Select Committee on Delegated Powers and Regulatory Reform Twenty-Sixth Report

Annex 3


Supplementary Memorandum by the Home Office

1.  This additional memorandum describes the powers to make subordinate legislation which will be conferred by the Extradition Bill as they would be altered by the Government amendments tabled for consideration at Report in the House of Lords. An earlier memorandum from the Home Office dated 31 March 2003 detailed the subordinate legislation in the Extradition Bill as brought from the House of Commons. The Committee reported on the Bill in its Eighteenth Report of 2002-03 (HL Paper 102).

Clauses 1, 2, 70, 72, 74, 75, 85, and 87- Powers to designate

2.  The Bill as originally drafted provided that the designations made under these clauses should be made by way of Order in Council. Amendments tabled on 15 October 2003 seek to change these provisions to provide that these designations should be made by order made by the Secretary of State.

3.  The reason for this change is that the legislation has taken longer than originally anticipated to complete its passage through Parliament. The United Kingdom has an international obligation to have implemented the Framework Decision on the European Arrest Warrant by 1 January 2004. Given the very short time available to implement the necessary delegated legislation, and in particular the early sitting of the Privy Council in December, it was felt that it would be more practical to designate by way of orders made by the Secretary of State. Consideration was given to the precedents of the earlier extradition legislation and it was decided that such a change was appropriate. As discussed at paragraphs 13 and 14 below, these orders will all be subject to the affirmative resolution procedure.

4.  Delegated legislation in the Bill relating to the British Overseas Territories and the Crown Dependencies, at clauses 179, 180 and 218 will still be made by way of Order in Council.

After Clause 196

5.  A Government amendment seeks to insert a new clause allowing the Secretary of State to designate territories as category 2 territories where those territories are parties to certain international conventions. This provision is necessary to comply with the United Kingdom's international obligations under those conventions and will have the same effect as section 22 of the 1989 Extradition Act. It has been decided to mirror this provision in the existing legislation by use of secondary legislation for reasons of clarity and flexibility. It is hoped that it will be possible to provide a complete list of the relevant territories and the offences covered in the relevant Statutory Instrument. At present it is necessary to consult the original treaty and trace the history of signature and ratification to find out whether extradition relations exist in a particular set of circumstances. It is hoped that in future it will be possible to consult a single Statutory Instrument, which will, it is believed, be welcomed by all practitioners.

6.  As new countries ratify each treaty our legislation needs to be updated. This needs to be done very regularly which is another good reason for providing that this is done in secondary legislation.

7.  An order made under this clause will be subject to the negative resolution procedure. It is felt that this is appropriate given that this order simply gives effect to existing international obligations. It will also require regular updating for reasons explained above and it is felt that it would take up unnecessary Parliamentary time if each new amendment were subject to the affirmative procedure.

After Clause 211

8.  A Government amendment seek to insert a new clause which places, in a schedule to the Bill, the categories of offences contained in Article 2.2 of the Framework Decision on the European Arrest Warrant. This is the list of the categories of offences for which the dual criminality requirement will no longer automatically apply in the case of category 1 territories.

9.  It has been decided to put this list of categories of offences on the face of the Bill following debate in committee in both Houses. Once the list is included in the legislation there must be a means of amending it to respond to change made at European level. This new clause provides for amendment by way of order. An order made under this provision would be subject to the affirmative resolution procedure, which it is felt is the appropriate level of Parliamentary scrutiny given the importance of this list for category 1 territories.

Clause 215

10.  A Government amendment seeks to amend clause 215 to provide a new order making power to the Secretary of State. Orders may be made under this provision to make any supplementary, incidental or consequential provisions, or any transitory, transitional or saving provision which are necessary or expedient for the purpose of, in consequence of, or for giving full effect to any provision of the Act.

11.  This clause is necessary to provide for repeal and amendment to other pieces of legislation currently before Parliament. It is not known whether all these Bills, including the Courts Bill and the Criminal Justice Bill, will receive Royal Assent. If they do all receive Royal Assent it is not known which will do so first. At least three other Bills before Parliament make reference to the 1989 Extradition Act. That Act will be repealed by the new extradition legislation and it is therefore necessary to provide for amendments to those other pieces of legislation to allow for references to the old legislation to be replaced by references to the new extradition legislation where necessary. An order made under this provision will be subject to the negative resolution procedure which is, it is submitted, appropriate given the nature of the power.

12.  There are virtually identical clauses in the Criminal Justice Bill (at clause 302) and the Courts Bill (at clause 108).

Clause 219

13.  A Government amendment seeks to change the parliamentary procedure relating to a number of orders to be made under the Bill. It provides that orders made under clauses 1(1), 70(1), 72(4), 74(5), 75(10)(b), 85(7), 87(7), 144(10), 175(4) and the new clause discussed at paragraphs 7 and 8 above should all be subject to the affirmative resolution procedure. These orders were originally subject to the negative procedure save for those made under clauses 144(10) and 175(4).

14.  The Delegated Powers and Regulatory Reform Committee recommended in its Eighteenth Report of the 2002 - 03 Session that seven Orders (under clauses 1, 68, 70(4), 72(5), 73(9), 83(6) and 85(6)) should be made subject to the affirmative procedure. Those seven clauses are now numbered 1, 70, 72(4), 74(5), 75(10)(b), 85(7) and 87(7). The recommendations of the Committee, as set out in paragraphs 9, 12 and 14 of its Eighteenth Report, are therefore being implemented in putting forward these amendments. It is hoped that the Committee will therefore welcome these amendments.

Clause 220

15.  In its Eighteenth Report, the Committee suggested that the Government be invited to provide an explanation for the need for what was then clause 210(4) which allowed for orders to apply to particular territories with specified modifications. The relevant provision is now contained in clause 220 but a Government amendment seeks - as a consequence of the changes described in paragraphs 2-4 above - to move it to clause 219.

16.  An explanation for the need for the provision was provided on behalf of the Government by Lord Filkin in Grand Committee on 10 September 2003 (GC 46-48).

17 October 2003

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