Extradition (Provisional Arrest) Bill [HL]

Lord Deben Excerpts

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

[Lord Mackay of Clashfern (Con)]

My Lords, I assume that the process of extradition occurs under judicial control after the arrest and after the person arrested is in the custody of the judiciary or under the control of the arrangements made by the judiciary. That is quite important. In most of the speeches made at Second Reading, we distinguished between the Executive and the judiciary. They are two distinct parts of government. It is the Executive’s responsibility to take people before the judiciary, which is then responsible for how they are treated, subject to the Executive sometimes being part of the treatment afterwards. It is important to distinguish between the two. Therefore, it is acceptable that the authority deciding whether this arrest should go ahead is not a judicial authority but the responsible executive authority.

As far as both amendments are concerned, the information sought is reasonable and might be subject to risk, but it would be very easy, particularly if there seemed to be any public concern about the matter, for a parliamentarian to raise this as a Parliamentary Question, rather than have an obligation on the Secretary of State to keep to a time when there might not be much in the way of information to put out. I can see why these arrangements are a subject of public interest, but the Parliamentary Question system is a good way to deal with that as and when they seem important.

[Lord Deben (Con)]

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.

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

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.

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My noble friend Lord Deben asked about political motivation by “one country”. We do not accept that any of the countries concerned will be in the habit of making politically motivated requests. All those specified have justice systems in which the Government are prepared to put their trust.

[Lord Deben]

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]

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

[Lord Deben]

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]

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]

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]

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.

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[Baroness Hamwee]

My Lords, I beg to move Amendment 6; I also have Amendments 7, 9 and 10 in this group. I start with Amendment 9, which I think is the most important. This amendment would restrict additions to Schedule A1 to one territory at a time. Orders are not amendable; one says either yes or no—and it is rarely no—to the whole thing. Let us consider an order seeking to add, say, Turkey and the Netherlands—it might not happen but I am thinking of two very different states—where one might want more protections than are proposed by the Government, but one would not want to reject an order to add the Netherlands. I think that is a sufficiently stark pairing to enable your Lordships to understand why I am concerned about this. I have written myself a note about the delegated powers memorandum. I cannot now find it but I am sure that it said something quite relevant. I might be able to find it by the end of the debate. Anyway, that is my particular concern. I do not think that I need to expand on it any further. I am grateful to the noble Lord and the noble and learned Lord for adding their names to this.

Amendment 6 is to probe how a territory can be varied, as distinct to being added or removed. It did not seem to me that one could vary a territory to make it part of a state. If it is about a change of name—some states do change their names—surely legislation here is not necessary. Amendment 7 is to take out the provision in new Section 74B of the Act that regulations can amend new Section 74C consequential on the addition, variation or removal of reference to a territory. New Section 74C is about the validity of requests for an arrest, which have to be made in an approved way; so, again, I am probing. What could be amended other than that the request comes from an authority with the requisite function? I table this because I am uncomfortable that there might be regulations in contemplation that widen the category of authorities entitled to make the request.

Amendment 10 would deal with the basis on which the Secretary of State may add a territory. The Minister at Second Reading said that we would apply the provisions 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.”—[Official Report, 4/2/20; Col. 1727.]

I do not quarrel with a word of that. This amendment seeks to transfer those words into the legislation. I beg to move Amendment 6.

[Lord Deben]

My Lords, I very much support this Bill. My Amendment 11B relates to the names of territories that were not in the original legislation but are in this Bill. My noble friend perfectly reasonably suggested that I might be objecting to our extradition system in general and that that would not be suitable. I agree with her. However, this Bill has a list of “trusted partner” countries. That is true of all but one of them. All the others have a system of justice that is removed as far as humanly possible from politics. In this country, we are proud of that. That would not matter if one could not show—as I hope to—that the United States, because of its different kind of legal system, is using the extradition arrangements in a way that my noble friend rightly objects to, and why quite a number of other countries are not this list. The problem is that, by putting the United States on this list, we are making a statement about its use of extradition which seems unjustified. I will explain why.

We know that, unlike with the other countries, there is no reciprocal arrangement because the United States has said that it is contrary to its constitutional arrangements to have reciprocity. Our original Act is not reciprocated by the United States. I find that difficult anyway, but we are not discussing that issue here. In the case of the United States, unlike many other countries with which we have had and probably will have reciprocity after negotiation, we accept that it will not extradite people to us in circumstances in which we are extraditing people to it. We are confirming that by saying that we will extend our extradition procedure—perfectly properly in other circumstances, I think—to enable us to arrest people in the circumstances that this Bill makes clear.

We are very fortunate in this country because the whole system is overseen by the judiciary. It would be arguable that it does not matter because the new arrangements will mean that the judiciary will still be able to oversee that. After all, we are not putting every country on the list. We are not saying that the judiciary oversees everybody; we are saying it about these countries and distinguishing them from others.

I will remind your Lordships about two cases that show why I think that this is very real. We have the case of a woman who killed a British boy in Britain, has admitted it and has not been extradited although we have asked for that extradition. Not only has she not been extradited but the United States has refused to reveal what it claims are the special and secret arrangements under which the extradition cannot take place because the person is supposedly covered by diplomatic immunity. However, the United States will not publicly explain the special arrangement. Not only is the lady not extradited, although we have asked for it, but it is on a basis that the United States has refused to reveal. Were this Turkey, Bangladesh or another country, this would be a very good reason for not putting the name on this list.

There is a second reason: the use of the extradition arrangements to pursue a political or commercial end. For the United States it is very often a commercial end. In this I speak of the case of my former constituent Dr Mike Lynch, chairman of one of our most successful companies. He sold his British company to an American company; it was sold under British law in Britain, bought by an American company and operated in Britain. After a bit, the American company had so badly mucked up the running of this business that it wanted an excuse for the sum it had paid, so it called on the British authorities to prosecute Dr Lynch, saying he had misled it. That may or may not be true. It had done very extensive due diligence before, so it is difficult to believe that so great an American company with so much opportunity to look beforehand should have been misled, but that is what it said.

The British authorities investigated and found that there was no case to answer. Therefore, they declined the prosecution. The American company, Hewlett Packard, perfectly rightly—I have no objection to this—went to the civil courts to claim its case. That case has now been heard at great length. It is probably the longest case of this kind ever held in this country. Dr Lynch was cross-examined for many days. The case is over as far as the evidence is concerned, but there has so far not been a judgment, so we do not know whether the civil courts in this country will find my former constituent guilty or innocent. Hewlett Packard is clearly worried about this case. Indeed, to read it one might be worried oneself if one were on that side. But still, we do not know. It is for the judge to decide.

British justice is known internationally as the fairest system in the world. That is why lots of companies that are not here agree with other companies that are not here for their court cases, should they come up, to be decided in British courts; they know that they will get a fair deal. Hewlett Packard has however demanded that Dr Lynch be extradited from Britain to have the case heard not in this country but in the United States. I am quite sure the reason is that it feels a United States court is more likely to make a decision which pleases it—particularly given the geographical position of the court calling for the extradition and its long-standing relationship with Hewlett Packard—and more likely to accept its case than the British one.

We all know that there are many situations in which British companies have found that courts in the United States make decisions that we would find, let us say, commercially political rather than judicially objective. Here we are, saying that this “trusted partner” should be treated in the same way as Canada, Australia, New Zealand, Switzerland and Liechtenstein, all of which have systems that any of us in this Room would be happy to be tried before, but how many of us would genuinely say that, if we had a commercial disagreement with an American company with power and political punch, we would wish to be charged before an American court? That is a different situation.

I have tabled the amendment not because I seek to undermine the original Act, although I think it was a mistake to allow a non-reciprocal arrangement with the United States. I am merely saying that I do not think that the United States should be one of those countries that benefits from a perfectly proper extension of our laws.

My noble friend said that she would not want to have this kind of arrangement with anyone whose judicial system was subject to political influence. President Trump has pointed out that he has changed the judges in the Ninth Circuit because it was

“a big thorn in our side”.

He has now appointed judges who will not be a big thorn in his side. He has made, I think, 181 judicial appointments and encouraged the majority Republican Senate to change as many as possible while he is there so that they get the judges who will to make the sort of judgments that suit the right-wing Republican that he is.

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[Baroness Williams of Trafford]

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]

Will my noble friend give way?

[Baroness Williams of Trafford]

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]

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.

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[Lord Judge]

My Lords, let us just look at what we are saying in paragraph 29(2): “Let’s pass this Bill, which is a very good idea, and let’s pass it in such a way that regulations may change the whole thing.” Is that really what we want to do?

[Lord Deben]

My Lords, I feel very strongly that although we may have disagreed on the subject of the United States, that should not stop us recognising the wider argument to which the noble and learned Lord, Lord Judge, has referred. Far too much legislation going through both Houses ends up leaving everything to be decided in secondary legislation where it is almost impossible to make changes, and this is another example.

I want to underline what my noble friend Lord Inglewood has said, which is that extradition is far too important a matter to leave basic, material decisions merely to secondary legislation. This is part of the freedom that people in this country rightly feel they have and I do not believe that we should allow the Government to have the powers that this seems to allow. I hope that my noble friend will recognise that this is a matter of real principle, a principle that the party to which we both belong is supposed to believe in above all things—constitutional propriety. This is not constitutional propriety, but sleight of hand.

[Lord Kennedy of Southwark]

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.