WEDNESDAY 4 JUNE 2003

BOB AINSWORTH MP, MR CLIVE WELSH, MR RICHARD CLAYTON AND MR PAUL REGAN

  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.

  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 that.

  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.

  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.

  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 about.

  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.

  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.