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Baroness Scotland of Asthal moved Amendment No. 225:

On Question, amendment agreed to.

Lord Goodhart moved Amendment No. 226:

    Page 46, line 1, at end insert—

"( ) A category 2 territory may not be designated under subsection (6) unless on the coming into force of the designation the legal conditions on which persons may be extradited from that territory to the United Kingdom are substantially similar to the legal conditions on which persons may be extradited from the United Kingdom to that territory."

The noble Lord said: My Lords, Amendment No. 226 is a matter which I raised in Grand Committee. It is something on which very strong feelings are held, not only by my noble friends but by many people across the country as a whole—well outside my own party.

The amendment is directed towards the issues raised by the agreement on extradition reached at the end of March between the USA and the United Kingdom. The agreement provides that there will continue, for the purposes of extradition to the United Kingdom from the USA, a requirement that a prima facie case should be shown. However, the agreement alters the position the other way round; that is, for extradition from the United Kingdom to the USA. It is no longer a requirement that the courts of this country be shown a prima facie case, but merely that various details of the kind which apply in extradition to category 1 countries should be shown. We believe this to be entirely wrong.

First, we think that reciprocity is a necessity here. Looking at the matter in purely financial terms, I suppose that one could say that there is a slight advantage to us in being able to get rid of people quickly instead of having to hold them over here while the court process goes through, but we do not see that as a justification for the difference. We recognise of course that the USA faces constitutional problems concerning not only its own citizens when seeking to extradite people to this country without a prima facie case having been shown against them. However, that

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seems to renounce any ability on our part to put pressure on the USA that might ultimately lead to a constitutional amendment if the problems became sufficiently severe. So we have to accept that as it is.

Secondly, it is generally known that standards of justice in the 51 different jurisdictions of the United States vary very widely indeed. Standards of criminal procedure in some states, such as Massachusetts and New York—with which I have some acquaintance—may be regarded as perfectly satisfactory, and broadly the same is true of the federal jurisdiction. However, of some states, notably those of the deep South and Texas, one cannot say the same. There is serious concern about the quality of justice in those states and we do not think it appropriate for people to be sent back to face trial without the safeguards provided by insisting that a prima facie case be shown.

We should remember the recent case, heard over the past few months, of the Algerian pilot, Lofti Raissi, who was accused of being involved in the planning of the destruction of the World Trade Centre and the terrible events of 9/11. However, when it came to producing evidence against him, there was a notable failure on the part of the American authorities to do so. That is hardly an advertisement for saying that we ought to agree to send people back without a prima facie case.

I should make it clear that this is not an amendment which I propose to move to a vote. It may well be that we shall pray against the order which will be necessary to bring the agreement into force. That will be the time to vote rather than on this occasion. On that future occasion the vote will be specifically targeted on the particular agreement. But, as we have done before, we wish to make clear our very serious concerns about this agreement. I beg to move.

9.30 p.m.

Baroness Anelay of St Johns: My Lords, we support the amendment. The United States is a very close and enduring ally and the amendment is not targeted as a criticism of it. The noble Lord, Lord Goodhart, has rightly exposed the fact that there is no reciprocity in the agreement between the United States and ourselves in this matter. Indeed, on the previous occasion, the Minister pointed out to the Grand Committee that it was not possible for the United States to reciprocate because its constitutional arrangements are such that it is not allowed to relax the requirement for prima facie evidence to be presented.

In that, I envy the Americans. I do not envy them a written constitution, but I envy the fact that they have been able to hang on to that most vital of protections in a matter of reciprocity. The Minister has said in the past that Conservative governments had given up on prima facie evidence being a requirement in certain circumstances. Our riposte is always, "Ah but . . .". In this case, the Government are giving up far more at the same time.

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My support is given on the basis of the principle of reciprocity to which the noble Lord, Lord Goodhart, referred. It is extraordinary that we should give up our right at a time when we know that the other party cannot give up its right.

Baroness Scotland of Asthal: My Lords, I am grateful to the noble Lord for the way in which he introduced the amendment and for indicating that he does not intend to press the matter to a Division but will raise it in its proper place when the agreement comes to be heard.

I hear what the noble Baroness, Lady Anelay, says about the amendment not being targeted towards America, but it most specifically is. The noble Lord, Lord Goodhart, made it clear that it was directed towards America. The noble Baroness is right to say that America is our closest ally but, if I can put it colloquially, it does not wash to say that we do not mean America when quite specifically we do. It is right that the noble Lord, Lord Goodhart, should make that plain.

The noble Lord also made plain that the reason he is concerned is because of the disparity in approach that he has identified between various states in America, not all of which share exactly the same jurisprudence. I was therefore not surprised when he mentioned the more liberal, or Democrat, states and referred to other states—which some have described in other places as "Bush country"—as being of a different ilk. So there is nowhere for the noble Baroness to hide.

Plainly the response that I gave on the previous occasion demonstrated why there was a difference of view. The noble Baroness was right to highlight the comments I made then about the constitutional difference in America, but the new bilateral extradition treaty between the United Kingdom and the United States of America, which was signed by my right honourable friend the Home Secretary and the US Attorney-General, John Ashcroft, on 31st March was very necessary. Our present treaty was negotiated in 1972. I believe that even the noble Lord, Lord Goodhart, while critical of our current position, would agree that that treaty is very much out of date. For example, the treaty contains a list of offences for which extradition is possible. For obvious reasons, the list does not contain computer-related crimes—a significant omission. We have moved on and we have to update the position.

I should put on record that the treaty was negotiated in exactly the same way as all our other extradition treaties and, for that matter, all other bilateral international instruments. The text of the treaty was published as a Command Paper shortly after it was signed. Again, the normal procedures, including the Ponsonby rules, were followed. The only unusual occurrence was that the gap between signature and publication was shorter than is customary because we were aware of the considerable interest in the new treaty.

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I suspect that for the purposes of the amendment, the provision in the treaty that causes most interest is the one that removes the requirement for the United States to provide prima facie evidence to accompany the extradition requests. I make no apology for this. We do not require and have not for many years required the other countries in the European Convention on Extradition to provide prima facie evidence. This includes not just the countries of the EU but every country in the Council of Europe—countries which the noble Lord, Lord Goodhart, knows well, such as Albania, Turkey and Azerbaijan. I fail to see why we should impose a more stringent requirement on a mature, established democracy such as the United States than for the countries I have just mentioned.

Indeed, it was the noble Lord, Lord Lester of Herne Hill, who requested that we should obtain from the United States Government a statement of the protections available to those who might be extradited to the United States. We were happy to comply with this request and the reply from the United States Government was contained in our response to a report from European Union Sub-Committee E. Let me quote an extract from the report, which states:

    "Every person who is extradited to stand trial in the criminal justice system within the United States is entitled to the fundamental right of due process under the United States constitution. All extraditees have the right to a fair trial, before an impartial jury, and enjoy the right to counsel, the right to confront adverse witnesses, and the right to compulsory process to call witnesses favorable to the defense. No extraditee can be convicted except on the basis of proof beyond a reasonable doubt. Every extraditee has the right to appeal a conviction".

These rights apply irrespective of the nationality of the person concerned and irrespective of the state or jurisdiction concerned. Avenues of redress exist if these rights are not upheld.

I am pleased that the noble Lord—and, I take it, the noble Baroness—will not press these amendments today or at any other time. I look forward to the discussions we will probably have on these issues when the matter comes back for deliberation in its proper place.

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