Legal base	Articles 82(1)(d) and 218(6)(a); QMV; consent
Document originated	17 December 2009
Deposited in Parliament	6 January 2010
Department	Home Office
Basis of consideration	EM of 19 January 2010
Previous Committee Report	None
To be discussed in Council	No date set
Committee's assessment	Legally and politically important
Committee's decision	Not cleared; further information requested

Background

1.1  EU Member States, the Kingdom of Norway and the Republic of Iceland are parties to a number of agreements relating to extradition, including the Council of Europe Conventions on extradition of 13 December 1957 and on the suppression of terrorism of 27 January 1977. The Nordic countries (i.e. Denmark, Finland, Iceland, Norway and Sweden) have adopted specific extradition legislation according to a common model which applies to extradition between those States. In the case of those Nordic countries which are also EU Member States (i.e. Denmark, Finland and Sweden), the European Arrest Warrant is applied, except where the Nordic arrangements further facilitate extradition.[1]

1.2  In 2001, the Council authorised the Presidency to open negotiations with Iceland and Norway with a view to extending to those countries the parts of the EU Extradition Convention of 27 September 1996 which were not related to the Schengen Agreement. This authority was expanded in 2002, following the adoption by the EU Member States of the Framework Decision of 13 June 2002 on the European Arrest Warrant.[2] The Council then agreed that there would be a benefit from applying extradition arrangements on the European Arrest Warrant model in relations with Iceland and Norway. Successive Presidencies have since conducted negotiations with a view to adopting an Agreement on surrender procedure (extradition).

1.3  The signing of the Agreement was authorised by the Council Decision[3] on 27 June 2006, but the Agreement has not yet been concluded. With the entry into force of the Lisbon Treaty on 1 December 2009, the procedures to be followed for conclusion of an international agreement are governed by Article 218 of the Treaty on the Functioning of the European Union (TFEU). In the case of agreements covering fields to which the ordinary legislative procedure applies, the Council now has to obtain the consent of the European Parliament before adopting a Decision to conclude an international agreement.

The draft Agreement between the EU and Iceland and Norway

1.4  The draft Agreement is intended to improve judicial cooperation between EU Member States on the one hand, and Iceland and Norway on the other, by providing for an expedited extradition procedure along the lines of the European Arrest Warrant (EAW).

1.5  Under Article 1, the Parties agree to ensure that their extradition systems are based on a mechanism of surrender pursuant to an arrest warrant in accordance with this Agreement. For these purposes, an arrest warrant is a judicial decision issued by a State with a view to the surrender of a person from one State to another for the purposes of conducting a criminal prosecution or executing a custodial sentence or detention order.

1.6  Most importantly, and in contrast to the EAW, in Article 3(4) dual criminality[4] is required as a condition for extradition, unless Iceland or Norway on the one hand, or the EU on behalf of any Member State on the other, makes a declaration that it will not require dual criminality if the offence is an offence listed in Article 3(4) and carries a penalty in the State requesting extradition of at least three years' imprisonment. The list of offences in Article 3(4) is the same as that set out in Article 2(2) of the EAW and accordingly includes terrorism, drug trafficking, sexual exploitation of children, fraud, money-laundering, environmental crime, counterfeiting and piracy of products, rape, arson, and crimes within the jurisdiction of the International Criminal Court, namely war crimes, crimes against humanity, and genocide. It also includes such concepts as "computer related crime", "racism and xenophobia", "swindling" (as opposed to "fraud"), "racketeering and extortion" and "sabotage".

1.7  The Agreement provides that the declaration that dual criminality will not apply, where made, is made on the basis of reciprocity. In these circumstances, the Agreement will operate in the same way as the EAW, so that if the issuing State classifies an offence under its law as "racism and xenophobia" or "swindling" etc. then such classification must be accepted by the executing State, whether or not the same conduct would be regarded as criminal there.

1.8  Article 4 of the Agreement sets out the same mandatory grounds for refusing to enforce a warrant as are set out in Article 3 of the EAW (amnesty, double jeopardy[5] and insufficient age of suspect),[6] and Article 5 reproduces the same optional grounds for refusing enforcement as are contained in Article 4 of the EAW. In both cases a State will be permitted to refuse to enforce a warrant in circumstances where the offence in respect of which it is issued is regarded by the law of that State as having been committed in whole or in part within its territory, or where such offence is committed outside the territory of the State issuing the warrant and the law of the executing State does not allow prosecutions for the same offences when committed outside its territory.

1.9  Article 6(1) of the Agreement provides that enforcement of a warrant may not be refused on the grounds that the offence is regarded by the executing State as a political offence, or as an offence inspired by political motives. Article 6(2) of the Agreement permits Iceland or Norway, or an EU Member State, to make a declaration that the rule in Article 6(1) is to apply only to terrorism cases (i.e. the offences referred to in Article 1 and 2 of the Council of Europe Convention on the Suppression of Terrorism, or Articles 1to 4 of the Council Framework Decision on combating terrorism).[7] Where a warrant is issued by a State having made such a declaration, or on whose behalf the EU has made a declaration, the executing State may apply the principle of reciprocity.

1.10  Article 7 of the Agreement makes special provision for the extradition of a State's own nationals. Article 7(1) prescribes the general rule that enforcement of a warrant may not be refused on the grounds that the person in question is a national of the enforcing State, but Article 7(2) provides that Iceland and Norway on the one hand, and the European Union on behalf of any of its Member States, may make a declaration that it will not extradite its own nationals and that extradition will be ordered "only under certain specified conditions".

1.11  The remaining provisions of the Agreement substantially reproduce those of the EAW, apart from the concluding formal provisions.

The Government's view

1.12  In her Explanatory Memorandum of 19 January 2010 the Parliamentary Under-Secretary of State at the Home Office (Meg Hillier) explains that the purpose of the Agreement is to improve co-operation between EU Member States and Iceland and Norway by putting in place an expedited surrender procedure between those countries. The surrender procedure is based on the principles and mechanisms of the Council Framework Decision of 13 June 2002 on the European Arrest Warrant and the surrender procedure between Member States. However, it also allows those Parties who wish to do so to retain some additional elements of earlier extradition arrangements, in particular in relation to the application of dual criminality.

1.13  She confirms that Iceland and Norway will remain Category 2 territories for the purposes of the Extradition Act 2003 and will continue to be governed by Part 2 of the same Act. At present, the dual criminality requirement will not therefore be waived under UK law, and the conclusion of the Agreement will not require a change in UK law.

1.14  Under the scheme of the 2003 Act the UK can only extradite someone to a Category 2 territory where this would be consistent with their rights under the European Convention on Human Rights. Furthermore the UK cannot extradite anyone where to do so would lead to the imposition and implementation of a sentence of death or where the extradition request has been made for reasons of race, religion, nationality, gender, sexual orientation or political opinion. In view of these safeguards, and in light of the fact that Norway and Iceland are both parties to the European Convention on Human Rights, the Minister is satisfied that the conclusion and application of the EU-Norway & Iceland Extradition Agreement would be consistent with fundamental rights.

1.15  In terms of the opt-in, the Minister reports that the UK has three months to decide from the date of publication of the proposal. As the proposal was published on 17 December, the UK will need to inform the Presidency by 17 March. The main factors the UK will need to consider in taking into account whether or not to opt-in will be the fact that if the UK opted in to this Decision it would not in the future be able to conclude any extradition agreement with Norway or Iceland which would conflict with the terms of the EU-Norway & Iceland Agreement.

Conclusion

1.16  We ask the Minister to explain why it has taken over three-and-a-half years to conclude the Agreement.

1.17  We ask the Minister for an indication of whether the UK will opt into this Agreement.

1.18  We welcome the fact that the Agreement contains a dual criminality condition — the principle that the conduct for which extradition is sought must be a crime in both the requesting and the requested country — for European Arrest Warrant offences unless Parties agree on a reciprocal basis to waive it. But we would like to know the views of the Ministers' officials on the likelihood of this condition being waived by Iceland and Norway under Article 4(3) of the Agreement.

1.19  The proposal was published by the Commission on 17 December 2009 and yet the Explanatory Memorandum was deposited only on 19 January 2010. This delay is in contravention of the undertaking in Baroness Ashton's statement on JHA opt-ins that the Government will place an Explanatory Memorandum before Parliament "as swiftly as possible following publication of the proposal and no later than ten working days after the publication of the proposal". It leaves us with four weeks, rather than the agreed eight weeks, for scrutiny of the opt-in decision. We ask the Minister for an explanation of the delay and an undertaking that it will not be repeated.

1.20  Pending the Minister's replies the document remains under scrutiny.

2   OJ No. L 190, 18.07.02, p.1. Back

3   2006/697/EC. Back

4   I.e. the principle that the conduct for which extradition is sought must be a crime in both the requesting and the requested country.  Back

5   The doctrines of autrefois convict and autrefois acquit at common law. Back

6   The doctrine of doli incapax at common law. Back

7   OJ No. L 164, 22.06.02, p.3. Back