Extradition Act 2003 (Codes of Practice and Transit Code of Practice) Order 2021

Motion to Approve

Moved by

That the draft Order laid before the House on 22 February be approved.

My Lords, the order will update our existing codes of practice for police powers under the Extradition Act 2003 and introduce a new code of practice for non-UK extradition transit. First, I will deal with the codes covering police powers. These revised codes of practice govern the way in which the police use their powers under Part 4 of the Extradition Act. They relate to search and seizure, applications for warrants and production orders, entry to premises and the treatment of detained persons after arrest in extradition cases.

The updated codes take account of changes which have been made to the relevant Police and Criminal Evidence Act 1984 codes of practice, commonly known as PACE codes, on which the extradition codes of practice are based. They also incorporate necessary changes brought about by the new power of arrest granted in the Extradition (Provisional Arrest) Act 2020. The codes of practice currently in use were published in September 2011. These changes therefore bring the codes fully up to date, providing operational clarity for policing. Amendments have also been made to set out more clearly the procedural rights for individuals on arrest and throughout the subsequent extradition proceedings.

The code of practice for non-UK extradition transit will provide the basis for transit through the UK in extradition cases. This will enable the UK to fulfil certain treaty obligations, including those established as part of the new surrender arrangements with the European Union. Extradition transit occurs when a country allows an individual who is being extradited to pass through its territory, while remaining in police custody, where a direct route between the countries concerned with the extradition request is not possible.

As the House will know, the Anti-social Behaviour, Crime and Policing Act 2014 made amendments to the Extradition Act 2003, setting out the legal basis to enable people being extradited from one third country to another to transit through the United Kingdom. Those provisions cannot be commenced without this code of practice coming into operation to underpin them. The code therefore sets out the appropriate powers and guidance for UK police to facilitate this operational activity as necessary.

Commencing these transit provisions is important for the UK so that we can comply with our treaty obligations, as I have outlined, and to assist our international extradition partners in bringing fugitives to justice. They are particularly important at this time, when travel and modes of transport are disrupted and restricted by the current pandemic.

The House will want to know that any decision to grant a request for transit is discretionary. It would be considered only if the requesting country and destination country were ones that we would regularly extradite to and where we have international obligations that require us to do so. A risk assessment in consultation with law enforcement partners and Border Force is also required before any request can be granted.

My Lords, I am conscious that this is a complicated issue and that we in Parliament have to debate under the draft affirmative procedure and give our consent. I am not experienced in this area, but I looked closely at the Extradition Act 2003 code of practice. I studied some of the 63 pages. The code of practice is in principle 18 years old, so it is not surprising that some changes are being made. I have a few questions that arose from some of the reading I have done, first on search warrants, where an entry is made into a property or premises without a warrant for the purpose of arrest or a search of the premises. Has there been any change in the procedure over this period of 18 years? What happens when things go wrong, or perhaps not to plan? Does the aggrieved party have a right to an appeal or is there a review mechanism?

I notice that paragraph 5 of the Explanatory Memorandum, entitled “European Convention on Human Rights”, states that, in the view of the Commons Minister, the provisions

“are compatible with the Convention rights.”

I just wondered whether anybody has ever challenged that.

I note that paragraph 7.2 talks about

“PACE Codes and how arrests are to be carried out in relation to these new arrest powers. These codes do not apply to Scotland.”

Has that changed? I presume that originally they applied to Scotland; perhaps I am wrong. If they applied but do not now, is that because of something that was done at the time of devolution, or was there some other change in relation to Scotland?

In paragraph 7.4, towards the end, there is a sentence starting:

“Some modifications were made following consultation and further modifications were recently made via direct consultation with operational partners”.

My Lords, these are straightforward regulations and on that level I support them. It is clearly important that our police should have clarity on these issues and that the code provides a necessary update. When people are being extradited, it is clearly essential that they can access legal support and the code enables that, among other things.

However, there are broader issues with extradition. I fear that our police are caught in a situation that is still deeply unfair for British citizens. I refer, of course, to the imbalance between the UK and the US, in the 2003 extradition treaty. On 12 February last year, our Prime Minister said:

“I do think that elements of that relationships are unbalanced, and it is certainly worth looking at”.—[Official Report, Commons, 12/2/20; col. 846.]

But, more than a year later, it has not been looked at. Our police are being asked to help in a process that can see UK citizens extradited to the US for crimes committed entirely in the UK and involving UK citizens and businesses.

When the 2003 Act was first brought in, it was envisaged that it would deal with paedophiles, terrorists and murderers. In fact, the subject of extradition to the US has been almost entirely white-collar crime. It appears that the US has the ability to reach out around the world on commercial crime, so our police will necessarily be involved in dealing with people not only from the UK who are subject to extradition, but in transit from other countries to the US, where they, like our citizens, will face a legal process that is weighted against them. The US legal system is very different from ours and, although it is clear from these documents that we will not extradite or aid the extradition of those who could be subject to the death penalty, we will be involved in extraditing those who could be subject to extraordinarily long prison sentences in conditions which, many would argue, are not conducive to complying with human rights legislation.

My Lords, I agree very strongly with the noble Baroness, Lady Wheatcroft, because there is a huge imbalance between us and the US, and it is time to do something about it. The Prime Minister said he would, but he says a lot of things and you cannot rely on any of them.

In looking through this code of practice, it is worrying that the police not only have been dragged into immigration enforcement in this country but are now being used to ferry extradited prisoners in transit between two other countries. I would very much like to know, if the Minister can answer me, how the police were consulted, when and in what form. This is important, because the police have been dragged into this very sensitive area.

One other specific area that is woefully neglected in this code of practice is the guidance for refugees and people claiming asylum. The issue gets one paragraph of guidance at paragraph 1.10 and a requirement to keep records at paragraph 4.20. It says:

“If the person in transit claims that they are a refugee or have applied or intend to apply for asylum, a constable or custody officer must ensure that the relevant immigration authorities are informed, as soon as practicable, of the claim. The immigration authority may then inform the constable or custody officer of any action that he or she may take.”

This is worrying for many reasons, not least because the immigration authorities are constantly making wrong and unlawful decisions about refugees and people seeking asylum. There is no provision here for these people to seek independent legal advice and to be supported to exercise their important rights.

Paragraph 4.19 allows legal advice to be arranged via the citizen’s embassy, but that may be of little use or actively harmful if the person is seeking asylum against that very country.

My Lords, I thank the Minister for introducing this order. From what I understand, an extradition case in 2002 called into question whether the Police and Criminal Evidence Act 1984, which usually covers the matters referred to in Part 4 of the Extradition Act 2003, applies to cases where the alleged offence was committed abroad. The 2003 Act sets down police powers on extradition cases but, where the A are silent on any matter, police officers need to refer to the PACE codes of practice.

As the Minister said, Part 4 of the 2003 Act deals with police powers, including search and seizur warrants, production orders, entry and search in order to arrest and after arrest, search of the person arrested including intimate searches, the taking of fingerprints and DNA samples, and photographing of the person and of any identifying marks or scars in order to establish the person’s identity—in other words, the powers contained in PACE. The Secretary of State must issue codes of practice in connection with the exercise of those powers.

The instrument brings into operation updated codes of practice in England, Wales and Northern Ireland under the 2003 Act and a new code of practice for non-UK extradition transit throughout the UK, where the person being extradited is transiting through the UK but is not being extradited to or from the UK. The latter was added to the 2003 Act by Section 168 of the Anti-Social Behaviour, Crime and Policing Act 2014.

The existing codes of practice under the 2003 Act date from 2011 and, as the Minister explained, there have been changes to PACE and a new power of arrest brought in by the Extradition (Provisional Arrest) Act 2020, since 2011. The changes to both codes of practice have been consulted on, but further changes have been made, including amendments relating to the new power of provisional arrest introduced by the 2020 Act.

The Explanatory Memorandum states that the instrument does not relate to withdrawal from the European Union. This takes us back to when we debated the Extradition (Provisional Arrest) Act 2020, when the House noted that the legislation had been brought forward just as the UK was losing access to the European arrest warrant. Despite the Government’s denials that the two were linked, they then added all EU member states to the list of category 2 territories.

The Government are required to issue codes of practice in respect of the use of police powers in extradition cases under the Extradition Act 2003. These codes of practice update existing police powers codes published in 2011. The update is needed to reflect the use of police powers in relation to updated Police and Criminal Evidence Act codes and the new power of arrest under the Extradition (Provisional Arrest) Act 2020. The police powers codes do not apply to Scotland.

The transit code of practice, which applies across the United Kingdom, sets out the powers for police during non-UK extradition transit under the 2003 Act: that is, allowing a person who is being extradited between two countries—neither of which are the UK—for the purpose of standing trial or serving a sentence to pass through our territory in custody. A constable can be authorised to escort the person from one form of transportation to another, take the person into custody to facilitate the transit, and to search for any item which the person might use to cause physical injury.

The Explanatory Memorandum says that

“Revised 2003 Act Police Powers Codes were consulted on in 2015”,

and again last year, and that

“The draft Transit Code of Practice was published for consultation in 2015. Some modifications were made following consultation and further modifications were recently made”.

Is the draft transit code of practice just being brought into operation, or has it been in operation since the consultation in 2015? If it is not already in operation, which appears the case despite consultation in 2015, why the delay since 2015?

On the Extradition Act 2003 codes of practice, the letter from the Minister of 22 February 2021 states that, in 2015, draft changes in respect of PACE codes were consulted on and agreed. However, revised codes were not subsequently laid. Why was that?

The Explanatory Memorandum states:

“The approach to monitoring of this legislation is for the Home Office to closely monitor the impact of this Order.”

Could the Government explain exactly what that means in practice in relation to both the Extradition Act 2003 codes of practice and the Code of Practice for Non-UK Extradition Transit?

On the Code of Practice for Non-UK Extradition Transit, who has the power to give authority to a constable to take the person into custody to facilitate the transit, and how is the use of that authority under the transit code of practice monitored, and by whom? The letter of 22 February states:

My Lords, I thank everyone who has spoken in this debate. I apologise to the noble Lord, Lord Naseby, because I did not hear part of his speech. However, he asked about changes in extradition practices. The principles of extradition remain the same, although clearly there are countries that we may add or subtract.

The noble Lord, Lord Rosser, asked how many countries we extradite to. I do not have the total in my head, but he can see that in the list of Part 1 and Part 2 countries. My noble friend also asked whether our practices were compatible with human rights. Yes, that is a clear principle of our extradition approach.

My noble friend Lady Wheatcroft asked about extradition to the US. The US-UK treaty is out of the scope of this debate, but clearly we would, if appropriate, seek death penalty assurances from the US. It would not depend on the issue; we would seek those assurances. In terms of transit, we will not transfer either to or from a country with human rights abuses.

The noble Baroness, Lady Jones of Moulsecoomb, asked about the police. We have extensively consulted them and they are content. As the noble Lord, Lord Paddick, said, silence on any matter means that they refer to the PACE codes. The noble Baroness also asked about asylum seekers. This extradition process is a very clear court process by which we would return or receive someone to face sentence either here or in another country. Anyone who wishes to seek asylum obviously can do so when they arrive in this country. However, this order is not predominantly about asylum seekers but about a court process.

The noble Lord, Lord Paddick, asked about various processes. There are two main changes. The updated extradition codes of practice take account of changes made to the relevant PACE codes on which the extradition codes of practice are based. While police practice is always to refer to them as recent PACE codes, as the noble Lord pointed out, the draft codes of practice have been updated to reflect the most recent amendments to the PACE codes. As he said, most amendments are in respect of PACE code C, which deals with arrest, detention and treatment of persons detained under the 2003 Act. There are also some amendments in respect of PACE code D, which applies to the identification of persons detained under the 2003 Act.