EXTRADITION BILL |
1. This bill makes new provision for extradition
to and from the United Kingdom and British overseas territories.
It replaces, in particular, the Extradition Act 1989 and the Backing
of Warrants (Republic of Ireland) Act 1965. The background to
the bill is set out in paragraphs 6 to 11 of the Explanatory Notes
published with the bill.
2. The essential feature of the bill is that
the UK's extradition partners will fall into one of two categories
(as designated by Order in Council). The arrangements for each
of the two categories differ significantly. Territories designated
as Category 1 territories will be subject to "fast-track"
arrangements under Part 1 of the bill and those designated as
Category 2 territories will be subject to standard arrangements
set out in Part 2 of the bill.
3. There are delegated powers at clauses 1, 2(9),
60(8), 68, 70(4), 72(5), 73(10), 83(6), 85(6), 100(5), 132(8),
142(10), 154, 170(2), 172(4), 174, 176, 178, 180(1) and (2), 194
(new section 24A of the Criminal Procedure (Scotland) Act 1995),
196(6), 197, 204, 207 and 208. The powers are identified in the
memorandum to the Committee from the Home Office, though there
is no mention there of the power conferred by section 196(6) (new
section 23 (5ZA) of the Children and Young Persons Act 1969).
The memorandum is printed at Annex 1 to this Report.
4. With the exception of clauses 142(10) and
172(4) (affirmative) and clauses 207 and 208 (no Parliamentary
procedure), exercise of the powers under the bill is subject to
5. Although in most instances we take the view
that the delegations are appropriate and subject to an appropriate
level of Parliamentary scrutiny, a number of delegated powers
(principally clauses 1 and 68 (the most significant powers in
the bill) and clauses 70(4), 72(5), 83(6) and 85(6) (together))
raise issues to which the Committee wishes to draw the attention
of the House.
Clauses 1 and 68
6. Orders in Council under clause 1 (subject
to negative procedure) designate Category 1 territories. The arrangements
for extradition to these territories are set out in Part 1 of
the bill. Significant features include the following:
if the relevant offence is listed in the European
Framework list and attracts a maximum penalty of 12 months or
more, the "dual criminality" rule does not apply, so
that extradition is possible even if the conduct would not amount
to an offence in the UK;
there is no requirement for an executive decision
by the Secretary of State before a person can be extradited.
Orders in Council under clause 68 (subject to negative
procedure) designate Category 2 territories. The arrangements
for extradition to those territories are set out in Part 2 of
the bill. Part 2 both applies a "dual criminality" rule
(clause 137 and 138) and contains provision for a Secretary of
7. The Government says (paragraph 2 of the memorandum
to the Committee) that Part 1 will apply to the countries which
will be operating the European Arrest Warrant, possibly with Norway
and Iceland included. But though different considerations can
apply according to whether or not conduct falls within the European
Framework list (clauses 63 and 64), the power to designate territories
as Category 1 territories is not limited to designation of states
that will operate the European Arrest Warrant.
8. Other countries with which the UK has general
extradition arrangements are intended to be designated as Category
2 territories; countries with whom there are no formal arrangements
may also be designated as Category 2 territories on an ad hoc
basis (paragraph 11 of the memorandum).
9. The Committee recommends that Orders
in Council under clauses 1 and 68 should in all cases be subject
to the affirmative procedure. The
reasons for this recommendation are that:
designation of a territory in one or other category
is central to the operation of the bill;
designation has important practical consequences,
affecting personal liberty, for those who may be extradited to
or from the territory concerned;
the bill imposes no limit (other than by clause 1(3))
on which territories may be designated; and the adequacy of the
safeguards in those territories is a matter which requires debate
and specific Parliamentary approval in every case, even in the
case of EU member states.
10. The Committee is aware that orders under
section 4 of the Extradition Act 1989 are subject either to laying
before Parliament only or to the negative procedure, according
to their content. But the present bill makes new provision for
extradition which includes significantly different arrangements
for different types of territory and, as a result, it has attracted
a high level of interest.
The Committee does not, therefore, consider the precedent of the
1989 Act as strictly relevant in the context of the new arrangements.
Clauses 70(4), 72(5), 83(6) and 85(6)
11. Clauses 70(4), 72(5), 83(6) and 85(6) enable
an Order in Council, subject to negative procedure, to dispense
with evidential requirements. In the case of arrest warrants and
provisional arrest warrants (clauses 70 and 72) the effect of
the Order in Council is that certain "information",
not evidence, is needed before a warrant may be issued; and in
the case of the court hearing (clauses 83 and 85) the need to
consider evidence of a case to answer is removed. The need for
these provisions is explained at paragraph 14 of the Home Office's
memorandum; they enable, in particular, the UK's obligations under
the European Convention on Extradition (ECE) to be met.
12. Under section 4 of the Extradition Act 1989
Orders in Council specifying a foreign state for the purposes
of that Act are subject to negative procedure where they permit
extradition without the requirement for sufficient evidence to
make out a case to answer. It is such an Order which currently
gives effect to the ECE arrangements. The Committee acknowledges
the case for suggesting that Orders specifying the states now
operating the ECE arrangements and included in the current Order
should be subject to negative procedure only. But the Committee
considers that Orders under clauses 70(4), 72(5), 83(6) and 85(6)
should be subject to affirmative procedure in view of the
importance of the procedural safeguards which may be removed by
the Order in relation to any designated territory, whether or
not it is one with which the UK has general extradition arrangements.
13. Clause 210(4) provides that Orders in Council
under clauses 1 and 68 may provide that the bill applies to particular
territories with modifications. At various places in the bill
where modifications are envisaged to take account of particular
extradition arrangements, specific provision is made, e.g. clauses
73(10) and the provisions mentioned in paragraphs 11 and 12 above.
No explanation of the need for this power is given either in the
Explanatory Notes or the Home Office's memorandum. We suggest
that the House may wish to invite the Government to provide an
14. Clause 73(9) provides for the discharge of
a person arrested under a provisional warrant if the extradition
request and certificate (referred to in clause 69(9)) are not
received by the judge within 40 days from the date of arrest.
The period can be extended by an Order in Council subject to negative
procedure. We recognise that this is a narrower issue than those
considered in paragraphs 6 to 12 above but the effect of an extension
of the period on the individuals concerned could be significant.
The Committee therefore considers that the affirmative procedure
is the appropriate level of Parliamentary scrutiny in this case.
15. We draw to the attention of the House
the recommendations in paragraphs 9, 12 and 14 above and the suggestion
for further explanation made in paragraph 13. There are no further
matters in relation to the delegated powers in this bill on which
we wish to report to the House.
2 We note, for example, the Sixth Report (HL Paper
82, Session 2002-03) of the Constitution Committee of the House
of Lords in which reference is made to the parliamentary procedure
governing the designation of countries as Category 1 or 2 territories. Back