EXTRADITION BILL - GOVERNMENT AMENDMENTS
FOR REPORT STAGE
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
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
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
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
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.
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).
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
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