Select Committee on Delegated Powers and Regulatory Reform Eighteenth Report


Annex 1

EXTRADITION BILL

Memorandum by the Home Office

1.  This memorandum describes the powers to make subordinate legislation which will be conferred by the Extradition Bill. It sets out who has the power to make the subordinate legislation and the parliamentary procedure (if any) to which the subordinate legislation will be subject. The Extradition Bill reforms the law on extradition and repeals the Extradition Act 1989 and the Backing of Warrants (Republic of Ireland) Act 1965.

Clause 1(1) - Power to designate Category 1 Territories

2.  The Bill introduces two different extradition processes that are set out in Parts 1 and 2 of the Bill. Part 1 will apply to those countries that will be operating the European Arrest Warrant possibly with Norway and Iceland included. It will be necessary to designate to which countries the Part 1 provisions apply to enable changes to be made in relation to the designation of individual countries without the need for further primary legislation. As with the Extradition Act 1989, this will be done by subordinate legislation. The designation orders will be made by Order in Council and will be subject to the negative resolution procedure by virtue of clause 210(1).

3.  This provision provides greater parliamentary scrutiny than the equivalent provision in the current legislation, section 4 of the Extradition Act 1989. Under the 1989 Act Orders in Council need only be laid before Parliament after being made. Only if certain evidential or jurisdictional requirements are not met must Orders made under the 1989 Act be subject to the negative resolution procedure. Clause 1(1) provides that all designation orders must be subject to the negative resolution procedure.

4.  Clause 210(4) allows an Order in Council made under this power to have effect in relation to a territory with specified modifications.

Clause 2(9) - Designated authority or authorities

5.  Clause 2 provides for an authority (or authorities) to be designated, which the Government intends to be National Criminal Intelligence Service (NCIS) and, for Scotland, the Scottish Crown Office. NCIS already acts as the United Kingdom contact point for Interpol, Europol and the Schengen Information System. The new function will be to verify each warrant which is transmitted, via a secure link, to the UK. Where a warrant contains the necessary information, and is known to originate from a recognised judicial authority in the category 1 country, NCIS will certify the warrant before it can be used to arrest the person in question.

6.  The designation will be made by means of an Order in Council which will be subject to the negative resolution procedure by virtue of clause 210(1). It is submitted that it is appropriate to designate these authorities by subordinate legislation, using the negative resolution procedure. This will allow flexibility to amend the list of designated authorities in the future, if necessary, to reflect the functions of the relevant authorities, whilst at the same time making it clear which are the responsible authorities.

7.  Clause 2(10) states that an Order in Council made under clause 2(9) may designate more than one authority and may designate different authorities for different parts of the United Kingdom.

Clause 60(8)(b) - Power to make regulations regarding the payment of costs where a person's discharge is ordered

8.  Clause 60 allows a judge to make a costs order in favour of a person discharged under the provisions of Part 1 of the Bill. Clause 60(8) states that the amount of the costs should be specified in the order or, in any other case, must be determined in accordance with regulations made by the Lord Chancellor for this purpose.

9.  Regulations made by the Lord Chancellor pursuant to this provision will be subject to the negative resolution procedure by virtue of clause 209(5). It is submitted that this is the correct level of parliamentary scrutiny given the subject matter of the regulations.

Clause 68(1) - Power to designate category 2 territories

10.  As with the corresponding power for Part 1 of the Bill in clause 1, this clause allows countries to be designated for the purposes of Part 2. It is clearly necessary to list the countries to which these provisions apply and it is submitted that the most appropriate and efficient way of doing this is by secondary legislation.

11.  It is intended that all countries that are not designated in Part 1 with which the UK currently has extradition relations will be designated in Part 2. However, there would also be the possibility of designating other countries with which the UK does not currently have formal extradition arrangements. It may also be necessary to designate countries on an ad hoc basis. For this reason it is submitted that it is appropriate for the designation to be made by way of delegated legislation.

12.  The Orders in Council made to designate countries under this provision will be subject to the negative resolution procedure by virtue of clause 210(1). This is how countries are designated for extradition purposes currently and has been the case for many years. There appears to be no reason to depart from this well-established practice.

13.  Clause 210(4) provides that an Order in Council made under this provision may have effect with specified modifications.

Clause 70(4) - Power to designate a category 2 territory or territories so as to require "information" rather than "evidence"

14.  This clause contains provision for countries to be designated by Order in Council, changing the requirement to provide evidence to a requirement to provide information. If there was no provision for this the UK could not meet its obligations under the European Convention on Extradition (ECE), which we have been operating since 1991. This is because some other countries operating the ECE procedure will not be designated under Part 1 and therefore will need to be included in Part 2. Under the ECE we cannot demand prima facie evidence from other signatory countries but we do require information regarding the offence. This provision allows the Part 2 procedure to be modified to comply with the ECE provisions It is commonplace for new Council of Europe countries to be added to the list of signatories.

15.  This provision therefore provides a power, reproducing that in section 4 of the Extradition Act 1989, to designate these countries by Order in Council. Orders made under section 4 of the 1989 Act are subject to the negative resolution procedure where evidential or jurisdictional requirements are relaxed. It is therefore submitted that it is appropriate to make orders made under clause 70(4) subject to the negative resolution procedure as this follows the precedent of the 1989 Act which has caused no difficulties. Orders made under this clause are subject to the negative resolution procedure by virtue of the provisions of clause 210(1).

Clause 72(5) - Power to designate a category 2 territory or territories so as to require "information" rather than "evidence"

16.  This provision is similar to clause 70(4), applied here for provisional warrant cases. As in that case, this designation power is to be exercised by Order in Council subject to the negative resolution procedure by virtue of clause 210(1). This is felt appropriate for the reasons given above.

Clause 73(10)(b) - Power to specify a category 2 territory or territories for whose cases a period of longer than 40 days is allowed for the production of evidence/information in a provisional warrant case

17.  This clause relates to provisional arrest pending the receipt of the formal extradition request. The person must be discharged if the judge has not received the request, certified by the Secretary of State and accompanied by all the relevant documentation, within 40 days. This period is set at 40 days as this is what is specified in the European Convention on Extradition (ECE). This applies now and is also provided in existing extradition treaties. It is possible to extend this time frame where an Order in Council specifically provides that a longer period is allowed in relation to a particular category 2 territory. This is necessary to take account of certain bilateral agreements in which the specified period is longer than 40 days. It is submitted that it is appropriate for this power to be exercisable by Order in Council subject to the negative resolution procedure as it is a technical measure necessary to comply with our obligations under certain bilateral treaties. The negative resolution procedure is applicable by virtue of clause 210(1).

Clause 83(6) - Power to designate a category 2 territory or territories for whose cases there is no requirement to examine prima facie evidence at the extradition hearing

18.  As before, in clause 70(4), this clause is necessary to allow the UK to fulfil its obligations under the ECE in relation to evidential requirements. If a country is designated by means of an Order in Council made pursuant to this clause the judge at the extradition hearing is not required to consider whether a prima facie case has been made out. Orders in Council made under this clause will again be subject to the negative resolution procedure by virtue of clause 210(1) which is felt appropriate given the subject matter and for the reasons given above in relation to clause 70(4).

Clause 85(6) - Power to designate a category 2 territory or territories for whose cases there is no requirement to examine prima facie evidence, where person convicted in his absence

19.  Again, this clause is dealing with evidential requirements at the extradition hearing, in this case in relation to cases where the requested person has been convicted in their absence. As above, designation orders under this clause are by means of Order in Council subject to the negative resolution procedure (by virtue of clause 210(1)) and for the same reasons.

Clause 100(5) - Power to amend the category of senior officials authorised to make orders for extradition or discharge to take account of any future changes to structure or grading in the civil service.

20.  Clause 100 sets out who is authorised to make an order for extradition or an order for discharge under clauses 92 and 121. This includes a senior official who may be a member of the Senior Civil Service or a member of the Senior Management Structure of Her Majesty's Diplomatic Service. If there is a change in the structure or grading of the home civil service or diplomatic service, the Secretary of State is given the power to make amendments by order to those persons categorised as senior officials. It is felt appropriate to apply the negative resolution procedure to this power which is a necessary technical provision to retain flexibility to adapt to changes made subsequent to the passing of this legislation. The negative resolution procedure is applicable by virtue of clause 209(5).

21.  Clause 100(5) erroneously refers to the Secretary of State having a power to make amendments to subsection (3). This should refer to subsection (4). The error is consequential on an amendment made to this clause which has not yet been rectified.

Clause 132(8)(b) - Power to make regulations determining the appropriate amount of costs to be paid where person's discharge is ordered

22.  This clause mirrors clause 60(8)(b) in Part 1 of the Bill. The Lord Chancellor will have the power to make regulations relating to the payment of costs where a person has been discharged. The negative resolution procedure is considered the appropriate level of parliamentary scrutiny granted the subject matter of this power. The negative resolution procedure will be applicable by virtue of the provisions of clause 209(5).

Clause 142(10) - Power to designate appropriate persons to apply for a Part 3 warrant

23.  Only the police or a person designated specifically for this clause will be allowed to apply to a judge for a Part 3 warrant (a warrant requesting a person's arrest and extradition to the UK). The Government intends to designate such authorities as HM Customs and Excise and the Inland Revenue for this purpose. However, it is submitted that it is sensible to allow for future authorities to be similarly designated. It is felt that the most appropriate way to achieve this is by using secondary legislation under the affirmative resolution procedure. The affirmative resolution procedure is applicable by virtue of clause 209(6). The power to seek the extradition of a person is obviously an important power and it is important that this power is not abused. It is therefore felt appropriate to make orders made under this provision subject to the affirmative procedure so that a more rigorous parliamentary scrutiny of this power is possible.

Clause 154 - Power to apply Part 3 provisions to cases involving services law

24.  The power to request an extradition is currently exercised by use of the royal prerogative. It is therefore possible under the existing system for the UK services to make extradition requests for those who are subject to military law. The introduction of the EAW means that this procedure is to be formalised in respect of extradition requests to category 1 territories. This clause allows the Secretary of State to provide for extradition requests to be made by the military authorities in a case where the requested person is subject to service law in respect of a category 1 territory. Outgoing requests to category 2 territories would continue to be made using the royal prerogative.

25.  As the clause in this Bill states, these requests can only be made for those who are subject to military law, airforce law or the Naval Discipline Act 1957. The order-making power would be exercisable by statutory instrument and subject to the negative resolution procedure by virtue of clause 209(5). Given that the legislation is intended to apply to the services with modifications it is submitted that this is the appropriate level of parliamentary scrutiny.

Clause 170(2) - Power to apply certain specific Police and Criminal Evidence Act 1984 (PACE) (or equivalent) provisions on the treatment and rights of an arrested person who is detained at a police station

26.  This clause concerns the application of specific PACE provisions, relating to custody matters, to extradition cases. Sections 54 and 55 of PACE allow the police to search the suspect so that a record can be made of everything he has on him. The police can also carry out an intimate search of the suspect if an Inspector believes that he is concealing something that he could use to injure himself or others while in custody or that he is concealing a Class A drug that he had before his arrest. Sections 56 and 58 give the detained person the right to inform someone that he has been arrested and seek legal advice.

27.  The approach in this clause is to give the Secretary of State an order-making power to apply these provisions with specified modifications. Other powers equivalent to those in PACE are set out on the face of the Bill, but it was felt that a degree of additional flexibility would be necessary specifically for these particular provisions. The Government does not envisage making any substantial changes to the application of these powers in extradition cases, but there will need to be some minor changes. For example, mention of "an offence" would need to refer to "an extradition offence." Save for such technical amendments it is intended to mirror the provisions in PACE as closely as possible for the purposes of clarity and consistency.

28.  This power will be subject to the negative resolution procedure by virtue of clause 209(5). This is felt appropriate given the technical nature of this provision. No new police powers are granted. All the clause permits is the application of four sections of PACE to extradition cases with modifications.

Clause 172(4) - Obligation to issue codes of practice in connection with the operation of police powers under Part 4 and to bring those codes into operation by order.

29.  Clause 172 requires the Secretary of State to issue codes of practice in connection with the exercise of powers under this Part of the Bill. It also states that when he intends to issue such a code it must first be published in draft. Any representations made about the draft must be considered and then it must be laid before Parliament and then brought into effect by order. Any provisions relating to the arrest, search and detention of suspects are important and it is therefore felt appropriate that the Codes of Practice must be laid before Parliament and brought into operation by an order made subject to the affirmative resolution procedure. The affirmative resolution procedure will apply to the order by virtue of clause 209(6).

Clause 174 - Power to provide that Part 4 provisions apply to Customs Officers in the same way as they apply to the police

30.  This clause has the same effect as section 114(2) of PACE. It is the Government's intention that, in appropriate circumstances, customs officers should be able to execute European Arrest Warrants. It is therefore necessary that they are governed by the same provisions as the police and that the people they arrest are afforded the same protection as those arrested by the police. This clause confers a power on the Treasury to provide for any provision of Part 4 which applies in relation to police officers to apply with specified modifications in relation to customs officers. The negative resolution procedure is considered appropriate for orders made by the Treasury under this clause given the precedent in section 114(5) of PACE which makes orders made under that section subject to annulment in pursuance of a resolution of either House of Parliament.

Clause 175 - Power to provide that Part 4 provisions apply to service policemen in the same way as they apply to the police

31.  This clause is very similar to clause 174. It allows the powers contained in Part 4 to be applied by order, made by the Secretary of State, to the services police forces. Any orders made under this provision will be subject to the negative resolution procedure by virtue of clause 209(5) and it is felt that this is appropriate for the same reasons as given in relation to clause 174.

Clause 176(1) - Power to apply provisions to extradition from a British overseas territory to a Commonwealth country, etc.

32.  Clause 176 provides that an Order in Council may apply any relevant extradition provision - that is those which would apply to extradition from the United Kingdom to certain category 2 territories - to a British overseas territory. These provisions, when applied, will then govern the extradition arrangements of that British overseas territory when extraditing to Commonwealth countries, other British overseas territories and the Hong Kong Special Administrative Region. The relevant provisions can then be applied with specified modifications where necessary.

33.  It is in line with the Extradition Act 1989 ("the 1989 Act") that provision is made for British overseas territories to deal with an extradition request and this clause gives the power to do that. It is therefore felt appropriate to apply the negative resolution procedure to orders made under this power. The negative resolution procedure will be applicable by virtue of clause 210(1).

Clause 178(1) - Power to apply provisions to extradition from a Commonwealth country, etc. to a British overseas territory

34.  Clause 178 provides that an Order in Council may apply any relevant extradition provision - that is those that would apply to extradition to the United Kingdom from certain category 2 territories - to a British overseas territory. These provisions, when applied, will then govern the extradition arrangements of that British overseas territory when extraditing from Commonwealth countries, other British overseas territories or the Hong Kong Special Administrative Region. The relevant provisions can then be applied with specified modifications where necessary.

35.  It is in line with the 1989 Act that provision is made for British overseas territories to be able to make an extradition request and this clause gives the power to do that. As with clause 176 it is submitted that the negative resolution procedure is appropriate for orders made under this power.

Clause 180(1) - Power to apply provisions to extradition from a British overseas territory to the UK

Clause 180(2) - Power to apply provisions to extradition to a British overseas territory from the UK

36.  Clause 180 allows any provision of this Bill to be applied, by Order in Council, and modified as appropriate to extradition between the United Kingdom and a British overseas territory. An Order made under this power may apply provisions with specified modifications.

37.  It is in line with the 1989 Act that provision is made for British overseas territories to be able to operate extradition arrangements with the UK. This clause gives the power to do that.

38.  Orders made under this provision will be subject to the negative resolution procedure by virtue of clause 210(1) and this is again felt appropriate given the subject matter of the clause and the precedent set in the 1989 Act.

Clause 194 - Power for Scottish Ministers to make amendments for the purposes of proceedings in Scotland

39.  Clause 194 is a technical provision dealing with bail for proceedings in Scotland. This power is exercisable by the Scottish Ministers by statutory instrument subject to annulment in pursuance of a resolution of the Scottish Parliament. It is submitted that this is appropriate given the technical nature of this provision.

40.  Unfortunately the printing of the Bill has not properly reflected this clause which was a late amendment to the Bill. The printing does not reflect the subsection numbers that should have been included. Subsection (3) which is referred to at line 34 is the paragraph that commences "The Scottish Ministers may.." and ends "… necessary or expedient" at lines 31 to 33.

Clause 197 - Power to provide for an extradition claim in respect of more than one offence

41.  This clause allows the Secretary of State to modify the provisions of the Bill in cases where there is more than one offence for which extradition is requested. The extradition procedure will be the same as it is set out in the Bill. There will be a procedure for accommodating multiple requests which will be laid out in the order. It is possible for an extradition request to be submitted for multiple offences and provision should be made for that. An order made under this power will be subject to the negative resolution procedure by virtue of clause 209(5). This is felt to be the appropriate level of parliamentary scrutiny given the technical nature of this provision.

Clause 204 - Power to prescribe form of documents

42.  Clause 204 allows the Secretary of State to prescribe by regulations the form of any document required under this Bill. This clause is necessary to enable standard documents to be devised and issued which may be needed - for example certificates, Part 3 warrants etc. Without this, it would be unclear what sorts and standards of documentation the Bill refers to. It is submitted that the negative resolution procedure is appropriate for these technical regulations. The regulations will be subject to the negative resolution procedure by virtue of clause 209(5).

Clause 207 - Commencement

43.  This clause allows for the provisions of the Bill to be brought into force by order of the Secretary of State. It is submitted that in accordance with normal practice it is appropriate that this power will not be subject to parliamentary scrutiny.

Clause 208 - Power to extend provisions to the Channel Islands and the Isle of Man

44.  This clause provides for the Bill to be extended by Order in Council to cover the UK's Crown Dependencies, that is to say the Channel Islands and the Isle of Man. Such an Order in Council would not be subject to parliamentary scrutiny in accordance with normal practice.

45.  Clause 208 would allow for modifications to be made as appropriate to ensure that the differences in the Islands' legal systems are catered for. The Crown Dependencies do not, for example, have the "District Judge", or operate the High Court and House of Lords in the same way as the UK. The Channel Islands and the Isle of Man are not part of the EU and so will not operate the Part 1 procedures.

46.  The approach in this clause represents something of a departure from the Extradition Act 1989, which applied the appropriate provisions directly to the Channel Islands and the Isle of Man. This reflects the wishes of the Islands' authorities who have been consulted on the provisions of the Bill.

31 March 2003


 
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