Police and Justice Bill

My Lords, the proposed amendment would of course make it impossible for Her Majesty’s Government to exchange instruments of ratification, which they obviously will do as soon as this matter is disposed of. It would therefore force the Government to a renegotiation of the treaty with the United States. That is the objective that we seek. The same is equally true of the legislation as to forum. That would also force a renegotiation of the treaty. Given that the amendments in groups D and F have been spoken to by the noble Lord, Lord Kingsland, I assume that that is his position also. He is nodding his head in concurrence. There is a conflict between interest and duty. It is in the interest of a state requesting extradition that extradition proceedings should be swift and simple. It is the duty of the state to which the request has been made to protect its citizens and residents from unjustifiable requests for extradition. These must be balanced. It may be legitimate for the United Kingdom to surrender a degree of protection of its citizens and residents in order to obtain a simpler extradition treaty with another country. It is not legitimate for the United Kingdom to surrender protection for its citizens without also getting a simpler procedure for extradition to the United Kingdom. That is what has happened here. I shall briefly explain why I have not insisted on our Amendment No. 85, which was originally tabled in my name. First, it is not necessary. Its purpose is to ensure that if Amendment No. 36 is passed, the Government could not bring in a new order to the same effect. If Amendment No. 85 were not made, then the Government could do that, but they might well meet insuperable difficulties in obtaining the approval of your Lordships’ House if it had insisted on the inclusion of Amendment No. 36. If that amendment were passed, your Lordships would be justified in rejecting any new order for that purpose. I have another reason for not insisting on Amendment No. 85. My understanding is that it would not have the support of the Conservatives and would therefore have no chance of succeeding. In Committee, the noble Lord, Lord Kingsland, said that although he supported it, the amendment should be modified so that it did not apply to the extradition of terrorists. We would be unable to accept such a modification. Anyone suspected of terrorism has the same right to a fair trial in this country and to protection from improper extradition to a foreign country as someone suspected of any other grave crime. Anyone extradited to the United States will face hardship; but hardship faced by someone who is unjustifiably extradited for terror-related crime is likely to be far more severe than the hardship of someone who is unjustifiably extradited for a white-collar crime. Amendments Nos. 81 and 84 relate to the ““forum”” question and aim to deal with the problem of the aggressive use of extradition requests by the United States in cases where the US is not the most appropriate forum. However, those amendments would have a much wider application. Amendment No. 83 would apply to category 1 countries, which are mostly in the European Union, and Amendment No. 84 would apply to category 2 countries, including the USA. That is not a problem in most cases. The effect of the amendments is that if part of the alleged offence has been committed in the United Kingdom, the judge conducting the extradition hearing can extradite the defendant only if it is in the interest of justice that that person should be tried in the requesting state. That is perfectly compatible with article 4.7(a) of the framework decision on the European arrest warrant, and there is a similar provision in article 7.1 of the Council of Europe Convention on Extradition, which covers extradition to many category 2 countries. The problem lies with the 2003 treaty, which has no provision to enable a United Kingdom court to refuse extradition on grounds that that would be unjust. There are many reasons why extradition could be unjust. They include not only the basic fact of the residence of the defendant and the witnesses, but also that the USA makes extradition claims where there is no real connection with that country—for example, where the only link is the location of an internet service provider in the USA—and the use in the USA of draconian sentences, coupled with very large discounts for guilty pleas to an extent that puts pressure on innocent defendants to plead guilty. According to an article sometime ago in the Wall Street Journal, no less than 97.5 per cent of defendants accept plea bargains. There is also the use of coerced evidence, including evidence from Guantanamo Bay, which would not be admissible in the United Kingdom, and great difficulty in obtaining bail. The grant to the NatWest Three may well have been a one-off, prompted by the desire of the United States Government to prevent rejection of the treaty in the United Kingdom. The Minister has referred to negotiations which will take place between prosecutors. That is an inappropriate solution. Where the dispute is as to forum, the court should decide and not the prosecutors. We therefore strongly support Amendments Nos. 81 to 84. Amendments Nos. 83 and 84 are supported in a letter sent to Members of the House of Commons by four organisations: Justice—in which I declare an interest as a vice-chairman—Liberty, the CBI and the Institute of Directors. Those organisations do not very often join in the same campaign, but when they do, surely, they should be listened to. The adverse consequences here would be some delay in extradition hearings because the process might take longer and take more preparation. That is true, but I do not believe that the delay would be significant. The main cause of delay before the Extradition Act 2003 was the number of times that the Home Secretary had to take decisions before anyone could be extradited, with each decision being liable to judicial review. The delay caused by these amendments would be slight by comparison. I conclude where the noble Lord, Lord Kingsland, started. There is one plain lesson to be learnt from the trouble we have had with this. It is absolutely wrong for Parliament to have no role in the making of treaties apart from enacting the domestic legislation needed to implement them. The extradition treaty would have benefited from scrutiny before it became immutable. I believe that, as in the United States and in many other countries, treaties should not be ratified without parliamentary approval. I accept that that may be for the somewhat longer term, as part of a reassessment of the so-called Royal prerogative—in practice, the Prime Minister's prerogative—which I believe is plainly a constitutional necessity. However, I see no reason why we should not immediately press for an undertaking from the Government that, in future, treaties should not be ratified until a parliamentary committee has been able to scrutinise and to consider them and been able to publish a report. Had that been the case, the problems that have arisen here might have been dealt with much earlier and at the stage when they would have been much more easily resolvable.