Deferred Division — Extradition — 17 Dec 2003 at 20:03

The Majority successfully carried the motion that the draft Extradition Act 2003 (Designation of Part 2 Territories) Order 2003 be approved.

The Extradition Act 2003 had already been passed but this motion concerned the secondary legislation required to bring the Act into force. The debate on this motion took place on the previous day. Those opposing the motion did so because they wanted to exclude the United States from the list of territories not required to provide prima facie evidence to accompany extradition requests.

At this time, extradition between the United Kingdom and the United States was still technically covered by the extradition treaty of 1972. Under this, if the United States had wanted to extradite someone from the United Kingdom, it had to meet a prima facie case to succeed; if the United Kingdom had wanted to extradite someone from the United States, it had to meet the test of probable cause. Prima facie is a more onerous requirement than probable cause.

However, a new extradition treaty was signed on 31st March 2003 by David Blunkett (while Home Secretary) and by John Ashcroft (while Attorney General of the United States) – and without parliamentary scrutiny – which tried to address this imbalance: Britain would still have to show probable cause but the United States would no longer have to meet the prima facie case and could show reasonable suspicion instead. Reasonable suspicion is not the same as probable cause but, given the differences between the two countries' legal systems, it was argued that this was the fairest option.

The failure of the United States to ratify the 2003 treaty meant that the 1972 treaty should still have been in effect. However, in November 2003, the Extradition Act was passed by the United Kingdom with the result that now the United States did not have to provide the United Kingdom with any evidence for extradition (not even reasonable suspicion) while the United Kingdom still had to show the United States probable cause.

This lack of balance caused controversy in the United Kingdom - for example with the extradition of the Enron bankers.

The MPs in the Minority therefore wished to remove the United States from the relevant part of the Extradition Act 2003 so as to force a return to the prima facie requirement (which was more onerous for the United States) as a means to persuade the United States to ratify the treaty which would have made extradition proceedings largely reciprocal. This is evidenced by a motion from the previous day from the Liberal Democrat Lord Goodhart that called for "a new draft order deleting the reference to the United States of America in paragraph 3 of the order."

Debate in Parliament | Historical Hansard | Source |