Extradition (Provisional Arrest) Bill [HL]

Baroness Hamwee Excerpts

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

[Baroness Hamwee (LD)]

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

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

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

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

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

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

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

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

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

[Lord Inglewood (Non-Afl)]

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

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Moved by

[Baroness Hamwee]

3: The Schedule, page 2, leave out lines 17 to 19
Member’s explanatory statement
This amendment precludes the period of imprisonment extending beyond 24 hours before the person is brought before a judge.

[Baroness Hamwee]

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

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

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

[Lord Kennedy of Southwark]

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

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

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[Lord Parkinson of Whitley Bay]

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

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

[Baroness Hamwee]

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

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

[Lord Mackay of Clashfern]

I shall wait until the noble Baroness has finished.

[Baroness Hamwee]

I think I pretty much have finished.

[Lord Mackay of Clashfern]

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

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[Baroness Hamwee]

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

Amendment 3 withdrawn.

Moved by

[Baroness Hamwee]

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

[Baroness Hamwee]

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

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

“satisfied that the request is not politically motivated.”

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

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

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

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

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


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

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

Amendment 11C would provide for

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

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

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[Baroness Williams of Trafford]

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

[Baroness Hamwee]

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

Amendment 4 withdrawn.

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Moved by

[Baroness Hamwee]

6: The Schedule, page 3, line 34, leave out “, vary”
Member’s explanatory statement
This amendment is to probe the variation of a reference to a territory, as distinct from an addition or removal.

[Baroness Hamwee]

My Lords, I beg to move Amendment 6; I also have Amendments 7, 9 and 10 in this group. I start with Amendment 9, which I think is the most important. This amendment would restrict additions to Schedule A1 to one territory at a time. Orders are not amendable; one says either yes or no—and it is rarely no—to the whole thing. Let us consider an order seeking to add, say, Turkey and the Netherlands—it might not happen but I am thinking of two very different states—where one might want more protections than are proposed by the Government, but one would not want to reject an order to add the Netherlands. I think that is a sufficiently stark pairing to enable your Lordships to understand why I am concerned about this. I have written myself a note about the delegated powers memorandum. I cannot now find it but I am sure that it said something quite relevant. I might be able to find it by the end of the debate. Anyway, that is my particular concern. I do not think that I need to expand on it any further. I am grateful to the noble Lord and the noble and learned Lord for adding their names to this.

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

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

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

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

[Lord Deben]

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

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

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

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

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

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

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

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

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

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

“a big thorn in our side”.

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

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[Lord Mackay of Clashfern]

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

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

[Baroness Hamwee]

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

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

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

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

Amendment 6 withdrawn.

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Moved by

[Baroness Hamwee]

12: The Schedule, page 10, line 14, leave out sub-paragraph (2)
Member’s explanatory statement
This amendment removes the provision in the bill that allows regulations to amend, repeal or revoke any provision made by primary legislation.

[Baroness Hamwee]

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

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

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

“consequential on the amendments made by this Schedule.”

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

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

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

[Lord Inglewood]

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

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

--- Later in debate ---

[Baroness Williams of Trafford]

I am very happy to do that.

[Baroness Hamwee]

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

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

Amendment 12 withdrawn.