Motion on Amendments 1 and 2

Extradition (Provisional Arrest) Bill [HL] - Commons Amendments – in the House of Lords at 1:56 pm on 14th October 2020.

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Baroness Williams of Trafford:

Moved by Baroness Williams of Trafford

That this House do agree with the Commons in their Amendments 1 and 2.

1: Clause 2, page 1, line 16, at end insert “, but paragraph 3A of the Schedule may not be commenced so as to come into force in relation to a territory before that territory is a category 2 territory for the purposes of the Extradition Act 2003.”

2: Schedule, page 3, line 22, leave out from beginning to end of line 24 and insert— “(3A)The “designated authority” is the National Crime Agency. (4) The Secretary of State may by regulations amend this section so as to change the meaning of “designated authority”.”

Photo of Baroness Williams of Trafford Baroness Williams of Trafford The Minister of State, Home Department

My Lords, if noble Lords are amenable, I will address Amendments 1, 2 and 5.

First, I reiterate that the Bill is designed to bring a wanted person into their extradition proceedings as soon as the police come across them without changing in any way the likelihood of their successful extradition to any country. Ongoing extradition proceedings remain the preserve of the UK’s independent courts and all the safeguards that currently exist will continue to apply. The judicial oversight afforded to every person who goes through extradition proceedings remains unchanged.

I wrote to noble Lords on 21 September. I repeat what I said then:

“a UK court has no obligation to extradite a suspect who has been arrested using this or any power and the protections for every person who faces extradition in the UK remain in place within the Extradition Act 2003. This Bill does not make any individual extradition any more or less likely. The Bill allows UK law enforcement officers to better protect the British public and get potentially dangerous offenders off UK streets. It does not provide any advantage for the countries that are listed in the Bill and, as now, it is a UK court who will determine whether the fugitive should be extradited, not a court overseas.”

Amendments 1 and 5 are a contingency to keep an important protection for the UK public in place after the end of the transition period, whatever the outcome of the current negotiations. As noble Lords are aware, the negotiated outcome that we seek with the EU would create a warrant-based system based on the EU’s surrender agreement with Norway and Iceland.

The purpose of amending the Bill in this way and at this time is to ensure the continuation of relevant arrest powers should it prove necessary; it will be commenced only if it is needed. If an agreement is reached, it will not need to come into effect. It is a contingency. Similarly, it provides a contingency in the event that we do not agree new extradition arrangements with Norway and Iceland to maintain the arrest power currently available by virtue of the EU’s Norway-Iceland surrender agreement.

Our current warrant-based extradition arrangements, in the form of the European arrest warrant, and the ones we seek to negotiate based on the agreement with Norway and Iceland, both allow for the immediate arrest of a fugitive wanted by a party to the agreement to take place. We are of course seeking to agree arrangements to keep our power of immediate arrest and retain an end-to-end extradition system with EU countries, Norway and Iceland. The Bill cannot and does not provide an end-to-end system, as is being discussed in the negotiations, but it would none the less maintain an important existing law-enforcement capability in respect of persons wanted by EU countries, Norway and Iceland. There is no alternative in UK law or within the European Convention on Extradition.

So, in the absence of the power being available, this important protection for UK citizens from potentially dangerous criminals wanted across Europe would be lost. Last year, nearly 1,100 wanted persons were arrested in the UK based on a European arrest warrant. Between 60% and 70% of these were as a result of chance encounters. It is these arrests that this amendment provides the contingency for. The Bill is about ensuring that UK law-enforcement officers can continue to arrest dangerous criminals in the UK as they do now. It has nothing to do with whether any UK extradition requests from other countries are successful.

If we fail to legislate in this way and do not secure new extradition arrangements with the EU, Norway and Iceland, if a UK police officer were to encounter a dangerous criminal that they knew to be wanted by the police in an EU member state, they would not have the power to arrest them then and there. The police officer would need to let the individual go, secure a UK arrest warrant from the courts and then attempt to track down the fugitive, possibly days later and of course leaving open the possibility that they might reoffend.

I repeat: the amendment will be commenced only if no warrant-based system is in place at the end of the transition period. It will not be commenced if an agreement is reached with the EU or, in respect of Norway and Iceland, with those territories. The drafting allows for commencement only in relation to EU member states and not Norway/Iceland or vice versa to accommodate the different possible negotiation outcomes. Noble Lords will note that the provision also contains a sunset clause, such that it expires at the end of 2021 to the extent that it has not been commenced. I ask noble Lords to support the Government in this responsible and necessary contingency planning and to support Amendments 1 and 5.

Amendment 2 specifies that the National Crime Agency is to be the designated authority for this legislation and provides a power to change the designated authority by regulations in the future. The designated authority is the agency that will have the task of “certifying” the international arrest alerts that conform to the criteria for carrying out the new power of provisional arrest. We have taken this approach as a direct alternative to using secondary legislation on this occasion. The amendment therefore represents a change of process, not policy, and noble Lords will recognise that it is being made in response to pressures on parliamentary time.

Throughout the passage of this Bill, the NCA, as the UK’s National Central Bureau for Interpol, has been identified as the designated authority and has the need for a regulation-making power to change that, if necessary, in the future. This ensures flexibility for changing circumstances or alterations to the functions or titles of law-enforcement bodies in the UK, such as the NCA in this context.

I thank the noble Lord, Lord Kennedy of Southwark, who laid a very similar amendment to this in Committee, for his contribution to the scrutiny of this Bill. I hope that noble Lords will agree that this ensures the best use of parliamentary time, and the future-proofing of this legislation. I ask noble Lords to support the Motion on Amendments 1 and 2, and the Motion on Amendment 5.

Photo of Lord Anderson of Ipswich Lord Anderson of Ipswich Crossbench 2:04 pm, 14th October 2020

My Lord, I welcome Commons Amendment 2, designating the NCA in statute for essentially the reasons that the Minister has just given. On Commons Amendments 1 and 5, as a practitioner with a particular interest in terrorism, I know how slow and imperfect the old extradition arrangements were within Europe and how much better things became with the advent of the European arrest warrant, not least by taking the sting out of our sometimes politically fraught extradition relationship with Ireland. That ship has sailed, so it seems that the best we can hope for now is an arrangement modelled on the Norway/Iceland relationship with the EU. These amendments acknowledge that even this modest goal may not be achievable. Their purpose, as I understand it from the Minister, is to offer a marginal improvement to the third-best solution with which we would then be left. So it is depressing that these amendments have been thought necessary, but prudent in the circumstances that they have been put forward. For that reason, not without sadness, I support them.

Photo of Lord Paddick Lord Paddick Liberal Democrat Lords Spokesperson (Home Affairs) 2:05 pm, 14th October 2020

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.

Photo of Lord Kennedy of Southwark Lord Kennedy of Southwark Opposition Whip (Lords), Shadow Spokesperson (Home Affairs), Shadow Spokesperson (Communities and Local Government), Shadow Spokesperson (Housing) 2:11 pm, 14th October 2020

My Lords, like the noble Lord, Lord Paddick, we do no oppose government Amendments 1, 2 and 5, as spoken to by the noble Baroness, Lady Williams of Trafford. I am particularly pleased to see Amendment 2. I very much agree with the comments of both the noble Lords who have spoken so far.

It is regrettable that we had a whole debate on the Bill and, consequently, were assured or told that it was not a replacement for the European arrest warrant. At the last possible moment, Amendment 5 goes down, adding all the European Union countries, plus Norway and Iceland. The Government should be more transparent about these things. I find it quite frustrating; I just do not know why the Government act like this.

When the history books are written and people look at this period, I have no doubt they will see what has gone on here as absolute nonsense. As the noble Lord, Lord Paddick, says, we will be less safe. The only beneficiaries of this will be criminals, and that is a great regret. It is a bad place for us to be in. We had the Brexit referendum, fine, but I do not understand why the Government are pursuing this extreme version, so we end up with a situation like this. All we can do now is to agree these amendments, because they are the best we will get in the circumstances. As I said, we will support them, but with great regret. The only beneficiaries and the people laughing today are criminals.

Photo of Baroness Williams of Trafford Baroness Williams of Trafford The Minister of State, Home Department 2:13 pm, 14th October 2020

I thank the noble Lords who spoke to this. I start with the analogy between this and the European arrest warrant, and the suggestion that this was our intention all along. The Bill is similar to the EAW only in so far as it provides an immediate power of arrest of those wanted by countries listed in the Bill. It does not change anything about the subsequent extradition hearing in court or consideration by the Home Secretary.

In the negotiations going forward, I reiterate that we will remain fully committed to reaching a balanced and reciprocal agreement with the EU on law enforcement and criminal justice. The safety and security of our citizens is our top priority, which is why we have said that the agreement with the EU should provide for a fast-track extradition arrangement, based on the EU’s arrangements with Norway and Iceland. An agreement with the EU that reflected either the UK or EU text would keep EU member states in Part 1 of the Act, where the power of immediate arrest already exists. The Bill is for specified Part 2 countries only, for which there is currently no power of immediate arrest.

I thank the noble Lord, Lord Anderson, for his use of the word “prudent”. I know he is not entirely satisfied with this outcome and would have preferred the EAW, for all its shortcomings, but I hope that that explanation is reasonable to noble Lords, for now.

Motion agreed.