It may sounds terribly geeky to admit this, but I’m quite looking forward to the publication (today, hopefully) of the transcript of yesterday’s proceedings of Commons standing committee D, which will cover the last two of eight sessions examining the Police and Justice bill.
If you’ve been following the action at Liberty Central, you’ll already know that I have a particular interest in sections 33-37 of the bill, which deal with amendments to the Computer Misuse Act 1990 – unfortunately I was on my way home from work at the time the committee was scheduled to debate this part of the bill and so missed that part of the debate. But what I was able to listen to was the debate on opposition amendments to schedule 12 of the bill, which make a number of amendments to the Extradition Act 2003, specifically two amendments introduced by Conservative members in relation to the workings of the 2003 US-UK extradition treaty.
The back story here is that on 31st March 2003, Britain was signed up to a new extradition treaty with the US by the then Home Secretary, David Blunkett, without any prior consultation with Parliament – signing treaties without the need for Parliament’s consent is yet another power vested in the Prime Minister and his appointed Ministers under the Royal Prerogative.
This treaty was then ratified by the government by means of an ‘Order in Council’, which means simply that the Queen called a meeting of the Privy Council, which usually amounts to no more than a half-dozen Cabinet Ministers, and which a list of pre-agreed Orders were read out and approved – only the title of the order, mind you, not the order itself – following which the order, as it was related, at the time, to the Extradition Act 1989, was ‘laid before’ Parliament, being covered by the provisions of the Statutory Instruments Act 1947. All this means, in practice, is that it was listed in the daily order paper where it could have been voted on, but only if MPs demanded a vote of floor of the House, which is almost unheard of as few MPs are willing to disrupt the day’s business in the Commons by demanding such a vote – and in the absence of such a demand, it automatically becomes law, even though it was not formally implemented until the passing of the Extradition Act 2003.
In this case, matters were complicated by the fact that this entire process was carried out before the treaty has even been published – this didn’t happen for two months after it was signed – so MPs had no idea of its contents at the time it was ratified and waved through into law by entirely undemocratic means.
What this treaty, and the Extradition Act which implemented it, does is place extraditions to the US on the same footing as extraditions to EU countries, which might sound reasonable until one realises that this had the effect of;
Removing the requirement that the US provide prima facie evidence to a UK court when seeking the extradition of individual from the UK; although when the UK seeks to extradite an individual from the US, the UK still has to prove ‘probable cause’ before extradition can be approved – under the previous treaty the US had to provide sufficient evidence to show that committal for trial, under UK law, would be justified, now it merely has to provide a ‘statement of facts of the offence’; by ‘facts’ here we mean allegations, not actual evidence.
Watering down a number of other safeguards that were previously part of the extradition process, giving rise to several areas of concern; including,
* The question of the possible application of the death penalty.
European case law and protocols 6 and 13 of the European Convention on Human Rights, to which Britain is a signatory, expressly forbid extradition where the death penalty may be imposed, yet the treaty say online that the UK may refuse extradition if the US fails to give assurances that the death penalty will not be imposed or, if imposed, will not be carried out; and,
* The watering down of the ‘speciality rule’.
This should mean that a person may only be tried for the offence(s) for which they have been extradited, unless first given the opportunity to return to the country from which they were extradited – in effect, should the US wish to introduce new charges once they have someone in custody, that individual should be repatriated to the country from which they were extradited originally for further extradition proceedings in relation to the new offence(s). In the past this rule has been waived, in very narrow circumstances, and also unilaterally breached by the US; however under the 2003 treaty, the Home Secretary is granted authority to waive speciality and consent to “detention, trial or punishment”, rather than simply prosecution for any offence, not just one for which an individual could be extradited.
Accepting these provisions amount to tacit collusion in US extra-territorial/extra-judicial processes as, under these provisions, the Home Secretary could consent to the indefinite detention of an individual in an ‘offshore’ facility – i.e. Guantanamo Bay, for reasons other than those for which that individual was extradited to the US
* The blanket exclusion of certain offences from provisions allowing the UK to derogate from their obligations, under the treaty, if it considers that extradition is being sought for political reasons and amounts to political persecution.
In the 2003 treaty, a number of offences are expressly excluded from being defined as ‘political’ – these include any violent crime against the Head of State or a member their family, murder, manslaughter, malicious wounding, grievous bodily harm, kidnapping, abduction, hostage taking, possession of explosives, placing, using or threatening to use explosives/firearms and, of course any conspiracy, aiding and abetting or procurement offence relating to any of the other offences.
Now this may sound perfectly reasonable – except one has to the remember that under the treaty the US is not required to provide evidence that an individual engaged in any such actions, merely provide a ‘statement of facts’ (i.e. allegations) sufficient to justify an arrest warrant. In effect, in order to extradite an political opponent, the US merely has to put forward a serious enough allegation, irrespective of whether there is sufficient evidence to sustain that allegation or even whether any evidence they might have is admissible in court – this last point is of particular importance given the issue of extraordinary rendition and the US’s extremely narrow view of what constitutes torture, a view so narrow than many of the interrogation techniques that the US will own up to using would be considered to be torture in UK and Europe, never mind what goes on when interrogations are outsourced by the US to certain other countries.
Conversely, blanket exemptions on extradition for military offences and ‘third-state’ extraditions are retained – by third-state extraditions what is meant in a situation where, for example, the UK extradites an individual from the US and then receives an application for extradition of that same individual from another state, under the treaty this second extradition could not take place without the permission of the state from which the individual was originally extradited. Of course, it suits the US to retain these provisions, not least because the UK has “confirmed [its] understanding that this covers surrender to the international criminal court”, which the US refuses to recognise, which means these provisions support both the US’s refusal to recognise the ICC and exempt US citizens from any proceedings for war crimes in a neutral court.
There is also the little matter that the treaty also makes any statue of limitations, in either country, irrelevant in extradition matters, creating a rather curious situation in which someone in the US could escape prosecution for certain offences by hiding out until the relevant statute of limitations expires, but if they’re caught hiding out in the UK and extradited, they can still be prosecuted, even if the statue has expired in the meantime – this, of course, runs both ways.
Now you may already be thinking that all this looks a tad one-sided, and not in our favour, but then there’s one final wrinkle to be ironed out in all this – while our own government fair fell over themselves in the rush to get this treaty ratified and into our own law; three years on the US senate still haven’t managed to ratify the treaty: it was forwarded to the Senate’s Foreign Relations Committee in 2004 and finally debated in November 2005, where the committee declined to vote on it – and until the committee votes on it, it cannot be put to the full Senate for ratification.
And the problem?
Well, after representations from the American Civil Liberties Union and the Ancient Order of Hibernians and several other Irish-American organisations, the Senators on the committee appear to feel that the treaty threatens the civil liberties of their own citizens – if only our own government felt the same way – objecting in particular, so its believed, to the removal of the exemption on political offences, the removal of the statute of limitations and the ability the treaty would give the UK to try people for offences for which they were not originally extradited.
Yes, the situation really is that absurd.
Getting back to proceedings in our own legislature, yesterday Conservative members of the standing committee put forward used the opportunity presented by schedule 12 of the Police and Justice Bill, which deals with a range of extradition matters, to put forward two sets of amendments to the Extradition Act 2003 that would have the effect of permitting the Court to refuse extradition in cases where a matter could be dealt with under UK law and which would suspend the extradition arrangements in the 2003 treaty in all but terrorism cases until the US senate get around to ratifying their end of the deal - a move which drew a remarkable performance from Hazel Blears, who was leading for the government in these proceeding.
I’m sure that when the session transcripts appear they’ll fail entirely to do the Minister’s performance the justice it deserves; after patiently sitting through the painstaking explanation for these clauses given by Conservative members, her moment came and she grasped with both hands. There were ‘misconceptions’ about the provisions of the treaty that she would ‘correct’ – perhaps she could pay a visit to the US senate which she on, as these ‘misconceptions’ appear to be much the same ones they have as well - but, having brought her incisive legal mind to bear on the matter, much in the fashion of Miss Marple (providing one recalls Margaret Rutherford’s interpretation of the role as a bossy schoolma’am from the 1950’s) it was clear that the members’ real issue was not just the treaty itself, but who the treaty is with; the United States of America.
Oh and how, then, did she lay the faux outrage on with a trowel – well more a cement mixer.
Were the honourable members perhaps casting aspersions on US standards of justice and jurisprudence?
Would they not accept that extraditions to the US should be treated the same as extraditions to Canada, Australia and New Zealand, all of whom were being given similar considerations under the Extradition Act they now had the temerity to challenge?
And oh, did the Conservative members not struggle to make their point – that yes, indeed, the US is the problem – without sounding too critical, no doubt fully aware of their own party’s ongoing efforts to rebuild bridges in Washington that had been burned by their previous leaders opportunistic claim that he would not have supported the invasion of Iraq had he know that the government had misrepresented the little matter of the countries WND capabilities. Well might they shy away from pointing the finger too firmly in a Westerly direction in such circumstances…
But, having no such concerns to trouble my own conscience, let me point that America is the problem here.
Lest we forget, it’s the US that has a growing and entirely unenviable record, since launching its self-styled ‘war on terror’, of breaching international law on extradition and ignoring even its own treaties with sovereign nations when it comes to extradition procedures.
The US is also not a signatory to any of the international human rights conventions that apply to judicial cooperation between European states – of course several of these European states are by no means paragons when it comes to their own judicial standards and attitude towards human right, but at least they are all party to the European Convention on Human Right and can be held accountable in the European Courts. The US cannot even manage standards on something as fundamental as the use of torture that would match up with European standards.
Then there is the little matter of US accountability – or rather the lack thereof. The US routinely refuses to recognise international law and judgements laid down by the International Court of Justice – in 1999, a German national was executed by the State of Arizona, disregarding ICJ order a temporary stay of execution pending a judgment in relation to a breach of international obligations. The US Solicitor General took the view that an ICJ ruling was not binding and offered no basis for judicial relief.
On a whole range of issues, the US has an abysmal record on human rights – by the standards of most Western democracies. The US is certainly not the worst human rights offender on the planet, it would be absurd to claim any such thing when one considers conditions within many of the more obvious culprits for human rights abuses (China, Saudi Arabia, Syria, Libya, Algeria, North Korea, Burma, etc.) on can quite legitimately argue that it has possibly the most hypocritical record on human rights to found anywhere at the present time.
And then there is Gitmo and the whole business of extra-territorial detentions, extraordinary renditions and the outsourcing of terrorist suspect interrogations to states that are know to have appalling human rights records and where there is documentary evidence of the widespread and routine use of torture – evidence that even the US State Department’s own website records and publishes as guidance for own citizens.
Hazel Blears is right when she says that there is nothing particularly wrong or problematic about US jurisprudence… provided you are allowed access to it and not shuttled off to the Cairo branch of Thumbscrews ‘R’ Us before being dropped off for long holiday from the outside world, and your basic human rights, at the US Military’s favourite Caribbean resort – Guantanamo Bay. It’s not the judicial system in the US that’s so much the problem but some of the corners that elements amongst some US law enforcement agencies that are creating the difficulties.
Still its well worth noting that, on the whole and even allowing for the current parcel of rogues that are running the show in Britain, our overall record on human rights is rather better that that of the US, provided we keep them at a respectable distance; thanks in no small part to our own judiciary and the semi-regular visits of the Home Office to the High Court to be put right when they start pushing the envelope of legality – and still the US Senate won’t ratify this treaty out of concerns for the civil liberties of their own citizens while our own government has not only ratified the treaty on the fast track but started shipping people off to the States under its provisions.
Rather says a lot about the relative priorities given to civil liberties by the US legislature by comparison to our own – which rather raises the point as to whether or not the government understands just exactly who it is supposed to working for, because on the strength of this treaty, it doesn’t appear to be us?
Police & Justice Bill Schedule 12
The 2003 US/UK Extradition Treaty (pdf)
Extradition Act 2003
And an excellent article on the treaty, dating from 2003, courtesy of Statewatch