This week’s decision of the European Court of Human Rights to allow the extradition of five individuals accused of terrorist offences from Britain to the USA has been greeted with government ‘relief’ and predictable attacks on our relationship with the Strasbourg Court.
‘Why do we have wait for the green light from Europe to send these people to face justice in the first place?’ goes the typical vox pop. It is one that the Home Secretary has been especially keen to cultivate.
But amid all the triumphalism, it is worth asking what, exactly, are we celebrating? The ruling may pave the way for the deportation of the Daily Mail’s favourite ‘preacher of hate’ (pot, kettle?), but there is nothing to celebrate about a process underpinned by one of the most undemocratic, one-sided and duplicitous treaties that our political masters have ever signed. (The European Court, for what it’s worth, wasn’t ruling on that Treaty, just whether incarceration in an American 'supermax' prison amounts to inhumane or degrading treatment under the ECHR).
Current extradition procedures between the UK and USA are governed by a Treaty signed on 31 March 2003 by David Blunkett and his Homeland Security counterpart, Tom Ridge. Whereas scrutiny and ratification of that Treaty by the US senate began immediately, our Home Secretary withheld the text from British MPs and the public for several months. Ultimately, the text was never even formally debated in the UK parliament. Had it been, MPs and their lordships might have asked Mr. Blunkett a few tough questions.
Why, for instance, had the UK government decided to drop the requirement for US prosecutors to provide evidence “sufficient according to the law of the requested Party [that’s us] to justify the committal for trial”, as required in the old Treaty?
And why, in substituting the evidence obligations on the US with a mere “statement of the facts of the offense(s)”, would British prosecutors seeking the extradition of US nationals still have to provide “such information as would provide a reasonable basis to believe that the person sought committed the offense” (that is: prima facie evidence)?
There were several answers, though none that Blunkett would ever have admitted to. First, unlike the USA and many other countries, we lack the constitutional protections that guard against extradition on the basis of allegations rather than evidence. Second, the government, spurred on by the intelligence services and emboldened by the reintroduction of internment, was increasingly content to dispense with the niceties of things like evidence in extradition proceedings. Third, British obsequiousness is, of course, a central tenet of our 'special relationship' with the USA.
Sadly, by the time the British public and their elected representatives had woken up to such callous disregard for their rights, the government of the day had invoked the “Royal Prerogative” (don’t worry Ma’am, turns out it’s all under control after all), convened a “Privy Council” to approve the agreement, laid an “Order” before Parliament under the 1946 Statutory Instruments Act, and seen the Treaty pass quietly onto the British statute book (I trust that detailed knowledge of these arcane procedures is not required to understand just how undemocratic the entire process was).
It got worse. Around the same time, Parliament was debating the newly agreed EU Arrest Warrant (EAW) and the subsequent Extradition Act 2003 which would implement that measure (we may not like the EAW all that much either but at least there was a debate). What no-one could have predicted, however, was that the government would then return to the Statutory Instruments Act to see the UK-USA agreement implemented on the back of the new Extradition Act without further ado. Finally, to make sure there was no chance of restive MPs rebelling, it took advantage of the Christmas recess to see this last Order pass into law on New Year’s Day 2004. The Opposition rightly called the process “an abuse of democracy”.
So let us not be deceived by hook-handed antipathy or hypocritical high-fiving in the Home Office, and let us recall instead the promise, as set out in the Coalition Agreement, to "review the operation of the US/UK extradition treaty to make sure it is even-handed". For as the coalition knows only too well: the only way to do this is to tear up that Treaty.
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