First Standing Committee
on Delegated Legislation
Monday 17 June 2002
[Mr. Eric Illsley in the Chair]
Draft European Union Extradition
(Amendment) Regulations 2002
The Parliamentary Under-Secretary of State for the Home Department (Mr. Bob Ainsworth): I beg to move,
That the Committee has considered the draft European Union Extradition (Amendment) Regulations 2002.
The regulations make minor amendments to the European Union Extradition Regulations 2002, which gave effect to the 1995 and 1996 conventions on speeding up and simplifying extradition procedures between EU partners. Those conventions required amendments to be made to the Extradition Act 1989. The original regulations received parliamentary approval on 19 December 2001, and came into force on 20 March 2002. They were made under the provisions of section 111 of the Anti-terrorism, Crime and Security Act 2001. The amendment regulations must therefore be made under the same power. They make two small changes to the original regulations, which introduced two small errors into the Extradition Act. This is a highly complex area of law, and as I try to explain the amendments, hon. Members will see how such oversights can, and do, occasionally occur. One area has no practical importance, but should be corrected. The other is significant enough to justify early amendment. I can only apologise to Members for taking up their time and that of the House of Commons to do that.
The first error occurred in paragraph 5 of schedule 9, which introduced a new section—section 14A—to the Extradition Act. That section introduced the fast-track consent procedure under the 1995 convention. In section 14A(5), reference was made to
''provision for a magistrate to order the committal for return of a person.''
Magistrates, such as those at Bow Street magistrates court, regularly deal with extradition matters. However, the term ''district judge'' should have been used in accordance with the changes made in section 78 of the Access to Justice Act 1999. The error has no practical effect on extradition proceedings as conducted under the regulations. However, the correct terminology should be used, hence regulation 2(2) of the amendment regulations.
The second error is that paragraph 10(4) of new schedule 1A modified the wrong section of the Extradition Act. This concerns speciality protection for fiscal offences in connection with taxes, duties, and Customs and Excise. Article 6 of the 1996 convention on extradition required that member states extradite for fiscal offences, which not all member states had been prepared to do up till then. Article 6(3) allowed member states to choose to restrict extradition for fiscal offences to offences in connection with Customs and Excise, and value added tax. Two member
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states—Greece and Luxembourg—adopted that provision. Speciality is a complex and longstanding protection in extradition. Once an individual has surrendered, the protection provides that proceedings cannot be undertaken for offences committed prior to surrender for which the individual was not extradited.
Article 10(1) of the 1996 convention allows persons to be prosecuted without the consent of the requested state in respect of certain offences other than those for which they were extradited. Those offences are ones that are not punishable by deprivation of liberty or ones for which criminal proceedings would not restrict personal liberty.
However, if a person has been extradited from a state that has made a declaration under article 6(3)—meaning Greece and Luxembourg—article 10(4) of the convention specifies that such offences will not include fiscal offences other than those connected with excise, value added tax or customs. Let us say that we make an outgoing request to Luxembourg asking it to extradite a person to us for one offence. If we then also want to prosecute that person for a minor fiscal offence not involving excise, VAT or customs, we have to ask Luxembourg's permission to do so. That is in line with its law.
Inadvertently, however, the change was made to a section of the 1989 Act that affected incoming requests. Rather than inserting the provision for outgoing requests, as the framework and the abilities taken up by the two member states mentioned obliged us to do, we were effectively providing protection on speciality for incoming requests and would have refused to extradite people where we were more than happy to do so.
Fortunately, no cases have been affected by that oversight, but it is only right that a correction be made to ensure that the extradition process is as fast, fair and accurate as we can make it. Regulation 2(3) of these regulations therefore omits the provision that was inserted in error, and regulation 2(4) adds it to the correct provision, affecting outgoing requests.
I hope that I have not detained the Committee too long on what for once in the sphere of extradition are completely non-controversial matters. I commend the regulations to the Committee.
Mr. James Paice (South-East Cambridgeshire): I am grateful to the Minister for that clarification. As far as I can remember, this is the first time that the Government have admitted a mistake within six months. I wish that they would do so far more frequently, but the admission is welcome, albeit that the mistakes were minor. As the Minister said, these are not exactly controversial matters, so I do not intend to detain the Committee long.
I simply want to press the Minister on the explanatory memorandum, which is almost as obtuse as the regulation itself. He referred to paragraph 8 in his explanation, and I should like to know precisely how we amended the law the wrong way round. It appears from what he said, and from that paragraph, that, as it stands, if the UK extradited someone to
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Greece or Luxembourg, it would not be able to prosecute for a fiscal offence other than the ones listed, whereas it should be the other way round. As I understand it, the intention is that those states can expect speciality protection to be applied to someone whom they extradite to this country, whereas we seem to have done things the other way round. Have I got that right? In addition, will the Minister explain more about the process and, in particular, why only Greece and Luxembourg have taken the declaration? Why have other countries, including presumably the United Kingdom, not done so?
Angus Robertson (Moray): I have a specific question, about which I gave the Minister advance warning. On the modifications in the regulations, section 14A—
Sitting suspended for a Division in the House.
Angus Robertson: I want to raise a question about which I have given the Minister some forewarning. I seek clarification of section 14A, where the Government want to substitute ''magistrate'' for
''Senior District Judge, (Chief Magistrate) or another District Judge (Magistrates' Courts)''.
None of those terms is used in Scots law or the Scottish legal system. Will the Minister confirm that we are simply amending the Act in so far as it affects England and Wales? Are other regulations covering the measure in force in Scotland so that the provisions do not require revision?
Simon Hughes (Southwark, North and Bermondsey): We have been round this course before, and the Minister will recall that one of our concerns expressed to his ministerial colleague on the last day of term before we broke for Christmas was that everything was being rushed through. We were trying to beat the clock because of a commitment Britain made some years ago to implement its own domestic law consequent to European legislation by the end of the calendar year 2001.
We had a rather bizarre debate. We considered the draft regulations on 19 December, the night after the House of Commons had passed the Anti-terrorism Crime and Security Bill. We had not yet received a copy of the legislation under which the regulations were being made, and the Government accepted that that was not desirable, that everyone was in a rush and that it was not the best way to legislate. If I may say so, the reappearance of this measure confirms the view that I took then: we are still legislating in haste. The repentance is a small one, but like the hon. Member for South-East Cambridgeshire (Mr. Paice), I am grateful that it has come quick and clean.
I see no problem with the specifics. The Minister will respond to the perfectly proper question from the hon. Member for Moray (Angus Robertson) about parallel Scottish jurisdiction.
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I shall ask questions that apply to the amending regulations and the original regulations. When the regulations were passed shortly before Christmas, they effectively triggered the conventions into force for us, but three other countries—France, Italy and Belgium—had not yet completed their procedures. Can the Minister tell us whether they did complete them and, if not, what sanctions are in place to encourage them to catch up? I appreciate that those countries may have been preoccupied recently with something else—two unsuccessfully and one successfully—but they should have had time before the World cup.
The three parties consulted at the time—I do not know whether the Scottish National party and Plaid Cymru were included—agreed that because the regulations were relatively non-controversial parts of the package and were connected only with subsidiary offences, they could be accepted for a temporary period. I understood that that period would finish at the end of June. I am asking out of ignorance; it is not a trick question. For the first time ever, I quote myself from Hansard because it repeats what the Government told us on 19 December:
''The conventions allow for a wider definition of terrorism and related offences than we would perhaps ordinarily wish. We have already permitted such a gateway through legislation. To be fair, the Opposition parties agreed to it, but the Government will use it for only seven months, until the end of next June. After that, they cannot try to implement other such measures without primary legislation for obvious reasons. We wanted only immediate and specific anti-terrorist legislation to be made through secondary legislation. That is why I asked in an intervention whether definitions could be provided of at least the three broad heads: terrorist, trafficking and drug-related offences.''—[Official Report, 19 December 2001; Vol. 377, c. 335.]
We were told that it was a transitional arrangement that would run out at the end of June. Is that right? If it is, what will happen after the end of June? Will this legislation lapse, in part or in whole? In any event, what are the Government's plans in relation to other matters, such as the follow up?
There is a complicated table at the back of the regulations. I did not entirely understand it in December, and I do not entirely understand it now. It provides that EU member states can derogate from different parts of the obligations, which is reasonable. However, I seek an updated answer to my earlier question: what is the position in relation to the EU countries? How many of them have signed up to the whole package, and how many have derogated? I am happy for the Minister to let us know the answer to that later, but it is one of the menu of options, and it would be useful if an answer were put on the record somewhere—here if possible, but otherwise in the Library—so that those who implement this sort of extradition legislation, such as the stipendiary magistrate at Bow Street magistrates court, can know the exact position. There is a potential maximum obligation across the EU—everything in the list—but there can be opt outs. Therefore, I wish the Minister to tell us what we have opted out of in the list, if anything, and to inform us, either now or later, which bits other countries have and have not signed up to.
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My last question does not follow from those points. The Government are planning for some extradition legislation, which will pick up where these regulations have left off. I understand that it is complicated to draft because it is a complex area of law to amend, but it would be helpful if the Minister could give an indication of what the timetable is. Once again, that is not a critical question
As the legislation is complicated and important, I also wish the Minister to give an assurance now—or to seek one from the Home Secretary—that we can have it in draft form a good while before it appears in its final form, so that there can be consultation. I make an early bid for it to go before a Special Standing Committee in due course, because that should be fed into the process of thinking about the timetable for next year.
It is important legislation; there will be controversial issues, such as the European arrest warrant, which we all know about. Therefore, it is important that we try to get it right, and securing maximum areas of agreement would make it better.