Extradition (Provisional Arrest) Bill [HL]

Baroness Ludford Excerpts

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

[Baroness Ludford (LD)]

So I have not already been speaking for 13 minutes.

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

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

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

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

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

but:

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


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

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

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

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

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


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

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

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

--- Later in debate ---

[Baroness Williams of Trafford]

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

[Baroness Ludford]

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

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


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

[Baroness Williams of Trafford]

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

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

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