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So that leaves forum. As I have explained, a statutory provision making forum a ground for refusal in the Extradition Act could make us unable to ratify the treaty. We have, however, looked at an alternative. We are developing a non-statutory agreement with the United States in cases where a person could, even theoretically, be tried either there or here. The purpose of that agreement is fairness. By that I do not just mean fairness to the suspects, although of course that is vital, but fairness to the victims; in short, a balance. Future generations of prosecutors and victims would not forgive us if we missed this opportunity to improve and strengthen our provisions to combat cross-border crime. While acknowledging the concerns that have been raised, I urge this House, having done this country a great service in enabling us to bring about ratification, now to drop its insistence on the amendment and allow us to move forward and ratify the treaty, which is now ready to be so ratified by our American colleagues.
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Moved, That the House do not insist on its Amendment No. 36, in respect of which the Commons have insisted on their disagreement, and do agree with the Commons in their Amendments Nos. 36C and 36D in lieu.—(Baroness Scotland of Asthal.)
Lord Goodhart: My Lords, as happened last week, the Minister has opened, quite properly, by dealing with both Motion A and Motion B and, as the mover of Motion B1, I will therefore take the same course. I should add something that I failed to add last week; the noble Baroness is remarkably persuasive, and I congratulate her on her great success in persuading the American Senate to ratify the treaty. She clearly did an outstanding job on that. I am afraid that she has not been quite so successful in persuading me.
We have not insisted on keeping what I call the designation amendment, which would remove the designation of the United States of America under Section 84(7) of the Extradition Act 2003. We recognise that that would unquestionably prevent the implementation of the 2003 treaty. While we feel strongly that that treaty should never have been agreed in its unequal form, we recognise that it would be wrong for us to press for everything we want and that we must concentrate our fire on what we see as the most important target. We see that target as being the forum amendment, which is both the more important and the one that is likely to have less serious effect on the relations between this country and the USA.
It is plain to us that a forum amendment is needed. Where the United States is an appropriate forum for trial, we should, of course, be willing to extradite to the USA people whom it seeks for trial. But the United States may not be an appropriate forum; for example, where all or most of the alleged criminal acts have happened in the United Kingdom, where the links between the offences and the United States are minimal, where most of the evidence and the witnesses are in the United Kingdom and where the United Kingdom authorities have decided not to prosecute because of insufficiency of evidence. The United States is plainly not an appropriate forum in those circumstances. If that is the case and when it would be unjust and oppressive to order extradition of the defendant, surely a United Kingdom judge, not a prosecutor, should have the power to prevent extradition.
The noble Baroness talked about ensuring that victims of crime in this country get justice. Of course that is right, but is not someone who is extradited to the United States unjustly himself a victim? Has he had the justice which he deserves? We believe that he has not.
The forum amendment will be entirely consistent with the Council of Europe Convention on Extradition and with the framework decision that set up the European arrest warrant. It is right that the amendment should not apply only to the United States but should extend to all countries, as it will, if passed. Do we not want to protect our people from unjust extradition not only to the USA, but to Albania and Azerbaijan, whose legal systems are far inferior to those of the USA?
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These debates have shown that the Government, in their wish to simplify what was unquestionably a sclerotic extradition system, have oversimplified the situation and have removed necessary protections against injustice. It is clear that the forum amendment would not require the renegotiation of the treaty. I apologise for suggesting otherwise in our previous debate. I have taken further advice since then.
The Extradition Act was enacted in November 2003, some eight months after the treaty was signed. It contains several provisions that restrict the power to extradite people to the USA—notably Section 87, which forbids extradition which is in breach of rights under the European Convention on Human Rights. There was no suggestion that that or any other bar on extradition set out in the 2003 Act led to a need for renegotiation of the treaty. The Government have, in effect, admitted that the forum amendment would not require a change in the treaty.
It is true that the USA could now refuse to exchange instruments of ratification, which are necessary to bring the treaty into force. But why should they refuse? If there is no exchange then there will be enormous pressure on our own Government to cancel the designation. If they did so, the United States would lose all the benefits it receives from the treaty, which are very substantial. The US may not welcome the inclusion of the forum amendment, but it has given no sign that it would refuse to bring the treaty into force as a result of it. Such a decision would not need to go back to the Senate, but would be for the President alone.
In the House of Commons the Government accepted our amendment from last week but added the sunrise clause. The noble Baroness said that the Government would take great care to ensure that the sun never rose, because the House of Commons would never approve. Our amendment simply removes the sunrise clause and replaces it with a clause that would bring the forum amendment into effect as soon as the Bill received Royal Assent. This is not a zero-sum gain. Withdrawal of the designation amendment means that the Americans and our Government can get the treaty—and they will get it unless the Americans act totally irrationally. The passage of the forum amendment means that British citizens and residents faced with unjust extradition to an inappropriate forum, whether in the United States or elsewhere, will get justice. This is a solution that we believe combines justice with practicality and common sense.
Lord Kingsland: My Lords, I have nothing to add to or subtract from what the noble Lord, Lord Goodhart, said. His analysis exactly reflects the conclusions that we on these Benches have reached.
I have only a brief observation to make about the manner in which we find ourselves in this situation. As your Lordships well know, this treaty was signed in secret. It was negotiated in secret. Indeed nobody, apart from the civil servants directly involved and the Home Secretary knew that these negotiations were going on—despite the fact that an Extradition Act was in the offing. Moreover, this was no ordinary
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The extraordinary thing about this treaty is the different treatment of the rights of US citizens and those of British citizens. I know that the noble Baroness dissents from that, but in our judgment the rights of British citizens were valued far lower than the rights of US citizens. All their constitutional conditions were met, but none of those that we ought to have brought forward, but apparently did not, was met. It is a bad treaty, which should never have been signed. That remains our position.
What will we do about it? There is a wider issue for us as the official Opposition to consider. We have sent the Bill back to the elected House twice, and it has come back to us twice, effectively unchanged. The noble Lord, Lord Goodhart, said that there are certain designer changes, but only for the purposes of procedure. Essentially the Government have held their ground. The noble Lord, Lord Goodhart, and I have sought to negotiate with the Government informally to see whether some form of watered-down forum arrangement might be appropriate, but the Government have stuck to their guns.
What should the official Opposition do? Should we send it back again, with all the implications that that would have for Parliament, or should we not? We have concluded that, in our judgment, it would be wrong for us as an unelected House, having faced two repudiations from the elected House, to send this back one more time. We are the unelected House. If we were an elected House, I am sure that our decision would be different.
The Earl of Onslow: My Lords, I am deeply sad that the lawyers and the Government cannot tell the difference between information and evidence. I am deeply sad that we have abrogated the rights of British subjects, and I am even sadder that my own side has taken the view that it has. This House should insist on protecting the liberty of the subject. The health service and other things are, for want of a better word, “administrative” arguments. But this goes to the core of British liberties. We know that this Government—and the noble Baroness should know a lot better because she is a jolly good lawyer—have ridden roughshod time after time over British liberties. I will have great pleasure in voting with the noble Lord, Lord Goodhart.
3.30 pm
Lord Stoddart of Swindon: My Lords, I, too, express my surprise that the official Opposition have withdrawn their opposition on the ground that we are the unelected House. I have heard them argue differently in the past and I am surprised that they have now accepted the government view in totality—that if the Commons override amendments sent to them, that is the end of the matter because we are an unelected House. That places this House in a very junior position indeed.
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It is not as if the House of Commons cannot get its own way. It can always get its own way by using the Parliament Act. That is exactly what it should do under these circumstances. This extradition agreement with the United States has been a disgrace from beginning to end. I know that particularly. The Minister will remember that I intervened during the debates on the European arrest warrant to draw the Committee’s attention to what was happening with the negotiations with the United States. The fact that the Government wanted to negotiate something in secrecy is altogether against any credit that they might otherwise have had.
I very much regret the fact that the official Opposition have withdrawn their opposition to what the Government have been doing and that they will not insist on the proper amendments, sent to the House of Commons by this House after much debate among people well qualified in this particular law. If the amendment of the noble Lord, Lord Goodhart, is put to the vote—I hope that it will be—I should be delighted to support it.
Lord Ramsbotham: My Lords, I have a question for the Minister based on personal experience. I am prompted to ask it by her mentioning the closing of loopholes. In March 1980, I was commanding the brigade in Belfast. We surrounded a house in which there was an IRA gun team who had killed a number of RUC men over the preceding months. In achieving their surrender, an extremely gallant young officer of mine, Captain Richard Westmacott, was unfortunately killed by this team. I eyeballed the four gunmen as they were taken out of the house to prison. They were tried at the Crumlin courthouse the next year. After they were found guilty of murder, there was a mass escape from the Crumlin and large number of them got away to America. It was 11 years before we succeeded in obtaining the extradition of Doherty, the leader of that team. Each and every time we asked, the Americans claimed that the murder of Captain Westmacott had been a political crime and they therefore refused to extradite. We are told that we are now deeply involved in a war on terrorism. Can the Minister assure me that, under these arrangements, this sort of loophole will be closed and British victims of crime will be able to see justice done in future?
Lord Lloyd of Berwick: My Lords, would new Section 83A of the Extradition Act, were it to come into force on the passing of the Bill with which we are now concerned, require an amendment of the treaty or not? The noble Lord, Lord Goodhart, seems to have changed his mind on this. I was of the view that it would probably require an amendment to the treaty, which was one reason why I would be against the amendment of the noble Lord, Lord Goodhart. I have other reasons, however, which were given by the noble and learned Lord, Lord Boyd of Duncansby, on the last occasion. I do not know whether the noble and learned Lord intends to speak today, but he made an extremely powerful case against the form of the amendment. As we all know, it will almost certainly lead to further delay and complications, which it has been our object for at least 30 years to try to avoid in extradition proceedings.
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Baroness Scotland of Asthal: My Lords, I shall deal first with the point raised by the noble and learned Lord, Lord Lloyd of Berwick. I wholeheartedly agree with him about the accuracy of the points made by my noble and learned friend Lord Boyd on the last occasion when we discussed this matter; they were absolutely correct. Secondly, if the amendment tabled by the noble Lord, Lord Goodhart, was accepted, we would not be able to guarantee ratification because those forum amendments are outwith the treaty. Therefore, it would be open to our American colleagues to say that they were not prepared to ratify the treaty unless and until those provisions were expunged. The noble Lord, Lord Goodhart, said that in realpolitik, although we might be accused of acting in bad faith in not having raised those matters, the benefits of the treaty are so clear that the Americans might feel obliged to concur. That is not a way in which we do business in this country; it is not a way in which we ratify and deal with treaties.
I heard the noise that came from the other side, but I remind the House that this treaty was negotiated in a similar way to the way in which many other treaties were negotiated. There may be a feeling in this House that in future we should not be able to enter into treaties unless and until Parliament has spoken and has gone through every scintilla, and until every “i” has been dotted and every “t” has been crossed. But that is not how we do business at the moment, and it is not how any Government before us have done business. However, that is probably a debate for another day.
To deal with the question asked by the noble Lord, Lord Ramsbotham, in relation to the 1985 position, I assure him that the 1985 supplementary treaty disapplies the political offence in extradition. That has been continued in the 2003 treaty. The situation to which the noble Lord referred could not now occur.
Lord Goodhart: My Lords, I have seen it reported that one of the inducements given to the American Senate to ratify the treaty was a statement that the United Kingdom would not seek the extradition of any IRA people for acts committed before Good Friday. Can she confirm whether that is true?
Baroness Scotland of Asthal: My Lords, it has been made plain that all the provisions that currently apply as a result of the Good Friday agreement would apply to any person who wishes to take advantage of them. We are not making any new, different or separate arrangement outwith that which we already have in relation to the Good Friday agreement. Noble Lords have debated many times how someone may apply to have those issues dealt with if he wishes to put himself into a better place. We have made no separate or different arrangement.
The Earl of Onslow: My Lords, I heard noble Lords around me saying, “What does that mean?” I must admit that I did not understand a word that the Minister said. Can she answer the question more clearly? I may be one of the stupider Members of this House, but on this occasion other noble Lords are also saying that they cannot understand the answer.
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Baroness Scotland of Asthal: My Lords, this House has debated every scintilla of the issues in relation to the Good Friday agreement, its consequences and the basis on which people can seek amnesty or an opportunity to return to this country. I shall not say that we did so ad nauseam because those issues are incredibly important. All those provisions apply in relation to any individual wherever he happens to be if he wishes to return to this country and take advantage of them. Nothing that we have done in relation to this treaty or this Act changes those issues. We are very hopeful of having a resolution to the Northern Ireland question later this month. We will have to wait and see what happens. Nothing that we have done here alters any of that work in any way whatever. I am sure that the House would not want me to recite each and every—
Lord Tebbit: My Lords, as I understand it, the noble Baroness is saying that on-the-runs in the United States are safe from any attempt to extradite them to this country.
Baroness Scotland of Asthal: My Lords, I am not saying that, and the noble Lord knows perfectly well, having been intimately involved in the whole period of change in Northern Ireland, the nature and complexity of the rules that can apply in relation to those matters.
Lord Tebbit: My Lords, I am most grateful for that, but the noble Baroness has not made the matter terribly clear. Are the on-the-runs in America safe from extradition or not?
Baroness Scotland of Asthal: My Lords, it really depends on when they went, what they did and whether the provisions under the Good Friday agreement apply to them. The Senate’s advice and consent to the treaty was subject to a resolution regarding the situation in Northern Ireland. The UK Government have already stated—in September 2000—that they will no longer pursue the extradition of individuals who, if they were to return to Northern Ireland, would now be eligible for early release under the terms of the Good Friday agreement scheme and who would, on making a successful application to the Sentence Review Commission, have little if any of their original prison sentence left to serve. The resolution to which the Senate’s consent to the treaty was subject is non-binding and was intended to reassure Senators that the treaty would be implemented in accordance with the US law and constitution and in compliance with the Good Friday agreement.
I am sure that nobody in this House would wish us to set back the position of Northern Ireland to where it was before that agreement. We are moving forward, and that which we commit this country to do will be consistent with that and not undermine it. I am sure that the noble Lord, Lord Tebbit, would not wish to undermine the new arrangements that we have in Northern Ireland, which are likely to bring peace and tranquillity to that Province for the first time in many a year. So, we have the situation in relation to the past.
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As regards the forum, I just say that we do not agree that this treaty jeopardises the rights of citizens of this country. I have tried to make it absolutely clear in the assurances that I have given to the House that if our prosecutors come to the conclusion that the facts complained of are wholly or substantially in this country, that the links are minimal and that most of the events took place in the United Kingdom, it will be their decision whether to prosecute in this country, and theirs alone. If at any stage, once an extradition application has been made, we reach the conclusion that this case would be better tried in this country, that we should prosecute those facts and that it would be in the interests of justice so to do, I assure this House that our prosecutors will decide to do that. It is our right and our duty to do that if we reach that conclusion. Nothing that happens in this treaty or this Act prevents us from so doing.
Your Lordships should be aware that my noble and learned friend the Attorney-General is absolutely seized of this matter; he understands the concerns of this House and the importance that we place on prosecuting matters in this country if it is right to do so. I give that assurance to help the House to appreciate that we understand the anxiety that has been expressed and that we will do everything that we can to address the issue.
This treaty inures to our advantage, and I am surprised to hear the noble Lord, Lord Kingsland, say that this is a bad treaty and should never be signed, because when I previously asked whether Her Majesty’s loyal Opposition wanted the treaty, the answer was yes, they did. I understand why they want this treaty. They want the treaty for the same reasons as we do: we want justice for victims; we want fairness; and we want to be able to prosecute those who should properly be prosecuted in the correct jurisdiction.
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