rose to move, That the draft order laid before the House on 3rd December be approved [2nd Report from the Joint Committee].
My Lords, this is a large order, encompassing as it does some 108 countries. Nevertheless, I think it fair to say that our arguments on it will come down to the inclusion of one country—the United States—in the list of countries not required to provide prima facie evidence to accompany its extradition requests. Certainly, that is the force of the Motion standing in the name of the Liberal Democrats. I will, if I may, leave that issue to the end of my remarks. First, I should like briefly to say something about the rest of the order.
The Extradition Act 2003 received Royal Assent on the last day of the previous parliamentary Session. It underwent fairly intense scrutiny in both your Lordships' House and another place, so I hope that we can avoid going over the arguments of principle again today.
We are concerned here with the secondary legislation required to bring the Act into force. Our aim is to bring the Act into force for 1st January 2004, which will enable us, inter alia, to comply with our obligations under the framework decision on the European arrest warrant.
This order designates all of the United Kingdom's extradition partners other than those being designated as category 1 countries in order to operate the European arrest warrant. As I mentioned, that amounts to some 108 countries. Seven of those countries are EU member states. If I may, I shall explain when we come to the next order why those countries are not for the time being in Part 1.
As well as those EU member states which are not yet ready to operate the European arrest warrant, this order designates all of our remaining extradition partners as category 2 partners. Every country with which we currently have general extradition relations is being redesignated. No new countries are being added and no countries are being dropped. Paragraph 3 lists the 40 or so countries that are not required to supply prima facie evidence with their extradition requests. For the most part, those are the non-EU parties to the Council of Europe Convention on Extradition and are countries that do not currently have to provide prima facie evidence.
For the avoidance of doubt, I should make it clear that though the European Convention on Extradition operates under the auspices of the Council of Europe, it is not geographically restricted. South Africa is a party to it which is why South Africa appears in the list.
For all of these countries there is no change to the evidential standard which they will have to meet. There are four countries whose inclusion in the list represents a change. One of these is the United States which, as I mentioned earlier, I shall come to in a moment.
The other three are Australia, Canada and New Zealand. These countries are all trusted Commonwealth partners. During the parliamentary passage of what became the Extradition Act 2003 we gave notice in both Houses of our intention to remove the prima facie requirement from these three countries, and I am pleased to say that no one appeared to object. Indeed, it is perhaps a little curious that, notwithstanding the lack of reciprocity, no objection was made to their inclusion in the other place by any party, not least the Liberal Democrats, if I may respectfully say so.
Having trailed that I was going to do so, let me now turn to the thorny issue of the United States. If this order is approved, the United States will no longer be required to supply prima facie evidence to accompany extradition requests that it makes to the United Kingdom. This is in line with the new bilateral extradition treaty signed by my right honourable friend the Home Secretary earlier this year.
By contrast, 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".
As noble Lords know, the United States is a mature democracy that respects individual rights. We do not demand prima facie evidence of countries such as Albania, Turkey or Romania, and therefore we fail to see why we should impose a more stringent test on the United States of America.
Nor do we see why the absence of complete reciprocity affects this. We have to take an objective decision about what standards we believe incoming extradition requests should meet. We do not see how that is affected by the fact that another country cannot, for very good reasons, reciprocate.
We are in the business of protecting our citizens and those within our jurisdictions. If a non-prima facie requirement would be acceptable if the United States did likewise, we ask rhetorically why is it suddenly unacceptable because its constitution prevents it doing so?
Complete reciprocity has never been a feature of our extradition arrangements. As your Lordships will know, for many years certain other countries have, for constitutional reasons, been unwilling to extradite their own nationals. The United Kingdom has never had any such reservations. Our extradition relations have reflected that. In other words, we have been in the position where the United Kingdom has been willing to extradite even though in corresponding circumstances the other country would not be prepared to extradite.
We have accepted that situation for over 100 years both because we have realised that complete reciprocity will not always be possible and because we have respected the imperatives of other countries' constitutional arrangements. Exactly the same arguments apply in this instance.
Incidentally, I hope that this point will appeal particularly to noble Lords on the Liberal Democrat Benches as the legislation which allowed for all these lopsided extradition arrangements—the Extradition Act 1870—was enacted by a Liberal government!
There is another important, and more modern, precedent that I should point to. Having extradition relations of this kind with the United States would not be unique in Europe. Exactly the same evidential provision can be found in the bilateral extradition treaty between the United States of America and Ireland which dates from 1984. Perhaps more significantly, exactly the same can be found in the bilateral treaty between France and the United States which is less than 10 years old.
Whatever unjustified suggestions there may be about the United Kingdom, or even Ireland, being more deferential to the United States, I trust that none of your Lordships would seriously imply that France is a nation which is subservient to the United States or automatically does its bidding. The fact is that both Ireland and France have accepted the restraints imposed by the terms of the United States constitution. They see nothing wrong with treaties that impose differential evidential requirements and I believe that we should follow their example. I therefore invite your Lordships to approve this order and to reject the Motion standing in the name of the noble Lord, Lord Goodhart. I beg to move.
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.
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.
My Lords, I took part in debates on the Bill in Grand Committee and I was most concerned about the arrangements made between this country and the United States. It is entirely proper for the noble Lord, Lord Goodhart, now to move his Motion. If he presses it to a Division, I shall be pleased to support it because there is no doubt that in relation to extradition, citizens of this country are being put in a worse position than citizens of the United States who may be required to face charges in this country. That cannot be right.
No matter what the United States constitution provides, it should not be allowed to overrule the best interests and rights of the people of this country. We have our own constitution and means of protecting our citizens. One of them is to ensure that they are not put in a worse position, particularly on criminal matters, vis-a-vis any other nation. The noble Lord, Lord Goodhart, is right in saying that the order does that.
Furthermore, because of the difficulty of changing the United States constitution, it will not be possible to redress the balance in a short period of time. If that were possible, I and many others would be prepared to see the measure go through today. But it may be decades before the balance can be redressed.
I am sorry that the noble Baroness, Lady Anelay, is unable to support the Motion of the noble Lord, Lord Goodhart. I greatly admired the way in which she and the noble Lord, Lord Goodhart, conducted the proceedings in Grand Committee. It is a great pity that the Conservative Party and the Liberal Democrat Party cannot come together on this, because it is a vital provision.
My Lords, the noble Lord, Lord Stoddart, made many of those points during the passage of the legislation. He was most assiduous in his attention to that and we all appreciated it. I agree that the problem is the Act. The Government have got themselves into this position vis-a-vis the United States of America. However, we have the Act and, given that fact, the disadvantages of a written constitution are shown by the fact that the United States cannot be flexible on this matter. We must accept that while taking note that written constitutions are not always as good as they may appear at first sight.
The measure must be accepted and there is no way around it. However, I want to reiterate what my noble friend Lady Anelay said. We would not be having this interesting debate had the Government got away with laying the order by negative resolution, which was what they proposed. The Grand Committee did a good job in insisting that the Government make the change.
My Lords, the noble Baroness, Lady Anelay, said that she is not supporting the amendment because the United States is, in effect, our oldest ally. Technically, I believe that that honour belongs to Portugal, but I do not argue with the spirit of what she said. I am aware of a long-standing and vital friendship to which it is possible that I may owe my life. I was accidentally in America in 1939 and I returned across the Atlantic in 1944 in circumstances in which, without American protection, it is likely I might never have reached these shores.
However, justice is proverbially blind. As soon as you enter a world where in matters of justice you give a respect to people because they are your friends but will not give that to other people because they are not your friends, the very principle of justice itself is at risk. It is blind; it must remain blind. The fact that a country is a friend of ours is no excuse—
My Lords, perhaps the noble Earl will allow me to intervene. That was my preamble to saying that I then looked at the judicial system of that country, which I do in each and every case, and took note of how it might interact here. I did so particularly with regard to the Part 2 procedures which, the noble Earl will know because he was present during many of our debates on the Extradition Bill, contain other safeguards.
I entirely agree with the noble Earl that one does not give preferential treatment to someone just because he is a friend. That is not the basis of my political activity.
My Lords, my noble friend Lord Goodhart made a strong case for the Motion standing in his name. Other noble Lords supported his case equally strongly, not least my noble friend Lord Russell. I agree on reciprocity and on the obvious difficulties of resolving the matter within a reasonable period. In particular, I agree with the comments made on Guantanamo Bay and what it means for the defence of western values if the country which above all others stands for those values treats human beings as so-called "combatants" without any rights. Your Lordships' House has discussed this matter and has expressed a strong view which I share.
Nevertheless, I believe that the Motion would send a political signal which would put the United States on a level with a number of countries included in the order before us because of their relationship to the Council of Europe. That political signal would be sent when the defence of western values, acting together with the United States, is one of the major issues before us. I, for one, do not want to send that particular political signal and therefore I do not find it possible to support the Motion put forward by my noble friend.
My Lords, I thank all noble Lords who have participated in the debate. The noble Baroness, Lady Anelay, was right in saying that as a result of amendments made to the Bill, provision was made for us to have this debate in order to explore the issue. I want to deal with the first point made by the noble Lord, Lord Goodhart. He said that the principle of reciprocity is an important one. I would not disagree with him, save to say that the principle has never applied with total unanimity to all countries. I say to the noble Lord that that is a curious assertion to make when, in relation to New Zealand, Australia and Canada, we have no reciprocity. It is not an argument of principle which is raised in relation to those three countries.
Perhaps I may say a word, too, about the United States. In effect, the noble Lord is saying that if another administration were in being in the United States—that is tantamount to the implication—perhaps there would be another view. These extradition arrangements are made with a country, irrespective of its political complexion. The test that we shall consider is whether the judicial system in that country justifies its inclusion or exclusion from this part of the Bill.
In relation to that issue, I totally understand and accept that there is a difference between the way in which one state operates its law as compared with another. The noble Lord may prefer the way in which it is expressed in one state compared with another, but that does not change the fact that these systems are recognisable within a democratic country and that they deliver an accountable democratic system of justice.
I agree wholeheartedly with the noble Earl, Lord Russell, that there cannot be one rule for one's friends and one rule for others. Justice must prevail and it must be blind. I believe that we have shown our fairness in that regard by including countries such as Albania, Romania and others, along with Canada, America, New Zealand and Australia. Therefore, we are not adopting one approach for our friends and one for others; we are even and open-handed.
I noted what was said about the way in which the treaty was negotiated. I believe that the noble Lord, Lord Goodhart, asserted that it was negotiated in secret. It was not. The treaty was negotiated in exactly the same fashion as we negotiate all other extradition treaties and, for that matter, all other bilateral international instruments. The text of the treaty was published as a command paper shortly after it was signed. Again, that is the normal procedure, including the Ponsonby rules.
My Lords, that was exactly my point. Of course it was published shortly after it was signed. It was published within a few days of being signed, but there was no possibility of anyone in either House of Parliament having any input into the negotiating process or of trying to put pressure on the British Government not to enter into an agreement which was not reciprocal.
My Lords, I hear what the noble Lord says, but he cannot suggest that the negotiation took place in secret; neither can he suggest that it was outwith the usual practice. It may have been a practice with which the noble Lord does not concur, which is a slightly different issue, but it took place in accordance with practice which has been adopted for a very long time. I appreciate that 1870 was a long time ago for a Liberal government, but I hope that if the noble Lord considers what happened thereafter, he will agree that it has been consistent.
The command paper was published and normal procedure, including the Ponsonby rules, was followed. The only unusual aspect was that the gap between signature and publication was shorter than is customary because we were aware of considerable interest in the new treaty. I should have thought that the noble Lord would wish to congratulate the Government on that, but perhaps I ask too much.
The treaty has not been enforced yet because it has not been signed by the US Senate. We anticipate that the treaty will be put before the Senate formally early in the new year and approved shortly thereafter. We do not anticipate that we shall encounter any difficulties in that regard.
I thank the noble Baroness, Lady Anelay, for her very pragmatic approach in relation to these matters. I also thank the noble Baroness, Lady Carnegy. However, I say to both noble Baronesses that what was done in this case was entirely proper. We sought to make an independent, objective assessment of the most appropriate way forward to enhance the opportunity to secure the proper exchange of persons required to go through the criminal procedure in our respective countries. That was the decision made. We took total cognisance of the fact that, as I believe even the noble Lord, Lord Goodhart, accepted, changing the American constitution is an enormous task.
I know that the noble Lord does not wish us to wait 10 years before the provisions are introduced. It is right to say that the present treaty needed to be changed. I hope that the noble Lord receives great comfort from the support that has clearly been given by the noble Lord, Lord Stoddart, who totally agrees with the noble Lord, Lord Goodhart, on this occasion. If I may respectfully say so, I believe that the noble Lord, Lord Dahrendorf, has the right approach. With his usual sagacity, he summed up the truly liberal position.
We have had a very good debate, and I absolutely understand why the noble Lord wished to air these matters. They are serious and concerns have been voiced. However, it is appropriate to allow the order, as drafted by the Government, to go forward as the most proper and sensible way of dealing with the redesignation of the various countries under Parts 1 and 2.
My Lords, I have a question before the noble Baroness sits down. I am very ignorant of these matters, but do I understand that if Albania wants to extradite a British citizen, it can do so without explanation?
My Lords, Albania will not have to provide prima facie evidence. When we debated these issues during the passage of the Extradition Bill, we went through all the safeguards relating to identity and all the matters that we shall put in place. Indeed, I hope that the noble Lord, Lord Goodhart, will be reassured by the fact that provisions are in place which would enable us not to extradite if the issues relating to human rights and other matters were breached.
Indeed, to comfort the noble Lord, Lord Goodhart, even further, I should say that the noble Lord, Lord Lester of Herne Hill, was very concerned about many issues, including what would happen in respect of the death penalty and how that would operate. At the request of the noble Lord, Lord Lester, the United Kingdom Government approached the United States Government for a definitive statement on the rights guaranteed to those who are extradited there. It may assist noble Lords if I read the response of the United States Government into the record:
"Every person who is extradited to stand trial in the criminal justice system within the United States is entitled to the fundamental right of due process under the United States constitution. All extraditees have the right to a fair trial, before an impartial jury, and enjoy the right to counsel, the right to confront adverse witnesses, and the right to compulsory process to call witnesses favorable to the defense. No extraditee can be convicted except on the basis of proof beyond a reasonable doubt. Every extraditee has the right to appeal a conviction".
Those rights apply irrespective of the nationality of the person or the state or jurisdiction concerned. Avenues of redress exist if those rights are not upheld. Therefore, not only the provisions in relation to prima facie evidence but all the other provisions contained in the Act will bite upon these issues and ensure that the rights are upheld.
The promises that we have obtained from the Americans in the past, whether in relation to death penalty cases or otherwise, have, I believe without fail, always been adhered to. Therefore, history teaches us that, when dealing with specific cases, the Americans have made promises and can be relied upon to deliver what they say.
My Lords, of course matters in relation to Guantanamo Bay are still very much in issue between a number of parties who are considering them. That does not cast aspersions upon those who are returned to mainland United States pursuant to the system of law that prevails in the United States of America and in each of the states. We accept, as noble Lords will know, that Guantanamo Bay is still an unresolved issue. It has not been settled in any way. I am afraid that that is about the best answer that I can give the noble Earl today.
My Lords, I have already spoken to this Motion. I beg to move.
Moved, That this House calls on Her Majesty's Government to withdraw the draft Extradition Act 2003 (Designation of Part 2 Territories) Order 2003 and lay a new draft order deleting the reference to the United States of America in paragraph 3 of the order.—(Lord Goodhart.)