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Lord Goodhart: My Lords, in speaking to the Motion which has just been moved by the noble Baroness, Lady Scotland, I wish to speak also to my Motion.
I understand that the Clerks have told us that the Government's Motion does not pre-empt mine. Therefore, it may be helpful to say at the beginning that noble Lords on these Benches do not propose to divide your Lordships' House on the Government's Motion but to divide it on mine.
As we have just been told, on 31st March of this year the United Kingdom and the United States of America signed a new extradition treaty. No prior notice of the terms of the treaty was given to Parliament and, so far as I know, no one outside government was aware of the terms of that treaty as they were being negotiated. The treaty was signed by those famous supporters of civil liberties and human rights—the Home Secretary and Attorney General, John Ashcroft.
As we have been told, under the terms of the treaty the American Government can obtain extradition from the United Kingdom without having to produce evidence to show that there is a prima facie case to
answer against the person whose extradition is sought, but the United Kingdom still has to provide prima facie evidence to get extradition from the USA.The treaty needs to be ratified by the American Senate before it can come into force. I do not know whether that ratification has yet occurred. To bring the treaty into effect in the United Kingdom it is necessary for the Government to make an order. The order in question—the one that we are now debating—will bring the treaty into effect on 1st January 2004.
Part 1 implements the European arrest warrant. The USA is not, of course, a party to the European arrest warrant and Part 1 is not relevant to this debate. Part 2 of the Extradition Act provides for extradition to other territories designated for that purpose by the Secretary of State. Those territories—there are well over 100 of them—are set out in paragraph 2 of the order, and they include the USA. In itself, we have no objection whatever to paragraph 2. It simply maintains the status quo.
Under Section 84(1) of the Extradition Act, a judge faced with a request for extradition must decide whether there is evidence which would be sufficient to make a case requiring an answer from the subject of the request. However, under subsection (7) of Section 84, the need for that evidence is excluded if the Secretary of State makes a further designation. Paragraph 3 of the order contains the list of states which are designated under subsection (7) of Section 84 in respect of which evidence does not have to be provided. Of course, paragraph 3 also includes the USA.
Paragraph 3 also includes a number of states that are not in the forefront of observance of human rights and high judicial standards. I might refer for example to Albania and Azerbaijan. Of course, I am not suggesting that the legal standards in those countries are equal to or better than those in the USA. Those countries appear in paragraph 3 because, in 1990, the United Kingdom signed up to the European Convention on Extradition. The states party to that convention are required to extradite to each other without the need for prima facie evidence.
As has been explained, that convention is a product of the Council of Europe, not the European Union. It dates back to 1957, although the United Kingdom did not ratify it until 1990. Of course, that was done under a Conservative government who, then and now, were notable for their European enthusiasm. Unlike the agreement between the USA and the UK in the new treaty, the obligations under that convention are reciprocal. It is also true that all members of the Council of Europe are subject to the European Convention on Human Rights. An order giving effect to that convention was made in 1990 under the Extradition Act 1989. It was replaced by an amended order laid by the present Government in 2001.
What we might have done at an earlier date is neither here nor there. As the arrangements have been in operation for 12 years, we feel that it is inappropriate for us to seek to alter the status quo in relation to those states that are parties to the European
Convention on Extradition. All except four of the states listed in paragraph 3 are party to that convention. Of those four, three are Commonwealth countries—Australia, Canada and New Zealand—as the Minister explained. We have no objection to their inclusion. The remaining country is the United States of America, and we object to its inclusion in the list of countries to which extradition does not need supporting evidence. We objected to that as soon as we became aware of the terms of the treaty, and we have continued to object to it ever since.We object for three reasons. The first is the fact that there is no reciprocity. We are told that the reason for that is that the USA would need to change its constitution to be able to extradite people without the need for supporting evidence. Of course we are all aware that changes in the American constitution are extremely difficult and take sometimes decades to achieve, if they can be achieved at all. However, reciprocity is an important principle. If the United States believes in the constitutional principle that people cannot be extradited without evidence, it should not expect or ask us to extradite people to it without evidence.
If the order had been in force at the time, the United Kingdom would have been required to extradite the Algerian pilot Lotfi Raissi to the United States, on the basis of blatantly inadequate evidence that resulted in his extradition being refused.
Secondly, the USA has 51 different legal jurisdictions. The standards of the criminal process in the federal courts and in some American states is undoubtedly satisfactory. However, in other states—I mention Texas in particular as one—the standards are far from satisfactory. No doubt they are still better than those in Albania, but the fact that we have dispensed with evidence for extradition to some countries where the criminal process may be poor does not justify extending the same principle to other countries where standards are also poor.
Thirdly, we do not think that we should enter into agreements to lower the barriers for extradition to the United States at a time when the present administration have shown utter contempt for due process for the prisoners at Guantanamo Bay, and the federal courts have so far shown themselves feeble in recognising the claim of those prisoners to due process. It is not we alone who say that. It was the subject three weeks ago of an extremely powerful speech made in a public lecture by the noble and learned Lord, Lord Steyn.
Each of those three reasons would justify the exclusion in itself of the USA from the list of states to which we are required to extradite people without supporting evidence. Taken together, the case for excluding the USA from the list is overwhelming. We call on the Government to withdraw the order and to introduce a new order that will exclude the USA from the list in paragraph 3.
Baroness Anelay of St Johns: My Lords, the Extradition Act was indeed controversial when it made its progress through both Houses, because we on these Benches objected to the European arrest warrant procedures that were put in place in Part 1 of the Act. We believed then and we believe now that it would have been more appropriate to apply the Part 2 procedures to all countries. However, today I agree with the Minister that this is not the time for a rerun of all those old arguments, and I do not propose to give one.
We have before us a series of orders—this is the first, with three more to follow—that put in place the implementation of that Act, and we will consider them in a constructive manner. We have an opportunity to do so by affirmative measures as a result of a government concession in this House to an amendment tabled by my noble friend Lord Hodgson of Astley Abbotts, supported by the noble Lord, Lord Goodhart. Without that, they would have been subject to the negative procedure by Order in Council.
Throughout our debates on the Extradition Act, we made it clear that our objective has been to ensure that our extradition procedures are both effective and fair. We agreed with the Government that it was right to bring them up to date, to make the whole process of extradition swifter while retaining safeguards necessary to ensure that the innocent do not suffer. There must be no hiding place for those who commit crimes and seek to escape a fair trial by skipping from one country to the next.
Now that we have a new Extradition Act, it is right that it should be implemented as quickly and as effectively as possible, while ensuring that the right safeguards are in place first. My approach today is therefore that we do not oppose the making of any of the orders, although serious questions need to be answered. The noble Lord, Lord Goodhart, has already posed a series of those, and I shall not repeat his points.
As some of the questions of which I have thought with regard to this and the other orders are rather detailed, I gave advance notice of them to the Home Office. I was therefore grateful, when I read the proceedings of a Standing Committee in another place, to note that the Government had answered them there in response to my honourable friend Mr Nick Hawkins. That was most helpful. I shall need to invite the noble Baroness to confirm one or two issues on other orders, for clarity.
When we debated the United Kingdom-US treaty in brief on Report of the then Extradition Bill, I made it clear that I was disappointed that the Government had ceded our right to have prima facie evidence produced by the US when it made a request to us for extradition, at the same time as our Government failed to obtain that same right from the US in respect of applications that we make to it for extradition from that country to the UK. My complaint was not about the United States, but about the UK Government. I understand full well that the United States cannot give up its right to demand "probable cause" evidence, because its own
constitution simply does not allow it to do so. The UK Government knew that, but they went ahead and made a one-sided concession.Today, the noble Baroness has put forward an interesting and perhaps very forceful argument about why it is not always possible to have complete reciprocity in all agreements. There is validity in that. One might say that there is even more validity in her assertion that the lopsided legislation was put in place by a Liberal government back in the 19th century. Who am I to add to that wonderful analogy? However, the problem is of the Government's own creation. I accept that in some cases it would not be proper to go ahead, but this is not one of them. I recognise that the United States is our closest ally and has been for a century or more. That is a very valuable relationship.
I put my trust in the judicial system of our closest ally, especially because there are other safeguards in Part 2 such as the Secretary of State's backstop power. Therefore, we on these Benches do not support the Motion in the name of the noble Lord, Lord Goodhart.
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