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We have entered into a binding obligation with our European partners which in terms gives the judge, not the prosecutor, the power to decide whether or not somebody should be extradited. I can think of nothing less desirable than giving this power to the prosecutor. You can just imagine what might happen; the prosecutors in the United Kingdom and the United States get together over an issue and they do a deal over whether or not somebody should be extradited. There is no judicial intervention or objective analysis of the interests of the person whose freedom is in issue. The whole proposition that these matters of extradition ought to be in the hands of the prosecutor rather than the judge is quite alien to our traditions; yet it is precisely what the treaty requires us to do. I ask your Lordships to reject the argument upon which the noble Baroness founded her contention—that these matters are much better dealt with by prosecutors.
There is also a deeper unfairness here. What made the United Kingdom give way on the Article 7.1 point? No other country has done so. Both France and Denmark have bilateral treaties with the United States; but France refuses to extradite any French citizen under any circumstances and, in the case of Denmark, the forum provision applies. If the offence in issue is partly committed in Ireland, it will be tried in Ireland unless the interests of justice dictate otherwise. Why on earth did we not have a similar
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Then there is the question of the relationship between the Human Rights Act and the extradition treaty—a relationship dealt with in Section 87(1) of the Extradition Act. Here I think that the Government deserve a little more understanding because in the course of the debate on the then Extradition Bill the Government made it quite clear that the Human Rights Act applied. But in a recent Court of Appeal decision in relation to the NatWest Three, the court decided that where there is a conflict between the Human Rights Act and the American extradition treaty, the extradition treaty trumps the Human Rights Act. So all the protections of the Human Rights Act, which we assumed would be there when the Extradition Bill was debated, seem to have evaporated. That is also a matter of considerable concern.
The noble Baroness explained at great length to your Lordships why she believes that these amendments are misplaced. I believe that they are essential to restore what I consider to be a balanced arrangement with the United States. This treaty is deeply unfair. I simply do not understand why citizens in the United States should have one level of protection and we should have another. I beg to move.
Moved, as an amendment to Motion D, leave out from “House” to end and insert “do insist on its Amendment No. 36, but do not insist on its Amendment No. 85”.—(Lord Kingsland.)
Lord Goodhart: My Lords, since your Lordships’ House last debated this issue the Senate has, as the Minister pointed out, consented to the ratification by the President of the 2003 treaty. That treaty confers some benefits on the United Kingdom such as the right of extradition to the United Kingdom even if the prosecution would be time barred in the USA. That is something I have always recognised. The ratification does not remove the main objections to the treaty, which are, first, the unequal nature of the treaty and, secondly, the fact that the treaty assists the aggressive use by the United States of extra-territorial jurisdiction.
Amendment No. 36 cancels the designation of the USA under the order made in December 2003 as a country to which people can be extradited without establishing probable cause, or indeed a prima facie case, under the Act. The Liberal Democrats—and we alone—voted against the order in both Houses in December 2003 on the ground of its inequality. Amendment No. 36 was rejected by the House of Commons in the debate on 24 October. In that debate, the Government relied yet again on the old chestnut that there is in fact no real inequality. That is
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It is true that, under Section 71 of the Extradition Act, the USA must provide information that enables it to get a warrant for the arrest of the defendant with a view to his or her extradition from the United Kingdom. For obvious reasons, where an arrest warrant is being sought, no notice is given to the defendant of the application for the warrant. Information on which it is based is not shown to the defendant. There is no hearing. The first the defendant knows of the application is when he or she is arrested. Then an extradition hearing follows, but where the country requesting the extradition has, like the United States, been designated under Section 84(7), there can be no review at the hearing of the adequacy of the evidence or information against the defendant.
For extradition from the USA to the United Kingdom, the position is quite different. The United Kingdom has to show probable cause at the extradition hearing. The existence of probable cause can be challenged by the defendant at the hearing. The information relied on by the United Kingdom is disclosed to the defendant and can be challenged. The defendant is able to argue that the information is in fact insufficient to amount to probable cause. That is entirely different from an application for an arrest warrant on its own, carried out in the total absence and ignorance of the defendant. That is spelled out in the treaty in Article 8.3, which says that,
- “a request for the extradition of a person who is sought for prosecution shall be supported by ... for requests to the United States, such information as would provide a reasonable basis to believe that the person sought committed the offence for which the extradition is sought”.
There is no requirement for any corresponding information for extradition from the United Kingdom to the United States. That on its own makes it clear beyond doubt that there was a deliberate decision of those who drafted the treaty that there was to be a significant difference in procedure between extradition from the United States and extradition from the United Kingdom.
Lord Lloyd of Berwick: My Lords, I wonder whether the noble Lord can help me. As he has pointed out, the imbalance is contained in the treaty in Article 8.3. In what way would the proposed amendment help to resolve that imbalance?
Lord Goodhart: My Lords, the proposed amendment would of course make it impossible for Her Majesty’s Government to exchange instruments of ratification, which they obviously will do as soon as this matter is disposed of. It would therefore force the Government to a renegotiation of the treaty with the United States. That is the objective that we seek. The same is equally true of the legislation as to forum. That would also force a renegotiation of the treaty. Given that the amendments in groups D and F have been spoken to by the noble Lord, Lord Kingsland, I assume that that is his position also. He is nodding his head in concurrence.
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There is a conflict between interest and duty. It is in the interest of a state requesting extradition that extradition proceedings should be swift and simple. It is the duty of the state to which the request has been made to protect its citizens and residents from unjustifiable requests for extradition. These must be balanced. It may be legitimate for the United Kingdom to surrender a degree of protection of its citizens and residents in order to obtain a simpler extradition treaty with another country. It is not legitimate for the United Kingdom to surrender protection for its citizens without also getting a simpler procedure for extradition to the United Kingdom. That is what has happened here.
I shall briefly explain why I have not insisted on our Amendment No. 85, which was originally tabled in my name. First, it is not necessary. Its purpose is to ensure that if Amendment No. 36 is passed, the Government could not bring in a new order to the same effect. If Amendment No. 85 were not made, then the Government could do that, but they might well meet insuperable difficulties in obtaining the approval of your Lordships’ House if it had insisted on the inclusion of Amendment No. 36. If that amendment were passed, your Lordships would be justified in rejecting any new order for that purpose.
I have another reason for not insisting on Amendment No. 85. My understanding is that it would not have the support of the Conservatives and would therefore have no chance of succeeding. In Committee, the noble Lord, Lord Kingsland, said that although he supported it, the amendment should be modified so that it did not apply to the extradition of terrorists. We would be unable to accept such a modification. Anyone suspected of terrorism has the same right to a fair trial in this country and to protection from improper extradition to a foreign country as someone suspected of any other grave crime. Anyone extradited to the United States will face hardship; but hardship faced by someone who is unjustifiably extradited for terror-related crime is likely to be far more severe than the hardship of someone who is unjustifiably extradited for a white-collar crime.
Amendments Nos. 81 and 84 relate to the “forum” question and aim to deal with the problem of the aggressive use of extradition requests by the United States in cases where the US is not the most appropriate forum. However, those amendments would have a much wider application. Amendment No. 83 would apply to category 1 countries, which are mostly in the European Union, and Amendment No. 84 would apply to category 2 countries, including the USA. That is not a problem in most cases. The effect of the amendments is that if part of the alleged offence has been committed in the United Kingdom, the judge conducting the extradition hearing can extradite the defendant only if it is in the interest of justice that that person should be tried in the requesting state. That is perfectly compatible with article 4.7(a) of the framework decision on the European arrest warrant, and there is a similar provision in article 7.1 of the Council of Europe Convention on Extradition, which covers extradition to many category 2 countries.
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The problem lies with the 2003 treaty, which has no provision to enable a United Kingdom court to refuse extradition on grounds that that would be unjust. There are many reasons why extradition could be unjust. They include not only the basic fact of the residence of the defendant and the witnesses, but also that the USA makes extradition claims where there is no real connection with that country—for example, where the only link is the location of an internet service provider in the USA—and the use in the USA of draconian sentences, coupled with very large discounts for guilty pleas to an extent that puts pressure on innocent defendants to plead guilty.
According to an article sometime ago in the Wall Street Journal, no less than 97.5 per cent of defendants accept plea bargains. There is also the use of coerced evidence, including evidence from Guantanamo Bay, which would not be admissible in the United Kingdom, and great difficulty in obtaining bail. The grant to the NatWest Three may well have been a one-off, prompted by the desire of the United States Government to prevent rejection of the treaty in the United Kingdom.
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The Minister has referred to negotiations which will take place between prosecutors. That is an inappropriate solution. Where the dispute is as to forum, the court should decide and not the prosecutors. We therefore strongly support Amendments Nos. 81 to 84. Amendments Nos. 83 and 84 are supported in a letter sent to Members of the House of Commons by four organisations: Justice—in which I declare an interest as a vice-chairman—Liberty, the CBI and the Institute of Directors. Those organisations do not very often join in the same campaign, but when they do, surely, they should be listened to.
The adverse consequences here would be some delay in extradition hearings because the process might take longer and take more preparation. That is true, but I do not believe that the delay would be significant. The main cause of delay before the Extradition Act 2003 was the number of times that the Home Secretary had to take decisions before anyone could be extradited, with each decision being liable to judicial review. The delay caused by these amendments would be slight by comparison.
I conclude where the noble Lord, Lord Kingsland, started. There is one plain lesson to be learnt from the trouble we have had with this. It is absolutely wrong for Parliament to have no role in the making of treaties apart from enacting the domestic legislation needed to implement them. The extradition treaty would have benefited from scrutiny before it became immutable. I believe that, as in the United States and in many other countries, treaties should not be ratified without parliamentary approval. I accept that that may be for the somewhat longer term, as part of a reassessment of the so-called Royal prerogative—in practice, the Prime Minister's prerogative—which I believe is plainly a constitutional necessity. However, I see no reason why we should not immediately press for an undertaking from the Government that, in future, treaties should not be ratified until a
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Lord Bridges: My Lords, in her introductory remarks, the noble Baroness explained in general terms the new agreement that has been reached with the United States on this matter. I listened carefully, but I did not pick up from her remarks any precise description of the nature of this document. It does not sound to me as if it is a new treaty; I suppose it might be a document to be attached to the treaty but presumably not ratified. My fear is that it is a letter written by the United States to ourselves which explains in general terms how they hope that the agreement might work out. In that case, it has no legal force. The answer to that question will be very relevant to the future of this whole subject.
Lord Anderson of Swansea: My Lords, the House has had the benefit of very weighty legal arguments, but those arguments on the alleged imbalance in respect of the evidential burden and in respect of the forum were largely the same as those adduced during the July debates. It is as if nothing has happened since the July debates which, as your Lordships will recall, largely turned on the context of the three British businessmen who are called by their supporters the “NatWest Three” and by those who do not support them the “Enron Three”. In my judgment, something of significance has happened since the July debate and the House should take note of that.
The debate in July, which turned on questions of fairness and reciprocity, was proper and it strengthened my noble friend’s hand in Washington. The outcome seems to be better than many of us had assumed. I refused to support the Government in the July debate and was highly sceptical that my noble friend could persuade the US legislators to change their position. I now confess that I was wrong and my noble friend was far more persuasive than I had imagined. I had assumed that we were in the hot atmosphere of the debates prior to the mid-term elections and that legislators asking, “How many votes do you have?” would be the decisive factor. Indeed, we know that the US Senate Committee on Foreign Relations has, according to its constitutional function, given its advice and consent, which is important.
We also know that if the amendments were carried, the treaty would fall. The treaty has important consequences for our citizens—in my judgment, far more important than the concerns expressed about them. I therefore congratulate my noble friend. Having gone to the US surrounded by the scepticism of many of us, she persuaded her US counterparts on this issue. She did not have to persuade the Executive because the US Administration were already on side; it was the legislature that had to be persuaded. We must concede that she has brought about a sea change and should be congratulated.
In my judgment, it is therefore important for us to ratify the treaty. It is certain that we would not be able
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Finally, I note that the noble and learned Lord the Attorney-General is discussing with his US counterpart, Mr Gonzales, protocols which would affect the choice of forum. We know that the question has been live since July and for some time previously. As the protocols are broadly accepted—we are told that the protocols will be agreed shortly—it is unfortunate that they have not been brought before the House so that we could reach a judgment on them. That said, it is clear that there has been a substantial change since July. It was important that we had the debate then and were able to strengthen the hands of my noble friend to convince our US friends of our legitimate concerns. Therefore, in those changed circumstances, I am ready to support my noble friend and congratulate her on what she did in the US.
Lord Monson: My Lords, as we are being denied a separate debate on Motions F and F1—albeit by general agreement—perhaps I may, as a layman, point out that an eminent Queen’s Counsel in another place, who happens to be a distinguished member of the Minister’s party, agreed with her on Lords Amendment No. 36—the subject of Motions D and D1—but strongly disagreed with her on Lords Amendments Nos. 81 to 84 inclusive, the subjects of Motions F and F1. Many other honourable Members on the Government Benches felt exactly the same way. That is why the Government’s majority on the second set of amendments eight days ago was very much narrower. I mention that because, although some noble Lords may feel that the Government have a case over Motions D and D1 for the reasons set out just now by the noble Lord, Lord Anderson of Swansea, they may take a very different view over Motion F1, where I think the Government have absolutely no case at all.
Lord Richard: My Lords, perhaps I may follow my noble friend Lord Anderson because, in a sense, his position and mine are virtually identical. In the earlier debates, I was extremely sceptical and doubtful about whether my noble friend would achieve anything when she went to the Senate. Indeed, I was even doubtful about what she would say to members of the Senate that might induce them to change their minds. I was wrong. My noble friend obviously did a superb job, the result of which is that the Senate is now prepared to recommend, in that they are advising consent, that the treaty be ratified.
I want to make two points: one is quasi-legal and the other more practical. As presently drafted, the treaty is in the interests of the United Kingdom. We need it. I have not heard a word from the other side about the circumstances in which it benefits the United Kingdom, which it clearly does. It gives us advantages in getting people back from the United States to this country. I am rather in favour of that and I should have thought that most Members of this
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That brings me to my second point, which concerns the practicalities. If we insist on these amendments, then, in the words of the noble Lord, Lord Goodhart—this is his objective—the treaty will have to be renegotiated. After next Tuesday, there will be a different Senate. If the treaty goes back to the Senate in the new form—there are bound to be some changes and there will be a new session of the Senate—there is no guarantee whatever that it will be accepted. If it is not accepted, we shall be right back at square one, which, frankly, is not a position that I would be prepared go back to.
By and large, I accept what my noble friend said. If there is a vote tonight, I shall support the Government, whereas I am afraid I was not in a position to do that in July.
Lord Morgan: My Lords, I am not a lawyer. I think that I am the only person to speak who has no legal training, but, as they say, law is too important a matter to be left to lawyers and this matter has social, philosophical and economic aspects that involve us all.
I supported the Government in the initial vote. I think that the noble Baroness will confirm that I was a lone voice—perhaps a rather surprising one—among the Labour Peers in giving her my warm support. I am afraid that, when I heard the speeches from the opposition Benches, I was much influenced by the famous remark of Tom Paine in The Rights of Man:
We had a great deal of legalistic plumage that was stroked and admired, but the point is that there are new kinds of international and global crimes from which we need legal and other protection.
I make three points. The first has already been made and I am delighted to be on the same side as my noble friend and former pupil, Lord Anderson, who spoke with great wisdom, as he always does, on the considerable improvements that have been gained by the noble Baroness. Frankly, it would then seem to be totally absurd to erect the much higher and, as my noble friend Lord Richard said, totally impossible barrier of trying to negotiate a new treaty. That is not a serious proposition in the real world of politics, nor, I suspect, in the real world of the law, although I sometimes wonder where that is located.
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