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Lord Stoddart of Swindon: My Lords, I took part in debates on the Bill in Grand Committee and I was most concerned about the arrangements made between this country and the United States. It is entirely proper for the noble Lord, Lord Goodhart, now to move his Motion. If he presses it to a Division, I shall be pleased to support it because there is no doubt that in relation to extradition, citizens of this country are being put in a worse position than citizens of the United States who may be required to face charges in this country. That cannot be right.
No matter what the United States constitution provides, it should not be allowed to overrule the best interests and rights of the people of this country. We have our own constitution and means of protecting our citizens. One of them is to ensure that they are not put in a worse position, particularly on criminal matters, vis-a-vis any other nation. The noble Lord, Lord Goodhart, is right in saying that the order does that.
Furthermore, because of the difficulty of changing the United States constitution, it will not be possible to redress the balance in a short period of time. If that were possible, I and many others would be prepared to see the measure go through today. But it may be decades before the balance can be redressed.
I am sorry that the noble Baroness, Lady Anelay, is unable to support the Motion of the noble Lord, Lord Goodhart. I greatly admired the way in which she and the noble Lord, Lord Goodhart, conducted the proceedings in Grand Committee. It is a great pity that the Conservative Party and the Liberal Democrat Party cannot come together on this, because it is a vital provision.
Baroness Carnegy of Lour: My Lords, the noble Lord, Lord Stoddart, made many of those points during the passage of the legislation. He was most assiduous in his attention to that and we all
appreciated it. I agree that the problem is the Act. The Government have got themselves into this position vis-a-vis the United States of America. However, we have the Act and, given that fact, the disadvantages of a written constitution are shown by the fact that the United States cannot be flexible on this matter. We must accept that while taking note that written constitutions are not always as good as they may appear at first sight.The measure must be accepted and there is no way around it. However, I want to reiterate what my noble friend Lady Anelay said. We would not be having this interesting debate had the Government got away with laying the order by negative resolution, which was what they proposed. The Grand Committee did a good job in insisting that the Government make the change.
3.45 p.m.
Earl Russell: My Lords, the noble Baroness, Lady Anelay, said that she is not supporting the amendment because the United States is, in effect, our oldest ally. Technically, I believe that that honour belongs to Portugal, but I do not argue with the spirit of what she said. I am aware of a long-standing and vital friendship to which it is possible that I may owe my life. I was accidentally in America in 1939 and I returned across the Atlantic in 1944 in circumstances in which, without American protection, it is likely I might never have reached these shores.
However, justice is proverbially blind. As soon as you enter a world where in matters of justice you give a respect to people because they are your friends but will not give that to other people because they are not your friends, the very principle of justice itself is at risk. It is blind; it must remain blind. The fact that a country is a friend of ours is no excuse—
Baroness Anelay of St Johns: My Lords, perhaps the noble Earl will allow me to intervene. That was my preamble to saying that I then looked at the judicial system of that country, which I do in each and every case, and took note of how it might interact here. I did so particularly with regard to the Part 2 procedures which, the noble Earl will know because he was present during many of our debates on the Extradition Bill, contain other safeguards.
I entirely agree with the noble Earl that one does not give preferential treatment to someone just because he is a friend. That is not the basis of my political activity.
Earl Russell: My Lords, I am most grateful to the noble Baroness for that correction. If Guantanamo Bay is not the United States system, whose system is it?
Lord Dahrendorf: My Lords, my noble friend Lord Goodhart made a strong case for the Motion standing in his name. Other noble Lords supported his case equally strongly, not least my noble friend Lord Russell. I agree on reciprocity and on the obvious difficulties of resolving the matter within a reasonable
period. In particular, I agree with the comments made on Guantanamo Bay and what it means for the defence of western values if the country which above all others stands for those values treats human beings as so-called "combatants" without any rights. Your Lordships' House has discussed this matter and has expressed a strong view which I share.Nevertheless, I believe that the Motion would send a political signal which would put the United States on a level with a number of countries included in the order before us because of their relationship to the Council of Europe. That political signal would be sent when the defence of western values, acting together with the United States, is one of the major issues before us. I, for one, do not want to send that particular political signal and therefore I do not find it possible to support the Motion put forward by my noble friend.
Baroness Scotland of Asthal: My Lords, I thank all noble Lords who have participated in the debate. The noble Baroness, Lady Anelay, was right in saying that as a result of amendments made to the Bill, provision was made for us to have this debate in order to explore the issue. I want to deal with the first point made by the noble Lord, Lord Goodhart. He said that the principle of reciprocity is an important one. I would not disagree with him, save to say that the principle has never applied with total unanimity to all countries. I say to the noble Lord that that is a curious assertion to make when, in relation to New Zealand, Australia and Canada, we have no reciprocity. It is not an argument of principle which is raised in relation to those three countries.
Perhaps I may say a word, too, about the United States. In effect, the noble Lord is saying that if another administration were in being in the United States—that is tantamount to the implication—perhaps there would be another view. These extradition arrangements are made with a country, irrespective of its political complexion. The test that we shall consider is whether the judicial system in that country justifies its inclusion or exclusion from this part of the Bill.
In relation to that issue, I totally understand and accept that there is a difference between the way in which one state operates its law as compared with another. The noble Lord may prefer the way in which it is expressed in one state compared with another, but that does not change the fact that these systems are recognisable within a democratic country and that they deliver an accountable democratic system of justice.
I agree wholeheartedly with the noble Earl, Lord Russell, that there cannot be one rule for one's friends and one rule for others. Justice must prevail and it must be blind. I believe that we have shown our fairness in that regard by including countries such as Albania, Romania and others, along with Canada, America, New Zealand and Australia. Therefore, we are not adopting one approach for our friends and one for others; we are even and open-handed.
I noted what was said about the way in which the treaty was negotiated. I believe that the noble Lord, Lord Goodhart, asserted that it was negotiated in secret. It was not. The treaty was negotiated in exactly the same fashion as we negotiate all other extradition treaties and, for that matter, all other bilateral international instruments. The text of the treaty was published as a command paper shortly after it was signed. Again, that is the normal procedure, including the Ponsonby rules.
Lord Goodhart: My Lords, that was exactly my point. Of course it was published shortly after it was signed. It was published within a few days of being signed, but there was no possibility of anyone in either House of Parliament having any input into the negotiating process or of trying to put pressure on the British Government not to enter into an agreement which was not reciprocal.
Baroness Scotland of Asthal: My Lords, I hear what the noble Lord says, but he cannot suggest that the negotiation took place in secret; neither can he suggest that it was outwith the usual practice. It may have been a practice with which the noble Lord does not concur, which is a slightly different issue, but it took place in accordance with practice which has been adopted for a very long time. I appreciate that 1870 was a long time ago for a Liberal government, but I hope that if the noble Lord considers what happened thereafter, he will agree that it has been consistent.
The command paper was published and normal procedure, including the Ponsonby rules, was followed. The only unusual aspect was that the gap between signature and publication was shorter than is customary because we were aware of considerable interest in the new treaty. I should have thought that the noble Lord would wish to congratulate the Government on that, but perhaps I ask too much.
The treaty has not been enforced yet because it has not been signed by the US Senate. We anticipate that the treaty will be put before the Senate formally early in the new year and approved shortly thereafter. We do not anticipate that we shall encounter any difficulties in that regard.
I thank the noble Baroness, Lady Anelay, for her very pragmatic approach in relation to these matters. I also thank the noble Baroness, Lady Carnegy. However, I say to both noble Baronesses that what was done in this case was entirely proper. We sought to make an independent, objective assessment of the most appropriate way forward to enhance the opportunity to secure the proper exchange of persons required to go through the criminal procedure in our respective countries. That was the decision made. We took total cognisance of the fact that, as I believe even the noble Lord, Lord Goodhart, accepted, changing the American constitution is an enormous task.
I know that the noble Lord does not wish us to wait 10 years before the provisions are introduced. It is right to say that the present treaty needed to be changed. I hope that the noble Lord receives great comfort from the support that has clearly been given by the noble Lord, Lord Stoddart, who totally agrees with the noble Lord, Lord Goodhart, on this occasion. If I may respectfully say so, I believe that the noble Lord, Lord Dahrendorf, has the right approach. With his usual sagacity, he summed up the truly liberal position.
We have had a very good debate, and I absolutely understand why the noble Lord wished to air these matters. They are serious and concerns have been voiced. However, it is appropriate to allow the order, as drafted by the Government, to go forward as the most proper and sensible way of dealing with the redesignation of the various countries under Parts 1 and 2.
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