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Lord Goodhart: My Lords, is it not correct that the district judge made no such finding, as a finding? He expressed the view that there was such evidence but he had not actually considered whether this was the case or not because it was not necessary for him to do so. He made no legal finding on the point.

Lord Bassam of Brighton: My Lords, my understanding is that the district court judge found that there was a good and proper case for prosecuting the three in the United States. That is a slightly different point. On that basis, quite rightly, he sent the case to the Home Secretary for a decision on whether to order extradition. As the noble Lord knows, the Home Secretary will have to make that decision in due course, and quite shortly. More than that I think it would be wrong for me to say.

The noble Lord, Lord Goodhart, and others asked some questions with which I shall attempt to deal, as best I can, from the Dispatch Box. The noble Lords, Lord Goodhart and Lord Lester, spoke about treaties and scrutiny. It is normal for treaties which require to be negotiated confidentially between countries not to be given effect until after signature. The Extradition Act 2003 and the Part 2 order gave the opportunity, we believe, for the appropriate level of parliamentary scrutiny. It is worth noting that no amendments were proposed during that process.

The noble Lord, Lord Goodhart, stated that the European Convention on Extradition—

Lord Lester of Herne Hill: My Lords, is the noble Lord saying that the Government are opposed to the recommendation of the Wakeham committee that there should be a proper treaty scrutiny committee to deal with the making of treaties in terms of parliamentary accountability?

While I am on my feet, I should like to ask a second question. I think that the Minister said, but I could not believe it, that he saw no difference in the treaty between the American standard in Article 8(3)(c)—probable cause—and the standard in Article 8(2)(a) which is a mere description of the nature of the offence. Is he seriously saying on behalf of the Government that the two standards are the same and that merely describing the offence is the same as probable cause? If so, will he explain how that can be?

Lord Bassam of Brighton: My Lords, a lawyer I am not. My understanding is that they are broadly similar, and that that has provided a satisfactory basis for
 
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comparison. As to the noble Lord's first point, perhaps the noble Lord would just remind me of it again.

Lord Lester of Herne Hill: My Lords, I thought that it was common ground all round that the Wakeham committee's suggestion of a treaty scrutiny committee was one that the Government were sympathetic to but had left it to the House to decide upon. I thought that that was the position.

Lord Bassam of Brighton: My Lords, I am not clear whether that is the position. What I did say earlier was simply this—that we felt that it was right that the treaty should be negotiated in a confidential way and should not come into effect until after signature. At that stage, as part of the process of the order-making, there was the appropriate opportunity—because I am sure the noble Lord appreciates the need for confidentiality—for some discussion of the treaty. We had those debates. I have a copy of the relevant Hansard here, and many of the issues raised in your Lordships' House this evening were raised on that occasion.

Lord Morgan: My Lords, my noble friend says frequently that it is a tradition of this country that we should have confidentiality and secrecy in discussing these matters. We have also heard that we are awaiting a full public discussion in the United States. Why should this country be so extraordinarily supine in having a public discussion about an international treaty? Is that not a major feature of the defects of our constitution?

Lord Bassam of Brighton: My Lords, the noble Lord makes an interesting constitutional point, but we go through our processes and cannot dictate or determine how other jurisdictions work through their processes or the way in which they consider matters of this nature. However, the noble Lord makes an interesting point in contribution to the debate.

I wanted to deal with some of the issues that were raised earlier. The noble Lord, Lord Goodhart, made the point that the European Convention on extradition is fully reciprocal. We do not take that as being exactly the case. States that are party to the convention can make reservations to it so that they can bring it into force under their domestic law, when their domestic law would otherwise be in conflict with the convention. That is really what I meant when I said that extradition could not always be exactly reciprocal.

The noble Lord, Lord Lester, suggested that we ought to have a written constitution. Obviously, that is a much broader question than the one that we are dealing with this evening. I believe that the noble Lord was suggesting that we should make it comparable perhaps with the Irish approach, so that we have equality of arms in negotiations with other states, and to protect the rights of British citizens. The point here, which is one that I made earlier, is that the new Extradition Act 2003 contains full and sufficient safeguards, including explicit reference to the European Convention on Human Rights—
 
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protection that was of course not there before the current Government came into office. So there is a protection of the rights of requested persons—and, in particular, protection for British citizens.

The noble Baroness, Lady Anelay, asked a number of questions. The first point that she made related to the steps taken before negotiations began to secure the rights and interests of British citizens. Again, I return to the point about the full and sufficient safeguards in the Act to protect the rights of all persons requested for extradition, including those protections offered by the European Convention on Human Rights. All requests for extradition are dealt with by, and will be subject to, the provisions of the Extradition Act 2003.

The noble Baroness also asked which countries that are not former Commonwealth or Council of Europe countries do not have to provide prima facie evidence. The answer to that is that there is none. However, Council of Europe countries, of which there about 40 including Albania and South Africa—no, that cannot be right. I shall pursue this question further outside this debate, because the handwriting of the note that I have been given is not perfect and I do not want to give an imprecise response.

I think that I have covered most of the points raised during this useful debate—

Lord Baker of Dorking: My Lords, the Minister said at the beginning that his speech would be unwelcome, but it is also inadequate, in that he has not answered several of the points that have been raised. I thank the noble Lord, Lord Goodhart, for bringing the issue of reciprocity to the attention of the House. The Minister cannot simply get away with the argument saying that we have not had it in the past, so we cannot have it in future, when America is asking us fundamentally to change the whole situation. The Government should have taken a much tougher line. Nor has the Minister answered the question about the British citizens who, as a result of this measure, are in a position whereby their rights are not protected as those of American, French or Irish are protected, by their constitution. He has not answered that point.

There was a third point that the Minister did not answer. If he is so satisfied with this particular arrangement, why is it that any foreign national who appears before an American court finds it virtually impossible to get bail? That is an erosion of a right. Will it be protected under the European Convention on Human Rights? I think not. That is an example of a measure for which President Bush has asked and which the Government have given in to. That is not the right way to behave when the rights of British citizens are directly involved.

Lord Bassam of Brighton: My Lords, I do not agree with the noble Lord. I agree that this has been a useful airing of some of these issues, which have been aired before extensively during the passage of the Extradition Bill. I make the point again, on the issue of reciprocity, that previous governments, including the government of which the noble Lord was an experienced and long-standing member, did not believe that exact reciprocity
 
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was appropriate. I would argue that exact reciprocity would not in all circumstances have been possible and would not necessarily, in any event, have made the extradition process work as well as it has in our experience.

As to the noble Lord's final point about protecting the rights of British citizens, the Human Rights Act, the European convention and the other legislation provide rights and protections that were not there before, and that strengthens the rights of British citizens.

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