Examination of Witnesses (Questions 60
WEDNESDAY 4 JUNE 2003
MP, MR CLIVE
60. And which particular part of the proposed
agreement is that conclusion derived from?
(Mr Ainsworth) It is the preamble. We are talking
about the UK-US Agreement?
61. I do not mind, but I was actually talking
about the EU one.
(Mr Ainsworth) In the preamble to the agreement it
specifically refers to having due regard for the rights of the
individuals and the right to adjudication by an impartial tribunal.
Lord Lester of Herne Hill
62. My difficulty about that, quite apart from
the fact that it is only in the preamble and I do not know what
effect that would have, but my difficulty is that the European
Convention requires an independent and impartial tribunal. One
of the arguments against the military tribunals is that because
of their composition, they are not independent and, therefore,
would not satisfy Article 6. A technical lawyer looking at this
preamble would say, "It doesn't say `independent and impartial
tribunal established by law' and, therefore, the Article 6 standards
don't apply". That is one of my problems about it. The other
problem I have is that when I look at the body of the agreement
and I go to Article 17, my puzzlement increases because I am looking
at the update we have had, and we have got the update document
which gives the text as it has been changed since we last saw
it and our legal adviser has done a note for us on it. In that,
we have got Article 17 in its new form helpfully set out and it
says, "Where the constitutional principles of . . ."
and they have added the words, "or final judicial decisions
binding upon," "the requested State may pose an impediment
of fulfilment of its obligation to extradite, and resolution of
the matter is not provided for in this Agreement or the applicable
bilateral treaty, consultation shall take place between the requested
and requesting States". My puzzlement is not only do I find
the preamble weaker than ECHR standards, so I need, if I may,
to pursue that, but also I do not understand how the Article 17
mechanism which is presumably designed to deal with this kind
of problem where necessary, I do not understand what it means
when it says, "consultation shall take place", so I
would be very grateful if I could just find out what the Government's
position is, first of all, on the preamble. Where it says "impartial
tribunal", does it mean an independent and impartial tribunal
established by law in terms of Article 6 of the ECHR or Article
14 of the international covenant? Secondly, how does Article 17
provide any real safeguard?
(Mr Welsh) There is always a debate about
the extent to which the preamble actually affects this, and I
accept that. The key point is that the Extradition Bill is clear
on that and that is what actually will govern our law.
63. I am not asking about the British Extradition
Bill. I am asking about what we are scrutinising.
(Mr Ainsworth) It is the British Extradition Bill
which will decide whether people are extraditable to the US.
64. I follow that, but I am looking at the Europe
to see what safeguards there are in the EU Treaty. Maybe we have
gone further in our safeguards, but I am looking at it beyond
the UK legislation.
(Mr Welsh) I do not think there is any doubt amongst
any of the EU Member States that the importance of a fair trial
and the issue of military tribunals were uppermost in everybody's
minds and none of the participating Member States are under any
illusion that the Agreement is meant to mean anything other than
we abide by ECHR, and that constitutes a constitutional principle,
or, as you say, the final judicial decision. It is perfectly clear
under ECHR jurisprudence where our responsibilities lie. The Americans
are aware of that, we are all aware of that, and your Lordships
will understand that there are other dimensions than pure legal
exactness in this Agreement.
65. I am very grateful, so what it means is
that we can now record the Government as saying that whatever
the language or the words of the EU Treaty may say, it is being
interpreted by the United Kingdom Government and the other Member
States, so far as we are aware, in that generous way?
(Mr Welsh) Yes, a bit like the report of Amnesty International
hinted that we ought to interpret it in that way. There is no
doubt in my mind that everybody is interpreting it in that way.
66. Again can I ask about Article 17 and ask
what on earth does that mean then about consultation taking place?
If there is a clash between European due process and American
less due process, what does it mean when it says that consultation
should take place? Is that just diplomatic language?
(Mr Welsh) If we refuse extradition and the Americans
think that we have played foul, they will raise it with us.
(Mr Clayton) It cannot affect, my Lord, the decision
in question because if there is a final judicial decision binding
upon the requested State, it must abide by that finding, so I
think that consultation needs to be construed in the light of
67. One might sum up the discussion and your
answers by saying that the concerns about ECHR compliance would
constitute an implied ground, implied into the text of this, for
refusal of an extradition request.
(Mr Clayton) Yes.
Lord Mayhew of Twysden
68. I hope I will be forgiven for coming back
to the grounds for your confidence that it is safe to forgo in
the case of each state of the United States the safeguard of prima
facie evidence, a prima facie case. Could I ask whether it is
right, and perhaps an official could confirm, that in the relatively
recent bilateral Treaty with the Republic of Ireland we are under
a bilateral obligation to furnish a prima facie case and to set
out what our evidence is. Is that not right?
(Mr Ainsworth) We do not require prima
facie cases to be provided for EU Member States and Council of
Europe countries, so there is a wide range of countries for which
a prima facie case is not necessitated.
69. Is it not the practice to set out the evidence
upon which we intend to rely under that bilateral Treaty?
(Mr Regan) Our position in relation to the Republic
of Ireland is governed currently by the Backing of Warrants Act
of 1965 and in that there is no requirement to provide any evidence.
That is the most extreme form. For every other Council of Europe
or EU country, we simply have to give the details of the date
on which the offence was committed, the nature of the offence
and the punishment it attracts. We do not have to provide any
evidence, nor do we expect to receive, in the vice versa circumstances,
any evidence that the person has committed the crime.
70. I do not question your accuracy. My recollection
is that the Backing of Warrants finished in about 1985, but anyway,
let's move on from that. You have explained helpfully that most,
if not all, the cases we have had of extradition to the United
States have been about death penalty cases. The enquiries that
you have made have been made about death penalty cases and we
had this conversation about Soering. I wonder if you can
help us as to what provides the foundation for your confidence
that in each of the states of the United States there are sufficient
grounds to forgo the prima facie case safeguard. We are dealing
effectively with 52 jurisdictions or 51, whatever it is.
(Mr Ainsworth) All I can say is that we have no less
confidence in the judicial systems of the individual states of
the United States than we have with many other countries where
we do not require a prima facie case to be proven. Can I just
clarify the position with regard to the death penalty because
I would not want anyone to think that every single case results
in some kind of discussion between ourselves and the United States
because it is a well understood situation and the assurances come
through clear in every case, and of course the United States are
under no illusions that if the assurances are not there and not
there from the appropriate person, then extradition would not
take place, so they know what we require of them and they comply
with our requirements.
Lord Neill of Bladen
71. No doubt you are aware that the state judges
run for office on an election ticket. Have you been in America
when an election is going on?
(Mr Ainsworth) I have never been in America
where an election is being held for a judge.
Lord Neill of Bladen: You see placards down
the road saying, "Judge Smith: tough on rape", and things
like that, and his opponents are not so tough. That is the sort
of context and in the real world that is what you are talking
Lord Plant of Highfield
72. Could I follow that up with a qualm of my
own. It is a lesser issue than the death penalty but nevertheless
a rather draconian one. There are states, California being one,
where they have three strikes and you are out. The commission
of a relatively trivial third offence can result in life imprisonment.
Stealing a pizza, in the most recent notorious case, led to someone
being given life imprisonment without parole. This is something
that might attract the one-year threshold so far as we are concerned,
but do we have no worries about extraditing someone to a jurisdiction
where three strikes and you are out actually operates?
(Mr Ainsworth) How we move away from
the principle with regard to extradition is that people are obliged
to obey the law in the country in which they are residing and
suffer the consequences that have been decided by that jurisdiction.
We do not agree otherwise we would have exactly the same laws
here as they do in the United States. Those kind of proposals
would not go through this place, your Lordships would have things
to say about them if they were put forward. That is the law in
the United States, democratically decided and if people choose
to break the law in the United States how do we do anything other
than reach international obligations and international agreements
with a country like the United States on the basis of when you
are in our country you obey our laws and we expect the Americans
to do so and suffer the consequences under our law and if you
are in their country the same applies.
Lord Lester of Herne Hill
73. In view of all the concern that has been
expressed and Lord Mayhew's questions about the United States,
would it be possible for the United Kingdom Government to ask
the United States Government to provide a short note that could
be public here setting out their understanding of American legal
safeguards, because I take it that the United States is subject
to federal safeguards of the constitution? What I am trying to
ascertain is what the United States Government would tell the
British Government or the EU Presidency if these questions were
asked by way of an official on the record answer. If we just had
a very brief statement of that kind it would give a great deal
of comfort to some of us who have these concerns. Is it possible
to seek that assurance without causing diplomatic offence?
(Mr Ainsworth) I do not know from whom
we would seek the assurance.
74. The United States Government could provide,
through their legal adviser, a very short note explaining their
understanding of the due process and other protection that will
be given to anyone who is extradited to any of the states of the
Union in terms of federal standards which apply throughout the
Union under the American Bill of Rights standards that are applicable
in the absence of ECHR in the States, their understanding of what
protection will be afforded to those who are extradited, because
at the moment I simply do not understand what protection there
will be on the American constitutional side and they could provide
that very easily because I would have thought it is easy to summarise
the safeguards in one page.
(Mr Ainsworth) We have been extraditing people to
the United States and seeking their extradition from the United
States for a very long period of time.
75. Now we are lowering the safeguards.
(Mr Ainsworth) The requirement for prima facie evidence?
76. Yes, and they are using a European system
to which the Americans do not belong and applying it to them as
it were, the European warrant system and matters of that kind
are being embodied in the wider EU system.
(Mr Ainsworth) Obviously I will reflect on what is
being requested, but I think writing to the United States to require
them to put it in writing that their judicial procedures are those
that we would not feel comfortable with is
77. Are they going to stay a category two country?
(Mr Ainsworth) They are going to stay
a category two country.
(Mr Regan) Any country with the death penalty cannot
be in part one.
78. Let us move on. There are one or two questions
on the death penalty implications I wanted to ask. You have already
referred to some of the reasons why the United States might be
unable to give an assurance that the death penalty will not be
imposed because of some particular state requirement that in particular
circumstances it be imposed. Are there any other procedural reasons
than that? What should one be having in mind? Would it be a procedural
requirement that a jury decide whether there is to be a death
penalty or not and it had to be left to the jury or something
of that character?
(Mr Ainsworth) The main issue that arises is that
in some states for some offences the death sentence is mandatory.
(Mr Regan) It is mandatory for it to be imposed.
(Mr Ainsworth) And therefore we need assurances that
it will not be carried out.
(Mr Regan) In some states in certain circumstances
it is mandatory to impose the death penalty.
79. So you cannot get an agreement that it will
not be imposed, can you?
(Mr Ainsworth) No. You can get an assurance that it
will not be carried out.