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Therefore, I was delighted to hear that the noble Baroness is being despatched to Washington by the Home Secretary. I agree with what has just been said about the assets that she can bring to any cause. We all have the highest regard for her advocacy, as well as for the charm that she rather unfailing and unfairly brings to bear with it. We wish her luck; I wish her luck at any rate. She will be strengthened and not weakened if this House has shown, at last, that the Brits are not patsies; that they have been taken for a long enough ride; and that they have done what the Americans themselves would have done, and a lot sooner: revoke the designation order. I urge the noble Baroness and those who sit behind her to accept that that is language that the Americans understand and respect. Let it therefore arm her for the fight.

Lord Anderson of Swansea: There appears to bea widespread sense of injustice throughout thisCommittee and in the country as a whole. The noble Lord, Lord Goodhart, has exploded the Government’s suggestion that the test for the US and that for our own country is equal.

The key question is reciprocity. When the Government proposed the order, we were assured that there would be a fairly rapid ratification by the US Senate, but all those who know US politics know that the Executive propose and Congress disposes. The Senate has no incentive to comply, in spite, no doubt, of the very honeyed and persuasive words of the noble Baroness. When do the Government expect the Senate to ratify the order? It is hardly likely to happen before the mid-term elections, for all sorts of lobbying reasons. US foreign policy and US policy in relation to legal obligations are effectively a conflict of interests and, frankly, the US-Irish interest and the interest in re-election is mightier than anything that we might put to the US at this time. There is no reciprocity; there is no serious prospect, in my judgment, of the US Senate changing its mind, in spite of the noble Baroness’s visit. Therefore, there

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will be no pressure, or at least no sufficient pressure, either from the Executive in a mid-term election year or from us.

The Senate has a constitutional position on treaty ratification. I know well from my previous position chairing the Foreign Affairs Committee in another place that we do not have that constitutional position, but there are constitutional obligations and responsibilities and there are political obligations. Our US friends are proud democrats and they will recognise the proud democracy that is here. There are political imperatives that they must understand when this House, and perhaps also the other place, recognise the injustice in this.

I leave it at that. It is very likely that this Committee will overwhelmingly say that we are dissatisfied with the current imbalance. The question remains what, if anything, the Government will do about it. There will be a clear expression from us. I hope that the Government will respond to the debate, or at least to the vote that will follow, and say that, given the pressure of public opinion, although we value our very close and warm relationship with the US, it must understand the democratic imperatives here and that sense of injustice. I hope that the Government will say firmly, after due reflection, that the matter should be put on hold and that there should not be extradition of those currently faced with that threat.

Lord Lester of Herne Hill: Like my noble friend Lord Goodhart, I had the privilege of learning much of my law at a great American law school, Harvard Law School, where I studied constitutional and international law. When the Minister visits that nation’s capital, perhaps it might help her if she explained to our American friends—and I am a strong friend of the United States—that what we seek in this short debate is reciprocity in the following sense: that the “probable cause” requirement written into the Fourth Amendment to the United States Constitution be applied both ways, to our citizens and to theirs, so that there is equal constitutional protection for both.

Unfortunately, the Court of Appeal has decided that that protection cannot be provided by the Human Rights Act, which has been trumped in this case. We do not have in this country a constitutional bill of rights that covers the point. As has been said, we do not yet have the treaty scrutiny committee that the committee of the noble Lord, Lord Wakeham, recommended long ago. It might help, and I am sure that it would carry great conviction in the United States, if, armed with the vote from your Lordships' House this evening, that point were made to our American colleagues.

Lord Rees-Mogg: I support the amendment on grounds raised by the Prime Minister in the other place last week but which have not been raised here. It relates to whether extradition to the United States under present circumstances reasonably guarantees a fair trial in that country. The real difficulty arises partly out of the plea-bargaining system in the US.

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The vast majority of convictions are secured by plea bargaining rather than by open trial, which means that the prosecuting authority has an interest in putting pressure on defendants to agree to a plea bargain—to agree to plead guilty on a lesser offence. Many American defendants plead guilty believing themselves to be wholly innocent. We cannot be responsible for that problem with American law, but it should be a matter of concern.

The Prime Minister took the view in his replies to questions put to him on the case of the NatWest Three that there was grave concern about the bail conditions that might or might not be available to the three when they returned to the United States. Apparently, American law has taken it as a norm that if a defendant tries to avoid extradition by going to the courts in his own country to argue against it, that is evidence that the defendant is likely to be a fugitive from justice, given half a chance. As a result, most defendants who protest against extradition are not allowed bail. Alternatively, they may be allowed bail set at a high level, which they may not be able to afford.

The conditions in which remand prisoners are held—not in all states but in some, including Texas, where the three are to be sent—are not such that, in the long period of preparing for a trial, it is reasonably convenient and even possible for defendants to prepare the best defence. They do not have privacy or access to materials required, and, obviously, they do not have free access to witnesses.

Unless there is some provision, through a renegotiation of the treaty—and I can see no other way to get it—that normally, unless there are solid grounds for supposing that British defendants sent to the United States are likely to abscond, they would be given reasonable and proportionate bail during which to prepare their defence, particularly in complex cases, as are most of the present cases, we are only too likely to be extraditing our citizens in order that they should be deprived of the opportunity of preparing their defence in a fair trial. That is the main reason why I support the amendments.

6.15 pm

Lord Hodgson of Astley Abbotts: I support my noble friend’s amendments. I have followed the issue of UK/US extradition policy with some interest since the difficulties of the current treaty and the arrangements surrounding it were first discussed during the Committee stage of what is now the Extradition Act 2003. Since then, the noble Lord, Lord Goodhart, tabled an Unstarred Question for debate on this subject on 6 December 2004, and I tabled a further Unstarred Question that was debated on 30 June 2005.

My concerns about the extradition arrangements and the reasons why I support my noble friend’s amendments can be summarised under the three headings of fundamental imbalance, change of purpose and lack of reciprocity. As a subset of that, I, too, am concerned at how the Government sneaked the treaty through without proper parliamentary scrutiny. That did not reflect well on them at all.

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Perhaps I may first consider the second heading, change of purpose, because it has been focused on less by other noble Lords. The treaty was signed inthe aftermath of the terrible events in New York on 11 September 2001, and the Government made it clear at the time that its main use would be to speed up and improve the process by which suspected terrorists would be extradited. In another place, the Government gave assurances that white-collarcrimes would not be the main focus of the treaty. On 15 December 2003, in a debate in the other place, Caroline Flint, speaking for the Government, responded to a Question by Mr Menzies Campbell, MP. She stated:

there had been an article in that paper on that day—

Yet, of the 46 extradition requests made by the US between 1 January 2004 and 28 April 2006, 19 related to financial crime and only three to terrorism. Either we have been misled by the Government about the real purpose of the treaty, or the Government have been misled by their US counterparts.

My second area of concern is the fundamental imbalance in the treaty. My noble friend Lord Kingsland, and the noble Lord, Lord Goodhart, have already explained this and I shall not weary the Committee by repeating much of what they have said, except to say that it is clear that the US Department of Justice is hell-bent on using this advantage as widely as possible. At a conference in Las Vegas on3 and 4 March 2005, the deputy assistant Attorney General of the Department of Justice’s anti-trust division, Mr Scott Hammond, bragged that the US no longer had to make a prima facie case in support of extradition requests or even provide witness affidavits. He went on to say that hearsay affidavits by the prosecutor were enough and that appeal rights had been curtailed. I shall not detain the Committee by quoting from the speeches in Las Vegas, but I can summarise them by saying that they are testosterone-fuelled.

My third problem is with the lack of reciprocity, given the failure of the US to ratify. It is a scandal that, in the three years since the treaty was signed and brought into force in the UK, the US has failed, despite continued requests to ratify its half—or, perhaps, to be fair, I should say, its quarter—of the agreement. In her reply to the debate that I initiated on 30 June 2005, the noble Baroness stated:

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No doubt, as my noble and learned friend Lord Mayhew has pointed out, the noble Baroness was as charming to Mr Gonzales as she always is to this House. Charming she may have been, but persuasive she most certainly was not. It is now 13 months since Sheffield and matters have not moved forward one jot.

The removal of the US from Part 2 of the Extradition Act 2003 would return requests to the same basis as that on which they were conducted under the 1972 treaty, and this will create the reciprocity that I seek. It will also perhaps provide some backbone to the Government’s negotiations with the US, which now appears to be conspicuous by its absence.

Finally, I hope that when the noble Baroness comes to reply, she will not fall back on the argument she floated in the Financial Times earlier this week: that approving this amendment would be “an insult” to the US judicial system. Nothing could be further from the truth; it is the extradition treaty that is the insult. Only if the Government were today to state that they had given the six-month notice necessary for the revocation of the treaty under Article 24 would this amendment in any way become superfluous.

Lord Monson: In the article in the Financial Times yesterday mentioned by the noble Lord, Lord Hodgson—I say this much more in sorrow than in anger, because I share the general admiration for the noble Baroness expressed in this Committee today—the noble Baroness, Lady Scotland, accused those of us who oppose the Government in this matter and who support these amendments of trying,

I wonder if, on reflection, she might concede that this is a wholly unfair accusation and in 99.9 per cent of cases completely untrue. We may strongly disapprove of Guantanamo Bay and of certain aspects of the American penal system. Like my noble friend Lord Rees-Mogg, we may also be uneasy at the plea-bargaining system which is becoming more and more prevalent in the United States, which seems in practice to net some of the slower-witted small fry while letting the wily big fish off the hook. None of this makes us anti-American, not least because so many Americans feel exactly the same way.

In the same article in the Financial Times, the noble Baroness went on to refer quite reasonably and properly to the “alleged conspiracy” and the “alleged co-conspirators”, speaking of the NatWest Three. However, in a BBC Radio 4 interview heard by millions two days earlier—on Saturday, 9 July—in arguing that the extradition of the NatWest Three was right and proper, she asserted: “There are”—note that word—“co-conspirators in America”. No if’s and but’s here and no use of the qualifying words “alleged”, “possible” or “suspected”. Only those guilty of conspiracy can have co-conspirators. It

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stands to reason. So here we have a clear-cut, prejudicial presumption of guilt. In other words, a senior member of this Government—somebody renowned for her legal skills, talent, expertise and experience—has in effect publicly declared that those whom the Government are happy to have extradited are indeed guilty. How in such circumstances can they possibly receive a fair trial in the United States?

Baroness Scotland of Asthal: I say straight away that the Government share the feeling of frustration, if not irritation, that the treaty has not been ratified. There are certain myths that I would like to put to rest. Before I attempt to do so, I thank all noble Lords who have showered me with compliments on my ability to persuade, having by the content of their remarks demonstrated my total lack of it.

I turn to the issues raised first by the noble Lord, Lord Kingsland, and then by the noble Lord, Lord Goodhart. I say straight away that both noble Lords have conflated two arguments—the first should properly relate to the Act and the second relates to the treaty. The first myth—I believe it is a myth—is that the Extradition Act 2003 was intended solely or primarily to deal with terrorism. That point was highlighted in today’s debate by the noble Lord, Lord Hodgson of Astley Abbotts, among others. I say as gently as I can that that simply is not true. The Act covers all manner of crime that is serious enough to attract a maximum sentence of at least 12 months in prison.

I am sure that noble Lords will remember that we first started to consult comprehensively on this part in March 2001, prior to the 9/11 atrocity. Its origins lay partly in the early development of the European arrest warrant in 1999 and largely in the need to update an extradition system that dated from 1870, the time of Gladstone. It indicated that the old system was, if I may use the phrase, no longer fit for purpose at the advent of the 21st century, when crime had become ever more global. There are, even now, cases which have been going on for years under the old legislation. Many noble Lords remember the case of Ramda, in which it took over 10 years to extradite to France an individual alleged to have been a terrorist who blew up the St Michel metro station in Paris. Subsequently that individual has been dealt with.

The Home Office review published in 2001 set out the basics of what would become the new Act. Although much has been made of white-collar crime, your Lordships will remember that fraud cases, which are the majority of the cases under the new Act, are a much wider offence than the limited nature of offences to which the article in the Times referred. The cases range from murder, rape, drugs, money laundering, child pornography and robbery to sexual offences in relation to children and so on.

The second myth, implicit in the comments of the noble Lord, Lord Goodhart, is that the US needs to provide us with next to none or no information when making a request. That is not accurate either. To substantiate an application for extradition, the United States has to satisfy the provisions in Section 71 of the

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Act. I remind the Committee, just in case this has been expunged from noble Lords’ memory, that Section 71 provides that:

Subsection (3) outlines the precise evidence, and that is,

That test is similar, although not identical, to probable cause. But it goes further: in order for the United States to make a request to us, they have to satisfy themselves that in accordance with their law, there is sufficient evidence to establish probable cause. So, before it is entitled to issue a warrant or make an application for the extradition, that test has to be made, and all the requests made of us by the US must satisfy its test of probable cause. That is the evidence that it sends to us.

6.30 pm

Lord Goodhart: I am grateful to the noble Baroness for giving way. Is she suggesting that the view of an American judge on the existence of probable cause, which is one in which the Americans have a very clear interest, can be relied upon without being confirmed by a judge in the United Kingdom?

Baroness Scotland of Asthal: I think that it can to the following extent. A process has to be gone through in the United States in order to allow the Americans to make the request within their rules. They will have to satisfy themselves that there is a case in relation to probable cause. They, and we, are content that Section 71 of the 2003 Act, which refers to evidence, can be read in relation to the information that is provided in a similar way. So there is no dissonance between the prosecution authorities in our country and the US on that matter.

Lord Anderson of Swansea: If, as my noble friend says, there is currently an equivalence of test, why all the fuss about ratification and why the visit to Senator Lugar? Why are we putting pressure on the Senate and on the US Administration?

Baroness Scotland of Asthal: I can answer that very simply. As I tried to establish, there is a conflation of two issues. The first relates to the 2003 Act. When this matter was debated in 2003, we asked whether there should be a benchmark to apply to all the countries with which we were in comity and whether that should be the test, irrespective of the arrangement that we had with them or they had with us. We decided that that benchmark should be maintained. Some of the provisions in the 2003 Act are replicated

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in our treaty with the Americans. But we and the Americans will not be able to take advantage of certain provisions—for example, on temporary surrender—unless and until the treaty is ratified.

So there are provisions in the 2003 Act of which the United States can avail itself in the same way as can all the other countries listed in the same part of Part 2 of the order. There is a broad spectrum of countries in that category, from Algeria right the way down to New Zealand. It is a very broad spectrum in which the United States is but one country. We decided that there was no cogent reason why we should treat the US significantly differently from how we were minded to treat the other countries in the same schedule.

Lord Tebbit: I hope that the noble Baroness can help me because, as she knows, I am not a lawyer and I do not understand these things very well. If the tests are the same on both sides of the ocean, can she say why we have rarely been successful—in fact, I think we have never been successful—in extraditing from the United States an IRA alleged fugitive from justice?

Baroness Scotland of Asthal: The noble Lord will know that we have been successful in extraditing many people from the United States. Indeed, under the 2003 Act, so far we have had no refusals of whatever nature from the United States. All the applications that we have made have either been granted or are currently under consideration. So, in relation to the benefits of the 2003 Act, as opposed to what went on before, I can only reassure the noble Lord that that difficulty does not seem to be present now.

Lord Lester of Herne Hill: If all is as the Minister described, can she explain why Irish-Americans are opposing ratification?

Baroness Scotland of Asthal: I cannot answer the noble Lord on the issue of Irish-Americans, but I can tell the Committee that this matter is being vigorously debated in the United States Senate and that people are taking different views. One issue raised is whether Irish-Americans are influencing that, but I think that it would be wrong for me to comment. I should correct myself: earlier I think that I said Algeriawhen I meant Albania. I was conflating the two inappropriately.

Lord Thomas of Gresford: Does the Minister agree that all that has to be done now is for an American investigator, through a lawyer, to say that there is a case and we will send someone back to the United States? That is not the situation in the United States, where primary evidence is required to show that there is probable cause.

Baroness Scotland of Asthal: That is not right. Section 71 sets out clearly that the evidence would have to be sufficient to justify the issue of a warrant for the arrest of a person accused of that offence.

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