Monday 15th June 2020
(4 years, 6 months ago)
Lords ChamberExtradition (Provisional Arrest) Act 2020 View all Extradition (Provisional Arrest) Act 2020 Debates Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: HL Bill 106-TR-I Marshalled list for Third Reading (PDF) - (10 Jun 2020)
16:43 - Division conducted remotely on Amendment 2 - Ayes: 275 / Noes: 256 - Amendment 2 agreed.
17:37 - Division conducted remotely on Amendment 3 - Ayes: 314 / Noes: 230 - Amendment 3 agreed.
The Deputy Speaker (Lord McNicol of West Kilbride) (Lab)
My Lords, I shall begin by setting out how these proceedings will work. A participants’ list for today’s proceedings has been published and is in my brief, which Members should have received. I also have lists of Members who have put their names to the amendments, or expressed an interest in speaking, on each group. I will call Members to speak in the order listed. Their microphones will be muted by the broadcasters except when I call them to speak. Interventions during speeches, or at the end of speeches using the words “before the noble Lord sits down”, are not permitted, and uncalled speakers will not be heard.
Members other than the mover of an amendment or the Minister may speak only once on each group. Short questions for elucidation after the Minister’s response are permitted but discouraged. A Member wishing to ask such a question, including Members in the Chamber, must email the clerk.
Debate will take place on the lead amendment in each group only. The groupings are binding and it will not be possible to degroup an amendment for separate debate. A Member intending to press to a Division an amendment that has already debated should give notice of that in the debate. Leave should be given to withdraw amendments. When putting the Question, I will collect voices in the Chamber only. If a Member taking part remotely intends to trigger a Division, they should make that clear when speaking on the group. We will now begin.
The Schedule: Power of Arrest for Extradition Purposes
Amendment 1
“(3) The person must be brought as soon as practicable before the appropriate judge (see further, section 74D).”Member’s explanatory statement
This amendment requires a person to be brought before the appropriate judge as soon as practicable after arrest. The Bill currently requires this to happen within 24 hours. The Minister’s other four amendments are consequential on this amendment.
The Minister of State, Home Office (Baroness Williams of Trafford) (Con)
My Lords, before I begin my speech on this amendment, I would like to note that this is a historic moment. This will be the first opportunity, in history, to vote remotely in the House of Lords.
The Government have tabled Amendment 1 regarding the 24-hour time limit for the arrested person to appear before a judge. Amendments 4 to 7 are consequential upon that main amendment. These amendments seek to replace the 24-hour time limit with “as soon as practicable”, which reflects current practice under Parts 1 and 2 of the Extradition Act 2003.
At Second Reading, in Committee and on Report, there was considered and stimulating debate in this House on the requirement under the Bill regarding the time limit within which a person arrested under this power should be put before a court. As noble Lords know, the courts to which all extradition suspects must be taken, whether arrested under Part 1 or Part 2 of the Extradition Act 2003 as currently written or as amended by the Bill, are Westminster Magistrates’ Court for England and Wales, Edinburgh Sheriff Court for Scotland, and Belfast magistrates’ court for Northern Ireland. Currently, a person arrested under the Act must generally be brought before the appropriate judge “as soon as practicable” following arrest. Under the new power of provisional arrest in this Bill, if this amendment is not made, that must occur “within 24 hours”.
The Bill was originally drafted in that way to strike a balance between getting arrested individuals before a court as quickly as possible and allowing the police sufficient time to gather supporting information. This mirrored, in a more stringent form, the approach to provisional arrest in Part 1 of the Extradition Act 2003, which requires an individual to be brought before the appropriate judge within 48 hours of arrest. However, I am conscious that this drafting departs from the general requirement that is currently imposed on the police after they make arrests under the other existing powers in the Extradition Act 2003.
I have listened carefully to the concerns raised at Second Reading and in Committee and have concluded that the new power of arrest in the Bill should be consistent in this respect with existing law and practice in relation to Part 2 of the 2003 Act, and that it should therefore mirror the wording “as soon as practicable”. That will ensure that individuals are not detained for any longer than is strictly necessary before being put before a judge. If, for example, an individual was arrested in central London, “as soon as practicable” would in all probability be considerably less than 24 hours. Our operational partners have already proved themselves very effective at producing wanted persons before courts within strict timeframes, and the three UK extradition courts have proved strict arbiters of police actions under the “as soon as practicable” requirement.
Additionally, if an individual is arrested and for legitimate reasons it is not possible to get them to court within 24 hours—for example, if they are arrested in a remote part of the UK or in an area affected by an extreme event—this change in wording will make the legislation operable across all parts of the UK in all circumstances.
Accordingly, I am introducing a government amendment to that effect to address the concerns expressed about this important issue both by noble Lords and by operational law enforcement partners. Although the language does not explicitly rule out production on weekends or bank holidays, these factors will of course be relevant to the practicability of bringing an individual before the appropriate judge. If public holidays or court opening times were to change in the future, the legislation would not need to be amended to take account of that. It remains the Government’s intention that the arrested person will be brought before a judge sitting in court, so court sitting times, which are determined by the judiciary, will be relevant to the concept of “as soon as practicable”.
There might of course be a multitude of other factors, such as geographical distance, natural disasters or illness of the arrested individual, that affect, in the individual case, the practicability of bringing an individual before a judge. Therefore, we continue to think that it is right that the judiciary are the arbiters, in the individual case, of whether this test of “as soon as practicable” is met, and they will be able to do so in determining any application for discharge under Section 74D(10).
I previously gave an undertaking to formally confirm that the Government intended to move this amendment today. It has the same overall purpose and effect as the one that the noble Baroness, Lady Hamwee, tabled on Report. I hope that noble Lords will be able to join me supporting this amendment. I beg to move.
Baroness Hamwee (LD) [V]
My Lords, I am grateful to the Minister for pursuing this issue. We raised it at the early stages of the Bill, and I am grateful to my noble friend Lady Ludford for continuing the argument on Report. I should also acknowledge today the critique of the Bill at Second Reading by the noble and learned Baroness, Lady Clark of Calton—I know that she discussed it subsequently with the Minister. She said then:
“There is nothing provisional about the consequences of being arrested.”—[Official Report, 4/2/20; col. 1743.]
Her remarks prompted me to think about the provisions of new Section 74A, taking account of weekends, bank holidays and so on. It was that—the extension from 24 hours to over a weekend or, in the case of Easter, even four days —which caused me to pursue the matter in Committee. That Committee marked the first outing of the noble Lord, Lord Parkinson of Whitley Bay; I hope he feels some sense of achievement for his part in this. He explained that it was the Government’s intention to replicate the existing provisions of the Extradition Act. That, of course, drove me to the Act and to this amendment; the Minister, as she said, agreed to bring the matter forward at this stage.
I note that, in the papers for today’s proceedings, the Minister’s explanatory statement refers to the 24-hour period, which, if it had stood alone without the possibility of extension, could have been acceptable, but I agree with her that it is right to have consistency throughout the Act. I confess to a bit of continuing anxiety, and not just about consistency within the Act. I have to say I was fairly confused when I came to look at the Act; it is a mighty beast. The Minister explained on Report, and I mention it today, that the original drafting was to achieve a balance between getting the arrested individual before a judge as quickly as possible and allowing the police sufficient time to gather supporting information. It is the latter that concerns me. The police must have the information to make the arrest, so what more is needed? Can the Minister expand on that when she winds up?
I am also slightly anxious because, inevitably, a fixed time period is clearer—it is much more easily enforceable; but that is a concern about the 2003 Act more broadly. I was reassured at earlier stages by the two very eminent noble and learned Lords, with their experience as two of the most senior members of the judiciary, who spoke about the 24/7 availability of judges. What is practicable now—as the Minister has explained in talking about geography and so on—is much more than a few years ago. I am very happy from our Benches and virtual Benches to support the amendment.
Lord Kennedy of Southwark (Lab Co-op) [V]
My Lords, I thank the noble Baroness, Lady Williams of Trafford, for explaining the purpose of the amendments in this group, all of which are in her name. I am content with the explanation she has given, which is clear; the intent is sensible, practical, proportionate and, as noble Lords have heard, consistent with wording used in similar relevant legislation. On that basis, I am happy to support the amendments today.
Lord Foulkes of Cumnock (Lab Co-op) [V]
My Lords, I have a question to which others may know the answer; forgive me if it is widely known. The Minister said in relation to Scotland that the court applicable was Edinburgh Sheriff Court. Can she let us know why Edinburgh Sheriff Court in particular was chosen, and why only Edinburgh Sheriff Court? Scotland is a very large country stretching from the border with England right up to Shetland. I wondered whether there might not be some practical problems if only Edinburgh Sheriff Court was applicable. So, what was the criterion and why only Edinburgh?
Baroness Williams of Trafford
My Lords, it has been Edinburgh Sheriff Court since the Extradition Act 2003 has been in place.
The Deputy Speaker
My Lords, as no other noble Lords have requested to come in on this debate, I shall now put the question on Amendment 1.
The Deputy Speaker
We now come to the group consisting of Amendment 2. I remind noble Lords that Members other than the mover and the Minister may speak only once, and that short questions of elucidation are discouraged. Anyone wishing to press this amendment to Division should make that clear in the debate.
Amendment 2
Lord Kennedy of Southwark
“( ) The Secretary of State may only make regulations under subsection (7) if the following conditions are first met—(a) the Secretary of State has consulted on the merits of the change with—(i) each devolved administration, and(ii) non-governmental organisations which, in the opinion of the Secretary of State, have a relevant interest,(b) the Secretary of State has laid an assessment before each House of Parliament on the risks of the change, and(c) if the regulations are to add a reference to a territory to Schedule A1, the Secretary of State has laid a statement before each House of Parliament confirming that the territory does not abuse the Interpol Red Notices system.”Member’s explanatory statement
This amendment would create further requirements before adding, varying or removing a reference to a territory.
Lord Kennedy of Southwark [V]
My Lords, Amendment 2 in my name would insert the new subsection as detailed in the Marshalled List. The amendment requires certain conditions to have been met before the Secretary of State can make a regulation under new subsection (7) to either add, remove or vary a reference to a territory. This proposal is both reasonable and proportionate and should present no problem to the Government. It should be accepted willingly today.
It is important to note that nothing in my amendment stops the Government doing what they want to do. It goes through a process; that is all—a process of consultation and assessment. Where the proposal is to add a territory, it requires a statement confirming that the territory does not abuse the Interpol red notice system. The first part of the amendment places a requirement on the Secretary of State to consult on the merits of the change. There are two groups in the consultation proposed here: first, the devolved institutions, which can be a source of valuable information relevant to changes being proposed, and, secondly, non-governmental organisations which in the opinion of the Secretary of State have a relevant interest. Discretion is given to the Secretary of State here but, equally, the Secretary of State has to act reasonably. They will not be able to get out of consulting appropriate organisations; they will get themselves into all sorts of difficulties if they attempt to do otherwise.
My amendment requires that, after the consultation, an assessment be laid before Parliament of the risks of the proposed changes and, finally, that where the proposal is to add at a territory, the territory does not abuse the Interpol red notice system. There is considerable evidence that some jurisdictions abuse that system. I hope that we would not want to deal with such countries on future extradition agreements. I know that a number of my noble friends will shortly speak specifically about abuse of the Interpol red notice system. I beg to move.
Baroness Kennedy of Cradley (Lab) [V]
My Lords, I support Amendment 2 in the name of my noble friend Lord Kennedy of Southwark. The amendment would put in place a process to properly consider and then stop extraditions to countries that abuse human rights. It would require consultation, a risk assessment and a statement by the Home Secretary before any new or amended treaty was agreed.
Clearly there are times when treaties need to be, or indeed should be, amended. For example, in its current state the US/UK extradition treaty does not offer confidence to British citizens that they will not be surrendered to the US, when the British justice system is both qualified and able to try relevant cases here without prejudice. I hope the Minister will agree that this is an area in need of urgent reform. When the Government make reforms of this nature, as I hope they will in this case, consultation and parliamentary scrutiny, as outlined in the amendment, are therefore critical.
The amendment would also ensure consultation with the devolved Administrations. There is a strong case for this as there will be certain powers in these Administrations relating to justice, policing and prisons that need to be considered.
Respect for human rights must be a priority consideration when changing or entering into a new treaty. The NGOs have direct experience of the countries concerned. They understand better any issues that arise from individual territories, especially regarding human rights records. They need to be consulted, which is what the amendment seeks to do. It would open up the decision-making process. Being transparent about why decisions were taken about individual countries, and allowing proper parliamentary scrutiny of those decisions, will build trust and confidence in our extradition system.
I turn to red notices. Time and again, international organisations continue to report the widespread abuse by some states of red notices for political ends—for example, to persecute human rights activists, refugees or critical journalists. This violates international standards and human rights. The Government should therefore be mindful of those countries that abuse red notices. Through the guarantees given in the amendment, the Government would signal that they recognised that red notices from countries that abuse the system have no legal value, and would show that, as a country and as a Government, we will help to protect those individuals targeted by such countries that abuse the system. I hope the Government will agree to support the amendment.
Lord Foulkes of Cumnock [V]
I am very happy to support this excellent amendment moved by my noble friend Lord Kennedy. I hope that if the Government do not accept it, he will press it to a Division.
The first aspect of the amendment is, as my noble friend Lady Kennedy has just spoken about, consultation with the devolved Administrations, an issue that I will come to in a moment, but also, rightly, with NGOs, as my friend also said. I had a lot of dealings with human rights NGOs and those involved with press freedom when I was general rapporteur on media freedom and the safety of journalists for the Council of Europe, and I found them very helpful for knowing up-to-date information about each country that we dealt with.
As far as the devolved Administrations are concerned, there is—with no disrespect to the noble Baroness, Lady Williams—an awful lot of talk of consultation but very little real, meaningful consultation with the devolved authorities. For example, on Covid recently, the Prime Minister talks about consulting but for a month now he has not chaired a meeting of COBRA in which the First Ministers have been involved. That is not the consultation that could be taking place, so we have to write it into legislation. The Joint Ministerial Councils, which ought to be working, are not working effectively, while the European arrest warrant was abandoned by this Government in spite of objections from the Scottish Government and other devolved Administrations. Consultation must be written into this.
The second reason I strongly support my noble friend Lord Kennedy’s amendment relates to the red notice system. I want to mention the terribly tragic death of Harry Dunn at the age of 19, with his whole adult life ahead of him, in a hit-and-run accident. It was really terrible. The driver of the car, Anne Sacoolas, an American citizen, the wife of a diplomat, escaped justice by fleeing from the UK back to America. That was disgraceful. Her diplomatic immunity itself was very doubtful. Can the Minister confirm that an Interpol red notice has been issued in relation to Ms Sacoolas? I think the Prime Minister has said that she should return, but what are the Government doing to insist on that and take action?
For those two reasons, I strongly support the amendment. As I say, I hope my noble friend will take real courage in his hands and call a Division on this matter if the Government refuse to accept his very strong and persuasive arguments.
Baroness Ludford (LD) [V]
My Lords, in Committee on 5 March the Minister said:
“The Government have no intention of specifying countries likely to abuse the system to political ends”—
that is, the Interpol system. Obviously, that was an important pledge, but it does not conflict with the need for Amendment 2 in the name of the noble Lord, Lord Kennedy, with an assessment of the risks and a statement confirming that the territory does not abuse Interpol red notices.
I also agree that devolved Governments and NGOs should be consulted. Fair Trials International, of which I have been a patron for two decades, has long campaigned to ensure that Interpol does better at filtering out abuses of its system before information is sent out to police forces across the globe. When abusive “wanted person” alerts slip through the net, victims should have redress through an open and impartial process. There is no court in which to pursue an appeal. Fair Trials has highlighted shocking cases of injustice and the devastating impact that these alerts can have on those affected. Bill Browder has said that your life as a human being is over.
Fair Trials has helped dozens of people who have been subject to abusive Interpol alerts from countries including Russia, Belarus, Turkey, Venezuela, Egypt, Sri Lanka and Indonesia. FTI has also worked constructively with Interpol to develop realistic reform proposals. It held a positive meeting with Interpol’s secretary-general, Jürgen Stock, to discuss reforming the red notice system.
In the context of mounting political pressure for reform, changes were introduced in 2015, when Interpol announced that it had taken the first steps towards implementing reforms, including the introduction of a new refugee policy. Then, in 2017, Interpol introduced a number of further reforms, including greater independence, influence and expertise of the supervisory authority, the CCF; better transparency and respect for equality of arms; reasoned and public decisions on individual cases; and a working group to review red notice operations.
The Minister said, again on 5 March, that
“the UK is currently working with Interpol to ensure that its rules are robust, effective and complied with. The former chief constable of Essex was recently made the executive director of policing services for Interpol, the most senior operational role in that organisation. A UK government lawyer has also been seconded to the Interpol legal service to work with it to ensure that Interpol rules are properly robust and adhered to by Interpol member states.”—[Official Report, 5/3/20; col. 364GC.]
Can she tell us any more about what further changes and reforms have been introduced since 2017 to prevent abuse? Although that is essential, I still hope that she can tell us that she will accept Amendment 2.
Lord Adonis (Lab)
My Lords, I cannot imagine that the Minister is going to tell us anything other than that the Government would consult the appropriate authorities before exercising the power under paragraph 7 of the Schedule, so the obvious question is: if the Government are committed to consulting, why will they not put it in the Bill, given the extent of the concerns that have been raised?
Lord Paddick (LD) [V]
My Lords, I too support the amendment of the noble Lord, Lord Kennedy of Southwark, but with one reservation about where it can be strengthened in relation to NGOs. The noble Lord, Lord Foulkes of Cumnock, has just spoken convincingly about their importance. In proposed new sub-paragraph (a), the amendment reads that the Secretary of State should consult
“on the merits of the change with … (ii) non-governmental organisations which, in the opinion of the Secretary of State, have a relevant interest.”
For me, this gives the Secretary of State carte blanche to consult or not, as he or she thinks fit. It might be better to add: “iii) those non-governmental organisations which have made representations to the Secretary of State.” That said, I still support the amendment.
Baroness Wilcox of Newport (Lab) [V]
My Lords, I support my noble friend Lord Kennedy’s amendment as it would add to the system of fairness and justice, since a further check and balance would be written into the Bill. It ensures that the territory in question would not abuse the Interpol red notices system. As noble Lords will know, a red notice is a request by Interpol on behalf of one member state to all other member states to locate a suspect or convicted person, and take steps to facilitate their surrender to the requesting state. Extradition proceedings then follow.
However, not every country treats red notices as a valid warrant and the legal effect therefore currently differs between states. In February 2019, the European Parliament published a study that examined abuse by some states of Interpol’s notice system to persecute national human rights defenders, civil society activists and critical journalists in violation of international standards of human rights. The study, entitled Misuse of Interpol’s Red Notices and Impact on Human Rights—Recent Developments was commissioned by the European Parliament’s sub-committee on human rights. The study acknowledged that the reforms implemented in 2015 have improved the situation. However, abuses of the Interpol system against individuals, including refugees, continue.
There is still a lack of established rules and procedures to govern the vetting process and adherence to Interpol’s constitution. It is therefore of utmost importance that we in this House have the opportunity to finesse and refine the statute so that weaknesses in established systems are not exacerbated by any vague legislation coming from this House. I therefore support my noble friend Lord Kennedy’s amendment.
Baroness Hamwee (LD) [V]
My Lords, in this amendment the noble Lord, Lord Kennedy, has successfully combined a number of issues raised during the passage of the Bill. As noble Lords know, it is very difficult to resist even an affirmative instrument. That is the reality of the system, so it is particularly important that the Government are transparent and inclusive.
I went back to look at the Delegated Powers memorandum and realised—I had not noticed this before—that we are told as part of the justification for taking the power that a
“response to changing circumstances”—
which I will come to—
“provides certainty and clarity as to the appropriate manner of request from amended or newly specified territories. For example, if the UK were not to have access to the European Arrest Warrant or a similar tool, with the effect that EU Member States become re-designated as category 2 territories, it is likely to be appropriate to specify some or all of them for the purposes of this legislation.”
We had quite a bit of debate at the beginning as to whether the Bill is really preparing for us not being part of the EAW system, so there will be some interesting debates to come as territories are added.
As a member of the EU Select Committee, I have had the opportunity of hearing the Chancellor of the Duchy of Lancaster mention this on a number of occasions. He said that what is important is to preserve our sovereignty, matters of proportionality and the state’s readiness for trial. As I say, there will be quite a bit to discuss as we add other countries.
The delegated powers memorandum also says:
“in the unlikely event of a deterioration in the standards of the criminal justice system of a specified category 2 territory, it is likely to be appropriate to remove”
it; well, the United States has been mentioned already by the noble Baroness, Lady Kennedy of Cradley. I suppose the answer to that is in the question of deterioration, because there are plenty of concerns about its processes now.
The House will be aware of our enthusiasm for consultation. I know that they do not claim this, but the Government do not have the monopoly of wisdom. Like other noble Lords, I am often very impressed by the knowledge that NGOs have. My noble friend Lord Paddick raised this point. I hope the Minister can confirm that, in legislation-speak, the Secretary of State’s opinion must always be a reasonable opinion and can be challenged on the basis that it is not reasonable.
I tabled an amendment in Committee to the effect that the designated authority—in our case, the NCA—must be satisfied that the request is not politically motivated. The Minister responded carefully and in detail, and I was grateful for that. The Committee was then reminded that the Extradition Act has safeguards in respect of requests motivated by a person’s political views. I want to make a distinction between that amendment and the one in the name of the noble Lord, Lord Kennedy, which is about the abuse of the red notice system. I think that is different; it is to do with the requesting territory’s approach on a wider basis. I hope that the House will accept that the narrower amendment has been disposed of, as it does not deal with the wider point. From our Benches, we support the amendment.
Baroness Williams of Trafford
My Lords, I thank noble Lords who have spoken to this amendment. Amendment 2 deals with the proposed statutory requirements for a consultation, the laying of statements before Parliament setting out the risks of any amendment to add, vary or remove a territory to the Bill and, in the case of additions, confirming that a territory does not abuse the Interpol red notice system prior to laying any regulations which seek to amend the territories subject to the Bill.
The Government are committed to ensuring that Parliament has the ability to question and decide on whether any new territories should come within scope. Therefore, it is mandated in the Bill that any Government wishing to add a new territory should do so through the affirmative resolution procedure. Any statutory instrument laid before Parliament will, of course, be accompanied by an Explanatory Memorandum that will set out the legislative context and the policy reason for the instrument. This procedure will give Parliament the opportunity to scrutinise proposals and allow the House to reject any proposals to add, remove or vary any territory to, from or in the Bill. The reasoning put forward will need to satisfy Parliament that the territory in scope does not abuse Interpol red notices or create unacceptable risks.
While extradition is a reserved matter, relevant officials are engaged in regular discussions with their counterparts in the devolved Administrations about how it should operate in practice. They would of course engage with them as a matter of good practice were any secondary legislation to be introduced in relation to it. Similarly, several relevant NGOs and expert legal practitioners have been consulted by officials in the normal way; this answers the questions of the noble Baroness, Lady Ludford. All external stakeholders are able to make direct contact with parliamentarians so that their views are included in all debates connected with secondary legislation associated with the Bill, as they have done during its current passage by contacting several noble Lords in this House.
A number of noble Lords, including the noble Baronesses, Lady Hamwee and Lady Ludford, talked about the abuse of Interpol channels. I will expand on that a bit. In arguing that maybe a power should not be enacted, given previous abuse of Interpol channels by some hostile states, the noble Baroness, Lady Ludford, cited the case of Bill Browder. International organisations like Interpol are critical to international law enforcement co-operation and are aligned with our vision of a global Britain. Interpol provides a secure channel through which we exchange information on a police-to-police basis for action. The UK continues to work with Interpol to ensure that its rules are robust, effective and complied with. The former chief constable of Essex was recently made the executive director of policing services for Interpol, which I was delighted about. It is the most senior operational role in that organisation. A UK government lawyer has also been seconded to the Interpol notices and diffusion task force, to work with it to ensure that Interpol rules are properly robust and adhered to by Interpol member states.
In terms of the specification of non-trusted countries, the power will be available only in relation to requests from the countries specified in the Bill—countries in whose criminal justice systems we have a high level of confidence, and that do not abuse Interpol systems. The Government will not specify any country that is not suitable. The addition of any country must be approved by both Houses, and I trust that neither House will be content to approve the addition of a country about which we have concern.
I will try to make it easy for the House, because we will now have our first ever virtual vote in the House of Lords. I understand that noble Lords would like to divide on this, and I hope that they will join me in resisting the amendment.
Lord Kennedy of Southwark [V]
My Lords, this has been a good short debate. I thank my noble friends Lady Kennedy of Cradley, Lord Foulkes of Cumnock, Lady Wilcox of Newport and Lord Adonis, as well as the noble Baronesses, Lady Ludford and Lady Hamwee, and the noble Lord, Lord Paddick, for their support. All noble Lords carefully set out the need for this amendment in a most convincing way. I am not persuaded by the response of the noble Baroness, Lady Williams of Trafford, which I found disappointing. I will not disappoint her, and I will make it very clear that I certainly wish to test the opinion of the House in this first ever virtual vote.
Baroness Hamwee
“( ) Regulations made under subsection (7)(a) shall designate no more than one territory.”Member’s explanatory statement
This amendment would require regulations which add, vary or remove a reference to a territory under Schedule A1 to contain no more than one territory. This will allow Parliament to reject a particular territory.
Baroness Hamwee [V]
My Lords, the noble and learned Lord, Lord Judge, has added his name to Amendment 3, as the noble Lords, Lord Kennedy and Lord Anderson, did to a similar amendment at an earlier stage. I am grateful to my noble friend Lady Ludford, who dealt with the matter on our behalf on Report, when, with the leave of the Minister, it was agreed that it be taken at Third Reading.
We often hear from the mover of an amendment: “This is a simple amendment.” Often, it is not quite that simple, but I believe this one is straightforward. When the Secretary of State lays regulations under new Section 74B(7)
“to add, vary or remove a reference to a territory”—
it is the addition that is the issue here—those regulations should apply only to a single territory. What I hope makes this simple to noble Lords is that there is nothing to prevent several instruments, each relating to one territory, being laid at the same time so that several territories can be specified within a matter of minutes of each other. But the crux is that Parliament should be able to reject one territory while happily accepting others.
In Committee, I used the examples of the Netherlands, a country which we respect, and Turkey, whose human rights record has regressed. I will use another pair today. I couple them only to distinguish between them: Sweden is a country we admire; Venezuela is one we do not, in this regard. If Parliament is presented with the choice of rejecting Sweden from the system because it wants to reject Venezuela, or accepting Venezuela because it wants to accept Sweden, how can Parliament possibly do the job we are all here to do when faced with an SI which is not amendable? The Minister has said previously that she would not present an SI that includes a country whose extradition requests we could not have confidence in due to their human rights record and would risk Parliament refusing extradition arrangements with a country that respects the rule of law. What the noble Baroness as an individual Minister might do is not the issue. I do not for a moment challenge her as an individual. This is a matter of system and procedure, not for an individual.
The previous amendment, which has just been agreed, referred to political motivation, and we must all be aware of the different criteria that different countries apply to the decisions they take as a state. Given the issues around relationships with countries regarding arms sales, for instance, is it any wonder that noble Lords are concerned about extradition to a country whose values, including valuing human life, are not our values?
The shortcomings and difficulties in procedures for dealing with secondary legislation are not a new point, but the fact that no amendments are possible is the most relevant one today. But, for once, we have a solution, which is to deal with these proposals one country at a time. I cannot understand an objection which seems to amount to no more than “It wasn’t invented here” or “not common practice”, to use the phrase used in Committee.
I need say no more, as I know that other noble Lords will contribute to the debate. Unless the Minister concedes, which I do not expect, I will test the opinion of the House, but for the moment I beg to move.
Baroness Ludford [V]
My noble friend Lady Hamwee has covered the strong case for this amendment and, to be quite frank, I cannot see on what grounds the Government can resist it. There is no good argument on administrative, parliamentary or human rights grounds not to have one territory per SI, so that Parliament can carefully discriminate between those territories where we are happy to have a law enforcement relationship and those that are, quite honestly, unreliable.
The way that the Government have resisted this improvement throughout the passage of the Bill in your Lordships’ House raises some concerns. Those are not linked, as my noble friend said, to the person of the Minister, but to any and every Government. We know that there will be pressures on this country, which has chosen—wrongly, in my opinion—to exit from the EU and make itself vulnerable to pressures in the context of seeking trade agreements. Those pressures are being discussed in a lively way, as they were last Wednesday in our Second Reading of the Agriculture Bill, when we discussed chlorinated chicken, hormone-treated beef and so on, and one can foresee similar kinds of pressures when countries seek favours from the United Kingdom in order to give us a trade concession. It would be all too tempting for a current or future Government to throw in a favour in a completely different area, such as law enforcement co-operation, in order to win a point for one economic sector or another in a trade deal.
In order to stop any such development in its tracks, it is completely reasonable to ask the Government simply to let Parliament decide on a country-by-country basis whether we want to add them to this system of provisional arrest. The onus is really on the Government to convince this House why it is reasonable to lump them together and not allow us to decide territory by territory, which is the obvious way to proceed.
Lord Judge (CB) [V]
We need a sensible extradition regime, and at the moment we have one. I strongly support it and nobody can think of a single reason why we should not work in a mutually acceptable way with territories, as the Act calls them—or countries, as ordinary people call them—that we trust: those we trust, those we trust to trust each other and those who we are confident will abide by the ordinary rules when seeking extradition of British citizens and vice versa. We all work together.
In this particular situation, as the noble Baroness, Lady Ludford, just said, we have a Government who would produce a list of countries or territories with which we would all be happy, and, bingo, the affirmative resolution is passed and we all go away happy, and for myself I cannot imagine that a Government led by Sir Keir Starmer would be any different. But the future is long, and the problem is that, undoubtedly, the time may come—I am not saying that it will, and I hope that it never does—when a Government seek a favour from this country or we seek a favour from them. An example might be, “Do you really want our safety equipment? Do you really want our artificial intelligence? Let’s have a mutual extradition arrangement.” I can also envision the possibility, not immediately but not so remotely either, of a Government of the day wishing to associate themselves with a country that shared that Government’s political views but was nevertheless not a desirable country with which to have these arrangements.
As the noble Baroness, Lady Hamwee, has just explained, we have this ridiculous situation where affirmative resolutions cannot be amended—you either take the package or you lose it. Parliament could be faced with this situation: there could be a list of a number of countries with which it was entirely desirable and sensible to have a mutual arrangement plus one other, with which it would be extremely undesirable to have such an arrangement. What would happen then? Do we reject the territory and country that we think it would be totally inappropriate to have such arrangements with and therefore lose similar arrangements with all the desirable countries, or do we simply keep all the countries we think it would be a good idea to have and include the other one, although it is undesirable? That is a ridiculous situation, and the amendment is designed to avoid such an absurdity. As the noble Baroness, Lady Hamwee, has already said, and I emphasise, the amendment proposes an utterly simple, totally uncomplicated system. It may cost the department a few more pages of paper, but not that many, and it may take a fraction more time, but it would be time valuably used. Statutory instruments should always be limited to one country.
The second reason I support the amendment has already been touched on. Through the passage of this legislation, from the beginning to where we are today, this House has raised this issue time and again. We have never yet been given a single good reason why the proposal in this amendment is unacceptable, would create difficulties for the extradition regime or would be unworkable. The Minister has not invented any spurious reason for that, for which we are of course grateful and unsurprised, but there are no reasons. No reason has yet been given. As a matter of common sense, as well as on a sound constitutional basis, the amendment has never been contradicted by a reasonable argument and should find favour with the House.
Lord Paddick [V]
My Lords, I speak in support of the amendment in the name of my noble friend Lady Hamwee, and I agree completely with the comments of the noble and learned Lord, Lord Judge. The trouble with an amendment of this simplicity is that all one can do is repeat the arguments in a slightly different way.
It makes complete sense that Parliament should have the ability to consider each country on its merits in this case, as it is so obviously open to abuse, and the regulations that allow additions are not amendable. Echoing the views of my noble friend Lady Ludford, I think that, our having left the European Union, future Governments will be keener than ever to secure trade deals with other countries, for example. It may be that those other countries demand, quid pro quo, that we accede to their extradition requests, even though there may be reservations about a country’s criminal justice process. This amendment is necessary, and I support it.
Lord Anderson of Ipswich (CB) [V]
My Lords, in Committee, my noble and learned friend Lord Hope of Craighead said of this amendment that it meets the problem of the non-amendable instrument, without at the same time creating an insuperable difficulty for the Government, and that it enables a debate to take place that would have a real point to it. The fact that there may be precedents in other Acts of Parliament for lumping countries together in statutory instruments seems to be neither here nor there.
This amendment ought really to be welcomed by the Government. It removes the possibility that acceptable countries will be excluded because they have been yoked together with a country that Parliament finds unacceptable. The amendment is a sensible and practical safety valve, which is why I put my name to a previous edition. If the noble Baroness, Lady Hamwee, decides to test the opinion of the House, I shall vote for the amendment.
Lord Blunkett (Lab) [V]
My Lords, as the noble Lord, Lord Paddick, said, the simpler the amendment, the more repetitious we become. But I want to go back to 2003, which was mentioned by the noble Baroness, Lady Hamwee, in the debate on the previous amendment, and to the Act that I piloted through, with the support of an excellent Home Office team. The noble Baroness called it a “mighty beast”, which it was; it was extremely difficult, as were other mighty beasts of that year, including the Criminal Justice Act, the Proceeds of Crime Act, the Sexual Offences Act, and the Domestic Violence, Crime and Victims Act. When I look back on those days, I wonder when any of us slept. We were, quite rightly, taken to task: we leaned on legislation too quickly.
However, in a simple amendment such as this one, we have clarity of thinking, as the noble and learned Lord, Lord Judge, indicated, and as the noble Lord, Lord Anderson, reinforced. There is a simple, clear reason why, 17 years on from the original Extradition Act, we should take this sensible step, which avoids the Government not being able to carry an order for countries with which we would be extremely pleased to have extradition arrangements because another country listed is unacceptable to us. Turning it on its head, on the danger of agreeing a country that we do not wish to have an extradition agreement with, and being unable to get Parliament to agree to an order that it would otherwise want to go along with, it makes absolute sense for the Government simply to concede.
I repeat what I said last week: I have a great deal of respect for the Minister. I hope that, even at this late stage, texts might be going from her staff to the Home Secretary to say, “Please give permission to concede on this, because we oppose it for no good reason whatever”.
Lord Kennedy of Southwark [V]
My Lords, I support Amendment 3, tabled by the noble Baroness, Lady Hamwee, and the noble and learned Lord, Lord Judge. As noble Lords have heard, this issue has been considered by the House as the Bill has made its progress through the various stages. What is proposed here today is simple, effective and, I contend, good government.
Surely it must be right that when we are designating countries that we wish to form an extradition agreement with, after the detailed work has taken place, Parliament should have the opportunity to accept or reject the designation for an individual territory. Parliament generally, and this House in particular, does not often vote down regulations. We may pass Motions to Regret or debate the merits of what is proposed, and many may express deep reservations, but fatal Motions are very rare.
This amendment is important; it is good practice and what good government should be all about. It guards against this or any future Government, of whatever political persuasion, seeking to group together a number of countries and push them through en bloc where, for example, nine of the 10 countries proposed have good reputations, a good track record and respect for the rule of law, do not persecute dissidents, do not abuse human rights and do not abuse Interpol red notices, but the remaining country has a more questionable record on one, or a number of, the issues I have raised. In such a case, it would be wrong for the Government to try to force through an agreement under the cover of Parliament not wanting to reject the other territories, and would give the country about which questions have been asked some form of protection that it does not deserve, making the approval a fait accompli. Parliament should, in all circumstances, guard against that.
If passed, this amendment would allow Parliament, on the rare occasion that it rejects regulations, to do so quite clearly on the record of the individual territory that the Government propose to sign an agreement with. That is right, proportionate and the sensible way to deal with this important part of public policy; no other agreement will be put at risk. It is good government, and I hope noble Lords will support the amendment if it is put to the vote.
Baroness Williams of Trafford
My Lords, on previous occasions this House has spoken at length on the question of what constitutes appropriate parliamentary scrutiny, in the wider sense, in relation to the addition of any territory, and has just done so again on Amendment 2. I will now expand further in addressing Amendment 3, in the names of the noble Baroness, Lady Hamwee, and the noble and learned Lord, Lord Judge, which seeks to mandate that this be done by individual statutory instrument for each suggested country.
I was slightly dismayed to hear noble Lords talk about mutual extradition arrangements because, as I have clarified on several occasions, this has not, and never has been, about mutual extradition arrangements. We do not do this on behalf of other countries, and if, for example, we did it on behalf of Turkey, the courts would throw it out—even if the Government could get it through Parliament, the courts would throw it out.
When this issue was debated in Committee, it was pointed out that statutory instruments that seek to specify new territories are not amendable. Some feel that this may create a difficulty for this House if regulations were laid which sought to specify multiple countries. As I have said before, the process of potentially listing multiple countries already exists for adding territories to both parts of the Extradition Act 2003.
Baroness Hamwee [V]
I will test the opinion of the House, but I will first respond a little to what has been said. I thank all noble Lords who have supported this amendment.
As the noble and learned Lord, Lord Judge, said, we need a sensible extradition regime and I do not seek to subvert that. This is also not about mutual arrangements. I am flattered that the noble and learned Lord attributes to me an awareness of and sensitivity to the constitution and common sense. I hope this amendment achieves both. He gave examples of situations where the Government might be tempted down a route which was not perhaps the best because of other matters in play politically. It occurs to me that the topical discussion might be, “Do you want our vaccine? Do you want our PPE?” This amendment would let the Government, in advance, off the hook that they might create for themselves, giving them a way out of facing that unpleasant discussion.
We are proud of our values; this is a way of applying them. The Minister says that we might win the argument and vote down regulations because they included an “undesirable” country—I use the term as shorthand. However, in this example, that would not reflect the views of Parliament because it would not be able at that point to accept the desirable country.
We have had to adapt our procedures over the last few weeks. Great and very successful attempts have been made to ensure that procedure reflects good governance. We should extend that today. This is a proportionate response to the issue. The Minister says that the Government want to press on with the Bill; I have no doubt that they do. It will have to go to the Commons, and we know that it already contains a provision which the Government will not be very happy with. As I say, this amendment is proportionate, sensible and one that the House should accept. I would like to test the opinion of the House.
Member’s explanatory statement
This amendment is consequential on the Minister's first amendment.
Member’s explanatory statement
This amendment is consequential on the Minister's first amendment.
“( ) In subsection (7), for “or 74(3)” substitute “, 74(3) or 74A(3)”.”Member’s explanatory statement
This amendment is consequential on the Minister's first amendment.
Member’s explanatory statement
This amendment is consequential on the Minister's first amendment.
Baroness Williams of Trafford
My Lords, I thank the noble Lords who engaged very constructively with the Bill, particularly the noble Lords, Lord Kennedy and Lord Paddick, the noble Baroness, Lady Hamwee, the noble and learned Lord, Lord Judge, and my noble and learned friend Lord Mackay of Clashfern. The Chief Whip’s beeper is going so I think he wants me to keep my comments short.
Extradition is not an easy subject, but this has been most interesting legislation, with very well-drafted and thoughtful amendments. Everyone will benefit from the work done on this. I particularly thank officials from the Home Office, who have supported me so brilliantly throughout. I beg to move.
Lord Kennedy of Southwark [V]
My Lords, I echo the noble Baroness’s comments. I thank all noble Lords who have taken part in the proceedings on the Bill. I enjoyed working with everybody concerned. I think that we have made the Bill better. As always, the noble Baroness has been courteous and kind and always prepared to engage with me constructively. I also thank all her officials from the Home Office for the way they have worked with me during the Bill’s passage.
Baroness Hamwee [V]
My Lords, I too thank everyone who has been involved with the Bill. As the noble Baroness, Lady Williams, said, it is not an easy subject, although some of the amendments that we have had to consider have in fact been relatively straightforward. I suspect we will discuss extradition quite a lot over the next few months and years, so we will all get to know the subject even better. I congratulate her on seeing this through. I really appreciate the help of officials and staff. Who thought, when we started on the passage of the Bill, that we would have had such an extraordinary experience?