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The second matter to which I draw your Lordships’ attention is the question of the relationship between the Extradition Act 2003 and the Human Rights Act 1998. Throughout the debates that we had on the Extradition Bill, the Minister was at pains to reassure us that the terms of the Human Rights Act would continue to apply to matters within the jurisdiction of the Extradition Act. That fact is in the Act in Section 87(1), where it says that judges considering these matters are expressly required to take into account the Human Rights Act when construing the Extradition Act.
There has recently been a series of cases in connection with the NatWest Three. They have gone as far as the Court of Appeal; it considered the relationship between the Extradition Act and the Human Rights Act and reached the conclusion that, in every case, the international treaty as reflected by the Extradition Act always trumped the Human Rights Act. On a true construction of the Act in relation to the Human Rights Act, I am sure that that judgment is sound; and nothing that I am about to say should in any way be read as a criticism of the Court of Appeal. However, if that is now the law, and the Human Rights Act is overridden in that total and complete way by the Extradition Act, then the Government should look at that relationship again.
In the deportation of non-British nationals cases, the courts spend years trawling over factual issues about what will happen to a non-British national when he or she is returned to the country to which he or she is to be deported. But it appears that in the context of the extradition treaty, the balance between what the Human Rights Act requires and the Extradition Act itself is different from normal deportation cases. At least, that is what I have concluded from the judgment of the Court of Appeal. If that is so, in my submission the Government should look at this balance again. That is the second reason why we have raised further amendments and will support the amendment tabled by the noble Lord, Lord Goodhart.
I do not need to say anything more, except this: I have watched, in the course of the past five years of the Government’s time in office, an astonishing erosion of the rights of the criminally accused in a whole range of areas, which I am not going to repeat. The Minister has heard me saying this before; she knows what I am saying. I regard the manner in
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Lord Lloyd of Berwick: If I can, I wish to speak before the Motion is moved. This is simply for clarification, because I do not understand the full extent of the argument. Is the noble Lord saying that the United States should be removed altogether from the Part 2 categories, or only from the designation under Section 84(7)? That is a critical point.
Lord Kingsland: From the designation. Amendment No. 186 reverses the effect of the order of 16 December 2003. That is all we seek. Amendments Nos. 191 and 191A define the tests the United States should meet before a further order redesignating it.
Lord Lloyd of Berwick: I am going to press the noble Lord, because this is an important point. We understand that there is designation of the Part 2 categories, and the noble Lord is saying that the United States is included among them. It is also included in the extra designation in Section 84(7). Is he arguing that the United States should be removed altogether from Part 2 categories?
Lord Lloyd of Berwick: Only from Section 84(7)? Thank you. I am very grateful.
Lord Goodhart: We on these Benches have objected to the extradition arrangements with the USA ever since the text of the new treaty was published shortly after it had been signed on 31 March 2003. I have put my name to Amendment No. 186, which has just been spoken to by the noble Lord, Lord Kingsland, as well as to Amendment No. 191A, which stands in my name alone.
The purpose of these amendments is to prevent serious injustice for people who now face extradition to the USA or may do so in the future. That injustice arises from the absence of any need for the American Government to provide any evidence of possible guilt in support of the request; the lack of reciprocity, since requests for extradition from the United States have to be supported by evidence; and the aggressive American pursuit of extradition in cases that ought to be tried, if at all, in the United Kingdom.
I shall start by removing a smokescreen that has been put up by the Government. The smokescreen is the statement that there is no lack of reciprocity and that the tests for extradition in opposite directions are in fact equal. That is a view the Minister herself
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“If I may again deal with the reciprocal arrangements, it is not true that the United States has a different evidential burden from this country. The probable cause, which is the burden that the United States places on countries that want to extradite from the United States, is analogous to what we now provide under the Extradition Act 2003. It is not correct to say that the United States has been given preferential treatment or that the arrangements in respect of evidence are not reciprocal”.—[Official Report, Commons, 5/6/05; col. 807.]
That is simply and totally incorrect. To explain why that is so, we need to go into a little detail. The extradition treaty between the United Kingdom and the United States was signed in 1972 and came into force a few years later, and is still, at least nominally, in force. Under Article VII of that treaty a request for extradition in either direction must be accompanied,
- “by such evidence as, according to the law of the requested Party, would justify his committal for trial if the offence had been committed in the territory of the requested Party”.
Under that treaty, it was slightly easier to get extradition from the United States to the United Kingdom than the other way around. That was because in England—and, I understand, also in Scotland—committal for trial requires the prosecution to show a case to answer, or, to use the old Latin phrase, a prima facie case. That means the prosecution has to show evidence that, if not challenged or contradicted by evidence from the defendant, would be sufficient to justify conviction.
In the United States, a slightly lower standard is needed for committal: the standard of “probable cause”, which was written into the fourth amendment to the American constitution. What is required to meet the standard of probable cause is evidence that would provide a reasonable basis to believe that the person in question committed the offence for which their committal is sought.
The American test is somewhat lower. The test to be satisfied is based on reasonable grounds for belief in guilt, rather than on evidence that, if not contradicted, is capable of proving guilt. I accept that that is a significant, but not enormous, difference. It is far smaller than the difference between having to show reasonable grounds for belief in guilt and having to provide no evidence of guilt at all. In spite of the Government’s denial, that is a significant difference, and the Government are in fact misleading us.
I move on to the new treaty, signed on 31 March 2003 and not yet approved by the Senate. If and when that treaty comes into force, the need for evidence is covered by Article 8.3, which says:
then there are two paragraphs that are irrelevant, so I shall go straight to paragraph (c)—
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- “for requests to the United States, such information as would provide a reasonable basis to believe that the person sought committed the offense for which extradition is requested”.
That applies the test of probable cause for extradition from the United States. No requirement for any corresponding information before extradition from the UK is provided for.
I have two comments on that. First, paragraph (c), which I have quoted, makes it plain, if any proof were necessary, that different standards apply to extradition from the United States and extradition to it. Secondly, reciprocity could be established by simply deleting the words “for requests to the United States” from that paragraph so it was made the same both ways.
I move on to the Extradition Act 2003 and the order made under it in December 2003, the order mentioned in Amendment No. 186. The Extradition Act, as the noble Lord, Lord Kingsland, explained, divides states into two categories: category 1, which consists of the European Union states and a few others where no evidence of guilt is required for extradition on, at least in the EU, a fully reciprocal basis; and category 2, the territories including the USA and many other states.
The noble Lord, Lord Kingsland, has explained that under the Act category 2 states are required to produce evidence that would be sufficient to make a case to answer—that is, the traditional British test—unless, under Section 84(7), the Home Secretary has designated category territories from which such evidence is not required. As we know, such an order was made in December 2003. That included the United States and many other countries, most of them parties to the Council of Europe Convention on Extradition, to which the United Kingdom subscribed in 1991 and under which evidence on reciprocal terms is not required. I should say that the Liberal Democrats were the only party which objected to the inclusion of the United States in the list designated under Section 84(7). That was debated in your Lordships’ House on 16 December 2003, when we voted against the order and the Conservatives abstained.
Since that order came into force on 1 January 2004 no supporting evidence of guilt is needed for extradition to the USA, even though the 1972 treaty is still in force. In taking up this position, the Government have made two fundamental errors. First, they should never have agreed to the unequal treaty with the USA. I accept that there could have been no valid objection to lowering the standard for extradition to the USA to the American standard of probable cause. As pointed out already, this could have been achieved by the removal of six words from Article 8.3. There is no justification for the total removal of the need to show some evidence of guilt. Indeed, as again the noble Lord, Lord Kingsland, said, what has happened here shows absolutely the need for parliamentary scrutiny of draft treaties and parliamentary approval as part of the ratification process of treaties entered into by the Government of this country.
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The second fundamental error was to designate the USA under Section 84(7) before the 2003 treaty had been ratified by the USA. That was a tactical error because it removed any incentive for the Senate to approve the treaty, which contains some provisions which are to the advantage of the United Kingdom. The treaty has, however, met with opposition in the USA, particularly from Irish-American groups, and those carry considerable weight with a good many senators. So there is no incentive, and I have no expectation that the Senate will approve this treaty in the remotely near future.
More importantly, the designation exposed residents of the United Kingdom to extradition under unequal arrangements at a time when there was no obligation under the treaty or otherwise to do so. The number of people against whom extradition to the USA is currently sought is fairly considerable: it is about 15 or 20. Except for the NatWest Three, these cases are still sub judice and cannot be referred to, but they include a number of senior businessmen and some people against whom extradition is sought on grounds relating to terrorism. Those people are entitled to the same protection from unjust extradition laws as are senior businessmen. That was shown quite clearly by the case of Lotfi Raissi, an Algerian pilot against whom extradition was sought under the 1977 treaty on terrorist grounds, but the supporting evidence totally failed to substantiate the case against him and he was released.
The Government must take action. First, they should recognise the force of opinion in both your Lordships’ House and among the public and revoke the 2003 order immediately so far as it applies to the USA. I recognise that there is a time problem here. This Bill will not go back to the House of Commons until late October, so even if the House of Commons were to accept Amendment No. 186, it could not be effective for several months. By that time the NatWest Three and perhaps others will have been extradited to the USA, so immediate action is needed here.
It would be wrong to extradite people when your Lordships’ House has agreed to—as I hope it will—amendments which would prevent their extradition and the House of Commons has not had a chance to consider those amendments. If this amendment is agreed to, the Government should at the very least put extradition on hold until the House of Commons has had time to consider it.
Next, the Government should renegotiate the 2003 treaty to remove the six offending words and make the extradition test reciprocal. Amendment No. 186, which would remove the designation of the United States under the 2003 order, is the key amendment. Amendment No. 191A, which stands in my name, is consequential on that because it would prevent any re-designation of the United States under Section 84(7) until a reciprocal treaty had been entered into. I recognise that at present the Extradition Act does not recognise any possibility of a halfway house between having to show a full case to answer and having to produce no evidence at all, so further amendmentsto the Extradition Act may be necessary. But that can be dealt with in due course if the principle is accepted.
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I do not accept that the amendment should, asthe noble Lord, Lord Kingsland, suggested, exclude alleged terrorists. The ordeal faced by anyone extradited to the USA on the basis of unfounded allegations of terrorism would in all probability be far worse than the ordeal of people extradited on the basis of unfounded allegations of financial crime. The case of Lotfi Raissi shows that that is a real possibility. As I have already indicated, I would accept a general reduction in the standard of evidence required for extradition to the USA from a prima facie case to one of probable cause.
I agree with everything that the noble Lord, Lord Kingsland, said on the question of forum and have nothing further to say.
This group of amendments is an opportunity to correct a grave injustice which has caught the nation’s attention. I ask the Government today to undertake the immediate revocation of the 2003 order and to enter into renegotiation of the 2003 treaty. If they fail to give those undertakings, I hope that the Committee will give an overwhelming endorsement of these amendments.
Viscount Tenby: I shall speak briefly and in general terms to support the amendment to which I have added my name.
The mounting concern in the country about the consequences of the Extradition Act will be apparent to anyone who reads the press, watches television or listens to the radio. The salient points have been made repeatedly today and, if I may say so, in a particularly masterly fashion, by the noble Lords, Lord Kingsland and Lord Goodhart. Accordingly, I do not intend to dwell on the technicalities or to refer to individual cases, however heartrending and disturbing they may be. In any event they have been, or will be, covered by more authoritative voices.
However, as I said at Second Reading, I, and I suspect many others, backed the main thrust of the proposals some two and a half years ago as a necessary tool in the fight against terrorism—a cause to which we would all gladly subscribe. Looking back, I freely admit that I may have been naïve, certainly unimaginative, about the possible consequences, particularly now in view of the fact that in the succeeding months the number of extradition requests involving so-called white-collar cases has greatly exceeded those of a terrorist nature.
Since the Bill was passed, some voices have been consistently raised against the way things were going, including that of the noble Baroness, Lady Anelayof St Johns, and, in particular—I apologise if I embarrass him; I am sure that he is not normally embarrassed by such comments—the noble Lord, Lord Goodhart, who has pursued this hare like the legal terrier that he is.
More recently, the Daily Telegraph has mounted an admirable campaign, highlighting the circumstances surrounding the so-called NatWest Three. All these have made an honourable contribution to the fight to right inept and ill thought-out legislation. The principle of reciprocity in extradition seems such a basic requirement that any Government conscious of
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6 pm
I wish the Minister Godspeed in her flight to Capitol Hill. I am sure that if charm and palpable decency were all, her task with the Senate would be as good as won; but I fear that American politics are not like that, especially in an election year. There seems to be general agreement on the two principal reasons standing in the way of US reciprocity. First, it is alleged that the Irish-American lobby is vigorously opposing implementation for fear that we shall seek the extradition of various IRA fugitives from justice, some of whom are thought to be responsible for very serious crimes indeed. Such a reason is contemptible and really not worthy of a great democracy.
I am more sympathetic to the second reason: that this country is at times dilatory in its prosecution of white-collar crimes, that the prosecutions and trials take too long, and that the sentences often do not reflect the seriousness of the offences. If that is so—and I do not suggest that it is necessarily the case—surely the answer lies in looking to our own arrangements and revising them if necessary, not in providing excuses for other countries, however friendly, to take unacceptable, unilateral steps of their own.
Perhaps the Committee will allow me to make two more observations. The recent trend of the United States becoming the universal nanny, with FBI agents having almost unlimited powers of arrest, seems to be a disturbing development and one which, in the context of this treaty, will have and is beginning to have the most serious implications for the British business community and British industry. I say that as a lifelong admirer and supporter of the USA. Finally, if I could be presumptuous enough to give some homely—one might almost say “good old boy”—advice to the Government, it would be this: I believe that Americans have long respected and admired independence of spirit and standing up for fairness and equality, and signing up to “I surrender; do what you like with me” legislation is not ultimately the way to their hearts.
Lord Mayhew of Twysden: I support Amendment No. 186, particularly in the context of the journey that the Minister is about to make to Washington— slightly humiliatingly, it seems to me—to plead for our rights. I do so more generally in real dismay atthe turn that events have taken concerning our arrangements for extradition with the United States. The result of those events is a thoroughly unbalanced, unfair and damaging mess which, to be fair to the Government, they did not intend, but which they
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The detailed and rather technical components that have created this mess have been very fully and clearly explained this evening, and I would do no one any service to try to put a gloss on them. I shall simply say that real damage is being done to relations with our American friends, even though we know that the Bush Administration have pushed hard for ratification. The trouble is that the Senate, particularly those members who have Irish-American votes in their states, sees no practical need now to proceed to ratify the 2003 treaty. The cases of the NatWest Three have rather luridly brought into prominence the unfairness of the situation that obtains, and comparisons are increasingly being made with other instances where American interests have obliterated any evidence of loyalty to a trusted ally. A pattern is being discerned, and it is not a flattering pattern for America. That can only do increasing harm.
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