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Lord Skelmersdale: My Lords, does the noble Baroness accept that the great thing about cancer is that it depends on how far developed it is before it is given a label? That is something that we shall have to probe in Committee.

Baroness Hollis of Heigham: My Lords, absolutely. But there are other forms, such as the very early stages of cervical cancer, which can be treated by cone biopsy. We understand that something like 83,000 patients with various forms of this sort of cancer are treated each year. At this stage—the Committee may be able to persuade us otherwise—we do not think that they should necessarily come within the definition of continuing to be disabled after their treatment has been satisfactorily concluded.

After all, the whole point about disability here is that it has a substantial and adverse effect for a sustained period of time on daily living activities, which may not be the case in some situations. Having said that, within the time guidelines, I hope that I have addressed as far as I can the issues raised by your Lordships today. I am sure that I have overlooked some, in which case I shall—

Baroness Darcy de Knayth: My Lords, can the noble Baroness write to me about the importance of the small word "proportionate" in new Section 21D(5), under Clause 2? I suspect that its impact may be out of all proportion to the size of the subsection.

Baroness Hollis of Heigham: My Lords, the noble Baroness used the example of pedestrianisation and
 
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whether cobbles could be used because of their visual effect. It would be very difficult for people with—to give obvious examples—wheelchairs and visual impairment. I am very happy to write to the noble Baroness.

If the noble Baroness has examples of that, I would like to see them. Again, from my experience, wherever that was presented to me as the leader of a local authority in my ancient past, there was never any problem about finding some reconciliation of those issues. Clearly, if the noble Baroness has examples, we would like to address them. Otherwise, I suspect that it would be a matter if necessary for the appropriate judicial review, if it came to that.

With those responses, I hope that your Lordships will agree that the Bill has now had its Second Reading. With your Lordships' agreement, I should like to move that the Bill be referred to a Grand Committee.

On Question, Bill read a second time, and committed to a Grand Committee.

Extradition to US

Lord Goodhart rose to ask Her Majesty's Government whether they will reconsider the current legal provisions governing extradition to the United States.

The noble Lord said: My Lords, this Question arises from a history of government mishandling, which may have grave consequences for a significant number of individuals. Perhaps I may explain the history of this. Until 1 January 2004, extradition from the United Kingdom to the USA and vice versa was governed by a treaty signed in 1972 and ratified in 1976. Under that treaty each country had to provide prima facie evidence of guilt before it could get an extradition order.

On 31 March 2003, the Government signed a new extradition treaty with the USA, which contained powers that extended extradition to all crimes with a maximum sentence of 12 months or more instead of containing a list of extraditable crimes, as the previous treaty had done. It also simplified procedures on both sides for extradition. So far, so good.

But for extradition from the USA to the United Kingdom, Article 8(3) requires the United Kingdom to produce,

"such information as would provide a reasonable basis to believe that the person sought committed the offence for which extradition is requested".

There is no corresponding obligation in the case of extradition from the United Kingdom to the USA. In effect, the United States has a right to extradition on demand. Therefore, the treaty in a very important respect is not reciprocal.

No one outside the Government knew that the treaty was being negotiated. The public were first informed of it on the day of its signing by a written response from the Lord Chancellor to a planted
 
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question. There was no chance whatever for any form of parliamentary scrutiny or comment, which I think proves the case for parliamentary scrutiny of treaties before they are signed.

Meanwhile, an Extradition Bill was going through Parliament. It was introduced in the House of Commons on 14 November 2002. It received Royal Assent as the Extradition Act 2003 just over a year later on 20 November 2003. The Act was primarily required for the purpose of providing for the European arrest warrant for extradition between member states of the European Union.

On a reciprocal basis, it provides for extradition from the United Kingdom to other European Union states and vice versa without prima facie evidence having to be produced. That, in fact, was no novelty. Under the Council of Europe Convention on Extradition, signed by the United Kingdom in 1990 and implemented in 1991, the need for prima facie evidence for extradition between member states of the Council of Europe who are parties to the convention is excluded. Of course, there are more than 40 member states of the Council of Europe, most of which have signed up to the convention. But that convention is fully reciprocal.

Part 1 of the Extradition Act implements the European arrest warrant between European Union member states. Part 2 applies to other countries. Part 2 retains the need for evidence except in cases of extradition sought by a country that has been designated by an order made by the Home Secretary under Section 71(4) of the Act. The order requires the approval of both Houses by affirmative resolution.

The Government then introduced an Order in Council entitled the Extradition Act 2003 (Designation of Part 2 Territories) Order 2003, which came into force on 1 January 2004; that is, on the same date as the Act. That order included the designation under Section 71(4) of a number of states which were not either members of the European Union or parties to the Council of Europe convention. In particular, it included Australia, Canada, New Zealand, South Africa and the USA. In all of those states, except the USA, extradition is on a reciprocal basis.

Although the treaty of 31 March 2003 is not yet in force because it has not been ratified by the USA, the effect of the designation under Section 71(4) was to implement the new treaty before it was necessary to do so and before any of the limited benefits provided to the United Kingdom under the treaty were available. Further, it has done so on what is in effect a retrospective basis. Although the commencement order provides that the new procedure shall not apply to extradition requests received on or before 31 December 2003, that restriction can be and has been circumvented by the USA withdrawing a request made before 31 December 2003 and making a new request for extradition in respect of the same offence after that date. That is clearly contrary to the spirit, if not to the letter, of the treaty.
 
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The designation order was debated in your Lordships' House on 16 December 2003. In that debate the noble Baroness, Lady Scotland, said:

"The treaty has not been enforced yet because it has not been signed by the US Senate. We anticipate that the treaty will be put before the Senate formally early in the new year and approved shortly thereafter".—[Official Report 16/12/03; col. 1071.]

We are now nearly a year further on and the treaty has still not been ratified by the Senate. Furthermore, I believe that there is significant opposition to it in the Senate and that it may well never be ratified. A campaign against ratification of the treaty has been spearheaded by the American Civil Liberties Union and by Irish-American organisations in particular, including the Ancient Order of Hibernians. Indeed, examples of campaign letters are posted on the websites. Since the USA already has in effect the benefit of this treaty, it is under no incentive whatsoever to ratify it.

I believe that there are very good reasons why we should not agree to extradition to the USA without evidence. First, the standard of justice in the USA is very variable. There are 51 different jurisdictions, one for each state, together with the federal jurisdiction. Some of these jurisdictions are good, but some are bad, and indeed very bad.

Secondly, there is inadequate legal aid for those who cannot afford a lawyer. In certain states judges must stand for re-election and have to campaign on the severity of their sentences. It is difficult to see how that is something which can be regarded as an impartial judiciary.

Thirdly, in the USA there is excessive plea bargaining. That is practised here and it is right that there should be a reduced sentence for a guilty plea. But in many parts of the USA sentences are so long and the discounts for a guilty plea so enormous that there is a real incentive for the innocent to plead guilty. Problems also arise with bail, particularly in the case of non-residents. Bail has to be backed by a bail bond, but no US bail bond company is likely to issue a bail bond to a non-resident. The result is that non-residents have to spend long periods in prison before their trial.

Fourthly, there is increasing use of extra-territorial criminal legislation by the USA, especially in fraud cases. This can result in extradition being sought by the USA where the alleged offence was committed in the UK, the alleged victim was in the UK, all or most of the relevant documents and witnesses are in the UK, and the defendants whose extradition is sought are resident in the UK. That comes from an actual case, not a purely hypothetical one. Such extradition can be forestalled by the United Kingdom authorities initiating proceedings themselves for the same offence. If someone is tried here and acquitted, he or she cannot be extradited because of the double jeopardy rule. Ironically, therefore, defendants are better off if they are tried and acquitted in the United Kingdom than if the Crown Prosecution Service decides that there is insufficient evidence against them to justify a prosecution.
 
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Article 7 of the Council of Europe Convention on Extradition permits the refusal of extradition where the offence is committed in the territory of the state from which the extradition is sought. Similar provisions should be applied in relation to the USA. Moreover, there is no reciprocity. We are told that the reason for the American refusal to dispense with evidence is that it would breach rights under the Constitution. So be it. But in that case the USA should not expect other countries to extradite without evidence. If the present order had been in force at the time, we would have had to extradite the Algerian pilot, Lofti Raisi, against whom the American authorities failed to produce any meaningful evidence whatsoever of involvement in the terrible events of 9/11.

Many other countries have extradition treaties with the USA, but I understand that only two extradition treaties, those of Ireland and France, permit extradition on the basis of prima facie evidence. However, Article III of the Irish treaty provides that extradition may be refused when the alleged offence is regarded under the law of the requested state as having been committed in its territory. Article V of the Irish treaty provides that extradition may be refused when the authorities in the requested state have decided to refrain from prosecuting the person whose surrender is sought or have discontinued criminal proceedings. The French treaty provides no obligation on a party to extradite its own nationals.

Therefore, neither of these treaties is at all comparable with the treaty of 31 March 2003. I have to say that the inference here is that in negotiating the treaty, our negotiators failed lamentably to consider several serious issues, and failed to insert the kind of safeguards which are contained in the Irish treaty.

I therefore ask the Government to make a new Order in Council revoking the designation of the USA under Section 71(4). There should be no question of designating the USA again at least until it has ratified the treaty, but I believe that we should go beyond this. For the reasons I have given, we should never have agreed to this treaty in this form. We have power, under Article 24 of the Extradition Treaty, to terminate it. We should, and I believe we must, exercise that power. We could then negotiate a new treaty that would simplify the procedures but would still require evidence for extradition in either direction. Further, the Government should also amend Part 2 of the Extradition Act to permit the refusal of extradition where the alleged offence was committed wholly or mainly in the United Kingdom and the United Kingdom is therefore the proper forum for the criminal trial.

The Government have failed to give proper protection to people within their jurisdiction by entering into this treaty and by designating the USA, and the Government should put this right as soon as possible.

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