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.

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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.

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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.