Extradition (Provisional Arrest) Bill [HL]

Lord Ricketts Excerpts

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

[Lord Ricketts (CB)]

My Lords, I have followed this debate with enormous interest. I feel a little daunted, given the enormous experience of many of the speakers so far. In fact, it has been so fascinating a debate that I thought time had stood still, but then I discovered that actually the clocks were not working.

I am here really as an informal emissary from your Lordships’ European Union Select Committee, chaired by the noble Earl, Lord Kinnoull, and the EU Home Affairs Sub-Committee, chaired by the noble Lord, Lord Jay, neither of whom can be here. As a member of both committees, I wanted to at least draw attention to the work on the issue of extradition done over a number of years by the two committees and, in particular, do a little plug for two of the committee reports done under the chairmanship of the noble Lord, Lord Jay: Brexit: Judicial Oversight of the European Arrest Warrant of July 2017 and Brexit: The Proposed UK-EU Security Treaty of July 2018. Both are very relevant to the wider context of this debate.

Like others, I wanted to explore a little the relationship between the powers sought in this Bill and the EAW world—this has been a theme throughout the debate. As other noble Lords have noted, there is a somewhat delphic remark in paragraph 7 of the Explanatory Notes which says that, should the UK lose access to the EAW, a statutory instrument could be made to designate some or all EU members. This has been the elephant in the room throughout this debate, but it appears only very briefly in the explanatory material. I think it deserves a little more explanation.

There is a lot of useful detail about the value of the EAW in the reports that I have mentioned, as was apparent in the statement we had this afternoon. As a lay man, it has always seemed to me that it is a way of making extradition far easier, more rapid and more straightforward than the alternative, the 1957 Council of Europe convention. Under that, it took an average of 18 months to achieve an extradition; that fell to below two months with the arrival of the EAW. Given that we are talking about exporting—to use that word—up to 1,000 people a year under the EAW, the idea of going back to the 1957 convention arrangements seemed to us and all the expert practitioners we heard from in the sub-committee to be an enormous retrograde step. I think of my own period as ambassador in France. A regional procureur’s office in a small French city will have got completely out of practice with the 1957 arrangements, which involve diplomatic notes and passage through interior ministries. This risks a considerable delay in what has been a very effective process.

A number of noble Lords spoke in the conditional tense about “if we lose access” to the EAW arrangements. But it is clear that, at the end of the transition period, Britain will not be in the EAW process, which is for EU member states, and that, as others have made clear, the process of disengagement has already begun, with the operation of Article 185 and the own-national provision. Germany, Slovenia and Austria have already applied it—so even now, in the transition period, we are already seeing a restriction of our access under the EAW. The issue therefore is whether we will be able to negotiate an agreement with the EU that allows what the then Minister of State in the Home Office, Nick Hurd, spoke to the committee about in 2018: “effective arrangements” on the lines of the EAW.

The only precedent for this is the agreement that the EU has with Norway and Iceland. But we should not hold our breath—that negotiation took 13 years. It was finally agreed in 2014 but, as far as I know, is not yet in force. So there is potentially a very long time gap between us leaving the transition period at the end of this year and reaching an agreement.

The European Commission published its draft negotiating mandate yesterday, which indeed contains a reference to continued extradition arrangements. It uses the term “effective arrangements” but there are markers about judicial control and the own-national provision.

Given the importance of the EAW for the whole law enforcement process in this country, I therefore think that it is worth the Minister responding to a number of the questions that have been asked in this debate. I too came armed with many of them, but I have tried to filter mine, given that a number of other noble Lords on the list asked them. It would be helpful if the Minister could make it clear that, as from 1 January 2021, we will not be part of the EAW, and whether it is still the Government’s intention to negotiate effective arrangements to parallel it as far as possible. If so, what is the likely timescale and what about judicial control, given the EU’s attachment to ECJ involvement in the arrangement?

Secondly, given that it is very likely that we will not have an agreement by the end of the year, will the Minister accept that the designation arrangements in the Bill are in no sense a substitute for the speedy and effective arrangements in the EAW, and that they do not begin to address the issues of mutual recognition and the own-national problem. Personally, I can see the importance of the Bill for closing a gap in the UK domestic arrangements for arrest, but it is very important that it should be recognised that it can be only a very small step in addressing the much larger and more difficult problem of how to replace the many advantages we have had through the EAW.