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Lord Lester of Herne Hill: My Lords, we should all be very grateful to my noble friend Lord Goodhart for tabling this Question. He has raised issues which ought
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to be of concern to all those who care for the liberties and rights of the peoples of this country and beyond, and for the international rule of law. I shall attempt to avoid repeating what has been said so eloquently and powerfully by my noble friend, but I should like to make a few additional points.
Like my noble friend, I had the great benefit of an education many years ago at Harvard Law School. Unlike him, I do not come from a distinguished United States/British family. My noble friend's father, the late Sir Arthur Lehman Goodhart, was a very great jurist who flattered this country by living here. No one could accuse either my noble friend or myself of being anything other than a good friend of the United States. Indeed, in my case I would say that almost everything I learnt about the law was learnt at Harvard Law School. Sadly, however, the principles I learnt there have rather died out over quite a significant part of the United States in recent times.
Some years ago I introduced a Private Member's Bill to encourage the parliamentary scrutiny of important treaties. In the debate on the Bill I can recall referring to the Ponsonby rule and to the fact that when Arthur Ponsonby was a Minister working with Ramsay MacDonald, he managed to blurt out during a debate on, I think, the Treaty of Locarno, a new way of enhancing some kind of knowledge and scrutiny in Parliament of treatieswhat we call the Ponsonby rule. I pointed out then that the Ponsonby rule does not provide any effective means of parliamentary scrutiny; and that what we really neededand needis a committee, either of this House or of both Houses, that can look properly at at least some treaties, in the way that we look very properly at European legislation in our treaty scrutiny in both Houses.
The committee of the noble Lord, Lord Wakeham, on the reform of the House was kind enough to recommend that some such committee should be established. It has never happened. If ever we want a case to illustrate, as my noble friend has said, why the use of the Crown prerogative to make, and become bound by, treaties needs to be under the scrutiny of Parliament before the damage is done, this treaty shows why that is so. We have a fine system of scrutiny of European legislation. I do not regard it as acceptable any longer that we have no effective scrutiny of matters of this kind, especially when they affect the rights and liberties of the subject. I should be very surprised if the official Opposition did not agree with what I have said. This is really a matter that transcends party politics.
As my noble friend explained, the treaty was signed at the end of March 2003, but no text was available to the public until the end of May 2003. The text was not available for comment before signature. I should like to ask the Minister what conceivable justification there is for the complete lack of transparency before the treaty was signed.
It would be an exaggeration if I were to describe the treaty as an unequal treaty in the sense of the series of treaties that were signed by the Qing dynasty with imperial powers in Victorian times. Those treaties were
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forced upon China because of the domination of imperial powers seeking to do what they liked in pursuit of profit. But all the same, this is an unequal treaty. It is part of an imperial trend in United States foreign and legal policy in seeking to extend United States jurisdiction beyond its territory without being prepared for reciprocity with other friendly states, still less accepting the jurisdiction of any supranational judicial authority. It is unequal in the sense that it denies equal protection to citizens and others within the jurisdiction of the two countries.
As my noble friend explained, the United States is not required to show a prima facie case for its extradition requests to the United Kingdom, even though probable cause must be shown for extradition from the United States. There is therefore no reciprocity and no equal protection. Yet, reciprocity has always been at the heart of extradition law, whether national law or international law. So this treaty flouts that long-standing tradition which goes back well beyond the century.
The United Kingdom Government have arguedas will probably be argued in reply todaythat whereas the United States has constitutional guarantees preventing it from extraditing an American citizen on the say-so of a foreign government, we have only an unwritten constitution which does not contain a similar guarantee protecting British citizens, and so our birthright as people of this country is unprotected in the way that the American birthright is protected. I do not think much of that as an argument in itself. But it surely is an argument, if at all, in favour of not entering into the treaty on unequal termsor of now denouncing the treatyand for developing our own modern British constitution with our own modern British bill of rights.
The reason why the Irish and French treaties give more protection is that the Irish and the French have constitutional systems which have to be taken into account in negotiations with the United States. All that we have, apart from the European Convention on Human Rights, is parliamentary sovereigntyand parliamentary sovereignty in this area is a busted flush, not only because treaty making operates entirely under the prerogative of the Crown, so that Parliament has nothing to do with it, but also because parliamentary sovereignty does not provide a barrier of any kind to the making of the treaty.
I am optimistic enough to believe that a future Conservative Party will eventually see the wisdom of favouring a proper modern British written constitution, with proper modern safeguards for our rights and freedoms, in order that we are in as strong a position in negotiating with the European Union, the United States or anyone else as are most other Commonwealth countries and the rest of Europe. But that is for another day.
Perhaps I may give one or two examples of why the United States should not be considered as equal to Council of Europe countries in terms of international co-operation despite the concerns about the human rights records of some Council of Europe states. I leave aside the death penalty because that is catered for in the treaty.
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It is fair to say that the United States is not accountable to any international court and has shown a complete disregard in recent times for the judgments of even the International Court of Justice, as anyone who has read the death penalty cases involving Mexico, Germany or Paraguay will know. In the German case, where the Hague court gave an interim ruling, the United States Solicitor General took the position that an order of the International Court of Justice indicating provisional measures is not binding and does not furnish a basis for judicial relief. Any breach of international obligations or human rights which might occur following extradition to the United States effectively would not be judicially reviewable. Such a breach which might occur in relation to a Council of Europe country would give rise to proceedings under the European Convention on Human Rights, but there is no equivalent in the United States.
When the explanatory memorandum to the treaty was published, we were told that there were two understandings, one of which was that the provisions on onward extradition or surrender of a person extradited to the United Kingdom under the treaty operate to preclude onward surrender to the International Criminal Court. In other words, if someone was brought to the United Kingdom and the matter was considered so serious that it needed to be dealt with by the International Criminal Court, the understanding, and the basis on which the treaty was signed by the United Kingdom, was that that could not be done, thus fettering our own sovereign right to accept the jurisdiction of the International Criminal Court, which the United States refuses to do.
In addition to the concerns expressed by my noble friend about the diversity among the states of the union, Professor Herman Schwartz, a distinguished professor of law at the American University in Washington, published an important article in Newsday magazine on 18 August this year. In it, he referred to the general attitude of the United States towards torture in recent times. He also referred to a disclosed government memorandum on the interrogation of detainees, which has been widely condemned for twisting the law to justify cruel, inhuman and degrading interrogation tactics. He referred to the most notorious of the memoranda as having been issued by the Assistant Attorney General in the Justice Department, and he indicated that the official who wrote that memorandumwhich I shall not now quote, but which was to dilute the international standards on torture and inhuman and degrading treatmentwas one Jay S Bybie, who was appointed by President Bush to the Ninth Circuit Court of Appeals a year after he wrote the memorandum.
Professor Schwartz also points out that another man who approved another notorious memorandum of this kind, this time a Defence Department general counsel, was one William Haynes, who has been nominated to the Fourth Circuit Court of Appeals. That nomination is pending. He gave other examples that I shall not take time to mention.
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These examples show not only that state jurisdictions vary, and that some of them are distinctly dodgy when it comes to extradition, but also that in the federal system, political interference and matters involving a very right-wing and unbalanced series of appointments are seriously undermining the rule of law on the federal bench, as well as in state courts.
I repeat what I said at the beginning. I am a friend of the United States, but I fear for the rights and liberties of our people, if they are to be sent to the United States under this unequal treaty. I very much hope to hear something positive from the Minister in reply.
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