Extradition (Provisional Arrest) Bill [HL]

Lord Bethell Excerpts

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

[Lord Anderson of Ipswich (CB)]

My Lords, the objective of the Bill is worthy and uncontroversial: to enable persons wanted in approved countries to be brought more efficiently into extradition proceedings, so as to reduce the prospect of absconding or further offending while they are in the UK. I entirely accept that, as the Minister said, it does not diminish the safeguards in the extradition proceedings themselves. However, the chosen mechanism is a new power of arrest without warrant. That is sufficiently unusual to require a little more reassurance than appears in the Explanatory Notes, helpful though they are, and I would be grateful if the Minister would comment now, or at any rate before Committee, on six gentle questions on this short Bill.

First, could the Minister explain why the existing powers of urgent arrest under Sections 73 and 74 of the Extradition Act 2003 before an extradition request has been submitted or certified are not considered sufficient? There may be a good reason but it needs to be made known. My understanding is that a request from the issuing state for the accused’s provisional arrest can already be the subject of a provisional warrant application by the CPS to the court—an application which, in urgent cases, can be made out of hours to the relevant duty judge, if necessary by email.

Secondly, does the Minister accept that the new procedure will itself take time? The NCA, as designated authority under the Bill, will have to review any extradition request and decide whether to certify it as creating a provisional arrest power. That may be a substantial exercise, given the need not to interfere arbitrarily with the rights of extradition subjects, even for 24 hours, the well-documented abuses of Interpol red notices, and the possibility that the list of category 2 territories may be substantially expanded in the future—to which I will return.

Thirdly, and staying on that subject, can the Minister tell us more about the nature of the triage process that the designated authority will conduct? In particular, will it be part of the NCA’s function to verify that extradition 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 or its equivalents? Finally, the impact assessment states that the new policy is

“expected to result in 6 individuals entering”

the criminal justice system

“more quickly than would otherwise have been the case.”

It seems pretty plain that this Act of Parliament has not been constructed just for those six people, whoever they may turn out to be, and that the list of specified category 2 territories is likely to be significantly expanded.

Therefore, my fourth question is: the Minister spoke of trust, but what precisely are the criteria that will be applied by Ministers in determining to designate a new category 2 territory for new Schedule A1, and, in view of the potential for abuse identified by the noble and learned Lord, Judge, why are they not set out explicitly in the Bill? I remind your Lordships that category 2 territories include the likes of Russia, Turkey and Zimbabwe.

My fifth question: is it envisaged, as the noble Baroness, Lady Hamwee, thought, that the member states of the European Union, or some of them, will find their place in the schedule?

My sixth question: will reciprocal powers to those in the Bill be sought from the EU in negotiations for whatever will replace the European arrest warrant and, more broadly, can the Minister give any further indication of the type of replacement to which we aspire? Are we aiming to adapt the European arrest warrant itself, or the Norway-Iceland agreement with the EU, or are we looking for something of a different nature?

As the noble and learned Lord, Lord Brown, just said, many of us would greatly regret the loss of the European arrest warrant, which, since its political awakening in the weeks after 9/11, has exemplified both the effort required for meaningful co-operation in Europe and the enormous benefits to be derived from it. We can be particularly grateful to the noble Baroness, Lady Ludford, who will follow me, for her tireless work on improving it over the years.

Forebodings that any replacement will be inferior have already been borne out by the EU’s declaration of 31 January that Germany, Austria and Slovenia will not surrender their own nationals to the UK, even during the transition period. But Brexit has happened, its consequences must be faced, and we all share the same objective of ensuring that the best possible alternative is negotiated. I hope that the Minister will at least be able to tell us what we are aiming for.

[Lord Bethell (Con)]

My Lords, there is a technical problem with the clocks. We have moved to using the old-fashioned clocks, which we believe are still working. An engineer has been called and we hope to resolve the problem shortly.

--- Later in debate ---

[Lord Hannay of Chiswick (CB)]

My Lords, some seven years ago I chaired, together with the noble Lord, Lord Bowness, an inquiry at whose heart was the issue of whether it was in this country’s interest to remain within the scope of the European arrest warrant. The evidence we took demonstrated overwhelmingly that it was in Britain’s interest to do so. I am glad to say that that view was shared by massive majorities in both Houses and we did, indeed, stay within the European arrest warrant.

I note from the impact assessment with which we have been provided for the Bill—for which I express my gratitude as impact assessments for Brexit-related Bills are rare birds indeed—that in 2018 and 2019, as the noble Baroness, Lady Ludford, just mentioned, 1,412 arrests related to European arrest warrants were made and a substantial number of possible criminals returned to their own countries for trial. I suggest that those figures show that the European arrest warrant has come through with flying colours. It is for that reason, if for no other, that I personally welcome the Bill, one of whose objectives, if I understand it rightly, is to enable us to continue to operate something that could perhaps loosely be called a European arrest warrant-type procedure, even now that we are no longer a member—and will no longer be a member—of the European Union. I would be most grateful if the Minister, when she winds up, could answer the following questions. They cover similar ground to those of my noble and learned friend Lord Brown and my noble friend Lord Anderson.

First, is it correct to think that the Bill will enable us to operate something that could loosely be described as an EAW-type procedure, even after we have left the European Union and even after we have exited the transition period?

Secondly, will the powers in the Bill actually be needed during 2020 with respect to EU member states, while we are still in the transitional period provided for in the withdrawal agreement, or does that agreement suffice for the calendar year 2020?

Thirdly, if by mischance—I think no one who has read the Prime Minister’s speech made in Greenwich yesterday could doubt that mischance could happen—we found ourselves without a new relationship agreement with the EU at the end of this year, would the powers in the Bill enable us to respond to requests from any of the 27 EU member states in a manner similar to the way we have responded to European arrest warrants?

Fourthly, as several noble Lords have asked, will we, in the negotiations that will begin in March, try to achieve some degree of reciprocity with the 27 member states so that they too will operate something similar to a European arrest warrant procedure, even if the conditions for that are not yet agreed in the new relationship, or if the possibility of a new relationship has collapsed? I know that the answer for this Bill is that it does not and cannot provide those powers.

These are important matters. I think we can reasonably ask the Government simply to say now that, yes, when we sit down in March and work with the European Union on a security agreement that covers this area, we will be asking for reciprocity and we will be offering procedures that are as solid as we can make them and similar to the European arrest warrant. If, as I hope, the answer to all four questions I have posed is positive, I would be a strong supporter of the Bill. It will send a good signal that we are entering the post-Brexit negotiations in a positive spirit and with a determination to continue the closest possible co-operation with our former EU partners in the fight against serious international crime.

[Lord Bethell]

My Lords, I can confirm that the new clocks are now working, and those are the ones we will use.