Select Committee on Home Affairs First Report


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extradition, the Extradition Act 1989 and the Backing of Warrants (Republic of Ireland) Act 1965, may be amended or repealed by way of Order in Council. The Bill provides no indication of what provisions of these Acts the Government intends should be amended or repealed.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 However, these Acts cannot be repealed until all cases which are in the system at such time as the Bill comes into force have been finally disposed of.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.[42] 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.[43]

42   HC (2001-02) 1140, paras 3 and 22. Back

43   See for example section 12 of the Regulatory Reform Act 2001. The Regulatory Reform Act superseded the deregulation provisions of the Deregulation and Contracting Out Act 1994. Section 12 of the 2001 Act repeals the deregulation provisions but provides that the repeal of the 1994 Act does not affect that Act's application to any deregulation proposals laid prior to the 2001 Act coming into force. Back

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