Anti-social Behaviour, Crime and Policing Bill

Lord Ahmad of Wimbledon Excerpts

Wednesday 11th December 2013 Lords Chamber

[Baroness Hamwee (LD)]

My Lords, in moving Amendment 56YG I shall speak also to Amendment 56YH. I have to say that I am amazed by the influence of my noble friend the Chief Whip, who just by sitting there has prevented anyone walking in front of me.

Schedule 7 deals with the powers to seize invalid passports, and these are two quite small, probing amendments, although they are serious. The first amendment would leave out the provision for a constable, who has various powers of search and seizure, to authorise a person—any person,

“to carry out on the constable’s behalf a search under this paragraph”.

That is a search which may involve the use of force—reasonable force, but nevertheless force. I question whether it is right for such powers to be authorised—perhaps not technically delegated, but to the outside world they would seem to be delegated.

My second amendment would leave out the requirement to return an expired travel document, but not where it is thought that it might be intended to be used for purposes for which it is no longer valid. My question, of course, is: why not? If the document has expired, what harm is there? Are there no other systems that are sophisticated and efficient enough to pick up whether an expired travel document is, in fact, expired? This seems an odd sanction, merely on the basis of reasonable belief. My particular reason for questioning it is that it might really irritate people quite unnecessarily. I have written “unnecessary aggro” against this, and I genuinely think that we should avoid causing unnecessary aggro, because there are enough sensitivities around passport and immigration controls and so on without adding one which, to my mind at any rate, is not necessary. I beg to move.

[Lord Ahmad of Wimbledon (Con)]

I thank my noble friend Lady Hamwee, who explained that these two amendments relate to the powers to seize invalid passports. As she has said, they are probing in nature. Such powers may be necessary where a passport has been withdrawn in the public interest; for example, to disrupt a person’s travel overseas due to the serious issue that they may be engaged in terrorism.

Amendment 56YG relates to the ability of a constable to authorise a person to carry out a search on their behalf. The purpose of this provision is to allow a constable to make use of support if required when carrying out a search at places other than a port. Such support would be exercised under the authority of a constable, and I reassure my noble friend that, in view of the type of case to which this paragraph applies, it would in practice be likely to be carried out in the presence of a constable. The authorised person—such as a police community support officer—would not be empowered under the provision to use reasonable force or to require a person to hand over the passport for inspection purposes.

Amendment 56YH, which I think my noble friend labelled the “avoiding unnecessary aggro” amendment, relates to expired travel documents. I agree with my noble friend that there is often little harm in returning an expired document to the passport holder. Indeed, there is provision in paragraph 4 of Schedule 7 for that very purpose. The provision recognises that the passport holder may wish to retain the expired passport because, for example, it may include extant visas for travel to other countries. It may even provide memories of places that they have travelled to previously; as well as a visual record, for good or bad, of how we may have looked some 10, or even 20, years ago.

However, on a more serious point, the British passport does of course remain the property of the Crown at all times. There is no entitlement to a passport and no statutory right to have access to it. If a person intends to make use of an expired passport for a purpose for which it is no longer valid—in other words, for a fraudulent purpose—it is right that a constable should be able to remove the document. This would prevent it being used elsewhere for fraudulent purposes, where the level of checks may not be so robust.

It is also entirely inappropriate that a constable should hand back an expired passport to a person where he or she reasonably believes that it is intended to be used for a fraudulent purpose. It would send out the wrong message to the passport holder and would simply allow—if not, indeed, encourage—them to continue to make use of the document for wrong and potentially unlawful reasons. I hope, in light of the explanation I have given, that my noble friend will withdraw her amendment.

[Baroness Hamwee]

My Lords, I will do so but I have to say that, first, on the issue of the expired passport, there are some good reasons which a passport holder may not even think of at the time. One that immediately occurs to me is the need to be able to show the number of days you have been in the country, which involves showing when you have travelled out of and back into the country. There are tax reasons why a number of people need to be able to show that. It is a matter of the officer’s discretion and reasonable belief but I find it difficult to imagine how the conversations would be conducted. I should perhaps ask my noble friend whether he can tell the Committee how one challenges an officer’s decision. His notes may say, even if I did not think of it beforehand.

As regards whether someone other than a constable can exercise the powers of search and seizure, my noble friend says that, in practice, it would be the constable. If that is the case, the obvious question is: why allow for anyone else to do it? Another question is whether there will be instructions to officers—guidance, codes of practice or whatever—that might deal with this. I do not know whether my noble friend can deal with either of those at the moment—I know that colleagues are here particularly to talk about the next group of amendments—but if he has anything to say, that would be good. If not, perhaps he could write to me.

[Lord Ahmad of Wimbledon]

I will just assure my noble friend that I do not think I can add to what I have said other than, on the first point about why we should not restrict the power in that way, it is important that there is a level of flexibility that allows the constable to exercise it. In most cases, as I have said, the person would be someone such as a community support officer. As far as the document is concerned, my noble friend raised the point about other reasons. Of course it is at the discretion of the officer, but one hopes that at that point a case could be made. She raised the issue of tax, which is not one that I was thinking through as she spoke. I am sure that there is a list of other circumstances. However, ultimately, it boils down to the document being the property of the Crown, and it should remain so.

[Baroness Hamwee]

Perhaps after today the Minister could let me know what arrangements there will be for a challenge, and about a code of practice. He nods and, on that basis, I beg leave to withdraw the amendment.

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Moved by

[Lord Ahmad of Wimbledon]

64A: After Schedule 8, insert the following new Schedule—
SchedulePowers of community support officersIntroduction1 Part 1 of Schedule 4 to the Police Reform Act 2002 (powers of community support officers) is amended as follows.
Additional powers to issue fixed penalty notices2 (1) In paragraph 1 (powers to issue fixed penalty notices), in sub-paragraph (2)(b), for the words after “in respect of an offence” there is substituted “listed in sub-paragraph (2B)”.
(2) In sub-paragraph (2) of that paragraph, after paragraph (ca) there is inserted—
“(cb) the power of an authorised officer of a borough council to give a notice under section 15 of the London Local Authorities Act 2004 in respect of an offence under section 38(1) of the London Local Authorities Act 1990 or section 27(1) of the City of Westminster Act 1999 (unlicensed street trading);”.(3) After sub-paragraph (2A) of that paragraph there is inserted—
“(2B) The offences referred to in sub-paragraph (2)(b) are—(a) an offence under section 72 of the Highway Act 1835 (riding on a footway) committed by cycling;(b) an offence under section 5(1) or 8(1) of the Road Traffic Regulation Act 1984 involving a contravention of a prohibition or restriction that relates to—(i) stopping, waiting or parking at or near a school entrance,(ii) one-way traffic on a road, or(iii) lanes or routes for use only by cycles, only by buses or only by cycles and buses;(c) an offence under section 24 of the Road Traffic Act 1988 (more than one person on a one-person bicycle);(d) an offence under section 35 of that Act (failing to comply with traffic directions) committed by the rider of a cycle;(e) an offence under section 36 of that Act (failing to comply with traffic signs) committed by the rider of a cycle who fails to comply with the indication given by a red traffic light;(f) an offence under section 42 of that Act of contravening or failing to comply with a construction or use requirement about—(i) lighting equipment or reflectors for cycles,(ii) the use on a road of a motor vehicle in a way that causes excessive noise,(iii) stopping the action of a stationary vehicle’s machinery,(iv) the use of a vehicle’s horn on a road while the vehicle is stationary or on a restricted road at night, or(v) opening a vehicle’s door on a road so as to injure or endanger a person;(g) an offence under section 163 of that Act (failing to stop vehicle or cycle when required to do so by constable or traffic officer).(4) After sub-paragraph (4) of that paragraph there is inserted—
“(5) In this paragraph “cycle” has the same meaning as in the Road Traffic Act 1988 (see section 192(1) of that Act).”Powers to issue fixed penalty notices: consultation with local authorities3 In paragraph 1, after sub-paragraph (2B) (inserted by paragraph 2(3) above) there is inserted—
“(2C) Before a chief officer of police makes a designation applying this paragraph to any person and specifying or describing an offence listed in sub-paragraph (2B)(b)(i), the officer shall consult every local authority any part of whose area lies within the officer’s police area.
(2D) In paragraph (2C) “local authority” means—
(a) in relation to England, a district council, a London borough council, the Common Council of the City of London or the Council of the Isles of Scilly; and(b) in relation to Wales, a county council or a county borough council.”General power of seizure4 After paragraph 2A there is inserted—
“General power of seizure2B Where a designation applies this paragraph to any person—
(a) that person shall, when lawfully on any premises in the relevant police area, have the same powers as a constable under section 19 of the 1984 Act (general powers of seizure) to seize things;(b) that person shall also have the powers of a constable to impose a requirement by virtue of subsection (4) of that section in relation to information accessible from such premises;(c) subsection (6) of that section (protection for legally privileged material from seizure) shall have effect in relation to the seizure of anything by that person by virtue of sub-paragraph (a) as it has effect in relation to the seizure of anything by a constable;(d) section 21(1) and (2) of that Act (provision of record of seizure) shall have effect in relation to the seizure of anything by that person in exercise of the power conferred on him by virtue of sub-paragraph (a) as if the references to a constable and to an officer included references to that person; and(e) sections 21(3) to (8) and 22 of that Act (access, copying and retention) shall have effect in relation to anything seized by that person in exercise of that power or taken away by him following the imposition of a requirement by virtue of sub-paragraph (b)—(i) as they have effect in relation to anything seized in exercise of the power conferred on a constable by section 19(2) or (3) of that Act or taken away by a constable following the imposition of a requirement by virtue of section 19(4) of that Act; and(ii) as if the references to a constable in subsections (3), (4) and (5) of section 21 included references to a person to whom this paragraph applies.”Powers with regard to charity collectors5 After paragraph 3A there is inserted—
“Power to require name and address etc: charity collectors3B Where a designation applies this paragraph to any person, that person shall, in the relevant police area, have the powers of a constable—
(a) under section 6 of the House to House Collections Act 1939 to require a person to give his name and address and to sign his name; and(b) under regulations under section 4 of that Act to require a person to produce his certificate of authority.”Power to stop cycles 6 In paragraph 11A (power to stop cycles), in sub-paragraph (2), for the words after “has committed an offence” there is substituted “listed in paragraph 1(2B)(a) to (e), (f)(i) or (g)”.”

[Lord Ahmad of Wimbledon]

One of the memorable parts of the Bill’s passage has been my attempts to be my noble friend Lord Taylor—which I have succeeded in doing on a number of occasions now.

We have made significant reforms to policing to enable the police to respond to the individual concerns of their communities and to give local communities direct access to engage with and challenge their local force. Community-focused policing is key to improving satisfaction rates and public perceptions of police legitimacy, as well as to reducing the fear of crime and perceptions of local disorder. Police community support officers are, of course, vital in delivering this method of policing. Taking time to engage and really get to know their communities, the problems they face and their priorities is central to building these strong links and helps to shape an effective police response.

When the Bill was considered in the other place, my honourable friend Steve Barclay, the Member for North East Cambridgeshire, highlighted inconsistencies in police community support officers’ powers. We have already taken steps to remedy the specific issue he raised by adding Clause 135 to the Bill, but we want to go further to support the important role that PCSOs play. We want to ensure that they have the necessary tools to keep the public safe and tackle the issues that really matter to the communities they serve. We believe that 18 new discretionary powers introduced by these amendments will do just that. These provisions will give chief constables greater discretion and flexibility in how they deploy police community support officers to tackle low-level crime and anti-social behaviour.

I turn first to new cycle powers. Failing to comply with road regulations can expose both cyclists and their fellow road users to danger, including pedestrians, as we sometimes see. That is why we want to do more to ensure that road safety regulations are well understood and adhered to. In addition to giving police community support officers the power to issue a fixed penalty notice for cycling without lights, the amendments will give them power to issue a fixed penalty notice for cycling through a red light, failing to comply with a traffic direction and carrying a passenger on a cycle. We believe that giving police community support officers a more comprehensive package of cycle-related powers will put them in a better position to drive improvements in cycle safety.

I turn to new traffic powers. We are introducing a new package of measures to give police community support officers additional powers to issue fixed penalty notices. These include for failing to stop for a police constable, driving the wrong way down a one-way street, sounding a horn at night, sounding a horn when stationary, not stopping the engine when stationary, causing unnecessary noise, contravening a bus lane and opening a door so as to cause injury or danger. Paddy Tipping, the police and crime commissioner for Nottinghamshire, has indicated a desire to see PCSOs tackling traffic offences. While we do not agree that they should be given the power to issue notices for more serious traffic offences, we believe that the new package I have outlined is practical at this time. I want to be clear that these measures are not intended to provide a means to pick on drivers or cyclists, or to raise revenue. Our focus is improving safety for all road users and to do that we must ensure that road regulations are respected and enforced.

A third area we are covering is parking outside schools. The power to tackle dangerous parking outside schools is an issue that has been raised in previous debates and it is something we wish to address. We know that patrolling outside schools is a core function for many PCSOs and this makes them well placed to use their engagement and problem-solving skills to educate drivers about the risks of dangerous parking. However, we recognise that, on occasions, stronger action is needed and to address this issue we are giving them the power to issue fixed penalty notices to individuals who park in restricted areas outside schools. Local authorities currently play a core role in parking enforcement and we know that a collaborative approach to tackle these types of offences is essential. We believe that chief constables should consider the role a local authority plays before making any decision to designate this power and we have therefore imposed a duty to consult within this provision.

Illegal street vendors and house-to-house collectors is another area of concern. In addition to the measures I have outlined, the amendments aim to support the role PCSOs play in promoting crime prevention and tackling anti-social behaviour issues. Illegal street vendors and bogus house-to-house collectors can cause a nuisance to communities and have a detrimental impact on those working legitimately. Tackling this type of behaviour is important. We recognise that illegal street vendors may be more common within highly populated cities and that is why we are giving PCSOs in London the power to issue a fixed penalty notice to illegal street vendors. This is in line with existing local authority powers. Giving PCSOs the power to confirm the identity of house-to-house collectors will support their role in providing community reassurance and tackling nuisance behaviour.

Finally, we will be aligning the powers of PCSOs to seize and retain material during premises searches with those of police officers. PCSOs already play an important role in supporting police officers to execute search warrants but their authority to seize material is limited. Granting PCSOs this power will free up police time by enabling PCSOs to operate more independently of police officers when carrying out this function.

We know that the public value the presence of PCSOs within the community and we have been clear that engagement is at the heart of their role. This should continue to be their core function. We believe that a distinction between the role of a constable and a PCSO should remain and that is why we have taken time to fully consider the implications of conferring the powers contained within this proposal. We are confident that they will enhance, not dilute the community engagement role of PCSOs and I commend the amendments to the Committee. I beg to move.

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[Lord Ahmad of Wimbledon]

My Lords, perhaps I may say first that when those PCSOs arrived at the door of the noble Lord, Lord Rosser, I am glad that they did not take him away. We would have been without his expertise and input in this Bill, so we are grateful for that. Equally, he made an important point in mentioning it. I come back to a point I made earlier: PCSOs are distinct from police officers, and I think I made that clear in my comments. What they do in terms of reassurance is something that the police themselves do. Again, speaking from my experience of working with neighbourhood teams when I was a local councillor, the police also did similar reassurance exercises.

I turn now to the specific questions that have been put to me. The noble Lord, Lord Rosser, asked why we are proposing this now. Of course, we are responding in line with the scrutiny of the Bill in the Commons. My honourable friend Stephen Barclay raised the issue, but it did go wider and beyond the specifics of his amendments. This is not something that the Government have only just thought about. I referred in my earlier comments to a Labour police and crime commissioner, Paddy Tipping, who wants us to go further. We have consulted on this and we have looked at the position with relevant experts in the field to understand the implications of the change. We have included discussions with the police at both the operational and the strategic level, the College of Policing, the partnership agencies and, indeed, national police leaders. As I said in my earlier remarks, this is about enhancing the powers of PCSOs and not about taking away from their engagement. We believe it is right that the engagement role performed by PCSOs is vital in making police accessible to all, and we do not want to overburden them with enforcement powers that would detract from that. That is why we have taken a considered position on these new packages.

The noble Lord, Lord Rosser, also asked whether we will consider more powers. These changes will mean a significant increase in the number of powers available for designation to PCSOs. That is an important distinction: this is not something that is carte blanche; it is right that the chief officers should have the freedom to take account of local circumstances and priorities when determining how their PCSOs are deployed. That will be the case in these additional powers that are being proposed. That is why we have taken the time to consider and, while we will be exploring a wider role for PCSOs, the Government believe that their particular role is being enhanced.

I hope that I have covered the specific questions asked by the noble Lord, Lord Rosser.

[Lord Rosser]

Were local authorities consulted?

[Lord Ahmad of Wimbledon]

There was not a general consultation with all local authorities but, in our consideration, as I have said, we talked to partnership agencies and national police leagues; that, of course, in some respects includes local authorities’ opinions. This is not trying to take away from local authorities: anyone who has worked at local government level knows that local authorities, the police et cetera all work in partnership in ensuring that we get the maximum level of reassurance.

I turn briefly to the points raised by my noble friend, who speaks with great expertise in this area. I would not in any sense seek to challenge that. I believe that the vital distinction remains between police officers and PCSOs. We are merely seeking to enhance the functions of PCSOs to allow them to engage more effectively in the community and to address the very issues he has raised about their effectiveness when they arrive at a particular point. Our proposals are a proportionate response to what is needed. It will help in community engagement and effective enforcement in respect of some of the lower-level issues that are raised. Neighbourhood policing will be in a better place for that. I beg to move.

Amendment 64A agreed.

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[Lord Hodgson of Astley Abbotts]

My Lords, I now seek to move Amendment 82 and will speak to Amendment 93. The background to these amendments is the existence of two different types of European arrest warrant: a prosecution warrant where a person is to be prosecuted for a crime, and a conviction warrant where a person has been convicted and has fled to another country, knowingly or unknowingly. As drafted, the Bill provides for a proportionality check for prosecution warrants but not for conviction warrants. Amendment 82 seeks to remedy this by inserting the new clause shown. The amendment creates a proportionality check for EAWs to parallel the existing human rights bar in Section 21 which will, under the Bill, be relevant only to prosecution EAWs.

Fair Trials sees many cases where suspended prison sentences imposed in respect of minor offences have been reactivated, several years after the person left the category 1 territory, with an EAW then being issued on that basis. This leads to the drastic measure of extradition being used inappropriately in respect of minor offences. There is the case of Natalia Gorczowska, who was convicted of possession of 4 grams of amphetamines and given a 10-month suspended sentence. She left to begin a new life; several years later, with no apparent reason for the delay, the sentence was reactivated and, still later, an EAW was issued, leading to significant expense and very nearly to a drastic impact upon her young son’s life. The Committee might like to note that, had the same conduct been the subject of a prosecution EAW, it would probably have fallen to be considered as one of minor gravity and unlikely to attract a lengthy prison sentence in application of the specified matters relating to proportionality to be considered before granting a prosecution EAW but not in the case of considering a conviction warrant.

This rather lengthy amendment to Section 21 allows a proportionality analysis, including a broad range of factors tailored to conviction EAWs. Applying the proposed test, the judge would be able to take into account the person’s conduct and other circumstances when addressing proportionality—for instance, whether the person deliberately evaded onerous community obligations by leaving the country, or whether the sentence was reactivated systematically, long after the person left the country and without his or her knowledge.

Amendment 93 provides discretion to refuse a conviction warrant where the subject is a British national and will serve his or her sentence in a UK prison. The proposed amendment would allow the judge at the extradition hearing to refuse to surrender a person under a conviction EAW if that person is a British resident or national, and if it is possible for them to serve their sentence in the UK. It is worded in similar terms to Section 3(1) of the Repatriation of Prisoners Act 1984, which also provides for the issue of a warrant to authorise a person’s detention to serve or complete in the UK a sentence imposed by a foreign court.

Currently, UK courts have no discretion to refuse to extradite a British national or resident to serve a sentence in another country on the basis that it is more appropriate that he or she serves that sentence in the UK. This issue has been highlighted in a number of Fair Trials cases. Individuals have been extradited from the UK following conviction in another jurisdiction yet, following surrender, have been transferred back to the United Kingdom after the lengthy and bureaucratic prisoner transfer process. This is a waste of time and money. UK courts should be given the option of refusing extradition and allowing the defendant to stay in the UK to serve the sentence. Other member states including Belgium, Denmark, Italy and Poland have included this ground for refusal in their implementing legislation.

In the announcement that my noble friend referred to earlier, the Home Secretary stated:

“Where a UK national has been convicted and sentenced abroad, for example in their absence, and is now the subject of a European arrest warrant, we will ask”,

the issuing state’s,

“permission, for the warrant to be withdrawn, and will use the prisoner transfer arrangements instead”.—[Official Report, Commons, 9/7/13; col. 179.]

The flaw in this approach is the possibility that the issuing state will simply not grant permission.

This amendment establishes a legal basis for the judge to refuse extradition and order that the person serves the sentence in the UK. This possibility is provided for in the EAW framework decision, in which paragraph 6 of Article 4 provides that the executing judicial authority may refuse to execute the EAW,

“if the European arrest warrant has been issued for the purposes of execution of a custodial sentence or detention order, where the requested person is staying in, or is a national or a resident of the executing Member State and that State undertakes to execute the sentence or detention order in accordance with its domestic law”.

Given this clear legal basis to provide the judge with discretion to refuse extradition and allow the person to serve the sentence in the UK, it is disappointing that the Government have opted for a slightly different policy, which is not placed on a statutory footing.

The reference to UK nationals in the Home Secretary’s announcement suggests that this reluctance may be because the Government wish the policy to benefit only UK nationals and not non-national residents. It follows clearly from the case law of the Court of Justice that, if the UK implemented paragraph 6 of Article 4 of the EAW framework decision, which applies to both nationals and those staying in or resident of the executing member state, it would not be able to reserve the benefit of this provision to UK nationals only. The drafting in the Bill appears to be a way of avoiding that constraint. However, the policy discriminates in favour of UK nationals and could be the subject of legal challenge, irrespective of whether or not it is placed on a statutory footing.

The policy adopted in lieu of implementation of paragraph 6 of Article 4 of the EAW framework decision is also an ineffective protection. If the issuing state refuses to use the prisoner transfer arrangements, there is no recourse and the person has to be extradited in any event. As the Home Secretary said in her announcement, the proposed change,

“could have prevented the extraditions of Michael Binnington and Luke Atkinson”,

UK nationals who,

“were sent to Cyprus only to be returned to the UK six months later”.—[Official Report, Commons, 9/7/13; col. 179.]

to serve the rest of their sentences. However, this would have been dependent on the Cypriot authorities co-operating. Had Cyprus declined to use the prisoner transfer arrangements, the judge would not have had any legal ground on which to refuse extradition.

It would make more sense for the Government to put the policy on a statutory footing, providing proper protection for UK nationals and other residents whose social reintegration would be served by their serving their sentences in the UK, in line with the relevant provisions of the framework decision. These amendments allow the judge to identify residents on a discretionary basis; equally, Parliament could set reasonable statutory criteria. By example, I understand that Dutch law provides a five-year residence criterion, which has been considered lawful by the Court of Justice of the European Union. I beg to move.

[Lord Ahmad of Wimbledon]

My Lords, as my noble friend has said, Amendment 82 seeks to introduce a proportionality bar for post-conviction cases. As my noble friend Lord Taylor has said, Clause 138 will allow the UK courts to deal with the long-standing issue of proportionality, which is of course a fundamental principle of EU law in cases where a person is sought for prosecution. Under the EAW framework decision, an EAW can be issued in a post-conviction case only if a sentence of at least four months has been imposed. We believe that this is a sufficient proportionality safeguard in such cases.

Perhaps I might also reassure my noble friend that the courts will still consider any representations made that the extradition would breach a person’s human rights—I believe that he mentioned this in his comments. As now, a person would be extradited only if it was compatible with their rights under the European Convention on Human Rights. This includes and applies to those people who are wanted to serve a sentence.

I turn to my noble friend’s Amendment 93. I draw your Lordships’ attention to the terms of the Statement made in July by my right honourable friend the Home Secretary—again, my noble friend referred to this—about the reform of the operation of the EAW to enhance the safeguards available for British citizens wanted for extradition. In that Statement, the Home Secretary set out our commitment to make greater use of EU prisoner transfer arrangements. Where a UK national has been convicted and sentenced abroad, for example in their absence, and is now the subject of a European arrest warrant we will ask for permission for the warrant to be withdrawn and will use the prisoner transfer arrangements instead. My noble friend acknowledged that.

Whereas this policy is limited to UK nationals, Amendment 93, put forward by my noble friend, would broaden the scope of this safeguard beyond UK nationals to those who are resident in the UK, with the consequential impacts that would lead to, including those on the public purse. This Government’s policy is that foreign nationals should, wherever possible, serve their sentences in their home country. Therefore the scope in terms of broadening this beyond UK nationals is not something the Government subscribe to, based on the policy I have indicated. I hope, based on the explanations I have given which underlie the Government’s approach, that he will at this time seek to withdraw his amendment.

[Lord Hodgson of Astley Abbotts]

My Lords, I have just one question. As I understood my noble friend’s remarks, he said that we now have an effective proportionality test for conviction warrants. My advice is that we do not have that and that there is no chance of a proportionality test for that.

While he is reflecting, my other point is on the question of how we are going to be able to deal with situations where countries do not collaborate. I appreciate the point about non-national residents. I hope, however, the Government will consider following up examples like that of the Dutch. They have established cases where non-nationals would not qualify and therefore the issue which he very properly raises about the impact on public funds could be avoided.

Could he just confirm that there is a proportionality test for conviction warrants, because as I understand it there is not?

[Lord Ahmad of Wimbledon]

For clarification, I repeat that I said that under the EAW framework, an EAW can only be issued in a post-conviction case if a sentence of at least four months has been imposed. We believe that is the sufficient proportionality safeguard in such cases.

[Lord Hodgson of Astley Abbotts]

I will not try to absorb all that now; I will read about it in Hansard. In the mean time, I seek to withdraw the amendment.

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[Lord Hodgson of Astley Abbotts]

My Lords, in moving Amendment 83, I shall speak also to Amendments 84 to 86. With these amendments I am seeking to address some of the weaknesses of the temporary transfer system. Amendments 83 and 84 seek to ensure that temporary transfers remain temporary. Amendment 83 would insert in proposed new Section 21B the words,

“a specific timeframe within which the person must be returned to the United Kingdom”,

and Amendment 84 would insert the words,

“within the period specified in the judge‘s order made under subsection (5)”.

They make a temporary transfer conditional on the issuing state providing assurance that the person will be returned within the time allotted for the transfer. The purpose of the temporary transfer system is to enable the issuing state to complete certain steps in the criminal case which we referred to earlier, such as charging the person, and to allow the person to return home, without seeking their extradition. However, in the Bill as drafted, there is no system for ensuring the return of the person.

The concern is that a person brought before a judge or court in the issuing state in the course of a temporary transfer could rapidly find themselves processed in accordance with the usual course of procedure and detained pending trial. I believe that it is therefore necessary to enable the judge to obtain specific assurances that the person will be returned within a fixed period by the judge. The amendment allows the judge to refuse to grant a temporary transfer in the absence of such assurances.

Amendments 85 and 86 permit the temporary transfer system to be used more than once. The Bill allows for the temporary transfer scheme to be used once only. I entirely accept that there is a need to ensure that the temporary transfer process is not used repeatedly to delay extradition, but I believe the current restriction to one use may be too blunt. If a new point comes to light later in the proceedings suggesting that further progress could be made by the requested person attending again, then, provided it is not an abuse of the system, the procedure should be available again. It must also be unfair to prevent a requested person using a temporary transfer just because they have previously agreed to a request, perhaps by the requesting state. There is an issue here of equality of arms. I beg to move.

[Lord Ahmad of Wimbledon]

My Lords, the provisions in Clause 140 will allow a person to speak with the authorities in the issuing state before any extradition takes place. The clause allows for the person’s temporary transfer to the issuing state and for the authorities in that state to speak with the person while he or she remains in the UK, for example, via videoconferencing. I understand my noble friend’s concerns that there should be safeguards, but I believe that there are sufficient safeguards already in place.

Both parties must consent to a temporary transfer—a temporary transfer is only possible where the person concerned agrees to it—and in doing so the issuing authority would be agreeing that the person would be returned to the UK. If the person was not returned, the issuing state would, of course, be in breach of that agreement and the clear terms of the European arrest warrant framework decision. Neither are we aware of any cases among our EU partners where such agreements have been disregarded.

Amendments 85 and 86 relate to the circumstances in which a person may make a request for temporary transfer or videoconferencing. I am grateful to my noble friend for bringing to the Committee’s attention the suggestion of allowing more than one request to be permitted by a UK judge.

In this particular case the Government are not persuaded that there are sufficiently compelling arguments for making such a change. Allowing more than one request could be used to delay the extradition process to no good end. We would expect the cases to which my noble friend refers to be very rare, and if such a situation did arise, the individual would still be able to approach the requesting authorities via their legal representatives to provide further information to consider in that case.

Noble Lords are aware, as my noble friend Lord Taylor has emphasised, of the importance we place on getting the balance right between ensuring efficient extradition processes and the protection of the requested person. We believe that this potential for unnecessary delay would outweigh any marginal benefits it may bring.

I therefore hope, with the explanation I have given, that my noble friend will be minded to withdraw his amendment.

[Lord Hodgson of Astley Abbotts]

I certainly will withdraw it. I am convinced about Amendments 83 and 84, but I cannot see how the ability to get a second temporary transfer is going to cost the Government anything. In fact, it would greatly improve the efficacy in the administration of justice. If I were an EAW subject, I would be very disappointed that because the requesting state had used the temporary transfer system up for its own purposes, I was not then able to use it for myself. It is a shame that we do not have even a measure of equality of arms, always providing for the fact that this should not be allowed to detain and block up the process. I beg leave to withdraw the amendment

--- Later in debate ---

Moved by

[Lord Ahmad of Wimbledon]

95ZB: After Clause 148, insert the following new Clause—
“Electronic transmission of European arrest warrant etc
In section 204 of the Extradition Act 2003 (warrant issued by category 1 territory: transmission by electronic means), in subsection (5)—(a) for “subsection (1), a” there is substituted “subsection (1)—(a) a”;(b) at the end there is inserted—“(b) information contained in the warrant is treated as being received by the designated authority in a form in which it is intelligible if the authority receives—(i) a summary of that information in English, and(ii) the text of the warrant itself,in a form in which it is legible.”

[Lord Ahmad of Wimbledon]

My Lords, this group of government amendments to Part 12 and Schedule 9 deal with three distinct and largely technical issues.

First, Amendment 95ZB, and the associated Amendment 98B to Schedule 9, make minor amendments to Section 204 of the Extradition Act 2003. That section makes provision for cases where the information contained in a European arrest warrant is transmitted to the United Kingdom electronically.

The amendments to Section 204 are needed to support the implementation of the second generation Schengen information system, otherwise known as SIS II. Under SIS II, the NCA will be required to certify requests entered by other member states for,

“arrest for surrender or extradition purposes”,

from the information received electronically under the SIS II process. This information will be an English language summary of the information contained within the EAW, together with the original language version of the EAW. Section 204 therefore requires amendment so that certification can take place on the basis of this English language summary, rather than a translation of the full contents of the EAW.

Amendments 95ZC and 95ZD relate to Clause 149. That clause amends the Prison Act 1952 to ensure that, in all cases where a person spends time in custody in another member state awaiting extradition to the UK, that time is counted as time served towards the UK sentence. As it stands, Clause 149 provides only for cases in England and Wales. Therefore, following discussions with the Scottish Government, we have agreed that analogous provision for Scotland can be made through administrative means. However, with the agreement of the Scottish Government, we are taking the opportunity to update relevant provisions in Scots law in relation to cases where a person is extradited to the UK to be sentenced. Section 210 of the Criminal Procedure (Scotland) Act 1995 makes provision for taking into account time spent in custody awaiting extradition to the UK in cases where a person is extradited to be sentenced. It is out of date in that it refers to the Extradition Act 1989 which is no longer in force. Amendment 95ZC amends this provision to update it in respect of extradition.

In respect of Northern Ireland, Section 38 of the Prison Act (Northern Ireland) 1953 makes equivalent provision to Section 49 of the Prison Act 1952 in cases where a person is sentenced before extradition to the UK. Amendment 95ZD, and the consequential Amendment 98A to Schedule 9, ensures that time spent in custody awaiting extradition to the UK from another member state is always credited. There is currently no legislative provision in Northern Ireland for taking into account time spent in custody awaiting extradition to the UK from another member state where a person is sentenced after extradition. Amendment 95ZD also amends the relevant law in Northern Ireland to ensure that such credit is given.

Amendments 104A, 104B and 104C to Clause 159 make consequential changes to the extent provisions arising from the two new clauses inserted by Amendments 95ZC and 95ZD. These new provisions will ensure that the UK law is fully in line with Article 26 of the EAW framework decision. Finally, Amendment 99 implements one of the recommendations in the 12th report of the Delegated Powers and Regulatory Reform Committee. That committee recommended that the order-making power in new Section 189E of the Extradition Act 2003 should be subject to the affirmative procedure. New Section 189E enables the Home Secretary to specify descriptions of persons, other than constables, who may exercise powers of detention, search and seizure in respect of people who are in transit through the UK and being extradited from one foreign territory to another. Such a power might be used, for example, to designate immigration officers. The Government are content to accept the committee’s recommendation in this regard. I beg to move.

Amendment 95ZB agreed.