Police and Justice Bill

My Lords, as happened last week, the Minister has opened, quite properly, by dealing with both Motion A and Motion B and, as the mover of Motion B1, I will therefore take the same course. I should add something that I failed to add last week; the noble Baroness is remarkably persuasive, and I congratulate her on her great success in persuading the American Senate to ratify the treaty. She clearly did an outstanding job on that. I am afraid that she has not been quite so successful in persuading me. We have not insisted on keeping what I call the designation amendment, which would remove the designation of the United States of America under Section 84(7) of the Extradition Act 2003. We recognise that that would unquestionably prevent the implementation of the 2003 treaty. While we feel strongly that that treaty should never have been agreed in its unequal form, we recognise that it would be wrong for us to press for everything we want and that we must concentrate our fire on what we see as the most important target. We see that target as being the forum amendment, which is both the more important and the one that is likely to have less serious effect on the relations between this country and the USA. It is plain to us that a forum amendment is needed. Where the United States is an appropriate forum for trial, we should, of course, be willing to extradite to the USA people whom it seeks for trial. But the United States may not be an appropriate forum; for example, where all or most of the alleged criminal acts have happened in the United Kingdom, where the links between the offences and the United States are minimal, where most of the evidence and the witnesses are in the United Kingdom and where the United Kingdom authorities have decided not to prosecute because of insufficiency of evidence. The United States is plainly not an appropriate forum in those circumstances. If that is the case and when it would be unjust and oppressive to order extradition of the defendant, surely a United Kingdom judge, not a prosecutor, should have the power to prevent extradition. The noble Baroness talked about ensuring that victims of crime in this country get justice. Of course that is right, but is not someone who is extradited to the United States unjustly himself a victim? Has he had the justice which he deserves? We believe that he has not. The forum amendment will be entirely consistent with the Council of Europe Convention on Extradition and with the framework decision that set up the European arrest warrant. It is right that the amendment should not apply only to the United States but should extend to all countries, as it will, if passed. Do we not want to protect our people from unjust extradition not only to the USA, but to Albania and Azerbaijan, whose legal systems are far inferior to those of the USA? These debates have shown that the Government, in their wish to simplify what was unquestionably a sclerotic extradition system, have oversimplified the situation and have removed necessary protections against injustice. It is clear that the forum amendment would not require the renegotiation of the treaty. I apologise for suggesting otherwise in our previous debate. I have taken further advice since then. The Extradition Act was enacted in November 2003, some eight months after the treaty was signed. It contains several provisions that restrict the power to extradite people to the USA—notably Section 87, which forbids extradition which is in breach of rights under the European Convention on Human Rights. There was no suggestion that that or any other bar on extradition set out in the 2003 Act led to a need for renegotiation of the treaty. The Government have, in effect, admitted that the forum amendment would not require a change in the treaty. It is true that the USA could now refuse to exchange instruments of ratification, which are necessary to bring the treaty into force. But why should they refuse? If there is no exchange then there will be enormous pressure on our own Government to cancel the designation. If they did so, the United States would lose all the benefits it receives from the treaty, which are very substantial. The US may not welcome the inclusion of the forum amendment, but it has given no sign that it would refuse to bring the treaty into force as a result of it. Such a decision would not need to go back to the Senate, but would be for the President alone. In the House of Commons the Government accepted our amendment from last week but added the sunrise clause. The noble Baroness said that the Government would take great care to ensure that the sun never rose, because the House of Commons would never approve. Our amendment simply removes the sunrise clause and replaces it with a clause that would bring the forum amendment into effect as soon as the Bill received Royal Assent. This is not a zero-sum gain. Withdrawal of the designation amendment means that the Americans and our Government can get the treaty—and they will get it unless the Americans act totally irrationally. The passage of the forum amendment means that British citizens and residents faced with unjust extradition to an inappropriate forum, whether in the United States or elsewhere, will get justice. This is a solution that we believe combines justice with practicality and common sense.