§ 7.38 p.m.
§ The Minister of State, Home Office (Lord Falconer of Thoroton)
rose to move, That the draft regulations laid before the House on 9th May be approved [30th Report from the Joint Committed].
The noble and learned Lord said: My Lords, the regulations before us today are needed in order to make minor amendments to the European Union Extradition Regulations 2002. Those earlier regulations gave effect to the 1995 Convention on Simplified Extradition procedures between member states of the European Union and the 1996 Convention relating to Extradition between Member States of the European Union. Both conventions were designed to speed up and simplify extradition between EU partners and required amendments to the Extradition Act 1989 for full implementation.
The original regulations received parliamentary approval on 19th December 2001 and came into force on 20th March this year. They were made under the provisions of Section 111 of the Anti-terrorism, Crime and Security Act and, therefore, these amendment regulations must be made under that same power.
The amendment regulations that I move today make two small changes to the original regulations. They are needed because there were two errors in the earlier regulations. The first of the two errors occurred in Schedule 9, paragraph 5 of the regulations, which introduced a new Section 14A to the 1989 Act. In new Section 14A(5), reference was made to,provision for a magistrate to order the committal for return of a person".446 In fact, the term "district judge" should have been used rather than "magistrate"; hence, we have Regulation 2(2) of these amendment regulations. The second mistake was that paragraph 10(4) from new Schedule 1 A to the Extradition Act 1989 modified the wrong section of the Act. This concerns speciality protection for fiscal offences, which are offences in connection with taxes, duties and Customs and Excise. Article 6 of the 1996 convention required that member states extradite for fiscal offences. Article 6(3) allowed states to say, if they chose, that they would restrict extradition for fiscal offences only to those in connection with excise, value-added tax and Customs. Two member states, Greece and Luxembourg, chose to do so.
Inadvertently the change that was made to a section of the 1989 Act was the one that affected incoming requests. The relevant subsections were both the subject of similar, complex amendments and similar in appearance even to experts, so this slipped by the busy proof-readers. Fortunately, no cases have been affected by this oversight but it is only right that the correction should be made to ensure that the extradition position process is as fast, fair and accurate as we can make it. Regulation 2(3) of this statutory instrument therefore omits the provision which was inserted in error, and Regulation 2(4) adds it to the correct provision, affecting outgoing requests.
I cannot believe that there is any controversy about this matter. I commend the regulations to the House. I beg to move.
Moved, That the draft regulations laid before the House on 9th May be approved [30th Report from the Joint Committee].—(Lord McIntosh of. Haringey.)
§ Lord Goodhart
My Lords, of course I do not intend to object in any way to the correction of mistakes, but I should draw the attention of the House to a concern of mine about what has happened here. These mistakes are in fact mistakes in primary legislation because the regulations that are being amended were regulations that exercised a Henry VIII power to amend primary legislation.
Obviously, everybody must be well aware that the standard of drafting in secondary legislation is not always as high as it is in the case of primary legislation, but it does seem to me that particular care is needed in the case of the exercise of a Henry VIII power. I wonder whether the noble and learned Lord the Minister can tell me whether it is the normal practice, when a Henry VIII power is being exercised, to ask parliamentary counsel, who are after all the guardians of primary legislation, to look at amendments before they go into formal regulations and, if not, whether it would not be a good idea for that to be done in the future.
§ Lord Dixon-Smith
My Lords, the noble and learned Lord will be relieved to hear that we do not find anything controversial about these regulations in themselves, but I feel it is necessary to echo the words 447 of the noble Lord, Lord Goodhart, because what is controversial about them is that this is secondary legislation. We are correcting an error in secondary or primary legislation, whichever way you want to look at it, and that indicates that we need to be very much more careful how we set about these things in the first place. One would have to be immensely optimistic to believe that this will not happen again and one has to hope that on this occasion the regulations are correct. We accept what the noble and learned Lord has said and we are happy to support the changes that he is putting forward.
§ Lord Falconer of Thoroton
My Lords, I thank both noble Lords for their support. They are correct when they say that, although amendments were made by secondary legislation, it was primary legislation that was being amended. It is therefore of very considerable importance that errors are not made. I deeply regret that the errors were made.
My understanding is that where primary legislation is involved parliamentary counsel drafts the provisions. Where it is secondary legislation, even though it may be amending primary legislation, it is drafted by the department but sent to parliamentary counsel to look at. But I shall write to both noble Lords in relation to that point. In answer to the question of the noble Lord, Lord Goodhart, it would have been seen by parliamentary counsel but perhaps on a different footing from the way it would have been dealt with had it been primary legislation. I very much take on board the point made by both noble Lords that one has to take as much care as one possibly can to avoid these sorts of mistakes being made.
On Question, Motion agreed to.