Tuesday 4th February 2020
(4 years, 9 months ago)
Lords ChamberRead Hansard Text Read Debate Ministerial Extracts
The Minister of State, Home Office (Baroness Williams of Trafford) (Con)
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.
Baroness Hamwee (LD)
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.
Lord Judge (CB)
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?
Lord King of Bridgwater (Con)
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.
Lord Brown of Eaton-under-Heywood (CB)
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.
Lord Anderson of Ipswich (CB)
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 (Con)
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.
Baroness Ludford (LD)
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?
Lord Hannay of Chiswick (CB)
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
My Lords, I can confirm that the new clocks are now working, and those are the ones we will use.
Lord Robathan (Con)
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.
Baroness Clark of Calton (Non-Afl)
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.
Lord Hogan-Howe (CB)
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
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
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.
Lord Inglewood (Non-Afl)
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.
Baroness Jones of Moulsecoomb (GP)
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.
Lord Ricketts (CB)
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.
Lord Paddick (LD)
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.
Lord Kennedy of Southwark (Lab Co-op)
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.
Baroness Williams of Trafford
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
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
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
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
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
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
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
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
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.