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Lord Slynn of Hadley: My Lords, before the noble Lord sits down, will he confirm that despite his optimism that the Opposition will one day welcome a written constitution for this country, and despite his undoubted enthusiasm for such a day, happy or otherwise, what he is really saying is that we do not need to wait for that written constitution before this country can insist on providing proper safeguards for people in this country— the reciprocity to which the noble Lord, Lord Goodhart, referred—and that the options are already there to make sure that these treaties do what they ought to do?

Lord Lester of Herne Hill: My Lords, I thank the noble and learned Lord, Lord Slynn. I did not mean to suggest for a moment that we would have to wait 20 or 30 years to put our system right before this injustice could be dealt with.

Viscount Waverley: My Lords, is the principle of reciprocity enshrined in the draft European constitution that will be before us shortly?

Baroness Anelay of St Johns: My Lords, we have had an interesting divergence from the normal rules of Unstarred Questions but we have all been tolerant about that, given the well-informed sources of both questions. I thank the noble Lord, Lord Goodhart, for giving us the opportunity to return to this vexed matter. I shall not seek to set out the detail of the historical or legal perspective, because both have been admirably presented with clarity by the noble Lords, Lord Goodhart and Lord Lester of Herne Hill. I will confine myself to an outline of our position on these Benches and to putting one or two questions to the Minister. In doing so, I shall follow the example given by both noble Lords who have already spoken and will not comment on the position of individual cases that are currently the subject of legal proceedings. It would not be appropriate to do so.

We first debated this matter in the context of the Extradition Act, when the noble Lord, Lord Goodhart, moved an amendment on 27 October 2003, which would have prevented any state being designated as a category 2 territory unless the legal conditions on which persons might be extradited from that territory to the UK were substantially similar to the legal conditions on which persons might be extradited from the UK to that territory. That set out the principle that we are debating
 
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today: the Government's failure to obtain reciprocity of benefit between the US and the UK. I supported the amendment of the noble Lord, Lord Goodhart, then and I continue to support his argument now.

It is extraordinary that the Government were prepared to sign away our protections with regard to the need for the US to produce prima facie evidence. It is even more extraordinary because the Minister, the noble Baroness, Lady Scotland, admitted in Committee on the Bill that when they agreed the treaty, the Government knew full well that the US could not reciprocate because its constitutional arrangements are such that it is not allowed to relax the requirement for prima facie evidence to be presented.

Although I have been challenged, enticed and invited to respond to the issue of a written constitution, I agree with the noble Lord, Lord Lester of Herne Hill, that that is a very big debate and I am relieved to save it for another day.

In the past, the noble Baroness, Lady Scotland, sought to mitigate the wealth of evidence against the Government's position by stating two points: first, that we got a good deal from the Government's negotiations because the US may now return people to this country more expeditiously; and secondly, that we had already surrendered the right to require prima facie evidence in our agreements with other democracies, the point to which the noble Lord, Lord Goodhart, referred.

The questions that flow from the position adopted by the Government in our previous debates are as follows: first, can the Minister say what other steps the Government took to obtain the proper return of accused persons to the United Kingdom from the US under the existing extradition agreements before deciding to surrender our right to require the presentation of prima facie evidence before our citizens may be despatched to the US, and when they took those steps? Secondly, why was it considered to be a proportionate response for the Government to surrender such an important safeguard as the requirement for prima facie evidence? Thirdly, in respect of our surrender of the requirement for prima facie evidence in our agreements with other countries, will the Minister list those countries which have this benefit but which do not fall into the categories of former Commonwealth countries or countries that are governed by the broad principles of EU conventions and those of the Council of Europe?

I believe that the Government should today give a positive response to the question posed by the noble Lord, Lord Goodhart, in the title of his Unstarred Question. They should give an assurance to the House that they will reconsider the current legal provisions governing extradition to the United States. I also believe that, at the very least, the Government should now defer the approval of the extradition to the United States of any British subjects until the United States Senate ratifies the Extradition Treaty of March 2003.

The noble Lord, Lord Lester of Herne Hill, was absolutely correct to point out that, in our debates on this matter, all of us have been in the position of being friends of the United States. We have not been
 
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criticising that country. It remains one of our closest and most enduring allies. But we have a duty to protect our own citizens and to ensure that any system of extradition is as fair and as reciprocal as possible. So far, the Government have failed in that regard.

Lord Bassam of Brighton: My Lords, I am grateful to the noble Lord, Lord Goodhart, for bringing forward this Unstarred Question because it enables us to set out our position. However, having said those encouraging words, I have little doubt that what the noble Lord will hear from the Government Benches this evening will not necessarily meet with his approval.

The Government are not in a position to reconsider the legal provisions currently governing extradition to the United States and do not wish to do so. The issues raised today regarding the US/UK extradition treaty, as all noble Lords who spoke in the debate know well and have affirmed, have already been debated and deliberated at great length during the passage through Parliament of the Extradition Act and when the United States was designated as a Part 2 territory, pursuant to the Extradition Act 2003, at the end of last year. All the required parliamentary procedures were duly followed and approval was secured. I cannot see that there have been any significant changes that warrant the reconsideration of our extradition arrangements with the United States.

Lord Goodhart: My Lords, does the noble Lord, Lord Bassam, accept that there has been one very important failure—that is, the failure of the US Senate to ratify the treaty, which we were told would happen early in 2004? There is now no sign of its proceeding to do so.

Lord Bassam of Brighton: My Lords, I acknowledge that the treaty has not been considered by the Senate, but it is our understanding that that will now proceed and take place in the near future, whatever that means.

The new treaty provides a much more modern framework for the making and receiving of requests for extradition. It introduces a sentence threshold of 12 months in both the requesting and requested states in order for offences to be considered extraditable. Many more offences that were not encompassed by the old treaty, such as computer-related crime, will now be classed as extraditable offences.

The United Kingdom has implemented the new treaty through the general reform of our extradition law. In this respect, we have simply placed the United States on a similar footing as many other countries, notably Australia, New Zealand, Canada, and those countries which fall under the European Convention on Extradition. The treaty under which requests between the United States and the United Kingdom are made is still the 1972 treaty until the United States ratifies the new treaty agreed in 2003. As I said earlier, the US authorities have assured us that the new treaty will be considered by the Senate Foreign Relations Committee as soon as practicable and possible.
 
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In the mean time, all requests for extradition made to the United Kingdom are considered under the provisions of the Extradition Act 2003, which provides full and effective safeguards for the rights of requested persons. It is worth reminding your Lordships what those safeguards are.

First, the district judge must consider whether extradition would be barred by reason that the person is really wanted on the grounds of race, religion, nationality or political opinion. Secondly, the judge must also decide whether extradition would be incompatible with the person's human rights under the European Convention on Human Rights. Thirdly, the Home Secretary must refuse extradition if there is a risk that the death penalty may be carried out unless he receives a guarantee that it will not be carried out. Fourthly, the Home Secretary must also be satisfied that there are speciality arrangements so that the person can be tried only for offences for which the requested person was found to be extraditable by the United Kingdom. There are also avenues of appeal against the decisions of the district judge and the Home Secretary.

Reciprocity has been mentioned during this short debate, and I shall come to it in turn. However, I do not agree that the Extradition Act 2003 (Designation of Part 2 Territories) Order 2003 should be amended to require the United States to provide prima facie evidence with its requests to the United Kingdom. The United States does not place this requirement on requests made by the United Kingdom. The United Kingdom does not make this a requirement of any extradition request from states party to the European Convention on Extradition, including countries as far afield as Russia and South Africa, nor from Australia, New Zealand or Canada.

The requirement for the United Kingdom to establish "probable cause" in any extradition request to the United States is less stringent than providing a prima facie case, but it is broadly comparable to the requirement to provide information about the offence, which is what the United Kingdom requires of the United States of America.

The position was not reciprocal before we made the recent changes. The United Kingdom has never demanded reciprocity from extradition partners; for example, by extraditing our own nationals to countries which cannot reciprocate. We are satisfied that the Extradition Act 2003 provides full and effective safeguards which allow requested persons to argue for their rights before the courts.

A great deal has been said about where persons should be prosecuted for offences following the United States' extradition request for the "Enron Three". The key issue is to ensure that offences are dealt with in the place where they can be most effectively prosecuted. For example, where the main witnesses and the main evidence are in another state, then it makes sense for the defendants to be extradited to face justice there. Assuming that the state has a justice system that is comparable to our own in terms of fairness, it is hard to disagree with that.
 
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As for the case of the Enron Three, it would be wrong for me to go into any great detail about it. I am grateful that noble Lords have not attempted to draw us out on that case. But it is perhaps worth saying that on 15 October, at Bow Street magistrates' court, the district judge found that there was a good and proper case for prosecuting the three in the United States, and sent the case to the Home Secretary for his decision.

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