Extradition (Provisional Arrest) Bill [HL]

Debate between Lord Duncan of Springbank and Baroness Hamwee

Consideration of Commons amendments & Ping Pong (Hansard) & Ping Pong (Hansard): House of Lords
Wednesday 14th October 2020 Lords Chamber

[Baroness Hamwee (LD)]

My Lords, I add my regret about the position on the European arrest warrant. Our post-Brexit arrangements in the realm of security and policing seem precarious or, at best, a poor substitute for what we have now.

When noble Lords debated what went to the Commons as new Section 74B(8)—the subject of Amendment 3 —the noble Lord, Lord Kennedy, said that the conditions were a “reasonable and proportionate” process. I say they are more important than a process; they are about consultation, assessing the abuse of the Interpol Red Notices system, and trust in the system. The Government gave assurances then that they would not include countries likely to abuse the system and that the amendment would not conflict with how the Government plan to deal with the regulations.

I will focus on what was our amendment, which is currently the new Section 74B(9), which the Government seek to remove by Amendment 4. That provides for regulations to Schedule A1 that can add specified category 2 territories. That is jargon for something quite important.

The amendment has an impeccable pedigree. The noble and learned Lord, Lord Judge, and the noble Lords, Lord Anderson of Ipswich and Lord Kennedy, supported it at previous stages—I am glad that the noble Lord, Lord Anderson, will be speaking on it shortly. I can think of no reason for the Government resisting this provision other than “It is not how we do things”, or possibly “It was not invented here”. I took comfort that I was not on the wrong track by the support that I received from Cross-Benchers, eminent lawyers whose perspective could not be thought to be distorted by party-political considerations, although I do not think that this issue is party-political.

The provision that the Government seek to remove allows regulations to designate only one country at a time. There is a simple reason for that: to enable Parliament to play its proper part. We all know that such instruments cannot be amended, so if we are presented with a list of countries including one bad apple, in human rights terms, could we expect Parliament to agree to the bad apple to avoid losing the arrangements with all the others, or to reject them all when only one is an issue? I used the examples of an order applying to both the Netherlands and Turkey, or to Sweden and Venezuela. No two countries are quite alike. I could extend the first pairing to a trio, as someone said to me yesterday: France is quite different from Turkey, and Turkey is quite different from Syria.

At previous stages, noble Lords explained their concern that the Government’s judgment could be swayed by factors unconnected with the assessment of a country’s human rights record. Favours for trade concessions were mentioned. That has happened. The noble and learned Lord, Lord Judge, put it neatly, saying that the time may come when another Government seek a favour from this country or we seek a favour from them. He gave an example: “Do you really want our safety equipment? Do you really want our artificial intelligence? Let’s have a mutual extradition arrangement.” He could also envision the possibility—not immediately, but not remotely either—of the Government of the day wishing to associate themselves with a country that shared their political views but was nevertheless not a desirable country with which to have these arrangements. The noble Lord, Lord Anderson, described the provision as meeting the problem of a non-amendable instrument without insuperable difficulties for the Government.

The Government have argued that countries can be added in multiples under the parent Act and so there is no need to make a change, but should we not always be on the lookout for better ways of doing our job of scrutiny? They also said that the courts would throw it out if a country did not respect rule of law. However, the courts can only consider applications from individuals, case by case. They can only consider what the Government put in the regulations when those regulations are applied and the individual affected challenges the action.

The Minister has told the House that she would not present an SI that she knew would run into trouble. I say this so often that the Minister must think that I have got it in for her—I really have not, not personally—but we must depersonalise these things. She may be the Minister for longer than I am here, but she will not always be the Minister. There may be a Government whose judgment she questions. She says that the House could vote down an instrument. The House is responsible and would not want to because of one bad apple.

At Second Reading in the Commons, the Minister said that the Bill was not concerned with the UK’s extradition relationship with other countries, but it is. He said that when a fugitive is wanted for a serious offence by a trusted country, he is brought before a UK court, but that is not the issue. The Commons were told that the amendment is not required and is unnecessarily burdensome. It had not occurred to me but, as a Member put it, considering the Government’s vocal support for the Magnitsky Act to deter human rights abuses, it would be hypocritical to oppose an amendment that has the same purpose.

In Committee in the other place, the Minister, James Brokenshire, said:

“Any additions will be dictated by the will of Parliament”—


that is what this provision would put in place—

“not by an unusual process such that this would impose. If a country is proposed that Parliament does not agree should be specified, then the regulations will be voted down in the normal way. We judge that that remains the rightful process.”—[Official Report, Commons, 8/9/20; col. 567.]

It may be an unusual process, but why is the process invariable? Voting down regulations listing 10 or 20 countries would cause a lot more nuisance for the Government than voting down regulations relating to a single country and there would be very little pressure on parliamentary time.

We are not challenging the premise of the Bill, but we are defending the sovereignty of Parliament, as distinct from the Executive. I still do not understand the technical, practical or political arguments. We would deal with a bundle of instruments, one after the other, which is a bit tedious, but does that matter? There is no delay, just a sensible opportunity for each House properly to give or withhold approval. I fail to see why the Government feel threatened by such a common-sense proposal. When the moment comes, I will seek the opinion of the House.

[The Deputy Speaker (Lord Duncan of Springbank) (Con)]

My Lords, the following Member in the Chamber has indicated their desire to speak, so I call the noble Baroness, Lady Ludford.