Extradition (Provisional Arrest) Bill [HL]

Baroness Ludford Excerpts

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

[Baroness Ludford (LD)]

So I have not already been speaking for 13 minutes.

The justification for the Bill rests on the claim that there is a gap in law enforcement capability which requires primary legislation to create the power for UK police to arrest immediately if an individual is wanted by a trusted partner. We were told in a briefing session yesterday that there are possibly 20 to 30 persons at any one time from across the world in a police “wanted pot”, but that does not equate to the number of cases where police actually come into contact with someone—perhaps through a stop due to a traffic offence—discover that the person in front of them is wanted for a serious offence and fear that they may abscond before a judge’s warrant can be obtained unless arrested on the spot.

The impact assessment states that the policy is expected to result in six individuals entering the criminal justice system more quickly than would otherwise be the case. As the assessment period is 10 years, this is less than one person a year. In her speech, the Minister gave one example from 2016. It is important to get clear the real necessity for the Bill. As the noble Lord, Lord Anderson, mentioned, the provisional arrest powers under Sections 73 and 74 of the Extradition Act 2003 already adequately cover urgent arrests before a full extradition request is submitted from a category 2 territory, with the CPS able to request a provisional warrant from the court which can be made urgently out of hours.

In addition, the impression conveyed that the Bill will give an instantaneous power of arrest once a warrant is issued in a designated Part 2 country is not true. The warrant would still have to go through a review and certification process at the National Crime Agency and there would be a triage process to ensure that only alerts which conform to legislative intention are certified. Perhaps the Minister can confirm that all those three steps—triage, review and certification—will have to take place. Can she also confirm that the NCA would be able to filter out cases where it has reason to believe that one of the statutory bars to extradition, such as the human rights bar, will apply, and that a victim of a politically motivated request would be able to provide the NCA with advance notification why it should not be certified? Will the NCA also ensure that any 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?

While, if all those filter mechanisms apply, it would provide some reassurance, it would also mean that the new process was not necessarily very speedy. It would require careful scrutiny, not an instant, heat-of-the-moment decision after a person is identified entering the country. While that is good from the point of view of the care to be taken in the process, it means that the new power is unlikely to save time, as well as applying only to a handful of people, which makes the power, as justified by the Minister, largely otiose. The new power permits someone to be arrested and their liberty restricted without judicial oversight—a potential interference with Article 5 of the ECHR. The justification is pretty vague. Bypassing the judicial warrant is premised in the impact assessment only on the rather vague aspiration of

“reducing the opportunity for the subject to escape and potentially commit further crime, which may lead to an economic and social impact upon society”,

but:

“It is not possible to give a precise estimate of the impact of the legislation as it is unclear how much re-offending will be prevented”.


That is hardly convincing in justifying the potential interference with convention rights. Although the Bill covers any international request for extradition, it seems clearly anticipated that an Interpol wanted person alert or a red notice against a person would be the primary trigger. It is crucial that the Bill is not taken as a stamp of approval for such red notices, as they are not trusted enough to be in themselves a basis for an arrest. Under the Bill, the NCA will have to assess the validity of such a notice and the degree to which it is based on evidence, rather than mere assertion, without any judicial, or even prosecutorial, oversight.

Like the UK, many countries do not allow warrantless arrests based on Interpol red notices. The US does not allow them because it does not view red notices as satisfying the probable cause standard required by the US constitution to arrest someone. It is well known that Interpol red notices have been misused for political purposes by a number of its member countries, targeting political opponents, journalists, peaceful protesters, refugees and human rights defenders. The UK should continue to push Interpol to introduce safeguards against abuse. Can the Minister tell us what action the Government have taken in that respect?

It is critical that the list of specified category 2 countries in the Bill is limited to those where there really is a basis of trust—not countries such as Russia, Turkey, Venezuela or Syria. What factors will the Government take into account when proposing to add countries to those covered by new Schedule A1? It is already of concern that the US is on the list. While the ability would still exist to seek assurances that a person would not be subject to the death penalty, there was a case in July 2018 when the Government did not exercise that option, which caused deep concern.

As I have said, the necessity for the new power seems pretty slim in the case of existing trustworthy Part 2 countries but, as other noble Lords have said, in paragraph 7 of the impact assessment we get to what must surely be the real reason for this Bill, even if the Minister demurred at her briefing session yesterday. It is worth reading it out:

“In a ‘no deal’ scenario or in the event of a Future Security Partnership which does not support the retention of EU Member States in Part 1 of the Extradition Act, the current capability gap would extend to EU Member States. 15,540 requests were made under the EAW process in 2018/19. In that same year, 1,412 arrests were related to EAWs”.


That is more than 150,000 EAWs over a 10-year period, compared to the six EAWs forecast for the new procedure under the Bill. I think we can gather what scenario the Bill is really planned for. Can the Minister give us an update on the prospects for future UK-EU criminal justice co-operation, including extradition? Although there are concerns about the operation of the EAW—six years ago, my last project as an MEP was a report calling for its reform; I thank the noble Lord, Lord Anderson, for his kind remarks—it is much better than the alternatives.

Both my noble friend Lady Hamwee and the noble Lord, Lord Anderson, referred to the Commission declaration under Article 185 of the withdrawal agreement in which Germany, Austria and Slovenia may not extradite their own nationals—even during the transition period, let alone after December. This was expected but it is still discouraging. How will we get any reciprocity? If the Bill covers incoming extradition requests, what will happen to outgoing ones to EU and EEA countries?

Finally, how does yesterday’s categorical assertion of no alignment advance the prospect of the UK retaining something approaching the EAW without legal challenge if the minimum rights of defendants developed by the European Union are not respected?

--- Later in debate ---

[Baroness Williams of Trafford]

My Lords, I thank all noble Lords across the House for their very good contributions to this debate. We should not forget that without this new power a potentially dangerous individual encountered by the police, whom they establish is a fugitive, might remain at liberty on UK streets, able to offend or abscond before they can be arrested. I can confirm that in both the cases I voiced today the individuals were encountered by chance; the police did not have the power to arrest them and had to let them go.

I am sure everyone in this House will agree that we should unite across parties to give the police the power they need to protect the public, while always ensuring that the appropriate safeguards are in place. My noble friend Lord King and the noble and learned Lord, Lord Brown of Eaton-under-Heywood, described in great clarity not only the changing face of crime and the huge demands on the police but the international aspect of crime in all its forms.

Several noble Lords have voiced concerns that this Bill is an attempt by the Government to replicate the capability of the EAW. As I hope I have explained, this is not the case. The new power is about only how wanted individuals enter the court system, not how the courts will conduct their extradition proceedings. I emphasise that, with or without access to the EAW, UK police officers are unable immediately to arrest these fugitives wanted by countries outside the EU without first going to the court for a warrant.

The noble Lord, Lord Ricketts, rightly raised the future of the EAW post transition period. The UK will approach the negotiations on these issues with practicality and pragmatism. The political declaration calls for practical operational co-operation, data-driven law enforcement and multilateral co-operation through EU agencies. The detail of this agreement will be a matter for negotiation, but it does not just apply to the EAW. It applies to several other instruments of the EU. I absolutely acknowledge his concern.

The noble Baroness, Lady Hamwee, and the noble Lord, Lord Anderson, asked whether the EAW would continue to be enforced during the transition period; they talked specifically about Germany, Slovenia and Austria. It applies during the transition period, but where a member state cannot for reasons related to the principles of their national law surrender an own national to the UK during the transition period, they will be expected—as they have been—to take over the trial or sentence of the person concerned. UK policing and courts have extensive experience of working with these countries to ensure that justice is carried out. By way of background, since 2009 five German nationals, one Austrian national and no Slovenian nationals have been extradited to the UK from those countries. We are well used to the situation. It is nothing to do with this Bill. The power of provisional arrest is for Part 2 non-EU countries.

The noble Lord, Lord Hannay, asked about replacing other aspects of the EAW. He asked whether the power will replicate other aspects of capability from the EAW such as the expedited extradition process. It will not. This new power is similar to the EAW only in so far as it provides for an immediate power of arrest. It does not change the subsequent extradition proceedings or the role of the Home Secretary in extraditions, which are dealt with under Part 2 of the Extradition Act. The person who has been arrested must be brought before a judge within 24 hours of arrest—although I take the point of the noble and learned Baroness, Lady Clark, that if it happens on a Saturday night it might be a bit more than that—and the subsequent extradition process remains as it exists now.

The noble Baroness, Lady Hamwee, and my noble friend Lord King of Bridgwater asked two equal and opposite questions: why now, and why not before now? Interpol data is now routinely uploaded to UK systems to make it available to front-line law enforcement officers. This means that the UK police might encounter an individual who, by performing a simple database check, they can see is wanted for a serious crime abroad. That was not previously the case. As I said, within the current system, the police are unable to arrest the individual immediately. There is an obvious gap, we have responded to that with the Bill, and Interpol is now available to front-line police.

A couple of noble Lords asked about reciprocity. Why is the power being extended to cover countries that will not arrest on the basis of an Interpol notice issued in the UK? Why is there not a reciprocal arrangement? We need to be clear that under the Bill we are creating powers for the UK police, not obligations to the countries concerned. The Bill will enable UK police officers to protect the public more effectively. It is about ensuring that UK police officers have the power to remove dangerous individuals from our streets before they can abscond or offend, not about bringing more wanted individuals back to the UK from other countries. Were this new power restricted to operating on a reciprocal basis, police officers could be put in a situation of encountering a dangerous individual on the street but being unable to arrest them due to the legal provisions of another country, and that does not make any sense.

The noble Baroness, Lady Hamwee, and the noble Lord, Lord Kennedy, asked what safeguards there are to show what steps the NCA has taken. It is a requirement of the Bill that the NCA issues a certificate setting out the category 2 territory, confirms that it is a valid request, certifies that it has reasonable grounds for believing that the offence is a serious extradition offence, and that the conduct is sufficiently serious that the certificate must be given to the arrested person as soon as is practicable after that arrest. The noble Lord, Lord Paddick, talked about sentences such as 10 years for theft. In fact, this not only applies to prison sentences of at least three years but, as I said, it applies to sufficiently serious offences. Offences such as stealing a bike or shoplifting would not satisfy that second point.

The noble Baroness, Lady Hamwee, and the noble Lord, Lord Kennedy, talked about human rights considerations. It is right that noble Lords interrogate this point, but the Bill is purely about shifting the point at which the police can intervene and arrest a wanted person. It in no way reduces the safeguards that must apply to any subsequent extradition proceedings considered by the court or the Home Secretary. Judicial oversight will continue as it does now after any arrest. The courts will continue to assess extradition requests as they do now, to determine, for example, whether extradition would be compatible with the individual’s human rights or whether the person would receive a fair trial. If they would not do so, extradition would be barred. That would include things such as the prison conditions that they might face and of course the death penalty, which the noble Lord, Lord Kennedy, raised.

The noble Lord, Lord Anderson, asked about the triage process. First, it applies only to specified countries; countries with a poor human rights record are not in scope. The addition of any other country will require the consent of both Houses of Parliament. Secondly, it applies only to sufficiently serious offences; the power will be available only in relation to offences that would be criminal in the UK and for which an offender could receive a prison sentence of at least three years.

The noble Lord, Lord Anderson, the noble and learned Baroness, Lady Clark of Calton, my noble friend Lord Inglewood and the noble Baroness, Lady Jones of Moulsecoomb, asked whether we already have the power to get an emergency warrant in urgent cases under the current mechanism for provisional warrants—basically, do we not already have the correct provisions in place? Crucially, however, under the current mechanism the police must already be aware that the individual is in the UK. It is not relevant here, as this legislation is concerned with chance encounters. The Bill creates an additional, different mechanism, which deals with these chance cases.

The noble Baroness, Lady Ludford, the noble and learned Baroness, Lady Clark of Calton, my noble friend Lord Inglewood and the noble Baroness, Lady Jones of Moulsecoomb, interrogated again the necessity for the Bill because of the numbers that might be involved. Obviously, it is a new power, so there is no accurate way to predict how many people it will apply to, and there is no quota, which makes this the right thing to do for security and public safety. It is about ensuring that UK police officers have the power to arrest dangerous individuals whenever they come across them on the street, to prevent them offending or absconding. However, I am clear today, as I was yesterday, that one dangerous fugitive on the streets of the UK whom we cannot arrest is one too many.

On some of the figures we have now, as of 31 December last year, over 4,000 Interpol alerts were in circulation from the countries specified in the Bill. Not all will be for fugitives in the UK, and not all will meet the seriousness criteria for this new arrest power. However, they include requests relating to terrorism, rape and murder, and if any of these wanted fugitives enter the UK or are encountered by police on UK streets, the police would not currently be able to arrest the individual. One dangerous fugitive is one too many.

The other question about necessity relates to the point made by my noble friend Lord King, which I echoed, on the international nature of crime now.

The number six in the impact assessment has been interrogated widely. It is not an indication of the number of dangerous individuals who would be arrested under this power; it is an analysis to assess the economic impact on the wider system. It is not a prediction of arrest numbers; that is to misunderstand the analysis. We cannot quantify how many opportunities to arrest dangerous fugitives have been missed because they have been missed. We can quantify the 4,000 Interpol alerts currently on the UK systems from specified countries; of course, the police would not have powers to arrest without the Bill.

[Baroness Ludford]

I put it to the noble Baroness that the statement in the impact assessment seems pretty clear. It says:

“The policy is expected to result in 6 individuals entering the CJS more quickly than would otherwise have been the case.”


That seems pretty simple. How can it mean anything but that?

[Baroness Williams of Trafford]

I am clarifying why that is not the case but if I am not clear, I will write in further detail to noble Lords before Committee. I am aware that time is pressing and I have a few more points to cover.

The noble and learned Baroness, Lady Clark, mentioned the lack of judicial scrutiny. That will come after the 24-hour period through the courts.

The noble Lord, Lord Anderson, talked about abuse of Interpol channels. International organisations such as Interpol are critical to our vision of a global Britain and international law enforcement co-operation beyond the EU. Interpol provides a secure channel through which we exchange information on a police-to-police basis for action. The UK continues to work with Interpol to ensure that its rules are robust. The former chief constable of Essex was recently made the executive director of policing services for Interpol—the most senior operational role in that organisation. Also, a UK Government lawyer was seconded to the Interpol legal service to work with it to ensure that Interpol rules are properly robust and adhered to by Interpol member states. I know the issue to which the noble Lord refers, but I hope that this gives him some comfort.

Extradition (Provisional Arrest) Bill [HL]

Baroness Ludford Excerpts

Report stage & Report stage (Hansard) & Report stage (Hansard): House of Lords
Monday 23rd March 2020 Lords Chamber

Moved by

[Baroness Ludford]

1: The Schedule, page 3, line 15, leave out from “judge” to end of line 19 and insert “as soon as practicable.”
Member’s explanatory statement
This amendment is to make the period within which a person must be brought before a judge consistent with other provisions of the Extradition Act 2003.

[Baroness Ludford (LD)]

My Lords, my noble friend Lady Hamwee, who has led for the Liberal Democrat Benches until now, regrets that under the advice of the Government and the Lord Speaker she cannot be here today.

Amendment 1 addresses new Section 74A, which requires someone who is arrested to be brought before a judge within 24 hours of arrest. However, no account is taken of weekends and bank holidays in calculating 24 hours—so, for example, someone could be arrested without judicial involvement on the Friday afternoon before a bank holiday until the following Tuesday. Concerns were expressed about this on Second Reading, and in Committee on 5 March in debate on my noble friend Lady Hamwee’s then Amendment 3. We have now reworded the amendment so that this Amendment 1 would add that someone should be brought before a judge “as soon as practicable”. The Government claim that wording other than that in the Bill is operationally unworkable because the courts do not sit at the weekend, but in Committee the noble and learned Lord, Lord Judge, who sadly also cannot be in his place today, said in support of changing the wording:

“Would you believe it, there is a judge on duty all weekend, every weekend, and all night”,


and that, if the provisional arrest happens over the weekend,

“it can be treated as urgent business.”

Both the noble and learned Lords, Lord Judge and Lord Mackay, took issue with what the phrase “brought before” means in 2020, with the noble and learned Lord, Lord Judge, pointing out that:

“It is questionable whether the word ‘brought’ requires the physical presence of the judge and the particular person so that they should be facing each other directly. Nowadays we have all sorts of technology that enables people to encounter each other while not in one another’s physical presence.”


The noble Lord, Lord Parkinson of Whitley Bay, said on behalf of the Government in Committee that it was

“the statutory intention that the person should be brought before a judge in person. It is an additional safeguard and a better situation for them to be seen in person before a judge.”

I am not really in a position to assess it, but I must admit that I am not convinced that is necessarily the case. We will of course see remote digital contacts in the justice system rolled out even more in present circumstances. In any case, the noble and learned Lord, Lord Judge, responded:

“If that is the problem, we need to amend the legislation to make it clear that ‘brought before’ does not mean that there is a personal, direct, physical confrontation.”


He said he was very willing to talk to the Government about that.

On another angle, we were told in Committee that it was the Government’s

“intention to replicate the … provisions under the Extradition Act”,—[Official Report, 5/3/20; cols. GC 367-368.]

with the implication that new Section 74A did that. But the noble Lord, Lord Parkinson of Whitley Bay, also explicitly acknowledged that the words in that Extradition Act 2003, in Sections 72(3) and 74(3) covering both an arrest under warrant and a provisional arrest in a Part 2 scenario, say:

“The person must be brought as soon as practicable before the appropriate judge.”


That is precisely the wording we want in Amendment 1. We on these Benches remain simply puzzled. If the Bill replicates or mirrors an existing provision—one we have not managed to find—can the Government explain precisely how? At the moment I cannot see how that is the case. In the absence of that explanation, we continue to believe that the Government need to change course. As far as we can see, it is Amendment 1, not the wording in the Bill, that mirrors that in the 2003 Act and aims for—and, we believe, achieves—clarity and consistency.

[Lord Wood of Anfield (Lab)]

My Lords, the amendment tabled by the noble Baroness, Lady Hamwee, highlights the need for caution over any period of detention before an individual is brought before the judge. From the points just made, I think the House can agree that it is unclear why these detention periods are inconsistent in different cases. The efforts to draw the House’s attention to this certainly have the support of this side of the House. I hope the Minister can offer the House an explanation as to the reason behind this inconsistency between urgent cases under the 2003 Act’s category 1 and category 2.

[The Minister of State, Home Office (Baroness Williams of Trafford) (Con)]

I thank the noble Baroness, Lady Ludford, for her explanation and the noble Lord, Lord Wood. As noble Lords will know, the courts to which all extradition suspects must be taken, whether arrested under Part 1 or Part 2 of the Extradition Act 2003—as currently or as amended by this Bill—are Westminster Magistrates’ Court for England and Wales, Edinburgh Sheriff Court for Scotland and Belfast magistrates’ court for Northern Ireland. Currently, the person arrested under the Act must generally be brought before the appropriate judge “as soon as practicable” following arrest. Under the new power of provisional arrest in this Bill, it must occur “within 24 hours”.

The reason the Bill was originally drafted in this way was to strike a balance between getting arrested individuals before a judge as quickly as possible—the point the noble Lord, Lord Wood, makes—and allowing the police sufficient time to gather supporting information. This mirrored, in a more stringent form, the approach to provisional arrest in Part 1 of the Extradition Act 2003, which requires an individual to be brought before an appropriate judge within 48 hours of arrest. But I am conscious that the drafting departs from the general requirement currently imposed on the police after they make arrests under other existing powers in the Extradition Act 2003—the point that the noble Baroness, Lady Ludford, makes.

I listened carefully at Second Reading and in Committee, and I 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 should therefore mirror the wording “as soon as practicable”. This will ensure that individuals are not detained for any longer than is strictly necessary. If, for example, an individual is arrested in central London, “as soon as practicable” would in all probability be within 24 hours. Our operational partners have already proved themselves 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.

Therefore, I intend to introduce a government amendment to this effect at Third Reading to address those concerns. The amendment will leave out the words “within 24 hours” and insert “as soon as practicable” in their place, as well as consequently deleting the express exclusion of weekends and bank holidays in the calculation of the 24-hour period. While the language will not explicitly rule out production on weekends or bank holidays, these factors will, of course, be relevant to the practicability of bringing an individual before an appropriate judge. If public holidays or court opening times were to change in future, the legislation would not need to be amended to take account of that. It remains the Government’s intention that the arrested person be brought before a judge sitting in court and so the concept of “as soon as practicable” will remain subject to court sitting times, which are determined by the judiciary. There may, of course, be a multitude of other factors which affect, in the individual case, the practicability of bringing an individual before a judge, such as distance, natural disasters or illness of the arrested individual. We continue to think it is right, therefore, that the judiciary is the arbiter, in the individual case, of whether this test of “as soon as practicable” is met, and it will be able to do so in determining any application for discharge under Section 74D(10).

I hope that the noble Baroness and the noble Lord are content with those intentions, which I will bring back at Third Reading and that the noble Baroness will be happy to withdraw the amendment.

[Baroness Ludford]

My Lords, I am very grateful to the Minister for having productively reflected on this. I can see the original attraction of a rigid time limit, and the Minister is right that there is inconsistency in the Extradition Act 2003, because there is a 48-hour limit for provisional arrest in Part 1. Perhaps that is what guided the drafting of the original Bill. As the Minister said, the experience of the relevant courts dealing with extradition in the different jurisdictions is that they are prompt and do not sit on these things. Therefore we can rely on the operations of the courts to make sure that “as soon as practicable” happens and that it is only some kind of force majeure that stops that being very soon, taking into account what the noble and learned Lord, Lord Judge, said at Second Reading and in Committee about the ability of a judge to be available, certainly in the Westminster court, on a Saturday. I am very grateful and look forward to the amendment that the Minister intends to bring back at Third Reading.

Forgive me if, in all the turmoil at the moment, my knowledge of procedure has gone slightly AWOL: I think I still need to move the amendment. No? Okay, then I shall withdraw it. I am obviously not very good at this—that is why we need my noble friend Lady Hamwee here. I end by saying that on the basis of the assurances and promises of the Minister, I beg leave to withdraw the amendment.

Amendment 1 withdrawn.

--- Later in debate ---

Moved by

[Baroness Ludford]

2: The Schedule, page 4, line 38, at end insert—
“( ) Regulations made under subsection (7)(a) shall designate no more than one territory.”Member’s explanatory statement
This amendment would require regulations which add, vary or remove a reference to a territory under Schedule A1 to contain no more than one territory. This will allow Parliament to reject a particular territory.

[Baroness Ludford]

My Lords, again I am moving this amendment on behalf of my noble friend Lady Hamwee. It is the same as Amendment 9 in Committee, though with a slight drafting change to refer to “regulations” rather than “orders”. We are pleased that the noble and learned Lord, Lord Judge, and the noble Lords, Lord Anderson and Lord Kennedy, have added their names and we understand why they are not able to be here today. I think that the noble Lord, Lord Inglewood, would have added his name had there been space.

As my noble friend Lady Hamwee explained in Committee, it is essential to allow additions to the Schedule for only one territory at a time. We can envisage a scenario in which the Government wish to add a whole raft of states to the Schedule all at once. For the sake of argument, let us imagine that would consist of all EU and EEA states and that in the list there is a country that might be an EU associated country, such as Turkey, but one over which considerable human rights concerns exist. I seem to be quoting a lot from the noble and learned Lord, Lord Judge, but he always says very wise things. In Committee, he said:

“We all know that there are countries in the world that do not respect the rule of law. I will not set about trying to give your Lordships a list because the list itself changes. Countries that respected the rule of law no longer do. Weimar Germany did; Hitler’s Germany did not. This is a moveable feast.”—[Official Report, 5/3/20; col. 378GC.]


That is a very good point. Turkey was making very good progress in democracy and human rights a decade ago, but it regressed, regrettably.

There is great concern that the Government want to give themselves wide powers for the Secretary of State to add countries to the list en bloc. I think it was in Committee that the Minister said that the Government had no intention of specifying countries likely to abuse the system to political ends. I utterly believe what she said, but I again quote the noble and learned Lord, Lord Judge, who raised at Second Reading the fear that

“in the real world we are surely not going to be so naive as to believe that all sorts of motives—a possible trade deal, a plea just to be good friends with us, political beliefs, sympathy with a tyrannical regime—may not lead”—[Official Report, 4/2/20; col. 1731.]

to an addition to the list in the Schedule, although he certainly excused our present Minister from falling prey to such motivation.

The non-governmental organisation Fair Trials International, for which I have been pleased to work for 20 years and of which I am a patron, has done excellent work on the abuse of Interpol red notices where countries use them against political opponents, human rights defenders and journalists living in exile. The journalist Bill Browder was famously the victim of one from Russia and wrote a book called Red Notice. There are numerous examples of such countries and one would not expect them to be added to the list—Azerbaijan, Venezuela, Egypt and many others where Interpol red notices have been used in a very questionable way. I do not think that the argument the Minister used in Committee—essentially that “one at a time is not how we do things”—is quite good enough. She said

“it is common practice to allow for multiple territories to be specified together for similar legislation.”—[Official Report, 5/3/20; col. 382GC.]

But I am not convinced that it needs to be invariable practice. It may have been common practice up to now, but we are not obliged to follow that. It is perfectly simple to do it one country at a time. This will not cause Whitehall to collapse in shock.

Our amendment could actually help the Government, as it would avoid Parliament rejecting the inclusion of a list that had good states as well as a bad state. We would not have to reject them all because of the inclusion of a single bad state, if I can use that shorthand. It would allow for the sensible, responsible outcome of bringing the respectable states into the provisional arrest arrangement while excluding a state that did not respect the rule of law and human rights.

Accepting this amendment would not lead to any delay as two or more sets of regulations, each relating to a single territory, could be tabled at the same time. We would not lose time. Ministers have been keen to stress that the Director of Public Prosecutions, Max Hill QC, supports the Bill, but I as I read his letter, he was supporting the general proposition, which is fair enough, but he was not commenting on this sort of detail, so will the Minister have a another look at this? We on these Benches would be happy to have a meeting to discuss it. We are keen to understand whether there is any substantive reason for rejecting the amendment, which, to be honest, we do not see at present.

In normal circumstances, we would be keen to test the opinion of the House on this, but since these are not normal times, will the Minister let us return to this matter at Third Reading, in the way that she has so helpfully promised that we could do on Amendment 1? We are firm on the substance of Amendment 2, in the same way as on Amendment 1, but we are flexible on the timing, so I hope that the Minister can respond in that vein. I beg to move.

[Lord Wood of Anfield]

I will speak to Amendment 2, and Amendment 3 in the name of my noble friend Lord Kennedy, who is unable to be here today. As we have just heard, Amendment 2 would require regulations that add, vary or remove a reference to a territory to contain no more than one territory. Allowing Parliament to reject a single territory would a create a valuable scrutiny mechanism for when either House has concerns to raise over a specific individual country that the Government intend to add because there will be occasions when the merits of adding individual territories are disputed. The amendment would create an important safeguard to exercise scrutiny in such circumstances and we support it.

In recognition of the powers in this Bill to add, remove or vary territories, Amendment 3 would create conditions for when the Government choose to exercise these powers. To this end, the amendment seeks to create a new process that means that the Government must take three further steps before adding and removing territories. The first condition for the Government to meet is to consult with the devolved Administrations and non-governmental organisations—the devolved Administrations because there will be certain powers relating to justice, policing and prisons that are devolved, and the non-governmental organisations to understand better any issues that arise from individual territories relating, for example, to the human rights records of the countries concerned.

The second condition is that the Government must produce an assessment of the risks of each change, which would put on record the Government’s rationale for signing the agreement, and allow for parliamentary scrutiny. The final condition is that if a new country is added, the Government must confirm that the country does not abuse the Interpol red notice system. That would make it clear that the Secretary of State responsible must not sign agreements with countries that have questionable records on human rights.

Although we fully accept the need to add further territories as treaties are negotiated, the Government must add only those that comply with our values. I am sure that all noble Lords would agree with that. While we fully accept that it may be necessary to remove or vary territories, it is important that the Government are transparent about their rationale and offer themselves to the scrutiny of Parliament. Will the Minister allay our concerns about the rationale and availability of scrutiny and about consulting with the devolved Administrations and NGOs by confirming that the Government already intend to consult and open themselves to scrutiny when they add or remove further territories?

[Baroness Ludford]

My Lords, we on these Benches support Amendment 3 in the name of the noble Lord, Lord Kennedy. We hope that the Government will confirm the involvement of the devolved Administrations and believe that there is a strong case to be made for consulting NGOs that have experience of the country concerned, however knowledgeable the Foreign and Commonwealth Office may be.

On the “risks” mentioned in paragraph (b) of the amendment, I imagine that the noble Lord means that he expects the Government to make an assessment of balance and proportionality in whatever conclusion they reach on the suitability of a country to be included.

Of course, we totally support his reference in paragraph (c) to the need to avoid the abuse of Interpol red notices, to which I referred in moving Amendment 1. I have said that I am a patron of Fair Trials International and I want to give it a plug: it has done sterling work on this issue in the past few years and can, I believe, take considerable credit for the reforms that have been made to Interpol red notices so far. They do not go far enough but reference has been made in previous stages of the Bill to the fact that some reform is going on at Interpol; that needs to improve because there is still the problem of abuse. Perhaps one day there will not be and we can look again, but, for the moment, Amendment 3 is very appropriate.

[Baroness Williams of Trafford]

My Lords, I thank both noble Lords who have spoken. I was looking at the noble Baroness, Lady Ludford, slightly strangely because it is unusual to speak twice on the same group of amendments. It really does not matter because these are very unusual times, so it is not a precedent.

I do not know whether noble Lords want me to go through the full arguments today or whether they want to return to them at Third Reading; I sense that that is the mood of the House. Noble Lords have made their arguments. For the reason that the noble and learned Lord, Lord Judge, is not here and would like a further crack at this whip, I suggest that we let this lie for the moment and return to it at Third Reading, if that is okay with noble Lords.

--- Later in debate ---

[Baroness Ludford]

My Lords, I beg leave to withdraw the amendment.

Amendment 2 withdrawn.

Extradition (Provisional Arrest) Bill [HL]

Baroness Ludford Excerpts

3rd reading & 3rd reading (Hansard) & 3rd reading (Hansard): House of Lords
Monday 15th June 2020 Lords Chamber

[Lord Foulkes of Cumnock [V]]

I am very happy to support this excellent amendment moved by my noble friend Lord Kennedy. I hope that if the Government do not accept it, he will press it to a Division.

The first aspect of the amendment is, as my noble friend Lady Kennedy has just spoken about, consultation with the devolved Administrations, an issue that I will come to in a moment, but also, rightly, with NGOs, as my friend also said. I had a lot of dealings with human rights NGOs and those involved with press freedom when I was general rapporteur on media freedom and the safety of journalists for the Council of Europe, and I found them very helpful for knowing up-to-date information about each country that we dealt with.

As far as the devolved Administrations are concerned, there is—with no disrespect to the noble Baroness, Lady Williams—an awful lot of talk of consultation but very little real, meaningful consultation with the devolved authorities. For example, on Covid recently, the Prime Minister talks about consulting but for a month now he has not chaired a meeting of COBRA in which the First Ministers have been involved. That is not the consultation that could be taking place, so we have to write it into legislation. The Joint Ministerial Councils, which ought to be working, are not working effectively, while the European arrest warrant was abandoned by this Government in spite of objections from the Scottish Government and other devolved Administrations. Consultation must be written into this.

The second reason I strongly support my noble friend Lord Kennedy’s amendment relates to the red notice system. I want to mention the terribly tragic death of Harry Dunn at the age of 19, with his whole adult life ahead of him, in a hit-and-run accident. It was really terrible. The driver of the car, Anne Sacoolas, an American citizen, the wife of a diplomat, escaped justice by fleeing from the UK back to America. That was disgraceful. Her diplomatic immunity itself was very doubtful. Can the Minister confirm that an Interpol red notice has been issued in relation to Ms Sacoolas? I think the Prime Minister has said that she should return, but what are the Government doing to insist on that and take action?

For those two reasons, I strongly support the amendment. As I say, I hope my noble friend will take real courage in his hands and call a Division on this matter if the Government refuse to accept his very strong and persuasive arguments.

[Baroness Ludford (LD) [V]]

My Lords, in Committee on 5 March the Minister said:

“The Government have no intention of specifying countries likely to abuse the system to political ends”—


that is, the Interpol system. Obviously, that was an important pledge, but it does not conflict with the need for Amendment 2 in the name of the noble Lord, Lord Kennedy, with an assessment of the risks and a statement confirming that the territory does not abuse Interpol red notices.

I also agree that devolved Governments and NGOs should be consulted. Fair Trials International, of which I have been a patron for two decades, has long campaigned to ensure that Interpol does better at filtering out abuses of its system before information is sent out to police forces across the globe. When abusive “wanted person” alerts slip through the net, victims should have redress through an open and impartial process. There is no court in which to pursue an appeal. Fair Trials has highlighted shocking cases of injustice and the devastating impact that these alerts can have on those affected. Bill Browder has said that your life as a human being is over.

Fair Trials has helped dozens of people who have been subject to abusive Interpol alerts from countries including Russia, Belarus, Turkey, Venezuela, Egypt, Sri Lanka and Indonesia. FTI has also worked constructively with Interpol to develop realistic reform proposals. It held a positive meeting with Interpol’s secretary-general, Jürgen Stock, to discuss reforming the red notice system.

In the context of mounting political pressure for reform, changes were introduced in 2015, when Interpol announced that it had taken the first steps towards implementing reforms, including the introduction of a new refugee policy. Then, in 2017, Interpol introduced a number of further reforms, including greater independence, influence and expertise of the supervisory authority, the CCF; better transparency and respect for equality of arms; reasoned and public decisions on individual cases; and a working group to review red notice operations.

The Minister said, again on 5 March, that

“the UK is currently working with Interpol to ensure that its rules are robust, effective and complied with. The former chief constable of Essex was recently made the executive director of policing services for Interpol, the most senior operational role in that organisation. A UK government lawyer has also been seconded to the Interpol legal service to work with it to ensure that Interpol rules are properly robust and adhered to by Interpol member states.”—[Official Report, 5/3/20; col. 364GC.]

Can she tell us any more about what further changes and reforms have been introduced since 2017 to prevent abuse? Although that is essential, I still hope that she can tell us that she will accept Amendment 2.

[Lord Adonis (Lab)]

My Lords, I cannot imagine that the Minister is going to tell us anything other than that the Government would consult the appropriate authorities before exercising the power under paragraph 7 of the Schedule, so the obvious question is: if the Government are committed to consulting, why will they not put it in the Bill, given the extent of the concerns that have been raised?

--- Later in debate ---

[Baroness Hamwee [V]]

My Lords, the noble and learned Lord, Lord Judge, has added his name to Amendment 3, as the noble Lords, Lord Kennedy and Lord Anderson, did to a similar amendment at an earlier stage. I am grateful to my noble friend Lady Ludford, who dealt with the matter on our behalf on Report, when, with the leave of the Minister, it was agreed that it be taken at Third Reading.

We often hear from the mover of an amendment: “This is a simple amendment.” Often, it is not quite that simple, but I believe this one is straightforward. When the Secretary of State lays regulations under new Section 74B(7)

“to add, vary or remove a reference to a territory”—

it is the addition that is the issue here—those regulations should apply only to a single territory. What I hope makes this simple to noble Lords is that there is nothing to prevent several instruments, each relating to one territory, being laid at the same time so that several territories can be specified within a matter of minutes of each other. But the crux is that Parliament should be able to reject one territory while happily accepting others.

In Committee, I used the examples of the Netherlands, a country which we respect, and Turkey, whose human rights record has regressed. I will use another pair today. I couple them only to distinguish between them: Sweden is a country we admire; Venezuela is one we do not, in this regard. If Parliament is presented with the choice of rejecting Sweden from the system because it wants to reject Venezuela, or accepting Venezuela because it wants to accept Sweden, how can Parliament possibly do the job we are all here to do when faced with an SI which is not amendable? The Minister has said previously that she would not present an SI that includes a country whose extradition requests we could not have confidence in due to their human rights record and would risk Parliament refusing extradition arrangements with a country that respects the rule of law. What the noble Baroness as an individual Minister might do is not the issue. I do not for a moment challenge her as an individual. This is a matter of system and procedure, not for an individual.

The previous amendment, which has just been agreed, referred to political motivation, and we must all be aware of the different criteria that different countries apply to the decisions they take as a state. Given the issues around relationships with countries regarding arms sales, for instance, is it any wonder that noble Lords are concerned about extradition to a country whose values, including valuing human life, are not our values?

The shortcomings and difficulties in procedures for dealing with secondary legislation are not a new point, but the fact that no amendments are possible is the most relevant one today. But, for once, we have a solution, which is to deal with these proposals one country at a time. I cannot understand an objection which seems to amount to no more than “It wasn’t invented here” or “not common practice”, to use the phrase used in Committee.

I need say no more, as I know that other noble Lords will contribute to the debate. Unless the Minister concedes, which I do not expect, I will test the opinion of the House, but for the moment I beg to move.

[Baroness Ludford [V]]

My noble friend Lady Hamwee has covered the strong case for this amendment and, to be quite frank, I cannot see on what grounds the Government can resist it. There is no good argument on administrative, parliamentary or human rights grounds not to have one territory per SI, so that Parliament can carefully discriminate between those territories where we are happy to have a law enforcement relationship and those that are, quite honestly, unreliable.

The way that the Government have resisted this improvement throughout the passage of the Bill in your Lordships’ House raises some concerns. Those are not linked, as my noble friend said, to the person of the Minister, but to any and every Government. We know that there will be pressures on this country, which has chosen—wrongly, in my opinion—to exit from the EU and make itself vulnerable to pressures in the context of seeking trade agreements. Those pressures are being discussed in a lively way, as they were last Wednesday in our Second Reading of the Agriculture Bill, when we discussed chlorinated chicken, hormone-treated beef and so on, and one can foresee similar kinds of pressures when countries seek favours from the United Kingdom in order to give us a trade concession. It would be all too tempting for a current or future Government to throw in a favour in a completely different area, such as law enforcement co-operation, in order to win a point for one economic sector or another in a trade deal.

In order to stop any such development in its tracks, it is completely reasonable to ask the Government simply to let Parliament decide on a country-by-country basis whether we want to add them to this system of provisional arrest. The onus is really on the Government to convince this House why it is reasonable to lump them together and not allow us to decide territory by territory, which is the obvious way to proceed.

Extradition (Provisional Arrest) Bill [HL]

Baroness Ludford Excerpts

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

[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.

[Baroness Ludford (LD)]

My Lords, I add my regrets to those expressed by other noble Lords on the loss to this country of the European arrest warrant. I was in the European Parliament when it was born, nearly two decades ago, and my last initiative as an MEP was to write a report on reform of the European arrest warrant, in which the former Home Secretary, Theresa May, expressed great interest before making some unilateral UK amendments about its implementation. It is not a perfect instrument, but it is a lot better than the alternatives, particularly the 1957 extradition convention.

I am focusing on Amendments 4 and 4A. In Committee, the Minister told us:

“The Government have no intention of specifying countries likely to abuse the system to political ends.”—[Official Report, 5/3/20; col. GC 364.]


First, Governments can, and sometimes do, change. Secondly, intentions, however sincere when made, do not always survive unscathed. Presumably the Government intended to act in good faith in respecting the EU withdrawal agreement that they negotiated, signed and recommended to Parliament and the country, but now they want to give themselves the power to override a key part of it. They no doubt intended to keep their promise to uphold high standards of food safety and animal welfare. If they reach a trade agreement with the United States, imports from there will not comply with those standards and our own farmers will become uncompetitive, putting pressure for deregulation here.

As my noble friend Lady Hamwee mentioned, there is also apprehension about what pressure might be exerted by potential trade partners. Outside the EU, the UK is more vulnerable because it is only one country. As part of a bloc of 28, we could say: “Sorry, we’re bound by EU law, we can’t give you an individual concession, so there is nothing we can do, chaps.” We are much more exposed to that pressure if trying to reach a bilateral trade agreement with a single country.

Those are the reasons of principle why we need individual statutory instruments, country by country. There are also practical reasons. By insisting that this House takes an all-or-nothing approach, the risk is that the House feels compelled to vote down an SI that contains some perfectly respectable countries and one dodgy one—my noble friend gave some examples. This would waste more time than if the Government had the good sense to take them one by one. It is quite puzzling why they are being obstinate in refusing to see the good sense of that. It would be far more efficient, effective and respectful of human rights and the transparency of parliamentary scrutiny to allow Parliament to focus on one country at a time. That need not slow down the process at all; it could possibly streamline it.

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

Are there any other Members present who would like to contribute at this point? If not, we can move on. The next speaker is the noble Lord, Lord Anderson of Ipswich.