Extradition (Provisional Arrest) Bill [HL]

Lord Judge Excerpts

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

[Lord Judge (CB)]

My Lords, there was a beguiling opening to the debate from the Minister. “Really, this is no more than a new extradition-based arrest power.” And so it is. Of course, we all want criminals, whether they are British criminals or foreign visitors, to be arrested to face justice. The process envisaged in the Bill for this purpose is on the basis of a warrant issued in a foreign country, and then a certificate issued here by an authority designated by the Secretary of State. You may be arrested by a police constable or others—I need not go through them—without any pre-reference to any domestic judicial authority.

The reference to the domestic judicial authority occurs after you have been arrested. So the entire fairness of the process—its “trustworthiness”, to use a word that has been used in the papers—is dependent on the quality of the judicial processes available in the foreign country.

The six countries identified range from tiny Liechtenstein to probably the most powerful nation on earth, the United States of America. Speaking personally, I have no problem with them.

However, the Bill gives the Secretary of State wide powers. When did a modern Bill not give the Secretary of State wide powers? To the six territories currently listed there may be added 16 or 60, or every single country in the world, by the Secretary of State in making his or her decision. While I certainly excuse our present Minister from this, in the real world we are surely not going to be so naive as to believe that all sorts of motives—a possible trade deal, a plea just to be good friends with us, political beliefs, sympathy with a tyrannical regime—may not lead a Minister, at some time in the future, since elections bring different parties to power, to be subordinated to the single imperative that the only question which needs to be answered is that the country to be added to the list should have a credible, independent judicial system, so that when the request is received, it is based on an entirely—to use the word again—trustworthy system of administering justice. This is a huge power being given to the Minister.

Being modern legislation, that is not the end of it, of course. We have that monstrous ogre Henry VIII in full operation, tucked away in paragraph 29(2), by which regulations can be made which would

“amend, repeal or revoke any provision made by primary legislation”.

Then, we have the great advantage of the Bill going on to tell us what primary legislation is. I am sure we all know, but it tells us: every Act of this Parliament, the Scottish Parliament, the National Assembly for Wales and the Northern Ireland Assembly. All this is to be done by secondary legislation. We have to be tough about extradition, as I said, and the Minister is entitled to point out, as no doubt she will, that all this will be based on affirmative resolution.

I should like to focus attention on paragraph 29(6), which contains a power to annul regulations. That is a welcome addition to any Bill. This Bill would be so much more impressive and hold the balance so much better if all regulation-making powers, including the use of Henry VIII regulation-making powers, were made subject to annulment on the basis of a resolution of either House of Parliament. That, I respectfully suggest, would be proper and sensible parliamentary control over the processes. It would also provide us, the nation and its citizens with a serious safeguard against an overambitious Executive or, as the years unfold, what may become an unduly craven one bowing to a foreign power. Will the Minister consider at least reflecting on the constraints currently imposed on the annulment process? Will she also assure us that in whichever form the annulment process is finally left, the use of it by this House will not be treated as a constitutional outrage?

Extradition (Provisional Arrest) Bill [HL]

Lord Judge Excerpts

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

[Lord Kennedy of Southwark]

I rise briefly to welcome the noble Lord, Lord Parkinson of Whitley Bay. If he will now be covering some Home Office matters, we will be spending a lot of time together and will get know each other well, so that will be welcome.

The amendment moved by the noble Baroness, Lady Hamwee, is very sensible and I am happy to support it. She set out the issue clearly: someone can be picked up on the Friday before a bank holiday weekend and potentially wait until the Tuesday morning before being brought before a judge. That is a fair point. If people are arrested, they should be brought before a judge quickly, so I look forward to the noble Lord’s response.

[Lord Judge (CB)]

My Lords, I also support this amendment. Would you believe it, there is a judge on duty all weekend, every weekend, and all night? If the period is reduced to 24 hours and this happens over a weekend, it can be treated as urgent business.

[Lord Parkinson of Whitley Bay (Con)]

My Lords, I thank noble Lords for their words of welcome. There will, indeed, be plenty to keep us busy on the home affairs front. Amendment 3 in the name of the noble Baroness, Lady Hamwee, concerns the period of detention. It seeks to delete the provision that, in calculating the 24-hour period within which an arrested person must be brought before the appropriate judge, no account should be taken of weekends, bank holidays and the like, as she explained.

It might be helpful if I first reassure noble Lords that this provision does not arise from any desire of law enforcement agencies to detain individuals for prolonged periods without judicial oversight. The Government have been very careful to ensure that sufficient safeguards exist against this. Our operational partners have already proved themselves effective at producing wanted persons before courts within strict timeframes. The practical question at the heart of this issue is one of being certain that, when a person is produced at court, an appropriate judge is available to hear their case. The key aspect perhaps is that, rightly, the requirement under the Act is for the person to be brought before the judge, not simply for a judge to consider the case on paper. I hope that addresses the point raised by the noble and learned Lord, Lord Judge. If the Bill were to be amended along the lines suggested, it would render the power largely unworkable; in some instances, because of perfectly normal court closure times, if a judge were not available for the wanted person to appear before them—

[Lord Judge]

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

[Lord Parkinson of Whitley Bay]

To be clear to the noble and learned Lord, it is the statutory intention that the person should be brought before a judge in person. It is an additional safeguard and a better situation for them to be seen in person before a judge. If the Bill were amended along the lines suggested, it would make the power operationally unworkable because, in some instances, normal court closure times would preclude that. As we have discussed, it could mean, practically, that arrests could not be made on a Saturday or on the Sunday before a bank holiday.

[Lord Judge]

I am sorry to interrupt the noble Lord again. This is his first outing and we are throwing bouncers at him. If that is the problem, we need to amend the legislation to make it clear that “brought before” does not mean that there is a personal, direct, physical confrontation. I would be very willing to talk to him about this at any time but, so far, I am not entirely satisfied with what he has had to say.

[Lord Parkinson of Whitley Bay]

I thank noble Lords for their forbearance on this, my first outing. It is our intention to replicate the existing provisions under the Extradition Act. It may be helpful for me to speak to the noble and learned Lord and others in greater detail about the statutory intention of what the Government propose. We seek to mirror the provisions already there, which are caught up in the usual formulation of “as soon as practicable” that already exists in the Extradition Act. There are precedents for these arrangements for provisional arrest under Part 1, under which a person may be provisionally arrested without warrant and brought before the appropriate judge within 48 hours of their arrest, subject to exactly the same conditions as set out in the schedule under discussion here.

My noble friend Lady Williams of Trafford has already cited the letter sent by the Director of Public Prosecutions to the Security Minister earlier this week, which welcomes the way the Bill, as drafted, will avoid unnecessary delay and ensure initial judicial scrutiny as early as possible, before the case proceeds through extradition proceedings in the usual way. It is for that reason that the Government are not persuaded that the amendment is needed. I hope that gives some reassurance to the noble and learned Lord, the noble Baroness and others.

--- Later in debate ---

I am perfectly happy to stand by whatever a British court decides, but I have certainly seen too many examples of American courts making decisions that would never be made in this country. Therefore, I ask the Government to remove the United States from the named countries, instead seek with it an understanding that has the reciprocity necessary and then add it to the list. Unless we have that reciprocity and can be assured that it is not being used for commercial or political reasons, I do not believe it ought to be given the status that is being given in these circumstances.

[Lord Judge]

My Lords, I support Amendment 9. As I indicated at Second Reading, I support the Bill. There is a great deal to be said for the proposition that there should be reciprocity between countries that respect the rule of law on the administration of criminal justice. However, I strongly support this amendment; I see absolutely no inconsistency between the two propositions.

The reasons why are very simple. We all know that there are countries in the world that do not respect the rule of law. I will not set about trying to give your Lordships a list because the list itself changes. Countries that respected the rule of law no longer do. Weimar Germany did; Hitler’s Germany did not. This is a moveable feast.

My concern is that we are giving the Secretary of State wide powers to add different nations to the list by regulations. At Second Reading I went through the possible reasons, and they are still there: political motivation, getting a good deal on a treaty, the fact that we need a bit of support on this or that, so we put a country on the list. There is a whole series of reasons why, in years to come, since this Act will be in force for many years, Ministers—not, I hasten to assert, either of these Ministers—will think it appropriate to add to the list countries that this House and the other place together think are inappropriate to be added.

We are doing this by way of regulation, as the noble Baroness, Lady Hamwee, pointed out. The consequence is that the Prime Minister of the day or his acolyte—and we are talking about a Prime Minister who would not perhaps respect the rule of law himself, but who knows what could happen—would insist on having a country that we in both Houses would regard as totally inappropriate to be a brother or sister nation on such a list and with whom we would think it quite inappropriate to have any sort of arrangement of this kind simply because it does not respect the rule of law. I have been through that.

What are our processes? They are that such a country could be included in a list of perfectly acceptable countries—the noble Baroness, Lady Hamwee, said the Netherlands and Turkey—but can we just cut down a little further into that? It means that when the House considers the regulation, it will have to decide whether to exclude Turkey—to use the country that the noble Baroness used—because it is really rather important and because we greatly respect the Netherlands, or whether to reject Turkey and the Netherlands. Or, to go the other way, we must have the Netherlands, so we must therefore have Turkey. If one or other of these courses is taken—whichever way round it is—if there is any amendment, the whole thing falls to the ground. We will not want the Netherlands to fall to the ground, nor Denmark, France or Germany. There are many countries that we would want to espouse as colleagues in respect for the rule of law.

What is proposed in this amendment is utterly simple. What is the difficulty in doing it one country by another? It might take a little longer; there might a little more typing, a little more printing—we could even have all the countries, except the ones objected to, come through as a job lot. I gave a little cricketing analogy earlier and I am sorry that I bowled bouncers not googlies at the Minister. One of the most famous things ever said at a cricket match was when, in 1902, Hirst came out to bat against the Australians with 15 runs to get on a difficult wicket in the dark; the story goes that Rhodes met Hirst and exchanged the words, “We’ll get them in singles”. Let us get this done in singles.

[Lord Hope of Craighead (CB)]

My Lords, I cannot match the noble and learned Lord’s eloquence, except I remember that Lord Bingham used to use that phrase to describe how judges should nudge the law forward gently, step by step, rather than sit hitting sixes and fours.

I support this amendment for the reasons that have been explained. There are two features of the issue that are worth bearing in mind. First, the standard that the Government have set, which was described by the Minister, is a relatively high standard and, therefore, we are not talking about large numbers. Indeed, the Schedule itself demonstrates that we are not expected to have a great list, they will come in twos or threes at the worst, preferably ones, as the amendment seeks. Secondly, the issue of a standard is something that we would wish to debate, as the noble Lord, Lord Deben, demonstrated in his contribution. It is a great shame if we are masked, as it were, by having one good country on the list that we would not object to but which is in the kind of pairing that the noble Baroness, Lady Hamwee, mentioned, so that we cannot really grapple with the one to which we are objecting because the instrument is not amendable.

With great respect, this seems a very sensible amendment that meets the problem of the non-amendable instrument without at the same time creating an insuperable difficulty for the Government. It enables a debate to take place that would have a real point to it instead of one that really does not have a point because one part of the list—if it is a list—is unobjectionable. I very much support the amendment.

--- Later in debate ---

Clearly, if we are to leave the European arrest warrant scheme, something needs to follow. But it is objectionable and inappropriate that the substantial part of the extradition code of this country is not to be modified as a result of primary legislation. Extradition law is an important component of our country’s wider constitutional framework. As was pointed out by the noble Baroness, Lady Hamwee, and the noble and learned Lord, Lord Judge, and others, we will be faced with Hobson’s choice. This is not in any way desirable. That is the point about which I am concerned and the rationale that I worked out for my amendment.

[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.

Extradition (Provisional Arrest) Bill [HL]

Lord Judge Excerpts

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

[Lord Judge (CB) [V]]

We need a sensible extradition regime, and at the moment we have one. I strongly support it and nobody can think of a single reason why we should not work in a mutually acceptable way with territories, as the Act calls them—or countries, as ordinary people call them—that we trust: those we trust, those we trust to trust each other and those who we are confident will abide by the ordinary rules when seeking extradition of British citizens and vice versa. We all work together.

In this particular situation, as the noble Baroness, Lady Ludford, just said, we have a Government who would produce a list of countries or territories with which we would all be happy, and, bingo, the affirmative resolution is passed and we all go away happy, and for myself I cannot imagine that a Government led by Sir Keir Starmer would be any different. But the future is long, and the problem is that, undoubtedly, the time may come—I am not saying that it will, and I hope that it never does—when a Government seek a favour from this country or we seek a favour from them. An example might be, “Do you really want our safety equipment? Do you really want our artificial intelligence? Let’s have a mutual extradition arrangement.” I can also envision the possibility, not immediately but not so remotely either, of a Government of the day wishing to associate themselves with a country that shared that Government’s political views but was nevertheless not a desirable country with which to have these arrangements.

As the noble Baroness, Lady Hamwee, has just explained, we have this ridiculous situation where affirmative resolutions cannot be amended—you either take the package or you lose it. Parliament could be faced with this situation: there could be a list of a number of countries with which it was entirely desirable and sensible to have a mutual arrangement plus one other, with which it would be extremely undesirable to have such an arrangement. What would happen then? Do we reject the territory and country that we think it would be totally inappropriate to have such arrangements with and therefore lose similar arrangements with all the desirable countries, or do we simply keep all the countries we think it would be a good idea to have and include the other one, although it is undesirable? That is a ridiculous situation, and the amendment is designed to avoid such an absurdity. As the noble Baroness, Lady Hamwee, has already said, and I emphasise, the amendment proposes an utterly simple, totally uncomplicated system. It may cost the department a few more pages of paper, but not that many, and it may take a fraction more time, but it would be time valuably used. Statutory instruments should always be limited to one country.

The second reason I support the amendment has already been touched on. Through the passage of this legislation, from the beginning to where we are today, this House has raised this issue time and again. We have never yet been given a single good reason why the proposal in this amendment is unacceptable, would create difficulties for the extradition regime or would be unworkable. The Minister has not invented any spurious reason for that, for which we are of course grateful and unsurprised, but there are no reasons. No reason has yet been given. As a matter of common sense, as well as on a sound constitutional basis, the amendment has never been contradicted by a reasonable argument and should find favour with the House.