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However, there have been improvements. Many of the apprehensions initially expressed seemed to be ludicrous and have been disproved. It was said that these people would not get bail, and they have. It was said that there would be various objections in the courts and, in fact—although the noble Lord, Lord Kingsland, regretted it—the courts have repeatedly supported the Government’s position. The noble Lord, Lord Kingsland, did, however, make one valuable point, as he frequently does, and I again

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support him on this—the need for parliamentary ratification of treaties. That is not centrally germane to this debate, but it is crucial. I believe in a written constitution and that the role of Parliament should absolutely be underlined in it. Be that as it may, under the present circumstances we have had real progress. The Minister deserves the support of these Benches.

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Secondly, as I briefly indicated, we have different kinds of crime. Without proper extradition arrangements agreed by countries, global crime—crimes committed in the context of international capitalism—will simply not be dealt with. We need practical arrangements. The legal system must move on, just as international crime moves on. The globalisation of the world economy affects the globalisation of crime, and we must have robust arrangements. We cannot wait for the Greek calends, or whenever, for a fundamental renegotiation of these treaties.

Finally, there was a great deal of patronising observation about the United States of America—although certainly not from the noble Lord, Lord Goodhart—and its legal system. It was said that the United States did not have our guarantees. I think that my noble friend Lord Anderson would agree with me that some of the observations were unhistorical. The United States in many ways has a good record on openness and swiftness of justice. As a historian, I know that the American trusts dealt with the problems of financial concentration. The giant Standard Oil of New Jersey was brought to book and dissolved as early as 1913, I think. You can go back to legislation passed in the aftermath of the Civil War—the United States is well equipped to deal with these matters. It is noticeable that the absolute capitalist scandal of Enron was dealt with in the United States. I wonder whether our authorities, which have an extraordinary record, would have been able to do the same. Last time we were discussing the issue, people suggested that these crimes should be discussed in the British system because we would get a decision. I remember thinking at the time that there was as much chance of the England football team winning on a penalty shoot-out. Our record is pathetic, and I welcome the fact that we have been given this new tool.

To talk about the United States as somehow inferior to some of the other countries with which we have legal arrangements is grotesque. Why should we say that we have total confidence in the procedures of some of these countries in eastern Europe, but that the United States—and, even worse, the state of Texas—is somehow beyond the pale?

I congratulate the Government. I would have congratulated the Minister before, had I the nerve to do so, but I do so with renewed zest. We need a more robust international approach to law. Incidentally, the suggestion was made that this would be disastrous for our foreign policy as well. As one who is well known as a great critic of the war in Iraq and the American stance there, I believe that to gratuitously insult the Americans over the integrity of their legal system and history, and to somehow pretend that they can rapidly

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alter their assumptions about law and their legal procedures would cause reasonable offence. I hope that, at least on these Benches, the Government will be strongly supported.

Lord Lloyd of Berwick: My Lords, I shall be brief. Listening to the debate, I have sometimes been uncertain whether we were being asked to amend the treaty signed in 2003 or the extradition designation order of that year. If there is an imbalance, that imbalance is in the treaty so recently agreed. It might be as well to have the wording in mind. Article 8.3, to which the noble Lord, Lord Goodhart, has referred, states that,

but not the other way around. That is the treaty obligation into which we entered and which the United States, as I understand it, has now ratified. As I understand it, ratification brings that treaty into force. If it does not—

Lord Goodhart: My Lords, I thank the noble and learned Lord for giving way. It is not ratification that brings the provision into force. It is not in force yet. The exchange of instruments of ratification brings it into force. That has not yet been done and, as I understand it, will not be done until this matter is disposed of.

Lord Lloyd of Berwick: My Lords, that gets the noble Lord no further, because I think that he was inclined to accept that the 2003 treaty only repeated previous extradition treaties with the United States going back to the middle of the 19th century. All have had this imbalance—if you call it an imbalance. They have had this imbalance because of, as we all know, the provisions of the Fourth Amendment of the United States constitution. That is the reason for it. I say in passing that this problem arises not only with the United States, but with other countries, such as Australia and New Zealand, with which no difficulties seems to have arisen. Like the United States, they require something more than mere information; they require some evidence.

Extradition has had a long history since the 1870 Act. Anybody who has had any part in trying an extradition case will know that, as the years go by, it becomes more and more difficult and more and more complicated. More and more technical points are raised in order to prevent extradition. The change set in in 1957 with the European convention, because it was seen as absurd to create these unnecessary difficulties when one was dealing with other countries in the European Union. Surely the same must also apply, as was so eloquently put, to the United States. To remove the United States from paragraph 3(2) of the designation order would be a thoroughly retrogressive step as well as being, as I understand it, contrary to our treaty obligation whenever that in due course comes into force.

Lord Boyd of Duncansby: My Lords, I hesitate to intervene in this debate, partly because I have not done so before, but also because many of the

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arguments have been so eloquently advanced already. However, I feel compelled to do so because I am particularly concerned about the effect of the amendments in relation to forum.

Those amendments impose an obligation on a judge not to order the extradition of the person unless it appears in the light of all the circumstances that it would be in the interest of justice that the person should be tried in the category 1 state, which is the state seeking the extradition. There is a similar amendment for category 2 states. No guidance is given anywhere in the amendments about how one judges the interests of justice. One can have a situation where virtually all the evidence is in the United Kingdom, but the devastating consequences of the crime are felt in another state. The growth of internet crime and the free movement of peoples and goods can all contribute to such an effect. Does one judge the interests of justice by where the evidence is located or by where the effect of the crime is felt?

From my recent experience in prosecution, I have real difficulty with sub-paragraph (2). It is here sought that, in deciding the issue of forum, the judge is to take into account whether the competent United Kingdom authorities have decided to refrain from prosecuting the person whose surrender was sought for the conduct constituting the offence for which extradition is requested. I accept that there is no obligation on the competent United Kingdom authority to make such a decision, but there is clearly an expectation—and, I imagine, there would be an expectation by the court—that the competent prosecuting authority would advise the court whether it had decided to refrain from prosecuting. I submit that that imposes a huge burden on the prosecuting authorities and has the effect of lengthening—perhaps considerably—extradition proceedings. In my judgment, no competent prosecuting authority would be prepared to give such an undertaking or make such a statement unless it had itself examined all the evidence. In Scotland, that would include precognition by the Crown authorities.

We have been talking at length about white-collar crime, in which in some offences—whether it be fraud or money laundering—considerable documentation will be involved, much of it held by the requesting state. I fear that it could be a considerable time before the prosecuting authority could advise the court whether it was going to refrain from prosecuting.

In Scotland, at least, the decision to prosecute is taken on two bases. The first is whether there is sufficient evidence to mount a prosecution. What is “sufficient” is judged according to the law in Scotland, which might be very different in the requesting state. For example, in Scotland, we require corroboration of all the essential elements of the offence. We also have strict rules about the use of hearsay—certainly stricter than the rules that now apply in England and Wales. A case may very well meet the evidential test in Scotland, but barely do so because of those tests. There may not be the same difficulty in countries seeking extradition.

The second arm is the public interest. In Scotland, we require the prosecutor to decide that it is in the

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public interest to prosecute. It may be a moot point whether the public interest is to be equiparated with the interests of justice—perhaps for this purpose they are one and the same. One consideration that has historically been given weight, where there are elements of an offence in another country, is whether it would be appropriate for that offence to be prosecuted in another country. Prosecutors in Scotland have always had regard to that.

Let us suppose that the Crown goes through the process of examining all the evidence and determining whether there is sufficiency. The Crown may come to the view that there is sufficient evidence to prosecute in Scotland, but it may very well also come to the view that it would be more appropriate for that offence to be prosecuted in the state seeking extradition. Note the important point: it is not that a prosecution is not in the public interest but that the interests of justice are better served by a prosecution in the extraditing state.

Having gone through that process, the Crown in Scotland would presumably then be required to advise the court that it had decided to refrain from prosecuting. I ask the House to consider what happens if the request for extradition is refused. The person who is being sought will remain in this country. Presumably the question then arises whether that individual is to be prosecuted in the United Kingdom—certainly in Scotland. It may be that extradition was refused not because of the appropriateness of the forum but for some completely different reason. Noble Lords should remember that the Crown may well have taken the view that it would be in the public interest to prosecute but that prosecution should be in another country. What happens then? Does the case go back to the very authority that has already advised the court that it would refrain from prosecuting?

Another difficulty in Scotland—I hesitate to mention it, but it is a real one—is that the Lord Advocate is barred from prosecuting once he has made it publicly known that he will not prosecute, even if he took the view that a prosecution was in the interests of justice. I submit that the amendments on forum would put in place a mechanism that is supposed to determine what is in the interests of justice but would, in fact, defeat the interests of justice.

Finally, I find the proposition that we should renegotiate the treaty really rather alarming. I have been involved in extradition both from and to the United States and, as a recent prosecutor, I would be very alarmed if we were to return to the system that pre-existed the Extradition Act. For all those reasons, I support the Motion.

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Baroness Scotland of Asthal: My Lords, I thank all those who have participated in this debate. I thank particularly warmly my noble friends Lord Richard, Lord Anderson and Lord Morgan, and my noble and learned friend Lord Boyd. I also note with the greatest warmth the comments made by the noble and learned Lord, Lord Lloyd.

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My noble and learned friend Lord Boyd explained very clearly why the amendments tabled by the noble Lords opposite would cause huge difficulty for and damage to this country and, indeed, to our ability to prosecute. I accept all the comments made in support of the Motion, and I shall not repeat them, except to say that crime has now become truly international. It is no respecter of frontiers or borders, which is why we have striven in most recent years to find ways in which we can work in comity to ensure that those who commit offences internationally do not escape justice. I am sure that noble Lords opposite do not propose that someone should avoid the consequences of their actions simply because they can escape from these shores, commit offences and come home again. The offences that we seek to cover in this treaty are weighty indeed. It may assist the House if I run through the sorts of cases involving extradition to the United States in 2005-06 that we have covered in the treaty. They include indecent assault, two cases of theft, nine cases involving drugs, child abduction, grievous bodily harm, fraud, murder, child pornography, forgery, rape and money laundering. Those are the extraditions from the United States. The extraditions from the United States to the United Kingdom in 2005-06 were for drugs offences, burglary, child abduction, forgery, manslaughter, murder and deception. We are talking not about minor offences, but about enabling our countries to work together in unison to bring about justice for victims.

I listened carefully to the noble Lords, Lord Kingsland and Lord Goodhart. I confess that I wondered whether real consideration was being given to what we as a country would lose if we passed these amendments and how our citizens would be thereby ill-served.

Lord Goodhart: My Lords, can the noble Baroness estimate how many of these cases would have led to extradition under the old regime? I would have thought it likely that most, if not all, of them would have been extradited under the previous rules.

Baroness Scotland of Asthal: My Lords, many of them will be capable of being extradited but the noble Lord will remember—and the noble and learned Lord, Lord Lloyd, was absolutely right—that it is a question of timing. I know the House does not need to be reminded that it used to take us about 22 months to go through the process of extradition, when the United States was returning people to us within five. Even with this new process we are still taking about eight months to its five. We wish, where appropriate, to be able to return people to them just as quickly.

The noble Lord, Lord Kingsland, raised the issue of Article 7. I listened carefully to what he said and I am not sure whether he was conflating its provisions with the Irish law. Noble Lords will know that the United Kingdom chose not to incorporate this safeguard into the legislation when it became a party to the ECE in 1991. No argument was advanced to alter the position when the Extradition Act 2003 was passed. There are full and proper safeguards in that Act,

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including human rights safeguards. Furthermore, this provision could result in a serious offender escaping justice anywhere. That cannot be in the interests of the victims of crime.

This House perhaps did this country a service in giving me that ammunition. I am grateful for all the compliments that I have been paid—none of them entirely deserved. I was able to deploy the arguments that were advanced in this House with full effect in the United States, and they were mortified that this House felt that they were not totally committed to making sure that we were extraditing people, one to another, in a way that was sound and that would inure to the benefit of our people. That desire to act in comity with us encouraged them and enabled them to move with such speed and expedition, at a time of real difficulty, to give us a clear answer that they were on our side.

For us to go back now and say, “Notwithstanding the fact that you have moved mountains to satisfy us, we are still not so satisfied” would be a day which would cause me—a very rare occasion—to feel that this House had not done itself a service. I ask noble Lords to reject the amendments in the names of the noble Lords opposite and to allow us now, with due speed and expedition, to ratify this treaty, which will inure to the benefit of all our people.

Lord Kingsland: My Lords, I am most grateful to all noble Lords who have spoken in this debate. I want to spend one or two minutes responding to some of the points that were raised. The noble Lord, Lord Morgan, referred to the very high standard in the United States of protection of individual rights. I entirely agree. The United States, through its constitution and the jurisprudence of the Supreme Court, has a record which is second to none in protecting individual rights. My criticism was not of the standard of rights in the United States. It was the fact that the Government, through this treaty, would be prepared to accept a lower standard for citizens facing extradition in this country than United States citizens would face when we sought to extradite them from the United States. That was the point I was seeking to make.

The noble Lord also, quite rightly, drew the attention of your Lordships’ House to the nature of modern crime and the difficulties that we face in trying to defeat it. I also entirely accept that argument, which the whole debate, for example, about control orders, which took place about 18 months ago, was about. However, just because there are new sorts of crime, that does not mean we should surrender all the hard fought-for liberties of the individual in this country. We should test them very carefully against the new challenges to see whether they need to be modified, not simply abjectly to surrender them because there is a new crime that we do not recognise.

Lord Morgan: My Lords, I agree with the broad principles of what the noble Lord, Lord Kingsland, said very moderately and reasonably. What worries me is not so much observing legal safeguards, but

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erecting new barriers. It seems that things will be more difficult and agreement will be less possible. At a time when crime is very complicated, to erect higher barriers against solving it will make matters worse.

Lord Kingsland: My Lords, of course, I do not dissent from that. I think that that is true. Nevertheless, one of the difficulties about the fact that this treaty was never scrutinised by the House is that we have had no chance to assess whether the degree of sacrifice that we are being asked to make in terms of individual rights is properly balanced by the new challenges that we face. It is particularly difficult in the context of a bilateral treaty with the United States, because United States criminal law, unlike any other criminal law in the world, has this enormous extra-territorial outreach. It can reach out to individuals in the United Kingdom who have never even set foot in the United States and it can use these provisions in the treaty to extradite them.

In my submission, it is above all with arrangements in the United States, because of the extra-territoriality of the criminal law which is wholly unmatched by our criminal law, that we need to look with particular care at the provisions included in this treaty. But there is absolutely no sign whatever—

Baroness Scotland of Asthal: My Lords, is the noble Lord saying that Her Majesty’s loyal Opposition do not want this treaty?

Lord Kingsland: My Lords, of course not. I have made it absolutely clear that we want the treaty; but it contains sacrifices of individual rights which are too severe. If the Government had owned up to the fact that these negotiations were going on in the early months of 2003 and to what they were about, we might have had a sensible debate and would not be in the position that we are today. But not even the Minister of State in the House of Commons knew about it, and we knew nothing about it. Because of that failure to disclose, we find ourselves here tonight on the verge of a vote. So I do not accept what lay behind the noble Baroness’s intervention.

The noble Lord, Lord Richard, said that we need the treaty. I do not disagree with him. The issue is what price we are paying for the treaty.

Lord Anderson of Swansea: My Lords, the noble Lord is apparently saying that he wants the treaty and that he is very much in favour of the US ratifying the treaty. Nevertheless, he will scupper the treaty because he is concerned about the procedure.

Lord Kingsland: My Lords, “scupper” is a wholly inappropriate word in this context. One of the reasons why ratification is a side issue here is because for the past three years we have been operating in this country as if the treaty were ratified, so it makes absolutely no difference to us. For the past three years the terms of this treaty, not those of the 1972 treaty, have been respected, even though these terms have no binding effect in international law.

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