Baroness Williams of Trafford contributions to the Extradition (Provisional Arrest) Bill [HL] 2019-21


Mon 15th June 2020 Extradition (Provisional Arrest) Bill [HL] (Lords Chamber)
3rd reading (Hansard): House of Lords
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Mon 23rd March 2020 Extradition (Provisional Arrest) Bill [HL] (Lords Chamber)
Report stage (Hansard): House of Lords
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Thu 5th March 2020 Extradition (Provisional Arrest) Bill [HL] (Grand Committee)
Committee: 1st sitting (Hansard): House of Lords
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Tue 4th February 2020 Extradition (Provisional Arrest) Bill [HL] (Lords Chamber)
2nd reading (Hansard): House of Lords
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Extradition (Provisional Arrest) Bill [HL] Debate

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Department: Home Office

Extradition (Provisional Arrest) Bill [HL]

(3rd reading (Hansard): House of Lords)
Baroness Williams of Trafford Excerpts
Monday 15th June 2020

(3 months, 2 weeks ago)

Lords Chamber
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1: The Schedule, page 3, line 15, leave out from beginning to end of line 19 and insert—

“(3) The person must be brought as soon as practicable before the appropriate judge (see further, section 74D).”Member’s explanatory statement

This amendment requires a person to be brought before the appropriate judge as soon as practicable after arrest. The Bill currently requires this to happen within 24 hours. The Minister’s other four amendments are consequential on this amendment.

Baroness Williams of Trafford Portrait The Minister of State, Home Office (Baroness Williams of Trafford) (Con) - Hansard

My Lords, before I begin my speech on this amendment, I would like to note that this is a historic moment. This will be the first opportunity, in history, to vote remotely in the House of Lords.

The Government have tabled Amendment 1 regarding the 24-hour time limit for the arrested person to appear before a judge. Amendments 4 to 7 are consequential upon that main amendment. These amendments seek to replace the 24-hour time limit with “as soon as practicable”, which reflects current practice under Parts 1 and 2 of the Extradition Act 2003.

At Second Reading, in Committee and on Report, there was considered and stimulating debate in this House on the requirement under the Bill regarding the time limit within which a person arrested under this power should be put before a court. As noble Lords 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 written or as amended by the Bill, are Westminster Magistrates’ Court for England and Wales, Edinburgh Sheriff Court for Scotland, and Belfast magistrates’ court for Northern Ireland. Currently, a 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, if this amendment is not made, that must occur “within 24 hours”.

The Bill was originally drafted in that way to strike a balance between getting arrested individuals before a court as quickly as possible 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 the appropriate judge within 48 hours of arrest. However, I am conscious that this drafting departs from the general requirement that is currently imposed on the police after they make arrests under the other existing powers in the Extradition Act 2003.

I have listened carefully to the concerns raised at Second Reading and in Committee and 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 that it should therefore mirror the wording “as soon as practicable”. That will ensure that individuals are not detained for any longer than is strictly necessary before being put before a judge. If, for example, an individual was arrested in central London, “as soon as practicable” would in all probability be considerably less than 24 hours. Our operational partners have already proved themselves very 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.

Additionally, if an individual is arrested and for legitimate reasons it is not possible to get them to court within 24 hours—for example, if they are arrested in a remote part of the UK or in an area affected by an extreme event—this change in wording will make the legislation operable across all parts of the UK in all circumstances.

Accordingly, I am introducing a government amendment to that effect to address the concerns expressed about this important issue both by noble Lords and by operational law enforcement partners. Although the language does 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 the appropriate judge. If public holidays or court opening times were to change in the future, the legislation would not need to be amended to take account of that. It remains the Government’s intention that the arrested person will be brought before a judge sitting in court, so court sitting times, which are determined by the judiciary, will be relevant to the concept of “as soon as practicable”.

There might of course be a multitude of other factors, such as geographical distance, natural disasters or illness of the arrested individual, that affect, in the individual case, the practicability of bringing an individual before a judge. Therefore, we continue to think that it is right that the judiciary are the arbiters, in the individual case, of whether this test of “as soon as practicable” is met, and they will be able to do so in determining any application for discharge under Section 74D(10).

I previously gave an undertaking to formally confirm that the Government intended to move this amendment today. It has the same overall purpose and effect as the one that the noble Baroness, Lady Hamwee, tabled on Report. I hope that noble Lords will be able to join me supporting this amendment. I beg to move.

Baroness Hamwee Portrait Baroness Hamwee (LD) [V] - Hansard

My Lords, I am grateful to the Minister for pursuing this issue. We raised it at the early stages of the Bill, and I am grateful to my noble friend Lady Ludford for continuing the argument on Report. I should also acknowledge today the critique of the Bill at Second Reading by the noble and learned Baroness, Lady Clark of Calton—I know that she discussed it subsequently with the Minister. She said then:

“There is nothing provisional about the consequences of being arrested.”—[Official Report, 4/2/20; col. 1743.]

Her remarks prompted me to think about the provisions of new Section 74A, taking account of weekends, bank holidays and so on. It was that—the extension from 24 hours to over a weekend or, in the case of Easter, even four days —which caused me to pursue the matter in Committee. That Committee marked the first outing of the noble Lord, Lord Parkinson of Whitley Bay; I hope he feels some sense of achievement for his part in this. He explained that it was the Government’s intention to replicate the existing provisions of the Extradition Act. That, of course, drove me to the Act and to this amendment; the Minister, as she said, agreed to bring the matter forward at this stage.

I note that, in the papers for today’s proceedings, the Minister’s explanatory statement refers to the 24-hour period, which, if it had stood alone without the possibility of extension, could have been acceptable, but I agree with her that it is right to have consistency throughout the Act. I confess to a bit of continuing anxiety, and not just about consistency within the Act. I have to say I was fairly confused when I came to look at the Act; it is a mighty beast. The Minister explained on Report, and I mention it today, that the original drafting was to achieve a balance between getting the arrested individual before a judge as quickly as possible and allowing the police sufficient time to gather supporting information. It is the latter that concerns me. The police must have the information to make the arrest, so what more is needed? Can the Minister expand on that when she winds up?

I am also slightly anxious because, inevitably, a fixed time period is clearer—it is much more easily enforceable; but that is a concern about the 2003 Act more broadly. I was reassured at earlier stages by the two very eminent noble and learned Lords, with their experience as two of the most senior members of the judiciary, who spoke about the 24/7 availability of judges. What is practicable now—as the Minister has explained in talking about geography and so on—is much more than a few years ago. I am very happy from our Benches and virtual Benches to support the amendment.

Break in Debate

Lord Foulkes of Cumnock Portrait Lord Foulkes of Cumnock (Lab Co-op) [V] - Hansard

My Lords, I have a question to which others may know the answer; forgive me if it is widely known. The Minister said in relation to Scotland that the court applicable was Edinburgh Sheriff Court. Can she let us know why Edinburgh Sheriff Court in particular was chosen, and why only Edinburgh Sheriff Court? Scotland is a very large country stretching from the border with England right up to Shetland. I wondered whether there might not be some practical problems if only Edinburgh Sheriff Court was applicable. So, what was the criterion and why only Edinburgh?

Baroness Williams of Trafford Portrait Baroness Williams of Trafford - Hansard

My Lords, it has been Edinburgh Sheriff Court since the Extradition Act 2003 has been in place.

Lord McNicol of West Kilbride Portrait The Deputy Speaker - Hansard

My Lords, as no other noble Lords have requested to come in on this debate, I shall now put the question on Amendment 1.

Break in Debate

Baroness Hamwee Portrait Baroness Hamwee (LD) [V] - Hansard

My Lords, in this amendment the noble Lord, Lord Kennedy, has successfully combined a number of issues raised during the passage of the Bill. As noble Lords know, it is very difficult to resist even an affirmative instrument. That is the reality of the system, so it is particularly important that the Government are transparent and inclusive.

I went back to look at the Delegated Powers memorandum and realised—I had not noticed this before—that we are told as part of the justification for taking the power that a

“response to changing circumstances”—

which I will come to—

“provides certainty and clarity as to the appropriate manner of request from amended or newly specified territories. For example, if the UK were not to have access to the European Arrest Warrant or a similar tool, with the effect that EU Member States become re-designated as category 2 territories, it is likely to be appropriate to specify some or all of them for the purposes of this legislation.”

We had quite a bit of debate at the beginning as to whether the Bill is really preparing for us not being part of the EAW system, so there will be some interesting debates to come as territories are added.

As a member of the EU Select Committee, I have had the opportunity of hearing the Chancellor of the Duchy of Lancaster mention this on a number of occasions. He said that what is important is to preserve our sovereignty, matters of proportionality and the state’s readiness for trial. As I say, there will be quite a bit to discuss as we add other countries.

The delegated powers memorandum also says:

“in the unlikely event of a deterioration in the standards of the criminal justice system of a specified category 2 territory, it is likely to be appropriate to remove”

it; well, the United States has been mentioned already by the noble Baroness, Lady Kennedy of Cradley. I suppose the answer to that is in the question of deterioration, because there are plenty of concerns about its processes now.

The House will be aware of our enthusiasm for consultation. I know that they do not claim this, but the Government do not have the monopoly of wisdom. Like other noble Lords, I am often very impressed by the knowledge that NGOs have. My noble friend Lord Paddick raised this point. I hope the Minister can confirm that, in legislation-speak, the Secretary of State’s opinion must always be a reasonable opinion and can be challenged on the basis that it is not reasonable.

I tabled an amendment in Committee to the effect that the designated authority—in our case, the NCA—must be satisfied that the request is not politically motivated. The Minister responded carefully and in detail, and I was grateful for that. The Committee was then reminded that the Extradition Act has safeguards in respect of requests motivated by a person’s political views. I want to make a distinction between that amendment and the one in the name of the noble Lord, Lord Kennedy, which is about the abuse of the red notice system. I think that is different; it is to do with the requesting territory’s approach on a wider basis. I hope that the House will accept that the narrower amendment has been disposed of, as it does not deal with the wider point. From our Benches, we support the amendment.

Baroness Williams of Trafford Portrait Baroness Williams of Trafford - Hansard

My Lords, I thank noble Lords who have spoken to this amendment. Amendment 2 deals with the proposed statutory requirements for a consultation, the laying of statements before Parliament setting out the risks of any amendment to add, vary or remove a territory to the Bill and, in the case of additions, confirming that a territory does not abuse the Interpol red notice system prior to laying any regulations which seek to amend the territories subject to the Bill.

The Government are committed to ensuring that Parliament has the ability to question and decide on whether any new territories should come within scope. Therefore, it is mandated in the Bill that any Government wishing to add a new territory should do so through the affirmative resolution procedure. Any statutory instrument laid before Parliament will, of course, be accompanied by an Explanatory Memorandum that will set out the legislative context and the policy reason for the instrument. This procedure will give Parliament the opportunity to scrutinise proposals and allow the House to reject any proposals to add, remove or vary any territory to, from or in the Bill. The reasoning put forward will need to satisfy Parliament that the territory in scope does not abuse Interpol red notices or create unacceptable risks.

While extradition is a reserved matter, relevant officials are engaged in regular discussions with their counterparts in the devolved Administrations about how it should operate in practice. They would of course engage with them as a matter of good practice were any secondary legislation to be introduced in relation to it. Similarly, several relevant NGOs and expert legal practitioners have been consulted by officials in the normal way; this answers the questions of the noble Baroness, Lady Ludford. All external stakeholders are able to make direct contact with parliamentarians so that their views are included in all debates connected with secondary legislation associated with the Bill, as they have done during its current passage by contacting several noble Lords in this House.

A number of noble Lords, including the noble Baronesses, Lady Hamwee and Lady Ludford, talked about the abuse of Interpol channels. I will expand on that a bit. In arguing that maybe a power should not be enacted, given previous abuse of Interpol channels by some hostile states, the noble Baroness, Lady Ludford, cited the case of Bill Browder. International organisations like Interpol are critical to international law enforcement co-operation and are aligned with our vision of a global Britain. 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, effective and complied with. The former chief constable of Essex was recently made the executive director of policing services for Interpol, which I was delighted about. It is the most senior operational role in that organisation. A UK government lawyer has also been seconded to the Interpol notices and diffusion task force, to work with it to ensure that Interpol rules are properly robust and adhered to by Interpol member states.

In terms of the specification of non-trusted countries, the power will be available only in relation to requests from the countries specified in the Bill—countries in whose criminal justice systems we have a high level of confidence, and that do not abuse Interpol systems. The Government will not specify any country that is not suitable. The addition of any country must be approved by both Houses, and I trust that neither House will be content to approve the addition of a country about which we have concern.

I will try to make it easy for the House, because we will now have our first ever virtual vote in the House of Lords. I understand that noble Lords would like to divide on this, and I hope that they will join me in resisting the amendment.

Lord Kennedy of Southwark Portrait Lord Kennedy of Southwark [V] - Hansard

My Lords, this has been a good short debate. I thank my noble friends Lady Kennedy of Cradley, Lord Foulkes of Cumnock, Lady Wilcox of Newport and Lord Adonis, as well as the noble Baronesses, Lady Ludford and Lady Hamwee, and the noble Lord, Lord Paddick, for their support. All noble Lords carefully set out the need for this amendment in a most convincing way. I am not persuaded by the response of the noble Baroness, Lady Williams of Trafford, which I found disappointing. I will not disappoint her, and I will make it very clear that I certainly wish to test the opinion of the House in this first ever virtual vote.

Break in Debate

Lord Kennedy of Southwark Portrait Lord Kennedy of Southwark [V] - Hansard

My Lords, I support Amendment 3, tabled by the noble Baroness, Lady Hamwee, and the noble and learned Lord, Lord Judge. As noble Lords have heard, this issue has been considered by the House as the Bill has made its progress through the various stages. What is proposed here today is simple, effective and, I contend, good government.

Surely it must be right that when we are designating countries that we wish to form an extradition agreement with, after the detailed work has taken place, Parliament should have the opportunity to accept or reject the designation for an individual territory. Parliament generally, and this House in particular, does not often vote down regulations. We may pass Motions to Regret or debate the merits of what is proposed, and many may express deep reservations, but fatal Motions are very rare.

This amendment is important; it is good practice and what good government should be all about. It guards against this or any future Government, of whatever political persuasion, seeking to group together a number of countries and push them through en bloc where, for example, nine of the 10 countries proposed have good reputations, a good track record and respect for the rule of law, do not persecute dissidents, do not abuse human rights and do not abuse Interpol red notices, but the remaining country has a more questionable record on one, or a number of, the issues I have raised. In such a case, it would be wrong for the Government to try to force through an agreement under the cover of Parliament not wanting to reject the other territories, and would give the country about which questions have been asked some form of protection that it does not deserve, making the approval a fait accompli. Parliament should, in all circumstances, guard against that.

If passed, this amendment would allow Parliament, on the rare occasion that it rejects regulations, to do so quite clearly on the record of the individual territory that the Government propose to sign an agreement with. That is right, proportionate and the sensible way to deal with this important part of public policy; no other agreement will be put at risk. It is good government, and I hope noble Lords will support the amendment if it is put to the vote.

Baroness Williams of Trafford Portrait Baroness Williams of Trafford - Hansard

My Lords, on previous occasions this House has spoken at length on the question of what constitutes appropriate parliamentary scrutiny, in the wider sense, in relation to the addition of any territory, and has just done so again on Amendment 2. I will now expand further in addressing Amendment 3, in the names of the noble Baroness, Lady Hamwee, and the noble and learned Lord, Lord Judge, which seeks to mandate that this be done by individual statutory instrument for each suggested country.

I was slightly dismayed to hear noble Lords talk about mutual extradition arrangements because, as I have clarified on several occasions, this has not, and never has been, about mutual extradition arrangements. We do not do this on behalf of other countries, and if, for example, we did it on behalf of Turkey, the courts would throw it out—even if the Government could get it through Parliament, the courts would throw it out.

When this issue was debated in Committee, it was pointed out that statutory instruments that seek to specify new territories are not amendable. Some feel that this may create a difficulty for this House if regulations were laid which sought to specify multiple countries. As I have said before, the process of potentially listing multiple countries already exists for adding territories to both parts of the Extradition Act 2003.

It was further pointed out that there are countries in the world which do not respect the rule of law and a concern was raised that a future Government may seek to add such countries to this legislation, countries that this House and the other place together may think it inappropriate to add. Again, even if the Government could get it through Parliament, the courts would throw it out.

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Moved by

Baroness Williams of Trafford Portrait Baroness Williams of Trafford - Hansard

That the Bill do now pass.

Baroness Williams of Trafford Portrait Baroness Williams of Trafford - Hansard

My Lords, I thank the noble Lords who engaged very constructively with the Bill, particularly the noble Lords, Lord Kennedy and Lord Paddick, the noble Baroness, Lady Hamwee, the noble and learned Lord, Lord Judge, and my noble and learned friend Lord Mackay of Clashfern. The Chief Whip’s beeper is going so I think he wants me to keep my comments short.

Extradition is not an easy subject, but this has been most interesting legislation, with very well-drafted and thoughtful amendments. Everyone will benefit from the work done on this. I particularly thank officials from the Home Office, who have supported me so brilliantly throughout. I beg to move.

Lord Kennedy of Southwark Portrait Lord Kennedy of Southwark [V] - Hansard

My Lords, I echo the noble Baroness’s comments. I thank all noble Lords who have taken part in the proceedings on the Bill. I enjoyed working with everybody concerned. I think that we have made the Bill better. As always, the noble Baroness has been courteous and kind and always prepared to engage with me constructively. I also thank all her officials from the Home Office for the way they have worked with me during the Bill’s passage.

Extradition (Provisional Arrest) Bill [HL] Debate

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Extradition (Provisional Arrest) Bill [HL]

(Report stage (Hansard): House of Lords)
Baroness Williams of Trafford Excerpts
Monday 23rd March 2020

(6 months, 1 week ago)

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Lord Wood of Anfield Portrait Lord Wood of Anfield (Lab) - Hansard

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.

Baroness Williams of Trafford Portrait The Minister of State, Home Office (Baroness Williams of Trafford) (Con) - Hansard

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 Portrait Baroness Ludford - Hansard

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.

Break in Debate

Baroness Ludford Portrait Baroness Ludford - Hansard

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 Portrait Baroness Williams of Trafford - Hansard

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.

Lord Stevenson of Balmacara Portrait Lord Stevenson of Balmacara (Lab) - Hansard

I am sorry to interrupt. The sensibility behind the noble Baroness’s comment is that this a matter that we can come back to at Third Reading. Without wishing to be overly bureaucratic about it, following her helpful line in allowing issues on Report to be taken in a more relaxed way, a rule in the Companion is quite clear that it is with the leave of the Minister that matters can be raised again. Is she saying that, if these amendments are withdrawn, she will accept that they may be brought back for further debate and discussion? That would be sufficient for the clerks to be able to allow us to do that.

Baroness Williams of Trafford Portrait Baroness Williams of Trafford - Hansard

I most certainly am saying that. For me to lay out arguments today, with the noble Baroness saying what she said about coming back to this at Third Reading, would seem a little futile. That is absolutely what I am saying.

Baroness Ludford Portrait Baroness Ludford - Hansard

My Lords, I beg leave to withdraw the amendment.

Extradition (Provisional Arrest) Bill [HL] Debate

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Extradition (Provisional Arrest) Bill [HL]

(Committee: 1st sitting (Hansard): House of Lords)
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Thursday 5th March 2020

(7 months ago)

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Lord Deben (Con) - Hansard

I support what my noble and learned friend Lord Mackay just said. There is a fundamental distinction between the Executive branch and the legal branch. My objection to the Bill is that it includes a country where that division is nothing like as strong as ours. One of the issues is that these mechanisms for extradition are politically motivated in one of the five countries. The distinction between the Executive and the judicial system is crucial in people’s protection. Therefore, I very much support my noble and learned friend making that distinction, which distinguishes us and four of the other countries from the fifth. We ought to underline that very strongly.

Baroness Williams of Trafford Portrait The Minister of State, Home Office (Baroness Williams of Trafford) (Con) - Hansard

My Lords, I thank all noble Lords who have made their points on these amendments and the noble Lord, Lord Kennedy, for moving Amendment 1. To recap, at Second Reading there was considerable cross-party consensus on the Bill’s aims and measures, alongside the robust scrutiny that I expect from the House, and now the Committee. The amendments before us rightly tease out some of those points.

Noble Lords will be interested to know that the Director of Public Prosecutions, Max Hill QC, wrote to the new Security Minister on 2 March. His letter, which I will put in the Library following Committee, says:

“Overall, it is the firm view of the CPS that this Bill strikes the right balance between ensuring sufficient human rights safeguards and delivering the capabilities that the police and CPS require in order to safeguard the public … under the current process there remains a risk that UK law enforcement could encounter a potentially dangerous person wanted for a serious crime by a trusted partner, but for whom they would have no power to arrest and detain … The Bill does not make it more or less likely someone will be extradited, but it does increase the chances that persons wanted for serious offences by some of our closest and trusted partners will enter, with all the existing safeguards, the extradition process.”

I know that reporting on the effectiveness of the legislation, and the reliability of Interpol alerts, is a topic of interest. If the Committee will allow it, I will address Amendments 1 and 2 together as both concern reporting on the legislation’s effectiveness.

On the perceived risk of abuse of Interpol notices highlighted in Amendment 1, I reassure the Committee that the immediate power of arrest proposed in the Bill will apply only to requests from specified countries—currently the US, Canada, Australia, New Zealand, Liechtenstein and Switzerland. These countries have been specified as we have a high level of confidence in their criminal justice systems and use of Interpol notices. The Government have no intention of specifying countries likely to abuse the system to political ends.

Additionally, 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. We will continue to work with Interpol to increase the reliability and trustworthiness of the whole red notice system.

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. It is important to remember that we are putting our trust in particular countries and that we will certify certain international arrest requests from only those countries, not any other Interpol notices. An arrest request from our trusted partners may be in the form of an Interpol notice, but it will be certified not because of the method by which it is sent to us but because it comes from a specified country and is for a serious offence.

Break in Debate

Lord Deben - Hansard

Did my noble friend notice that the President of the United States has just taken credit for 3,000 judicial appointments and said that he has therefore ensured that those judicial appointments will make decisions in line with his and Republican Party policy? How can one possibly say that this is the same kind of judicial system that we have?

Baroness Williams of Trafford Portrait Baroness Williams of Trafford - Hansard

A judge would take a view on whether something was politically motivated. Something blatantly politically motivated would be rejected.

Lord Deben - Hansard

I understand that, and we have the protection that the request has to go before a judge but, in this document, the Government give accreditation to the United States, which has no reciprocal arrangements with us, and talk about a “trusted partner” when it is not a partner. It will not do this the other way around and, clearly, it asks for the extradition of people on political or commercial grounds, which would not happen with Canada, Australia, New Zealand, Liechtenstein or Switzerland. We are saying something about the United States that surely none of us believes.

Baroness Williams of Trafford Portrait Baroness Williams of Trafford - Hansard

I think my noble friend is referring to the Extradition Act itself, not the pre-extradition arrest process. I do not know whether he is questioning the Extradition Act’s efficacy, but that is not what we are talking about in the Bill. He also has an amendment down for later in Committee so perhaps we could come back to this at that stage if he wants to make further points.

Lord Deben - Hansard

I am happy to do that; I merely say to my noble friend that I have tabled the amendment and wish to discuss it because this is our opportunity to do so and we are repeating our view. My noble friend is using phrases that are, I think, unsuitable, given the relationship. We are, after all, extending—perfectly properly, I think—the way the Extradition Act works. It seems reasonable at this point, before we go any further, to question whether one ought to use those phrases in these circumstances.

Baroness Williams of Trafford Portrait Baroness Williams of Trafford - Hansard

We will get on to my noble friend’s point, but we use Parliament to make law rather than to make points. I hope he will respect the point that I make.

The noble Lord, Lord Inglewood, asked about obligation to extradite. He is absolutely right. The Bill creates powers for the police, not obligations to other countries.

Amendment 2 requests the publication of an annual statement on arrests. The NCA already keeps data and publishes statistics around arrest volumes in relation to Part 1 of the Extradition Act. It does it without being required to do so by primary legislation. We have no doubt that it will similarly do so in respect of arrests under this new arrest power, as this is a sensible operational practice. I have sympathy for the amendment, so I have asked officials to look at how we can give the noble Lord, Lord Kennedy, some reassurance. I hope he will accept that I will liaise with him between now and Report.

I am not persuaded that the either the Secretary of State or the NCA require a statutory obligation to take these steps. I hope I have been able to persuade the noble Lord not to press his amendments, but we will have further discussions between now and Report.

Lord Kennedy of Southwark Portrait Lord Kennedy of Southwark - Hansard

My Lords, I thank all noble Lords who have spoken in this short debate. I am obviously happy to withdraw my amendment for the moment.

I agree with the point made by the noble Lord, Lord Inglewood. The noble Lord, Lord Deben, has also made some important points, which I know we will come to later.

The noble and learned Lord, Lord Mackay, mentioned Parliamentary Questions. Sometimes, the Answers we get are not very good, to say the least. That goes across government. I am going to have to start tabling Questions about Parliamentary Answers. I asked one recently of another department. I asked, “What do we here?” and the Answer had no bearing whatever on the Question. I raised that with the Minister concerned and he accepted that. I thought, “Just answer the Question. If you can’t answer it, tell me you can’t answer it.” They had sent back a ridiculous Answer that had no bearing and it is not good enough. Unfortunately, that is a problem across government. Maybe we need a debate in the House about it. I am going to try putting in FoIs and comparing answers between PQs and FoIs. Will the answers be as bad there? We will see. But that is a separate issue. I would love to think that PQs were the answer; unfortunately, in my experience of being here for nearly 10 years, they are not.

Having said that, I am pleased with the Minister’s response, especially to my second amendment. I look forward to further discussions between now and Report. On that basis, I am happy to withdraw my amendment.

Break in Debate

Lord Kennedy of Southwark Portrait Lord Kennedy of Southwark - Hansard

Amendment 5 in this group is in my name. It would simply put “National Crime Agency” into the Bill. Throughout the Bill, there are references to the “designated authority”, but there is no mention of a specific agency. I am sure that the Minister will set out why the Bill is framed in that way and I look forward to that explanation.

Other amendments in this group are in the name of the noble Baroness, Lady Hamwee. They are all useful, as they give the Minister the opportunity to explain further the Government’s reasoning in specific areas and to convince the Grand Committee of the protections in the Bill.

On Amendment 4, who will be responsible and accountable if the safeguards fail and we end up complying with a request that is politically motivated? Amendment 11 would take away the uncertainty built into the Bill. I do not like phrases such as “the designated authority believes”. “Believes” is a strange word to have in legislation. I like there to be a bit more certainty than is offered by a word such as “believes”. It seems very loose and open to all sorts of interpretations by all sorts of people.

Amendment 11A raises the circumstance where somebody could be rearrested under a new certificate. I accept that circumstances can change and maybe those powers are needed, but if somebody has been released under one certificate, we need to make clear what would need to change for them to be rearrested under a new one.

Amendment 11C has my full support. In many ways, it is a compromise between what the Bill says and what Amendment 5 says. Doing it through an SI is probably the best way forward, so I fully support Amendment 11C. I look forward to the Minister’s response.

Baroness Williams of Trafford Portrait Baroness Williams of Trafford - Hansard

I thank the noble Lord, Lord Kennedy, and the noble Baroness, Lady Hamwee, for their points on these amendments. They have been grouped together as dealing with the functions of the designated authority and the criteria applied by it in certifying requests.

Amendment 4 proposes a new criterion for certification. This would require the designated authority to be satisfied that the request is not politically motivated. Making consideration of political motivation a precondition of certification for the designated authority would reverse the present position for arrests under the Extradition Act 2003. Presently, the courts are required to consider during the substantive extradition hearing whether any of the statutory bars to extradition apply. These statutory bars include whether the request for extradition is made for the purpose of prosecuting or punishing an individual on account of their political opinions—that comes under Section 81 of the Extradition Act 2003. The Government’s position remains that it is right that the judge considers these points based on all the evidence before him or her during the substantive hearing and not the NCA prior to arrest. It is the judge who is ultimately accountable.

Furthermore, we are all aware that the Extradition Act contains substantial safeguards in respect of requests motivated by reason of the requested person’s political views. These safeguards will continue to apply, and we fully expect the courts to continue to exercise their powers of scrutiny as usual.

Arguments of political motivation are of course not usually simple. It is right that the question of whether an individual extradition request can be described as politically motivated should be assessed by a judge before an open court. It is vital, of course, that the requested person should be able to put their arguments on this basis to a judge, but it is also crucial, in the fulfilment of our obligations under the international arrangements on extradition that give rise to such proceedings, that the requesting authority should be able to respond to such arguments and put their own case as to why the request is not politically motivated. This should be openly and fairly arbitrated, so importing this consideration into the process for determining whether an individual may be arrested would be at odds with existing extradition law. Noble Lords will be aware that judges and justices of the peace are not required to consider such factors when deciding whether to issue an arrest warrant under Section 71 or Section 73 of the 2003 Act.

Were the designated authority to make such a deliberation in effectively, it would need to be able to invite representations on the point from both the requesting authority and the requested person in each case before certification. Not only would this be hugely resource-intensive, it would also advertise to the wanted person that they are wanted. I should note that the designated authority, as a public body, would already be under an obligation to act compatibly with convention rights under Section 6 of the Human Rights Act 1998. At the point of certification, this will include consideration of whether an arrest is ECHR-compatible.

I bring the attention of noble Lords to the types of territories proposed as appropriate specified territories. These are democracies whose criminal justice systems are rooted in the rule of law. I am certain Parliament would not accept the addition to the schedule of territories that we believed would send the UK politically motivated arrest requests. I hope I have been able to persuade the noble Baroness that there is no gap in safeguards here and that, consequently, she will be content with withdraw her amendment.

She also asked what is meant by the “seriousness of the conduct”. The language mirrors the test in Part 1 of the Extradition Act 2003. As she thought, there is indeed case law on the point. The intention is to capture only conduct sufficiently serious to ensure that the power is used only where proportionate. For example, the minor theft of an item of food from a supermarket or a very small amount of money is unlikely, without exceptional circumstances, to be sufficiently serious. Only when the designated authority decides that the offence satisfies the test will it be able to certify the request.

I turn now to Amendment 5, which seeks to define the designated authority as the National Crime Agency in the Bill. Our approach here mirrors that of the designation of the authority responsible for certification of European arrest warrants under Part 1 of the Act. The Government consider that the designation of the authority responsible for issuing a certificate is an appropriate matter to be left to secondary legislation. A regulation-making power affords the appropriate degree of flexibility to amend the designated authority in light of changing circumstances, including alterations to the functions of law enforcement bodies in the UK. To future-proof the legislation, the Government believe that the current drafting leaves an appropriate amount of flexibility. As I said, the Government’s intention is initially to designate the NCA, which is the UK’s national central bureau for Interpol, as the designated authority. I hope I have persuaded the noble Lord that we have got the balance right and that he will be content not to press his amendment.

I turn finally to Amendment 11, on requests made in the “approved way”. My noble friend’s amendment suggests that a request should be considered to have been made in the approved way only if it is made by an authority that has the function of making such requests in the territory concerned, rather than an authority which the designated authority believes to have this function.

Perhaps I may momentarily be a bit philosophical. The amendment attempts to base the assessment of the authority’s function on an objective truth. That is admirable from the point of view of legal certainty, but the designated authority does not have a monopoly on truth. The best it could do in practice, when making the assessment described in the amendment, would be to decide, to the best of its ability, whether the authority in question has the function of making such requests, arriving at what I think we would characterise as being a belief that it does so. Of course, the designated authority, as a public body, must take decisions that are reasonable and rational.

As such, we expect there to be no difference between how the assessment would be made in practice under the amendment and how it would be made under the existing text. The benefit of the text, as we have proposed it, is that it mirrors language elsewhere in the Extradition Act—for example, when the designated authority under Part 1 may issue a certificate in relation to a warrant and when the Secretary of State may issue a certificate under Part 2.

On the perceived risk implicit in Amendment 11A—that an arrested person could be rearrested for the same thing, having been discharged by a court, perhaps because they were not produced at court on time or for some other failing—I reassure the Committee that this is neither the intention nor the effect of the new sections in the Bill. New Section 74A(8) makes clear that an arrested person may

“not be arrested again in reliance of the same certificate”

if they have previously been discharged. The intention of this drafting is to stipulate that an individual may not be arrested again on the basis of the same international arrest request once a judge has discharged them. This mirrors Section 6 of the Extradition Act 2003, which provides for the same thing, where a person provisionally arrested on the basis of a belief relating to a European arrest warrant may not be arrested again on the basis of a belief relating to the same European arrest warrant.

On top of that, new Section 74B(3) requires that a certificate has to have been withdrawn before any arrest takes place to allow a new one to be issued relating to the same request. This again illustrates that a further certificate cannot simply be issued on the basis of the same request once an individual arrested under this power has been discharged by a judge.

Of course, it is vital that a certificate can be issued on the basis of a new request, or on the basis of a wholly different request, so that an individual wanted for another crime is not immune to any further arrest because they were once arrested and discharged for a different crime. Organised transnational offences, such as people trafficking, often involve offences in different countries, on different dates, with different victims, and no individual should be able to avoid answering for more than one serious crime using a legal loophole. The amendment would create that impunity. For that reason, I hope I have been able to persuade the noble Baroness and that she will be happy not to press that amendment.

Amendment 11C would require an affirmative resolution procedure to apply to any statutory instrument that designates an authority as a “designated authority”. Given that the framework and criteria for the issuing of a certificate are provided for in the Bill, we consider that the negative resolution procedure affords an appropriate level of parliamentary scrutiny. We have plainly set out what the designated authority will do and how they must do it. Which particular body exercises that function is not, in our view, a matter that needs to be subject to debate in both Houses. The use of the power to designate an authority is necessary to accommodate any changing circumstances, including alterations to the functions of law enforcement bodies in the UK, and we consider it appropriate that we can respond to this promptly. The application of the negative procedure is also, again, completely consistent with the procedure for designating an authority for the purposes of issuing a certificate in respect of a European arrest warrant under Part 1 of the Extradition Act 2003.

I am sorry for my long-winded response to these several amendments. I hope the noble Baroness and the noble Lord are happy not to press their amendments.

Baroness Hamwee Portrait Baroness Hamwee - Hansard

I do not think the Minister was long-winded; it is quite a long group of amendments. I am grateful to her for that. I should have brought my iPad so that I could have followed all the references to the 2003 Act. I take all the points that the Minister made—in particular, the point about organised crime. One does not always remember how the nature of crime changes. I beg leave to withdraw the amendment.

Break in Debate

Lord Kennedy of Southwark Portrait Lord Kennedy of Southwark - Hansard

My Lords, Amendment 6 is a very good probing amendment from the noble Baroness, Lady Hamwee. As I raised on the previous group, the words of the Bill need clarifying. This amendment gives the Minister the opportunity to do that and to explain why the word “vary” is in new Section 74B(7)(a). We have to be very careful with the words that we use in legislation. I can see why we would want to add or remove a territory, but why vary it? Is it to address a name change? I am sure that the Minister will tell us why. Amendment 7 allows the Minister to explain the need for this power. It may be perfectly sensible, but to make that clear would be most welcome.

My Amendment 8 is fairly simple. It seeks to improve the Bill—as do all my amendments—by requiring the Government to report changes before adding, removing or varying a reference to a territory. What is the process for adding a country? How will additions to the list be approved? What would the parliamentary scrutiny be? What is the process for the talks?

I also have my name to Amendment 9, which has been referred to in a number of contributions. The Government would have to add territories one at a time; I very much agree with that. Parliament could reject a specific country or territory, which seems very sensible and proportionate. However, this came out in Second Reading: is this Bill also a back door to some sort of protection from the loss of the European arrest warrant? I know the Government said that it was not, but this would allow them to add the European Union straight away and in one go. That would be an interesting thing for the Government to do. When I thought of that, I was reminded of the interesting PNQ that the noble Lord, Lord Paddick, recently asked about the European arrest warrant. I also recalled the comments of the noble Lord, Lord Robathan. He asked a question of the Minister:

“My Lords, is it not the case that not all European arrest warrants are the same? A European arrest warrant from France or Germany, with whom we share the same respect for the rule of law, is one thing, but a European arrest warrant from one or two other countries—here I particularly mention Romania—is not the same because often political interference has taken place in the judicial system.”

The Minister replied:

“My noble friend makes a very good point about political interference. In fact, that is one of the safeguards within what we are seeking. He is right to make the point that not all EU states are the same.”—[Official Report, 2/3/20; col. 398.]

If the Government decide to put in the European Union in the future, that point could not be addressed. It is a valid issue—or, of course, it may not be an issue at all. It would be useful to have a response on that.

Amendment 10 should cause the Government no problem at all; I look forward to the Minister’s response on that. The noble Lord, Lord Deben, makes a valid case in Amendment 11B. “Levelling up” is the new buzzword in the Government. I think that we need a bit of levelling up in our special relationship with our friends across the pond as far as it applies to extraditing suspects who are wanted for crimes committed in this country. They must be very serious crimes which need to be investigated. Questions need to be asked, and potentially the evidence test is made and the matter is put before a court in the UK. The noble Lord cited two cases to illustrate that, which is very important in this respect. We are seeking a bit of reciprocity here, so I strongly support what he said and I hope that the noble Baroness can give a full response to these points because he has made the case very well.

Baroness Williams of Trafford Portrait Baroness Williams of Trafford - Hansard

I thank all noble Lords who have taken part in the debate. The amendments before us relate to the delegated power to specify any additional territories to which this new power may be extended. As I have said, in the first instance, the powers afforded by the legislation would be granted only to the UK’s closest criminal justice co-operation partners, these being the Five Eyes powers and the EFTA states. These are the countries in whose criminal justice systems and use of Interpol systems we have a high level of confidence. The amendments address the power to add, vary or remove countries from the Bill and a minor consequential amendment to vary what is meant by making an extradition request in the approved way if there is a good justification for doing so in the future.

I shall start with Amendment 9 because the noble Baroness, Lady Hamwee, began with it and other noble Lords have expressed a great interest in it. It specifies that territories should be added one at a time. I am grateful to the noble and learned Lord, Lord Judge, for speaking to me about this and I did slightly warn him ahead of time that we are not going to agree with it. That is not to say that we would want to add territories in multiples, but it is common practice to allow for multiple territories to be specified together for similar legislation. Noble Lords will know that this is the process for adding territories in Part 1 and Part 2 of the Extradition Act 2003. I hope that the affirmative resolution procedure would give Parliament the opportunity to scrutinise the Government by voting either for or against a resolution and to express an opinion towards any country being added to the Bill. I expect that if the Government attempted to add a territory which Parliament did not agree with, it would act accordingly. However, I understand the substance of the point that the noble and learned Lord made.

The noble Lord, Lord Kennedy, referred to our debate the other day on the Norway/Iceland issue. The Norway/Iceland surrender agreement operates under Part 1 of the 2003 Extradition Act, so an agreement with the EU based on that precedent would keep EU member states in Part 1 of the Act, where the power of immediate arrest already exists. The Bill is only for specified Part 2 countries where currently there is no power of immediate arrest. I do not want to prejudge the outcome of the negotiations, but we may well return to this issue.

I shall reverse engineer, as it were, and go back to Amendment 6. It looks to determine how varying a reference to a territory will be distinct from the addition or removal of a reference. I assure noble Lords that the term “vary” aims to future-proof the legislation and to ensure that technical changes do not place a restriction on the use of the power. An example of such a technical change would be a situation where part of a territory seceded from a specified territory and the Government wished to maintain this power in relation to only the successor state. This is of course not a particularly likely scenario but one for which it is responsible to be prepared.

Amendment 7 proposes to remove the power to vary the meaning of making a request “in the approved way” under new Section 74C. In the current draft, a request is made “in the approved way” if it is

“made by an authority of the category 2 territory which the designated authority believes has the function of making such requests in that territory.”

The power in new Section 74B(7)(b) is included to enable similar provision to be made, where appropriate, to that in Section 70(5) and (6) of the 2003 Act. These subsections set out the variations to the meaning of “the approved way” for extradition requests made from British Overseas Territories and for the Hong Kong Special Administrative Region. I will set out some examples of how that power might be used.

Where a newly specified territory had a number of different authorities which had the function of making requests, the power in new Section 74B(7)(b) would enable one or more authority to be singled out as the appropriate authority for making valid requests, should that be necessary. A further example might be if the Government sought to specify one or several of the British Overseas Territories. In such a scenario, the Government may wish to provide for requests to be made by the governor-general of the territory rather than the authorities within it. In such circumstances, the regulations might provide for requests to be made in the approved way by or on behalf of a person administering the territory.

Regarding preparing and publishing a report on adding a new territory, as well as any intention to add further territories or negotiations with prospective territories, to the scope of this legislation as specified in Amendment 8, the Government are committed to ensuring that Parliament has the ability to question and decide on whether any new territory could come within scope. Therefore, it is mandated in the Bill that any Government wishing to add a new territory to the scope of this legislation should do so through the affirmative resolution procedure. Any statutory instrument laid before Parliament will of course be accompanied by an Explanatory Memorandum, which will set out the legislative context and policy reasons for that instrument.

This procedure will give Parliament opportunity for scrutiny and will allow the House to reject the addition of any new territory to the Bill. Any Minister looking to add a new territory to the Bill would be expected to give Parliament good reason for doing so, therefore negating the need for this amendment. Having said that, I have sympathy with the spirit of the amendment and have asked officials to look into how we can give the noble Lord some reassurance on this. I will continue to liaise with noble Lords ahead of Report.

Amendment 10 would add a specification criterion for new countries to the Bill. This has not already been included to ensure that Parliament is given the full freedom to decide on any new territory. If criteria were to be added, Parliament might be put in the invidious position of having to accept that a particular territory that was not appropriate for specification for other reasons should be added. In this circumstance Parliament would likely want to consider all aspects of the proposal, so adding these criteria would limit Parliament’s discretion. As I have outlined, any Government proposing to add a new territory would also need to give clear reasons for doing so, both in the explanatory documents accompanying any statutory instrument and during any subsequent debate. We would not want to bind the hands of future Governments to decide on the criteria they use to specify a new country.

I think we can all agree that the factors identified by my noble friend will of course be important and relevant considerations that we would expect any Government to take into account when deciding whether it is appropriate to seek to add a new territory. However, we do not consider that they need to be in the Bill. The current drafting ensures that Parliament can assess the merits of each territory which is due to be added to the Bill and scrutinise any addition through the affirmative resolution procedure. I am not persuaded of the need for this amendment.

Amendment 11B aims to remove the United States from the Schedule. The US is a critical partner in fighting terrorism and international organised crime. It is a responsible user of Interpol and has a criminal justice system with extensive checks and balances. We are confident of these points in relation to the US as much as to the other countries that we seek to specify. The new power of arrest, which is designed to protect the public in this country, has nothing to do with whether UK extradition requests to other countries are successful. It is about ensuring, when we have robust and trustworthy information that a person is wanted for a serious offence, that the police can arrest that person. Requests from the US are backed by judicial warrants predicated on probable cause. This is a firm ground on which to bring a person before a judge in the UK to decide on their further detention.

My noble friend talked about the US President’s comments on judicial appointments. Of course, this was raised by the leader of the Opposition in another place. We need to bear in mind the context in which the President might have said that in an election year. The Prime Minister made his views on the US treaty very clear in another place last month. The Government’s long-standing position is that the treaty with the US is fair and balanced in practice.

Lord Deben - Hansard

Will my noble friend give way?

Baroness Williams of Trafford Portrait Baroness Williams of Trafford - Hansard

Not at the moment. If my noble friend could wait until I have finished my comments, I will be happy to take his intervention. It is just that I have a number of points to make; I hope that is okay. The Prime Minister has committed to looking into the questions raised by the leader of the Opposition, so I am sure that my noble friend will look forward to that. This issue should not delay or undermine our efforts to ensure that police in the UK have the right powers in place to get wanted fugitives off British streets.

My noble friend talked about Anne Sacoolas, which is a valid issue; the US refusal to extradite her is a clear denial of justice. The Government and UK law enforcement continue to explore all opportunities to secure justice for Harry Dunn’s family. I bring to my noble friend’s attention the fact that this is the first case that has ever been refused under the UK-US extradition treaty. By contrast, we have refused 19 cases. The Government’s long-standing position is that the treaty is fair and balanced in practice. My noble friend also mentioned Dr Lynch. As we have stated, consideration of the substance of an extradition request includes any statutory bars to extradition such as political motivation. These are properly a matter for a judge at the extradition hearing. I will not comment any further as this is before the courts.

My noble friend also talked about reciprocity. What we are doing in this Bill is creating powers for the UK police, not obligations on the countries concerned. I know that he is concerned about reciprocity, but 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 relying on some sort of reciprocity that may depend on the nature of the regime in the other country. I am happy to take his intervention now if he wishes.

Lord Deben - Hansard

I thank my noble friend the Minister. I realise what she is saying and acknowledge the care with which she is saying it; I thank her very much for that. I tried to intervene earlier specifically on the issue that President Trump had said what he said. The Minister said that we had to realise that that was an election situation. She then moved on to the Prime Minister. I put this to her: how happy would she be if our Prime Minister got up during an election and said, “I am very pleased that there are 181 judges that I have managed to get appointed, who will make decisions much closer to the Conservative Party’s views than the judges whom they replaced.”? I think that she would be deeply upset and would feel that that struck at the very heart of British justice. I am trying to make the point that the United States makes political decisions about judges, who are very often able to act in support of American business. In fact, this is one of the issues that President Trump has always raised—“America first”. My concern is that there is an actual case where that appears to be what happened. I do not think that it helps us to give the impression that the United States’ legal system is on a par with that of Switzerland, because it is not.

I also ask my noble friend to reply to the noble and learned Lord opposite, who made a very important point about this, which is that if we say this about one country that is so different in a group such as this, we also say it about that group. It would be better if we offered Parliament the chance to make a decision on each country. In this case, it would be better not to give the impression that we were doing this because we wanted a favour from the United States on trade. That is what it looks and sounds like. Having read what the Prime Minister said, that is what I think. It is about doing nicely with the United States. The point about other countries that the noble Lord opposite made is a dangerous one.

Baroness Williams of Trafford Portrait Baroness Williams of Trafford - Hansard

On the point about taking the countries one by one, and the group that a country is in, as I said, in any secondary legislation that comes before your Lordships’ House there has to be a statement about the rationale for that secondary legislation, which Parliament can reject if it wishes. However, as I said to the noble and learned Lord, Lord Judge, I utterly understand where he comes from.

On the point about judicial appointments in the US, putting aside what President Trump said, I think that the US judiciary is very protective of its independence. Certainly, on the issue of arrest warrants, the US has a criminal justice system in which we can justifiably put this level of trust.

I have a note from the Box about favours from the US. This power is, of course, in our interests. It benefits UK police. On that note, I hope noble Lords will feel content not to press their amendments.

Lord Mackay of Clashfern Portrait Lord Mackay of Clashfern - Hansard

My Lords, I will say a word on Amendment 9. I obviously agree with what has been said by a number of noble Lords about it. The views of the noble and learned Lord, Lord Judge, suggest that a Minister putting forward a list would have to be mightily careful that the list was of all good, or at least equally good, countries. If there was a doubtful one it would have to be separate. That lesson should be taken to heart. It is very unwise to have a great big list where we are not sure about two or three countries, because we would just lose the whole lot. I suspect that we may be faced in due course with a fair group about which we have some knowledge already. I do not think that that has anything to do with the Bill, but it might be a consequence of granting this power. I imagine that any Minister contemplating this who wished to be successful would be very careful to leave a country out of a list of very good countries and have it in a separate list if he thought that it would risk the others.

I have my own view on how judges are appointed in the United States and am rather anxious that nothing of the sort should appear here. On the other hand, judges in the United States, although they may be appointed for various reasons, have responsibility as judges. The point about this matter is that extradition to the United States or any other country will be decided by a judge, though ultimately subject to the discretion of the Home Secretary. The judiciary here will be in charge of that and obviously the degree to which the explanation given by the United States carries weight will be quite important.

Break in Debate

Lord Kennedy of Southwark Portrait Lord Kennedy of Southwark - Hansard

I do not have many remarks to make on this and I could not think of a quixotic quote. However, I really like Shakespeare because he is connected with the borough I grew up in, so I will remind you of this quote

“haste is needful in this desperate case.”

Some of the points which have been made are very important and should be taken on board. What are we doing here? We support the legislation in principle, but we have asked for reasons why we are doing this and we have gone through some of the wording before.

I look forward in particular to the Minister’s response to Amendment 12 because when you look at the wording it seeks to take out, it is quite worrying that it is in there at all. It may well be that there is a perfectly understandable explanation and I will be able to get up in a moment and say, “I fully support what the Minister intends to do”, but as it reads now, I am worried about what we are passing here. Perhaps she will say that it is fine because it talks about further consequential provisions in the sub-paragraph above and the Government will do nothing. However, there is an issue about the powers we are giving to the Executive and our ability to scrutinise or change them at a later date. That point has been made by the noble Lord, Lord Inglewood, so I want this to be looked at.

Amendment 13 seeks to remove regulations about “saving” or “incidental” provision. What is that about? We could make all sorts of changes by saying that something is a saving. We could get rid of whole swathes of stuff, so what are we agreeing to? We do not want to find ourselves saying months or years ahead that we did not realise when we agreed to this that we were giving those powers to the Executive. I will leave it there and look forward to the Minister’s response, but I may intervene at some point for further clarification.

Baroness Williams of Trafford Portrait Baroness Williams of Trafford - Hansard

I thank noble Lords for the points they have made and I hope to be able to allay any fears around what Amendments 12, 13 and 14 seek to address.

As noble Lords have said, paragraph 29(1) confers a power on the Secretary of State to make further provisions that are consequential on the amendments made by the Schedule to the Bill. This is a standard power which is commonplace in legislation and is naturally constrained. It can be used only to make provisions that are consequential and it is not a power to make substantive policy changes. Rather, it will allow the Government to make small, technical amendments for good housekeeping to ensure that that statute book is consistent and functions well.

As we implement the new arrest power, it is in everyone’s interests to ensure legal continuity for law enforcement partners and those subject to arrest for extradition purposes. While many of the amendments required to other enactments are made by Part 2 of the Schedule to the Bill, it is anticipated that further consequential amendments may be identified as part of the implementation process. That is why the standard power is taken to provide the flexibility to ensure that the new arrest power can operate smoothly and efficiently. Placing a timeframe such as 12 months on the use of the power would unnecessarily frustrate the aim. In any event, as noble Lords will know, the power cannot be used to amend future legislation.

As to the scope of the possible amendments, the Bill is narrowly focused. Its purpose is to provide a power of provisional arrest for specified category 2 territories for extradition purposes. I stress the point that it does not affect or relate to the subsequent extradition process. The purpose of the consequential power is to deal with the consequences of those changes to the statute book. As such, just as wider amendments to the Extradition Act 2003 fall outside the Bill’s ambit, so amendments to effect wider extradition policy would fall outwith the consequential amendments power. The power extends to provisions that amend, repeal or revoke any provision of primary legislation. As I hope I have made clear, this is not unusual or exceptional. It is standard practice to take such a power to provide flexibility for smooth and efficient implementation.

Similarly, the power to make saving or incidental provision by regulations found at paragraph 29(3) of the Schedule is a standard power commonly given in legislation for the purposes of smoothing the introduction of a change to the statute book. Incidental provision would include only amendments that are necessary or expedient to make the Bill’s substantive provisions work. Saving provisions are required where it is necessary to preserve existing law following a change to legislation —for example, to ensure fairness or consistency in court proceedings in progress at the time of a change to legislation. As I have stated, these are standard clauses. Any amendment by regulations that amended, repealed or revoked primary legislation would be subject to the affirmative resolution procedure by virtue of paragraph 29(5), as befitting a Henry VIII power of this type. I hope that I have allayed noble Lords’ fears about that.

As a final point to my noble friend Lord Inglewood, the power in this Act would not allow us simply to move countries from Part 1 to Part 2 of the Extradition Act, nor to substantively amend Part 1. Those are not consequential amendments. With those explanations, I hope that noble Lords will feel happy to withdraw their amendments.

Lord Kennedy of Southwark Portrait Lord Kennedy of Southwark - Hansard

I thank the Minister very much for explaining that. I am reassured to a large extent by what she said. Would it be possible to give an example of one of those little technical things that would be changed so that we are clear what we are all talking about? If she cannot now, maybe she could write to us.

Baroness Williams of Trafford Portrait Baroness Williams of Trafford - Hansard

I am very happy to do that.

Baroness Hamwee Portrait Baroness Hamwee - Hansard

My Lords, I acknowledged that the regulations referred to in paragraph 29(2) must be within paragraph 29(1). I come back to the point that good housekeeping should be done before a Bill is presented to Parliament, not least because it would reduce the amount of time needed on the Bill in Parliament. For many years, I have recognised that it is a great deal easier to sit on this side of the House or Committee and pick holes than it must be to draft this stuff. Nevertheless, it is our job to pick some holes.

I do not apologise for raising this and cannot say that my concerns are wholly allayed: the words “necessary” and “expedient” were used in the delegated powers memorandum, along with “detailed and technical” about the nature of the amendments. I would like to assure myself that the words in the Bill reflect what has been said. I will possibly talk to the noble and learned Lord before the next stage. I beg leave to withdraw Amendment 12.

Break in Debate

15: The Schedule, page 10, line 29, leave out “the National Assembly for Wales” and insert “Senedd Cymru”

Member’s explanatory statement

This amendment replaces the reference to the National Assembly for Wales with a reference to Senedd Cymru, reflecting the change made by the Senedd and Elections (Wales) Act 2020 (anaw 1) to the name of the Assembly.

Baroness Williams of Trafford Portrait Baroness Williams of Trafford - Hansard

My Lords, the Government have laid Amendment 15 to reflect Section 2 of the Senedd and Elections (Wales) Act 2020, which changes the name of the Welsh legislature to “Senedd Cymru or the Welsh Parliament”. This amendment is a technical consequential amendment. It follows the new practice of using the Welsh name when referring only to the Welsh legislature. I hope noble Lords will be able to join me in voting for this amendment.

Lord Kennedy of Southwark Portrait Lord Kennedy of Southwark - Hansard

I am very happy to support this amendment. While looking at it, I was thinking that Members of the Welsh Parliament are called Assembly Members. What will they be called in future? They are in a Parliament and are called AMs—will there be some consequential change there? Maybe someone could clarify that at some point.

Baroness Williams of Trafford Portrait Baroness Williams of Trafford - Hansard

I will try to do that. It is a technical point to which I do not know the answer.

Lord Beith Portrait Lord Beith (LD) - Hansard

My Lords, it might assist the noble Lord if I point out to him that they are Aelodau Senedd, or AS, in Welsh. It is “Senedd” with a “th” sound, not a “d” sound.

Extradition (Provisional Arrest) Bill [HL] Debate

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Department: Home Office

Extradition (Provisional Arrest) Bill [HL]

(2nd reading (Hansard): House of Lords)
(2nd reading (Hansard): House of Lords)
Baroness Williams of Trafford Excerpts
Tuesday 4th February 2020

(8 months ago)

Lords Chamber
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Home Office

Moved by

Baroness Williams of Trafford Portrait Baroness Williams of Trafford - Hansard

That the Bill be now read a second time.

Baroness Williams of Trafford Portrait The Minister of State, Home Office (Baroness Williams of Trafford) (Con) - Hansard

My Lords, I start by making clear what this Bill does not do. It does not change our extradition process or any of the existing safeguards in extradition proceedings. It does not make it more or less likely that a person will be extradited. It does not in any way affect the current judicial oversight of the extradition process or the character of the court proceedings themselves. Nor is it concerned with the UK’s extradition relationships with other countries or the recent case of Anne Sacoolas. It is concerned only with how suspects enter the court system. The only thing that this Bill changes is when and how a fugitive wanted for a serious offence by a trusted country is brought before the UK court.

Currently, when UK police have a chance encounter with a suspect who is wanted by a non-EU country, they cannot arrest them. The officer is required to walk away and obtain a warrant from a judge, only to try to relocate that individual later to make the necessary arrest. This means that fugitives known to the police to be wanted for serious offences remain free on our streets to abscond or offend. In 2017, an individual wanted by one of the countries in the scope of the Bill, for the rape of a child, was identified at a routine traffic stop. Without the power to arrest, the police had no power to detain him then and there. That individual is still at large.

This Bill will change that. It will ensure that fugitives identified by the police or at the UK border can be arrested immediately. They can be taken off our streets and brought before a judge within 24 hours. This ability for the police to arrest these fugitives as soon as they are encountered will prevent them escaping and evading justice or harming the UK public. The usual way in which police officers become aware of an international fugitive is the circulation of alerts through Interpol channels. Interpol alerts from all countries are now routinely available to UK police and Border Force officers. This circulation of Interpol alerts has created a situation whereby a police or Border Force officer might encounter an individual whom they can see, by performing a simple database check, is wanted for a serious offence by another country. These front-line officers need the power to act immediately on this information to keep our citizens safe.

Many countries, including most EU member states, afford their police the power of immediate arrest on the basis of Interpol alerts. The Bill will create a limited version of that power, with appropriate safeguards. It will apply only to alerts from countries that do not abuse Interpol systems, that respect the international rules-based system and that have criminal justice systems we trust; and only to alerts relating to sufficiently serious offences.

The need for this immediate arrest power is clear. Noble Lords will no doubt be aware that the European arrest warrant carries an immediate power of arrest for individuals wanted by EU member states. Last year, over 60% of the EAW arrests made by the Metropolitan Police were the result of a chance encounter. Without a similar immediate power of arrest for people wanted by non-EU countries, known fugitives walk free. I will give noble Lords a further example. In 2016, UK authorities were alerted that a fugitive wanted by a country in the scope of this Bill, for crimes involving sexual offences with a minor, had entered the UK. He could not be arrested there and then, although the police did obtain a warrant. However, that suspect was not arrested until he was re-encountered in 2019. For those three years he was at large on our streets. We cannot allow that situation to continue.

I turn to the provisions in the Bill. The Bill proposes a power for UK law enforcement officers to arrest an individual on the basis of an international arrest request, typically an Interpol alert, without a UK warrant having been issued first. The new power will apply only where the request has been issued by a specified country. These countries are ones in whose criminal justice systems and use of Interpol alerts we have a high level of confidence. Initially the power will apply to requests from the USA, Canada, Australia, New Zealand, Liechtenstein and Switzerland. It will also apply only where an individual is wanted for a sufficiently serious offence, one that would be a criminal offence in the UK and which could result in a custodial sentence of three or more years.

It is not front-line police officers who will have to decide whether an Interpol alert is from a specified country or for a sufficiently serious offence. The National Crime Agency receives Interpol requests and it will identify which alerts have been issued by a specified country and for a sufficiently serious offence. The NCA will then certify those alerts as carrying the power of immediate arrest. These certified alerts will be clearly distinguishable on the databases available to police officers and Border Force officers. Those officers will be able to tell which alerts relate to individuals who are eligible for arrest. This process will ensure that the power is used appropriately and as we intend it to be.

The arrested person must be brought before a judge within 24 hours of arrest. Thereafter, this legislation does not change any part of the subsequent extradition process. The safeguards that exist in extradition proceedings, set out under Part 2 of the Extradition Act, will continue to apply. For example, the person will not be extradited if doing so would breach their human rights, if the request is politically motivated or if they would be at risk of facing the death penalty.

Without this power, a potentially dangerous individual who is known to the police can remain at liberty on UK streets, able to offend or abscond. The new power will see people who are wanted for a serious crime by a trusted country, and who may be a danger to the public, off our streets as soon as they are encountered. We will continue to strengthen our security with like-minded security partners across the globe. In future, additional countries whose criminal justice systems and use of Interpol systems we trust can be specified within the legislation, if both Houses approve.

Our commitments to human rights protection and the rule of law remain unchanged. The arrested individual will be in front of a judge within 24 hours of arrest, and the existing safeguards afforded to each and every person before the UK courts for extradition will remain as now. We are not removing any of this judicial oversight from the extradition process; in fact, we are not making any changes at all to extradition law. We are making changes to police powers of arrest for international fugitives.

As a global leader in security, we want to make the best use of our overseas networks and international tools. The new power will enable us to do so. The Government are committed to doing all that we can to protect the public, and the Bill is directed to that end. I beg to move.

Baroness Hamwee Portrait Baroness Hamwee (LD) - Hansard

My Lords, I thank the Minister for her explanation of the Bill. We understand its limited scope but she will understand that the subject of extradition is bound to tempt observations on the whole issue of extradition, not just on the narrow scope of the Bill. No doubt there will be some creative attempts, though not from me, to bring concerns within the scope of the rather cunningly narrow Long Title.

The big question for me, and the immediate one, is not just “why?” but “why now?” The Minister is clear that this has nothing to do with leaving the EU and the unavailability of the European arrest warrants but, frankly, given the timing of the Bill, that defies credibility. The game is given away by the letter from the Metropolitan Police, the National Police Chiefs’ Council, Counter Terrorism Policing and the National Crime Agency which the Government have prayed in aid for the need for the Bill. They start their letter to the Home Secretary of 6 January by saying that they are writing to highlight the operational gaps to which the Minister referred. They say:

“The risks in this area are not new, but have been brought into sharp focus as a consequence of our collective efforts to plan for the United Kingdom’s exit from the EU. The European Arrest Warrant enables an officer to arrest a wanted subject there and then.”

They go on to explain the process used when that is not available.

We will not oppose the Bill from these Benches but we will take opportunities to explore some of the issues it throws up and get some assurances on the record. However, I am afraid it will not be possible to avoid mention of our leaving the EU entirely. I wish we were considering the security and law-enforcement measures that will be needed in the absence of our EU membership as a package, because they are interconnected. However, some of them may be a way off.

The political declaration stated that the EU and the UK should

“establish a broad, comprehensive and balanced security partnership.”

Even without the reference to a balanced partnership, however, I would have expected reciprocity in the arrangements between the UK and each other state. In an extremely helpful briefing meeting yesterday, for which I thank the Minister and her officials, the Minister told us that the Government were not seeking reciprocity. Could she unpack what that means and explain why not? Could she tell us the position regarding Germany, whose constitution precludes the extradition of German nationals to a non-EU state? I understand that there are similar issues regarding Austria and Slovenia.

During the transition period, Article 185 of the withdrawal agreement allows any member state that has raised reasons related to fundamental principles of national law to refuse to surrender its nationals to the UK in response to a European arrest warrant. This is an issue for now, not the end of the implementation or transition period. The House would welcome being informed on this.

No two states are the same, so I would be grateful for a specific assurance on the following point; the Minister is aware that I will ask about this. Under the Bill, countries can be added to the schedule through a statutory instrument subject to the affirmative procedure. Of course, statutory instruments are not amendable, so it seems to us that it would be inappropriate for any SI to add more than a single country. It would not be possible for your Lordships to delete one country from a list presented in a statutory instrument, so I hope the Minister can confirm that there will be no bulk orders, if I may put it that way.

I shall make a wider point relating to EU states, but it is relevant to replacements for the EAW. As I said, states are not the same as one another. I recall evidence given to the Select Committee on Extradition Law, which sat in 2014, I think. I was a member and we may hear more from the noble Lord, Lord Inglewood, who chaired it. We heard concerns about the treatment of prisoners in other states, for instance. The extradition power of arrest introduced by the Bill raises human rights issues, as well as political motivations. The courts have applied a human rights lens, including, for instance, on the condition of prisons in EU states.

The Minister mentioned the death penalty. It is a matter for the Secretary of State. There should be no extradition if the person

“could be, will be or has been sentenced to death for the offence”

unless the Secretary of State receives a written assurance, which he considers adequate, that the sentence of death will not be imposed, or that, if it is imposed, will not be carried out. That is in the 2003 Act. However, we have had a recent example, in quite a different context, of where death penalty assurances were not sought by the predecessor to the current Government—which I think of as the same Government.

There are ethical issues, too. Topically, is live facial recognition technology being used to find the subjects of extradition requests? Are the subjects of Interpol red notices on watch lists? The use and reliability of the technology are controversial.

Other noble Lords may refer to the United States and its criminal justice system. That is not a new issue, and it is very important—but I think I have made the general point.

When one thinks about safeguards, that is in part a question about holding to account and the governance of the arrangement. How will the designated authority, the NCA, be held to account? In particular, how will it demonstrate the steps taken before certifying a request? This is the triage process referred to in the impact assessment.

Finally—for today, at any rate—I will ask about consultation. What discussions have there been on the Bill with interested organisations—apart from the police, of course—and what consultation will there be as countries are added? We know that the police are keen to see this implemented and we understand the benefits. What is proposed by way of consultation when it comes to adding category 2 countries?

I am not surprised that this is one of the first Bills of the Session. It will have fitted the Government’s agenda well. As I said, we are persuaded that it is right to go ahead, and the police have explained that very clearly. But I will quote from an article by a solicitor, Rebecca Niblock, to which our ever-excellent Library has pointed us. She wrote:

“Whilst the impact assessment makes reference to the possibility of using the scheme for arrests which would have been EAW arrests but for Brexit, this is painted as an additional benefit, ancillary to the primary one. This seems, at best, disingenuous. Whilst speeding up the apprehension of six serious criminals a year is a laudable aim, a far graver concern is the immediate loss of the EAW scheme. Promoting the Bill as one which is primarily concerned with the problem of arrests from non-EU countries has the benefit of avoiding an emphasis on what will be lost when we leave the EU, whilst giving the appearance of enhancing law and order.”

We on these Benches heartily concur.

Break in Debate

Lord Kennedy of Southwark Portrait Lord Kennedy of Southwark (Lab Co-op) - Hansard

My Lords, this Bill is short, but has important implications and will need careful consideration in your Lordships’ House. As has been said, the Bill creates a power of arrest, without warrant, for the purpose of extraditing people for serious offences, particularly as a result of an Interpol alert. It will apply to the countries specified in the Schedule to the Bill. I can, generally, support what is being proposed here but that is not to say that I will not propose amendments—or support those proposed by other noble Lords—that seek to provide protections, and conserve important freedoms and rights, highlighted by many noble Lords this afternoon.

We are told that the Government have identified a problem with category 2 territories under the present system which means that it can take at least a matter of hours. This creates the possibility that an individual could abscond or commit further offences in the UK. The Minister gave one example in her opening remarks. We need more than one Can she give the House some more examples when she responds to this debate?

The Bill proposes to amend the Extradition Act 2003 to get over this problem so that constables, customs officers or service police officers, on receipt of a certificate, following a valid request from a country listed in the Schedule to the Bill, can make an arrest quickly. Can the Minister set out what the designated authority in the UK—I believe it is going to be the National Crime Agency—will be required to do to satisfy itself about the request received before action is taken? What does she expect the timescales will be from receiving a request to an arrest being sought? I get the point about speed, but we must also be satisfied that due care and consideration is given to the request before a certificate is issued to authorise the arrest.

The noble and learned Baroness, Lady Clark of Calton, questioned the need for the powers in the Bill. Apparently, we already have the powers. I would be interested to hear the Minister’s response to that. When a person is brought before the court, having been arrested, the court is making a judgement on the evidence before it and, if necessary, the proceedings can be adjourned for more evidence to be provided before a decision is made. If the proceedings are being adjourned for more evidence to be provided, what would be needed by the National Crime Agency to issue the certificate in the first place? How do we ensure that, as far as possible, the evidence to issue a certificate would be at a level to satisfy a court without the need for adjournments? What I am trying to get at—I am probably not being very clear—is that the National Crime Agency can issue a certificate only where, among other things, it is satisfied that the seriousness of the conduct constituting the offence makes it appropriate to do so. That should be at the level we have today; I hope we are not proposing a lower level just to be able to issue more certificates. It is just not very clear and it would be helpful if the Minister could explain it further, to reassure me and other noble Lords.

I further understand that powers taken in the Bill would enable a process to be put in place with some EU member states if we lose access to the European arrest warrant. It seems many noble Lords think it is lost already. That is a terrible situation. We have to have something in place. The only beneficiaries will be criminals if we end up with less than we have now. I note the concern of the noble Lord, Lord Ricketts, in that regard. The noble Baroness, Lady Hamwee, asked “Why now?”, and the noble Lord, Lord Paddick, referred to this. She made a valid point about the European arrest warrant and the risk that losing these powers will entail to our safety and security. I fear that she was right to voice her concerns. I agree with the noble and learned Lord, Lord Brown of Eaton-under-Heywood, that the Bill will help make the country a less attractive place to find refuge from the authorities in the countries in the Schedule. If we lose the power of the European arrest warrant, we have to have something in place; this is about that as well. I also support his call for the Government to look for mechanisms to ensure that we can get individuals wanted in the UK back to the UK if we lose the powers we have presently.

I agree with the noble Lord, Lord Hannay of Chiswick, about reciprocity. It will be a very important principle if we find ourselves outside the European arrest warrant scheme in the coming months.

A number of category 2 countries are specified in the Schedule, and there is a power to add further countries. Can the Minister confirm the UK Government’s position on this in respect of the death penalty in the United States? I think she said to us that that will never happen but, as other noble Lords have said, in one case we did not ask for the assurance, so we need to know the Government’s position on this. As the noble Baroness, Lady Hamwee, referred to in her contribution, can the Minister set out the process to add new countries to this list?

The noble and learned Lord, Lord Judge, made an important contribution on the constraints in the Bill, specifically the Henry VIII powers set out in paragraph 29(2) of the Schedule. I am drawn to support his suggestion to allow all powers to be subject to the annulment procedures.

The noble Lord, Lord Hogan-Howe, made a valid point suggesting a reasonable change to allow courts in our major cities to hear these matters in addition to the courts in London, particularly where suspects are arrested many miles from London.

I am happy to support the Bill generally but will seek further reassurances from the Minister as it proceeds through the House, and support amendments that in my opinion strengthen the Bill and introduce necessary safeguards and protections.

Baroness Williams of Trafford Portrait Baroness Williams of Trafford - Hansard

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 Portrait Baroness Ludford - Hansard

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 Portrait Baroness Williams of Trafford - Hansard

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.

Baroness Jones of Moulsecoomb Portrait Baroness Jones of Moulsecoomb - Hansard

My question is crucial to my understanding of the Bill. If it not a replacement for the European arrest warrant, can the Minister confirm that the Government will not add the list of EU countries to the list we have already?

Baroness Williams of Trafford Portrait Baroness Williams of Trafford - Hansard

I said that it is not a replacement for the EAW, but of course the Government can make that request of Parliament. I was going to come to that point a bit later; in fact, no, I think I answered it. The Government can request Parliament, through the affirmative procedure, to add countries.

Lord Hannay of Chiswick Portrait Lord Hannay of Chiswick - Hansard

I am sorry to interrupt the noble Baroness but I simply do not understand why she spent a huge amount of time telling us that this has nothing whatever to do with the European arrest warrant—that it has no relevance and is not in the same context. She has told us that again and again. Why on earth did this point elude police officers who wrote about this measure? Why did it elude a large number of extremely well-informed—much better informed than me—people in this House who think it relevant? I simply do not understand why she is so determined to say so. All my questions, which she has not answered, were designed to get a positive answer, which would increase support for this measure—for example, if she said that it was a step that would enable us, in certain circumstances, where we have definitively lost the European arrest warrant, to do things that might then enable us to have reciprocal arrangements with other members of the European Union. She has not said a word about the security negotiations with the European Union.

Nobody asked that this measure should not be reciprocal; I did not and neither did any other noble Lord. We asked whether we will use this legislation—these powers—to persuade the other members of the European Union that we need a solid reciprocal arrangement if, by any chance, we get to the end of this year and such an arrangement has not been negotiated. Can the Minister explain why she is so keen not to refer to any of these issues?

Baroness Williams of Trafford Portrait Baroness Williams of Trafford - Hansard

I hope that I talked about the other EU instruments we are negotiating on; I think I did so at the beginning of my closing speech. I was asked about reciprocity twice, which is why I answered. I also stated quite clearly that it was our intention to do this with or without our membership of the European Union, which is why the Bill was put forward. I am not trying to deny anything about the European arrest warrant; all I am saying is that we are doing this with or without our European Union membership because it is a gap in our capabilities regarding category 2 countries.

Lord King of Bridgwater Portrait Lord King of Bridgwater - Hansard

My Lords, as I understand my noble friend’s position, she is not going to stand at the Dispatch Box and say that she is sure that all the negotiations that are now going to be conducted will go wrong. For a Minister to admit that in the House of Lords would be a remarkable headline, and if I may say so, her position is exactly right. At the moment, we hope that we will travel happily and arrive successfully. If we do not, then the Bill will come into play and obviously it will make sense.

Baroness Williams of Trafford Portrait Baroness Williams of Trafford - Hansard

I thank my noble friend for being much clearer than I can be. The whole point is that we have identified a gap. The police now have access to the Interpol red notice system, and we should use it to pick up international criminals who are walking our streets.

I have gone over my time, and because of the interventions I cannot respond to the further points noble Lords have made. I shall answer those points in a letter, and I will follow up on any further questions. On that basis, I beg to move.

Bill read a second time and committed to a Grand Committee.