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Police and Justice Bill

Volume 686: debated on Tuesday 7 November 2006

A message was brought from the Commons, That they agree to certain of the amendments made by your Lordships to the Police and Justice Bill without amendment; they insist on their disagreement to certain other amendments, and they have made amendments in lieu to which they desire the agreement of your Lordships.

My Lords, I beg to move that the Commons message be considered forthwith.

Moved accordingly, and, on Question, Motion agreed to.

commons amendments

[The page and line references are to HL Bill 104 as first printed for the Lords.]

36: After Clause 46, insert the following new Clause-

“Designation of Part 2 territories: omission of United States of AmericaIn the list of territories in paragraph 3(2) of the Extradition Act 2003 (Designation of Part 2 Territories) Order 2003(S.I. 2003/3334) “the United States of America” is omitted.”

The Commons disgree to this amendment for the following reason-

36A: Because it is appropriate for the United States of America to be a designated territory for the purposes ofsections 71, 73, 84 and 86 of the Extradition Act 2003

The Lords insist on their Amendment No. 36 for the following reason-

36B: Because it is not appropriate for the United States of America to be a designated territory for the purposes ofsections 71, 73, 84 and 86 of the Extradition Act 2003

The Commons insist on their disagreement to Lords Amendment No. 36 but propose the following amendments in lieu-

36C: Page 36, line 44, at end insert the following new Clause:-

“Designation of United States of America(1) In article 3(2) of the Extradition Act 2003 (Designation of Part 2 Territories) Order 2003 (S.I. 2003/3334) (territories designated for the purposes of sections 71, 73, 84 and 86 of the Extradition Act 2003) the entry for the United States of America is omitted.

(2) An order bringing subsection (1) into force is not to be made-

(a) within the period of 12 months beginning with the day on which this Act is passed, or(b) if instruments of ratification of the 2003 treaty have been exchanged.In this subsection “the 2003 treaty” means the Extradition Treaty between the United Kingdom of Great Britain and Northern Ireland and the United States of America signed at Washington on 31st March 2003.

(3) Subject to subsection (2), if after the end of the period mentioned in subsection (2)(a) a resolution is made by each House of Parliament that subsection (1) should come into force, the Secretary of State shall make an order under section 51 bringing it into force.

(4) An order made by virtue of subsection (3) must bring subsection (1) into force no later than one month after the day on which the resolutions referred to in subsection (3) are made or, if they are made on different days, the day on which the later resolution is made.

(5) If subsection (1) is brought into force, it does not affect the power of the Secretary of State to make a further order under section 71(4), 73(5), 84(7) or 86(7) of the Extradition Act 2003(c. 41) amending article 3 of the Extradition Act 2003 (Designation of Part 2 Territories) Order 2003 so as to add a reference to the United States of America.

(6) An order such as is mentioned in subsection (5) may include provision repealing this section.”

36D: Page 39, line 1, at end insert-

“( ) section (Designation of United States of America)(2)to (6);”

My Lords, I beg to move Motion A, That the House do not insist on its Amendment No. 36, in respect of which the Commons have insisted on their disagreement, and do agree with the Commons in their Amendments Nos. 36C and 36D in lieu.

We return once again to the debate on the scheme of our law on extradition, specifically the provisions governing extradition to and from the United States of America. Since we debated this issue last week, the elected Chamber has again voted decisively and convincingly on this matter. Indeed, the margin by which the other place rejected this House’s amendment on forum more than doubled from 41 to 94 votes. That is a powerful message on which this House will want to reflect carefully.

At this point I wish to say a few words about the government amendments passed by another place. We have tabled these purely out of procedural necessity to enable the matter to return to this House. They do not alter the Government’s position one iota. We cannot and do not agree with the amendments tabled by the Opposition and passed by this House in July.

I want to ensure that there is no misunderstanding about the purpose and effect of these amendments. They include a sunrise provision. I must make it clear to the House that the Government are under no obligation to bring forward the resolution that would be required to bring the new clauses into force and, moreover, have no intention of doing so. Although it is open to others to bring forward a resolution, the Government have no intention whatever of supporting any such resolution. Therefore, the House will not be surprised to learn that the Government cannot support Motion B1, tabled by the noble Lord, Lord Goodhart, which would remove the sunrise provision and bring the forum amendments into force on Royal Assent.

In rejecting the Opposition’s amendments, I again thank the House, including all those on the Benches opposite who spoke so eloquently, for the support and encouragement that they gave me in my visit to Washington in July. A number of noble Lords voted for the Opposition’s amendments in July because they were concerned about the delay in ratifying the 2003 treaty. I assure noble Lords that I used all those salient points to assist me in my deliberations in Washington. Noble Lords wanted to give a clear message to our sister upper House in the United States that it had to meet its side of the bargain, as we had already in part delivered on ours in redesignating the United States under the 2003 Act. I say to the noble Lords, Lord Kingsland and Lord Goodhart, that I understand why they made the points that they did on forum. There are always two sides to an argument. It is incumbent on all of us to try to listen to the other side and seek to understand the concerns that are raised. I understand the concerns that were expressed by all in this House who supported that Motion.

However, there is a balance to be struck between the interests of justice for the victims of crime and the rights of the accused. The Government believe that we have struck the right balance in designing our extradition arrangements. The noble Lords, Lord Kingsland and Lord Goodhart, believe that the arrangements on forum should be changed so that the balance is adjusted in favour of the accused. That is a perfectly respectable position for the noble Lords opposite to take, but it is not one which the Government can accept. To accept the amendment of the noble Lord, Lord Goodhart, would add a ground for refusing extradition that is outwith the 2003 treaty with the United States and some 20 other bilateral treaties. Thus, whatever the strength of feeling on the Benches opposite, I respectfully suggest that that is not the way to conduct our international relations.

Having negotiated a new treaty with the Government of the United States of America and pressed tirelessly for the Senate to give it its consent, we cannot now effectively change the terms of the treaty on the back of this Bill. We have known those terms for three years. The Opposition’s amendments would put us and the American Government in an unconscionable position. The amendments would, in effect, require the United States Government to renegotiate the 2003 treaty under duress. I know that this House would not want to put the Government or a close ally in that position.

I will not repeat all the benefits to the United Kingdom of the new treaty, but we should not lose sight of the fact that it will close loopholes that have enabled suspects to escape justice for some considerable time. The House will, I am sure, be at one with me in wanting to ensure that this country secures the full benefits of the new treaty as quickly as possible, so that British victims of crime can see justice done. I need not remind the House that in 1972 the treaty took five years to ratify. This treaty has taken three. The arguments on evidence have been well rehearsed on both sides of the House, and it is no longer the central issue before us. The tests in the United Kingdom and the United States are not identical, but they are broadly comparable. We have never wavered from that position.

So that leaves forum. As I have explained, a statutory provision making forum a ground for refusal in the Extradition Act could make us unable to ratify the treaty. We have, however, looked at an alternative. We are developing a non-statutory agreement with the United States in cases where a person could, even theoretically, be tried either there or here. The purpose of that agreement is fairness. By that I do not just mean fairness to the suspects, although of course that is vital, but fairness to the victims; in short, a balance. Future generations of prosecutors and victims would not forgive us if we missed this opportunity to improve and strengthen our provisions to combat cross-border crime. While acknowledging the concerns that have been raised, I urge this House, having done this country a great service in enabling us to bring about ratification, now to drop its insistence on the amendment and allow us to move forward and ratify the treaty, which is now ready to be so ratified by our American colleagues.

Moved, That the House do not insist on its Amendment No. 36, in respect of which the Commons have insisted on their disagreement, and do agree with the Commons in their Amendments Nos. 36C and 36D in lieu.—(Baroness Scotland of Asthal.)

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.

My Lords, I have nothing to add to or subtract from what the noble Lord, Lord Goodhart, said. His analysis exactly reflects the conclusions that we on these Benches have reached.

I have only a brief observation to make about the manner in which we find ourselves in this situation. As your Lordships well know, this treaty was signed in secret. It was negotiated in secret. Indeed nobody, apart from the civil servants directly involved and the Home Secretary knew that these negotiations were going on—despite the fact that an Extradition Act was in the offing. Moreover, this was no ordinary treaty. Many international treaties, which are negotiated, signed and ratified between states, have no implications for individuals. But this treaty deeply affected the rights of citizens in this country.

The extraordinary thing about this treaty is the different treatment of the rights of US citizens and those of British citizens. I know that the noble Baroness dissents from that, but in our judgment the rights of British citizens were valued far lower than the rights of US citizens. All their constitutional conditions were met, but none of those that we ought to have brought forward, but apparently did not, was met. It is a bad treaty, which should never have been signed. That remains our position.

What will we do about it? There is a wider issue for us as the official Opposition to consider. We have sent the Bill back to the elected House twice, and it has come back to us twice, effectively unchanged. The noble Lord, Lord Goodhart, said that there are certain designer changes, but only for the purposes of procedure. Essentially the Government have held their ground. The noble Lord, Lord Goodhart, and I have sought to negotiate with the Government informally to see whether some form of watered-down forum arrangement might be appropriate, but the Government have stuck to their guns.

What should the official Opposition do? Should we send it back again, with all the implications that that would have for Parliament, or should we not? We have concluded that, in our judgment, it would be wrong for us as an unelected House, having faced two repudiations from the elected House, to send this back one more time. We are the unelected House. If we were an elected House, I am sure that our decision would be different.

My Lords, I am deeply sad that the lawyers and the Government cannot tell the difference between information and evidence. I am deeply sad that we have abrogated the rights of British subjects, and I am even sadder that my own side has taken the view that it has. This House should insist on protecting the liberty of the subject. The health service and other things are, for want of a better word, “administrative” arguments. But this goes to the core of British liberties. We know that this Government—and the noble Baroness should know a lot better because she is a jolly good lawyer—have ridden roughshod time after time over British liberties. I will have great pleasure in voting with the noble Lord, Lord Goodhart.

My Lords, I, too, express my surprise that the official Opposition have withdrawn their opposition on the ground that we are the unelected House. I have heard them argue differently in the past and I am surprised that they have now accepted the government view in totality—that if the Commons override amendments sent to them, that is the end of the matter because we are an unelected House. That places this House in a very junior position indeed.

It is not as if the House of Commons cannot get its own way. It can always get its own way by using the Parliament Act. That is exactly what it should do under these circumstances. This extradition agreement with the United States has been a disgrace from beginning to end. I know that particularly. The Minister will remember that I intervened during the debates on the European arrest warrant to draw the Committee’s attention to what was happening with the negotiations with the United States. The fact that the Government wanted to negotiate something in secrecy is altogether against any credit that they might otherwise have had.

I very much regret the fact that the official Opposition have withdrawn their opposition to what the Government have been doing and that they will not insist on the proper amendments, sent to the House of Commons by this House after much debate among people well qualified in this particular law. If the amendment of the noble Lord, Lord Goodhart, is put to the vote—I hope that it will be—I should be delighted to support it.

My Lords, I have a question for the Minister based on personal experience. I am prompted to ask it by her mentioning the closing of loopholes. In March 1980, I was commanding the brigade in Belfast. We surrounded a house in which there was an IRA gun team who had killed a number of RUC men over the preceding months. In achieving their surrender, an extremely gallant young officer of mine, Captain Richard Westmacott, was unfortunately killed by this team. I eyeballed the four gunmen as they were taken out of the house to prison. They were tried at the Crumlin courthouse the next year. After they were found guilty of murder, there was a mass escape from the Crumlin and large number of them got away to America. It was 11 years before we succeeded in obtaining the extradition of Doherty, the leader of that team. Each and every time we asked, the Americans claimed that the murder of Captain Westmacott had been a political crime and they therefore refused to extradite. We are told that we are now deeply involved in a war on terrorism. Can the Minister assure me that, under these arrangements, this sort of loophole will be closed and British victims of crime will be able to see justice done in future?

My Lords, would new Section 83A of the Extradition Act, were it to come into force on the passing of the Bill with which we are now concerned, require an amendment of the treaty or not? The noble Lord, Lord Goodhart, seems to have changed his mind on this. I was of the view that it would probably require an amendment to the treaty, which was one reason why I would be against the amendment of the noble Lord, Lord Goodhart. I have other reasons, however, which were given by the noble and learned Lord, Lord Boyd of Duncansby, on the last occasion. I do not know whether the noble and learned Lord intends to speak today, but he made an extremely powerful case against the form of the amendment. As we all know, it will almost certainly lead to further delay and complications, which it has been our object for at least 30 years to try to avoid in extradition proceedings.

My Lords, I shall deal first with the point raised by the noble and learned Lord, Lord Lloyd of Berwick. I wholeheartedly agree with him about the accuracy of the points made by my noble and learned friend Lord Boyd on the last occasion when we discussed this matter; they were absolutely correct. Secondly, if the amendment tabled by the noble Lord, Lord Goodhart, was accepted, we would not be able to guarantee ratification because those forum amendments are outwith the treaty. Therefore, it would be open to our American colleagues to say that they were not prepared to ratify the treaty unless and until those provisions were expunged. The noble Lord, Lord Goodhart, said that in realpolitik, although we might be accused of acting in bad faith in not having raised those matters, the benefits of the treaty are so clear that the Americans might feel obliged to concur. That is not a way in which we do business in this country; it is not a way in which we ratify and deal with treaties.

I heard the noise that came from the other side, but I remind the House that this treaty was negotiated in a similar way to the way in which many other treaties were negotiated. There may be a feeling in this House that in future we should not be able to enter into treaties unless and until Parliament has spoken and has gone through every scintilla, and until every “i” has been dotted and every “t” has been crossed. But that is not how we do business at the moment, and it is not how any Government before us have done business. However, that is probably a debate for another day.

To deal with the question asked by the noble Lord, Lord Ramsbotham, in relation to the 1985 position, I assure him that the 1985 supplementary treaty disapplies the political offence in extradition. That has been continued in the 2003 treaty. The situation to which the noble Lord referred could not now occur.

My Lords, I have seen it reported that one of the inducements given to the American Senate to ratify the treaty was a statement that the United Kingdom would not seek the extradition of any IRA people for acts committed before Good Friday. Can she confirm whether that is true?

My Lords, it has been made plain that all the provisions that currently apply as a result of the Good Friday agreement would apply to any person who wishes to take advantage of them. We are not making any new, different or separate arrangement outwith that which we already have in relation to the Good Friday agreement. Noble Lords have debated many times how someone may apply to have those issues dealt with if he wishes to put himself into a better place. We have made no separate or different arrangement.

My Lords, I heard noble Lords around me saying, “What does that mean?” I must admit that I did not understand a word that the Minister said. Can she answer the question more clearly? I may be one of the stupider Members of this House, but on this occasion other noble Lords are also saying that they cannot understand the answer.

My Lords, this House has debated every scintilla of the issues in relation to the Good Friday agreement, its consequences and the basis on which people can seek amnesty or an opportunity to return to this country. I shall not say that we did so ad nauseam because those issues are incredibly important. All those provisions apply in relation to any individual wherever he happens to be if he wishes to return to this country and take advantage of them. Nothing that we have done in relation to this treaty or this Act changes those issues. We are very hopeful of having a resolution to the Northern Ireland question later this month. We will have to wait and see what happens. Nothing that we have done here alters any of that work in any way whatever. I am sure that the House would not want me to recite each and every—

My Lords, as I understand it, the noble Baroness is saying that on-the-runs in the United States are safe from any attempt to extradite them to this country.

My Lords, I am not saying that, and the noble Lord knows perfectly well, having been intimately involved in the whole periodof change in Northern Ireland, the nature and complexity of the rules that can apply in relation to those matters.

My Lords, I am most grateful for that, but the noble Baroness has not made the matter terribly clear. Are the on-the-runs in America safe from extradition or not?

My Lords, it really depends on when they went, what they did and whether the provisions under the Good Friday agreement apply to them. The Senate’s advice and consent to the treaty was subject to a resolution regarding the situation in Northern Ireland. The UK Government have already stated—in September 2000—that they will no longer pursue the extradition of individuals who, if they were to return to Northern Ireland, would now be eligible for early release under the terms of the Good Friday agreement scheme and who would, on making a successful application to the Sentence Review Commission, have little if any of their original prison sentence left to serve. The resolution to which the Senate’s consent to the treaty was subject is non-binding and was intended to reassure Senators that the treaty would be implemented in accordance with the US law and constitution and in compliance with the Good Friday agreement.

I am sure that nobody in this House would wish us to set back the position of Northern Ireland to where it was before that agreement. We are moving forward, and that which we commit this country to do will be consistent with that and not undermine it. I am sure that the noble Lord, Lord Tebbit, would not wish to undermine the new arrangements that we have in Northern Ireland, which are likely to bring peaceand tranquillity to that Province for the first time in many a year. So, we have the situation in relation to the past.

As regards the forum, I just say that we do not agree that this treaty jeopardises the rights of citizens of this country. I have tried to make it absolutely clear in the assurances that I have given to the House that if our prosecutors come to the conclusion that the facts complained of are wholly or substantially in this country, that the links are minimal and that most of the events took place in the United Kingdom, it will be their decision whether to prosecute in this country, and theirs alone. If at any stage, once an extradition application has been made, we reach the conclusion that this case would be better tried in this country, that we should prosecute those facts and that it would be in the interests of justice so to do, I assure this House that our prosecutors will decide to do that. It is our right and our duty to do that if we reach that conclusion. Nothing that happens in this treaty or this Act prevents us from so doing.

Your Lordships should be aware that my noble and learned friend the Attorney-General is absolutely seized of this matter; he understands the concerns of this House and the importance that we place on prosecuting matters in this country if it is right todo so. I give that assurance to help the House to appreciate that we understand the anxiety that has been expressed and that we will do everything that we can to address the issue.

This treaty inures to our advantage, and I am surprised to hear the noble Lord, Lord Kingsland, say that this is a bad treaty and should never be signed, because when I previously asked whether Her Majesty’s loyal Opposition wanted the treaty, the answer was yes, they did. I understand why they want this treaty. They want the treaty for the same reasons as we do: we want justice for victims; we want fairness; and we want to be able to prosecute those who should properly be prosecuted in the correct jurisdiction.

My Lords, when we debated the matter a week ago, the noble Baroness made a most interesting speech, which I have had the benefit of reading several times. At the end of her speech, there was a passage that indicated that, since the ratification of the treaty, she had had some discussions with the American negotiators that gave messages of comfort as to how the treaty would be negotiated. I concluded by asking her a direct question: what was the status of those assurances? Did they have the force of law or were they merely a message of comfort? I have not heard from the noble Baroness since and she did not reply at the time, so I should be grateful if she could answer that question now.

My Lords, I apologise for not replying. They are assurances. They do not have the force of law in that they do not set down enforceable arrangements, but we have had similar arrangements over a long period. They are practical arrangements as to how we will work with our partners—ways of dealing that have stood us in good stead. It is the intention of both our Attorney-General and the Attorney General in the United States to continue those discussions so that we have a reasonable, practical arrangement for decisions to be made on whether cases would be best tried here or elsewhere.

I underline the fact that nothing in those informal arrangements would preclude or prevent us from prosecuting if we came to the conclusion that we wanted to do so, irrespective of what any contracting state may prefer. It will be our decision and down to our prosecutors whether we believe, on the face of the evidence and information that we have, that the matter would be better dealt with in this country. No agreement that we enter into will impinge in any way on our ability to make that decision for ourselves.

My Lords, the noble Lord, Lord Bridges, was too quick for me, rising before I could respond to the noble Baroness's final observation about our wanting the treaty. We want the treaty, but subject to the forum amendment. We do not understand why the forum amendment was granted to the Irish but not to us. There is, it now appears, one simple reason: the Irish asked for it; we did not. The Government do not really want the judges to have the power to determine; they want the prosecutors to have the power to determine forum. That has always been wholly unacceptable to us and, thus, the treaty is wholly unacceptable to us without that forum provision.

On Question, Motion agreed to.

81: Schedule 14, page 134, line 3, at end insert-

“(j)forum.”;”

The Commons disagree to this Amendment for the following Reason-

81A: Because the Lords Amendment, taken with Lords Amendments Nos. 82 and 83, could cause the United Kingdom to be in breach of existing international agreements and would unduly restrict its ability to enter into further ones.

The Lords insist on their Amendment No. 81 for the following Reason-

81B: Because it is appropriate that judges should have discretion over requests for extradition in the manner proposed.

82: Page 134, line 5, leave out “19A”” and insert “19B””

The Commons disagree to this Amendment for the following Reason-

82A: Because the Lords Amendment, taken with Lords Amendments Nos. 81 and 83, could cause the United Kingdom to be in breach of existing international agreements and would unduly restrict its ability to enter into further ones.

The Lords insist on their Amendment No. 82 for the following Reason-

82B: Because it is appropriate that judges should have discretion over requests for extradition in the manner proposed.

83: Page 134, line 23, at end insert-

“19BForum (1) 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 allthe circumstances that it would be in the interests of justice that the person should be tried in the category 1 territory.

(2)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.””

The Commons disagree to this Amendment for the following Reason-

83A: Because the Lords Amendment, taken with Lords Amendments Nos. 81 and 82, could cause the United Kingdom to be in breach of existing international agreements and would unduly restrict its ability to enter into further ones.

The Lords insist on their Amendment No. 83 for the following Reason-

83B: Because it is appropriate that judges should have discretion over requests for extradition in the manner proposed.

84: Page 142, line 5, at end insert-

“Bars to extradition (1) Section 79 (bars to extradition) is amended as follows.

(2) After paragraph (d) of subsection (1) there is inserted-

“(e)forum.” (3) In subsection (2), for “83” there is substituted “83A”.

(4) After section 83 there is inserted-

“83AForum (1)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 allthe circumstances that it would be in the interests of justice that the person should be tried in the category 2 territory.

(2)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.””

The Commons disagree to this Amendment for the following Reason-

84A: Because the Lords Amendment could cause the United Kingdom to be in breach of existing international agreements and would unduly restrict its ability to enter into further ones.

The Lords insist on their Amendment No. 84 for the following Reason-

84B: Because it is appropriate that judges should have discretion over requests for extradition in the manner proposed.

The Commons insist on their disagreement to Lords Amendments Nos. 81 to 84 but propose Amendments Nos. 84C and 84D in lieu-

84C: Page 134, line 44, at end insert-

“Restriction on extradition in cases where trial in United Kingdom more appropriate 3A (1) In section 11 (bars to extradition)-

(a) at the end of subsection (1) there is inserted- “(j)forum.”; (b) in subsection (2), for the words from “12” to “apply” there is substituted “12 to 19B apply”. (2) After section 19A (inserted by paragraph 3 above) there is inserted-

“19BForum (1)A person’s extradition to a category 1 territory (“the requesting territory”) is barred by reason of forum if (and only if) it appears that-

(a)a significant part of the conduct alleged to constitute the extradition offence is conduct in the United Kingdom, and (b)in view of that and all the other circumstances, it would not be in the interests of justice for the person to be tried for the offence in the requesting territory. (2)For the purposes of subsection (1)(b) the judge must take into account whether the relevant prosecution authorities in the United Kingdom have decided not to take proceedings against the person in respect of the conduct in question.

(3)This section does not apply if the person is alleged to be unlawfully at large after conviction of the extradition offence.”

3B (1) In section 79 (bars to extradition)-

(a) at the end of subsection (1) there is inserted- “(e)forum.”; (b) in subsection (2), for “Sections 80 to 83” there is substituted “Sections 80 to 83A”. (2) After section 83 there is inserted-

“83AForum (1)A person’s extradition to a category 2 territory (“the requesting territory”) is barred by reason of forum if (and only if) it appears that-

(a)a significant part of the conduct alleged to constitute the extradition offence is conduct in the United Kingdom, and (b)in view of that and all the other circumstances, it would not be in the interests of justice for the person to be tried for the offence in the requesting territory. (2)For the purposes of subsection (1)(b) the judge must take into account whether the relevant prosecution authorities in the United Kingdom have decided not to take proceedings against the person in respect of the conduct in question.

(3)This section does not apply if the person is alleged to be unlawfully at large after conviction of the extradition offence.”

3C (1) An order bringing paragraph 3A or 3B into force is not to be made within the period of 12 months beginning with the day on which this Act is passed.

(2) If after the end of that period a resolution is made by each House of Parliament that paragraphs 3A and 3B (or either of them) should come into force, the Secretary of State shall make an order under section 51 bringing the paragraphs (or paragraph) into force.

(3) An order made by virtue of sub-paragraph (2) must bring the provisions in question into force no later than one month after the day on which the resolutions referred to in that sub-paragraph are made or, if they are made on different days, the day on which the later resolution is made.”

84D: Page 39, line 1, at end insert-

“( ) paragraph 3C of Schedule 14;”

My Lords, I beg to move Motion B, That the House do not insist on its Amendments Nos. 81 to 84, in respect of which the Commons have insisted on their disagreement, and do agree with the Commons in their Amendments Nos. 84C and 84D in lieu.

Moved, That the House do not insist on its Amendments Nos. 81 to 84, in respect of which the Commons have insisted on their disagreement, and do agree with the Commons in their AmendmentsNos. 84C and 84D in lieu.—(Baroness Scotland of Asthal.)

moved, as an amendment to Motion B, at end to insert, “but do propose AmendmentNo. 84E as an amendment to Amendment No. 84C:

84E: Leave out lines 47 to 57 and insert—

“3C Paragraphs 3A and 3B shall come into force on the day on which this Act is passed.”

The noble Lord said: My Lords, I have just two brief points to make in response to what the noble Baroness said. First, we are in the same position on the question whether the forum amendment would involve renegotiation of the treaty. As I understand it, she maintains—and I agree—that the United States, not having yet taken the final step of exchange of instruments and ratification, could, in theory, decide not to proceed with the exchange of instruments, in which case the treaty would not come into force. On the other hand, if they proceed with the exchange of instruments of ratification, because the forum matter is, as she said, outwith the treaty, the treaty would be perfectly valid without any renegotiation. I understand that to be the position, and I think that that is the answer to the question from the noble and learned Lord, Lord Lloyd of Berwick.

The Minister’s only other argument is that this would delay extradition. To a slight degree, that must be correct, but it is also true that the real reason why extradition took so long in this country is that, on several occasions under the old procedure, matters had to be referred to the Home Secretary for a decision. There was a judicial review each time the Home Secretary took a decision. This was clearly abused. Under the new procedure, whether or not the forum amendment is accepted, there will be no scope for similar discretionary decisions by the Home Secretary, so the main cause of delay will be excluded. What is left of delay is a price plainly worth paying for justice. I therefore still firmly believe that the forum amendment should be added to the Extradition Act.

My immediate thought, on learning of the position of the Conservative party on this issue, was of a poem that many noble Lords will know:

“The grand old Duke of York,

He had ten thousand men,

He marched them up to the top of the hill,

And he marched them down again”.

If one substitutes the name of the noble Lord, Lord Strathclyde, for that of the Duke of York, and 200 Peers for 10,000 men, that is exactly the position which the Conservative party is in now. It is not only feeble but positively shameful, and I hope that a number of noble Lords on the Conservative Back Benches will join the noble Earl, Lord Onslow, in supporting us in the Division Lobby.

In December 2003, we were the first party to battle against what we saw as unjust extradition when we opposed in both Houses the order that gave to the USA the right of extradition without evidence. If, as seems all too probable, that battle is about to come to an end, we will at least have fought it to the last. I beg to move.

Moved, as an amendment to Motion B, at end to insert, “but do propose Amendment No. 84E as an amendment to Amendment No. 84C”.—(Lord Goodhart.)

On Question, Motion B agreed to.