My Lords, just what we will lose by not being part of all these EU measures emerges less from the fairly dry Explanatory Memorandum to the measure and more from the Government’s document of last November, Assessment of the Security Partnership. The introduction in paragraph 2 of the Explanatory Memorandum cites a lot of the issues, but the document of last November talked about how,
“the UK would rely on the 1957 Council of Europe Convention on Extradition. Without a surrender agreement as proposed in the Political Declaration”—
which itself begs the question of what such a surrender agreement would consist of—
“requests would be subject to a longer and more complex process, and extraditions would be more difficult”.
Although I have not seen any examples recently, we saw that difficulty in the extradition of a convicted person from Georgia. I do not know whether the Minister has any updates on how long that process will take, but it clearly takes a lot longer to extradite under the 1957 convention. To make the case for the UK’s need to stay in the European arrest warrant, or something very similar, the document of last November also cited how,
“ten years elapsed between the request to extradite Rachid Ramda, an individual accused of terrorism in France, and his eventual surrender in 2005”.
We could be talking about such extraditions taking anywhere between several months and a decade.
Indeed, one commentary raised the issue that,
“Extraditions under the Convention are not automatic and the state of bilateral relations can influence decisions. It takes 18 months on average to extradite a suspect under the Convention”—
in contrast to a few weeks under the European arrest warrant. Clearly, even just looking at extradition, the consequences of not having something similar to the European arrest warrant are severe.
It struck an odd note with me that the commentary in paragraph 2.7 of the Explanatory Memorandum says that is necessary,
“to revoke the relevant retained EU law to ensure that the domestic statute book operates effectively following the UK’s withdrawal”.
As my noble friend Lady Hamwee said, we know from senior police officers, including the Metropolitan Police Commissioner, that if we are not in the European Union, it is impossible for our systems to operate as effectively in terms of security and law enforcement co-operation across Europe. That includes all scenarios, not just no deal, although it applies particularly to a no-deal exit. It is odd to say that we need to do this so that our statute book operates effectively. I understand what that means, technically, but it is not the same as saying that our law enforcement system would operate effectively. We need to measure the impact of this decision. We need to know its effect on our effectiveness in fighting crime and bringing people to justice, and on our court systems and police—indeed, on our civil servants. Unlike the European arrest warrant, if you fall back on the 1957 convention civil servants and Ministers are involved.
On extradition, the aim is that the UK will have the correct legal underpinning to operate the 1957 convention. I think that is referred to somewhere as the housekeeping between Part 1 and Part 2 of the Extradition Act. I think that was in paragraph 12.5. At the briefing meeting that the Minister kindly put on a week or so ago, I tried to ask whether we have any knowledge of what our partners would need to do in terms of similar housekeeping and whether they are prepared to do it. Even if they still have the 1957 convention on their statute books—which they may well have for non-EU Council of Europe countries—they might have to make some domestic legislative changes, similar to ours under the Extradition Act, to make that work.
Then there is the fact that it is much more difficult to extradite under the 1957 convention, which is precisely why the EAW was brought in. Some countries, such as Germany, have constitutional bars on the extradition of their own nationals, which the EAW solved. Does the Minister have any information on whether Germany is prepared to extradite its nationals to the UK in the scope of the 1957 convention? Some countries operate political exemptions, which were abolished by the European arrest warrant for a common list of crimes. That makes extradition more difficult.
Then you have the legal uncertainty under human rights law. I do not want to get totally into the subject of human rights and our worries about the Government’s
intentions in that respect, but they have said that they continue to keep in their sights what they call reform of human rights law. A state of legal uncertainty surrounds the continuity of human rights protection in this country—if the Human Rights Act were to be abolished, for instance, let alone if we withdrew from the European Convention on Human Rights. What impact will that have on the confidence of partners to extradite to us?
If one looks at the Norway and Iceland treaty with the EU—the aim of which is to have procedures similar to the European arrest warrant but with some differences—that took 13 years to negotiate and there have been problems amending the national laws of some EU countries and Iceland. As of last June, Ireland and Italy had still not ratified that treaty. It gives you an idea of the problems if you drop out of the European arrest warrant and rely on the 1957 convention. The Government are failing to give us any information about what they understand to be the willingness of partner countries to extradite to us.
I have a couple of other points. The Government say that we will retain some data protection rules under which data was originally received, such as SIS data. Are they sure that there is no contradiction between those rules and the Data Protection Act? The aim is to have no gap, but have the Government done a filter to check that there is not a contradiction in any case between the rules under which the data was received from EU partner countries and the Data Protection Act?
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I agree with and will supplement slightly what was said by my noble friend Lady Hamwee about the impact assessment and the Secondary Legislation Scrutiny Committee deploring the information on loss of capacity. We have an odd situation in the impact assessment; it expects the cost per extradition to rise compared to the EAW, but then says:
“Costs have not been monetised”.
Why are those costs not monetised? How can you assert that the costs are going to increase when you do not monetise those costs?
It has also been reported in the press that the National Crime Agency and the National Police Chiefs’ Council have between them received about £6 million for no-deal preparations. Why is that not in the impact assessment? How can that be reported in the press but not be in an impact assessment? What is that money for? Is there similar money for the courts and for other bits of the justice system, including the MoJ, to cope with the administration of extradition requests—both outgoing and incoming—under the convention? All this is presumably available somewhere, but strangely not in the impact assessment.
Finally, the great joy of the European arrest warrant is that government Ministers can say, “Nothing to do with us, guv. It is all down to the courts”. Once you have to fall back on the Council of Europe convention, just as with extradition to the United States, there is a potential for the politicisation of extradition. You can certainly put a political, if not a financial, cost on it, which Ministers might have to think about.