Extradition Act 2003 (Codes of Practice and Transit Code of Practice) Order 2021

Baroness Williams of Trafford Excerpts

Tuesday 23rd March 2021 Lords Chamber

Moved by

[Baroness Williams of Trafford]

That the draft Order laid before the House on 22 February be approved.

Relevant document: 48th Report from the Secondary Legislation Scrutiny Committee

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

My Lords, the order will update our existing codes of practice for police powers under the Extradition Act 2003 and introduce a new code of practice for non-UK extradition transit. First, I will deal with the codes covering police powers. These revised codes of practice govern the way in which the police use their powers under Part 4 of the Extradition Act. They relate to search and seizure, applications for warrants and production orders, entry to premises and the treatment of detained persons after arrest in extradition cases.

The updated codes take account of changes which have been made to the relevant Police and Criminal Evidence Act 1984 codes of practice, commonly known as PACE codes, on which the extradition codes of practice are based. They also incorporate necessary changes brought about by the new power of arrest granted in the Extradition (Provisional Arrest) Act 2020. The codes of practice currently in use were published in September 2011. These changes therefore bring the codes fully up to date, providing operational clarity for policing. Amendments have also been made to set out more clearly the procedural rights for individuals on arrest and throughout the subsequent extradition proceedings.

The code of practice for non-UK extradition transit will provide the basis for transit through the UK in extradition cases. This will enable the UK to fulfil certain treaty obligations, including those established as part of the new surrender arrangements with the European Union. Extradition transit occurs when a country allows an individual who is being extradited to pass through its territory, while remaining in police custody, where a direct route between the countries concerned with the extradition request is not possible.

As the House will know, the Anti-social Behaviour, Crime and Policing Act 2014 made amendments to the Extradition Act 2003, setting out the legal basis to enable people being extradited from one third country to another to transit through the United Kingdom. Those provisions cannot be commenced without this code of practice coming into operation to underpin them. The code therefore sets out the appropriate powers and guidance for UK police to facilitate this operational activity as necessary.

Commencing these transit provisions is important for the UK so that we can comply with our treaty obligations, as I have outlined, and to assist our international extradition partners in bringing fugitives to justice. They are particularly important at this time, when travel and modes of transport are disrupted and restricted by the current pandemic.

The House will want to know that any decision to grant a request for transit is discretionary. It would be considered only if the requesting country and destination country were ones that we would regularly extradite to and where we have international obligations that require us to do so. A risk assessment in consultation with law enforcement partners and Border Force is also required before any request can be granted.

Both codes being presented today have been the subject of public consultation, as well as detailed consultation with operational partners, including law enforcement, Border Force and the devolved Administrations, and have been updated to take consultation responses into account. The codes will provide a comprehensive and accessible resource for operational partners. For individuals subject to extradition, they will act as a reference to their rights. The legislation will further ensure that there is no disparity between our international obligations and domestic law.

If this statutory instrument is approved by Parliament, these codes will be brought into operation on 1 May 2021. I commend the order to the House.

--- Later in debate ---

[Baroness Williams of Trafford (Con) [V]]

My Lords, I thank everyone who has spoken in this debate. I apologise to the noble Lord, Lord Naseby, because I did not hear part of his speech. However, he asked about changes in extradition practices. The principles of extradition remain the same, although clearly there are countries that we may add or subtract.

The noble Lord, Lord Rosser, asked how many countries we extradite to. I do not have the total in my head, but he can see that in the list of Part 1 and Part 2 countries. My noble friend also asked whether our practices were compatible with human rights. Yes, that is a clear principle of our extradition approach.

My noble friend Lady Wheatcroft asked about extradition to the US. The US-UK treaty is out of the scope of this debate, but clearly we would, if appropriate, seek death penalty assurances from the US. It would not depend on the issue; we would seek those assurances. In terms of transit, we will not transfer either to or from a country with human rights abuses.

The noble Baroness, Lady Jones of Moulsecoomb, asked about the police. We have extensively consulted them and they are content. As the noble Lord, Lord Paddick, said, silence on any matter means that they refer to the PACE codes. The noble Baroness also asked about asylum seekers. This extradition process is a very clear court process by which we would return or receive someone to face sentence either here or in another country. Anyone who wishes to seek asylum obviously can do so when they arrive in this country. However, this order is not predominantly about asylum seekers but about a court process.

The noble Lord, Lord Paddick, asked about various processes. There are two main changes. The updated extradition codes of practice take account of changes made to the relevant PACE codes on which the extradition codes of practice are based. While police practice is always to refer to them as recent PACE codes, as the noble Lord pointed out, the draft codes of practice have been updated to reflect the most recent amendments to the PACE codes. As he said, most amendments are in respect of PACE code C, which deals with arrest, detention and treatment of persons detained under the 2003 Act. There are also some amendments in respect of PACE code D, which applies to the identification of persons detained under the 2003 Act.

The second change, the new power of arrest brought about by the Extradition (Provisional Arrest) Act 2020, applies only to Part 2 of the 2003 Act. The provision applies only in principle to a specific and limited number of Part 2 countries—the Five Eyes countries, Switzerland and Liechtenstein—meaning that the number of arrests that would rely on it would be relatively low. However, it is essential that the revision to police powers in the 2003 Act is appropriately reflected in updated codes of practice at the earliest opportunity.

In terms of transit arrangements, a request for extradition transit from any country is subject to approval. The usual safeguards concerning human rights compatibility continue to apply in all extradition cases. Requests for transit that concern countries outside the European Union will be considered by the Secretary of State for the Home Department and the policy set out in the overseas security and justice assistance—OSJA—guidance must be applied where necessary. We would expect to proceed only if the requesting country and destination countries are ones that we would regularly extradite to and where we have international obligations that require us to do so: that is, the provision will be used only for extraditions taking place according to a treaty or on a similar international legal basis.

Transit would also be refused if the person has already been convicted for the same offence in the UK or another country on the grounds of double jeopardy or if a person has been, or could be, sentenced to death. Additionally, when considering any request, key risks or concerns will be considered before a decision is made. These include risks to the person in transit or to others. This would be assessed from information concerning the relevant offence, any history of violent behaviour and any significant health issues that it is mandatory for the requesting country to provide.

I turn to other questions. The noble Lord, Lord Rosser, asked about the Minister in the Commons who said that the new arrangements were working fairly well. I cannot comment on what was in his mind, but I shall study the relevant Hansard and return to the noble Lord in writing. He asked whether the arrangements were already in operation or had just been brought in. These codes will be brought in on the passage of this statutory instrument. The noble Lord also asked for a letter from the Commons Minister when it is ready. Yes, definitely. He mentioned some countries that would not allow extradition. There are a few countries that will not allow the extradition of their own nationals. In those situations, the individuals are tried in their own country and remedies sought thereafter.

The last question was why this legislation had taken so long to come into force. Legislation passed in 2014 made amendments to the Extradition Act 2003. Provisions were not commenced earlier, partly due to the competing policy and parliamentary priorities that I mentioned in the debate on the previous statutory instrument, and also due to complexities in determining how transit should best operate in practice. I am pleased to say that those issues are now resolved.

If I have not addressed any questions, I will do so in writing.

Motion agreed.