Select Committee on Delegated Powers and Regulatory Reform Eighteenth Report



1.  This bill makes new provision for extradition to and from the United Kingdom and British overseas territories. It replaces, in particular, the Extradition Act 1989 and the Backing of Warrants (Republic of Ireland) Act 1965. The background to the bill is set out in paragraphs 6 to 11 of the Explanatory Notes published with the bill.

2.  The essential feature of the bill is that the UK's extradition partners will fall into one of two categories (as designated by Order in Council). The arrangements for each of the two categories differ significantly. Territories designated as Category 1 territories will be subject to "fast-track" arrangements under Part 1 of the bill and those designated as Category 2 territories will be subject to standard arrangements set out in Part 2 of the bill.


3.  There are delegated powers at clauses 1, 2(9), 60(8), 68, 70(4), 72(5), 73(10), 83(6), 85(6), 100(5), 132(8), 142(10), 154, 170(2), 172(4), 174, 176, 178, 180(1) and (2), 194 (new section 24A of the Criminal Procedure (Scotland) Act 1995), 196(6), 197, 204, 207 and 208. The powers are identified in the memorandum to the Committee from the Home Office, though there is no mention there of the power conferred by section 196(6) (new section 23 (5ZA) of the Children and Young Persons Act 1969). The memorandum is printed at Annex 1 to this Report.

4.  With the exception of clauses 142(10) and 172(4) (affirmative) and clauses 207 and 208 (no Parliamentary procedure), exercise of the powers under the bill is subject to negative procedure.

5.  Although in most instances we take the view that the delegations are appropriate and subject to an appropriate level of Parliamentary scrutiny, a number of delegated powers (principally clauses 1 and 68 (the most significant powers in the bill) and clauses 70(4), 72(5), 83(6) and 85(6) (together)) raise issues to which the Committee wishes to draw the attention of the House.

Clauses 1 and 68

6.  Orders in Council under clause 1 (subject to negative procedure) designate Category 1 territories. The arrangements for extradition to these territories are set out in Part 1 of the bill. Significant features include the following:

if the relevant offence is listed in the European Framework list and attracts a maximum penalty of 12 months or more, the "dual criminality" rule does not apply, so that extradition is possible even if the conduct would not amount to an offence in the UK;

there is no requirement for an executive decision by the Secretary of State before a person can be extradited.

Orders in Council under clause 68 (subject to negative procedure) designate Category 2 territories. The arrangements for extradition to those territories are set out in Part 2 of the bill. Part 2 both applies a "dual criminality" rule (clause 137 and 138) and contains provision for a Secretary of State's decision.

7.  The Government says (paragraph 2 of the memorandum to the Committee) that Part 1 will apply to the countries which will be operating the European Arrest Warrant, possibly with Norway and Iceland included. But though different considerations can apply according to whether or not conduct falls within the European Framework list (clauses 63 and 64), the power to designate territories as Category 1 territories is not limited to designation of states that will operate the European Arrest Warrant.

8.  Other countries with which the UK has general extradition arrangements are intended to be designated as Category 2 territories; countries with whom there are no formal arrangements may also be designated as Category 2 territories on an ad hoc basis (paragraph 11 of the memorandum).

9.  The Committee recommends that Orders in Council under clauses 1 and 68 should in all cases be subject to the affirmative procedure. The reasons for this recommendation are that:

designation of a territory in one or other category is central to the operation of the bill;

designation has important practical consequences, affecting personal liberty, for those who may be extradited to or from the territory concerned;

the bill imposes no limit (other than by clause 1(3)) on which territories may be designated; and the adequacy of the safeguards in those territories is a matter which requires debate and specific Parliamentary approval in every case, even in the case of EU member states.

10.  The Committee is aware that orders under section 4 of the Extradition Act 1989 are subject either to laying before Parliament only or to the negative procedure, according to their content. But the present bill makes new provision for extradition which includes significantly different arrangements for different types of territory and, as a result, it has attracted a high level of interest.[2] The Committee does not, therefore, consider the precedent of the 1989 Act as strictly relevant in the context of the new arrangements.

Clauses 70(4), 72(5), 83(6) and 85(6)

11.  Clauses 70(4), 72(5), 83(6) and 85(6) enable an Order in Council, subject to negative procedure, to dispense with evidential requirements. In the case of arrest warrants and provisional arrest warrants (clauses 70 and 72) the effect of the Order in Council is that certain "information", not evidence, is needed before a warrant may be issued; and in the case of the court hearing (clauses 83 and 85) the need to consider evidence of a case to answer is removed. The need for these provisions is explained at paragraph 14 of the Home Office's memorandum; they enable, in particular, the UK's obligations under the European Convention on Extradition (ECE) to be met.

12.  Under section 4 of the Extradition Act 1989 Orders in Council specifying a foreign state for the purposes of that Act are subject to negative procedure where they permit extradition without the requirement for sufficient evidence to make out a case to answer. It is such an Order which currently gives effect to the ECE arrangements. The Committee acknowledges the case for suggesting that Orders specifying the states now operating the ECE arrangements and included in the current Order should be subject to negative procedure only. But the Committee considers that Orders under clauses 70(4), 72(5), 83(6) and 85(6) should be subject to affirmative procedure in view of the importance of the procedural safeguards which may be removed by the Order in relation to any designated territory, whether or not it is one with which the UK has general extradition arrangements.

Clause 210(4)

13.  Clause 210(4) provides that Orders in Council under clauses 1 and 68 may provide that the bill applies to particular territories with modifications. At various places in the bill where modifications are envisaged to take account of particular extradition arrangements, specific provision is made, e.g. clauses 73(10) and the provisions mentioned in paragraphs 11 and 12 above. No explanation of the need for this power is given either in the Explanatory Notes or the Home Office's memorandum. We suggest that the House may wish to invite the Government to provide an explanation.

Clause 73(9)

14.  Clause 73(9) provides for the discharge of a person arrested under a provisional warrant if the extradition request and certificate (referred to in clause 69(9)) are not received by the judge within 40 days from the date of arrest. The period can be extended by an Order in Council subject to negative procedure. We recognise that this is a narrower issue than those considered in paragraphs 6 to 12 above but the effect of an extension of the period on the individuals concerned could be significant. The Committee therefore considers that the affirmative procedure is the appropriate level of Parliamentary scrutiny in this case.


15.  We draw to the attention of the House the recommendations in paragraphs 9, 12 and 14 above and the suggestion for further explanation made in paragraph 13. There are no further matters in relation to the delegated powers in this bill on which we wish to report to the House.

2   We note, for example, the Sixth Report (HL Paper 82, Session 2002-03) of the Constitution Committee of the House of Lords in which reference is made to the parliamentary procedure governing the designation of countries as Category 1 or 2 territories. Back

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