confirm that the country does not abuse the Interpol red notice system. That would make it clear that the Secretary of State responsible must not sign agreements with countries that have questionable records on human rights.

Although we fully accept the need to add further territories as treaties are negotiated, the Government must add only those that comply with our values. I am sure that all noble Lords would agree with that. While we fully accept that it may be necessary to remove or vary territories, it is important that the Government are transparent about their rationale and offer themselves to the scrutiny of Parliament. Will the Minister allay our concerns about the rationale and availability of scrutiny and about consulting with the devolved Administrations and NGOs by confirming that the Government already intend to consult and open themselves to scrutiny when they add or remove further territories?

Baroness Ludford Portrait Baroness Ludford
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My Lords, we on these Benches support Amendment 3 in the name of the noble Lord, Lord Kennedy. We hope that the Government will confirm the involvement of the devolved Administrations and believe that there is a strong case to be made for consulting NGOs that have experience of the country concerned, however knowledgeable the Foreign and Commonwealth Office may be.

On the “risks” mentioned in paragraph (b) of the amendment, I imagine that the noble Lord means that he expects the Government to make an assessment of balance and proportionality in whatever conclusion they reach on the suitability of a country to be included.

Of course, we totally support his reference in paragraph (c) to the need to avoid the abuse of Interpol red notices, to which I referred in moving Amendment 1. I have said that I am a patron of Fair Trials International and I want to give it a plug: it has done sterling work on this issue in the past few years and can, I believe, take considerable credit for the reforms that have been made to Interpol red notices so far. They do not go far enough but reference has been made in previous stages of the Bill to the fact that some reform is going on at Interpol; that needs to improve because there is still the problem of abuse. Perhaps one day there will not be and we can look again, but, for the moment, Amendment 3 is very appropriate.

Baroness Williams of Trafford Portrait Baroness Williams of Trafford
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My Lords, I thank both noble Lords who have spoken. I was looking at the noble Baroness, Lady Ludford, slightly strangely because it is unusual to speak twice on the same group of amendments. It really does not matter because these are very unusual times, so it is not a precedent.

I do not know whether noble Lords want me to go through the full arguments today or whether they want to return to them at Third Reading; I sense that that is the mood of the House. Noble Lords have made their arguments. For the reason that the noble and learned Lord, Lord Judge, is not here and would like a further crack at this whip, I suggest that we let this lie for the moment and return to it at Third Reading, if that is okay with noble Lords.

Lord Stevenson of Balmacara Portrait Lord Stevenson of Balmacara (Lab)
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I am sorry to interrupt. The sensibility behind the noble Baroness’s comment is that this a matter that we can come back to at Third Reading. Without wishing to be overly bureaucratic about it, following her helpful line in allowing issues on Report to be taken in a more relaxed way, a rule in the Companion is quite clear that it is with the leave of the Minister that matters can be raised again. Is she saying that, if these amendments are withdrawn, she will accept that they may be brought back for further debate and discussion? That would be sufficient for the clerks to be able to allow us to do that.

Baroness Williams of Trafford Portrait Baroness Williams of Trafford
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I most certainly am saying that. For me to lay out arguments today, with the noble Baroness saying what she said about coming back to this at Third Reading, would seem a little futile. That is absolutely what I am saying.

Baroness Ludford Portrait Baroness Ludford
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My Lords, I beg leave to withdraw the amendment.

Amendment 2 withdrawn.
Amendment 3 not moved.
16:14
Sitting suspended.

Extradition (Provisional Arrest) Bill [HL]

3rd reading (Hansard) & 3rd reading (Hansard): House of Lords & 3rd reading
Monday 15th June 2020

(2 years, 2 months ago)

Lords Chamber
Read Full debate 3rd reading (Hansard) Page Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: HL Bill 106-TR-I Marshalled list for Third Reading (PDF) - (10 Jun 2020)
Third Reading
16:01
Lord McNicol of West Kilbride Portrait The Deputy Speaker (Lord McNicol of West Kilbride) (Lab)
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My Lords, I shall begin by setting out how these proceedings will work. A participants’ list for today’s proceedings has been published and is in my brief, which Members should have received. I also have lists of Members who have put their names to the amendments, or expressed an interest in speaking, on each group. I will call Members to speak in the order listed. Their microphones will be muted by the broadcasters except when I call them to speak. Interventions during speeches, or at the end of speeches using the words “before the noble Lord sits down”, are not permitted, and uncalled speakers will not be heard.

Members other than the mover of an amendment or the Minister may speak only once on each group. Short questions for elucidation after the Minister’s response are permitted but discouraged. A Member wishing to ask such a question, including Members in the Chamber, must email the clerk.

Debate will take place on the lead amendment in each group only. The groupings are binding and it will not be possible to degroup an amendment for separate debate. A Member intending to press to a Division an amendment that has already debated should give notice of that in the debate. Leave should be given to withdraw amendments. When putting the Question, I will collect voices in the Chamber only. If a Member taking part remotely intends to trigger a Division, they should make that clear when speaking on the group. We will now begin.

The Schedule: Power of Arrest for Extradition Purposes

Amendment 1

Moved by
1: The Schedule, page 3, line 15, leave out from beginning to end of line 19 and insert—
“(3) The person must be brought as soon as practicable before the appropriate judge (see further, section 74D).”Member’s explanatory statement
This amendment requires a person to be brought before the appropriate judge as soon as practicable after arrest. The Bill currently requires this to happen within 24 hours. The Minister’s other four amendments are consequential on this amendment.
Baroness Williams of Trafford Portrait The Minister of State, Home Office (Baroness Williams of Trafford) (Con)
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My Lords, before I begin my speech on this amendment, I would like to note that this is a historic moment. This will be the first opportunity, in history, to vote remotely in the House of Lords.

The Government have tabled Amendment 1 regarding the 24-hour time limit for the arrested person to appear before a judge. Amendments 4 to 7 are consequential upon that main amendment. These amendments seek to replace the 24-hour time limit with “as soon as practicable”, which reflects current practice under Parts 1 and 2 of the Extradition Act 2003.

At Second Reading, in Committee and on Report, there was considered and stimulating debate in this House on the requirement under the Bill regarding the time limit within which a person arrested under this power should be put before a court. As noble Lords know, the courts to which all extradition suspects must be taken, whether arrested under Part 1 or Part 2 of the Extradition Act 2003 as currently written or as amended by the Bill, are Westminster Magistrates’ Court for England and Wales, Edinburgh Sheriff Court for Scotland, and Belfast magistrates’ court for Northern Ireland. Currently, a person arrested under the Act must generally be brought before the appropriate judge “as soon as practicable” following arrest. Under the new power of provisional arrest in this Bill, if this amendment is not made, that must occur “within 24 hours”.

The Bill was originally drafted in that way to strike a balance between getting arrested individuals before a court as quickly as possible and allowing the police sufficient time to gather supporting information. This mirrored, in a more stringent form, the approach to provisional arrest in Part 1 of the Extradition Act 2003, which requires an individual to be brought before the appropriate judge within 48 hours of arrest. However, I am conscious that this drafting departs from the general requirement that is currently imposed on the police after they make arrests under the other existing powers in the Extradition Act 2003.

I have listened carefully to the concerns raised at Second Reading and in Committee and have concluded that the new power of arrest in the Bill should be consistent in this respect with existing law and practice in relation to Part 2 of the 2003 Act, and that it should therefore mirror the wording “as soon as practicable”. That will ensure that individuals are not detained for any longer than is strictly necessary before being put before a judge. If, for example, an individual was arrested in central London, “as soon as practicable” would in all probability be considerably less than 24 hours. Our operational partners have already proved themselves very effective at producing wanted persons before courts within strict timeframes, and the three UK extradition courts have proved strict arbiters of police actions under the “as soon as practicable” requirement.

Additionally, if an individual is arrested and for legitimate reasons it is not possible to get them to court within 24 hours—for example, if they are arrested in a remote part of the UK or in an area affected by an extreme event—this change in wording will make the legislation operable across all parts of the UK in all circumstances.

Accordingly, I am introducing a government amendment to that effect to address the concerns expressed about this important issue both by noble Lords and by operational law enforcement partners. Although the language does not explicitly rule out production on weekends or bank holidays, these factors will of course be relevant to the practicability of bringing an individual before the appropriate judge. If public holidays or court opening times were to change in the future, the legislation would not need to be amended to take account of that. It remains the Government’s intention that the arrested person will be brought before a judge sitting in court, so court sitting times, which are determined by the judiciary, will be relevant to the concept of “as soon as practicable”.

There might of course be a multitude of other factors, such as geographical distance, natural disasters or illness of the arrested individual, that affect, in the individual case, the practicability of bringing an individual before a judge. Therefore, we continue to think that it is right that the judiciary are the arbiters, in the individual case, of whether this test of “as soon as practicable” is met, and they will be able to do so in determining any application for discharge under Section 74D(10).

I previously gave an undertaking to formally confirm that the Government intended to move this amendment today. It has the same overall purpose and effect as the one that the noble Baroness, Lady Hamwee, tabled on Report. I hope that noble Lords will be able to join me supporting this amendment. I beg to move.

Baroness Hamwee Portrait Baroness Hamwee (LD) [V]
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My Lords, I am grateful to the Minister for pursuing this issue. We raised it at the early stages of the Bill, and I am grateful to my noble friend Lady Ludford for continuing the argument on Report. I should also acknowledge today the critique of the Bill at Second Reading by the noble and learned Baroness, Lady Clark of Calton—I know that she discussed it subsequently with the Minister. She said then:

“There is nothing provisional about the consequences of being arrested.”—[Official Report, 4/2/20; col. 1743.]


Her remarks prompted me to think about the provisions of new Section 74A, taking account of weekends, bank holidays and so on. It was that—the extension from 24 hours to over a weekend or, in the case of Easter, even four days —which caused me to pursue the matter in Committee. That Committee marked the first outing of the noble Lord, Lord Parkinson of Whitley Bay; I hope he feels some sense of achievement for his part in this. He explained that it was the Government’s intention to replicate the existing provisions of the Extradition Act. That, of course, drove me to the Act and to this amendment; the Minister, as she said, agreed to bring the matter forward at this stage.

I note that, in the papers for today’s proceedings, the Minister’s explanatory statement refers to the 24-hour period, which, if it had stood alone without the possibility of extension, could have been acceptable, but I agree with her that it is right to have consistency throughout the Act. I confess to a bit of continuing anxiety, and not just about consistency within the Act. I have to say I was fairly confused when I came to look at the Act; it is a mighty beast. The Minister explained on Report, and I mention it today, that the original drafting was to achieve a balance between getting the arrested individual before a judge as quickly as possible and allowing the police sufficient time to gather supporting information. It is the latter that concerns me. The police must have the information to make the arrest, so what more is needed? Can the Minister expand on that when she winds up?

I am also slightly anxious because, inevitably, a fixed time period is clearer—it is much more easily enforceable; but that is a concern about the 2003 Act more broadly. I was reassured at earlier stages by the two very eminent noble and learned Lords, with their experience as two of the most senior members of the judiciary, who spoke about the 24/7 availability of judges. What is practicable now—as the Minister has explained in talking about geography and so on—is much more than a few years ago. I am very happy from our Benches and virtual Benches to support the amendment.

Lord Kennedy of Southwark Portrait Lord Kennedy of Southwark (Lab Co-op) [V]
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My Lords, I thank the noble Baroness, Lady Williams of Trafford, for explaining the purpose of the amendments in this group, all of which are in her name. I am content with the explanation she has given, which is clear; the intent is sensible, practical, proportionate and, as noble Lords have heard, consistent with wording used in similar relevant legislation. On that basis, I am happy to support the amendments today.

16:15
Lord Foulkes of Cumnock Portrait Lord Foulkes of Cumnock (Lab Co-op) [V]
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My Lords, I have a question to which others may know the answer; forgive me if it is widely known. The Minister said in relation to Scotland that the court applicable was Edinburgh Sheriff Court. Can she let us know why Edinburgh Sheriff Court in particular was chosen, and why only Edinburgh Sheriff Court? Scotland is a very large country stretching from the border with England right up to Shetland. I wondered whether there might not be some practical problems if only Edinburgh Sheriff Court was applicable. So, what was the criterion and why only Edinburgh?

Baroness Williams of Trafford Portrait Baroness Williams of Trafford
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My Lords, it has been Edinburgh Sheriff Court since the Extradition Act 2003 has been in place.

Lord McNicol of West Kilbride Portrait The Deputy Speaker
- Hansard - - - Excerpts

My Lords, as no other noble Lords have requested to come in on this debate, I shall now put the question on Amendment 1.

Amendment 1 agreed.
Lord McNicol of West Kilbride Portrait The Deputy Speaker
- Hansard - - - Excerpts

We now come to the group consisting of Amendment 2. I remind noble Lords that Members other than the mover and the Minister may speak only once, and that short questions of elucidation are discouraged. Anyone wishing to press this amendment to Division should make that clear in the debate.

Amendment 2

Moved by
2: The Schedule, page 4, line 38, at end insert—
“( ) The Secretary of State may only make regulations under subsection (7) if the following conditions are first met—(a) the Secretary of State has consulted on the merits of the change with—(i) each devolved administration, and(ii) non-governmental organisations which, in the opinion of the Secretary of State, have a relevant interest,(b) the Secretary of State has laid an assessment before each House of Parliament on the risks of the change, and(c) if the regulations are to add a reference to a territory to Schedule A1, the Secretary of State has laid a statement before each House of Parliament confirming that the territory does not abuse the Interpol Red Notices system.”Member’s explanatory statement
This amendment would create further requirements before adding, varying or removing a reference to a territory.
Lord Kennedy of Southwark Portrait Lord Kennedy of Southwark [V]
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My Lords, Amendment 2 in my name would insert the new subsection as detailed in the Marshalled List. The amendment requires certain conditions to have been met before the Secretary of State can make a regulation under new subsection (7) to either add, remove or vary a reference to a territory. This proposal is both reasonable and proportionate and should present no problem to the Government. It should be accepted willingly today.

It is important to note that nothing in my amendment stops the Government doing what they want to do. It goes through a process; that is all—a process of consultation and assessment. Where the proposal is to add a territory, it requires a statement confirming that the territory does not abuse the Interpol red notice system. The first part of the amendment places a requirement on the Secretary of State to consult on the merits of the change. There are two groups in the consultation proposed here: first, the devolved institutions, which can be a source of valuable information relevant to changes being proposed, and, secondly, non-governmental organisations which in the opinion of the Secretary of State have a relevant interest. Discretion is given to the Secretary of State here but, equally, the Secretary of State has to act reasonably. They will not be able to get out of consulting appropriate organisations; they will get themselves into all sorts of difficulties if they attempt to do otherwise.

My amendment requires that, after the consultation, an assessment be laid before Parliament of the risks of the proposed changes and, finally, that where the proposal is to add at a territory, the territory does not abuse the Interpol red notice system. There is considerable evidence that some jurisdictions abuse that system. I hope that we would not want to deal with such countries on future extradition agreements. I know that a number of my noble friends will shortly speak specifically about abuse of the Interpol red notice system. I beg to move.

Baroness Kennedy of Cradley Portrait Baroness Kennedy of Cradley (Lab) [V]
- Hansard - - - Excerpts

My Lords, I support Amendment 2 in the name of my noble friend Lord Kennedy of Southwark. The amendment would put in place a process to properly consider and then stop extraditions to countries that abuse human rights. It would require consultation, a risk assessment and a statement by the Home Secretary before any new or amended treaty was agreed.

Clearly there are times when treaties need to be, or indeed should be, amended. For example, in its current state the US/UK extradition treaty does not offer confidence to British citizens that they will not be surrendered to the US, when the British justice system is both qualified and able to try relevant cases here without prejudice. I hope the Minister will agree that this is an area in need of urgent reform. When the Government make reforms of this nature, as I hope they will in this case, consultation and parliamentary scrutiny, as outlined in the amendment, are therefore critical.

The amendment would also ensure consultation with the devolved Administrations. There is a strong case for this as there will be certain powers in these Administrations relating to justice, policing and prisons that need to be considered.

Respect for human rights must be a priority consideration when changing or entering into a new treaty. The NGOs have direct experience of the countries concerned. They understand better any issues that arise from individual territories, especially regarding human rights records. They need to be consulted, which is what the amendment seeks to do. It would open up the decision-making process. Being transparent about why decisions were taken about individual countries, and allowing proper parliamentary scrutiny of those decisions, will build trust and confidence in our extradition system.

I turn to red notices. Time and again, international organisations continue to report the widespread abuse by some states of red notices for political ends—for example, to persecute human rights activists, refugees or critical journalists. This violates international standards and human rights. The Government should therefore be mindful of those countries that abuse red notices. Through the guarantees given in the amendment, the Government would signal that they recognised that red notices from countries that abuse the system have no legal value, and would show that, as a country and as a Government, we will help to protect those individuals targeted by such countries that abuse the system. I hope the Government will agree to support the amendment.

Lord Foulkes of Cumnock Portrait Lord Foulkes of Cumnock [V]
- Hansard - - - Excerpts

I am very happy to support this excellent amendment moved by my noble friend Lord Kennedy. I hope that if the Government do not accept it, he will press it to a Division.

The first aspect of the amendment is, as my noble friend Lady Kennedy has just spoken about, consultation with the devolved Administrations, an issue that I will come to in a moment, but also, rightly, with NGOs, as my friend also said. I had a lot of dealings with human rights NGOs and those involved with press freedom when I was general rapporteur on media freedom and the safety of journalists for the Council of Europe, and I found them very helpful for knowing up-to-date information about each country that we dealt with.

As far as the devolved Administrations are concerned, there is—with no disrespect to the noble Baroness, Lady Williams—an awful lot of talk of consultation but very little real, meaningful consultation with the devolved authorities. For example, on Covid recently, the Prime Minister talks about consulting but for a month now he has not chaired a meeting of COBRA in which the First Ministers have been involved. That is not the consultation that could be taking place, so we have to write it into legislation. The Joint Ministerial Councils, which ought to be working, are not working effectively, while the European arrest warrant was abandoned by this Government in spite of objections from the Scottish Government and other devolved Administrations. Consultation must be written into this.

The second reason I strongly support my noble friend Lord Kennedy’s amendment relates to the red notice system. I want to mention the terribly tragic death of Harry Dunn at the age of 19, with his whole adult life ahead of him, in a hit-and-run accident. It was really terrible. The driver of the car, Anne Sacoolas, an American citizen, the wife of a diplomat, escaped justice by fleeing from the UK back to America. That was disgraceful. Her diplomatic immunity itself was very doubtful. Can the Minister confirm that an Interpol red notice has been issued in relation to Ms Sacoolas? I think the Prime Minister has said that she should return, but what are the Government doing to insist on that and take action?

For those two reasons, I strongly support the amendment. As I say, I hope my noble friend will take real courage in his hands and call a Division on this matter if the Government refuse to accept his very strong and persuasive arguments.

Baroness Ludford Portrait Baroness Ludford (LD) [V]
- Hansard - - - Excerpts

My Lords, in Committee on 5 March the Minister said:

“The Government have no intention of specifying countries likely to abuse the system to political ends”—


that is, the Interpol system. Obviously, that was an important pledge, but it does not conflict with the need for Amendment 2 in the name of the noble Lord, Lord Kennedy, with an assessment of the risks and a statement confirming that the territory does not abuse Interpol red notices.

I also agree that devolved Governments and NGOs should be consulted. Fair Trials International, of which I have been a patron for two decades, has long campaigned to ensure that Interpol does better at filtering out abuses of its system before information is sent out to police forces across the globe. When abusive “wanted person” alerts slip through the net, victims should have redress through an open and impartial process. There is no court in which to pursue an appeal. Fair Trials has highlighted shocking cases of injustice and the devastating impact that these alerts can have on those affected. Bill Browder has said that your life as a human being is over.

Fair Trials has helped dozens of people who have been subject to abusive Interpol alerts from countries including Russia, Belarus, Turkey, Venezuela, Egypt, Sri Lanka and Indonesia. FTI has also worked constructively with Interpol to develop realistic reform proposals. It held a positive meeting with Interpol’s secretary-general, Jürgen Stock, to discuss reforming the red notice system.

In the context of mounting political pressure for reform, changes were introduced in 2015, when Interpol announced that it had taken the first steps towards implementing reforms, including the introduction of a new refugee policy. Then, in 2017, Interpol introduced a number of further reforms, including greater independence, influence and expertise of the supervisory authority, the CCF; better transparency and respect for equality of arms; reasoned and public decisions on individual cases; and a working group to review red notice operations.

The Minister said, again on 5 March, that

“the UK is currently working with Interpol to ensure that its rules are robust, effective and complied with. The former chief constable of Essex was recently made the executive director of policing services for Interpol, the most senior operational role in that organisation. A UK government lawyer has also been seconded to the Interpol legal service to work with it to ensure that Interpol rules are properly robust and adhered to by Interpol member states.”—[Official Report, 5/3/20; col. 364GC.]

Can she tell us any more about what further changes and reforms have been introduced since 2017 to prevent abuse? Although that is essential, I still hope that she can tell us that she will accept Amendment 2.

Lord Adonis Portrait Lord Adonis (Lab)
- Hansard - - - Excerpts

My Lords, I cannot imagine that the Minister is going to tell us anything other than that the Government would consult the appropriate authorities before exercising the power under paragraph 7 of the Schedule, so the obvious question is: if the Government are committed to consulting, why will they not put it in the Bill, given the extent of the concerns that have been raised?

16:30
Lord Paddick Portrait Lord Paddick (LD) [V]
- Hansard - - - Excerpts

My Lords, I too support the amendment of the noble Lord, Lord Kennedy of Southwark, but with one reservation about where it can be strengthened in relation to NGOs. The noble Lord, Lord Foulkes of Cumnock, has just spoken convincingly about their importance. In proposed new sub-paragraph (a), the amendment reads that the Secretary of State should consult

“on the merits of the change with … (ii) non-governmental organisations which, in the opinion of the Secretary of State, have a relevant interest.”

For me, this gives the Secretary of State carte blanche to consult or not, as he or she thinks fit. It might be better to add: “iii) those non-governmental organisations which have made representations to the Secretary of State.” That said, I still support the amendment.

Baroness Wilcox of Newport Portrait Baroness Wilcox of Newport (Lab) [V]
- Hansard - - - Excerpts

My Lords, I support my noble friend Lord Kennedy’s amendment as it would add to the system of fairness and justice, since a further check and balance would be written into the Bill. It ensures that the territory in question would not abuse the Interpol red notices system. As noble Lords will know, a red notice is a request by Interpol on behalf of one member state to all other member states to locate a suspect or convicted person, and take steps to facilitate their surrender to the requesting state. Extradition proceedings then follow.

However, not every country treats red notices as a valid warrant and the legal effect therefore currently differs between states. In February 2019, the European Parliament published a study that examined abuse by some states of Interpol’s notice system to persecute national human rights defenders, civil society activists and critical journalists in violation of international standards of human rights. The study, entitled Misuse of Interpol’s Red Notices and Impact on Human Rights—Recent Developments was commissioned by the European Parliament’s sub-committee on human rights. The study acknowledged that the reforms implemented in 2015 have improved the situation. However, abuses of the Interpol system against individuals, including refugees, continue.

There is still a lack of established rules and procedures to govern the vetting process and adherence to Interpol’s constitution. It is therefore of utmost importance that we in this House have the opportunity to finesse and refine the statute so that weaknesses in established systems are not exacerbated by any vague legislation coming from this House. I therefore support my noble friend Lord Kennedy’s amendment.

Baroness Hamwee Portrait Baroness Hamwee (LD) [V]
- Hansard - - - Excerpts

My Lords, in this amendment the noble Lord, Lord Kennedy, has successfully combined a number of issues raised during the passage of the Bill. As noble Lords know, it is very difficult to resist even an affirmative instrument. That is the reality of the system, so it is particularly important that the Government are transparent and inclusive.

I went back to look at the Delegated Powers memorandum and realised—I had not noticed this before—that we are told as part of the justification for taking the power that a

“response to changing circumstances”—

which I will come to—

“provides certainty and clarity as to the appropriate manner of request from amended or newly specified territories. For example, if the UK were not to have access to the European Arrest Warrant or a similar tool, with the effect that EU Member States become re-designated as category 2 territories, it is likely to be appropriate to specify some or all of them for the purposes of this legislation.”

We had quite a bit of debate at the beginning as to whether the Bill is really preparing for us not being part of the EAW system, so there will be some interesting debates to come as territories are added.

As a member of the EU Select Committee, I have had the opportunity of hearing the Chancellor of the Duchy of Lancaster mention this on a number of occasions. He said that what is important is to preserve our sovereignty, matters of proportionality and the state’s readiness for trial. As I say, there will be quite a bit to discuss as we add other countries.

The delegated powers memorandum also says:

“in the unlikely event of a deterioration in the standards of the criminal justice system of a specified category 2 territory, it is likely to be appropriate to remove”

it; well, the United States has been mentioned already by the noble Baroness, Lady Kennedy of Cradley. I suppose the answer to that is in the question of deterioration, because there are plenty of concerns about its processes now.

The House will be aware of our enthusiasm for consultation. I know that they do not claim this, but the Government do not have the monopoly of wisdom. Like other noble Lords, I am often very impressed by the knowledge that NGOs have. My noble friend Lord Paddick raised this point. I hope the Minister can confirm that, in legislation-speak, the Secretary of State’s opinion must always be a reasonable opinion and can be challenged on the basis that it is not reasonable.

I tabled an amendment in Committee to the effect that the designated authority—in our case, the NCA—must be satisfied that the request is not politically motivated. The Minister responded carefully and in detail, and I was grateful for that. The Committee was then reminded that the Extradition Act has safeguards in respect of requests motivated by a person’s political views. I want to make a distinction between that amendment and the one in the name of the noble Lord, Lord Kennedy, which is about the abuse of the red notice system. I think that is different; it is to do with the requesting territory’s approach on a wider basis. I hope that the House will accept that the narrower amendment has been disposed of, as it does not deal with the wider point. From our Benches, we support the amendment.

Baroness Williams of Trafford Portrait Baroness Williams of Trafford
- Hansard - - - Excerpts

My Lords, I thank noble Lords who have spoken to this amendment. Amendment 2 deals with the proposed statutory requirements for a consultation, the laying of statements before Parliament setting out the risks of any amendment to add, vary or remove a territory to the Bill and, in the case of additions, confirming that a territory does not abuse the Interpol red notice system prior to laying any regulations which seek to amend the territories subject to the Bill.

The Government are committed to ensuring that Parliament has the ability to question and decide on whether any new territories should come within scope. Therefore, it is mandated in the Bill that any Government wishing to add a new territory should do so through the affirmative resolution procedure. Any statutory instrument laid before Parliament will, of course, be accompanied by an Explanatory Memorandum that will set out the legislative context and the policy reason for the instrument. This procedure will give Parliament the opportunity to scrutinise proposals and allow the House to reject any proposals to add, remove or vary any territory to, from or in the Bill. The reasoning put forward will need to satisfy Parliament that the territory in scope does not abuse Interpol red notices or create unacceptable risks.

While extradition is a reserved matter, relevant officials are engaged in regular discussions with their counterparts in the devolved Administrations about how it should operate in practice. They would of course engage with them as a matter of good practice were any secondary legislation to be introduced in relation to it. Similarly, several relevant NGOs and expert legal practitioners have been consulted by officials in the normal way; this answers the questions of the noble Baroness, Lady Ludford. All external stakeholders are able to make direct contact with parliamentarians so that their views are included in all debates connected with secondary legislation associated with the Bill, as they have done during its current passage by contacting several noble Lords in this House.

A number of noble Lords, including the noble Baronesses, Lady Hamwee and Lady Ludford, talked about the abuse of Interpol channels. I will expand on that a bit. In arguing that maybe a power should not be enacted, given previous abuse of Interpol channels by some hostile states, the noble Baroness, Lady Ludford, cited the case of Bill Browder. International organisations like Interpol are critical to international law enforcement co-operation and are aligned with our vision of a global Britain. Interpol provides a secure channel through which we exchange information on a police-to-police basis for action. The UK continues to work with Interpol to ensure that its rules are robust, effective and complied with. The former chief constable of Essex was recently made the executive director of policing services for Interpol, which I was delighted about. It is the most senior operational role in that organisation. A UK government lawyer has also been seconded to the Interpol notices and diffusion task force, to work with it to ensure that Interpol rules are properly robust and adhered to by Interpol member states.

In terms of the specification of non-trusted countries, the power will be available only in relation to requests from the countries specified in the Bill—countries in whose criminal justice systems we have a high level of confidence, and that do not abuse Interpol systems. The Government will not specify any country that is not suitable. The addition of any country must be approved by both Houses, and I trust that neither House will be content to approve the addition of a country about which we have concern.

I will try to make it easy for the House, because we will now have our first ever virtual vote in the House of Lords. I understand that noble Lords would like to divide on this, and I hope that they will join me in resisting the amendment.

Lord Kennedy of Southwark Portrait Lord Kennedy of Southwark [V]
- Hansard - - - Excerpts

My Lords, this has been a good short debate. I thank my noble friends Lady Kennedy of Cradley, Lord Foulkes of Cumnock, Lady Wilcox of Newport and Lord Adonis, as well as the noble Baronesses, Lady Ludford and Lady Hamwee, and the noble Lord, Lord Paddick, for their support. All noble Lords carefully set out the need for this amendment in a most convincing way. I am not persuaded by the response of the noble Baroness, Lady Williams of Trafford, which I found disappointing. I will not disappoint her, and I will make it very clear that I certainly wish to test the opinion of the House in this first ever virtual vote.

16:43

Division 1

Ayes: 275


Labour: 125
Liberal Democrat: 79
Crossbench: 52
Independent: 13
Green Party: 2
Ulster Unionist Party: 1
Plaid Cymru: 1

Noes: 256


Conservative: 214
Crossbench: 29
Independent: 8
Democratic Unionist Party: 3
Ulster Unionist Party: 1
Labour: 1

17:06
Amendment 3
Moved by
3: The Schedule, page 4, line 38, at end insert—
“( ) Regulations made under subsection (7)(a) shall designate no more than one territory.”Member’s explanatory statement
This amendment would require regulations which add, vary or remove a reference to a territory under Schedule A1 to contain no more than one territory. This will allow Parliament to reject a particular territory.
Baroness Hamwee Portrait Baroness Hamwee [V]
- Hansard - - - Excerpts

My Lords, the noble and learned Lord, Lord Judge, has added his name to Amendment 3, as the noble Lords, Lord Kennedy and Lord Anderson, did to a similar amendment at an earlier stage. I am grateful to my noble friend Lady Ludford, who dealt with the matter on our behalf on Report, when, with the leave of the Minister, it was agreed that it be taken at Third Reading.

We often hear from the mover of an amendment: “This is a simple amendment.” Often, it is not quite that simple, but I believe this one is straightforward. When the Secretary of State lays regulations under new Section 74B(7)

“to add, vary or remove a reference to a territory”—

it is the addition that is the issue here—those regulations should apply only to a single territory. What I hope makes this simple to noble Lords is that there is nothing to prevent several instruments, each relating to one territory, being laid at the same time so that several territories can be specified within a matter of minutes of each other. But the crux is that Parliament should be able to reject one territory while happily accepting others.

In Committee, I used the examples of the Netherlands, a country which we respect, and Turkey, whose human rights record has regressed. I will use another pair today. I couple them only to distinguish between them: Sweden is a country we admire; Venezuela is one we do not, in this regard. If Parliament is presented with the choice of rejecting Sweden from the system because it wants to reject Venezuela, or accepting Venezuela because it wants to accept Sweden, how can Parliament possibly do the job we are all here to do when faced with an SI which is not amendable? The Minister has said previously that she would not present an SI that includes a country whose extradition requests we could not have confidence in due to their human rights record and would risk Parliament refusing extradition arrangements with a country that respects the rule of law. What the noble Baroness as an individual Minister might do is not the issue. I do not for a moment challenge her as an individual. This is a matter of system and procedure, not for an individual.

The previous amendment, which has just been agreed, referred to political motivation, and we must all be aware of the different criteria that different countries apply to the decisions they take as a state. Given the issues around relationships with countries regarding arms sales, for instance, is it any wonder that noble Lords are concerned about extradition to a country whose values, including valuing human life, are not our values?

The shortcomings and difficulties in procedures for dealing with secondary legislation are not a new point, but the fact that no amendments are possible is the most relevant one today. But, for once, we have a solution, which is to deal with these proposals one country at a time. I cannot understand an objection which seems to amount to no more than “It wasn’t invented here” or “not common practice”, to use the phrase used in Committee.

I need say no more, as I know that other noble Lords will contribute to the debate. Unless the Minister concedes, which I do not expect, I will test the opinion of the House, but for the moment I beg to move.

Baroness Ludford Portrait Baroness Ludford [V]
- Hansard - - - Excerpts

My noble friend Lady Hamwee has covered the strong case for this amendment and, to be quite frank, I cannot see on what grounds the Government can resist it. There is no good argument on administrative, parliamentary or human rights grounds not to have one territory per SI, so that Parliament can carefully discriminate between those territories where we are happy to have a law enforcement relationship and those that are, quite honestly, unreliable.

The way that the Government have resisted this improvement throughout the passage of the Bill in your Lordships’ House raises some concerns. Those are not linked, as my noble friend said, to the person of the Minister, but to any and every Government. We know that there will be pressures on this country, which has chosen—wrongly, in my opinion—to exit from the EU and make itself vulnerable to pressures in the context of seeking trade agreements. Those pressures are being discussed in a lively way, as they were last Wednesday in our Second Reading of the Agriculture Bill, when we discussed chlorinated chicken, hormone-treated beef and so on, and one can foresee similar kinds of pressures when countries seek favours from the United Kingdom in order to give us a trade concession. It would be all too tempting for a current or future Government to throw in a favour in a completely different area, such as law enforcement co-operation, in order to win a point for one economic sector or another in a trade deal.

In order to stop any such development in its tracks, it is completely reasonable to ask the Government simply to let Parliament decide on a country-by-country basis whether we want to add them to this system of provisional arrest. The onus is really on the Government to convince this House why it is reasonable to lump them together and not allow us to decide territory by territory, which is the obvious way to proceed.

17:15
Lord Judge Portrait Lord Judge (CB) [V]
- Hansard - - - Excerpts

We need a sensible extradition regime, and at the moment we have one. I strongly support it and nobody can think of a single reason why we should not work in a mutually acceptable way with territories, as the Act calls them—or countries, as ordinary people call them—that we trust: those we trust, those we trust to trust each other and those who we are confident will abide by the ordinary rules when seeking extradition of British citizens and vice versa. We all work together.

In this particular situation, as the noble Baroness, Lady Ludford, just said, we have a Government who would produce a list of countries or territories with which we would all be happy, and, bingo, the affirmative resolution is passed and we all go away happy, and for myself I cannot imagine that a Government led by Sir Keir Starmer would be any different. But the future is long, and the problem is that, undoubtedly, the time may come—I am not saying that it will, and I hope that it never does—when a Government seek a favour from this country or we seek a favour from them. An example might be, “Do you really want our safety equipment? Do you really want our artificial intelligence? Let’s have a mutual extradition arrangement.” I can also envision the possibility, not immediately but not so remotely either, of a Government of the day wishing to associate themselves with a country that shared that Government’s political views but was nevertheless not a desirable country with which to have these arrangements.

As the noble Baroness, Lady Hamwee, has just explained, we have this ridiculous situation where affirmative resolutions cannot be amended—you either take the package or you lose it. Parliament could be faced with this situation: there could be a list of a number of countries with which it was entirely desirable and sensible to have a mutual arrangement plus one other, with which it would be extremely undesirable to have such an arrangement. What would happen then? Do we reject the territory and country that we think it would be totally inappropriate to have such arrangements with and therefore lose similar arrangements with all the desirable countries, or do we simply keep all the countries we think it would be a good idea to have and include the other one, although it is undesirable? That is a ridiculous situation, and the amendment is designed to avoid such an absurdity. As the noble Baroness, Lady Hamwee, has already said, and I emphasise, the amendment proposes an utterly simple, totally uncomplicated system. It may cost the department a few more pages of paper, but not that many, and it may take a fraction more time, but it would be time valuably used. Statutory instruments should always be limited to one country.

The second reason I support the amendment has already been touched on. Through the passage of this legislation, from the beginning to where we are today, this House has raised this issue time and again. We have never yet been given a single good reason why the proposal in this amendment is unacceptable, would create difficulties for the extradition regime or would be unworkable. The Minister has not invented any spurious reason for that, for which we are of course grateful and unsurprised, but there are no reasons. No reason has yet been given. As a matter of common sense, as well as on a sound constitutional basis, the amendment has never been contradicted by a reasonable argument and should find favour with the House.

Lord Paddick Portrait Lord Paddick [V]
- Hansard - - - Excerpts

My Lords, I speak in support of the amendment in the name of my noble friend Lady Hamwee, and I agree completely with the comments of the noble and learned Lord, Lord Judge. The trouble with an amendment of this simplicity is that all one can do is repeat the arguments in a slightly different way.

It makes complete sense that Parliament should have the ability to consider each country on its merits in this case, as it is so obviously open to abuse, and the regulations that allow additions are not amendable. Echoing the views of my noble friend Lady Ludford, I think that, our having left the European Union, future Governments will be keener than ever to secure trade deals with other countries, for example. It may be that those other countries demand, quid pro quo, that we accede to their extradition requests, even though there may be reservations about a country’s criminal justice process. This amendment is necessary, and I support it.

Lord Anderson of Ipswich Portrait Lord Anderson of Ipswich (CB) [V]
- Hansard - - - Excerpts

My Lords, in Committee, my noble and learned friend Lord Hope of Craighead said of this amendment that it meets the problem of the non-amendable instrument, without at the same time creating an insuperable difficulty for the Government, and that it enables a debate to take place that would have a real point to it. The fact that there may be precedents in other Acts of Parliament for lumping countries together in statutory instruments seems to be neither here nor there.

This amendment ought really to be welcomed by the Government. It removes the possibility that acceptable countries will be excluded because they have been yoked together with a country that Parliament finds unacceptable. The amendment is a sensible and practical safety valve, which is why I put my name to a previous edition. If the noble Baroness, Lady Hamwee, decides to test the opinion of the House, I shall vote for the amendment.

Lord Blunkett Portrait Lord Blunkett (Lab) [V]
- Hansard - - - Excerpts

My Lords, as the noble Lord, Lord Paddick, said, the simpler the amendment, the more repetitious we become. But I want to go back to 2003, which was mentioned by the noble Baroness, Lady Hamwee, in the debate on the previous amendment, and to the Act that I piloted through, with the support of an excellent Home Office team. The noble Baroness called it a “mighty beast”, which it was; it was extremely difficult, as were other mighty beasts of that year, including the Criminal Justice Act, the Proceeds of Crime Act, the Sexual Offences Act, and the Domestic Violence, Crime and Victims Act. When I look back on those days, I wonder when any of us slept. We were, quite rightly, taken to task: we leaned on legislation too quickly.

However, in a simple amendment such as this one, we have clarity of thinking, as the noble and learned Lord, Lord Judge, indicated, and as the noble Lord, Lord Anderson, reinforced. There is a simple, clear reason why, 17 years on from the original Extradition Act, we should take this sensible step, which avoids the Government not being able to carry an order for countries with which we would be extremely pleased to have extradition arrangements because another country listed is unacceptable to us. Turning it on its head, on the danger of agreeing a country that we do not wish to have an extradition agreement with, and being unable to get Parliament to agree to an order that it would otherwise want to go along with, it makes absolute sense for the Government simply to concede.

I repeat what I said last week: I have a great deal of respect for the Minister. I hope that, even at this late stage, texts might be going from her staff to the Home Secretary to say, “Please give permission to concede on this, because we oppose it for no good reason whatever”.

Lord Kennedy of Southwark Portrait Lord Kennedy of Southwark [V]
- Hansard - - - Excerpts

My Lords, I support Amendment 3, tabled by the noble Baroness, Lady Hamwee, and the noble and learned Lord, Lord Judge. As noble Lords have heard, this issue has been considered by the House as the Bill has made its progress through the various stages. What is proposed here today is simple, effective and, I contend, good government.

Surely it must be right that when we are designating countries that we wish to form an extradition agreement with, after the detailed work has taken place, Parliament should have the opportunity to accept or reject the designation for an individual territory. Parliament generally, and this House in particular, does not often vote down regulations. We may pass Motions to Regret or debate the merits of what is proposed, and many may express deep reservations, but fatal Motions are very rare.

This amendment is important; it is good practice and what good government should be all about. It guards against this or any future Government, of whatever political persuasion, seeking to group together a number of countries and push them through en bloc where, for example, nine of the 10 countries proposed have good reputations, a good track record and respect for the rule of law, do not persecute dissidents, do not abuse human rights and do not abuse Interpol red notices, but the remaining country has a more questionable record on one, or a number of, the issues I have raised. In such a case, it would be wrong for the Government to try to force through an agreement under the cover of Parliament not wanting to reject the other territories, and would give the country about which questions have been asked some form of protection that it does not deserve, making the approval a fait accompli. Parliament should, in all circumstances, guard against that.

If passed, this amendment would allow Parliament, on the rare occasion that it rejects regulations, to do so quite clearly on the record of the individual territory that the Government propose to sign an agreement with. That is right, proportionate and the sensible way to deal with this important part of public policy; no other agreement will be put at risk. It is good government, and I hope noble Lords will support the amendment if it is put to the vote.

Baroness Williams of Trafford Portrait Baroness Williams of Trafford
- Hansard - - - Excerpts

My Lords, on previous occasions this House has spoken at length on the question of what constitutes appropriate parliamentary scrutiny, in the wider sense, in relation to the addition of any territory, and has just done so again on Amendment 2. I will now expand further in addressing Amendment 3, in the names of the noble Baroness, Lady Hamwee, and the noble and learned Lord, Lord Judge, which seeks to mandate that this be done by individual statutory instrument for each suggested country.

I was slightly dismayed to hear noble Lords talk about mutual extradition arrangements because, as I have clarified on several occasions, this has not, and never has been, about mutual extradition arrangements. We do not do this on behalf of other countries, and if, for example, we did it on behalf of Turkey, the courts would throw it out—even if the Government could get it through Parliament, the courts would throw it out.

When this issue was debated in Committee, it was pointed out that statutory instruments that seek to specify new territories are not amendable. Some feel that this may create a difficulty for this House if regulations were laid which sought to specify multiple countries. As I have said before, the process of potentially listing multiple countries already exists for adding territories to both parts of the Extradition Act 2003.

17:30
It was further pointed out that there are countries in the world which do not respect the rule of law and a concern was raised that a future Government may seek to add such countries to this legislation, countries that this House and the other place together may think it inappropriate to add. Again, even if the Government could get it through Parliament, the courts would throw it out.
It was put to me that somehow this House cannot really grapple with considering a country to which there are objections unless it appears in a statutory instrument alone. The answer to that concern is very simple. If a country is proposed by any Government, either now or in the future, that this House does not want to be specified under this Bill then the job of this House is to win that argument and vote down the relevant regulations.
To quote my noble and learned friend Lord Mackay of Clashfern, who as always put it very succinctly, being a former Lord Advocate and Lord Chancellor,
“a Minister putting forward a list would have to be mightily careful that the list was of all good, or at least equally good, countries. If there was a doubtful one it would have to be separate. That lesson should be taken to heart. It is very unwise to have a great big list where we are not sure about two or three countries, because we would just lose the whole lot. I suspect that we may be faced in due course with a fair group about which we have some knowledge already. I do not think that that has anything to do with the Bill, but it might be a consequence of granting this power. I imagine that any Minister contemplating this who wished to be successful would be very careful to leave a country out of a list of very good countries and have it in a separate list if he thought that it would risk the others.”—[Official Report, 5/3/20; col. GC 386.]
I have often made such considerations when considering statutory instruments. This House and the other place will have the ability to reject regulations which contain multiple countries, which will incentivise any Government to heed my noble and learned friend’s advice.
It was also suggested in Committee that having multiple instruments specifying a single territory would take just “a little longer”—a bit more typing and printing. The noble and learned Lord, Lord Judge, alluded to that today. That is to rather belittle the potential impact of this amendment on parliamentary business. The description that this would not cause,
“much more than a few more pieces of paper—a little more typing and standing up and sitting down”—[Official Report, 5/3/20; col. GC 387.]
simply does not adequately describe the impact of unnecessary regulations. We are all in the middle of an abject lesson in the reality of entirely unexpected time having to be diverted for vital emergency parliamentary work for the good of the whole of the UK. Unnecessarily burdensome legislation is simply not consistent with the Government’s duty to have proportionate systems in place that afford regulations only the proper and necessary time and resources needed.
Despite the crisis that has engulfed normal and parliamentary life in the UK, we need to press on with this Bill because some of the horrors it seeks to mitigate are already present on our streets. I have said more than once that thousands of international arrest alerts are already circulated for fugitives by the countries in scope. UK police officers need the arrest powers not because of other countries but to keep our streets safe. This law will prevent fugitives responsible for such crime continuing to evade justice through an operational loophole which puts the public at risk.
From the tone of the speakers, I think there will be a desire to test the opinion of the House. I hope noble Lords will join me in resisting this amendment.
Baroness Hamwee Portrait Baroness Hamwee [V]
- Hansard - - - Excerpts

I will test the opinion of the House, but I will first respond a little to what has been said. I thank all noble Lords who have supported this amendment.

As the noble and learned Lord, Lord Judge, said, we need a sensible extradition regime and I do not seek to subvert that. This is also not about mutual arrangements. I am flattered that the noble and learned Lord attributes to me an awareness of and sensitivity to the constitution and common sense. I hope this amendment achieves both. He gave examples of situations where the Government might be tempted down a route which was not perhaps the best because of other matters in play politically. It occurs to me that the topical discussion might be, “Do you want our vaccine? Do you want our PPE?” This amendment would let the Government, in advance, off the hook that they might create for themselves, giving them a way out of facing that unpleasant discussion.

We are proud of our values; this is a way of applying them. The Minister says that we might win the argument and vote down regulations because they included an “undesirable” country—I use the term as shorthand. However, in this example, that would not reflect the views of Parliament because it would not be able at that point to accept the desirable country.

We have had to adapt our procedures over the last few weeks. Great and very successful attempts have been made to ensure that procedure reflects good governance. We should extend that today. This is a proportionate response to the issue. The Minister says that the Government want to press on with the Bill; I have no doubt that they do. It will have to go to the Commons, and we know that it already contains a provision which the Government will not be very happy with. As I say, this amendment is proportionate, sensible and one that the House should accept. I would like to test the opinion of the House.

17:37

Division 2

Ayes: 314


Labour: 133
Liberal Democrat: 81
Crossbench: 74
Independent: 17
Green Party: 2
Conservative: 2
Bishops: 1
Ulster Unionist Party: 1
Plaid Cymru: 1

Noes: 230


Conservative: 210
Crossbench: 10
Independent: 5
Democratic Unionist Party: 4
Ulster Unionist Party: 1

17:59
Amendments 4 to 7
Moved by
4: The Schedule, page 7, line 2, leave out “within 24 hours of” and insert “as soon as practicable after”
Member’s explanatory statement
This amendment is consequential on the Minister's first amendment.
5: The Schedule, page 10, line 8, leave out sub-paragraph (2)
Member’s explanatory statement
This amendment is consequential on the Minister's first amendment.
6: The Schedule, page 10, line 9, at end insert—
“( ) In subsection (7), for “or 74(3)” substitute “, 74(3) or 74A(3)”.”Member’s explanatory statement
This amendment is consequential on the Minister's first amendment.
7: The Schedule, page 10, line 10, leave out sub-paragraph (4)
Member’s explanatory statement
This amendment is consequential on the Minister's first amendment.
Amendments 4 to 7 agreed.
17:59
Motion
Moved by
Baroness Williams of Trafford Portrait Baroness Williams of Trafford
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That the Bill do now pass.

Baroness Williams of Trafford Portrait Baroness Williams of Trafford
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My Lords, I thank the noble Lords who engaged very constructively with the Bill, particularly the noble Lords, Lord Kennedy and Lord Paddick, the noble Baroness, Lady Hamwee, the noble and learned Lord, Lord Judge, and my noble and learned friend Lord Mackay of Clashfern. The Chief Whip’s beeper is going so I think he wants me to keep my comments short.

Extradition is not an easy subject, but this has been most interesting legislation, with very well-drafted and thoughtful amendments. Everyone will benefit from the work done on this. I particularly thank officials from the Home Office, who have supported me so brilliantly throughout. I beg to move.

Lord Kennedy of Southwark Portrait Lord Kennedy of Southwark [V]
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My Lords, I echo the noble Baroness’s comments. I thank all noble Lords who have taken part in the proceedings on the Bill. I enjoyed working with everybody concerned. I think that we have made the Bill better. As always, the noble Baroness has been courteous and kind and always prepared to engage with me constructively. I also thank all her officials from the Home Office for the way they have worked with me during the Bill’s passage.

Baroness Hamwee Portrait Baroness Hamwee [V]
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My Lords, I too thank everyone who has been involved with the Bill. As the noble Baroness, Lady Williams, said, it is not an easy subject, although some of the amendments that we have had to consider have in fact been relatively straightforward. I suspect we will discuss extradition quite a lot over the next few months and years, so we will all get to know the subject even better. I congratulate her on seeing this through. I really appreciate the help of officials and staff. Who thought, when we started on the passage of the Bill, that we would have had such an extraordinary experience?

Bill passed and sent to the Commons.
18:02
Sitting suspended.

Extradition (Provisional Arrest) Bill [Lords]

Programme motion: House of Commons & 2nd reading & 2nd reading: House of Commons & Programme motion
Monday 22nd June 2020

(2 years, 1 month ago)

Commons Chamber
Read Full debate Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: Consideration of Bill Amendments as at 26 January 2021 - (26 Jan 2021)
Second Reading
16:46
Kevin Foster Portrait The Parliamentary Under-Secretary of State for the Home Department (Kevin Foster)
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I beg to move, that the Bill be now read a Second time.

I will start by making clear what the Bill does not do. It does not change our extradition process or any safeguards that already exist in extradition proceedings. It does not make it more or less likely that a person will be extradited, and it does not in any way affect the current judicial oversight of the extradition process, or the character of core proceedings. Nor is the Bill concerned with the UK’s extradition relationships with other countries, or the criminal behaviours for which extradition can be sought from the United Kingdom. The Bill is concerned only with how persons who are wanted for crimes enter the UK’s court system. It changes when and how a fugitive who is wanted for a serious offence by a trusted country is brought before a UK court.

Currently, when UK police have a chance encounter with a person who is wanted by a non-EU country, they cannot arrest them. The officer is required to walk away, obtain a warrant from a judge, and then try to relocate the individual later to make the necessary arrest. That means that fugitives who are known to the police to be wanted for serious offences remain free on our streets and are able simply to abscond or, worst of all, to offend again, thereby creating further victims.

Let me give you a shocking example, Madam Deputy Speaker. In 2017, an individual who was wanted by one of the countries within the scope of this Bill for the rape of a child was identified during a routine traffic stop. Without the power to arrest, the police could do nothing to detain that individual there and then, and he is still at large. The Bill will change that and ensure that fugitives who are wanted by specified countries, and then identified by the police or at the UK border, can be arrested immediately. They can be taken off the streets and brought before a judge as soon as it is practicable to do so.

The usual way that police officers become aware of an international fugitive is after a circulation of alerts through Interpol channels. Interpol alerts from all countries are now routinely available to UK police and Border Force officers. Access to that information by frontline officers has created a situation whereby a police or Border Force officer might encounter an individual who they can see, by performing a simple database check, is wanted by another country for a serious offence. Many countries, including most EU member states, afford their police the power of immediate arrest on the basis of Interpol alerts, and this Bill will create a similar power with appropriate safeguards. That power will apply only to alerts from countries with which we already have effective extradition relationships, and—crucially—when we have confidence in their use of Interpol.

The warrant-based system in part 1 of the Extradition Act 2003 carries an immediate power of arrest for individuals who are wanted by EU member states. Last year, more than 60% of arrests made under part 1 of that Act by the Metropolitan police were the result of a chance encounter. Without a similar immediate power of arrest for people wanted by our key international partners, known fugitives will walk free.

Let me turn to the specific provisions in the Bill. It proposes a power for UK law enforcement officers to arrest an individual on the basis of an international arrest request—typically an Interpol alert—without a UK warrant having first been issued. The new power will apply only when the request has been issued by specified countries with which we already have effective extradition relationships and in whose use of Interpol and the alerts that they issue we have confidence. Initially, the power will apply to requests from the United States of America, Canada, Australia, New Zealand, Liechtenstein and Switzerland.

Members will appreciate that we have taken care to tune the application of the powers to strike the right balance between ease of use by our law enforcement agencies and the provision of proper safeguards to those who might be arrested. The Bill will identify a designated authority, which will have the power to create an alert—typically an Interpol notice—only when it relates to a serious extradition offence. In practice, that will mean three things: first, the offence for which the person is wanted must be an offence in one of the United Kingdom’s jurisdictions; secondly, the offence must be able to attract a period of imprisonment of at least three years; and finally, the offence must be a serious one—that is, the seriousness of the conduct constituting the offence makes the certification appropriate.

What is intended by “serious” in this context is reflected by the proportionality assessment in section 21A of the Extradition Act 2003, which similarly refers to

“the seriousness of the conduct alleged to constitute the extradition offence”.

Operational bodies are well versed in applying the test in their consideration of other cases, and they can bring to bear considerable expertise in exercising the new power.

It is not frontline police officers who will have to decide whether an Interpol alert is from a specified country or for a sufficiently serious offence. The National Crime Agency receives Interpol requests and, as the designated authority, it will identify which alerts have been issued by a specified country and for a sufficiently serious offence. Arrangements are in place to ensure that, when the agency is satisfied, the request is underpinned by a warrant for arrest or conviction in the requesting country. The NCA will then certify that those alerts, including the immediate power of arrest, will apply. Certified alerts will be clearly distinguishable on the databases available to police and Border Force officers. Following arrest, the individual must be brought before a UK judge as soon as practical.

The Bill does not change any other part of the subsequent extradition process, and all the safeguards that currently exist in extradition proceedings, as set out under part 2 of the Extradition Act, will continue to apply. The courts will have the same powers and protections they have now—including the fact that they must ensure that a person will not be extradited if it would breach their human rights, if the request is politically motivated, or if they would be at risk of facing the death penalty.

The need for the power has been expressed by the law enforcement community. Members will be interested to know that the Director of Public Prosecutions, Max Hill, QC, wrote to my right hon. Friend the Minister for Security on 2 March to explain why the power is needed; I will place his letter in the Library of the House. We will continue to strengthen our security with like-minded security partners across the globe. In future, additional countries could be specified if we have effective extradition relationships with them; if—crucially—we have confidence in their use of Interpol alerts; and if Parliament agrees to the extension of the arrangements to those countries.

Scrutiny of the Bill in the other place has served to improve it; however, two amendments were made on Third Reading that the Government have considered carefully but do not support. The first requires the Government to consult on the merits of adding, removing or varying a territory in the Bill with the devolved Administrations and relevant interested stakeholders; requires the Government to lay a statement before Parliament on the risks of adding, varying or removing a territory; and requires the Government, when a territory is to be added to the Bill, to lay a statement before the House to confirm that that territory does not abuse the Interpol system.

That amendment is not necessary. The Bill mirrors the existing provisions in the Extradition Act 2003 in respect of the designation of any additional countries, and the Government are committed to ensuring that Parliament has the ability to question and have the final say on whether any new territory should come within the scope of the legislation. Also, although extradition is a reserved matter, relevant officials are engaged in regular discussions with their counterparts in the devolved Administrations about how it should operate in practice.

The second amendment specifies that if a Government want to add territories to the legislation in future, they would not be able to add more than one country in a single statutory instrument. Similarly, we consider that that is not required and is unnecessarily burdensome. Again, the Bill already mirrors the existing provisions in the Extradition Act 2003 in respect of the designation of any additional countries. Including any additional countries in the Extradition Act is subject to a high level of parliamentary scrutiny and, similarly, there would be the opportunity for both Houses to debate and scrutinise proposals in relation to any new territory to which the provisions in this Bill might be extended. If the Government of the day were minded to make the case to Parliament that this legislation should be extended to six new countries, what specific value is added by considering six separate statutory instruments to do so? For those reasons, the Government do not feel these amendments will add further scrutiny to the legislation than is already in place, and therefore believe they should be reviewed during its passage through this House.

To conclude, I would like to reiterate the point I have made throughout my remarks. The Bill is first and foremost about protecting the UK public. Any individual arrested under the powers contained in it would be in front of a UK judge as soon as reasonably practicable, and the existing safeguards afforded to every person before the UK courts for extradition would remain as now. As a global leader in security, we want to make the best use of our overseas networks and international tools to protect our nation from those who would do it harm. The Government are committed to doing all we can to protect the public. This Bill is directed to that end, and I commend the Bill to the House.

16:56
Nick Thomas-Symonds Portrait Nick Thomas-Symonds (Torfaen) (Lab)
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I thank the Minister for his opening remarks, and I pass on my thanks to my Labour colleagues in the other place who took the Bill first, and who have worked hard to scrutinise and amend the Bill we see today. May I outline from the outset that the Opposition are not seeking to divide the House this evening on this Bill?

This extradition Bill seeks to fill a gap—the situation where police become aware of someone wanted by a non-EU territory, usually via the system of Interpol alerts, as the Minister has set out, but are unable to arrest them without a warrant from a court. The risk that the Bill seeks to address is that a wanted person may abscond or even reoffend before they can be detained. Thus the Bill seeks to give a power to UK law enforcement officers to arrest, without the need for such a warrant, for the purposes of extradition. Such a power already exists in relation to the European arrest warrant mechanism, which remains available to us until the end of the transition period at the end of this year.

At present, the Bill applies to extradition requests from only the following non-EU countries: Australia, Canada, Liechtenstein, New Zealand, Switzerland and the USA. The Government position is that there is a high level of confidence in these countries’ criminal justice systems and their use of extradition.

Max Hill, the current Director of Public Prosecutions, stated in a letter to the Security Minister that

“this Bill strikes the right balance between ensuring sufficient human rights safeguards and delivering the capabilities that the police and CPS require in order to safeguard the public…

The Bill does not…make it more or less likely someone will be extradited, but it does increase the chances that persons wanted for serious offences by some of our closest and most trusted partners will enter, with all existing safeguards, the extradition process.”

I of course note his comments very carefully.

Turning to the contents of the Bill itself, it is a very short Bill with only two clauses. Clause 1 gives effect to the schedule, which creates the new power to arrest, and clause 2 outlines the extent and commencement of the Bill. The schedule amends the Extradition Act 2003, and inserts several new sections. Once the arrest has taken place, the individual must be brought before a judge “as soon as practicable”, which is in proposed new section 74A(3).

The noble Baroness Williams of Trafford said about this in the other place:

“I have listened carefully to the concerns raised at Second Reading and in Committee and have concluded that the new power of arrest in the Bill should be consistent in this respect with existing law and practice in relation to Part 2 of the 2003 Act, and that it should therefore mirror the wording ‘as soon as practicable’. That will ensure that individuals are not detained for any longer than is strictly necessary before being put before a judge. If, for example, an individual was arrested in central London, ‘as soon as practicable’ would in all probability be considerably less than 24 hours. Our operational partners have already proved themselves very effective at producing wanted persons before courts within strict timeframes, and the three UK extradition courts have proved strict arbiters of police actions under the ‘as soon as practicable’ requirement.

Additionally, if an individual is arrested and for legitimate reasons it is not possible to get them to court within 24 hours—for example, if they are arrested in a remote part of the UK or in an area affected by an extreme event—this change in wording will make the legislation operable across all parts of the UK in all circumstances.”—[Official Report, House of Lords, 15 June 2020; Vol. 803, c. 1950.]

I am grateful for that explanation, which we will scrutinise carefully during the Bill’s passage through this House. We will be looking for assurances from the Government that “as soon as practicable” does not allow for individuals to be detained longer than is absolutely and strictly necessary.

Let me turn to the trusted partner countries listed in schedule A1 and the two amendments made in the other place, to which the Minister has already referred. The Government’s impact assessment states:

“Under the proposed new power, the police could arrest a suspect who was wanted for extradition by a trusted partner country (those who respect the international rules based system and whose Red Notices and Criminal Justice Systems the UK trusts) for a serious offence if that information has been properly certified.”

I believe that the Government’s hope is that more territories will be added to the partner list in future.

My Labour colleagues in the other place tabled an amendment, which was then made to the Bill, specifying that in allowing further territories to be added to the list, the following requirements must be met: that the Home Secretary has consulted with each devolved Administration and with non-governmental organisations; that a risk assessment has been laid before each House on the risk of the change; and that a statement has been laid before each House outlining that the territory to be added does not abuse Interpol’s red notice system. The inclusion of these safeguards is a perfectly sensible change that we will support in this House.

My Labour colleagues in the other place also supported a Cross-Bench amendment, which was then made to the Bill, which means that the Government can list only one territory to be added to the trusted partner list at a time. The Minister asked what the purpose was of having separate consideration of each territory. Quite simply, we would not want a situation to arise in which a future Government—this Government or another—listed, say, five territories, with differing standards of criminal justice systems and differing human rights records, to be offered to the House on a “take it or leave it” basis. Each territory should be considered individually on its own merits. We will seek to uphold that amendment during the Bill’s passage through this House. That is the most effective way to uphold the values of human rights around the world. I hope that the Government will listen. We will also be insisting that the Government regularly update the House on Interpol and on how effectively countries are working within the system.

What we must not do is close one gap in our security arrangements through the Bill, only then to open up another one that is much wider by not negotiating the effective security arrangement that we need with the European Union. In February the Government published their negotiating mandate. I was a little concerned by point 51, which states:

“The UK is not seeking to participate in the European Arrest Warrant as part of the future relationship. The agreement should instead provide for fast-track extradition arrangements, based on the EU’s Surrender Agreement with Norway and Iceland which came into force in 2019, but with appropriate further safeguards for individuals beyond those in the European Arrest Warrant.”

In my previous role as shadow Security Minister, I argued for the Government to give priority to the future security partnership, because the European arrest warrant has proved to be an incredibly useful tool for fighting and preventing crime. In 2018-19, 15,540 requests were made by UK-EU law enforcement using the European arrest warrant—1,412 arrests related to the EAW and 919 related to surrenders. I hope that during our consideration of the Bill the Minister will set out how the Government will provide for the replacement fast-track extradition arrangements by the end of the year, and whether this House will have the opportunity to scrutinise them in advance at the end of the transition period.

When the former Prime Minister, the right hon. Member for Maidenhead (Mrs May), sought reassurance at Prime Minister’s questions on 3 June that

“from 1 January 2021, the UK will have access to the quantity and quality of data that it currently has through Prüm, passenger name records, the European Criminal Records Information System and SIS—Schengen Information System—II”,

the current Prime Minister said:

“That depends, I am afraid, on the outcome of our negotiations”.—[Official Report, 3 June 2020; Vol. 676, c. 846.]

But that the Government’s first priority is to keep people safe is not negotiable, and should be the Prime Minister’s first duty.

The Minister for Security last week gave evidence to the Lords EU Security and Justice Sub-Committee about the future security partnership with the European Union, saying that if an agreement could not be reached there would be

“some mutual loss of capability…there are alternatives and well-rehearsed plans”.

I hope that the Minister will enlighten us as to what exactly those well-rehearsed plans are.

It is in the public interest to have appropriate extradition arrangements in place with as many countries as possible, as that reduces the number of safe spaces in the world where those who could do us harm can go to hide, escape and get beyond the reach of our law enforcement, but as we have now left the European Union and as we move out of the transition period, it is vital that our future security relationship is given priority, and the Government must listen to the concerns of EU law enforcement on this in order for our streets to be kept safe.

The role that all our frontline policing plays in this is vital. We cannot legislate our way to safety and we cannot see issues in isolation. The Government must keep to their promise of delivering 20,000 additional police officers. The cuts to policing and preventive services have had a devastating impact over the past 10 years. There has been a sharp decline in certain types of crime during the lockdown, and, sadly, a rise in others, but none of the underlying factors that drive it have been addressed and there are real concerns that crime overall will rise rapidly as lockdown restrictions are lifted. It is vital that the Government plan for that in the coming weeks and months. Labour Members take our role in helping to keep people safe very seriously, so we will be closely scrutinising the Bill as well as the Home Office’s wider work against the central and vital test of keeping the public safe.

17:07
Richard Holden Portrait Mr Richard Holden (North West Durham) (Con)
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I agree with the shadow Home Secretary that this legislation fills a gap. It is a really important, sensible, sound and sober piece of legislation that meets a need and builds on our existing tried and tested relationships with valued partners across the globe. It is limited in scope and tightly focused, and the amendments passed in the other place to ensure that people should be brought to a judge as soon as possible are incredibly sensible, understanding the geographical nature of our country and addressing clause 39 of Magna Carta—no imprisonment without due legal process.

The Bill addresses a real need to get people off the streets as quickly as possible. The most interesting part of the Bill has been that most extradition seems to revolve around chance encounters; as the Minister said, 60% of people just happen to be stopped in traffic incidents or other minor legal infractions. I am particularly glad that this legislation will enable us to get those people to speedy justice, rather than allowing them to slip through the net for something that might not have been a crime that they would otherwise be arrested for. I am also glad that it does not change any safeguards in our extradition practices; that is a fundamental underlying principle of this legislation. As the legislation only applies to people whose crimes would lead to a sentence of over three years, and is considered a serious offence in the UK, there are quite clearly sensible safeguards in place to protect people.

This piece of legislation is not before time, and I welcome the fact that speedy extensions can be made to new countries via statutory instrument with the appropriate safeguards in place, rather than having to go back to primary legislation. I support the Bill and look forward to its speedy passage through the House.

17:09
Daisy Cooper Portrait Daisy Cooper (St Albans) (LD)
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I want to address the question of whether and how the Bill could be used after the end of the Brexit transition period. For 16 years, the European arrest warrant has been Britain’s best crime-fighting tool. It is significantly faster and cheaper than its predecessor arrangements, and it may well be faster and cheaper than what might replace it. The Minister was at pains to highlight the limited scope of the Bill, but the Government themselves have suggested that the Bill could be used to extend extradition arrangements to other countries, including EU countries after transition ends and our membership of the European arrest warrant ceases. The Bill focuses only on extraditing criminals from the UK, but it is clear that this could be used as a basis for striking bilateral deals in the future.

The Government will know that Germany, Slovenia and Austria do not extradite their own citizens to other countries, with the sole exception of its being done under the European arrest warrant. What kind of arrangements do the UK Government hope to operate in those cases? If EU countries do not want to sign bilateral extradition deals, the UK could become a haven for criminals. The former Prime Minister, the right hon. Member for Maidenhead (Mrs May), herself warned in 2014 that leaving the European arrest warrant made the UK potentially a “honeypot” for all of Europe’s criminals on the run from justice. Similar concerns were raised in the House of Lords just last week in the context of this Bill.

The Government have said that they are committed to the European convention on human rights, yet they are refusing to formalise that commitment, even though that jeopardises our chances of agreeing a deal on extradition and other security issues. If the Government are genuinely committed to keeping the European convention on human rights, why not put us in a stronger negotiating position by making that commitment clear? We are four years on from the Brexit vote, with no agreed plans on what will replace our best crime-fighting tool, which we are due to lose in less than six months.

When the UK was a member of the EU, we participated in about 40 free trade agreements with more than 70 countries. We are now about to embark on renegotiating some of those from scratch. If the UK seeks to do valuable trade deals with a country that has a poor human rights record, to what extent will the Government be prepared to soften their extradition arrangements in favour of that country in order to secure that deal? What mechanisms will the UK put in place to ensure that that does not happen, so that we do not make ourselves vulnerable to the possibility of having to extradite people to countries with poor human rights records, where we do not have confidence in their justice system? I agree with the shadow Home Secretary, the hon. Member for Torfaen (Nick Thomas-Symonds), who said that the amendments passed in the House of Lords were the most effective way to uphold our commitment to human rights, and the Liberal Democrats support them.

Steve Baker Portrait Mr Steve Baker (Wycombe) (Con)
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I have listened carefully to what the hon. Lady has said, and I have to tell her that I do not have much confidence in the justice system in Romania, bearing in mind the Adamescu case. Surely she must appreciate that within the EU there are severe shortcomings with the European arrest warrant scheme.

Daisy Cooper Portrait Daisy Cooper
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That is one example that backs up the justification from the shadow Home Secretary earlier about why we should be dealing with individual applications from individual countries, so I see the hon. Member’s point as an argument in favour of the amendments that the Lords brought forward last week.

But we are discussing this Bill, which on paper is very limited in scope but which we know could be used more widely at the start of next year to create extradition arrangements with EU countries if those other fast-track deals are not done. Given the sombre statement that we have just had from the Home Secretary about a suspected terrorist act on our own soil, and the importance of ensuring justice for all those affected by that incident, it seems barely believable that we are now discussing an incredibly limited Bill that might, albeit not by design, become a poor and incomplete replacement for the European arrest warrant, our best crime-fighting tool, which we might lose in just six months, putting the UK at risk of becoming a “honeypot” for Europe’s criminals.

00:05
Jim Shannon Portrait Jim Shannon (Strangford) (DUP)
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I have spoken on the issue of extradition on a number of occasions in the House, as I seek to ensure that we have in place understandings to allow the extradition of terrorists to our shores, as well as reciprocal arrangements. I commend the Minister and our Government for presenting the Bill—well done to him for introducing it. He outlined an example of something that will not be able to happen again, and that is why it is good to have this extradition legislation in place.

I am grateful to the Lords for their amendments that introduce additional safeguards to the process of adding further territories in future. I have no doubt that there will be a need to do just that. This accurately reflects the concern about the possibility of countries with poor human rights records abusing the extradition system. We simply cannot allow that to take place, and the hon. Member for Wycombe (Mr Baker) outlined that well in his intervention.

It is clear that these initial countries—Australia, Canada, Lichtenstein, New Zealand, Switzerland and the USA, along with some other EU countries—will not abuse human rights, and we can be content to allow them to be included. However, the Lords amendments look to the future to ensure that, for example, while we might have trading deals with China, we would not be comfortable extraditing political prisoners there. The same can be said for many countries, and for many reasons, such as freedom of religion or belief. I chair the all-party group on international freedom of religion or belief, and I think of China’s human rights abuses of many people—of Christians, in particular, and of the Uyghur Muslims and Falun Gong. It is really a despicable country when it comes to human rights. This is an issue of grave concern to me, and we must ensure that we offer protections for those who face losing their life simply because they chose to follow Christ.

I further agree with the terms for the Brexit negotiations and I welcome a withdrawal based largely on the EAW, but including further grounds on which extradition can be refused. These include the right for parties to refuse to surrender their nationals, as well as a requirement of double criminality. The act for which the individual is sought must constitute an offence in both jurisdictions, but the parties can waive this requirement on a reciprocal basis for certain serious offences, and that has to be good news. Unlike the EAW, this waiver will be optional.

The Bill also provides for parties to refuse on a reciprocal basis to surrender individuals sought for political offences, with an exception of certain specified terrorist offences. I agree on all these matters. In Northern Ireland, we saw many years of terrorists fleeing from their crime and finding refuge in the Republic of Ireland, only to return to carry out further crimes. I have spoken in the House before about my cousin, Kenneth Smyth, who was a sergeant in the Ulster Defence Regiment, and his comrade, Daniel McCormick. Both were murdered on 10 December 1971. Those responsible escaped across the border and nobody ever made them accountable for their crimes. It is absolutely despicable and wrong. They may not have been made accountable in this world, but they will certainly be accountable in the next, and I look forward to that. Acts of terrorism cannot be excluded from any extradition policy. Indeed, they must be the foundation for it and that is why I look to Government for leadership and commitment, which clearly will be there.

I welcome the shadow Minister, the hon. Member for St Helens North (Conor McGinn), to his place. He and I have been good friends over the last few years and I am very pleased to see him there. Extradition is an essential part of any civilised country, and I believe that the foundations contained in the Bill allow effective extradition in all good conscience. I welcome the Bill.

17:18
Conor McGinn Portrait Conor McGinn (St Helens North) (Lab)
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It is a pleasure to close this debate for the Opposition with you in the Chair, Madam Deputy Speaker, and to follow my good friend, the hon. Member for Strangford (Jim Shannon).

This has been an insightful and productive—albeit brief—exchange on a Bill that is short and technical, but which contains important new provisions on very important matters. As the shadow Home Secretary said, the Opposition are committed to keeping the British people safe, and that includes making sure that serious criminals who make their way into our country or commit offences in other countries cannot rest easy, freely walk our streets or evade the law’s full force, and we fully endorse the UK working within an international framework to ensure that. That is why we broadly support the Bill and will not seek to divide the House this evening. We hope to work genuinely with the Government and Members from all parts of the House to improve the Bill as it progresses.

As has been said, the Bill aims to fill a gap that currently exists for UK law enforcement and allows a police constable, customs officer or service policeman to arrest without warrant a suspect wanted for serious offences in certain countries upon the basis of a certified extradition request, typically an Interpol red alert. As the hon. Member for North West Durham (Mr Holden) said, many encounters with such suspects take place by chance or due to other infractions, so it is good that the power will exist to deal immediately with other more serious issues on the basis of an extradition request. As such, the Bill will enable a similar process to that currently in place with the European arrest warrant for countries external to that mechanism, but with which the United Kingdom has formal extradition arrangements.

We understand the need for this change to expedite the proceedings through which suspects enter the criminal justice system, so we broadly support the Bill’s ambitions. It is of critical importance that we ensure that serious criminals—let us not forget that in some cases, they are wanted abroad for the most heinous crimes—are arrested and swiftly brought to justice before the opportunity arises for them to reoffend or to abscond. In carrying out our overriding priority to keep the British public safe, we fully accept that, in a world where criminals increasingly respect no national borders or boundaries, we must work to achieve that in collaboration with our international partners and their criminal justice systems.

As the Government take the legislation forward, we will press them to ensure that reasonable and proportionate safeguards, such as those won in the other place, are addressed. While we agree with legislating on the basis of those currently specified as trusted partners in the Bill, we should not and must not leave the door open for any future addition of countries that shamefully fail to uphold human rights and liberties or that frequently abuse the Interpol red alert system for nefarious ends by targeting political opponents, journalists, peaceful protesters, refugees, human rights defenders or people on the basis, as the hon. Member for Strangford said, of their religious faith.

I welcome the specific mention by the Minister of the role of the National Crime Agency in helping to adjudicate. We believe it requires a thorough process of consultation and assessment before a territory is added, varied or removed. Issues such as the use of the death penalty should be a factor in the decisions we make. Consultation —first with the devolved Administrations, who can bring valuable expertise and so often have powers relating to justice and, secondly, with relevant non-governmental organisations and experts—is at the heart of the amendment made in the other place. There should then be an assessment made on the risks of the proposed changes and, where the proposal is to add a territory, on the basis of evidence and judgment.

We also believe it sensible to ensure that key criteria are met for grouping countries, where more than one country is specified at any one time, allowing for proper parliamentary oversight of any territory taken on the merit of its respective case. It is for the Government to provide those assurances, otherwise we see no other way to add countries but individually.

We believe those to be reasonable, proportionate and practical suggestions that will improve the quality of the Bill, as well as any prospective changes to it in the future. That is why we urge the Government to engage with us on the changes as the Bill proceeds.

There are, however, several critical points that the Bill does not address, including the Government’s woeful lack of progress on future security and criminal justice arrangements with the European Union. Any loss of capability, regardless of whether it is mutual, would have a disastrous implication for UK law enforcement’s ability to identify and question suspected criminals and thus keep our country and its citizens safe.

Specifically on extradition, for example, we know that the UK and EU falling back on to prior arrangements —specifically the 1957 Council of Europe convention on extradition—would add delay, complexity and difficulty to proceedings.

That is not my assessment but that of the previous Conservative Government and the right hon. Member for Maidenhead (Mrs May), the former Prime Minister and Home Secretary. Time and time again, the Government say they are optimistic that a full and comprehensive arrangement can be agreed before the transition period ends on 31 December, but frankly time is running out. We and the men and women who work every day in our law enforcement agencies need to see progress on this. Although I entirely accept, too, that the Bill relates solely to powers conferred on UK law enforcement, we need to understand what exactly the Government are doing to ensure adequate reciprocity in future extradition arrangements, particularly if we lose the powers we currently enjoy under the European arrest warrant and other such mechanisms—a point made forcefully by the hon. Member for St Albans (Daisy Cooper).

Legal experts with specialisms in extradition have been clear that the loss of the European arrest warrant is of far greater concern than the current capability gap addressed by the Bill. Although the measures in the Bill are welcome, the countries it identifies represent only a tiny proportion of those subject to a European arrest warrant request in recent years. The assumption is that the provisions in the Bill could be applied to EU countries in due course, but the Government seem a little confused on that point. In the explanatory notes to the Bill they suggest that they would do precisely that through statutory instruments, but the Minister in the other place said the Bill was not an attempt to replicate the capability of the European arrest warrant. Will the Solicitor General clarify what exactly the Government’s approach to this is? It simply cannot be the case for our country going forward that we are unable to bring to justice criminals wanted for serious offences here in the UK because they are elsewhere, while the reverse is perfectly possible. That imbalance has occurred even in our relationship with our closest ally, the United States of America.

The Government must reassure the public that their priority is protecting British interests and British citizens, and upholding the international rules-based order in this process. We must do all we can to ensure that robust mechanisms are in place so that suspects wanted here in the UK who have made their way abroad can face justice. That has been articulated most ably in recent months by the family of Harry Dunn. I reiterate our support for them and our call for the Government to engage fully with them and provide the answers they are demanding.

In conclusion, we fully accept the need for comprehensive legislation to address the gap that currently exists for UK law enforcement prior to extradition proceedings. In a constructive spirit, the Opposition will work with the Government on the Bill, seeking to fully scrutinise it in Committee and ensure that reasonable protections remain in place. I am sure the Solicitor General will agree that it is important that we get this right, and I know that Labour Members, and Members across the House, will do our best to assist the Government in ensuring that we do.

17:27
Michael Ellis Portrait The Solicitor General (Michael Ellis)
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I am hopeful that all Members can unite in a common commitment to protect the British public, and I am pleased to have the shadow Ministers, Labour Members and, indeed, other Opposition Members’ support in that.

This is about helping UK policing. I am sure we can all recognise without hesitation the increasingly global society in which we live, and we are sadly all well aware of the threats we face from cross-border criminality. I am confident that this legislation will make the United Kingdom safer. The Bill will ensure that where a person is wanted for a serious offence by a trusted country—I repeat, because those are operative terms: a serious offence by a trusted country—our police have the power, then and there, to get them off our streets, into the court system and before a judge here in the United Kingdom.

Steve Baker Portrait Mr Steve Baker
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I am sorry that I missed the opening speech. Will my right hon. and learned Friend assure me that, as a country outside the European Union, we will not repeat the error forced on us as a member state of thinking that the integrity of the justice systems in all EU member state countries are of an equally high standard? We might, for example, recognise that the Adamescu case in Romania, which I mentioned earlier to the hon. Member for St Albans (Daisy Cooper), demonstrates that some countries are not fit to be included in the list.

Michael Ellis Portrait The Solicitor General
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As my hon. Friend knows very well, changed arrangements now with the European Union allow this country to conduct itself with fresh ideas and fresh considerations. But it is important to recognise that the Bill applies to a limited number of countries, with which we have an extremely good relationship, and in which we have considerable trust. Indeed we have considerable experience of their processes and judicial systems.

I just want to touch on a couple of remarks made in this brief debate by hon. Members from across the House. My hon. Friend the Member for North West Durham (Mr Holden) talked about the Bill being not before time. He is right to say that. He supports the mechanisms, including the statutory instrument mechanisms, which will allow an ease of process for the Bill going forward.

The hon. Member for St Albans (Daisy Cooper) talked about the Bill not being about the European arrest warrant and she is right. This is a matter of supporting our police here in the United Kingdom. Clearly, we are involved in negotiations, but nothing is more important, as she will recognise, than the safety of our people. The Bill is limited in scope, but it is important.

The hon. Member for Strangford (Jim Shannon), whose interventions in this House are always very welcome, mentioned, rightly, that the countries in the Bill are trusted partners. I am very pleased that he welcomes it.

The shadow Minister, the hon. Member for St Helens North (Conor McGinn), spoke in similar terms. It is important that on these measures, especially in times like these, we can speak as one about the security of the people of this country and recognise that the legislation does not change any other part of the subsequent extradition process. All the safeguards that currently exist in extradition proceedings in this country, set out under part 2 of the Extradition Act 2003, will continue to apply. The Bill does not do anything to change that. The courts will have the same powers and protections as they do now, including the fact that they must ensure that a person will not be extradited if doing so would breach their human rights in any way; if the request is politically motivated; or if they would risk facing the penalty of death. Our courts can be trusted—the examples are legion—to make sure that the provisions are adhered to.

The Bill seeks to deal with a very simple issue. Currently, as the Under-Secretary of State for the Home Department, my hon. Friend the Member for Torbay (Kevin Foster) mentioned in opening the debate, a potentially dangerous wanted individual who is known to the police can potentially remain at liberty on the streets of this country, able to offend, able to reoffend and able to abscond. Examples exist where that has happened. The new power will see people who are wanted by a trusted country for a serious crime, and who may be a danger to the public, off our streets as soon as they are encountered.

Bob Stewart Portrait Bob Stewart (Beckenham) (Con)
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In short, it will extradite them more quickly.

Michael Ellis Portrait The Solicitor General
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It will not change the process of extradition, but it will mean that police officers will potentially be able to arrest more quickly because they will be able to act when they have cause to do so.

In conclusion—

Toby Perkins Portrait Mr Toby Perkins (Chesterfield) (Lab)
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I am grateful to the Solicitor General for giving way. I am also grateful to him for recognising the position of my colleagues on the Labour Front Bench. He is absolutely right to say that we are united in this House. There is no difference in this House when it comes to the safety of the British people and the extradition of those who need to be extradited. We may disagree on the best way to achieve that, but we are united in that aim.

Michael Ellis Portrait The Solicitor General
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I am very pleased to hear the hon. Gentleman say that and it does not come as any surprise to me.

The Government are steadfast in their determination to ensure that officers, upon whom we rely to keep us safe, have the powers they need to do just that. The Bill will provide a small, but important part of that armoury. I commend it to the House.

Question put and agreed to.

Bill accordingly read a Second time.

Extradition (Provisional Arrest) BILL [Lords] (Programme)

Motion made, and Question put forthwith (Standing Order No. 83A(7)),

That the following provisions shall apply to the Extradition (Provisional Arrest) Bill [Lords]:

Committal

The Bill shall be committed to a Committee of the whole House.

Proceedings in Committee, on Consideration and up to and including Third Reading

(2) Proceedings in Committee, any proceedings on Consideration and any proceedings in legislative grand committee shall (so far as not previously concluded) be brought to a conclusion one hour before the moment of interruption on the day on which proceedings in Committee are commenced.

(3) Proceedings on Third Reading shall (so far as not previously concluded) be brought to a conclusion at the moment of interruption on that day.

(4) Standing Order No. 83B (Programming committees) shall not apply to proceedings in Committee of the whole House, to any proceedings on Consideration or to other proceedings up to and including Third Reading.

Other proceedings

(5) Any other proceedings on the Bill may be programmed.—(Tom Pursglove.)

Question agreed to.

Environment Bill (Programme) (No. 3)

Motion made, and Question put forthwith (Standing Order No. 83A(7)),

That the Order of 26 February 2020 (Environment Bill: Programme), as varied by the Order of 4 May 2020 (Environment Bill: Programme (No. 2)), be further varied as follows:

In paragraph (2) of the Order (conclusion of proceedings in Public Bill Committee), for “Thursday 25 June” substitute “Tuesday 29 September”.—(Tom Pursglove.)

Question agreed to.

Extradition (Provisional Arrest) Bill [Lords]

Report stage & Committee: 1st sitting & Committee: 1st sitting: House of Commons & Report stage: House of Commons & Committee stage
Tuesday 8th September 2020

(1 year, 11 months ago)

Commons Chamber
Read Full debate Report stage Page Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: Committee of the whole House Amendments as at 8 September 2020 - (8 Sep 2020)
Considered in Committee (Programme Order, 22 June)
[Mr Nigel Evans in the Chair]
Nigel Evans Portrait The Second Deputy Chairman of Ways and Means (Mr Nigel Evans)
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Before I ask the Clerk to read the title of the Bill, I should explain that, in these exceptional circumstances, although the Chair of the Committee would normally sit in the Clerk’s Chair during Committee state, in order to comply with social distancing requirements I will remain in the Speaker’s Chair although I will be carrying out the role not of Deputy Speaker but of Chairman of the Committee. We should be addressed as Chairs of the Committee rather than as Deputy Speakers.

Clause 1

Power of Arrest for Extradition Purposes

15:06
Iain Duncan Smith Portrait Sir Iain Duncan Smith (Chingford and Woodford Green) (Con)
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I beg to move amendment 1, in page 1, line 6, at end insert—

‘( ) Nothing in this Act changes the effect of any rule of law or any enactment in force before the date on which this Act is passed in relation to extradition requests by or on behalf of—

(a) the People’s Republic of China, or

(b) the Hong Kong Special Administrative Region of the People’s Republic of China.”

This amendment is intended to ensure the provisional arrest arrangements proposed under this Bill do not apply to extradition requests from China and/or Hong Kong.

Nigel Evans Portrait The Second Deputy Chairman of Ways and Means
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With this it will be convenient to discuss the following:

Amendment 2, in page 1, line 6, at end insert—

‘( ) The power to make further amendments under this Act may not be used to make any provision in relation to—

(a) the People’s Republic of China, or

(b) the Hong Kong Special Administrative Region of the People’s Republic of China.”

This amendment would prevent the power to make amendments under this Bill being used in relation to China and/or Hong Kong.

Amendment 7, in clause 1, page 1, line 6, at end insert—

‘( ) The power to make further amendments under this Act may not be used to make any provision in relation to the United States of America.”

This amendment would prevent the power to make amendments under this Bill being used in relation to the USA.

Clause stand part.

Amendment 3, in clause 2, page 1, line 13, at end insert “except in relation to extradition requests by or on behalf of—

(a) the People’s Republic of China, or

(b) the Hong Kong Special Administrative Region of the People’s Republic of China.”

This amendment would preclude the exercise in respect of China and /or Hong Kong of the powers under the Extradition Act 2003 in relation to British overseas territories, the Channel Islands or the Isle of Man, in relation to any changes made by this Bill.

Amendment 8, page 1, line 13, at end insert “except in relation to extradition requests by or on behalf of the United States of America.”

This amendment would preclude the exercise in respect of the USA of the powers under the Extradition Act 2003 in relation to British overseas territories, the Channel Islands or the Isle of Man, in relation to any changes made by this Bill.

Government amendment 11.<