Extradition Act 2003 (Codes of Practice and Transit Code of Practice) Order 2021 - Motion to Approve

– in the House of Lords at 4:11 pm on 23rd March 2021.

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Baroness Williams of Trafford:

Moved by Baroness Williams of Trafford

That the draft Order laid before the House on 22 February be approved.

Relevant document: 48th Report from the Secondary Legislation Scrutiny Committee

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

My Lords, the order will update our existing codes of practice for police powers under the Extradition Act 2003 and introduce a new code of practice for non-UK extradition transit. First, I will deal with the codes covering police powers. These revised codes of practice govern the way in which the police use their powers under Part 4 of the Extradition Act. They relate to search and seizure, applications for warrants and production orders, entry to premises and the treatment of detained persons after arrest in extradition cases.

The updated codes take account of changes which have been made to the relevant Police and Criminal Evidence Act 1984 codes of practice, commonly known as PACE codes, on which the extradition codes of practice are based. They also incorporate necessary changes brought about by the new power of arrest granted in the Extradition (Provisional Arrest) Act 2020. The codes of practice currently in use were published in September 2011. These changes therefore bring the codes fully up to date, providing operational clarity for policing. Amendments have also been made to set out more clearly the procedural rights for individuals on arrest and throughout the subsequent extradition proceedings.

The code of practice for non-UK extradition transit will provide the basis for transit through the UK in extradition cases. This will enable the UK to fulfil certain treaty obligations, including those established as part of the new surrender arrangements with the European Union. Extradition transit occurs when a country allows an individual who is being extradited to pass through its territory, while remaining in police custody, where a direct route between the countries concerned with the extradition request is not possible.

As the House will know, the Anti-social Behaviour, Crime and Policing Act 2014 made amendments to the Extradition Act 2003, setting out the legal basis to enable people being extradited from one third country to another to transit through the United Kingdom. Those provisions cannot be commenced without this code of practice coming into operation to underpin them. The code therefore sets out the appropriate powers and guidance for UK police to facilitate this operational activity as necessary.

Commencing these transit provisions is important for the UK so that we can comply with our treaty obligations, as I have outlined, and to assist our international extradition partners in bringing fugitives to justice. They are particularly important at this time, when travel and modes of transport are disrupted and restricted by the current pandemic.

The House will want to know that any decision to grant a request for transit is discretionary. It would be considered only if the requesting country and destination country were ones that we would regularly extradite to and where we have international obligations that require us to do so. A risk assessment in consultation with law enforcement partners and Border Force is also required before any request can be granted.

Both codes being presented today have been the subject of public consultation, as well as detailed consultation with operational partners, including law enforcement, Border Force and the devolved Administrations, and have been updated to take consultation responses into account. The codes will provide a comprehensive and accessible resource for operational partners. For individuals subject to extradition, they will act as a reference to their rights. The legislation will further ensure that there is no disparity between our international obligations and domestic law.

If this statutory instrument is approved by Parliament, these codes will be brought into operation on 1 May 2021. I commend the order to the House.

Photo of Lord Naseby Lord Naseby Conservative 4:16 pm, 23rd March 2021

My Lords, I am conscious that this is a complicated issue and that we in Parliament have to debate under the draft affirmative procedure and give our consent. I am not experienced in this area, but I looked closely at the Extradition Act 2003 code of practice. I studied some of the 63 pages. The code of practice is in principle 18 years old, so it is not surprising that some changes are being made. I have a few questions that arose from some of the reading I have done, first on search warrants, where an entry is made into a property or premises without a warrant for the purpose of arrest or a search of the premises. Has there been any change in the procedure over this period of 18 years? What happens when things go wrong, or perhaps not to plan? Does the aggrieved party have a right to an appeal or is there a review mechanism?

I notice that paragraph 5 of the Explanatory Memorandum, entitled “European Convention on Human Rights”, states that, in the view of the Commons Minister, the provisions

“are compatible with the Convention rights.”

I just wondered whether anybody has ever challenged that.

I note that paragraph 7.2 talks about

PACE Codes and how arrests are to be carried out in relation to these new arrest powers. These codes do not apply to Scotland.”

Has that changed? I presume that originally they applied to Scotland; perhaps I am wrong. If they applied but do not now, is that because of something that was done at the time of devolution, or was there some other change in relation to Scotland?

In paragraph 7.4, towards the end, there is a sentence starting:

“Some modifications were made following consultation and further modifications were recently made via direct consultation with operational partners”.

It would be helpful to know in what area those modifications were and whether they were substantial or what I might call of minor interest.

I am not clear about paragraph 8.1 on the European arrest warrant. I am not quite sure what has happened to that.

Finally, under paragraph 12, “Impact”, how often do we have transit requests and are operations undertaken? Is this something that happens a few times a year, or are we regularly called on to help with transit arrangements?

I should be most grateful to the Minister if she can give some response to those questions either now or later in writing.

Photo of Baroness Wheatcroft Baroness Wheatcroft Crossbench 4:19 pm, 23rd March 2021

My Lords, these are straightforward regulations and on that level I support them. It is clearly important that our police should have clarity on these issues and that the code provides a necessary update. When people are being extradited, it is clearly essential that they can access legal support and the code enables that, among other things.

However, there are broader issues with extradition. I fear that our police are caught in a situation that is still deeply unfair for British citizens. I refer, of course, to the imbalance between the UK and the US, in the 2003 extradition treaty. On 12 February last year, our Prime Minister said:

“I do think that elements of that relationships are unbalanced, and it is certainly worth looking at”.—[Official Report, Commons, 12/2/20; col. 846.]

But, more than a year later, it has not been looked at. Our police are being asked to help in a process that can see UK citizens extradited to the US for crimes committed entirely in the UK and involving UK citizens and businesses.

When the 2003 Act was first brought in, it was envisaged that it would deal with paedophiles, terrorists and murderers. In fact, the subject of extradition to the US has been almost entirely white-collar crime. It appears that the US has the ability to reach out around the world on commercial crime, so our police will necessarily be involved in dealing with people not only from the UK who are subject to extradition, but in transit from other countries to the US, where they, like our citizens, will face a legal process that is weighted against them. The US legal system is very different from ours and, although it is clear from these documents that we will not extradite or aid the extradition of those who could be subject to the death penalty, we will be involved in extraditing those who could be subject to extraordinarily long prison sentences in conditions which, many would argue, are not conducive to complying with human rights legislation.

The plea bargaining system is essentially unfair. Why American citizens accept it I do not know, but surely the UK should stand up against such an unfair system of justice and safeguard our citizens, and potentially those of other countries, who are subject to the unfairly long reach of the US judicial arm.

Photo of Baroness Jones of Moulsecoomb Baroness Jones of Moulsecoomb Green 4:23 pm, 23rd March 2021

My Lords, I agree very strongly with the noble Baroness, Lady Wheatcroft, because there is a huge imbalance between us and the US, and it is time to do something about it. The Prime Minister said he would, but he says a lot of things and you cannot rely on any of them.

In looking through this code of practice, it is worrying that the police not only have been dragged into immigration enforcement in this country but are now being used to ferry extradited prisoners in transit between two other countries. I would very much like to know, if the Minister can answer me, how the police were consulted, when and in what form. This is important, because the police have been dragged into this very sensitive area.

One other specific area that is woefully neglected in this code of practice is the guidance for refugees and people claiming asylum. The issue gets one paragraph of guidance at paragraph 1.10 and a requirement to keep records at paragraph 4.20. It says:

“If the person in transit claims that they are a refugee or have applied or intend to apply for asylum, a constable or custody officer must ensure that the relevant immigration authorities are informed, as soon as practicable, of the claim. The immigration authority may then inform the constable or custody officer of any action that he or she may take.”

This is worrying for many reasons, not least because the immigration authorities are constantly making wrong and unlawful decisions about refugees and people seeking asylum. There is no provision here for these people to seek independent legal advice and to be supported to exercise their important rights.

Paragraph 4.19 allows legal advice to be arranged via the citizen’s embassy, but that may be of little use or actively harmful if the person is seeking asylum against that very country.

Paragraph 4.20 requires record keeping of communications with the immigration authorities regarding claims for asylum or refugee status, but those records are of no use if the person is quickly shipped off to their destination country, with no recourse to the UK courts.

Worse still, the guidance at paragraph 1.10 requires the immigration authorities to be informed “as soon as practicable” of an asylum or refugee claim. It is easy to foresee circumstances where the police would say that it was not practicable to inform the immigration authorities before the person was shipped off to their destination country—for example, if the police were simply escorting a prisoner between two connecting flights.

It seems that this code of practice is completely unfit for purpose when it comes to the rights of refugees and people claiming asylum. Lives will be ruined and huge injustices caused as a result of police following this guidance. The police will therefore bear the brunt of this and not the Government. Can the Minister therefore please undertake to go back to the department and revise this code to protect refugees and people claiming asylum properly?

Photo of Lord Paddick Lord Paddick Liberal Democrat Lords Spokesperson (Home Affairs) 4:27 pm, 23rd March 2021

My Lords, I thank the Minister for introducing this order. From what I understand, an extradition case in 2002 called into question whether the Police and Criminal Evidence Act 1984, which usually covers the matters referred to in Part 4 of the Extradition Act 2003, applies to cases where the alleged offence was committed abroad. The 2003 Act sets down police powers on extradition cases but, where the A are silent on any matter, police officers need to refer to the PACE codes of practice.

As the Minister said, Part 4 of the 2003 Act deals with police powers, including search and seizur warrants, production orders, entry and search in order to arrest and after arrest, search of the person arrested including intimate searches, the taking of fingerprints and DNA samples, and photographing of the person and of any identifying marks or scars in order to establish the person’s identity—in other words, the powers contained in PACE. The Secretary of State must issue codes of practice in connection with the exercise of those powers.

The instrument brings into operation updated codes of practice in England, Wales and Northern Ireland under the 2003 Act and a new code of practice for non-UK extradition transit throughout the UK, where the person being extradited is transiting through the UK but is not being extradited to or from the UK. The latter was added to the 2003 Act by Section 168 of the Anti-Social Behaviour, Crime and Policing Act 2014.

The existing codes of practice under the 2003 Act date from 2011 and, as the Minister explained, there have been changes to PACE and a new power of arrest brought in by the Extradition (Provisional Arrest) Act 2020, since 2011. The changes to both codes of practice have been consulted on, but further changes have been made, including amendments relating to the new power of provisional arrest introduced by the 2020 Act.

The Explanatory Memorandum states that the instrument does not relate to withdrawal from the European Union. This takes us back to when we debated the Extradition (Provisional Arrest) Act 2020, when the House noted that the legislation had been brought forward just as the UK was losing access to the European arrest warrant. Despite the Government’s denials that the two were linked, they then added all EU member states to the list of category 2 territories.

But I digress. I have two questions for the Minister. On examination of the updated Extradition Act 2003 codes of practice, it is unclear to me how they differ from the PACE codes of practice. Can the Minister explain what the main differences are, if any?

Upon examination of the Code of Practice for Non-UK Extradition Transit, it was unclear to me the differences between when a person is in transit and the relevant UK authority has issued a transit certificate under Section 189A of the 2003 Act, and when a person makes an unscheduled arrival in the UK and a transit certificate will not have been issued. Can the Minster please explain what those differences are? Otherwise, we support the order and I look forward to the Minister’s response.

Photo of Lord Rosser Lord Rosser Shadow Spokesperson (Home Affairs), Shadow Spokesperson (Transport) 4:30 pm, 23rd March 2021

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.”—[Delegated Legislation Committee, 17/3/21; col. 6.]">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.

Photo of Baroness Williams of Trafford Baroness Williams of Trafford The Minister of State, Home Department 4:39 pm, 23rd March 2021

My Lords, I thank everyone who has spoken in this debate. I apologise to the noble Lord, Lord Naseby, because I did not hear part of his speech. However, he asked about changes in extradition practices. The principles of extradition remain the same, although clearly there are countries that we may add or subtract.

The noble Lord, Lord Rosser, asked how many countries we extradite to. I do not have the total in my head, but he can see that in the list of Part 1 and Part 2 countries. My noble friend also asked whether our practices were compatible with human rights. Yes, that is a clear principle of our extradition approach.

My noble friend Lady Wheatcroft asked about extradition to the US. The US-UK treaty is out of the scope of this debate, but clearly we would, if appropriate, seek death penalty assurances from the US. It would not depend on the issue; we would seek those assurances. In terms of transit, we will not transfer either to or from a country with human rights abuses.

The noble Baroness, Lady Jones of Moulsecoomb, asked about the police. We have extensively consulted them and they are content. As the noble Lord, Lord Paddick, said, silence on any matter means that they refer to the PACE codes. The noble Baroness also asked about asylum seekers. This extradition process is a very clear court process by which we would return or receive someone to face sentence either here or in another country. Anyone who wishes to seek asylum obviously can do so when they arrive in this country. However, this order is not predominantly about asylum seekers but about a court process.

The noble Lord, Lord Paddick, asked about various processes. There are two main changes. The updated extradition codes of practice take account of changes made to the relevant PACE codes on which the extradition codes of practice are based. While police practice is always to refer to them as recent PACE codes, as the noble Lord pointed out, the draft codes of practice have been updated to reflect the most recent amendments to the PACE codes. As he said, most amendments are in respect of PACE code C, which deals with arrest, detention and treatment of persons detained under the 2003 Act. There are also some amendments in respect of PACE code D, which applies to the identification of persons detained under the 2003 Act.

The second change, the new power of arrest brought about by the Extradition (Provisional Arrest) Act 2020, applies only to Part 2 of the 2003 Act. The provision applies only in principle to a specific and limited number of Part 2 countries—the Five Eyes countries, Switzerland and Liechtenstein—meaning that the number of arrests that would rely on it would be relatively low. However, it is essential that the revision to police powers in the 2003 Act is appropriately reflected in updated codes of practice at the earliest opportunity.

In terms of transit arrangements, a request for extradition transit from any country is subject to approval. The usual safeguards concerning human rights compatibility continue to apply in all extradition cases. Requests for transit that concern countries outside the European Union will be considered by the Secretary of State for the Home Department and the policy set out in the overseas security and justice assistance—OSJA—guidance must be applied where necessary. We would expect to proceed only if the requesting country and destination countries are ones that we would regularly extradite to and where we have international obligations that require us to do so: that is, the provision will be used only for extraditions taking place according to a treaty or on a similar international legal basis.

Transit would also be refused if the person has already been convicted for the same offence in the UK or another country on the grounds of double jeopardy or if a person has been, or could be, sentenced to death. Additionally, when considering any request, key risks or concerns will be considered before a decision is made. These include risks to the person in transit or to others. This would be assessed from information concerning the relevant offence, any history of violent behaviour and any significant health issues that it is mandatory for the requesting country to provide.

I turn to other questions. The noble Lord, Lord Rosser, asked about the Minister in the Commons who said that the new arrangements were working fairly well. I cannot comment on what was in his mind, but I shall study the relevant Hansard and return to the noble Lord in writing. He asked whether the arrangements were already in operation or had just been brought in. These codes will be brought in on the passage of this statutory instrument. The noble Lord also asked for a letter from the Commons Minister when it is ready. Yes, definitely. He mentioned some countries that would not allow extradition. There are a few countries that will not allow the extradition of their own nationals. In those situations, the individuals are tried in their own country and remedies sought thereafter.

The last question was why this legislation had taken so long to come into force. Legislation passed in 2014 made amendments to the Extradition Act 2003. Provisions were not commenced earlier, partly due to the competing policy and parliamentary priorities that I mentioned in the debate on the previous statutory instrument, and also due to complexities in determining how transit should best operate in practice. I am pleased to say that those issues are now resolved.

If I have not addressed any questions, I will do so in writing.

Motion agreed.