Extradition (Provisional Arrest) Bill [HL]

Lord Duncan of Springbank Excerpts

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

[Baroness Hamwee (LD)]

My Lords, I add my regret about the position on the European arrest warrant. Our post-Brexit arrangements in the realm of security and policing seem precarious or, at best, a poor substitute for what we have now.

When noble Lords debated what went to the Commons as new Section 74B(8)—the subject of Amendment 3 —the noble Lord, Lord Kennedy, said that the conditions were a “reasonable and proportionate” process. I say they are more important than a process; they are about consultation, assessing the abuse of the Interpol Red Notices system, and trust in the system. The Government gave assurances then that they would not include countries likely to abuse the system and that the amendment would not conflict with how the Government plan to deal with the regulations.

I will focus on what was our amendment, which is currently the new Section 74B(9), which the Government seek to remove by Amendment 4. That provides for regulations to Schedule A1 that can add specified category 2 territories. That is jargon for something quite important.

The amendment has an impeccable pedigree. The noble and learned Lord, Lord Judge, and the noble Lords, Lord Anderson of Ipswich and Lord Kennedy, supported it at previous stages—I am glad that the noble Lord, Lord Anderson, will be speaking on it shortly. I can think of no reason for the Government resisting this provision other than “It is not how we do things”, or possibly “It was not invented here”. I took comfort that I was not on the wrong track by the support that I received from Cross-Benchers, eminent lawyers whose perspective could not be thought to be distorted by party-political considerations, although I do not think that this issue is party-political.

The provision that the Government seek to remove allows regulations to designate only one country at a time. There is a simple reason for that: to enable Parliament to play its proper part. We all know that such instruments cannot be amended, so if we are presented with a list of countries including one bad apple, in human rights terms, could we expect Parliament to agree to the bad apple to avoid losing the arrangements with all the others, or to reject them all when only one is an issue? I used the examples of an order applying to both the Netherlands and Turkey, or to Sweden and Venezuela. No two countries are quite alike. I could extend the first pairing to a trio, as someone said to me yesterday: France is quite different from Turkey, and Turkey is quite different from Syria.

At previous stages, noble Lords explained their concern that the Government’s judgment could be swayed by factors unconnected with the assessment of a country’s human rights record. Favours for trade concessions were mentioned. That has happened. The noble and learned Lord, Lord Judge, put it neatly, saying that the time may come when another Government seek a favour from this country or we seek a favour from them. He gave an example: “Do you really want our safety equipment? Do you really want our artificial intelligence? Let’s have a mutual extradition arrangement.” He could also envision the possibility—not immediately, but not remotely either—of the Government of the day wishing to associate themselves with a country that shared their political views but was nevertheless not a desirable country with which to have these arrangements. The noble Lord, Lord Anderson, described the provision as meeting the problem of a non-amendable instrument without insuperable difficulties for the Government.

The Government have argued that countries can be added in multiples under the parent Act and so there is no need to make a change, but should we not always be on the lookout for better ways of doing our job of scrutiny? They also said that the courts would throw it out if a country did not respect rule of law. However, the courts can only consider applications from individuals, case by case. They can only consider what the Government put in the regulations when those regulations are applied and the individual affected challenges the action.

The Minister has told the House that she would not present an SI that she knew would run into trouble. I say this so often that the Minister must think that I have got it in for her—I really have not, not personally—but we must depersonalise these things. She may be the Minister for longer than I am here, but she will not always be the Minister. There may be a Government whose judgment she questions. She says that the House could vote down an instrument. The House is responsible and would not want to because of one bad apple.

At Second Reading in the Commons, the Minister said that the Bill was not concerned with the UK’s extradition relationship with other countries, but it is. He said that when a fugitive is wanted for a serious offence by a trusted country, he is brought before a UK court, but that is not the issue. The Commons were told that the amendment is not required and is unnecessarily burdensome. It had not occurred to me but, as a Member put it, considering the Government’s vocal support for the Magnitsky Act to deter human rights abuses, it would be hypocritical to oppose an amendment that has the same purpose.

In Committee in the other place, the Minister, James Brokenshire, said:

“Any additions will be dictated by the will of Parliament”—


that is what this provision would put in place—

“not by an unusual process such that this would impose. If a country is proposed that Parliament does not agree should be specified, then the regulations will be voted down in the normal way. We judge that that remains the rightful process.”—[Official Report, Commons, 8/9/20; col. 567.]

It may be an unusual process, but why is the process invariable? Voting down regulations listing 10 or 20 countries would cause a lot more nuisance for the Government than voting down regulations relating to a single country and there would be very little pressure on parliamentary time.

We are not challenging the premise of the Bill, but we are defending the sovereignty of Parliament, as distinct from the Executive. I still do not understand the technical, practical or political arguments. We would deal with a bundle of instruments, one after the other, which is a bit tedious, but does that matter? There is no delay, just a sensible opportunity for each House properly to give or withhold approval. I fail to see why the Government feel threatened by such a common-sense proposal. When the moment comes, I will seek the opinion of the House.

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

My Lords, the following Member in the Chamber has indicated their desire to speak, so I call the noble Baroness, Lady Ludford.

[Baroness Ludford (LD)]

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

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

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


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

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

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

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

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