HL Deb 06 June 1994 vol 555 cc1052-74

9.55 p.m.

The Earl of Longford rose to call attention to the practice whereby the Home Secretary exercises his discretion in extradition cases; and to move for Papers.

The noble Earl said: My Lords, I am grateful to the noble Lord the Leader of the House who I know has worked overtime to try to produce a satisfactory position in this very complicated affair. I understand that so long as I do not refer to the proceedings which took place today and which will continue tomorrow, I can refer to the case of those two ladies.

I draw the attention of the House to the grave situation, perhaps I may say desperate situation, of those two English women, Sally Croft and Susan Hagan. Sally Croft is a chartered accountant and Susan Hagan is a therapist. I assure the House that they are both women of high character. All who have met them agree that they are women of integrity. Everyone who has talked to them is satisfied of their innocence of the charges. Leaving out that aspect of their character, no one can doubt that they are fine women.

What is their position today? At any moment, they may be whisked off to Oregon. They may be handcuffed and find themselves transferred to Oregon where they may spend a year in prison before the case comes to trial. That is their situation. It is no good anyone saying, "Oh well, if they are innocent, it will come all right in the end". They are professional women in the prime of life. From that point of view, it would be an appalling and quite unjust penalty that they should spend a year in prison before coming to trial. That is their situation.

Your Lordships may ask where all this leads to. This matter has been going on for some years. Those two English women have been in England for nine years. They were here for about five years before any charges were made against them and in the past four years there have been many proceedings in the courts. I have listened to many of the arguments put forward during those hearings. I have been much impressed by the endless fertility of the imagination of the legal profession. After four years, the legal side seems to be reaching a climax. However, whatever is decided tomorrow—and this is the most important point—and whatever the legal decision, that can be no more than saying that the Home Secretary can lawfully send the women back, can lawfully extradite them.

That is not the same as saying that that would be right. On an earlier occasion, I am afraid that the noble Earl, Lord Ferrers, rather misunderstood the position. He said that if the law courts said that it was all right, then it was all right. He said that if the law courts said it was okay, it was okay. But that is absolutely not the situation at all. It is not at all okay. One might say that almost every action of government is lawful but those actions are subject to criticism. The work of Parliament would be cut by half at least if everything considered lawful by the courts were to be permitted as just and humane.

Therefore, let us not confuse ourselves with the idea that what is permitted by the courts is the right and honourable course. In other words, the Home Secretary has a discretion —one might say it is a burden of discretion—he has the power to do the right or the wrong thing. The law does not decide it for him. He is not the creature of the courts: he has his own conscience to answer to.

Well, what is the present situation? What about the two ladies involved? They joined a cult in India some years ago and ultimately the cult transferred to Oregon in the United States. It was quite a large affair; indeed, there were about 4,000 people in the cult. The cult incurred the hostility—understandable or not—of the local inhabitants. I understand that the federal Attorney General was thinking of prosecuting them. Years after the ladies had returned to England they were told that there had been a plot to murder that federal Attorney General. Of course, the evidence against them was beneath contempt.

Several members (four in number) of the cult were eventually charged with organising the plan to murder the federal Attorney General in that state. For some years, those four people never said anything about the two English women who left the cult in 1985. But eventually, under pressure and plea bargaining—I repeat, under plea bargaining—they put the blame on the two ladies. Although the Minister may wish to check the facts, I understand that those four people have not been heavily penalised. Three of them have not been sent to prison, but I believe that one of them served a short prison sentence. At any rate, they gained immeasurable advantage from putting the blame on the two English ladies. The evidence is bogus; indeed, one cannot repeat that too often.

That is the situation with which the Home Secretary was faced. What was he to do about it? Well, it was lawful and he was within his rights to send them back to America. As I understand it, we have always sent people back there when requested to do so. However, what would one say if one was absolutely convinced that the charge was false? Would one still say, "They must go back because we have always done that sort of thing and this discretion doesn't really mean anything"? I cannot believe that one would do so.

Alternatively, is one to say, "If we do not send these people back to America, they will not send members of the IRA back here"? Will one really say that? That would not be worthy of the Home Secretary. I have been pretty sharp in my criticisms of the policies of the present Home Secretary, but I have never said anything against his intellect or his honour. It would be unworthy of him—or, indeed, of any Home Secretary—to take that line.

Noble Lords who have an interest in the scriptures may remember what Caiaphas said when coping with the problem of Jesus Christ. He said: It is expedient … that one man should die … and that the whole nation perish not".

I cannot believe that the Home Secretary will rely on that argument; namely, that however innocent he knows these people to be—and, in his heart, he must know them to be so; everyone knows that they are innocent —he has to send them back because it is in the wider interests of dealings with the American authorities as regards the IRA. I cannot believe that. I cannot believe that the Home Secretary would pursue a course of such injustice, brutality and shame. I implore the Home Secretary to follow a course of justice, humanity and honour. I beg to move for Papers.

10.5 p.m.

Lord Pearson of Rannoch

My Lords, I understand from the words of my noble friend the Leader of the House that our ability to discuss what has become known as the Croft-Hagan case this evening is somewhat wider than it was when we last debated a similar Motion on 13th April. I did not speak in that debate because of the heat that had been generated over your Lordships' procedure. However, I wrote after-wards to my noble friend Lord Ferrers putting to him one of the criteria which I felt a Home Secretary should consider in such a matter. In exercising his discretion in a case of this kind, one of the criteria might be the receipt by the Home Secretary of a letter from one of the most respected noble and learned Lords in the land opining that a particular extradition would put the accused to an unacceptable risk of injustice if the Home Secretary were to allow it.

I put a second question to my noble friend Lord Ferrers which was: would a Home Secretary in those circumstances not be well advised not to authorise the extradition in question unless he were able to obtain a similarly weighty opinion which disagreed with the first opinion? I have to say, as I shall come to later, that my noble friend Lord Ferrers sent me the most courteous reply but he did not in fact answer the second question.

I think it is worth putting something of the opinion to which I was referring in that letter on the record. The letter comes from the noble and learned Lord, Lord Scarman, and was written on 23rd March 1993 to the then Secretary of State for Home Affairs, my right honourable friend Mr. Kenneth Clarke, for whom I might add I have considerable personal affection and the highest respect. I will put a copy of this letter in your Lordships' Library and not burden your Lordships with quoting it all at the moment. But I think that some passages are relevant to this evening's debate.

The noble and learned Lord, Lord Scarman, started off by saying that the letter was not written upon anybody's instructions; he did it entirely of his own volition. He sums up a little of the background to the case and then he goes on: It is, I believe, a valuable principle of our extradition law that the courts do not make the final decision. For, as is well recognised and accepted, extradition can give rise to questions of crucial importance, upon which the courts either refuse (e.g. the question of delay) to rule or upon which they have neither the power nor the evidence to form a judgment (e.g. political or social pressures upon the courts in the place of intended trial). There are three such questions in these two cases. They are: (1) delay, (2) oppression (3) a very real risk of a miscarriage of justice in criminal proceedings brought against the two ladies in Oregon, (as is the intention of the prosecuting authority)". The noble and learned Lord, Lord Scarman, goes on to describe his feelings on these three areas of doubt. I quote again: "Delay. The courts refused to consider this question, holding (as I understand the judgment of the Court of Appeal) that it was a question not for them but for you. I have to say that I think the delay (whatever be the reason or the excuses now put forward) has been intolerable, oppressive, and must enhance the doubts as to the credibility of whatever evidence the prosecution may seek to adduce". I continue to quote from the letter of the noble and learned Lord, Lord Scarman. He continues: "Oppression. The refusal of the prosecuting authority to let the defence see the statements of intended and other relevant witnesses in its possession is an oppressive restriction upon the rights of the defence. Are these two ladies to be extradited to stand trial under so unjust a handicap in the preparation of their defence?". Then the noble and learned Lord, Lord Scarman, comes to his third title: "Real Risk of Injustice. There are several aspects of these two cases which the English courts have not, indeed cannot consider. They are social and political factors in Oregon and the USA. I refer in particular to the political scene within the State, and the prejudice (by no means confined to Oregon) against the cult of which the two ladies were members. Additionally there is what the ladies counsel have described to you as the 'tenuousness' of the evidence of conspiracy involving them. These factors, individually as well as collectively, constitute a very real risk of miscarriage of justice if the ladies are brought to trial in Oregon —or indeed elsewhere in the USA". The last quote I will give your Lordships from the letter of the noble and learned Lord, Lord Scarman, reads as follows: I would submit that you would be putting these two accused to an unacceptable risk of injustice if you were to allow their extradition. It is not safe to take the risk". That was the letter of the noble and learned Lord, Lord Scarman, of 23rd March 1993—rather more than a year ago.

When my noble friend Lord Ferrers was good enough to reply to me, he confirmed that that letter was considered by the Secretary of State in April 1983 before he made the decision to order surrender. Knowing my right honourable friend Mr. Clarke as I do, I have to ask the Minister whether he personally considered that letter or whether when he says it was considered by the Secretary of State he is referring merely to officials in his department.

My noble friend Lord Ferrers also was kind enough to send me the judgment of the Divisional Court dated 15th December 1993. My noble friend assured me that the Divisional Court said it could find no flaw in either the approach of the Secretary of State or in the discharge of his duty in reaching his decision. Note that wording, my Lords: no flaw in the approach of the Secretary of State and nothing to be found wanting in the discharge of his duty. That is somewhat technical wording.

I have read the Divisional Court's judgment of 15th December 1993 and I think it is worth bringing to your Lordships' attention the great significance which Lord Justice Russell and Mr. Justice Blofeld bring to the opinion of the noble and learned Lord, Lord Scarman, in earlier judgments of this kind. On page 13 Lord Justice Russell's judgment goes as follows, and I quote again: I add only that perhaps in an extreme case the Home Secretary will look at the quality of the evidence but I am satisfied that whether he does so remains a matter for his discretion as opposed to an obligation. This is in accordance with the views expressed by Lord Scarman In Re Findlay [1985] AC318 at page 334, albeit in a different factual context". That is the way in which Lord Justice Russell treats the earlier opinion of the noble and learned Lord, Lord Scarman.

In the same judgment Mr. Justice Blofeld also quotes from the noble and learned Lord, Lord Scarman, as follows, on page 16, and I quote again: In addition to the Respondents relying on In Re Findlay [1985] AC318, so did the applicants. Lord Scarman in that case considered the proper exercise of an administrative discretion At the bottom of page 334 he said: 'But, … the judge in a later passage … did recognise that in certain circumstances, notwithstanding the silence of the statute'"— and here we have a quote within a quote where the noble and learned Lord, Lord Scarman, is speaking— '"there will be some matters so obviously material to a decision on a particular project that anything short of direct consideration of them by the ministers … would not be in accordance with the intention of the Act'". I am still quoting.

Lord Scarman continued: 'These two passages'—only the latter of those has it been necessary to quote—'are, in my view, a correct statement of principle' With respect I have to submit that these two passages from the Divisional Court's judgment acknowledge the importance of the views of the noble and learned Lord, Lord Scarman, and make it difficult for any Home Secretary to set aside his letter of 23 rd March 1993, especially in view of what has happened since.

If the Secretary of State were correct to disagree with the noble and learned Lord's opinion last April, further evidence has since come to light that: unfair trial by media awaits these ladies in the United States. For instance, a very biased video was shown on 5th April 1994 including emotional statements made by the alleged victim of the alleged conspiracy. I have not seen the video but I believe that other noble Lords have. I also gather that 74 per cent. of the inhabitants of Oregon who were recently consulted in an opinion poll believe that the ladies would not tell the truth and cannot be trusted. I have to ask your Lordships what chance a jury in that state has of being unbiased in this matter.

I have also been sent the affidavit of Mr. McCooey, the ladies' solicitor, upon his return from a recent visit to Oregon. He was there from 13th May to 18th May. Again I would not attempt to trouble your Lordships with the longish document. But there he spoke with highly regarded attorneys in the state of Oregon; he met with federal public defenders; and he also had the opportunity to speak to the chief legal counsellor to the Governor of the State of Oregon. He also canvassed the views of a cross-section of the local population as to whether they would give a fair hearing to Miss Croft and Miss Hagan if the people concerned were selected to be on the jury at their trial. All the attorneys and others to whom he spoke confirmed that trial by media is common out there and an effective tool utilised in criminal procedures by the prosecution and the defence.

The programme to which I have referred dealt with the alleged victim Charles Turner's views of the alleged conspiracy against him in which he expressed in very emotional terms the inadequacy of the sentences given to those who had pleaded guilty after plea bargains— people, I may say, who will form the main prosecution against the ladies in question.

The programme was screened deliberately on 5th April to coincide with the anticipated return of Miss Croft and Miss Hagan on 7th April 1994, although the programme was in fact made some six months earlier but withheld so as to have the maximum effect. My Lords, I could go on, but I trust that you get the gist of it.

It seems to me that the fact that the Government of the United States claim that these crimes are extremely serious flies in the face of the plea bargain arrangements entered into with other alleged co-conspirators who, Mr. McCooey says, escaped with extremely light punishment. He ends by saying that the unanimous view expressed to him by those with whom we discussed the case in Oregon is that everything should be done here in England to persuade the Secretary of State not to surrender them as there is a very real risk of a miscarriage of justice if they are brought to trial in Oregon.

What can we do to ensure that the Secretary of State does look at this matter again? I have to ask my noble friend the Minister whether the Secretary of State himself, my right honourable friend Mr. Michael Howard, has read the McCooey affidavit. I am not asking my noble friend whether his officials have read it, but has the Home Secretary read that affidavit?

Surely my noble friend must agree that if the letter of the noble and learned Lord, Lord Scarman, was right a year ago —and I think that it was, although the Home Secretary at the time disagreed—it must be more so now. The evidence which has come to light since is, to me, overwhelming. To anyone who reads the divisional court's judgment of 15th December and Mr. McCooey's affidavit, the whole picture is one of the legal process in this country following the rules, except for the magistrates' court's omission in the first instance to send the Home Office its reasons for agreeing to send the ladies for trial. However, I am told that that is a small technical matter.

I end by beseeching your Lordships to take on board that the opinion of the noble and learned Lord, Lord Scarman, even if it was in any way doubtful a year ago cannot be regarded as doubtful today. The divisional courts and others have had the highest respect for his views. I very much hope that the Home Secretary can look at this matter again and can exercise his judgment in order to prevent what is in my view certain to be a grave miscarriage of justice of which we shall all come to be deeply ashamed in the future.

10.18 p.m.

Lord Morris

My Lords, not for the first time, the whole House is grateful to the noble Earl, Lord Longford, for raising this very important matter. We do not speak in this debate lightly.

I am convinced that not only those speaking in the debate but all with experience of Parliament will agree that any reasonable and good man will be singularly conscious of one of the major lessons of hundreds of years of our history. That is clearly that in all times and in all eras justice is so precious, and so delicate, that she ever needs the protection of the bodyguard of Parliament and an independent Bench and Bar, together with a free and responsible press. Even then in these days we are visited by the most horrendous miscarriages of justice within our own jurisdiction. That is why we are here tonight: to do our level best to ensure that the Executive best serves the high duty of the interests of justice. But in this case justice has no protection from the independent Bench and Bar. They cannot try the issue on the facts on an extradition application from the United States of America, unlike extradition applications from the EC or the Commonwealth. It is left to the sole discretion of a politician.

Why is it that the High Court of Parliament should so concern itself with this matter, in particular when the courts have considered assiduously representations made by those who will undoubtedly be most grievously harmed should the Home Secretary choose not to exercise his discretion not to extradite two British women who are quite wrongly charged with offences that they did not commit and would never have committed? I am convinced that it is because the case against them is so unsure and unsafe that it will condemn this Home Secretary to the contempt of his fellow men for life, for it will be demonstrated beyond peradventure that should a trial on the facts proceed in the United States of America, a grave injustice will be perpetrated upon these two women to the bitter shame of the people of this country for whom the Home Secretary speaks and whom he should serve. That is the constitutional position. Her Majesty the Queen, at the most solemn moment of her Coronation—the moment that really matters, not when the bauble is placed on her head—swears before her God and her people two solemn oaths. One is to serve her God, the other is to serve her people.

Ministers of the Crown are the servants of the Crown; and by extension they are the servants of the people. The prerogative of acting on behalf of the Crown to protect the citizens of this country by not allowing them to suffer oppression in foreign countries is a critical power. It must be exercised by the Secretary of State with immense discretion. Bearing in mind that these two women have not had the protection of the courts on the issues in the case, he must take special care; and he can do so, should he so will.

As noble Lords will know, Section 12 of the Act states: Without prejudice to his general discretion as to the making of an order … the Secretary of State shall not make an order in the case of any person if it appears to the Secretary of State in relation to the offence … [that] by reason of the passage of time since he"— that is, the person who is charged— is alleged to have committed it … or … because the accusation against him is not made in good faith in the interests of justice… it would, having regard to all the circumstances, be unjust or oppressive to return him". We have had the immense benefit of the quotation by my noble friend Lord Pearson of Rannoch of part of a letter from one of the greatest liberal jurists of this country in this century, namely, the noble and learned Lord, Lord Scarman. I use the term "liberal" not in the offensive, modern sense of the term but in the late 18th and 19th century sense. It is an absolute disgrace for any Home Secretary of whatever political party not to consider that very seriously.

Notwithstanding, I beseech my noble friend to consider the right and proper position of Parliament to make representation with regard to these cases if it believes that the Secretary of State has been in any way careless in considering these matters. We are talking about the liberty of the subject, no more and no less. It is for that reason that I will have nothing whatsoever to do with any Secretary of State who behaves in such a churlish way, demonstrating his contempt for Parliament and above all contempt for my noble friend Lord Wakeham, who did his level best to ensure that a proper and full debate was undertaken with regard to these matters. That is what I fear and that is why I have attempted to contribute tonight.

Lord Borthwick

My Lords, I wonder whether I may ask the noble Lord about this matter. I seem to remember that just before the war much the same thing happened. I remember hearing about it.

Earl Ferrers

My Lords, perhaps I may interrupt my noble friend for a moment and ask him to address the House as opposed to addressing Back-Benchers.

Lord Borthwick

My Lords, I apologise. I am afraid that I was thinking very hard about what happened many years ago and I just forgot. Please accept my apologies.

Lord Morris

I am afraid that even my memory does not go back quite so far as that of my noble friend. I do not know the case to which he refers. It is very distressing to hear that such a thing has happened before. I sincerely hope that it never happens again.

10.27 p.m.

Lord Mancroft

My Lords, I too am grateful to the noble Earl, Lord Longford, for the hard work that he has put in to enable us to debate this issue tonight. I am also extremely grateful to my noble friend the Leader of the House for the work that he has done and for allowing what was first to be an Unstarred Question to be changed at the last minute to the Motion in the name of the noble Earl.

Having said that, and expressed my gratitude to my noble friend, I must say that it is rather a pity that we did not know about the debate until Friday morning. I know that many other noble Lords would like to have spoken if they had been aware earlier of the debate. I am also grateful to my noble friend for his advice on the matter of sub judice. Many of us were and still are concerned about that issue. It may perhaps account for the lack of preparation that has gone into the debate. I wish that we had had more time so that it might have been a fuller debate and more noble Lords could have taken part.

There is a very high level of concern over this matter, which has been recognised by my noble friend the Leader of the House. It is quite rare for such matters to come before your Lordships' House. As a House, we tend not to take as much interest in these individual cases as does another place. I believe the fact that so many noble Lords have taken an interest in this case: shows its importance. There is very serious concern that a grave miscarriage of justice is about to take place.

I wish to concentrate on what I suppose I could call the humanitarian aspects of this case. I am quite certain, as will be many noble Lords judging from the letters which have criss-crossed over the past week and the amount that has been said about the case, that the legal and court procedures have been correct and been met. But the reason that the final decision remains with the Home Secretary in such cases is the very important and crucial recognition of the moral, social and political issues that cannot be determined by the courts in such cases.

I recognise the dilemma and the cleft stick in which my right honourable friend the Home Secretary finds himself. He has the dual obligation to fulfil the requirements of our extradition treaty with the United States of America and—an even more important obligation—to protect the rights of United Kingdom citizens. That is a terrible dilemma.

What concerns me most about this case, and what has made me take such an interest in it, is that if, by the smallest chance, a mistake has been made, then the victims of that mistake—in this case the two ladies— will be far beyond British jurisdiction where the mistake could be corrected. They will be under the authority of a legal system which too many noble Lords and others outside this House believe to be pretty dubious. I do not believe that, because the legal requirements have been satisfied, it is good enough to presume that the United States' courts will sort out the rights and wrongs of this case—that would be asking the Home Secretary to wash his hands of this matter, which I know he would not wish to do.

The 1989 Extradition Act allows the courts the power to refuse extradition if they believe that it would be unjust and oppressive, but only in cases involving the European Community and the Commonwealth. They have no such power in cases of extradition to the United States. In those cases the decision is left to the unfettered discretion of the Home Secretary. My first question, therefore, of my noble friend on the Front Bench is whether the Home Secretary accepts that in cases involving the United States—as this case does—he has all the power and the courts play only a narrow legal role in the matter?

Many noble Lords and thousands of people who have written letters to the Home Office believe that there is a danger that something is badly wrong in this specific case. Either my right honourable friend the Home Secretary knows something that we in this House do not know, or his criteria of what is unjust and oppressive are different from mine. Does the Home Secretary know something that we do not know? In the interests of fairness, in the interests of justice and in the interests of open government about which we hear so much, if my right honourable friend is aware of facts in this case of which your Lordships are not aware, then I ask my noble friend to tell us this evening what those facts are. Regardless of the answer to that question, can my noble friend tell us what are the Home Secretary's criteria of what is unjust and oppressive? We can then judge whether they are the same as our own and what his thinking is when he surveys cases such as this.

Just because the courts are satisfied does not mean that the Home Secretary should extradite. He must examine the cases in detail. I make that point because, in your Lordships' House on 31st March this year, in a previous debate on this case, my noble friend Lord Ferrers said, my right honourable friend is satisfied that the legal processes have been correct. That is why he agreed to the extradition".— [Official Report, 31/3/94; col. 1206.] If that is the reason for the extradition, then we are faced with a real problem. It would appear that my right honourable friend is using the European and Commonwealth criteria for an extradition to the United States. Could it be that that mistake, or perhaps the conflict of interests I mentioned earlier, resulted in the astonishing fact that no extradition to the United States has ever been turned down by the Home Secretary, while the courts have refused four cases to Europe and the Commonwealth within the past six months? If the Home Secretary is relying on the courts to decide about oppression and injustice in this case, then he has made a mistake. The criteria for oppression and injustice seem to lie at the heart of this matter and it is on those issues that I should like to concentrate.

The first issue which to me seems both oppressive and unjust, as my noble friend Lord Pearson mentioned a few minutes ago, is that of delay. The alleged crime was supposed to have taken place in 1985, but no mention of it was made by the United States Government until 1990. Did the United States Government know before then? Why did they keep it quiet until that time? Could it be that they knew that the defendants' only hope of getting witnesses was long gone because those witnesses had left the United States and would not return to give their evidence because they would face immediate arrest and gaol themselves? Why is it that the United States Government have refused to disclose the evidence either to the defence or, I believe, to my right honourable friend the Home Secretary? I cannot believe that that is good enough. My right honourable friend must satisfy himself that there is real evidence in this case.

The evidence itself is of course most important. Clearly, affidavits are prima facieevidence, and it is on that basis that the court ruled. But if my right honourable friend looks at these affidavits for even a second, he will realise that they would not stand up for a moment in a British court. They would not be permissible. Affidavits given under duress cannot be changed now because, if they are changed, the witnesses will be liable to gaol or to a charge of perjury on the original affidavit. As they are not acceptable in a British court, how can my right honourable friend presume to send British citizens to face justice under those circumstances? It is this evidence alone that is faced by the defendants. There is not one scrap of forensic evidence.

The last point, and the one which to me is most telling, is that of bias. I have seen the video that my noble friend Lord Pearson mentioned. It is not a very long video but it is an utterly horrifying video. I cannot believe that my right honourable friend could have seen it and still be prepared to send these ladies over to face that kind of justice and that kind of attitude. I believe that my right honourable friend is very fond of America. He holidays there a lot. Like most of us, he probably has American friends. He probably holds too, as most of us do in England, a great respect for the United States' constitution —the land of the free. But looking at the evidence that has been produced, I must say that he is not sending these ladies back to the constitution that Benjamin Franklin envisaged; he is sending them back to something that is more akin to the Salem witch trials. He is sending them back to the country where McCarthyism was born and where it still exists in other forms. This is not the east coast. This is the wild west of John Wayne.

I cannot believe that my right honourable friend can realise quite the kind of atmosphere to which these ladies will return. If he were to view this video, if he were to read the evidence that has been produced, he would begin to realise exactly what lies ahead. He has to a certain extent taken this point on board by the fact that he has agreed to raise with the United States Government concerns about a local trial and a local jury. But all the evidence that we have seems to suggest that the chances of a trial being removed to another state or beyond this political and moral atmosphere are virtually non-existent. It simply will not happen. The fact that he has recognised these concerns must mean that he knows of the concerns that we have mentioned today.

It is not enough just to say that the Home Secretary has examined the case and has come to a decision. Although I accept that he is under no obligation to explain his decisions in your Lordships' House, the seriousness of these issues will, I hope, persuade my right honourable friend that it would be both helpful to the House and indeed courteous to your Lordships to answer those concerns in detail. I believe that it would be helpful to him as well as us if he were to agree to meet us as soon as possible following the debate and before this extradition is executed. I am sure that when he reads tonight's debate and when he meets us and when he looks very carefully at these concerns he will want to reconsider his position.

10.39 p.m.

Lord Beloff

My Lords, after such emotional speeches on a case of obvious gravity, it is difficult to express dissent. Nevertheless, the Motion before us relates to a general question about the powers of the Home Secretary and his discretion in such matters. It is important that your Lordships should grasp that what is being suggested is that, in coming to a decision on this particular case, the Home Secretary should accept the view that the courts of justice in the United States will not offer the kind of safeguards which we would like to see. That is a very serious charge against our principal friendly ally.

The Earl of Longford

My Lords, may I interrupt the noble Lord? That is certainly one argument in favour of the Motion but it is only one point and not the main one I was making. I hope that the noble Lord will not confine himself to that issue.

Lord Beloff

My Lords, I shall confine myself, if I may, to what I regard as an important issue, which is the impact of this or of any other case on our relations with the United States of America. When Colonel Gadaffi refuses to extradite people because he says that justice in Scotland is not of the right kind, we naturally feel aggrieved. But Colonel Gadaffi is one thing. If one House of the Parliament of the United Kingdom says that justice is not available in the United States we are entering on a very different road.

I believe that that is the crucial issue. Of course, the effect on individuals may be very tragic indeed and is of natural importance to all of us, as we have heard in the speeches made this evening. But it is only proper that your Lordships should realise that in coming to a decision the Home Secretary, whoever he is and at any time, must take into account this fact: that hitherto we have always argued that our relations on such matters with the United States are reciprocal and that we expect extradition by them where we think our courts ought to consider a case and we accept extradition to them.

It is not the only area in which we have a partnership and perhaps it is an area of particular sensitivity. But to assume that the Home Secretary can simply go ahead and say, "I am not prepared to trust the courts of the United States and will therefore refuse an extradition which I might otherwise feel disposed to give", is taking a very serious' step which might have quite long-term consequences.

Lord Morris

My Lords, is my noble friend Lord Beloff aware that he has just put forward the argument of governments throughout history; namely, that the interests of governments in international relations are infinitely more important than the liberty of the subject? I do not take that view. I believe that the liberty of the subject and the interests of justice are infinitely more important than good government relations, particularly in a case such as this where the Home Secretary does not have to give reasons why extradition is refused.

Lord Pearson of Rannoch

My Lords, when he comes to reply, will my noble friend Lord Beloff also agree—

Noble Lords


Lord Pearson of Rannoch

My Lords, with the leave of the House, I think that my noble friend Lord Beloff is asking me to continue. Would my noble friend Lord Beloff, who is, as we all know, a great and respected expert in these constitutional matters, accept that it is not necessarily correct to apply a blanket distinction to the United States of America? We are here, it would appear, unfortunately talking about one particular state, Oregon, which is of a particularly Christian leaning, and this community was not Christian and therefore this particular state is one which is less likely to give a fair trial to this matter than many of the other states in the United States of America, which is one reason why I understand that my right honourable friend the Home Secretary has started to suggest that it should take place elsewhere.

Lord Beloff

My Lords, perhaps I may reply briefly to those points as I do not wish to delay the House and we all want to hear the Minister. With regard to the question of the noble Lord, Lord Morris, of course in the long run the interests of justice and of the individual is what government is all about. On the anniversary of D-Day I should have thought that we might think that our good relations with the United States have been a very important safeguard of those liberties.

With regard to the question that the trial would take place, if it did take place, in a particular state, that again amounts to a criticism of the American judicial system and of the American federal system. It is not for us to dictate that. As noble Lords know, the Home Secretary is not obliged to give his reasons, but if he chooses he can say that in this very exceptional case, for reasons of which he is aware, he is obliged to depart from the original practice. If he does so, he does so with, I am sure, a full sense of what the consequences might be.

10.46 p.m.

Lord McIntosh of Haringey

My Lords, the House will be doubly grateful to the Leader of the House for the way in which he has behaved in this matter. First, I want to pay tribute to him for the way in which on the previous occasion when this matter was raised, on 13th April, he went as far as he possibly could to ensure that a debate of this kind was possible. I am sure that he will not mind me reading the relevant part of a letter that he wrote to my noble friend Lord Longford in which he said that he would, take such steps as I can including helping to rearrange the business in order to enable the House to have a chance to debate this issue before any decision to extradite the two women in question is carried out". He has certainly honoured that undertaking and we must be grateful to him.

Secondly, we must also be grateful to him for the statement that he made at the beginning of the debate in which he made it clear that the sub judice rules ought in this case to apply to the case that is at present - that is, today and tomorrow - before the court rather than to earlier proceedings. That made it possible for my noble friend Lord Longford to introduce this debate, which has been broad ranging and covered the bulk of the issues to which we wish to refer, although I shall have to say at the end, without seeking to breach our sub judice rules, that there are matters to which we have not been able to refer.

Having said that, it is necessary to contrast -

Lord Wakeham

My Lords, it is churlish of me to interrupt the noble Lord because he quoted what I said fairly and I am grateful to him for that. However, I also said in my letter that at no time did I consider it either right or proper that I should in any way interfere with matters which were properly the decision of the Home Secretary. It is important that that side of it should also be known.

Lord McIntoshof Haringey

My Lords, I recognise that gladly. That was indeed what the Leader of the House said on 13th April to the House when the matter was raised. It is therefore with even greater sorrow that, recognising the difference in the responsibilities of the Leader of the House and the Home Secretary, I have to say that the Home Secretary has not behaved in the same admirable way. I hasten to say that these matters were first brought to this House by my noble friend Lord Dean of Beswick.

Despite the fact that these matters were drawn to the Home Secretary's attention, he took the decision to carry out the extradition of the two women on 27th May. That was the day upon which the House met at 11 o'clock to leave for the Spring Recess. That seems to me to be a disgraceful bit of timing. It is always difficult to ascribe motives for this type of thing, but if the intention had been to deprive the House of an opportunity to debate the matter, then the intention could not have been better achieved than by making that decision on 27th May.

When the matter was brought before the court, Mr. Justice Alliott expressed his displeasure that the case had been brought before him without him being told —presumably North Western Airlines had already been told—that the decision had been taken and that the women had been told to surrender themselves into custody and to leave the country at 6 p.m. on the same day. That is not the same standard of conduct as we have received from the Leader of the House and which we should expect from all Secretaries of State.

The noble Earl, Lord Ferrers, in the debates that took place, first, on 31st March and, secondly, on 13th April sought to convince the House, and largely succeeded in convincing me, that the forms of the procedures through which the Home Secretary had to go had been gone through correctly. But of course the form of the procedures is not the whole of the issue. If the form of the procedures were the only issue, then the Secretary of State would have no discretion, and the Secretary of State does have a discretion. Therefore we have to consider the content of the issue, not just the form of the procedures which have been entered into.

I have to express my prejudices at the beginning of any discussion of the content. I am strongly opposed to religious cults of this kind, perhaps more strongly opposed than many other noble Lords. I am also very favourably disposed towards the State of Oregon. I have family there. It is not the "Wild West", as the noble Lord, Lord Mancroft called it. It is a highly civilised state. It has nothing to do with the Bible Belt and nothing to do with the Wild West. It is well known for its liberalism and as an originating state of trade unionism in the USA in the early part of the century. It is a very fine state indeed. It has a fine democratic tradition. So from the beginning my prejudices would be in favour of the State of Oregon and against any religious cults. But I have to pay attention to the facts of the issue before us, because it is not just the noble and learned Lord, Lord Scarman, who has said this. But from any calm analysis—perhaps we have not all been entirely calm—there are three aspects of the case which give rise to concern.

The first is the issue of delay. In his letter the noble and learned Lord called the delay "intolerable and oppressive". I would say that it comes close to the phrase which is a valuable part of US legal language: "cruel and unusual punishment". Why was there so long a delay between the time when the offence was supposed to be committed and any allegation made about the involvement of the two women? And why after that did it take so long for the matter to come to the attention of the Home Secretary and the courts of this country? Either or both of those delays weaken the case for the exercise of discretion in terms of sending them back to the US.

The second issue, also referred to by the noble and learned Lord, which must have affected consideration by the courts in this country, has been the lack of the availability of the prosecution case. One needs to say no more than that which has been said by the noble and learned Lord and repeated by the noble Lord, Lord Pearson of Rannoch.

The third issue upon which there is a profound difference between the British legal system and the US legal system is the issue of plea bargaining which leads to affidavits which cannot be withdrawn except at risk to the person who made the affidavits. I believe that those three issues give considerable scope for the Home Secretary to use his discretion in favour of not granting the extradition request made by the United States.

Much as I respect and admire the noble Lord, Lord Beloff, as a constitutional historian, I am bound to say that I believe that he is wide of the mark in suggesting that this brings into question the whole of our relationships in legal matters with the United States. On occasions we have been pretty cross when American judges, on the grounds that the offences were political and they would not get a free trial in this country, have refused to send back Irish people whose extradition to the United Kingdom has been requested. That has caused a certain amount of aggravation but it has not caused the mutual respect of the United States and this country to diminish. Today's events and the events of 50 years ago have shown that. It is not such a great issue; it is an issue on which friends can disagree. On this occasion the Home Secretary should risk disagreement in favour of "playing safe", as the noble and learned Lord, Lord Scarman, called it.

What happens next? Without breaching the sub judice rules, let us suppose that tomorrow the courts find that the Home Secretary has done nothing wrong and that he is free to send the women home. Will he immediately call them into custody at four o'clock and put them on a plane at six o'clock? Are we going to have the kind of restriction on debate in Parliament about these matters that used to happen during the time of hanging? Then the Speaker would constantly rule in scenes of uproar that individual cases could not be discussed until the sentence had been carried out, when obviously it was too late. That kind of Catch-22 situation in the relationships between Parliament and the Executive—here the Home Secretary is acting in his Executive capacity —ought not to be allowed. It would be a proper use of the Home Secretary's discretion to pay attention to the views which have been expressed in the House on three occasions and use his discretion not to enforce the extradition.

10.57 p.m.

The Minister of State, Home Office (Earl Ferrers)

My Lords, I intend to address my remarks this evening to the Motion before us. It is: To call attention to the practice whereby the Home Secretary exercises his discretion in extradition cases". Many of your Lordships have raised tonight the case of Miss Hagan and Miss Croft. Before I come to the Motion, perhaps I may refer briefly to that case.

The Divisional Court has adjourned consideration of the current application for leave to seek judicial review. Judgment will be given tomorrow and in those circumstances, since the matter is before the courts, your Lordships will understand that I do not intend to discuss the merits of the case. The decision of the Bow Street magistrates, that there is sufficient evidence to show that there is a prima facie case for prosecution, has been upheld by the courts. In other words, the court concluded that if the alleged offence had occurred in this country, here would have been sufficient evidence on which to bring a charge and on which to secure a conviction. The then Home Secretary's decision to order surrender has been upheld by the courts as being not just lawful but reasonable too. An earlier decision not to postpone surrender until the House of Lords sitting in its judicial capacity had delivered its judgment in another case has also been upheld.

The full legal processes have been and are being applied to that case and it would not be right for me to respond to the detailed arguments put by noble Lords when the Divisional Court will shortly be renewing its consideration.

Lord Richard

My Lords, I am obliged to the noble Earl for giving way. Perhaps I may say to him that that really will not do. He knows, as does the noble Lord the Leader of the House, that we have come here to discuss that matter this evening. The sub judice rule has been not relaxed but reinterpreted so that we can discuss the case of those two women and, indeed, can discuss the merits of the case. That is precisely what the noble Lord the Leader of the House told us at the commencement of the debate this evening.

We know also, because it has been referred to, that the Home Secretary took a decision on 27th May. Parts of that decision and its timing are being challenged at present in the courts, so we cannot discuss that part of it. But I understand that the object of the exercise this evening is to discuss the merits of the case. With great respect, the noble Earl cannot get away with saying that he is not prepared to do so because the Divisional Court is giving judgment tomorrow.

Earl Ferrers

My Lords, perhaps I may say that I am surprised at the noble Lord the Leader of the Opposition. He knows full well, as he has heard this evening, that your Lordships have given voice to views about that particular case. He will know also that that case is before the court, which has been adjourned. It would be wholly improper for a Minister to give views on a specific case to which my right honourable friend is a party. I do not propose to enter into discussion on the merits of that case for those reasons.

Lord Richard

What are we here for then?

Earl Ferrers

My Lords, the noble Lord asks what we are here for. I remind him that when we last had this debate, the noble Earl, Lord Longford, made some remarks. After the general kerfuffle of the time was laid to rest—

The Earl of Longford

It was what?

Earl Ferrers

After the kerfuffle was laid to rest. Perhaps I may have the noble Earl's attention, as he asked me what I said. I said that after the kerfuffle on the last occasion had been laid to rest—because the noble Earl will remember that the House was adjourned—at the end of the debate, I rose to speak and the noble Lord the Leader of the Opposition said that I need not speak. I said that the Question had been tabled and that, therefore, it would be improper of me not to give the Government's response. I did that on that occasion. Therefore, it does not do for the noble Lord the Leader of the Opposition to ask what we are here for.

Lord Richard

My Lords, with great respect, the noble Earl was present and I was present. On that occasion there was a perfect understanding—as far as that can be achieved—among my noble friend Lord Longford, myself and the noble Lord the Leader of the House that we would not discuss that case because of the operation of the sub judice rule but that we should return to the matter and debate it before they were extradited. That was the point on the last occasion and that is why I said that the noble Earl need not speak. With great respect to him, I heard and read his speech and, having read it again, I believe that he did not need to speak because he did not say anything. He merely set out some generalities which took up five minutes and we then adjourned. But this evening we are here to discuss this particular case and this particular issue.

One of the points which the noble Earl and his right honourable friend the Home Secretary have to answer at some stage is the point made by the noble Lord, Lord Beloff. Is the foreign policy relationship between the United States and Britain the determining factor in an extradition case by the Home Secretary involving two individuals who may be facing a trial and imprisonment? I find that to be an appalling doctrine. I hope that the noble Earl will take the opportunity to deny that.

Earl Ferrers

My Lords, the debate as such has been enlightened by your Lordships who have made certain observations. The noble Lord the Leader of the Opposition will understand, much as it may grieve him, that it would be quite inappropriate for a Minister to stand at this Dispatch Box and discuss a case which is sub judice, because it is before the courts, to which my right honourable friend is a party. I am not prepared to do that.

I am prepared to discuss the exercise of the Secretary of State's discretion in deciding extradition cases, which is the basis of the Motion before your Lordships. I see that my noble friend wishes to intervene. I give way.

Lord Pearson of Rannoch

My Lords, I am much obliged. Can my noble friend give us any indication as to when he will be able to answer the questions that we have put to him this evening?

Earl Ferrers

My Lords, I can only tell my noble friend that this evening, when a court case has been adjourned and the court will reconvene tomorrow—a case to which my right honourable friend is a party—I am not prepared to discuss the merits of that case. Your Lordships may have decided to do so, and, indeed, may have done so. However, I shall only be able to do so when we are not party to a case which is in front of the courts. As I said, I am not prepared so to do tonight. I believe that the noble Lord, Lord McIntosh of Haringey, wishes to interrupt me. I give way.

Lord McIntosh of Haringey

My Lords, I am most grateful to the Minister for giving way. I believe that the House has scrupulously observed the guidelines outlined by the noble Lord the Leader of House in his opening statement. Much as we would have wished to —because they involve the right to debate in the House of Lords—we have not discussed yesterday's proceedings or those potentially of tomorrow morning; indeed, we have discussed earlier matters.

Earl Ferrers

My Lords, I do not quite know where that response gets us. I am prepared to discuss the Motion which is before your Lordships; namely, the exercise of the Secretary of State's discretion in deciding extradition cases. We have discussed the matter previously and it will not surprise your Lordships if my reply bears a certain similarity to the remarks that I made on that occasion.

The rights of anyone who may be the subject of an extradition request are protected under extradition arrangements and the Extradition Act 1989, each of which contains important safeguards.

The law applies in different ways to different countries, depending on whether the requesting country is a foreign state which is a co-signatory to the European Convention on Extradition, whether it is another foreign state, or whether it is a Commonwealth country. Commonwealth countries, and foreign states which are not party to the European Convention but with which we have a bilateral treaty—such as the United States —are required to support their request with sufficient evidence, admissible in our country, to prove a prima facie case.

The Extradition Act 1989 gives the Secretary of State the ultimate discretion as to whether or not an accused or convicted person should be surrendered to another country under extradition arrangements. That is a very important responsibility and the exercise of the discretion, which is conferred on him by Parliament, is for him and for him alone.

The Secretary of State is involved at two crucial stages in the extradition process. The first is when he has to consider whether to issue an order—or an authority —to proceed. That enables Bow Street Magistrates' Court to consider the case in committal proceedings. A person who has been committed to await the Secretary of State's decision as to surrender has the right to challenge the magistrate's decision by applying for a writ of habeas corpus. That application is considered by the High Court Queen's Bench Division and may, on appeal, be considered by your Lordships' House. The second, and most important, involvement of a Home Secretary comes when that judicial process has run its course. If the courts have not discharged the person sought, the Secretary of State has to consider whether or not to issue a warrant for that person's surrender.

It is fundamental to his role that, at both those stages, the Secretary of State has first to consider whether the request meets the requirements of the law—which is the Extradition Act 1989—as that law applies to the country requesting extradition, and whether there are any grounds for refusing such a request.

Of course, when ratifying an extradition treaty, the United Kingdom enters into obligations under international law, but we take care to ensure that, when we enter into such arrangements, there are no inconsistencies with the extradition law of our own country.

Each extradition request is carefully scrutinised at both the stages in which the Secretary of State is involved. That ensures that it is in the form which is required by our law, that it is supported by the evidence which is required by our law, and that none of the restrictions or prohibitions on surrender in our extradition law, including the arrangements with the country in question, apply to the case.

For example, under Schedule 1 to the Extradition Act 1989–which still governs requests from the United States of America and other older treaty partners—a person must not be surrendered if the crime of which he or she stands accused was not included in the list of extradition crimes which is annexed to the treaty, or if the offence was of a political character. If the crime is a capital crime we will seek an assurance that would remove the risk that the death penalty would be imposed.

The arrangements also ensure that the person can only be tried for the offences for which his or her return has been ordered, or other offences which are disclosed by the evidence on which that person has been returned, so long as they, too, are extradition crimes.

When he exercises his unfettered discretion in Schedule 1 cases, as a matter of policy the Secretary of State takes into particular account the criteria which are listed in Section 12 of the Extradition Act and which otherwise apply only to European Community and Commonwealth cases. This approach was endorsed by the High Court earlier this year in the case of Patel.

For example, the Secretary of State will not order surrender if he believes that it would be unjust or oppressive to return a person because he or she could not get a fair trial in the country concerned, or because his or her chances of a fair trial would have been prejudiced by delay or other factors, or because the offence for which return is sought is a trivial offence. And surrender will not be ordered if the Secretary of State believes that for any other reason this would be either unjust or oppressive.

Representations which are made by, or on behalf of, a person who is awaiting the Secretary of State's decision on surrender may invite the Secretary of State to consider any number of arguments as to why return should not be ordered. These are always considered most carefully, on their merits. When he has considered all the legal points, all the compassionate points, any kind of point which has been put to him, the Secretary of State must decide for himself whether to order surrender. He takes into account all the circumstances of the case which are known to him. Any decision to order surrender must be both lawful and reasonable. That decision may be challenged by way of an application for judicial review, which is considered by the High Court Queen's Bench Division, and that decision may, on appeal, be considered by your Lordships' House.

Lord Morris

My Lords, before the noble Earl sits down, he has just stated that his right honourable friend the Home Secretary will consider all these points most carefully. Will he allow time for the consideration of his own department's answers to the questions that have properly been put to him by Parliament in the debate tonight?

Earl Ferrers

My Lords, as I have explained, the question which my right honourable friend has to decide is a matter for him and for him alone—that is what Parliament has decreed. Of course my right honourable friend takes into account every point. As I explained, he takes into account every legal point, every compassionate point, every point that your Lordships make and every point that anyone else makes. Of course those are taken into account, but in the end it is the Secretary of State who has to make the decision.

Lord Pearson of Rannoch

My Lords, before my noble friend sits down and not wishing to push his very considerable patience beyond endurance, is he in effect saying that he may not be able to answer the questions which we have put to him tonight until the ladies in question have already been extradited, and if that is so, does not that make a mockery of your Lordships' procedures?

Earl Ferrers

No, my Lords. It makes no mockery of your Lordships' procedures. The case is perfectly simple. It is that my right honourable friend has taken a decision, it has been challenged by way of judicial review, it has been upheld at every stage, it is at the moment being challenged again by judicial review and I am not prepared to make any comment upon that at all. What happens after the decision of the court is taken remains to be seen but I cannot be expected to comment on a matter which is sub judice and which is in front of the courts at the moment.

Viscount Ullswater

My Lords, I beg to move that the House—

11.13 p.m.

The Earl of Longford

My Lords, I have the right of reply. I know the Government are very quick but they should not be as quick as that. The noble Earl, Lord Ferrers, does a great job for the Government, whatever the brief handed to him, and he is also an ornament of the House because of his wit and charm. But tonight I think he will allow me to say he cuts a pathetic figure. He may not, of course, have had access to the latest advice from the Home Office—perhaps they had gone home before the news came through—that: this debate could be carried on in a rather wider context than expected. I make no secret of this. Earlier in the day I was very doubtful as to whether to initiate the debate if it were to be along the same lines as the previous debate introduced by my noble friend Lord Dean. We were told in the course of the evening that we would be allowed to raise this issue. Perhaps I may have the attention of the noble Earl.

Earl Ferrers

My Lords, the noble Earl has my attention. I was pondering over what he was saying.

The Earl of Longford

My Lords, I hope that the noble Earl will ponder all night about this issue. The noble Earl may not realise that in the course of the evening I and other noble Lords were informed that the debate could be taken in a rather wider context: that we would be allowed to raise the case of the two women. If we were allowed to raise the case of the extradition of the two women, it would be a quite unparliamentary situation if the Government could not reply about the two women. In my rather overlong experience I have never known a situation where we can raise an issue and the Government cannot comment on it.

Leaving aside that situation, which thrust the noble Earl in a rather pathetic role, I ask him to say—he has been pressed to do so by his own Back-Benchers— whether, when the judicial proceedings have been concluded, there can be a debate in the House before the women are sent back. Having asked that question, will the noble Earl answer?

Earl Ferrers

My Lords, the simple answer to the question is that of course Parliament can debate what it likes. Parliament has debated the matter this evening. The eventual decision remains with my right honourable friend.

The Earl of Longford

My Lords, that is a total evasion. The noble Earl has not answered the question. I ask this question. Will Parliament have a chance to debate the matter before the women are extradited? The noble Earl evades that question. That must be clear. In all the debates—heaven knows he is a fine debater—he has never ducked an issue quite like that.

We have had the debate. We have raised the issues. They have been evaded. I can only say that I hope the noble Earl will at least go to the Home Secretary and say what a bad time he had this evening and how disgraceful is the Government's position at present. We hope, as we must, that at the last minute the Home Secretary will choose the path of wisdom and justice.

The Deputy Speaker (Lord Skelmersdale)

My Lords, does the noble Earl wish to withdraw his Motion?

The Earl of Longford

My Lords, I wish to move for Papers.

On Question, Motion agreed to.

House adjourned at eighteen minutes past eleven o'clock.