Extradition Act 2003 (Codes of Practice and Transit Code of Practice) Order 2021

Lord Rosser Excerpts

Tuesday 23rd March 2021 Lords Chamber

[Lord Rosser (Lab) [V]]

The Government are required to issue codes of practice in respect of the use of police powers in extradition cases under the Extradition Act 2003. These codes of practice update existing police powers codes published in 2011. The update is needed to reflect the use of police powers in relation to updated Police and Criminal Evidence Act codes and the new power of arrest under the Extradition (Provisional Arrest) Act 2020. The police powers codes do not apply to Scotland.

The transit code of practice, which applies across the United Kingdom, sets out the powers for police during non-UK extradition transit under the 2003 Act: that is, allowing a person who is being extradited between two countries—neither of which are the UK—for the purpose of standing trial or serving a sentence to pass through our territory in custody. A constable can be authorised to escort the person from one form of transportation to another, take the person into custody to facilitate the transit, and to search for any item which the person might use to cause physical injury.

The Explanatory Memorandum says that

“Revised 2003 Act Police Powers Codes were consulted on in 2015”,


and again last year, and that

“The draft Transit Code of Practice was published for consultation in 2015. Some modifications were made following consultation and further modifications were recently made”.


Is the draft transit code of practice just being brought into operation, or has it been in operation since the consultation in 2015? If it is not already in operation, which appears the case despite consultation in 2015, why the delay since 2015?

On the Extradition Act 2003 codes of practice, the letter from the Minister of 22 February 2021 states that, in 2015, draft changes in respect of PACE codes were consulted on and agreed. However, revised codes were not subsequently laid. Why was that?

The Explanatory Memorandum states:

“The approach to monitoring of this legislation is for the Home Office to closely monitor the impact of this Order.”


Could the Government explain exactly what that means in practice in relation to both the Extradition Act 2003 codes of practice and the Code of Practice for Non-UK Extradition Transit?

On the Code of Practice for Non-UK Extradition Transit, who has the power to give authority to a constable to take the person into custody to facilitate the transit, and how is the use of that authority under the transit code of practice monitored, and by whom? The letter of 22 February states:

“A decision to grant any request for transit will be discretionary. We would only expect to grant a request if the requesting country and the destination country are ones we would regularly extradite to and where we have international obligations that require us to do so”.


When the order was debated in the Commons, the Minister said:

“we would not allow transit if … the death penalty may be an issue”,

and that

“we do not agree extradition to all countries in the world, given our concerns about human rights.”—[Official Report, Commons, Third Delegated Legislation Committee, 17/3/21; col. 6.]

Assuming that also applies to the code on extradition transit, could the Government say how many countries in the world we do not agree extradition to, given our concerns about human rights?

In the light of the Government’s statements to which I just referred, how often is it anticipated that the powers under the transit code of practice will be exercised this year and next year? How many countries are there that we regularly extradite to and where we also have international obligations that require us to do so, as referred to in the letter of 22 February?

On both codes of practice, is the monitoring on a continuous basis or at set intervals? Does the Home Office or any other body produce a written report available to Parliament on the findings of its close monitoring of the order and how the powers are being exercised?

When the order was debated in the Commons, my colleague the shadow Minister referred to the formal response paper to the consultation that has been published by the Home Office. That paper indicated that suggestions had been put forward on the issue of search and seizure provisions and on legal professional privilege material, but then said that these concerns were already adequately reflected in the codes. The shadow Minister asked for some additional assurances, including what the original concerns were and why they would be raised if they had already been addressed. The government Minister said that he would

“provide slightly more detail in writing.”—[Official Report, Commons, Third Delegated Legislation Committee, 17/3/21; col. 6.]

I am not sure whether that has been done yet, but could I also have a copy of that response, since I assume that the Government will not be able to take this issue any further forward in their response today?

The shadow Minister also referred to concerns raised about the then unknown future provisions for extradition proceedings with EU member states post Brexit, and asked about the implementation of the new arrangements and their operational efficacy. In short, he asked:

“is extradition now working as frictionlessly as under the previous regime?”—[Official Report, Commons, Third Delegated Legislation Committee, 17/3/21; col. 4.]

Since some EU states have a bar on the extradition of their own nationals beyond the European Union and we are now no longer a member of the EU, does that mean that some criminals who would have been extradited under the previous regime can no longer be extradited?

The Minister in the Commons said of the new arrangements:

“On the operational positions with the European Union, our initial feedback is that they appear to be working fairly well.”—[Official Report, Commons, Third Delegated Legislation Committee, 17/3/21; col. 5.]


That suggests that extradition is not now working as frictionlessly as under the previous regime. Could the Government, in their response in this House, spell out in rather more detail exactly what the Minister in the Commons meant when he said that the new arrangements were working “fairly well”? What precisely does that mean in practical terms?

We are not opposed to these codes, which are intended to enhance national security and protect our communities—a top priority issue that can be delivered while also protecting our rights and freedoms. However, I hope that the Government will be able to respond, now or subsequently, to the points and questions that I and other noble Lords who have spoken in the debate have raised and asked.