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I said at the outset that I would deal with all the other amendments in opening; I have done so. I shall now deal with the other amendments in closing. Central to the response of the noble Baroness has been her contention that the tests in the treaty signed by Mr Blunkett and Mr Ashcroft are essentially of equal weight. That is not something that she said in response to the debate on the 2003 provision; but she is saying it now.
I draw the attention of the noble Baroness to Article 8 of the 2003 extradition treaty. That deals with extradition procedures and required documents. Paragraph 3 states:
“In addition to the requirements in paragraph 2 of this Article, a request for extradition of a person who is sought for prosecution shall be supported by:
(c) 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”.
There is no equivalent provision in the article for the United Kingdom. I simply do not believe it credible that the assertions of the noble Baroness about probable cause, made in response to the noble Lord, Lord Goodhart, can possibly be right.
The noble Baroness dealt very briefly with the issue of forums. We have signed a treaty not just with our European partners, but with all those European states which have signed up to the European convention, enshrining the forum concept contained in our Amendment No. 189. That provides that the judge ought to decide, in all the circumstances of the case, if an offence was capable of being prosecuted in this country, whether it should be prosecuted here or go abroad—whether to the United States or otherwise. That is a very simple amendment that the noble Baroness could make to the Extradition Act 2003. She has given no indication that she intends to do so. That would be an easy way out for her. If we had that forum test, it would prevent further pressure being placed on her to renegotiate the treaty itself.
As for the human rights protections, I was very surprised to hear the noble Baroness saying that she thought that the human rights issues had been dealt with satisfactorily by the Court of Appeal. Of course they had in the context of the existing law but, in terms of an appropriate balance between the extradition treaty and the human rights convention, the decision of the Court of Appeal revealed that amendments are necessary to rebalance the rights of individuals when they face extradition proceedings.
A number of noble Lords suggested that the Minister had conducted her response extremely charmingly but equally extremely unpersuasively. If I had received a set of instructions, such as those given to the Minister, from a solicitor, I would certainly
11 July 2006 : Column 651
7.10 pm
On Question, Whether the said amendment(No. 186) shall be agreed to?
Their Lordships divided: Contents, 218; Not-Contents, 116.
Addington, L.
Anelay of St Johns, B.
Arran, E.
Astor, V.
Astor of Hever, L.
Attlee, E.
Barker, B.
Bell, L.
Best, L.
Bhatia, L.
Biffen, L.
Blackwell, L.
Blaker, L.
Bledisloe, V.
Bonham-Carter of Yarnbury, B.
Bridgeman, V.
Brooke of Sutton Mandeville, L.
Brougham and Vaux, L.
Buscombe, B.
Byford, B.
Carnegy of Lour, B.
Chadlington, L.
Chester, Bp.
Chidgey, L.
Clement-Jones, L.
Colville of Culross, V.
Colwyn, L.
Condon, L.
Cope of Berkeley, L. [Teller]
Cotter, L.
Courtown, E.
Craigavon, V.
Crickhowell, L.
Currie of Marylebone, L.
Darcy de Knayth, B.
De Mauley, L.
Dean of Harptree, L.
Denham, L.
Dholakia, L.
Dixon-Smith, L.
D'Souza, B.
Dykes, L.
Eccles, V.
Eccles of Moulton, B.
Eden of Winton, L.
Elles, B.
Elliott of Morpeth, L.
Elton, L.
Erroll, E.
Falkland, V.
Falkner of Margravine, B.
Feldman, L.
Ferrers, E.
Finlay of Llandaff, B.
Fookes, B.
Foster of Thames Bank, L.
Freeman, L.
Fritchie, B.
Garden, L.
Gardner of Parkes, B.
Garel-Jones, L.
Geddes, L.
Glasgow, E.
Glenarthur, L.
Glentoran, L.
Goodhart, L.
Goodlad, L.
Greaves, L.
Greenway, L.
Griffiths of Fforestfach, L.
Hamwee, B.
Hanham, B.
Hannay of Chiswick, L.
Hanningfield, L.
Harris of Richmond, B.
Hayhoe, L.
Henley, L.
Higgins, L.
Hodgson of Astley Abbotts, L.
Hogg, B.
Holme of Cheltenham, L.
Hooper, B.
Howard of Rising, L.
Howarth of Breckland, B.
Howe, E.
Howe of Aberavon, L.
Howe of Idlicote, B.
Howell of Guildford, L.
Hunt of Wirral, L.
Hylton, L.
Inglewood, L.
Jenkin of Roding, L.
Kimball, L.
King of Bridgwater, L.
Kingsland, L.
Kirkhill, L.
Kirkwood of Kirkhope, L.
Knight of Collingtree, B.
Laidlaw, L.
Laing of Dunphail, L.
Lamont of Lerwick, L.
Lawson of Blaby, L.
Lee of Trafford, L.
Lester of Herne Hill, L.
Lindsay, E.
Linklater of Butterstone, B.
Listowel, E.
Liverpool, E.
Livsey of Talgarth, L.
Lloyd-Webber, L.
Lucas, L.
Luke, L.
MacGregor of Pulham Market, L.
MacLaurin of Knebworth, L.
McNally, L.
Maddock, B.
Marland, L.
Marlesford, L.
11 July 2006 : Column 652
Mawhinney, L.
Mayhew of Twysden, L.
Methuen, L.
Miller of Chilthorne Domer, B.
Miller of Hendon, B.
Monson, L.
Montgomery of Alamein, V.
Montrose, D.
Moonie, L.
Moran, L.
Morris of Bolton, B.
Moser, L.
Neuberger, B.
Newby, L.
Newcastle, Bp.
Newton of Braintree, L.
Noakes, B.
Northesk, E.
Norton of Louth, L.
Oakeshott of Seagrove Bay, L.
O'Cathain, B.
Oppenheim-Barnes, B.
Ouseley, L.
Palmer, L.
Patten, L.
Pearson of Rannoch, L.
Phillips of Sudbury, L.
Pilkington of Oxenford, L.
Plumb, L.
Plummer of St. Marylebone, L.
Rawlings, B.
Razzall, L.
Reay, L.
Redesdale, L.
Rees-Mogg, L.
Renton, L.
Renton of Mount Harry, L.
Roberts of Conwy, L.
Roberts of Llandudno, L.
Rodgers of Quarry Bank, L.
Roper, L.
Rotherwick, L.
Russell-Johnston, L.
Saatchi, L.
Sainsbury of Preston Candover, L.
St John of Fawsley, L.
Saltoun of Abernethy, Ly.
Sanderson of Bowden, L.
Sandwich, E.
Seccombe, B.
Selkirk of Douglas, L.
Selsdon, L.
Sharp of Guildford, B.
Sharples, B.
Shaw of Northstead, L.
Sheikh, L.
Shephard of Northwold, B.
Shutt of Greetland, L. [Teller]
Skelmersdale, L.
Soulsby of Swaffham Prior, L.
Southwell and Nottingham, Bp.
Steinberg, L.
Stern, B.
Stevens of Kirkwhelpington, L.
Stoddart of Swindon, L.
Strathclyde, L.
Swinfen, L.
Taverne, L.
Taylor of Holbeach, L.
Taylor of Warwick, L.
Tebbit, L.
Tenby, V.
Teverson, L.
Thatcher, B.
Thomas of Gresford, L.
Thomas of Swynnerton, L.
Thomas of Walliswood, B.
Thomas of Winchester, B.
Tonge, B.
Tordoff, L.
Trefgarne, L.
Trumpington, B.
Tyler, L.
Ullswater, V.
Vallance of Tummel, L.
Verma, B.
Vinson, L.
Waddington, L.
Wade of Chorlton, L.
Wakeham, L.
Wallace of Saltaire, L.
Walmsley, B.
Walpole, L.
Wilcox, B.
Williams of Crosby, B.
Williams of Elvel, L.
Williamson of Horton, L.
Willoughby de Broke, L.
Windlesham, L.
Adonis, L.
Alli, L.
Amos, B. [Lord President.]
Andrews, B.
Archer of Sandwell, L.
Bach, L.
Bassam of Brighton, L.
Bernstein of Craigweil, L.
Brett, L.
Brooke of Alverthorpe, L.
Brookman, L.
Burlison, L.
Campbell-Savours, L.
Carter of Coles, L.
Chandos, V.
Christopher, L.
Clark of Windermere, L.
Clarke of Hampstead, L.
Corston, B.
Crawley, B.
Cunningham of Felling, L.
Davidson of Glen Clova, L.
Davies of Coity, L.
Davies of Oldham, L. [Teller]
Desai, L.
Dixon, L.
Donoughue, L.
Drayson, L.
Dubs, L.
Evans of Parkside, L.
Evans of Temple Guiting, L.
Falconer of Thoroton, L. [Lord Chancellor.]
Farrington of Ribbleton, B.
Faulkner of Worcester, L.
Ford, B.
Foster of Bishop Auckland, L.
Fyfe of Fairfield, L.
Gale, B.
Gavron, L.
Gibson of Market Rasen, B.
11 July 2006 : Column 653
Gilbert, L.
Golding, B.
Goldsmith, L.
Gordon of Strathblane, L.
Gould of Brookwood, L.
Grantchester, L.
Griffiths of Burry Port, L.
Grocott, L. [Teller]
Harris of Haringey, L.
Harrison, L.
Hart of Chilton, L.
Haskel, L.
Henig, B.
Hilton of Eggardon, B.
Hogg of Cumbernauld, L.
Hollis of Heigham, B.
Howarth of Newport, L.
Howie of Troon, L.
Hughes of Woodside, L.
Hunt of Kings Heath, L.
Jones, L.
King of West Bromwich, L.
Kingsmill, B.
Lea of Crondall, L.
Leitch, L.
Lipsey, L.
Lofthouse of Pontefract, L.
McDonagh, B.
McIntosh of Hudnall, B.
MacKenzie of Culkein, L.
Mackenzie of Framwellgate, L.
McKenzie of Luton, L.
Mason of Barnsley, L.
Massey of Darwen, B.
Morgan, L.
Morgan of Drefelin, B.
Morgan of Huyton, B.
Morris of Handsworth, L.
Patel of Blackburn, L.
Pendry, L.
Pitkeathley, B.
Prosser, B.
Prys-Davies, L.
Quin, B.
Ramsay of Cartvale, B.
Randall of St. Budeaux, L.
Rendell of Babergh, B.
Robertson of Port Ellen, L.
Rooker, L.
Rosser, L.
Rowlands, L.
Royall of Blaisdon, B.
Sawyer, L.
Scotland of Asthal, B.
Simon, V.
Smith of Leigh, L.
Snape, L.
Soley, L.
Symons of Vernham Dean, B.
Taylor of Bolton, B.
Temple-Morris, L.
Thornton, B.
Tomlinson, L.
Trimble, L.
Truscott, L.
Tunnicliffe, L.
Turnberg, L.
Turner of Camden, B.
Wall of New Barnet, B.
Warwick of Undercliffe, B.
Whitaker, B.
Whitty, L.
Wilkins, B.
Woolmer of Leeds, L.
Young of Norwood Green, L.
Resolved in the affirmative, and amendment agreed to accordingly.
7.23 pm
Lord Kingsland moved Amendment No. 187:
“(j) forum.”;”The noble Lord said: I believe that Amendments Nos. 188, 189 and 190 are consequential on Amendment No. 187. I have already spoken to the amendment and I beg to move.
Baroness Scotland of Asthal: This group of amendments were briefly alluded to in our debate on the previous group, but the arguments were not developed. It is our view that these two groups are significantly different from each other. In order to complete those arguments, it may be right for me to put on record our fuller contentions. Bearing in mind the previous vote, I appreciate that a Division on this amendment is likely to have the same result. So, to complete the slap which this House wishes to give the other place, I want to make it plain that on behalf of the Government I did justice to the arguments that were put.
The effect of the amendments would be to require the district judge in an extradition hearing to decide whether the wanted person should be tried in the
11 July 2006 : Column 654
That part of the amendment which requires the judge to take into account whether the competent UK authorities have decided not to prosecute would introduce a possible cause of delay to extradition proceedings, as judges might have to adjourn to ascertain the position of those authorities which may not even be aware of the allegation. If the authorities decline to take a decision on these matters, to what extent would that help the judge decide whether it is in the interest of justice that a person should be tried in the requesting state? Those matters were not dealt with by the noble Lord, Lord Kingsland.
Even if the judge had such a thing as a clear decision before him, would that really assist him? A decision not to prosecute domestically might bean indication that the circumstances favoured prosecution taking place in the requesting state; but that is not a test which our prosecuting authorities are required to apply. Nor could a judge take such a decision as an indication that no prosecution should take place, even in the requesting state. A decision on that basis would risk breaching our international obligations to the state which has decided that it is able to try the wanted person.
In summary, this part of the amendment would not have the effect that the noble Lord anticipates. It would not provide the necessary assistance to the judge. Although both the framework decision onthe European arrest warrant and the European Convention on Extradition have an optional ground for refusal of extradition where the offence was committed in whole or in part in the territory of the requested state, the United Kingdom has chosen not to implement this ground for refusal explicitly inits law.
The United Kingdom has in the 1989 and the 2003 Extradition Acts implemented a slightly different ground for refusal. It is based on dual criminality where the offences for the wanted person were committed outside the requesting state. In the interests of justice, the United Kingdom took the view when enacting both Acts, that extradition could proceed where the person was wanted for conduct committed at least partly in the United Kingdom, providing that the UK had the same jurisdiction to try the conduct if it had occurred outside the UK. That degree of flexibility is important in many extradition cases where the person is wanted for complex cross-border crimes concerning, for example,
11 July 2006 : Column 655
Finally, if there was to be any way forward on the issue of forum, it would have to take into account the need not to fetter the discretion of our independent prosecuting authorities. It would have to be a solution that would not introduce unnecessary delays in the system. It would have to meet our international obligations; and it would indeed have to operate in the interests of justice. We have a proud history of our prosecutors being able to make independent decisions free from the Executive and free from any other improper influence. I therefore urge your Lordships not to confuse the two amendments—they are separate and distinct—and not to press this amendment at this time. Having had a resounding success, I invite the noble Lord, Lord Kingsland, to be content with that and not to press this amendment at this stage.
Lord Kingsland: I spoke to these amendments at an earlier point and there is only one additional matter to which I wish to draw the attention of noble Lords. I am prompted to do so by the comments of the noble Baroness about the appropriateness of the judiciary making judgments about forums.
The United Kingdom has been a party to two European conventions; one is the Council Framework Decision of 13 June 2000 on the European arrest warrant and surrender procedures and the other is the European Convention on Extradition. Paragraph 7 of Article 4 of the Council Framework Decision states:
- (a) are regarded by the law of the executing member state as having been committed in whole or in part in the territory of the executing member state or in a place treated as such”.
So during the term of office of this Government they have agreed, on behalf of the United Kingdom, to that clause in that decision. It is quite plain that we think a judge is entitled to take that decision. Similar provisions are set out in Article 7 of the European Convention on Extradition.
Lord Tebbit: I wonder if my noble friend could help me on a point. I have heard several references this evening to the Enron Three. Who are these three people who presumably have been convicted in a court of law of having some connection with Enron?
Lord Kingsland: I share the conclusion reached by my noble friend. I understood them to be described as the NatWest Three because it has been alleged that they sought to defraud NatWest. I know nothing about any fraud on Enron.
11 July 2006 : Column 656
Baroness Scotland of Asthal: Since it was I who referred to the Enron Three, for his erudition I invite the noble Lord to look at paragraph 66 of the judgment of Lord Justice Laws and Mr Justice Ouseley who said that,
“It is important that on the prosecution case the benefit received by the defendants and their alleged co-conspirators was derived from funds paid by Enron on the strength of false representations made to the company by Fastow. Enron was deceived into parting with 20 million US dollars. What the director thought about the views of the City of London Police in 2002 is in my view neither here nor there”.
So the court thinks that they are the Enron Three.
Lord Kingsland: I am not aware, at this stage of the judgment, that the court is entitled to take any view about guilt or innocence. That, I thought, was the whole point of the noble Baroness’ argument right at the beginning.
Baroness Scotland of Asthal: I agree. I am simply seeking to clarify why I referred to them as the Enron Three. I did so because in the judgment it appears that the allegation—it is but an allegation—is that it was Enron which was defrauded in the way complained of. That is not my judgment; it is not what the Government say; I am simply referring to the judgment of Lord Justice Laws and Mr Justice Ouseley.
Lord Kingsland: If what was said in paragraph 66 of the judgment of the Court of Appeal was not intended as a reflection either on their innocence or guilt, how can that paragraph possibly be an answer to my noble friend’s question? I wish to test the opinion of the Committee.
7.34 pm
On Question, Whether the said amendment(No. 187) shall be agreed to?
Their Lordships divided: Contents, 192; Not-Contents, 109.
Addington, L.
Anelay of St Johns, B.
Astor, V.
Astor of Hever, L.
Attlee, E.
Barker, B.
Bell, L.
Best, L.
Biffen, L.
Blackwell, L.
Blaker, L.
Bledisloe, V.
Bonham-Carter of Yarnbury, B.
Bridgeman, V.
Brooke of Sutton Mandeville, L.
Brougham and Vaux, L.
Byford, B.
Carnegy of Lour, B.
Chadlington, L.
Chidgey, L.
Clement-Jones, L.
Colville of Culross, V.
Colwyn, L.
Condon, L.
Cope of Berkeley, L. [Teller]
Cotter, L.
Craigavon, V.
Crickhowell, L.
Currie of Marylebone, L.
Darcy de Knayth, B.
De Mauley, L.
Denham, L.
Dholakia, L.
Dixon-Smith, L.
D'Souza, B.
Eccles, V.
Eccles of Moulton, B.
Eden of Winton, L.
Elliott of Morpeth, L.
Elton, L.
11 July 2006 : Column 657
Falkland, V.
Falkner of Margravine, B.
Feldman, L.
Ferrers, E.
Finlay of Llandaff, B.
Fookes, B.
Freeman, L.
Fritchie, B.
Garden, L.
Gardner of Parkes, B.
Garel-Jones, L.
Geddes, L.
Glasgow, E.
Glenarthur, L.
Glentoran, L.
Goodhart, L.
Goodlad, L.
Greaves, L.
Griffiths of Fforestfach, L.
Hamwee, B.
Hanham, B.
Hanningfield, L.
Harris of Richmond, B.
Hayhoe, L.
Henley, L.
Higgins, L.
Hodgson of Astley Abbotts, L.
Hogg, B.
Holme of Cheltenham, L.
Hooper, B.
Howard of Rising, L.
Howe, E.
Howe of Aberavon, L.
Howe of Idlicote, B.
Howell of Guildford, L.
Hunt of Wirral, L.
Hylton, L.
Inglewood, L.
Jenkin of Roding, L.
Kimball, L.
King of Bridgwater, L.
Kingsland, L.
Kirkwood of Kirkhope, L.
Knight of Collingtree, B.
Laidlaw, L.
Laing of Dunphail, L.
Lamont of Lerwick, L.
Lawson of Blaby, L.
Lee of Trafford, L.
Lester of Herne Hill, L.
Lindsay, E.
Linklater of Butterstone, B.
Liverpool, E.
Livsey of Talgarth, L.
Lloyd-Webber, L.
Lucas, L.
Luke, L.
MacGregor of Pulham Market, L.
Mackie of Benshie, L.
MacLaurin of Knebworth, L.
McNally, L.
Maddock, B.
Marland, L.
Marlesford, L.
Masham of Ilton, B.
Mawhinney, L.
Mayhew of Twysden, L.
Methuen, L.
Miller of Chilthorne Domer, B.
Miller of Hendon, B.
Monson, L.
Montrose, D.
Morris of Bolton, B.
Moser, L.
Neuberger, B.
Newby, L.
Newcastle, Bp.
Noakes, B.
Northesk, E.
Norton of Louth, L.
Oakeshott of Seagrove Bay, L.
O'Cathain, B.
Oppenheim-Barnes, B.
Palmer, L.
Patten, L.
Pearson of Rannoch, L.
Phillips of Sudbury, L.
Pilkington of Oxenford, L.
Plumb, L.
Plummer of St. Marylebone, L.
Rawlings, B.
Razzall, L.
Reay, L.
Redesdale, L.
Rees-Mogg, L.
Renton, L.
Roberts of Conwy, L.
Roberts of Llandudno, L.
Rodgers of Quarry Bank, L.
Rotherwick, L.
Russell-Johnston, L.
Saatchi, L.
St John of Fawsley, L.
Saltoun of Abernethy, Ly.
Sanderson of Bowden, L.
Seccombe, B.
Selkirk of Douglas, L.
Selsdon, L.
Sharp of Guildford, B.
Sharples, B.
Shaw of Northstead, L.
Sheikh, L.
Shephard of Northwold, B.
Shutt of Greetland, L. [Teller]
Skelmersdale, L.
Slim, V.
Soulsby of Swaffham Prior, L.
Southwell and Nottingham, Bp.
Steinberg, L.
Stern, B.
Stoddart of Swindon, L.
Strathclyde, L.
Taverne, L.
Taylor of Holbeach, L.
Tebbit, L.
Teverson, L.
Thatcher, B.
Thomas of Gresford, L.
Thomas of Swynnerton, L.
Thomas of Walliswood, B.
Thomas of Winchester, B.
Tonge, B.
Tordoff, L.
Trefgarne, L.
Trumpington, B.
Tyler, L.
Ullswater, V.
Vallance of Tummel, L.
Verma, B.
Vinson, L.
Waddington, L.
Wade of Chorlton, L.
Wakeham, L.
Wallace of Saltaire, L.
Walmsley, B.
Walpole, L.
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