Extradition (Provisional Arrest) Bill [HL]

Lord Paddick Excerpts

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

[Lord Paddick (LD)]

My Lords, this has been a fascinating debate, as the noble Lord, Lord Ricketts, has just said. The Minister said in her briefing yesterday to noble Lords and again today that the Bill was nothing to do with the UK leaving the European Union and nothing to do with losing the European arrest warrant. She will certainly correct me in her summing up if that is not the case, but she is nodding. So, despite what the noble Lord, Lord Ricketts, has just said—I was very grateful for his contribution—I think that it is very relevant, despite what the Government say. As my noble friend Lady Ludford asked, if that is the case, is this legislation therefore really necessary?

In the briefing yesterday was the lead on this for the National Police Chiefs’ Council. We asked him—I think before the Minister arrived in the room—“What is the biggest problem in this area?” He said, “The biggest problem is getting police forces to take international criminality seriously.” Arresting people wanted for crimes committed overseas is not seen as a priority by forces, according to him. Yet it seems to be a priority for the Government, to the extent that they need to bring forward this legislation.

The question we have to ask is: if it is nothing to do with the European arrest warrant, what problem is the Bill trying to fix? The noble Lord, Lord King of Bridgwater, and the noble and learned Lord, Lord Brown of Eaton-under-Heywood, asked why this has not been done before if it closes a loophole. But how many Interpol red notices are there from countries listed in the Bill? In how many live cases of Interpol red notices was there intelligence that the person wanted may be in the UK? We were told it was between 20 and 30; as other noble Lords pointed out, the impact assessment refers to perhaps six people being brought to justice under these provisions. When we asked how many instances there were of people subject to red notices being encountered by police who could not arrest the person there and then, and where the police then sought a warrant but were subsequently unable to locate that person—the loophole that this legislation is supposed to close—nobody knew; not even the police, or the lead for the National Police Chiefs’ Council, knew what problem the Bill is aimed at fixing.

The Minister mentioned a case where intelligence was received in 2016 that a person who was wanted for sexual offences was in the UK; a warrant was obtained but the subject was not re-encountered until 2019. She said that the Government could not allow such a dangerous person to be on our streets for so long, but that begs the question: how dangerous was this individual? How many offences did that person commit between 2016 and 2019, while at large in the UK? I did not hear—perhaps the Minister can enlighten me—whether that person was encountered in 2016.

Other noble Lords, including the noble and learned Baroness, Lady Clark of Calton, and the noble Lord, Lord Anderson of Ipswich, mentioned the urgent applications for provisional warrants under Section 73 of the 2003 Act. Can the Minister explain whether a warrant can be issued on the basis of intelligence that a person who is wanted under a red notice is in the UK, even if they have not been encountered by the police? If that warrant can be issued, why is the Bill necessary?

My noble friend Lady Hamwee asked: why now? Until recently, the fact that someone was subject to an Interpol red notice was not recorded on the police national computer; that is what we were told in the briefing. So a police officer could have been talking to someone who was wanted but did not know that, and now they would know.

As I said, the Minister assures us it has nothing to do with the European arrest warrant. But I will refer to the letter written to the Home Secretary by the Metropolitan Police, the National Police Chiefs’ Council, and the heads of counterterrorism policing and the National Crime Agency—and here I fear that I may take issue with the comments made by the noble Lord, Lord Hogan-Howe. Contrary to what the Government say, the letter keeps referring to the European arrest warrant and the loss of it. The letter says:

“The risks in this area are not new, but have been brought into sharp focus as a consequence of our collective efforts to plan for the United Kingdom’s exit from the EU. The European Arrest Warrant enables an officer to arrest a wanted subject there and then. Outside of this mechanism a domestic warrant must be obtained; a process that can take up to 24 hours and sometimes longer.”


That translates to me as, “We’ve been asked to write this letter to support a government move”, but apart from the European arrest warrant—noble Lords have said how many cases there have been under that—they seem to be scratching around and wondering why the Government are bringing forward this legislation.

The noble and learned Lord, Lord Judge, and the noble and learned Baroness, Lady Clark of Calton, pointed out that the Bill places a lot of power in the hands of Ministers in terms of adding countries that could be included in the list. As the noble and learned Lord, Lord Judge, said, countries could be added for ulterior motives, perhaps because we want to have a free trade agreement with them and want to be in their good books. As my noble friend Lady Hamwee said, if a group of countries is included in the statutory instrument that comes forward under the affirmative procedure, we cannot edit the list. The question asked by my noble friend is therefore important: will those additional countries come in one at a time or will more than one country be in those statutory instruments?

The noble Lord, Lord Ricketts, and others said that we will definitely lose the European arrest warrant because it covers only European Union members. The noble Lord mentioned Norway and Iceland. After 13 years, they now have an agreement—it came into effect on 1 November last year—but that agreement says that European Union countries do not have to extradite their own nationals. That is completely different from what the European arrest warrant says. Not only do we not know how long it will take for us to get a replacement for the European arrest warrant but the best that we can hope for is that it will be a shadow of its former self in that we are unlikely to be able to extradite own nationals from other countries.

The noble and learned Baroness, Lady Clark, made the important point that, in respect of category 1 countries, the warrant issued by that foreign country which leads to a European arrest warrant is issued by a judge there, whereas category 2 requests—red notices—are not necessarily at the request of a judge; presumably in the United States of America the district attorney can make the request for somebody to be arrested, without the judicial oversight. That is a crucial difference between category 1 and category 2 countries. This legislation fundamentally changes that. At the request of a foreign country, somebody can be arrested without warrant or any judicial input, whereas at the moment all requests from foreign countries for somebody to be arrested, whether it is under the European arrest warrant or otherwise, must have judicial involvement before the person is arrested. Yes, we are talking about 24 hours before it comes before a judge, but it fundamentally changes the situation.

Despite all this, the Government still try to give the impression that this has nothing to do with leaving the European Union, in the same way as letting other countries use e-gates at UK airports has nothing to do with the European Union. Suddenly e-gates at UK airports become available to American, Australian, Canadian, Japanese, New Zealand and South Korean nationals. Why and why now? It is perhaps because, as part of taking back control of our borders, the Government promised that we would not give EU citizens preferential treatment, but, instead of curbing the right of EU citizens to free movement across the UK border, they give it to the citizens of half a dozen other countries just to prove that they are not giving EU citizens preferential treatment. Of course, if every EU citizen had to be spoken to by an immigration officer, the system would collapse under the pressure. Meanwhile, while American citizens can use the e-gates at UK airports, if UK citizens go to the United States they have to convince the immigration officer that they are not going to stay longer than they said were, and have their photograph and fingerprints taken. However, as the Minister said, we are not seeking reciprocity.

The noble and learned Lord, Lord Brown of Eaton-under-Heywood, talked about the importance of extradition, which is absolutely right. However, the Bill is a unilateral move, with no attempt to encourage other countries to do the same—a point also made by my noble friend Lady Ludford. Now, suddenly, one serious foreign fugitive on the streets of the UK—who might be stopped by the police, but the officer cannot make an immediate arrest because they need to get a warrant, and the person has not committed an arrestable offence in the UK—is one too many. That was the explanation given yesterday, and the Government try to tell this House that this is nothing to do with losing the European arrest warrant. We are not as green as we are cabbage looking. The noble Lord, Lord Hogan-Howe, also mentioned people being extradited using the European arrest warrant for minor offences such as shoplifting. Will the Minister confirm that the maximum penalty for theft is 10 years’ imprisonment, so it would be covered by the three-year maximum in this legislation?

Most science is accepted as fact when in fact it is the simplest and most plausible theory that fits the facts. My theory is that this is everything to do with losing the European arrest warrant. If it is not, then there are far more important matters that this House should be considering, as the noble Baroness, Lady Jones of Moulsecoomb, has said. It is time for the Government to decide. Is it to close our side of the gaping hole left in our security by losing the European arrest warrant, in which case we should support it, or is it to catch little more than a handful of foreign fugitives who might otherwise escape justice? I look forward to the Minister’s response.

Extradition (Provisional Arrest) Bill [HL]

Lord Paddick Excerpts

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

[Lord Paddick (LD) [V]]

My Lords, I too support the amendment of the noble Lord, Lord Kennedy of Southwark, but with one reservation about where it can be strengthened in relation to NGOs. The noble Lord, Lord Foulkes of Cumnock, has just spoken convincingly about their importance. In proposed new sub-paragraph (a), the amendment reads that the Secretary of State should consult

“on the merits of the change with … (ii) non-governmental organisations which, in the opinion of the Secretary of State, have a relevant interest.”

For me, this gives the Secretary of State carte blanche to consult or not, as he or she thinks fit. It might be better to add: “iii) those non-governmental organisations which have made representations to the Secretary of State.” That said, I still support the amendment.

[Baroness Wilcox of Newport (Lab) [V]]

My Lords, I support my noble friend Lord Kennedy’s amendment as it would add to the system of fairness and justice, since a further check and balance would be written into the Bill. It ensures that the territory in question would not abuse the Interpol red notices system. As noble Lords will know, a red notice is a request by Interpol on behalf of one member state to all other member states to locate a suspect or convicted person, and take steps to facilitate their surrender to the requesting state. Extradition proceedings then follow.

However, not every country treats red notices as a valid warrant and the legal effect therefore currently differs between states. In February 2019, the European Parliament published a study that examined abuse by some states of Interpol’s notice system to persecute national human rights defenders, civil society activists and critical journalists in violation of international standards of human rights. The study, entitled Misuse of Interpol’s Red Notices and Impact on Human Rights—Recent Developments was commissioned by the European Parliament’s sub-committee on human rights. The study acknowledged that the reforms implemented in 2015 have improved the situation. However, abuses of the Interpol system against individuals, including refugees, continue.

There is still a lack of established rules and procedures to govern the vetting process and adherence to Interpol’s constitution. It is therefore of utmost importance that we in this House have the opportunity to finesse and refine the statute so that weaknesses in established systems are not exacerbated by any vague legislation coming from this House. I therefore support my noble friend Lord Kennedy’s amendment.

--- Later in debate ---

[Lord Paddick [V]]

My Lords, I speak in support of the amendment in the name of my noble friend Lady Hamwee, and I agree completely with the comments of the noble and learned Lord, Lord Judge. The trouble with an amendment of this simplicity is that all one can do is repeat the arguments in a slightly different way.

It makes complete sense that Parliament should have the ability to consider each country on its merits in this case, as it is so obviously open to abuse, and the regulations that allow additions are not amendable. Echoing the views of my noble friend Lady Ludford, I think that, our having left the European Union, future Governments will be keener than ever to secure trade deals with other countries, for example. It may be that those other countries demand, quid pro quo, that we accede to their extradition requests, even though there may be reservations about a country’s criminal justice process. This amendment is necessary, and I support it.

[Lord Anderson of Ipswich (CB) [V]]

My Lords, in Committee, my noble and learned friend Lord Hope of Craighead said of this amendment that it meets the problem of the non-amendable instrument, without at the same time creating an insuperable difficulty for the Government, and that it enables a debate to take place that would have a real point to it. The fact that there may be precedents in other Acts of Parliament for lumping countries together in statutory instruments seems to be neither here nor there.

This amendment ought really to be welcomed by the Government. It removes the possibility that acceptable countries will be excluded because they have been yoked together with a country that Parliament finds unacceptable. The amendment is a sensible and practical safety valve, which is why I put my name to a previous edition. If the noble Baroness, Lady Hamwee, decides to test the opinion of the House, I shall vote for the amendment.

Extradition (Provisional Arrest) Bill [HL]

Lord Paddick Excerpts

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

[Lord Paddick (LD)]

My Lords, I shall first acknowledge that the noble Baroness the Minister has a script that she is obliged to follow. As the Minister has said in her introduction, this Bill gives the police the power to arrest somebody who is wanted in another country, without the need to apply to a court for a domestic warrant before the arrest can be made, provided that it is a trusted country and the National Crime Agency has verified that the foreign request to make the arrest is necessary and proportionate.

Throughout the passage of this Bill, the Minister has maintained that it is not a replacement for the European arrest warrant, and I agree—but only to the extent that the Bill does not change the extradition process once the accused is before a court. This power to arrest those wanted by a foreign country without a domestic warrant is, of course, part of the European arrest warrant regime. If someone is wanted under an EAW, they could be arrested by the police in the UK without a domestic warrant. Despite what the Minister has said, there is every indication that the UK will no longer be part of the European arrest warrant at the end of the transition period, not least because the constitutions of some countries, such as Germany, do not allow their own nationals to be extradited to a non-EU country. The noble Baroness prayed in aid the EU agreement with Norway and Iceland, but that agreement took more than a decade to agree and implement, and it excludes the extradition of a country’s own nationals.

We were suspicious that this Bill was a replacement, or at least a partial replacement, for the European arrest warrant—and, indeed, we were at a loss if it was not. At Second Reading, the noble Lord, Lord Anderson of Ipswich, asked:

“Could the Minister explain why the existing powers of urgent arrest under Sections 73 and 74 of the Extradition Act 2003, before an extradition request has been submitted or certified, are not considered sufficient? ... My understanding is that a request from the issuing state for the accused’s provisional arrest can already be the subject of a provisional warrant application by the CPS to the court—an application which, in urgent cases, can be made out of hours to the relevant duty judge, if necessary by email.”—[Official Report, 4/2/20; col. 1735.]


This sounds to me like a process that could be quicker than the one proposed by this Bill, where the NCA has to certify the request to make an arrest.

Also at Second Reading the Minister said:

“Several noble Lords have voiced concerns that this Bill is an attempt by the Government to replicate the capability of the EAW. As I hope I have explained, this is not the case.”—[Official Report, 4/2/20; col. 1757.]


This prompted the noble Baroness, Lady Jones of Moulsecoomb, to ask:

“If it is not a replacement for the European arrest warrant, can the Minister confirm that the Government will not add the list of EU countries to the list we have already?”


The Minister replied:

“I said that it is not a replacement for the EAW, but of course the Government can make that request of Parliament.”—[Official Report, 4/2/20; col. 1760.]


And lo and behold, government Amendment 5 adds the list of EU countries, plus Norway and Iceland, which have their own versions of the European arrest warrant, to the list we already have.

Perhaps the noble Minister will now accept that, if the Bill is not a complete replacement for the EAW, it is at least a partial replacement for the EAW, in that it restores arrests without warrant in the UK for those wanted by EU countries—a power that will be lost, along with the rest of the European arrest warrant regime, at the end of the transition period.

As the noble Lord, Lord Anderson of Ipswich, just said, in effect, the fact remains that, even with the Bill, extradition of EU nationals will take longer and be more complex than under the European arrest warrant regime. There is no obligation on EU countries to reciprocate—that is, to immediately arrest and quickly extradite those wanted by the UK who are in EU countries —because the Bill is a partial but wholly inadequate replacement for the European arrest warrant. Perhaps this explains the Government’s sheepishness in trying to put distance between it and the EAW.

It is clear that we will all be less safe in the UK at the end of the transition period, when we lose access to the European arrest warrant, as a consequence of leaving the European Union. We do not oppose the government amendments in this group, but it would have been better if the Government had been more transparent from the outset.