Kevin Foster contributions to the Extradition (Provisional Arrest) Bill [HL] 2019-21

Mon 22nd June 2020 Extradition (Provisional Arrest) Bill [Lords] (Commons Chamber)
2nd reading: House of Commons
Programme motion: House of Commons
3 interactions (1,671 words)

Extradition (Provisional Arrest) Bill [Lords]

(Programme motion: House of Commons)
(2nd reading: House of Commons)
(Programme motion: House of Commons)
Kevin Foster Excerpts
Monday 22nd June 2020

(3 months, 1 week ago)

Commons Chamber
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Attorney General

Second Reading

Kevin Foster Portrait The Parliamentary Under-Secretary of State for the Home Department (Kevin Foster) - Hansard
22 Jun 2020, 12:01 a.m.

I beg to move, that the Bill be now read a Second time.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Nick Thomas-Symonds Portrait Nick Thomas-Symonds (Torfaen) (Lab) - Hansard
22 Jun 2020, 12:03 a.m.

I thank the Minister for his opening remarks, and I pass on my thanks to my Labour colleagues in the other place who took the Bill first, and who have worked hard to scrutinise and amend the Bill we see today. May I outline from the outset that the Opposition are not seeking to divide the House this evening on this Bill?

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

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

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

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

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

I of course note his comments very carefully.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

the current Prime Minister said:

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

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

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

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

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

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

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