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Baroness Anelay of St Johns: After that comprehensive reply, it would be churlish to do other than say that I will make sure that the Law Society of Scotland has a good look at this. I agree withthe noble Lord that, with regard to the third interpretation of the potential consequences, it would be wrong to prevent information going to the commissioner. I shall seek the advice of the Law Society of Scotland and I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 45 agreed to.

Clause 46 agreed to.

[Amendments Nos. 185B to 185R had been retabled as Amendments Nos. 191B to 191R.]

Lord Kingsland moved Amendment No. 186:

The noble Lord said: In moving AmendmentNo. 186, I shall speak to the other amendments in the group. I shall speak also to Amendments Nos. 187 to 190 because, although they deal with a distinct matter, in a sense the two groups of amendments run together.

The issues raised by the amendments deal with two matters. The first is treaty ratification; the second is reciprocity—that is, the fairness of the test contained within the treaty itself. I shall begin by dealing with ratification, although necessarily, as I seek to develop my argument, I shall make some reference to reciprocity.

Our starting point is the existing international law between ourselves and the United States—the extradition treaty of 1972. That treaty still defines the international law obligations between the two countries. It is, broadly speaking, a treaty which contains tests which are balanced. If the United States wishes to extradite someone from the United Kingdom, it has to meet what is known as a prima facie case to succeed. Equally, when we apply to extradite somebody from the United States, we have to meet the test of probable cause. There is much debate in international law about the extent to which these two categories are balanced; but, broadly speaking, I think it is accepted that they are.

On 31 March 2003, Mr David Blunkett andMr John Ashcroft, respectively at that time, the Home Secretary of the United Kingdom and the Attorney General of the United States, signed a new extradition treaty. I say in passing that no prior notice was given to Parliament of the terms of this treaty before it was signed. Indeed, as far as I am able to determine, no one, outside Government, appears to have got wind of what was going on.

The whole question of parliamentary oversight of treaty negotiations was raised tantalisingly by the noble Lord, Lord Lester of Herne Hill, in his debate on prerogative powers earlier in the year. Although I

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shall not develop the arguments now, I believe that the manner in which that treaty was concluded deserves the closest attention of your Lordships' House.

From our point of view, the most important thing about this treaty is that it changed the reciprocity test. Although we have to continue to show probable cause to the United States Government when seeking somebody’s extradition from the United States, the prima facie case no longer applies. That point was very fairly dealt with by the noble Baroness, Lady Scotland, during the debate on the Extradition Act 2003 (Designation of Part 2 Territories) Order 2003. She said that,

The treaty is what today's debate is fundamentally about. The treaty needs to be ratified by both parties to give it binding effect in international law. Until it is ratified by both parties, the 1972 treaty in international law prevails. We are still waiting for the 2003 treaty to be ratified by the United States.

Meanwhile, in November 2003, the Extradition Bill became law. I need to refer to two provisions of the Bill, though telegraphically. The relevant part of the Bill is Part 2; Part 1 deals with arrest warrants. Section 84 of Part 2 provides for extradition to territories other than those covered by the European arrest warrant. In particular, Section 84(1) states that, faced with an extradition request, a judge must decide whether there is sufficient evidence to make a case requiring an answer from the subject of the request. That is to say, Section 84(1) establishes and repeats the prima facie rule. However, under Section 84(7), the need for prima facie evidence is excluded if the Secretary of State makes a designation so saying.

That further designation was made under the Extradition Act by an order which came before your Lordships' House in December 2003. Under that order, the United States was one of a number of paragraph 2 countries, most of which were signatories to the European Convention on Extradition. The act of designation by that order—its approval by both Houses of Parliament—meant that from 1 January 2004, we were required to meet our side of the bargain struck by Mr Blunkett in that treaty even though there was no obligation on the United States to meet its.

That point was freely admitted by the noble Baroness, Lady Scotland, in the December debate, but she was optimistic. She said:

the new year of 2004—

Yet, here we are, two and a half years later. The United States has done nothing about ratification, in breach of the rules of international comity. But we

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have been acting as though the United States had ratified that treaty, to the astonishment of a number of Americans, some of whom gave evidence to the relevant Senate committee in November last year. We have been acting on the basis of a treaty that, as yet, forms no part of international law. That explains the first of our amendments—Amendment No. 186—which would simply remove the United States from the designation of Part 2 territories until ratification takes place.

We believe that the time has come for your Lordships' House to act. The United States Senate is, after all, another upper House in an English speaking world; and we hope that a firm signal from your Lordships' House would be taken seriously by the United States Senate.

5.30 pm

There are two other amendments in this group—Amendments Nos. 191 and 191A. We intend to withdraw Amendment No. 191 in favour of Amendment No. 191A tabled by the noble Lord, Lord Goodhart. We are able to support that amendment although we are not totally content with it as it stands. We do so to give the other place the chance to consider the underlying operation of the treaty, and we do so with one very significant reservation—that when it gets to the other place, it must be revised to remove its application to acts of terrorism so as to ensure that we can maintain quick and efficient extradition of terrorists, which is a principle that I know the whole of your Lordships' House supports.

I move on to the question of reciprocity. I shall make no observations about the substance of the case known colloquially, in all the newspapers, as the case of the NatWest Three. However, it is fair to say that their case has thrown up a number of weaknesses in the treaty negotiated by Mr Blunkett as well as in the Extradition Act 2003. I shall pay some attention to both of them.

First, there has been no attempt whatever by the Government to incorporate the forum rules contained in the 1957 European Convention on Terrorism to which we are parties, although the United States is not. Article 7.1 of the convention is reflected, in essence, in our Amendment No. 189, which says:

That amendment in essence reflects terms to which we agreed in the 1957 treaty and the Council framework decision of 13 June 2004 on the European arrest warrant. It hands over to a judge the power to decide not whether there is a prima facie case but whether the nature of the offence, in all the circumstances, ought to be tried in the United

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Kingdom rather than the United States. In reaching that decision, the judge would take into account a number of factors—such as territoriality, the availability of witnesses, the nature of the evidence and the availability and admissibility of that evidence. This approach has been well established in Europe for many decades; and we see no reason why they should not apply to the extradition treaty and the Act applying to it between the United States and ourselves.

One interesting thing about the extradition treaty between Ireland and the United States is that it contains precisely that qualification. Like us, the Irish are no longer demanding prima facie evidence, even though the United States continues to demand probable cause. But the Irish Government have insisted that the courts apply a forum test. That is totally absent from the Extradition Act 2003, and we believe that it should be included.

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 Clause 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

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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 which a country treats its criminally accused as absolutely central to the way in which it is defined as an open, free and democratic society following the rule of law. That has been said by many great men; it is not an original observation. Quite frankly, the evidence that the Committee has before it today is that the circumstances surrounding the ratification of the treaty, and the degree of reciprocity within it, raises further serious question marks about whether we meet that free society test. I beg to move.

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 Kingsland: No.

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.



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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 accepted in December 2003, when, in the course of the debate on the order, she made the statement that has been read to your Lordships by the noble Lord, Lord Kingsland. That is quite different from the Minister’s answer to the question from the noble Lord, Lord Anderson, in your Lordships’ House last Tuesday, when she said there was no such difference. That line was repeated by the Prime Minister in his reply to a question from my right honourable friend Sir Menzies Campbell last Wednesday, when he said:

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,

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

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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)—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 was 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.

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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.

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

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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.

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.



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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 their responsibility to their citizens would put it at the top of their wish list in any negotiations with another power, however friendly that power might be. Yet this Government have entered into a treaty with the United States where such reciprocity appears to be but a distant aspiration. This is recklessness and irresponsibility towards their citizens on a large scale and is in contrast to the safeguards in other European countries which as a matter of course extend protection to their citizens.

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.

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