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Extradition To Us

Volume 667: debated on Monday 6 December 2004

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5.54 p.m.

rose to ask Her Majesty's Government whether they will reconsider the current legal provisions governing extradition to the United States.

The noble Lord said: My Lords, this Question arises from a history of government mishandling, which may have grave consequences for a significant number of individuals. Perhaps I may explain the history of this. Until 1 January 2004, extradition from the United Kingdom to the USA and vice versa was governed by a treaty signed in 1972 and ratified in 1976. Under that treaty each country had to provide prima facie evidence of guilt before it could get an extradition order.

On 31 March 2003, the Government signed a new extradition treaty with the USA, which contained powers that extended extradition to all crimes with a maximum sentence of 12 months or more instead of containing a list of extraditable crimes, as the previous treaty had done. It also simplified procedures on both sides for extradition. So far, so good.

But for extradition from the USA to the United Kingdom, Article 8(3) requires the United Kingdom to produce,

"such information as would provide a reasonable basis to believe that the person sought committed the offence for which extradition is requested".

There is no corresponding obligation in the case of extradition from the United Kingdom to the USA. In effect, the United States has a right to extradition on demand. Therefore, the treaty in a very important respect is not reciprocal.

No one outside the Government knew that the treaty was being negotiated. The public were first informed of it on the day of its signing by a written response from the Lord Chancellor to a planted question. There was no chance whatever for any form of parliamentary scrutiny or comment, which I think proves the case for parliamentary scrutiny of treaties before they are signed.

Meanwhile, an Extradition Bill was going through Parliament. It was introduced in the House of Commons on 14 November 2002. It received Royal Assent as the Extradition Act 2003 just over a year later on 20 November 2003. The Act was primarily required for the purpose of providing for the European arrest warrant for extradition between member states of the European Union.

On a reciprocal basis, it provides for extradition from the United Kingdom to other European Union states and vice versa without prima facie evidence having to be produced. That, in fact, was no novelty. Under the Council of Europe Convention on Extradition, signed by the United Kingdom in 1990 and implemented in 1991, the need for prima facie evidence for extradition between member states of the Council of Europe who are parties to the convention is excluded. Of course, there are more than 40 member states of the Council of Europe, most of which have signed up to the convention. But that convention is fully reciprocal.

Part 1 of the Extradition Act implements the European arrest warrant between European Union member states. Part 2 applies to other countries. Part 2 retains the need for evidence except in cases of extradition sought by a country that has been designated by an order made by the Home Secretary under Section 71(4) of the Act. The order requires the approval of both Houses by affirmative resolution.

The Government then introduced an Order in Council entitled the Extradition Act 2003 (Designation of Part 2 Territories) Order 2003, which came into force on 1 January 2004; that is, on the same date as the Act. That order included the designation under Section 71(4) of a number of states which were not either members of the European Union or parties to the Council of Europe convention. In particular, it included Australia, Canada, New Zealand, South Africa and the USA. In all of those states, except the USA, extradition is on a reciprocal basis.

Although the treaty of 31 March 2003 is not yet in force because it has not been ratified by the USA, the effect of the designation under Section 71(4) was to implement the new treaty before it was necessary to do so and before any of the limited benefits provided to the United Kingdom under the treaty were available. Further, it has done so on what is in effect a retrospective basis. Although the commencement order provides that the new procedure shall not apply to extradition requests received on or before 31 December 2003, that restriction can be and has been circumvented by the USA withdrawing a request made before 31 December 2003 and making a new request for extradition in respect of the same offence after that date. That is clearly contrary to the spirit, if not to the letter, of the treaty.

The designation order was debated in your Lordships' House on 16 December 2003. In that debate the noble Baroness, Lady Scotland, said:

"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".—[Official Report 16/12/03; col. 1071.]

We are now nearly a year further on and the treaty has still not been ratified by the Senate. Furthermore, I believe that there is significant opposition to it in the Senate and that it may well never be ratified. A campaign against ratification of the treaty has been spearheaded by the American Civil Liberties Union and by Irish-American organisations in particular, including the Ancient Order of Hibernians. Indeed, examples of campaign letters are posted on the websites. Since the USA already has in effect the benefit of this treaty, it is under no incentive whatsoever to ratify it.

I believe that there are very good reasons why we should not agree to extradition to the USA without evidence. First, the standard of justice in the USA is very variable. There are 51 different jurisdictions, one for each state, together with the federal jurisdiction. Some of these jurisdictions are good, but some are bad, and indeed very bad.

Secondly, there is inadequate legal aid for those who cannot afford a lawyer. In certain states judges must stand for re-election and have to campaign on the severity of their sentences. It is difficult to see how that is something which can be regarded as an impartial judiciary.

Thirdly, in the USA there is excessive plea bargaining. That is practised here and it is right that there should be a reduced sentence for a guilty plea. But in many parts of the USA sentences are so long and the discounts for a guilty plea so enormous that there is a real incentive for the innocent to plead guilty. Problems also arise with bail, particularly in the case of non-residents. Bail has to be backed by a bail bond, but no US bail bond company is likely to issue a bail bond to a non-resident. The result is that non-residents have to spend long periods in prison before their trial.

Fourthly, there is increasing use of extra-territorial criminal legislation by the USA, especially in fraud cases. This can result in extradition being sought by the USA where the alleged offence was committed in the UK, the alleged victim was in the UK, all or most of the relevant documents and witnesses are in the UK, and the defendants whose extradition is sought are resident in the UK. That comes from an actual case, not a purely hypothetical one. Such extradition can be forestalled by the United Kingdom authorities initiating proceedings themselves for the same offence. If someone is tried here and acquitted, he or she cannot be extradited because of the double jeopardy rule. Ironically, therefore, defendants are better off if they are tried and acquitted in the United Kingdom than if the Crown Prosecution Service decides that there is insufficient evidence against them to justify a prosecution.

Article 7 of the Council of Europe Convention on Extradition permits the refusal of extradition where the offence is committed in the territory of the state from which the extradition is sought. Similar provisions should be applied in relation to the USA. Moreover, there is no reciprocity. We are told that the reason for the American refusal to dispense with evidence is that it would breach rights under the Constitution. So be it. But in that case the USA should not expect other countries to extradite without evidence. If the present order had been in force at the time, we would have had to extradite the Algerian pilot, Lofti Raisi, against whom the American authorities failed to produce any meaningful evidence whatsoever of involvement in the terrible events of 9/11.

Many other countries have extradition treaties with the USA, but I understand that only two extradition treaties, those of Ireland and France, permit extradition on the basis of prima facie evidence. However, Article III of the Irish treaty provides that extradition may be refused when the alleged offence is regarded under the law of the requested state as having been committed in its territory. Article V of the Irish treaty provides that extradition may be refused when the authorities in the requested state have decided to refrain from prosecuting the person whose surrender is sought or have discontinued criminal proceedings. The French treaty provides no obligation on a party to extradite its own nationals.

Therefore, neither of these treaties is at all comparable with the treaty of 31 March 2003. I have to say that the inference here is that in negotiating the treaty, our negotiators failed lamentably to consider several serious issues, and failed to insert the kind of safeguards which are contained in the Irish treaty.

I therefore ask the Government to make a new Order in Council revoking the designation of the USA under Section 71(4). There should be no question of designating the USA again at least until it has ratified the treaty, but I believe that we should go beyond this. For the reasons I have given, we should never have agreed to this treaty in this form. We have power, under Article 24 of the Extradition Treaty, to terminate it. We should, and I believe we must, exercise that power. We could then negotiate a new treaty that would simplify the procedures but would still require evidence for extradition in either direction. Further, the Government should also amend Part 2 of the Extradition Act to permit the refusal of extradition where the alleged offence was committed wholly or mainly in the United Kingdom and the United Kingdom is therefore the proper forum for the criminal trial.

The Government have failed to give proper protection to people within their jurisdiction by entering into this treaty and by designating the USA, and the Government should put this right as soon as possible.

6.8 p.m.

My Lords, we should all be very grateful to my noble friend Lord Goodhart for tabling this Question. He has raised issues which ought to be of concern to all those who care for the liberties and rights of the peoples of this country and beyond, and for the international rule of law. I shall attempt to avoid repeating what has been said so eloquently and powerfully by my noble friend, but I should like to make a few additional points.

Like my noble friend, I had the great benefit of an education many years ago at Harvard Law School. Unlike him, I do not come from a distinguished United States/British family. My noble friend's father, the late Sir Arthur Lehman Goodhart, was a very great jurist who flattered this country by living here. No one could accuse either my noble friend or myself of being anything other than a good friend of the United States. Indeed, in my case I would say that almost everything I learnt about the law was learnt at Harvard Law School. Sadly, however, the principles I learnt there have rather died out over quite a significant part of the United States in recent times.

Some years ago I introduced a Private Member's Bill to encourage the parliamentary scrutiny of important treaties. In the debate on the Bill I can recall referring to the Ponsonby rule and to the fact that when Arthur Ponsonby was a Minister working with Ramsay MacDonald, he managed to blurt out during a debate on, I think, the Treaty of Locarno, a new way of enhancing some kind of knowledge and scrutiny in Parliament of treaties—what we call the Ponsonby rule. I pointed out then that the Ponsonby rule does not provide any effective means of parliamentary scrutiny; and that what we really needed—and need—is a committee, either of this House or of both Houses, that can look properly at at least some treaties, in the way that we look very properly at European legislation in our treaty scrutiny in both Houses.

The committee of the noble Lord, Lord Wakeham, on the reform of the House was kind enough to recommend that some such committee should be established. It has never happened. If ever we want a case to illustrate, as my noble friend has said, why the use of the Crown prerogative to make, and become bound by, treaties needs to be under the scrutiny of Parliament before the damage is done, this treaty shows why that is so. We have a fine system of scrutiny of European legislation. I do not regard it as acceptable any longer that we have no effective scrutiny of matters of this kind, especially when they affect the rights and liberties of the subject. I should be very surprised if the official Opposition did not agree with what I have said. This is really a matter that transcends party politics.

As my noble friend explained, the treaty was signed at the end of March 2003, but no text was available to the public until the end of May 2003. The text was not available for comment before signature. I should like to ask the Minister what conceivable justification there is for the complete lack of transparency before the treaty was signed.

It would be an exaggeration if I were to describe the treaty as an unequal treaty in the sense of the series of treaties that were signed by the Qing dynasty with imperial powers in Victorian times. Those treaties were forced upon China because of the domination of imperial powers seeking to do what they liked in pursuit of profit. But all the same, this is an unequal treaty. It is part of an imperial trend in United States foreign and legal policy in seeking to extend United States jurisdiction beyond its territory without being prepared for reciprocity with other friendly states, still less accepting the jurisdiction of any supranational judicial authority. It is unequal in the sense that it denies equal protection to citizens and others within the jurisdiction of the two countries.

As my noble friend explained, the United States is not required to show a prima facie case for its extradition requests to the United Kingdom, even though probable cause must be shown for extradition from the United States. There is therefore no reciprocity and no equal protection. Yet, reciprocity has always been at the heart of extradition law, whether national law or international law. So this treaty flouts that long-standing tradition which goes back well beyond the century.

The United Kingdom Government have argued—as will probably be argued in reply today—that whereas the United States has constitutional guarantees preventing it from extraditing an American citizen on the say-so of a foreign government, we have only an unwritten constitution which does not contain a similar guarantee protecting British citizens, and so our birthright as people of this country is unprotected in the way that the American birthright is protected. I do not think much of that as an argument in itself. But it surely is an argument, if at all, in favour of not entering into the treaty on unequal terms—or of now denouncing the treaty—and for developing our own modern British constitution with our own modern British bill of rights.

The reason why the Irish and French treaties give more protection is that the Irish and the French have constitutional systems which have to be taken into account in negotiations with the United States. All that we have, apart from the European Convention on Human Rights, is parliamentary sovereignty—and parliamentary sovereignty in this area is a busted flush, not only because treaty making operates entirely under the prerogative of the Crown, so that Parliament has nothing to do with it, but also because parliamentary sovereignty does not provide a barrier of any kind to the making of the treaty.

I am optimistic enough to believe that a future Conservative Party will eventually see the wisdom of favouring a proper modern British written constitution, with proper modern safeguards for our rights and freedoms, in order that we are in as strong a position in negotiating with the European Union, the United States or anyone else as are most other Commonwealth countries and the rest of Europe. But that is for another day.

Perhaps I may give one or two examples of why the United States should not be considered as equal to Council of Europe countries in terms of international co-operation despite the concerns about the human rights records of some Council of Europe states. I leave aside the death penalty because that is catered for in the treaty.

It is fair to say that the United States is not accountable to any international court and has shown a complete disregard in recent times for the judgments of even the International Court of Justice, as anyone who has read the death penalty cases involving Mexico, Germany or Paraguay will know. In the German case, where the Hague court gave an interim ruling, the United States Solicitor General took the position that an order of the International Court of Justice indicating provisional measures is not binding and does not furnish a basis for judicial relief. Any breach of international obligations or human rights which might occur following extradition to the United States effectively would not be judicially reviewable. Such a breach which might occur in relation to a Council of Europe country would give rise to proceedings under the European Convention on Human Rights, but there is no equivalent in the United States.

When the explanatory memorandum to the treaty was published, we were told that there were two understandings, one of which was that the provisions on onward extradition or surrender of a person extradited to the United Kingdom under the treaty operate to preclude onward surrender to the International Criminal Court. In other words, if someone was brought to the United Kingdom and the matter was considered so serious that it needed to be dealt with by the International Criminal Court, the understanding, and the basis on which the treaty was signed by the United Kingdom, was that that could not be done, thus fettering our own sovereign right to accept the jurisdiction of the International Criminal Court, which the United States refuses to do.

In addition to the concerns expressed by my noble friend about the diversity among the states of the union, Professor Herman Schwartz, a distinguished professor of law at the American University in Washington, published an important article in Newsday magazine on 18 August this year. In it, he referred to the general attitude of the United States towards torture in recent times. He also referred to a disclosed government memorandum on the interrogation of detainees, which has been widely condemned for twisting the law to justify cruel, inhuman and degrading interrogation tactics. He referred to the most notorious of the memoranda as having been issued by the Assistant Attorney General in the Justice Department, and he indicated that the official who wrote that memorandum—which I shall not now quote, but which was to dilute the international standards on torture and inhuman and degrading treatment—was one Jay S Bybie, who was appointed by President Bush to the Ninth Circuit Court of Appeals a year after he wrote the memorandum.

Professor Schwartz also points out that another man who approved another notorious memorandum of this kind, this time a Defence Department general counsel, was one William Haynes, who has been nominated to the Fourth Circuit Court of Appeals. That nomination is pending. He gave other examples that I shall not take time to mention.

These examples show not only that state jurisdictions vary, and that some of them are distinctly dodgy when it comes to extradition, but also that in the federal system, political interference and matters involving a very right-wing and unbalanced series of appointments are seriously undermining the rule of law on the federal bench, as well as in state courts.

I repeat what I said at the beginning. I am a friend of the United States, but I fear for the rights and liberties of our people, if they are to be sent to the United States under this unequal treaty. I very much hope to hear something positive from the Minister in reply.

My Lords, before the noble Lord sits down, will he confirm that despite his optimism that the Opposition will one day welcome a written constitution for this country, and despite his undoubted enthusiasm for such a day, happy or otherwise, what he is really saying is that we do not need to wait for that written constitution before this country can insist on providing proper safeguards for people in this country—the reciprocity to which the noble Lord, Lord Goodhart, referred—and that the options are already there to make sure that these treaties do what they ought to do?

My Lords, I thank the noble and learned Lord, Lord Slynn. I did not mean to suggest for a moment that we would have to wait 20 or 30 years to put our system right before this injustice could be dealt with.

My Lords, is the principle of reciprocity enshrined in the draft European constitution that will be before us shortly?

6.23 p.m.

My Lords, we have had an interesting divergence from the normal rules of Unstarred Questions but we have all been tolerant about that, given the well-informed sources of both questions. I thank the noble Lord, Lord Goodhart, for giving us the opportunity to return to this vexed matter. I shall not seek to set out the detail of the historical or legal perspective, because both have been admirably presented with clarity by the noble Lords, Lord Goodhart and Lord Lester of Herne Hill. I will confine myself to an outline of our position on these Benches and to putting one or two questions to the Minister. In doing so, I shall follow the example given by both noble Lords who have already spoken and will not comment on the position of individual cases that are currently the subject of legal proceedings. It would not be appropriate to do so.

We first debated this matter in the context of the Extradition Act, when the noble Lord, Lord Goodhart, moved an amendment on 27 October 2003, which would have prevented any state being designated as a category 2 territory unless the legal conditions on which persons might be extradited from that territory to the UK were substantially similar to the legal conditions on which persons might be extradited from the UK to that territory. That set out the principle that we are debating today: the Government's failure to obtain reciprocity of benefit between the US and the UK. I supported the amendment of the noble Lord, Lord Goodhart, then and I continue to support his argument now.

It is extraordinary that the Government were prepared to sign away our protections with regard to the need for the US to produce prima facie evidence. It is even more extraordinary because the Minister, the noble Baroness, Lady Scotland, admitted in Committee on the Bill that when they agreed the treaty, the Government knew full well that the US could not reciprocate because its constitutional arrangements are such that it is not allowed to relax the requirement for prima facie evidence to be presented.

Although I have been challenged, enticed and invited to respond to the issue of a written constitution, I agree with the noble Lord, Lord Lester of Herne Hill, that that is a very big debate and I am relieved to save it for another day.

In the past, the noble Baroness, Lady Scotland, sought to mitigate the wealth of evidence against the Government's position by stating two points: first, that we got a good deal from the Government's negotiations because the US may now return people to this country more expeditiously: and secondly, that we had already surrendered the right to require prima facie evidence in our agreements with other democracies, the point to which the noble Lord, Lord Goodhart, referred.

The questions that flow from the position adopted by the Government in our previous debates are as follows: first, can the Minister say what other steps the Government took to obtain the proper return of accused persons to the United Kingdom from the US under the existing extradition agreements before deciding to surrender our right to require the presentation of prima facie evidence before our citizens may be despatched to the US, and when they took those steps? Secondly, why was it considered to be a proportionate response for the Government to surrender such an important safeguard as the requirement for prima facie evidence? Thirdly, in respect of our surrender of the requirement for prima facie evidence in our agreements with other countries, will the Minister list those countries which have this benefit but which do not fall into the categories of former Commonwealth countries or countries that are governed by the broad principles of EU conventions and those of the Council of Europe?

I believe that the Government should today give a positive response to the question posed by the noble Lord, Lord Goodhart, in the title of his Unstarred Question. They should give an assurance to the House that they will reconsider the current legal provisions governing extradition to the United States. I also believe that, at the very least, the Government should now defer the approval of the extradition to the United States of any British subjects until the United States Senate ratifies the Extradition Treaty of March 2003.

The noble Lord, Lord Lester of Herne Hill, was absolutely correct to point out that, in our debates on this matter, all of us have been in the position of being friends of the United States. We have not been criticising that country. It remains one of our closest and most enduring allies. But we have a duty to protect our own citizens and to ensure that any system of extradition is as fair and as reciprocal as possible. So far, the Government have failed in that regard.

6.28 p.m.

My Lords, I am grateful to the noble Lord, Lord Goodhart, for bringing forward this Unstarred Question because it enables us to set out our position. However, having said those encouraging words, I have little doubt that what the noble Lord will hear from the Government Benches this evening will not necessarily meet with his approval.

The Government are not in a position to reconsider the legal provisions currently governing extradition to the United States and do not wish to do so. The issues raised today regarding the US/UK extradition treaty, as all noble Lords who spoke in the debate know well and have affirmed, have already been debated and deliberated at great length during the passage through Parliament of the Extradition Act and when the United States was designated as a Part 2 territory, pursuant to the Extradition Act 2003, at the end of last year. All the required parliamentary procedures were duly followed and approval was secured. I cannot see that there have been any significant changes that warrant the reconsideration of our extradition arrangements with the United States.

My Lords, does the noble Lord, Lord Bassam, accept that there has been one very important failure—that is, the failure of the US Senate to ratify the treaty, which we were told would happen early in 2004? There is now no sign of its proceeding to do so.

My Lords, I acknowledge that the treaty has not been considered by the Senate, but it is our understanding that that will now proceed and take place in the near future, whatever that means.

The new treaty provides a much more modern framework for the making and receiving of requests for extradition. It introduces a sentence threshold of 12 months in both the requesting and requested states in order for offences to be considered extraditable. Many more offences that were not encompassed by the old treaty, such as computer-related crime, will now be classed as extraditable offences.

The United Kingdom has implemented the new treaty through the general reform of our extradition law. In this respect, we have simply placed the United States on a similar footing as many other countries, notably Australia, New Zealand, Canada, and those countries which fall under the European Convention on Extradition. The treaty under which requests between the United States and the United Kingdom are made is still the 1972 treaty until the United States ratifies the new treaty agreed in 2003. As I said earlier, the US authorities have assured us that the new treaty will be considered by the Senate Foreign Relations Committee as soon as practicable and possible.

In the mean time, all requests for extradition made to the United Kingdom are considered under the provisions of the Extradition Act 2003, which provides full and effective safeguards for the rights of requested persons. It is worth reminding your Lordships what those safeguards are.

First, the district judge must consider whether extradition would be barred by reason that the person is really wanted on the grounds of race, religion, nationality or political opinion. Secondly, the judge must also decide whether extradition would be incompatible with the person's human rights under the European Convention on Human Rights. Thirdly, the Home Secretary must refuse extradition if there is a risk that the death penalty may be carried out unless he receives a guarantee that it will not be carried out. Fourthly, the Home Secretary must also be satisfied that there are speciality arrangements so that the person can be tried only for offences for which the requested person was found to be extraditable by the United Kingdom. There are also avenues of appeal against the decisions of the district judge and the Home Secretary.

Reciprocity has been mentioned during this short debate, and I shall come to it in turn. However, I do not agree that the Extradition Act 2003 (Designation of Part 2 Territories) Order 2003 should be amended to require the United States to provide prima facie evidence with its requests to the United Kingdom. The United States does not place this requirement on requests made by the United Kingdom. The United Kingdom does not make this a requirement of any extradition request from states party to the European Convention on Extradition, including countries as far afield as Russia and South Africa, nor from Australia, New Zealand or Canada.

The requirement for the United Kingdom to establish "probable cause" in any extradition request to the United States is less stringent than providing a prima facie case, but it is broadly comparable to the requirement to provide information about the offence, which is what the United Kingdom requires of the United States of America.

The position was not reciprocal before we made the recent changes. The United Kingdom has never demanded reciprocity from extradition partners; for example, by extraditing our own nationals to countries which cannot reciprocate. We are satisfied that the Extradition Act 2003 provides full and effective safeguards which allow requested persons to argue for their rights before the courts.

A great deal has been said about where persons should be prosecuted for offences following the United States' extradition request for the "Enron Three". The key issue is to ensure that offences are dealt with in the place where they can be most effectively prosecuted. For example, where the main witnesses and the main evidence are in another state, then it makes sense for the defendants to be extradited to face justice there. Assuming that the state has a justice system that is comparable to our own in terms of fairness, it is hard to disagree with that.

As for the case of the Enron Three, it would be wrong for me to go into any great detail about it. I am grateful that noble Lords have not attempted to draw us out on that case. But it is perhaps worth saying t hat on 15 October, at Bow Street magistrates' court, the district judge found that there was a good and proper case for prosecuting the three in the United States, and sent the case to the Home Secretary for his decision.

My Lords, is it not correct that the district judge made no such finding, as a finding? He expressed the view that there was such evidence but he had not actually considered whether this was the case or not because it was not necessary for him to do so. He made no legal finding on the point.

My Lords, my understanding is that the district court judge found that there was a good and proper case for prosecuting the three in the United States. That is a slightly different point. On that basis, quite rightly, he sent the case to the Home Secretary for a decision on whether to order extradition. As the noble Lord knows, the Home Secretary will have to make that decision in due course, and quite shortly. More than that I think it would be wrong for me to say.

The noble Lord, Lord Goodhart, and others asked some questions with which I shall attempt to deal, as best I can, from the Dispatch Box. The noble Lords, Lord Goodhart and Lord Lester, spoke about treaties and scrutiny. It is normal for treaties which require to be negotiated confidentially between countries not to be given effect until after signature. The Extradition Act 2003 and the Part 2 order gave the opportunity, we believe, for the appropriate level of parliamentary scrutiny. It is worth noting that no amendments were proposed during that process.

The noble Lord, Lord Goodhart, stated that the European Convention on Extradition

My Lords, is the noble Lord saying that the Government are opposed to the recommendation of the Wakeham committee that there should be a proper treaty scrutiny committee to deal with the making of treaties in terms of parliamentary accountability?

While I am on my feet, I should like to ask a second question. I think that the Minister said, but I could not believe it, that he saw no difference in the treaty between the American standard in Article 8(3)(c)—probable cause—and the standard in Article 8(2)(a) which is a mere description of the nature of the offence. Is he seriously saying on behalf of the Government that the two standards are the same and that merely describing the offence is the same as probable cause? If so, will he explain how that can be?

My Lords, a lawyer I am not. My understanding is that they are broadly similar, and that that has provided a satisfactory basis for comparison. As to the noble Lord's first point, perhaps the noble Lord would just remind me of it again.

My Lords, I thought that it was common ground all round that the Wakeham committee's suggestion of a treaty scrutiny committee was one that the Government were sympathetic to but had left it to the House to decide upon. I thought that that was the position.

My Lords, I am not clear whether that is the position. What I did say earlier was simply this—that we felt that it was right that the treaty should be negotiated in a confidential way and should not come into effect until after signature. At that stage, as part of the process of the order-making, there was the appropriate opportunity—because I am sure the noble Lord appreciates the need for confidentiality—for some discussion of the treaty. We had those debates. I have a copy of the relevant Hansard here, and many of the issues raised in your Lordships' House this evening were raised on that occasion.

My Lords, my noble friend says frequently that it is a tradition of this country that we should have confidentiality and secrecy in discussing these matters. We have also heard that we are awaiting a full public discussion in the United States. Why should this country be so extraordinarily supine in having a public discussion about an international treaty? Is that not a major feature of the defects of our constitution?

My Lords, the noble Lord makes an interesting constitutional point, but we go through our processes and cannot dictate or determine how other jurisdictions work through their processes or the way in which they consider matters of this nature. However, the noble Lord makes an interesting point in contribution to the debate.

I wanted to deal with some of the issues that were raised earlier. The noble Lord, Lord Goodhart, made the point that the European Convention on extradition is fully reciprocal. We do not take that as being exactly the case. States that are party to the convention can make reservations to it so that they can bring it into force under their domestic law, when their domestic law would otherwise be in conflict with the convention. That is really what I meant when I said that extradition could not always be exactly reciprocal.

The noble Lord, Lord Lester, suggested that we ought to have a written constitution. Obviously, that is a much broader question than the one that we are dealing with this evening. I believe that the noble Lord was suggesting that we should make it comparable perhaps with the Irish approach, so that we have equality of arms in negotiations with other states, and to protect the rights of British citizens. The point here, which is one that I made earlier, is that the new Extradition Act 2003 contains full and sufficient safeguards, including explicit reference to the European Convention on Human Rights— protection that was of course not there before the current Government came into office. So there is a protection of the rights of requested persons—and, in particular, protection for British citizens.

The noble Baroness, Lady Anelay, asked a number of questions. The first point that she made related to the steps taken before negotiations began to secure the rights and interests of British citizens. Again, I return to the point about the full and sufficient safeguards in the Act to protect the rights of all persons requested for extradition, including those protections offered by the European Convention on Human Rights. All requests for extradition are dealt with by, and will be subject to, the provisions of the Extradition Act 2003.

The noble Baroness also asked which countries that are not former Commonwealth or Council of Europe countries do not have to provide prima facie evidence. The answer to that is that there is none. However, Council of Europe countries, of which there about 40 including Albania and South Africa—no, that cannot be right. I shall pursue this question further outside this debate, because the handwriting of the note that I have been given is not perfect and I do not want to give an imprecise response.

I think that I have covered most of the points raised during this useful debate—

My Lords, the Minister said at the beginning that his speech would be unwelcome, but it is also inadequate, in that he has not answered several of the points that have been raised. I thank the noble Lord, Lord Goodhart, for bringing the issue of reciprocity to the attention of the House. The Minister cannot simply get away with the argument saying that we have not had it in the past, so we cannot have it in future, when America is asking us fundamentally to change the whole situation. The Government should have taken a much tougher line. Nor has the Minister answered the question about the British citizens who, as a result of this measure, are in a position whereby their rights are not protected as those of American, French or Irish are protected, by their constitution. He has not answered that point.

There was a third point that the Minister did not answer. If he is so satisfied with this particular arrangement, why is it that any foreign national who appears before an American court finds it virtually impossible to get bail? That is an erosion of a right. Will it be protected under the European Convention on Human Rights? I think not. That is an example of a measure for which President Bush has asked and which the Government have given in to. That is not the right way to behave when the rights of British citizens are directly involved.

My Lords, I do not agree with the noble Lord. I agree that this has been a useful airing of some of these issues, which have been aired before extensively during the passage of the Extradition Bill. I make the point again, on the issue of reciprocity, that previous governments, including the government of which the noble Lord was an experienced and long-standing member, did not believe that exact reciprocity was appropriate. I would argue that exact reciprocity would not in all circumstances have been possible and would not necessarily, in any event, have made the extradition process work as well as it has in our experience.

As to the noble Lord's final point about protecting the rights of British citizens, the Human Rights Act, the European convention and the other legislation provide rights and protections that were not there before, and that strengthens the rights of British citizens.

My Lords, I am grateful to the Minister, but will he accept that the European Convention on Human Rights certainly protects the right to liberty, including bail, for people in this country who are being detained in this country and tried here, but that it does not protect against extraditing someone from this country to the United States, where they will be deprived of bail. The European convention is of no value to a British citizen sent to the United States and completely denied bail in some undesirable state jurisdiction. I hope that the Minister understands that I am seeking to explain that the European convention is of no real value in that context. It is of value in the context of the death penalty or of human and degrading treatment, but not of a complete denial of bail.

My Lords, I would not want to get into an argument about the broader effect of the European convention. However, I believe that our legislation, and the Human Rights Act in particular, provides us with very important protections, and I am sure that the noble Lord will acknowledge that in this case.

My Lords, it does riot provide protection on bail. The Minister should answer the noble Lord's point.

My Lords, I am not going to be drawn into answering the noble Lord's point. I shall think about it some more and provide him with a response.

House adjourned at twelve minutes before seven o'clock.