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Lord Thomas of Gresford: I—

Lord Mayhew of Twysden: Does—

Baroness Scotland of Asthal: I shall not give way just now. I had reached the second myth and there are still several to go. I am sure that I shall be able to respond but I invite the Committee to allow me to attempt to respond to the questions that noble Lords have already raised before I go on to deal with the rest.

Lord Mayhew of Twysden: I may be able to save the noble Baroness from the risk of misleading the Committee. She referred us to Section 71 but she did not refer us to Section 71(4), which says that, if the requesting country is a category 2 territory which is designated for the purpose, you do not have to read that section as requiring evidence because information will do. That is a very different matter, as I am sure the noble Baroness will agree.

Baroness Scotland of Asthal: I tried to correct myself. I said “evidence” and then “information”, correcting myself on the second occasion. The noble and learned Lord, Lord Mayhew, is right. However, we say that the information sent is sufficient to justify the issue of the warrant. Noble Lords will know that the information sent in the Enron Three case involved affidavits and various other data. I say that because I have now had the benefit of reading Lord Justice Laws’s full judgment. If the noble and learned Lord, Lord Mayhew, has looked at the content and identification of the evidence or information provided, as I am sure he has done, he will have seen that it appears to have been fairly comprehensive in the way in which it was referred to by the court.

Lord Thomas of Gresford: Does the Minister agree that information is not evidence and that there is no basic evidence put before a court in this country upon which a judge can make a judicial decision?

Baroness Scotland of Asthal: I do not agree. Prior to reading the decision of Lord Justice Laws andMr Justice Ouseley, I would have said that, on the basis of belief and assumption. However, having read the judgment, I can see very clearly that the evidence and information provided was of a very substantial nature. So information has to be provided, and I argue that it is clear that that information is of a fairly high or good quality.

We do not accept that there is such a lack of reciprocity as to justify removing the United States from the group in which it currently sits with many other countries. If we remove the US for white-collar crime—or fraud, to give it its proper title—and for everything save terror, we will disable ourselves and the United States in dealing expeditiously with a number of other pernicious offences: sexual offences, such as rape; capital offences in the US, such as murder; and many others, too. I do not believe that that will inure to our country’s benefit or indeed to that of the United States.

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I have dealt in part with the third myth, which is that there is no reciprocal arrangement or direct reciprocity. As I tried to explain, and I hope the Committee will accept—although there is not exact reciprocity, which is almost impossible between any two legal systems—when we have looked at the matter—and we have been asked to do so many times; it was first raised, as the noble Lord, Lord Goodhart, rightly said, in 2003—we have been content with the view that we arrived at a while ago: namely, that we have appropriate parity.

We have discussed this matter with the United States and are entirely satisfied that the way that they interpret the phrase that I have just used—

is broadly equivalent to the way in which they use the phrase “probable cause”. There is no dissonance between us and them. That is broadly the information required to justify the issue of an arrest warrant in both countries. That is why I say that there is parity and there is not an issue regarding lack of reciprocity. Perhaps I can underline the point on reciprocity. When US prosecutors make a request to us—and this is the point we have had clarified for us—they have to justify just the same test, because they have to include their domestic arrest warrant in their request to us. As I said, that means that they have to satisfy their own magistrate on probable cause. We believe that that helps to demonstrate reciprocity.

Lord Richard: My noble friend says that there is broad parity and broad reciprocity. What, then, is she going to try to persuade the Senate to do? If the arrangements are already reciprocal, why is she being sent out to Washington with a brief to sit down and persuade the Senate that it should now ratify something that may not be as reciprocal as what they’ve got?

Baroness Scotland of Asthal: The reason is that there has been an unfortunate conflation between the failure to ratify the treaty and the terms that exist between us and them as a result of the 2003 Act. In the public mind, as has been evidenced in this Committee today, there is an erroneous belief that we have to remove our citizens to America without any evidence at all—that is the import of what is suggested—while they are not obliged to do the same for us. As there is antipathy for the failure to ratify, there is a lack of confidence—a reduction in confidence—that we and many of our citizens enjoy with the United States. It is damaging to our relationship for this confusion to continue. For that reason, we believe that it may be helpful for me to make those points clear, on a face-to-face basis, in America.

The fourth myth is that the basis on which cases such as the Enron Three have been decided is fundamentally flawed and that these three people are to be extradited because of a failure to ratify the treaty. That is simply not correct. The treaty is not yet in force but, as I hope the Committee will now

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be aware, the arrangements under the Extradition Act 2003 which set the current procedures for extradition requests to the United Kingdom fromall extradition partners would have operated to allow the extradition of the three people accused of involvement in the Enron fraud. So although in making the arrangements we implemented the part of the treaty that allows that to happen, the information requirement remains.

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The fifth myth is that the United Kingdom has insufficient safeguards for its citizens within the arrangements. That too is simply not true. I have set out the safeguards on many occasions but it may be appropriate if I quickly summarise them: identity, dual criminality, a request made for improper reasons, double jeopardy; injustice due to illness, ill health or passage of time, and the human rights provision. The human rights safeguard is important. I hear what the noble Lord, Lord Lester, says about the import of the case of the Enron Three, but that is not the full conclusion that one reaches when reading the decision. In this decision the court referred specifically to Article 8 of the convention and the comments were made in relation to that and not to the whole of the ECHR. At the end of the judgment, Lord Justice Laws said in terms that, in any event, for the reasons that I gave in dealing with the appeal against the judge, the defendants had and have no ECHR case. The court reached a general view that the defendants in the Enron Three case had no ECHR case. I know that the noble Lord, Lord Lester, will agree that Lord Justice Laws and Mr Justice Ouseley are nothing if not expert in the Human Rights Act and the ECHR. And that was their finding. I still believe that the Human Rights Act provides a very important safeguard regarding this treaty. The last two safeguards concern the death penalty and speciality.

The sixth and final myth—although there seem to have been so many myths that it is difficult to know when to stop—is that people may be extradited without a nexus being established with the jurisdiction requesting their extradition. That has arisen in the Enron Three case. In fact, the courts must find that a request is extraditable. In the Enron Three case, the courts found that the alleged conduct had taken place in the United States, and of course the money which the men are alleged to have made was in Enron dollars and Enron shares. Even if the extradition is sought by any other country for offences that are extra-territorial, then we must recognise those offences also as extra-territorial under the extradition principle of dual criminality enshrined in the Act. In the judgment in that case, the court specifically dealt with those matters. One myth which seems to have been promulgated is that this was a British case. The judges dealt with that very specifically in upholding the decision in the Enron Three case. In paragraph 47 they said:

The issue of forum was dealt with comprehensively and looked at, and it was a proper matter to be dealt with by the courts here. It is therefore simply not right that cases with no nexus with our country can be dealt with in this way.

When the Act was in preparation, thought had to be given to the basis on which we differentiate between our extradition partners. We already had a large group of more than 40 countries from which we did not require prima facie evidence, consisting of most of the countries of continental Europe under arrangements set up by the Conservative Government in 1991, when they acceded to the Council of Europe’s European Convention on Extradition. Israel and South Africa, as associate members of the Council of Europe, also participate in the ECE. We have had an international obligation ever since to every country that has joined the ECE. That includes countries such as Albania and Azerbaijan, to take just the beginning of the alphabet. I remind noble Lords who may be concerned about how such requests are dealt with that the Human Rights Act applies.

The question then arose of how to deal with non-Council of Europe countries with whom we have close relations. Those include not just the United States but also Australia, Canada and New Zealand. It is worth noting that those countries allow us to make requests not just on comparable terms but, in the case of New Zealand, on terms quite similar to those of the European arrest warrant; and for Canada simply on the basis of a statement of the case, which is probably rather less than probable cause. In sum, then, the removal of the prima facie requirement, although not appropriate for every country, is consistent with the faster and more flexible approach to extradition that is needed in the modern world. There is no benefit to anyone in our judges having to hold mini-trials on the facts in an extradition case when we can trust the requesting state to hold a fair trial of the evidence.

That leads me to what I respectfully but regretfully say to the noble Lord, Lord Rees-Mogg, was a caricature of the American system. The American system believes in fair trials, legal representation, the ability of individuals to appeal and just delivery. To caricature the United States as a country that operates differently from that is most regrettable.

Lord Rees-Mogg: Would the Minister not agree that the standards of justice and the standards of prisons, which are very important in this case, vary enormously from state to state? Generalisations cannot safely be made about the quality of justice in the United States. Some of it is as good as justice anywhere in the world, and perhaps better; some of it is deeply unsatisfactory.

Baroness Scotland of Asthal: I hear what the noble Lord says, but the United States of America is the United States of America. It would be as invidious to compare Dorset with Manchester and Manchester with London and to say that it is variable.

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Noble Lords: Oh!

Baroness Scotland of Asthal: It is the reality of where we are. The United States has a system that is part federal and part state. Within that system there is an allowance for difference. We cannot recast the United States into a way that we would prefer.

I turn to some of the very specific issues raised by noble Lords. The noble and learned Lord, Lord Mayhew, suggested that we would be strengthenedif this Committee resoundingly supported this amendment. However, that is not the likely consequence or reaction that the United States may have to such an act. We have to look very carefully indeed at the basis on which we could logically justify removing the United States from Part 2 and the order in which it currently fits while allowing other states—which may also not have a treaty that inures to their benefit—to have the benefits and stay in the same place. That is a real difficulty.

The noble and learned Lord also asked me to deal with the issue of forum. We basically find ourselves in the following position: having extended inclusionto the United States, we would be removing it notwithstanding the fact that, as Ambassador Tuttle made clear in the article he put in the Financial Times, it has honoured requests from us. It has surrendered people from its jurisdiction to ours and believes that, in so doing, it has behaved honourably and well and in comity to us. So in practice the question would be: on what basis do we say that the US has behaved so improperly that it should be deprived of a benefit granted to it, a benefit from which we too have already benefited? I have heard nothing this evening that would give me comfort about what I could say to it to explain that.

I am aware of the frequently expressed concernof the noble Lord, Lord Goodhart, about the designation of the United States; indeed we have debated the point on more than one occasion. The amendment would require the United States once more to provide prima facie evidence with its extradition request, as it did before the Extradition Act 2003. I was grateful to the noble Lord for his acceptance that the prima facie evidence standard is greater than the United States has ever asked from us. As a result, on Amendment No. 191, we think thatan insistence on precise reciprocity of evidential requirement between our two jurisdictions before the United States could be re-designated would be flawed. The amendment is unnecessary because the arrangements currently in place achieve, as I have tried to indicate, a reasonable balance.

The forum argument can be well dealt with by virtue of what happened in the Enron Three case. The forum issue could quite properly be discussed. The court considered all the issues on those matters that the noble Lord, Lord Kingsland, has set out. We believe that the current system allows those issues to be dealt with in an efficacious way.

Lord Brittan of Spennithorne: If the current situation is so entirely satisfactory, as the Minister seems to be saying, why on earth do we want the

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treaty to be ratified by the United States? Is it really just in order to clarify the situation and to destroy the myths that she has referred to? If not, what benefits will we get from ratification of the treaty which we do not have at the moment? She has not said anything about that.

Baroness Scotland of Asthal: I have, but I am very happy to clarify it. One of the main benefits that we will get from the treaty, which we do not have now, concerns temporary surrender. That is important, but so is the removal of time limits. At the moment each extradition offence in the United States has a limit attached to it. So, for example, if we had evidence in our country that better identifies an offender through DNA—and our DNA work is so much better than it was 20 or 30 years ago; because of the incredible advances we are identifying perpetrators of pernicious, awful crimes as we could not do 20 or 30 years ago—because of the statute of limitations which applies to the different offences, and under the treaty currently, we could well have real difficulty extraditing people to this country to stand trial. If we had the benefit of the treaty, those matters would be much easier. So there are a number of benefits that go beyond the basic provisions of the 2003 Act. Neither we nor the United States would be able to take advantage of those provisions unless and until we ratified in the way that we have both wanted for a long time. Its ratification and our ratification will give to our respective countries the full benefit of the treaty which we have now wanted for a considerable period.

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I can certainly assure noble Lords that I will leave the United States in no doubt whatever of the passion that is felt on this matter and the depth of concern that your Lordships have expressed. I say to the noble Lord, Lord Hodgson of Astley Abbotts, that it appears that our joint advocacy may have had some influence on Attorney General Gonzales, because he has been a vociferous supporter of ratifying the treaty. However, the Senate is very much like this place: it may listen, but it is not always persuadable.

Lord Phillips of Sudbury: May I ask the noble Baroness a question that may be in the minds of many Members of the Committee, especially the non-lawyers? We have heard a very engaged debate, conducted on this side by two highly distinguished Queen’s Counsel—experienced lawyers—supported by no fewer than four other Queen’s Counsel, some of them former Officers of the Crown. Is the noble Baroness saying that the six of them, not to mention the other distinguished contributors in favour of the amendments, are completely wrong and that they are building the amendment and their arguments on a phantasm and that, in effect, reciprocity already exists and all due process and protections are in place? It is a bizarre debate.

Baroness Scotland of Asthal: What I am saying quite clearly is that, first, I understand the strength of

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feeling that has been expressed in this Committee as a result of the failure to ratify the treaty. The expression has been about fairness—that it is unfair that the Americans should have any portion of the advantage that was inherent in the 2003 treaty without having ratified. I understand the nature of that assertion.

I also understand that there is an argument as to whether there is perfect parity between evidence necessary to justify the issue of a warrant and probable cause. I have tried to explain to the Committee why I believe that the anxiety about those two matters is flawed—first, because the Americans have accepted that the two tests are very similar; secondly, and much more importantly, they have to satisfy the probable cause test before they ask for extradition from us. The information that they have been sending us seems to comply with that test.

So our position is that we do not see why America should be treated significantly differently from the other countries which currently have the advantage of that part of the Act. I have heard nothing in this debate to give any justification for that differentiation.

Lord Christopher: Would my noble friend be kind enough to confirm that I have heard and interpreted her correctly: that this is about serious alleged offences having taken place in the United States and that the evidence, or the principal evidence, for those alleged offences is in the United States and would probably not be available here?

Baroness Scotland of Asthal: That is what the decision of Lord Justice Laws and Mr Justice Ouseley appears to make crystal clear.

Lord Kingsland: I can be relatively—indeed, exceedingly—telegraphic. At the beginning of her response to this debate, the noble Baroness accused both me and the noble Lord, Lord Goodhart, of conflating the issues. I hope that when she reflects on what has been said today, she will disagree with her own assessment. Both the noble Lord and I have made clear from the outset that there were two distinct issues in the debate. The first was ratification; the second was reciprocity.

The noble Baroness has said very little about ratification. She has not explained to your Lordships’ satisfaction—I trust, when we come to the vote—why the United States should be having its cake and eating it, why it should have all the benefits and none of the burdens of the treaty—not that the burdens of the treaty are very great. I can understand that, for a short period, that might be acceptable; but for two and a half years, it is not.

Baroness Scotland of Asthal: I had hoped thatthe noble Lord had understood what I have said: that the United States does not have the full benefit of the treaty. It has those benefits that we have given each country that appears in Part 2, in which it sits. It has nothing more than that and if it wishes to have the benefit of the further provisions, it must ratify the treaty.

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Lord Kingsland: It is plain from the recent Court of Appeal decision that it has the full benefits of the treaty. It is equally plain that we have none of them. That is why we tabled Amendment No. 186.

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