Police and Justice Bill

moved, as an amendment to Motion D, leave out from ““House”” to end and insert ““do insist on its Amendment No. 36, but do not insist on its Amendment No. 85””. The noble Lord said: My Lords, I shall speak also to my amendment in Motion F1. In the many incursions that this Government have made into individual liberties during their time in office, the matters concerned with the bilateral treaty on extradition with the United States is a special case, because that agreement was negotiated in secret. The press knew nothing about it; neither did Parliament. It appears from the proceedings in another place that not even Mr John Denham, the Minister of State at the Home Office at the time, knew anything about it. As a result, we were presented with a fait accompli on 31 March 2003. The treaty, containing many clauses that applied directly to the rights of individuals in this country, was wholly unsupervised by our parliamentary system. One might well ask what animated the Government in engaging in such a negotiation. Were they simply supine in the face of a country they wanted to please beyond anything else? Did they deliberately decide to reduce the rights of British citizens in relation to extradition? Or were the negotiators simply incompetent; were they wholly unaware when accepting the American Fourth Amendment—the probable cause matter to which the Minister referred—that we also have constitutional protections in the European Convention on Extradition, particularly Article 7.1? Whatever the explanation, and I suspect history will finally produce an analysis that gives us a more accurate audit trail than I have today, I am absolutely convinced that, in future, Parliament must have a role in the scrutiny of treaties before they are signed. That is the big constitutional lesson that comes out of this sorry story. I would like to see all treaties produced in front of a committee while they are in draft, and the House should debate them before they are signed. I very much hope that this is a matter the House will take seriously in the coming months. In opening, the Minister quoted certain things from the speech I made in Committee on 11 July, at cols. 625-29 of the Official Report. Her quotations demonstrate all the dangers of quoting out of context. I made it absolutely clear at the beginning of my speech that I had two objections to the treaty. One was the issue of ratification, to which she referred. The other was the issue of reciprocity, or fairness, to which she did not refer. I do not need to elaborate on this point because the noble Lord, Lord Goodhart, has made it for me. He has said in terms that what principally concerns him is the issue of reciprocity; and I do not need to add anything to that observation. I share exactly the same opinion. The fundamentals that lie behind this issue have already been well debated, and I do not intend to repeat in terms what I said in Committee. I shall just refer to a number of points the Minister made in opening. The first one concerns the question of prosecutors and judges. She quoted a famous passage from Lord Dilhorne about judges interfering in matters that are none of their concern. Extradition matters, however, are very much judges’ concern, as we learn from Article 7.1 of the European Convention on Terrorism. I ask the House to forgive me for quoting this to your Lordships, but it is germane. Our forum amendment 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””." We have entered into a binding obligation with our European partners which in terms gives the judge, not the prosecutor, the power to decide whether or not somebody should be extradited. I can think of nothing less desirable than giving this power to the prosecutor. You can just imagine what might happen; the prosecutors in the United Kingdom and the United States get together over an issue and they do a deal over whether or not somebody should be extradited. There is no judicial intervention or objective analysis of the interests of the person whose freedom is in issue. The whole proposition that these matters of extradition ought to be in the hands of the prosecutor rather than the judge is quite alien to our traditions; yet it is precisely what the treaty requires us to do. I ask your Lordships to reject the argument upon which the noble Baroness founded her contention—that these matters are much better dealt with by prosecutors. There is also a deeper unfairness here. What made the United Kingdom give way on the Article 7.1 point? No other country has done so. Both France and Denmark have bilateral treaties with the United States; but France refuses to extradite any French citizen under any circumstances and, in the case of Denmark, the forum provision applies. If the offence in issue is partly committed in Ireland, it will be tried in Ireland unless the interests of justice dictate otherwise. Why on earth did we not have a similar provision in relation to the United States? That is why I cannot understand what the negotiators thought that they were trying to achieve. The noble Baroness has said how important it was to the United States that the fourth amendment on probable cause should be protected. The United States was not prepared to give way on that. Why were we prepared to give way on Article 7.1? Perhaps the noble Baroness has some explanation for that; but it seems to me inexplicable. Then there is the question of the relationship between the Human Rights Act and the extradition treaty—a relationship dealt with in Section 87(1) of the Extradition Act. Here I think that the Government deserve a little more understanding because in the course of the debate on the then Extradition Bill the Government made it quite clear that the Human Rights Act applied. But in a recent Court of Appeal decision in relation to the NatWest Three, the court decided that where there is a conflict between the Human Rights Act and the American extradition treaty, the extradition treaty trumps the Human Rights Act. So all the protections of the Human Rights Act, which we assumed would be there when the Extradition Bill was debated, seem to have evaporated. That is also a matter of considerable concern. The noble Baroness explained at great length to your Lordships why she believes that these amendments are misplaced. I believe that they are essential to restore what I consider to be a balanced arrangement with the United States. This treaty is deeply unfair. I simply do not understand why citizens in the United States should have one level of protection and we should have another. I beg to move. Moved, as an amendment to Motion D, leave out from ““House”” to end and insert ““do insist on its Amendment No. 36, but do not insist on its Amendment No. 85””.—(Lord Kingsland.)