US-UK extradition: US ratification would make things worse, not better

There's been a lot of muddled talk in the media and in the debates in both Houses of parliament about the obnoxious agreement between the US and the UK on the procedures for extraditing people in either direction — the procedures under which the NatWest Three (prejudicially and repeatedly referred to in the Commons by the Solicitor-General, Mike O'Brien, as 'the Enron Three') were today flown to Houston Texas to be shackled and handcuffed on the say-so of the Americans without any vestige of an opportunity to defend themselves against the US charges or to rebut them or to submit evidence in their own defence in a British court before they were handed over. 

Some have spoken as if the most objectionable thing about all this is that we have brought the agreement into effect, and saddled ourselves with these obligations, before the US Senate has even ratified the agreement.  Of course this shows up the feebleness of our government in its dealings with Washington, and the utter lack of judgement or principle of the home secretary who negotiated and signed the agreement (yes, David Blunkett, of course); but the fact is that US ratification would make matters worse, not better, by making it even more difficult for us to denounce the agreement and start again.  The idea that it was a positive move to despatch Baroness Scotland to Washington to persuade the Senators to ratify the agreement is wholly misconceived.  Luckily, the Senators seem to be too busy to see the Baroness.  Anyway, the Irish-American lobby, still apparently unaware of the Good Friday Agreement and the conversion of the IRA into peace-keepers, will continue to resist ratification for fear that it will make it easier for us to extradite Irish Republican activists from the US for trial in Britain.  And with the mid-term elections looming, few Senators are likely to want to risk offending the Irish-Americans.  No-one seems to have explained these simple truths to Lady Scotland, although there's plenty of evidence on the web and elsewhere.

Others here have focused on the iniquitous imbalance under which the agreement permits the Americans to extradite from the UK anyone they feel like locking up, simply by providing a factual statement of the charges they want to bring, whereas to extradite some villain (or Irishman, or both) from the US we have to show 'probable cause' why the person should be tried in our courts, something not far short of making a prima facie case against him.  This is another measure of the government's obsequious attude to the American administration and its apparent inability to utter the word 'No' to any US request, however outlandish: but it is not the key issue here. If the imbalance were to be removed by making it just as easy for us to extradite from the US as it is for the Americans to extradite from the UK, that wouldn't solve anything — indeed, it  would actually double the iniquity of the whole arrangement.

The really fundamental objection to the agreement, and the UK Extradition Act that brings it into force for the UK, is the denial of the most elementary rights to those whom the Americans want to get hold of: the right to challenge and rebut the charges being brought against them in a British court and to bring forward evidence in their own defence;  the right to argue to a British court that the trial in question ought to be conducted in Britain but not in the US; and the right to benefit in appropriate cases from the discretionary power of the home secretary to decline to approve the extradition order in the interests of justice or in the British public interest (under the agreement and the Act, the home secretary, unbelievably, no longer has any such discretion).  All these denials of elementary rights represent a grotesque betrayal of the government's duty to protect its own citizens.  None of these fatal flaws would be cured by US ratification of the agreement or by reducing the evidentiary burden on Britain in seeking an extradition from the US so as to match that laid on the US.  Both are irrelevant to the real issue.  We should abrogate the agreement (much more easily done in the fortunate absence of any sign that the US will ratify it), and amend the relevant provisions of the Extradition Act.  This could be done in a single day: it would be approved by acclamation by both the House of Commons and the House of Lords.  It would be too late to rescue the NatWest Three, but how many more Brits have the FBI and the CIA got their beady eye on?

Matters are made even worse by additional factors which we are powerless to change: the American practice of claiming world-wide extra-territorial jurisdiction, even enabling them to put on trial in the US foreigners whose alleged offences have been committed in their own countries against their own compatriots, as in the case of the NatWest Three;  the pernicious American practice of plea bargaining, under which even wholly innocent people can be coerced into pleading guilty to a lesser charge so as to avoid the danger of receiving a savage sentence on a graver alternative charge (something likely to face the NatWesters); the barbaric conditions in many American prisons, even worse than the worst of our own; the frequently interminable delays in bringing accused persons to trial, and the exorbitant conditions often set for bail in the meantime;  and, not least, the huge and disproportionate sentences often handed down, sometimes condemning even relatively young people to spending the rest of their lives in prison with no possibility of early release on licence or probation, for offences that in many cases would attract much more moderate sentences in any European court.  It is because of these factors that it's essential to restore the home secretary's discretionary power to withhold consent to an extradition when circumstances demand that it not take place.

You can come home now, Baroness.

Hat-tip: Owen's much pithier blog post making the same points, he having apparently read my mind with uncanny precision before I had had a chance to write this (something to do with heredity, I suppose).