My Lords, I shall speak to Amendment 14 in this group. I owe the Committee an apology for not adding an explanatory statement, but essentially this is a probing amendment. The reason is that when I tabled it, I was not entirely sure exactly what my anxieties about the proposed legislation might be, but I have spoken to the Minister about my general unhappiness. Interestingly, the noble Baroness, Lady Hamwee, has just talked about paragraph 29(2).
It strikes me as extremely clumsy and I am uneasy about it. As I say, that is why I have tabled this amendment and discussed it with the Minister.
Throughout the passage of the Bill thus far, the Government have emphasised that it is about powers of arrest. Of course, much of the Bill is about those powers, but it is clearly set within the context of the extradition system as a whole. One has not only to look at the Title of the Bill to see that; if you look at its substance, it becomes apparent. In the nicest possible way, I think “the Lady complaineth too much” in talking about the focus of the Bill on powers of arrest. The Bill is essentially about the workings of our extradition system as a whole. As the Committee knows—and does not need me to point out—it is essentially divided into two parts; I oversimplify, of course. There is the bit that relates to the European arrest warrant and the bit that relates to the rest.
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We know that, at the time that I was chairing the House’s committee that looked at the workings of the 2003 Act, the question arose of whether the country should opt back in to the EAW. We on the committee believed that it was the right thing to do; we were clear but not unanimous about that. It was discussed on the Floor of the House and that view was endorsed by the House as a whole. Now, as everybody knows, there is a real possibility that we may leave the European arrest warrant. I was slightly surprised when looking at the Explanatory Notes to the Bill that there was not a great deal of reference to that. However, I then went further into the matter and got hold of a copy of the memorandum from the Home Office to the Delegated Powers and Regulatory Reform Committee. Paragraph 29 says:
“The Department considers that the proposed regulation-making power provides the appropriate level of flexibility to amend the list of specified category 2 territories, and to amend the definition of making a request in the “approved way”, in response to changing circumstances. Leaving such matters to secondary legislation ensures that the Government can respond in timely fashion to potential future developments, and that such response provides certainty and clarity as to the appropriate manner of request from amended or newly specified territories. For example”—
this is the important bit—
“if the UK were not to have access to the European Arrest Warrant or a similar tool, with the effect that EU Member States become re-designated as category 2 territories, it is likely to be appropriate to specify some or all of them for the purposes of this legislation (thereby replicating the immediate power of arrest which applies to a certified European Arrest Warrant).”
The point here is that it is clearly envisaged that, in some way, Part 1 of the 2003 Act will be collapsed. This power, and the powers contained within it, which may appear somewhat ancillary to the whole question of arrest, are—if I might use a cricketing analogy to follow that used by the noble and learned Lord—rolling the pitch, even if, to mix my metaphors, they are not a Trojan horse for bringing that about.
Clearly, if we are to leave the European arrest warrant scheme, something needs to follow. But it is objectionable and inappropriate that the substantial part of the extradition code of this country is not to be modified as a result of primary legislation. Extradition law is an important component of our country’s wider
constitutional framework. As was pointed out by the noble Baroness, Lady Hamwee, and the noble and learned Lord, Lord Judge, and others, we will be faced with Hobson’s choice. This is not in any way desirable. That is the point about which I am concerned and the rationale that I worked out for my amendment.