Police and Justice Bill

moved Amendment No. 186: After Clause 46, insert the following new clause- ““DESIGNATION OF PART 2 TERRITORIES: OMISSION OF UNITED STATES OF AMERICA In the list of territories in paragraph 3(2) of the Extradition Act 2003 (Designation of Part 2 Territories) Order 2003(S.I. 2003/3334) ““the United States of America”” is omitted.”” The noble Lord said: In moving AmendmentNo. 186, I shall speak to the other amendments in the group. I shall speak also to Amendments Nos. 187 to 190 because, although they deal with a distinct matter, in a sense the two groups of amendments run together. The issues raised by the amendments deal with two matters. The first is treaty ratification; the second is reciprocity—that is, the fairness of the test contained within the treaty itself. I shall begin by dealing with ratification, although necessarily, as I seek to develop my argument, I shall make some reference to reciprocity. Our starting point is the existing international law between ourselves and the United States—the extradition treaty of 1972. That treaty still defines the international law obligations between the two countries. It is, broadly speaking, a treaty which contains tests which are balanced. If the United States wishes to extradite someone from the United Kingdom, it has to meet what is known as a prima facie case to succeed. Equally, when we apply to extradite somebody from the United States, we have to meet the test of probable cause. There is much debate in international law about the extent to which these two categories are balanced; but, broadly speaking, I think it is accepted that they are. On 31 March 2003, Mr David Blunkett andMr John Ashcroft, respectively at that time, the Home Secretary of the United Kingdom and the Attorney General of the United States, signed a new extradition treaty. I say in passing that no prior notice was given to Parliament of the terms of this treaty before it was signed. Indeed, as far as I am able to determine, no one, outside Government, appears to have got wind of what was going on. The whole question of parliamentary oversight of treaty negotiations was raised tantalisingly by the noble Lord, Lord Lester of Herne Hill, in his debate on prerogative powers earlier in the year. Although I shall not develop the arguments now, I believe that the manner in which that treaty was concluded deserves the closest attention of your Lordships' House. From our point of view, the most important thing about this treaty is that it changed the reciprocity test. Although we have to continue to show probable cause to the United States Government when seeking somebody’s extradition from the United States, the prima facie case no longer applies. That point was very fairly dealt with by the noble Baroness, Lady Scotland, during the debate on the Extradition Act 2003 (Designation of Part 2 Territories) Order 2003. She said that, "““when we make extradition requests to the United States we shall need to submit sufficient evidence to establish ‘probable cause’. That is a lower test than prima facie but a higher threshold than we ask of the United States, and I make no secret of that. The fact is that under the terms of its constitution the United States of America cannot set its evidential standard any lower than ‘probable cause’””.—[Official Report, 16/12/03; col. 1063.]" The treaty is what today's debate is fundamentally about. The treaty needs to be ratified by both parties to give it binding effect in international law. Until it is ratified by both parties, the 1972 treaty in international law prevails. We are still waiting for the 2003 treaty to be ratified by the United States. Meanwhile, in November 2003, the Extradition Bill became law. I need to refer to two provisions of the Bill, though telegraphically. The relevant part of the Bill is Part 2; Part 1 deals with arrest warrants. Section 84 of Part 2 provides for extradition to territories other than those covered by the European arrest warrant. In particular, Section 84(1) states that, faced with an extradition request, a judge must decide whether there is sufficient evidence to make a case requiring an answer from the subject of the request. That is to say, Section 84(1) establishes and repeats the prima facie rule. However, under Section 84(7), the need for prima facie evidence is excluded if the Secretary of State makes a designation so saying. That further designation was made under the Extradition Act by an order which came before your Lordships' House in December 2003. Under that order, the United States was one of a number of paragraph 2 countries, most of which were signatories to the European Convention on Extradition. The act of designation by that order—its approval by both Houses of Parliament—meant that from 1 January 2004, we were required to meet our side of the bargain struck by Mr Blunkett in that treaty even though there was no obligation on the United States to meet its. That point was freely admitted by the noble Baroness, Lady Scotland, in the December debate, but she was optimistic. She said: "““We anticipate that the treaty will be put before the Senate formally early in the new year””—" the new year of 2004— "““and approved shortly thereafter. We do not anticipate that we shall encounter any difficulties in that regard””.—[Official Report, 16/12/03; col. 1071.]" Yet, here we are, two and a half years later. The United States has done nothing about ratification, in breach of the rules of international comity. But we have been acting as though the United States had ratified that treaty, to the astonishment of a number of Americans, some of whom gave evidence to the relevant Senate committee in November last year. We have been acting on the basis of a treaty that, as yet, forms no part of international law. That explains the first of our amendments—Amendment No. 186—which would simply remove the United States from the designation of Part 2 territories until ratification takes place. We believe that the time has come for your Lordships' House to act. The United States Senate is, after all, another upper House in an English speaking world; and we hope that a firm signal from your Lordships' House would be taken seriously by the United States Senate. There are two other amendments in this group—Amendments Nos. 191 and 191A. We intend to withdraw Amendment No. 191 in favour of Amendment No. 191A tabled by the noble Lord, Lord Goodhart. We are able to support that amendment although we are not totally content with it as it stands. We do so to give the other place the chance to consider the underlying operation of the treaty, and we do so with one very significant reservation—that when it gets to the other place, it must be revised to remove its application to acts of terrorism so as to ensure that we can maintain quick and efficient extradition of terrorists, which is a principle that I know the whole of your Lordships' House supports. I move on to the question of reciprocity. I shall make no observations about the substance of the case known colloquially, in all the newspapers, as the case of the NatWest Three. However, it is fair to say that their case has thrown up a number of weaknesses in the treaty negotiated by Mr Blunkett as well as in the Extradition Act 2003. I shall pay some attention to both of them. First, there has been no attempt whatever by the Government to incorporate the forum rules contained in the 1957 European Convention on Terrorism to which we are parties, although the United States is not. Article 7.1 of the convention is reflected, in essence, in our Amendment No. 189, which says: "““If the conduct disclosed by the request was committed partly in the United Kingdom, the judge shall not order the extradition of the person unless it appears in the light of all the circumstances that it would be in the interests of justice that the person should be tried in the category 1 territory... In deciding whether extradition is in the interests of justice, the judge shall take into account whether the competent United Kingdom authorities have decided to refrain from prosecuting the person whose surrender is sought for the conduct constituting the offence for which extradition is requested””." That amendment in essence reflects terms to which we agreed in the 1957 treaty and the Council framework decision of 13 June 2004 on the European arrest warrant. It hands over to a judge the power to decide not whether there is a prima facie case but whether the nature of the offence, in all the circumstances, ought to be tried in the United Kingdom rather than the United States. In reaching that decision, the judge would take into account a number of factors—such as territoriality, the availability of witnesses, the nature of the evidence and the availability and admissibility of that evidence. This approach has been well established in Europe for many decades; and we see no reason why they should not apply to the extradition treaty and the Act applying to it between the United States and ourselves. One interesting thing about the extradition treaty between Ireland and the United States is that it contains precisely that qualification. Like us, the Irish are no longer demanding prima facie evidence, even though the United States continues to demand probable cause. But the Irish Government have insisted that the courts apply a forum test. That is totally absent from the Extradition Act 2003, and we believe that it should be included. The second matter to which I draw your Lordships’ attention is the question of the relationship between the Extradition Act 2003 and the Human Rights Act 1998. Throughout the debates that we had on the Extradition Bill, the Minister was at pains to reassure us that the terms of the Human Rights Act would continue to apply to matters within the jurisdiction of the Extradition Act. That fact is in the Act in Clause 87(1), where it says that judges considering these matters are expressly required to take into account the Human Rights Act when construing the Extradition Act. There has recently been a series of cases in connection with the NatWest Three. They have gone as far as the Court of Appeal; it considered the relationship between the Extradition Act and the Human Rights Act and reached the conclusion that, in every case, the international treaty as reflected by the Extradition Act always trumped the Human Rights Act. On a true construction of the Act in relation to the Human Rights Act, I am sure that that judgment is sound; and nothing that I am about to say should in any way be read as a criticism of the Court of Appeal. However, if that is now the law, and the Human Rights Act is overridden in that total and complete way by the Extradition Act, then the Government should look at that relationship again. In the deportation of non-British nationals cases, the courts spend years trawling over factual issues about what will happen to a non-British national when he or she is returned to the country to which he or she is to be deported. But it appears that in the context of the extradition treaty, the balance between what the Human Rights Act requires and the Extradition Act itself is different from normal deportation cases. At least, that is what I have concluded from the judgment of the Court of Appeal. If that is so, in my submission the Government should look at this balance again. That is the second reason why we have raised further amendments and will support the amendment tabled by the noble Lord, Lord Goodhart. I do not need to say anything more, except this: I have watched, in the course of the past five years of the Government’s time in office, an astonishing erosion of the rights of the criminally accused in a whole range of areas, which I am not going to repeat. The Minister has heard me saying this before; she knows what I am saying. I regard the manner in which a country treats its criminally accused as absolutely central to the way in which it is defined as an open, free and democratic society following the rule of law. That has been said by many great men; it is not an original observation. Quite frankly, the evidence that the Committee has before it today is that the circumstances surrounding the ratification of the treaty, and the degree of reciprocity within it, raises further serious question marks about whether we meet that free society test. I beg to move.