Repealing or amending the present
law on extradition
115. Clause 202 provides that the two Acts of Parliament
currently governing extradition, the Extradition Act 1989 and
the Backing of Warrants (Republic of Ireland) Act 1965, may be
amended or repealed by way of Order in Council. The Bill provides
no indication of what provisions of these Acts the Government
intends should be amended or repealed. Clause 205 provides that
any Order in Council made under Clause 165 would be subject to
the negative resolution procedure, whereby it may be annulled
in pursuance of a resolution of either House.
116. The Home Office has told us that it considers
Clause 202 needs to be drafted in its present form because the
Government intends that the Bill will apply to all extradition
requests received after the Bill comes into force. Consequently,
it intends to repeal both the 1965 and the 1989 Acts in their
entirety. However, these Acts cannot be repealed until all cases
which are in the system at such time as the Bill comes into force
have been finally disposed of.
117. We agree with the concerns raised by the Joint
Committee on Human Rights and the Liberal Democrats about the
constitutional appropriateness of this clause.
We consider that it is inappropriate for Clause 202 of the Bill
to delegate the power to amend or repeal these Acts. It is an
important constitutional principle that primary legislation should
not be amended by way of secondary legislation (commonly known
as "Henry VIII" provisions). Clause 202 is particularly
objectionable because it would delegate a broad-ranging power
to make any repeals or amendments whatsoever to the Acts in question,
without providing any principles or guidelines about how those
repeals or amendments should be carried out. No limits are placed
on the kind of amendments that could be made to the 1989 and 1965
Acts; the Government would be virtually unfettered in its discretion
to amend or repeal them. This would fetter Parliament in carrying
out its proper function of determining important questions of
policy and principle and would create uncertainty as to the current
state of the law on extradition.
118. Consequently, 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. This would
enable Parliament to give an appropriate degree of scrutiny to
what is, after all, a proposal to repeal primary legislation.
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.