Designating states as category
1 or category 2 territories
33. Part 1 of the Bill deals with extradition from
the UK to category 1 territories. As to what territories will
fall within category 1, Clause 1(1) of the Bill provides only
that these territories may be designated by Order in Council.
The Bill does not lay down any principles or guidelines governing
the choice of territories to fall within category 1.
34. Clause 68(1) is the equivalent provision to Clause
1(1) for category 2 territories. As with Clause 1(1), Part 2 of
the Bill does not lay down any principles or guidelines governing
the choice of territories to fall within category 2.
35. Clause 205(1) provides that any Orders in Council
made under Clauses 1(1) or 68(1) will be subject to a negative
resolution procedure, whereby they may be annulled in pursuance
of a resolution of either House.
36. The introductory notes to the draft Bill state
that category 1 territories are intended to include all EU member
states and Gibraltar and that category 2 territories are intended
to include all countries with which the UK has extradition arrangements
and which do not fall into category 1. However, as we have noted,
the Bill contains no directions as to how the delegated power
to designate countries as category 1 or category 2 territories
may be exercised. Effectively, it enables any country to
be designated as a category 1 territory, and any country
to be designated as a category 2 territory. Consequently, there
is nothing to prevent territories other than EU member
states (such as, for example, the USA) being designated as category
1 territories.[22] This
is significant because the Bill would provide significantly fewer
protections in relation to category 1 territories than in relation
to category 2 territories.
37. The explanatory notes to the Bill suggest that
the Secretary of State does in fact envisage, at some stage, designating
non-EU states as category 1 territories. The notes state that
the fact that the designation of category 1 and 2 territories
will be carried out by Order in Council means that "it will
therefore be possible for a country to move from one category
to the other when appropriate, depending on the extradition procedures
that the United Kingdom negotiates with each extradition partner".[23]
38. We consider that the designation of countries
as category 1 or category 2 territories is absolutely fundamental
to the effect of the Bill. The central policy behind the Bill
is that countries with which the UK has extradition arrangements
should fall into one of two categories, and that suspects whom
a category 1 territory seeks to have extradited from the UK will
enjoy significantly fewer procedural protections than suspects
whom a category 2 territory seeks to have extradited. Clause 1(1)
potentially undermines this central policy behind the Bill by
delegating what is effectively a power to designate any country
whatsoever, including non-EU member states, as a category 1 territory.
Even if any Orders in Council made immediately following the Bill's
enactment were to designate only EU member states as category
1 territories, there would be nothing to prevent future Orders
in Council making entirely different designations.
39. One key protection that would not apply to many
suspects whom a category 1 territory seeks to have extradited
from the UK, but which would apply to suspects whom a category
2 territory seeks to have extradited, is the dual criminality
protection (see paragraph 21 above). Article 2.2 of the framework
decision removes this protection in relation to certain offences.
As the Bill is currently drafted, there is nothing to prevent
an Order in Council designating a country which is not
a signatory to the framework decision as a category 1 territory,
meaning that a country which is not bound by that decision could
still have the benefit of article 2.2 of the decision. A non-EU
member state could therefore request that the UK extradites a
suspect for an offence that does not constitute an offence in
the UK.
40. As currently drafted, Clauses 1(1) and 68(1)
enable the practical effect of the Bill to be decided by Order
in Council. Future Orders in Council may dramatically change what
Parliament understood to be the intention of the Bill at the time
of its enactment. This is undesirable: we believe that the particular
circumstances in which these delegated powers may be exercised
need to be precisely stated. This is vital if Parliament is to
know to what policy and principles it is being asked to agree.
In particular, we consider that only those countries that are
signatories to the framework decision should qualify to be designated
as category 1 territories.
41. We therefore 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.
42. If these recommendations are not accepted, we
consider that, at the very least, any Orders in Council made under
Clauses 1(1) or 68(1) should be subject to the affirmative resolution
procedure, whereby they may not be made unless a draft of the
Order has been laid before Parliament and approved by a resolution
of each House. The Home Office told us that it believes that the
negative resolution procedure is the appropriate one to use for
these Orders. It pointed to the precedent of section 5 of the
Extradition Act 1989, which provides that a list of Commonwealth
countries may be designated by Order in Council for the purposes
of section 1(2) of the 1989 Act. Section 1(2) provides that, if
a person who is in the UK is accused of committing an offence
in a country specified on the section 5 list, then that person
may be arrested and returned to that country.
43. We do not accept that Parliament should be
constrained by the precedent of the 1989 Act 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. If our recommendation
in paragraph 41 above 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.
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