Session 2001-02, dated 5 December 2002
COMMITTEE REPORTS ON EXTRADITION BILL
The Home Affairs Committee has published its Report on the Extradition Bill (First Report, Session 2002-03, HC 138) - in advance of the Bill's second reading debate in the House of Commons on 9 December.
The Bill proposes fundamental changes to the current system of extradition to and from the UK. In particular, it makes provision in UK domestic law for the introduction of a European Arrest Warrant by implementing the EU framework decision of June 2002. The Bill creates two categories of countries: category 1 territories which will qualify for "fast-track" extradition arrangements, based on "taking on trust" those countries' judicial and administrative systems; and category 2 territories which will be subject to a streamlined version of the existing extradition procedures. The Government intends that all EU member states will be in category 1.
The Committee express concern about some important aspects of the decision to adopt the European Arrest Warrant. In particular, they are concerned about the erosion of the safeguard of "dual criminality" (whereby the offence for which extradition is sought must also constitute an offence under UK law) and the ill-defined nature of the 32 categories of offence which will be exempt from the dual criminality requirement. They note in particular the fact that no debate on this issue was held on the floor of the House of Commons. They acknowledge that the UK is now committed to the adoption of the European Arrest Warrant, but recommend that the Home Secretary give consideration to a proposal aimed at providing some safeguard against abuses of this new procedure. This is that in each case, when the judge is of opinion that the alleged offence is not a crime in the UK, a separate decision as to whether to extradite should be taken by the Home Secretary.
The Committee then examines the Government's proposals in detail. They welcome some of the changes made by the Government following earlier consultation. However, they have serious concerns about some provisions in the Bill. In particular:
1. The Committee rejects the proposal that the Government should be able to add non-EU countries to category 1 (thus enabling them to benefit from fast-track procedures). They are further concerned about the Government's proposal that this should be done at its own discretion and without appropriate parliamentary scrutiny.
2. The Committee recommends that countries which retain the death penalty should be ineligible to be added to category 1.
3. The Committee expresses dismay at what it calls the 'extraordinary' decision by the Home Office to go further than is required by the EU (by removing the dual criminality protection in relation to offences carrying a maximum penalty of at least 12 months, instead of the three years required by the EU).
4. The Committee recommends that the list of 32 categories of offence be imported directly into the Bill, to prevent extra categories being added without parliamentary approval.
5. The Committee opposes the Government's intention to permit other EU member states to charge a person extradited from the UK with an offence other than that for which the person was extradited.
6. The Committee expresses concerns about proposals to relax the requirement that extradition requests from non-European countries must demonstrate that there is a prima facie case to answer.
7. The Committee draws attention to several other provisions which are likely to erode the rights of UK citizens and circumvent parliamentary scrutiny, and recommend that those provisions be withdrawn or amended.
Chairman, Chris Mullin MP said:
"We are not happy with the Bill as it stands and we want to see some significant changes."
Summary of Conclusions and Recommendations
Part 1 of the Bill
1. We recommend that, in order to provide some safeguard against clear abuses of the new procedure introduced under the framework decision, the Home Secretary give consideration to the following proposal: that in each case the district judge should look at the terms of the offence specified in the European Arrest Warrant and make a statement as to whether dual criminality applies. In cases where the alleged offence is not a crime in the UK a separate decision about whether to extradite should then be made by the Home Secretary, who is responsible to Parliament (paragraph 31).
2. We recommend that Clause 1(1) be amended to specify that only those countries that are signatories to the framework decision may be designated territories for the purposes of Part 1 of the Bill, and that Clause 68(1) be amended to specify that only those countries with which the UK has general extradition arrangements may be designated territories for the purposes of Part 2 of the Bill (paragraph 41).
3. If the previous recommendation is not accepted, then Clause 205 should be amended to provide that Orders in Council made under Clauses 1(1) and 68(1) may not be made unless a draft of the order has been laid before Parliament and approved by a resolution of each House (paragraph 43).
4. We do not accept that Parliament should be constrained by the precedent of the Extradition Act 1989 from requiring an appropriate degree of parliamentary scrutiny for delegated legislation that may have the effect of removing significant safeguards for individuals subject to extradition requests (paragraph 43).
5. In relation to the dual criminality requirement, we can see no justification for eroding the basic level of protection provided by the framework decision, by removing the protection in relation to offences carrying a maximum penalty of 12 months or more where the framework decision requires the UK to do so only in relation to offences with a maximum penalty of at least three years, and we are dismayed that the Home Office is seeking to do so (paragraph 51).
6. We recommend that the three-year limit specified in the framework decision should be retained in UK domestic law (paragraph 51).
7. We consider it highly undesirable that Parliament should have no say in regard to future changes to the 32 categories of offence listed in the framework decision. We therefore recommend that the list of offences be imported directly into the Bill. Clause 65(3) should be amended to refer, not as at present to "the list of conduct set out in article 2.2 of the European framework decision", but rather to "the list of conduct set out in a specified schedule to the Bill" (paragraph 55).
8. We further recommend that the Bill should delegate a power to amend this list only in so far as is necessary to reflect any extensions or amendments made to article 2.2 of the framework decision by the EU Justice and Home Affairs Council (paragraph 56).
9. The Bill should also provide that any statutory instrument made under this delegated power should be subject to the affirmative resolution procedure (paragraph 56).
10. We agree with the European Scrutiny Committee that the European Arrest Warrant should be able to be issued only by a judicial authority exercising recognisably judicial functions in an independent manner. We consider that this requirement should apply to all Part 1 warrants. We therefore recommend that Clause 2(5) be amended to provide that the UK judicial authority may not issue a Clause 2 certificate unless it believes that the Part 1 warrant was issued by such a judicial authority (paragraph 63).
11. We recommend that Part 1 of the Bill be amended to specify the information that must be provided on the face of a Part 1 warrant, including a European Arrest Warrant (paragraph 68).
12. We strongly urge the Government to re-consider its intention to give notification, under article 27.1 of the framework decision, that it may be presumed to have consented to another EU member state taking proceedings against a suspect, where the other member state has also given such notification under article 27.1. We recommend that Clause 53 be deleted from the Bill (paragraph 75).
Part 2 of the Bill
13. We consider that the power delegated by Clause 83(6) is too broadly defined. As currently drafted, Clause 83(6) would allow any territory whatsoever to be designated as exempt from the prima facie case requirement (paragraph 82).
14. We recommend that the power delegated by clause 83(6) should be specifically limited to a power to make Orders in Council to exempt from the prima facie case requirement only:
those European states that are signatories to the European Convention on Extradition but that are not EU members
any other state with which the UK has a bilateral agreement which requires that state, in making an extradition request, to meet evidential requirements equivalent to those set out in the Convention (paragraph 82).
We recommend that Clause 83(3) be deleted from the Bill, so that a summary of a statement will not be admissible evidence for the purposes of Clause 83(2) (paragraph 86).
We are concerned that Clause 134(3) appears to undermine the rigorous evidential standards that we consider should be required to establish the existence of a prima facie case. We draw Clause 134 to the attention of the House (paragraph 87).
Parts 1 and 2 of the Bill
19. We consider that there is no justification for extending Part 1 of the Bill to include countries that maintain the death penalty (paragraph 92).
20. We recommend that Clause 1(1) be amended to specify that any country which provides for the death penalty as a form of punishment is prohibited from being designated a territory for the purposes of Part 1 of the Bill. If this is done, then Clause 15 can be deleted from the Bill as otiose (paragraph 92).
21. We recommend that clause 15 be amended to require that, if the judge receives a written assurance that a death sentence will not be imposed or carried out, then the judge must send the assurance to the Secretary of State for him or her to determine whether the assurance can be considered adequate (paragraph 96).
22. We endorse the comments of the Joint Committee on Human Rights on the adequacy of written assurances that the death sentence will either not be imposed or, if imposed, will not be carried out. We urge the Government to give an indication of how it proposes that the adequacy of a written assurance that a death sentence will not be imposed or carried out should be assessed (paragraph 99).
23. We consider that Clauses 3(3) and 5(2) should explicitly limit the scope of the Secretary of State's delegated power by defining who may constitute an "appropriate person". Clearly, officers of HM Customs and Excise could be so specified; the House should consider whether there are any other categories of officer whom it may be appropriate to specify (paragraph 104).
24. We recommend that Clauses 4(2) and 71(2) be amended. We consider that, if it is not possible for the arresting officer to be in possession of the warrant at the time of the arrest, then the officer (or some other appropriate officer) should be required to show the warrant to the arrested person as soon as practicable after the arrest. We can see no justification for placing the onus on the arrested person to ask to see the warrant, rather than on the appropriate law enforcement officials (paragraph 106).
25. We recommend that the Bill be amended to require the judge before whom the arrested person is initially brought to inform the person of the European Arrest Warrant and of its contents (paragraph 109).
26. We consider that the requirements of article 11.1 of the framework decision, that an arrested person must be informed of the possibility of consenting to surrender to the issuing judicial authority, would appear to be satisfied if the judge is required to give only that information specified in paragraphs (a) and (c) of Clause 8(3) and paragraphs (a) and (c) of Clause 71(7). We recommend that the Bill is amended accordingly (paragraph 112).
27. We recommend that, where an arrested person consents to be extradited, the judge or, in some Part 2 cases, the Secretary of State, should be required to satisfy him or herself that:
the arrested person has been offered access to free legal advice before giving consent to being extradited
access to such legal advice was made available to the person, and
the person has understood the implications of giving consent to extradition (paragraph 114).
The Bill as a whole
28. We recommend that Clause 202 should be deleted and that the repeal of the 1989 and 1965 Acts should be provided for on the face of the Bill itself. We do not consider that such a provision repealing the 1989 and 1965 Acts would be incompatible with the need for these Acts to continue to apply to any extradition requests made prior to the Bill coming into force. We consider that appropriate provisions can be drafted to allow for this eventuality without needing to delegate to the Government the power to repeal the Acts (paragraph 116).