§ 6.50 p.m.
§ The Minister of State, Home Office (The Earl of Caithness) rose to move, That the draft order laid before the House on 20th November be approved. (2nd Report from the Joint Committee.)
§ The noble Earl said: My Lords, I beg to move that the draft Suppression of Terrorism Act 1978 (Application of Provisions) (United States of America) Order 1986, a copy of which was laid before this House on 20th November, be approved.
§ The House will be aware that the purpose of this order is to apply the provisions of the Suppression of Terrorism Act 1978 to the United States. This will open the way for the United Kingdom to ratify the new Supplementary Extradition Treaty with the United States. The amended text of that supplementary treaty is set out in Schedule 1 of the draft order. An exchange of notes between the two governments, giving the text, was laid before your Lordships' House and the other place last month. The main effect of the supplementary treaty will be to prevent people accused or convicted of certain serious crimes of violence from avoiding extradition by claiming that their offences are political. As your Lordships will know, people accused or even convicted of serious violent offences in the United Kingdom have been able to flee to the United States and avoid extradition by claiming that their offences were political.692
§ It may be helpful if I seek to explain first some of the terms of the draft order before us this evening, and then turn to the supplementary treaty iself. The draft order has been considered by the Joint Committee on Statutory Instruments. Before the United Kingdom can ratify the supplementary treaty the necessary statutory provisions have first to be applied. Thus the draft order applies certain provisions of the Suppression of Terrorism Act 1978 in respect of extradition to the United States. That statute gave effect to the European Convention on the Suppression of Terrorism. The present arrangements with the United States reflect some of the terms of the European Convention which, among other things, seeks to remove the political offence exception from extradition in respect of certain violent crimes. The European Convention also contains other provisions which have not been included in the supplementary treaty. Thus it obliges participating states to establish extraterritorial jurisdiction over offences where extradition does not take place. But that would be outside the terms of our principal extradition treaty with the United States; nor would it be a particularly appropriate facility for two common law states. It has not therefore been included in the supplementary treaty. The Suppression of Terrorism Act is applied by order to other states which have ratified that convention. It has been so applied over the years to all the European states which have ratified. The United States would be the first country outside the Council of Europe to be designated.
§ The draft order, in Schedule 2, identifies the various provisions in the 1978 Act which give effect to the provisions of the supplementary treaty. In particular I draw your Lordships' attention to paragraph 5 of that schedule. This sets out the list of offences—drawn from the list in the 1978 Act—which are not to be regarded as offences of a political character in relation to a request for the extradition of a person to the United States. All the major terrorist offences are covered in the list which includes murder, manslaughter, kidnapping and explosives offences.
The supplementary treaty does not extend the range of offences which are extraditable under our principal extradition treaty with the United States. The principal treaty sets out in the normal way the list of crimes for which extradition takes place, and to that extent remains unamended. The principal treaty however incorporates a further requirement of the Extradition Act 1870: the political offence exception. This requirement is a standard feature of our extradition treaties. Thus the principal United States treaty prevents extradition:
if the offence for which extradition is requested is regarded by the requested party as one of a political character".
This concept is not defined in either the 1870 Act or in the treaty. In the United States a body of case law has arisen concerning the interpretation of this exception. The effect of this has been that the United Kingdom has failed to secure the extradition of people accused or even convicted of serious offences simply on the ground that the US court had to accept that their political motives prevented extradition. It may be helpful to the House if I gave an example.
§ In one particular case the United Kingdom applied for the extradition of a man to face a charge of attempted murder as a result of causing an explosion at an army barracks in 1974. In this incident a bomb exploded in the canteen of a barracks in Ripon and a civilian canteen manageress was injured by flying glass. The fugitive in fact admitted involvement in the incident. Following consideration of the United Kingdom's request a San Francisco court ruled that the alleged offence was political and rejected the request.
§ Neither the United States nor the United Kingdom accept that this state of affairs represents a proper application of the political offence safeguard. It is deeply offensive to ordinary law abiding people to see criminals accused of such vicious offences find haven in another country, particularly a country with which we have such close and friendly relations. The purpose of this safeguard must surely relate to asylum. But where both countries are democracies and have independent judiciaries it cannot be right for people accused of such crimes so easily to escape justice.
§ I turn now to the content of the supplementary treaty. The present text of course differs from that which was signed by representatives of the two governments in June 1985. The amendments were made following lengthy proceedings in the Senate Foreign Relations Committee, with which the United Kingdom was kept closely in touch.
§ The most important changes relate to the list of offences and to the inclusion of a safeguard. The effect of the supplementary treaty is that a person accused or convicted of any of the offences in the list in Article 1 of the supplementary treaty would not be able to avoid extradition by claiming that his offence was politically motivated. Some of the offences on the original were removed. For example, there were difficulties with some of the firearms offences. It was doubted whether the descriptions of the offences would always cover conduct which actually amounted to a crime in the United States. The combination of the international terrorist offence references (for example, hijacking, hostage taking) was a matter of drafting. And possession and purely property offences were removed. The list of offences is therefore briefer. But both the United Kingdom and the United States are confident that the whole range of terrorist crime is covered.
§ Another important change was the inclusion in Article 3 of the so-called humanitarian or asylum safeguard. This provision did not feature in the original text of the supplementary treaty because there was no treaty or convention obligation on us to do so. It was also felt to be unnecessary because the issues covered by the safeguard simply do not arise between the US and the UK. The Senate, however, felt that it was proper to include the safeguard in order to balance the removal of the political offence safeguard. In this respect therefore the supplementary treaty follows the European Convention.
§ The safeguard is found in our Suppression of Terrorism Act and is applied automatically to other countries in the European Convention on the 694 Suppression of Terrorism. It is also found in the Fugitive Offenders Act 1967 which covers Commonwealth extradition. It has now been included in the Criminal Justice Bill which is at present in the other place so that it can also apply in foreign extradition cases.
The effect of the humanitarian safeguard is to prevent extradition where the extradition request is made for the purpose of trying or punishing a person on account of his race, religion, nationality or political opinions, or where the fugitive would, if surrendered, be prejudiced at his trial or punished, detained or restricted in his personal liberty by reason of his race, religion, nationality or political opinions. The article also provides, however, that the fugitive must satisfy a court:
by a preponderance of evidence
that he would be persecuted in this way. It was also decided that the supplementary treaty should make clear that no changes were being made to the evidential requirements. Thus Article 2 repeats the prima facie and "probable cause" requirements.
§ The remaining changes were minor or technical. I shall, however, mention one. It was intended to change the principal treaty provision in respect of prosecutions which were barred by lapse of time. The aim was to provide that extradition might only be denied where the offence in the requesting state was barred by lapse of time. However, the Senate deleted the provision, because it considered that the existence of a time bar in the requested state was a proper reason to deny extradition.
§ I hope that I have said enough about the treaty to enable your Lordships to form a view of the purpose of this draft order. For the sake of completeness I should also explain that two other instruments will be required before ratification can take place. An Order in Council under the Extradition Act 1870 is necessary: this is laid, but is not subject to proceedings. And a negative resolution order under the 1978 Act will apply the arrangements to the dependencies.
§ The Government believe that the supplementary treaty is a most welcome development. It will demonstrate that neither we nor the United States will allow our countries to afford refuge to those accused or convicted of grave crimes. My Lords, I therefore commend the draft order to the House, and I beg to move.
§ Moved, That the draft order laid before the House on 20th November be approved. [2nd Report from the Joint Committee].—(The Earl of Caithness).
§ Lord Mishcon
My Lords, the House will be grateful to the Minister for so clearly explaining the reasons for the supplementary treaty and draft order now before us. As he rightly said, there was a scandalous set of conditions following the wave of terrorism, when we found that in the United States—such a valued ally—terrorists guilty of the most heinous crimes were being let off extradition by virtue of a claim that their actions were politically motivated. The decision made in the San Francisco court, which the noble Lord referred to, was one which created a great deal of anger and 695 resentment in this country. There is not the slightest doubt but that the warm cords that bind us to the United States become very much cooler as a result of incidents of this kind. This supplementary treaty has done something not only to right a wrong but to see that a proper, civilised order in regard to matters of this kind exists both here and in the United States. From these Benches we welcome the supplementary treaty and the order.
The Earl of Caithness
My Lords, I am grateful to the noble Lord, Lord Mishcon, and his party for their support. I wish that the Liberals and the SDP were here also to support the order.
On Question, Motion agreed to.
§ House adjourned at once minute past seven o'clock.