I thank all noble Lords who have taken part in the debate. The amendments before us relate to the delegated power to specify any additional territories to which this new power may be extended. As I have said, in the first instance, the powers afforded by the legislation would be granted only to the UK’s closest criminal justice co-operation partners, these being the Five Eyes powers and the EFTA states. These are the countries in whose criminal justice systems and use of Interpol systems we have a high level of confidence. The amendments address the power to add, vary or remove countries from the Bill and a minor consequential amendment to vary what is meant by making an extradition request in the approved way if there is a good justification for doing so in the future.
I shall start with Amendment 9 because the noble Baroness, Lady Hamwee, began with it and other noble Lords have expressed a great interest in it. It specifies that territories should be added one at a time. I am grateful to the noble and learned Lord, Lord Judge, for speaking to me about this and I did slightly warn him ahead of time that we are not going to agree with it. That is not to say that we would want to add territories in multiples, but it is common practice to allow for multiple territories to be specified together for similar legislation. Noble Lords will know that this is the process for adding territories in Part 1 and Part 2 of the Extradition Act 2003. I hope that the affirmative resolution procedure would give Parliament the opportunity to scrutinise the Government by voting either for or against a resolution and to express an opinion towards any country being added to the Bill. I expect that if the Government attempted to add a territory which Parliament did not agree with, it would act accordingly. However, I understand the substance of the point that the noble and learned Lord made.
The noble Lord, Lord Kennedy, referred to our debate the other day on the Norway/Iceland issue. The Norway/Iceland surrender agreement operates under Part 1 of the 2003 Extradition Act, so an agreement with the EU based on that precedent would keep EU member states in Part 1 of the Act, where the power of immediate arrest already exists. The Bill is only for specified Part 2 countries where currently there is no power of immediate arrest. I do not want to prejudge the outcome of the negotiations, but we may well return to this issue.
I shall reverse engineer, as it were, and go back to Amendment 6. It looks to determine how varying a reference to a territory will be distinct from the addition or removal of a reference. I assure noble Lords that the term “vary” aims to future-proof the legislation and to ensure that technical changes do not place a restriction on the use of the power. An example of such a technical change would be a situation where part of a territory seceded from a specified territory and the Government wished to maintain this power in relation to only the successor state. This is of course not a particularly likely scenario but one for which it is responsible to be prepared.
Amendment 7 proposes to remove the power to vary the meaning of making a request “in the approved way” under new Section 74C. In the current draft, a request is made “in the approved way” if it is
“made by an authority of the category 2 territory which the designated authority believes has the function of making such requests in that territory.”
The power in new Section 74B(7)(b) is included to enable similar provision to be made, where appropriate, to that in Section 70(5) and (6) of the 2003 Act. These subsections set out the variations to the meaning of “the approved way” for extradition requests made from British Overseas Territories and for the Hong Kong Special Administrative Region. I will set out some examples of how that power might be used.
Where a newly specified territory had a number of different authorities which had the function of making requests, the power in new Section 74B(7)(b) would enable one or more authority to be singled out as the
appropriate authority for making valid requests, should that be necessary. A further example might be if the Government sought to specify one or several of the British Overseas Territories. In such a scenario, the Government may wish to provide for requests to be made by the governor-general of the territory rather than the authorities within it. In such circumstances, the regulations might provide for requests to be made in the approved way by or on behalf of a person administering the territory.
Regarding preparing and publishing a report on adding a new territory, as well as any intention to add further territories or negotiations with prospective territories, to the scope of this legislation as specified in Amendment 8, the Government are committed to ensuring that Parliament has the ability to question and decide on whether any new territory could come within scope. Therefore, it is mandated in the Bill that any Government wishing to add a new territory to the scope of this legislation should do so through the affirmative resolution procedure. Any statutory instrument laid before Parliament will of course be accompanied by an Explanatory Memorandum, which will set out the legislative context and policy reasons for that instrument.
This procedure will give Parliament opportunity for scrutiny and will allow the House to reject the addition of any new territory to the Bill. Any Minister looking to add a new territory to the Bill would be expected to give Parliament good reason for doing so, therefore negating the need for this amendment. Having said that, I have sympathy with the spirit of the amendment and have asked officials to look into how we can give the noble Lord some reassurance on this. I will continue to liaise with noble Lords ahead of Report.
Amendment 10 would add a specification criterion for new countries to the Bill. This has not already been included to ensure that Parliament is given the full freedom to decide on any new territory. If criteria were to be added, Parliament might be put in the invidious position of having to accept that a particular territory that was not appropriate for specification for other reasons should be added. In this circumstance Parliament would likely want to consider all aspects of the proposal, so adding these criteria would limit Parliament’s discretion. As I have outlined, any Government proposing to add a new territory would also need to give clear reasons for doing so, both in the explanatory documents accompanying any statutory instrument and during any subsequent debate. We would not want to bind the hands of future Governments to decide on the criteria they use to specify a new country.
I think we can all agree that the factors identified by my noble friend will of course be important and relevant considerations that we would expect any Government to take into account when deciding whether it is appropriate to seek to add a new territory. However, we do not consider that they need to be in the Bill. The current drafting ensures that Parliament can assess the merits of each territory which is due to be added to the Bill and scrutinise any addition through the affirmative resolution procedure. I am not persuaded of the need for this amendment.
Amendment 11B aims to remove the United States from the Schedule. The US is a critical partner in fighting terrorism and international organised crime. It is a responsible user of Interpol and has a criminal justice system with extensive checks and balances. We are confident of these points in relation to the US as much as to the other countries that we seek to specify. The new power of arrest, which is designed to protect the public in this country, has nothing to do with whether UK extradition requests to other countries are successful. It is about ensuring, when we have robust and trustworthy information that a person is wanted for a serious offence, that the police can arrest that person. Requests from the US are backed by judicial warrants predicated on probable cause. This is a firm ground on which to bring a person before a judge in the UK to decide on their further detention.
My noble friend talked about the US President’s comments on judicial appointments. Of course, this was raised by the leader of the Opposition in another place. We need to bear in mind the context in which the President might have said that in an election year. The Prime Minister made his views on the US treaty very clear in another place last month. The Government’s long-standing position is that the treaty with the US is fair and balanced in practice.