Select Committee on Constitution Sixth Report


Appendix 1

Letter from the Lord Norton of Louth, Chairman of the Committee, to the Home Secretary, the Rt Hon. David Blunkett MP

In my capacity as the Chairman of the House of Lords Constitution Committee, I am writing to you in relation to the Extradition Bill, which is shortly to be introduced into the House of Lords.

Part 1 of the Bill seeks to give effect within the United Kingdom to the Framework Decision of the Council of the European Union dated 13 June 2002 on the European arrest warrant and the surrender procedures between Member States. The Committee is aware that a draft Extradition Bill was published on 27 June 2002 for consultation (Cm 5545) and that the present Bill marks the completion of an extensive review of extradition law that has been conducted by the Home Office over several years.

In the view of the Committee, the extensive reform of extradition law proposed by the Bill is of constitutional significance. In particular, Part 1 of the Bill affects the rights and liberties of persons in the United Kingdom by creating a new procedure (replacing the present law of extradition) that is based on the principle of 'mutual recognition' between the legal systems of countries within the European Union.

The Committee would welcome further information on the following constitutional matters raised by the Bill.

1. The Bill draws a fundamental distinction between extradition to category 1 territories (covered by Part 1 of the Bill) and extradition to category 2 territories (Part 2 of the Bill). By clauses 1 and 68, Orders in Council may be made designating the territories which are to come within each category. However, the Bill does not provide any guidance or contain any criteria as to the making of the designation orders. We therefore ask:

  what the Government's intended policy is as regards the designation of territories for the purposes of the new extradition law; and

  why the Bill does not provide for the Orders in Council designating territories to be subject to affirmative procedure (see clause 205(1)) [now clause 210(1)].

2. For the purposes of extradition to category 1 territories, the first task of the judge at an extradition hearing will be to decide whether the conduct specified in the warrant that has been received from the requesting country is an 'extradition offence' in that country (clause 10(2)). By clause 63(2), one of three requirements that must be satisfied is that a certificate in due form shows that the conduct in question "falls within the European framework list". If all three requirements are satisfied, a requirement of dual criminality will not apply. By clause 65(3), "the European framework list" is the list of 32 categories of conduct set out in Article 2.2 of the European Framework Decision of 13 June 2002. We consider that a knowledge of the contents of that list is fundamental to an understanding of the new law, since it is the first matter that must be decided by the judge at an extradition hearing. We therefore ask:

  why the European framework list is not set out in full as a schedule to the present Bill.

3. In relation to the question of whether conduct that falls within the European framework list is an extradition offence, the Committee has noted that by clause 63(2)(c), the offence must be punishable in the requesting territory with imprisonment for a term of 12 months or more. However, by Article 2.2 of the Framework Decision, the offence must carry a maximum penalty of at least three years' imprisonment. The effect of the Bill, but not of the Framework Decision, is to disapply the dual criminality safeguard for less serious offences. We therefore ask:

  why the Government proposes to go beyond the requirements of the Framework Decision in disapplying the dual criminality safeguard for less serious offences; and

  whether other states within the European Union are similarly proposing to go further than is required by the Framework Decision.

The Constitution Committee usually aims to report on bills before they receive their second reading in the House of Lords. Although the second reading date for this bill is not yet known, I would be grateful if you could reply by Monday, 10th March. This would enable the Committee to consider your response at their next meeting, and, if they consider it appropriate, report to the House in a timely manner.

3 March 2003


 
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