Extradition (Provisional Arrest) Bill [HL]

Baroness Clark of Calton Excerpts

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

[Baroness Clark of Calton (Non-Afl)]

My Lords, it is a great privilege to appear again and speak in your Lordships’ House after a long absence. I listened with interest to the Minister’s speech about the Bill’s context and purpose. I also thank her for being so open and willing to meet with people to discuss it.

The extradition Bill might appear deceptively modest, but does it propose a mere technical amendment? In essence, it sets out a new system to justify arrest without advance judicial scrutiny and will give sweeping powers to the Secretary of State to change extradition law by delegated legislation.

The Bill seeks to amend complex legislation in the Extradition Act 2003. Many Members of this House know how complicated that Act is. It was the result of detailed domestic review, public consultation and development in international criminal law that introduced fast-track extradition arrangements, mainly for EU states, using the European arrest warrant. The 2003 Act introduced two very different systems of extradition. It distinguished between category 1 territories, based on the European arrest warrant, and category 2 territories, where there was no agreed reciprocal recognition of the judicial process.

The concept of provisional arrest in this Bill will no doubt take many people by surprise, particularly if they are reflecting on that concept from a police cell. A person is either under arrest or at liberty. There is nothing provisional about the consequences of being arrested. The 24-hour limitation period provided in the Bill excludes weekends and bank holidays. The consequences of provisional arrest are serious and would not be eradicated by any subsequent decision of a judge to discharge the person.

I share the concern of noble Lords who have queried the Government’s justification for introducing this Bill: that there might be a delay of some hours in obtaining an arrest warrant from a judge, creating the possibility that the person concerned could offend or abscond before being detained. We hear that the numbers are tiny. However, Section 73 of the 2003 Act already allows a provisional warrant for arrest to be issued by a justice of the peace. This may be used by the police in an emergency, for example. Can the Minister tell us what the difficulty is with using it in the circumstances she has talked about?

So far, I am not persuaded by the factual evidence that there has been a problem in the extradition process caused by police and judicial delay, resulting in an inability to bring to justice individuals sought for extradition. To assist our understanding, if possible I would like some statistics to be provided before Committee stage: the number of arrests over the last three years under Sections 4 and 5 of the Extradition Act 2003, and the number of cases refused a certificate by the designated authority when performing its statutory function in relation to category 1 territories under Section 2. In relation to category 2 territories, I would be grateful for similar statistics for warrants issued under Sections 71 and 73 respectively.

If, as the Government contend, there is a problem in relation to extradition to category 2 territories, any solution may lie in better co-ordination between the police and the judiciary to enable a warrant to be obtained at an early stage. Another solution might be the involvement of the judiciary in a screening process, instead of the designated authority which the Bill seeks to establish.

I understand that the Government intend that the National Crime Agency be appointed, in regulations made by the Secretary of State, as the designated authority. The NCA is essentially a police body, not a judicial authority. Such a body is not a proper substitute for the independent scrutiny and decision-making of a judge in the UK. In any event, it is surely unacceptable that a body meant to carry out a function which directly affects individual liberty is not even named in this Bill.

The Government may seek to rely on the existence of a screening process by a designated authority—the National Crime Agency—in Part 1 of the Extradition Act 2003 in relation to category 1 territories. However, this is very misleading and does not bear scrutiny.

It is clear from the history and development of the Part 1 legislation that the justification for arrest flows directly from a judicial source: the judicial grant of a European arrest warrant by the foreign territory. The European arrest warrant scheme is complex, with detailed codes of procedure. Extradition to category 1 territories has become exclusively a judicial procedure; that contrasts with category 2 territories. The category 1 scheme in the 2003 Act is tied to that. The legal basis for arrest is founded on the decision by a judge from the foreign territory to issue a European arrest warrant. Any later screening process by the designated authority in the UK postdates that earlier judicial decision, and it is the judicial decision which provides the legal basis for the arrest.

The scheme applying to category 2 territories under the 2003 Act is very different. There is a total lack of that agreed basis of common rules and the complex safeguards which have been built into the European arrest warrant scheme. A decision by a judge from one of the UK jurisdictions provides the legal basis for arrest in category 2 territory cases. This Bill seeks to introduce a form of arrest where there is no advance judicial scrutiny and no judicial warrant from this country to justify arrest.

I am particularly concerned about the terms of new Sections 74A and 74B. I note that there is no limitation in the wording to restrict this to an emergency situation where obtaining a judicial warrant is somehow impossible. In summary, the new sections allow a provisional arrest to be made provided that the designated authority has issued a certificate. The designated authority is required to apply legal tests which can be complex and are appropriate for judicial determination.

There is nothing in the Bill to stop this easy certification process becoming the normal procedure in all or most cases. So, if someone somewhere sends the appropriate paperwork to the designated authority and this non-judicial authority issues a certificate, many people may find themselves in custody without any judicial consideration in this country. All of this affects the system of justice in Scotland. I would be very grateful to learn from the Minister the views of the Scottish Government. I would be surprised if there was support in Scotland for a system of arrest being legally justified by certification by a police body, rather than a judge.

I also note with concern, as have other noble Lords, the terms of paragraph 29, which gives the Secretary of State powers, including the power to

“amend, repeal or revoke any provision made by primary legislation”

in certain circumstances. None of this is acceptable in such wide terms.

It is plain that we are all aware that there may be problems for the Government if, as a result of their Brexit policies, the UK is unable or unwilling to participate in the European arrest warrant scheme. But in that event, we need a mature debate about extradition to find a way forward. We cannot permit the Secretary of State merely to certify any territory that he or she wishes, and allow the arrest by the police of potentially thousands of people, including many UK citizens, on the certification of the National Crime Agency or some other non-judicial authority thought up by the Secretary of State.

I am not opposed to reform of the Extradition Act, and I am certainly not opposed to a system of extradition that works effectively. But the proposed changes in the Bill cause me concern in their present form and I hope that in Committee, we will be able to consider them further.