Any relationship, ‘special’ or otherwise, depends upon clarity, fairness and reciprocity. The US–UK extradition treaty signed in March 2003, ratified in this country the following year, boasts none of those features. As a consequence, three British businessmen — David Bermingham, Gary Mulgrew, and Giles Darby — face imminent extradition from this country to Texas over allegations that they committed a crime in Britain, while operating in Britain with a British employer. The ‘NatWest Three’ are accused by US investigators of swindling the bank out of £4.5 million via some devious trading of its stake in an Enron subsidiary — allegations they deny. The UK’s Serious Fraud Office has decided not to prosecute; the Royal Bank of Scotland — which bought NatWest in 2000 — has remained shamefully evasive about the allegations against its former employees, apparently because it does not want to embroil itself in the hugely political Enron case in America, the web of litigation it has spawned and, particularly, the potentially devastating ‘class’ action launched by the University of California.
This week the Daily Telegraph published a letter, signed by many distinguished businessmen, calling on John Reid ‘to correct the mistake of a previous Home Secretary and preserve Britain’s ancient tradition of transparent justice’. The Spectator endorses that call wholeheartedly.
At Prime Minister’s Questions on Wednesday, Tony Blair said that he had asked his officials to seek reassurance that the three businessmen would be treated fairly. But that is not enough. The legal, moral and intellectual case for suspension of the 2003 treaty is unanswerable. Prompted by the 9/11 atrocities and the need to update the previous extradition arrangements agreed in 1972, the new pact was principally intended to facilitate the prompt removal of terrorist suspects from these shores to America, and vice versa. That was a sensible enough objective: nobody can deny the need for a robust response to September 11 and a review of the extradition arrangements for those suspected of involvement in global terror.
The results, however, have been shambolic. In December 2003 Baroness Scotland assured the House of Lords that ratification of the treaty would take place in America in early 2004. The US Congress has found time to ratify extradition treaties with countries such as the Marshall Islands, Micronesia, Lithuania and Peru — but has not afforded similar courtesy to the treaty with Britain. It is worth recalling that the US–UK deal was signed only 11 days after the invasion of Iraq, in which Britain stood shoulder to shoulder with America at enormous diplomatic and human cost.
Three years later — as British soldiers continue to die in liberated Iraq — it is a disgrace that the treaty remains unratified by America’s lawmakers. Congress is happy to award Mr Blair its Congressional Gold Medal Award and any number of standing ovations when he visits Capitol Hill. But, when it counts, such gestures have not been matched by legislative action.
Confusion swirls around the case of the NatWest Three. On the day that the extradition deal was signed, David Blunkett, the then home secretary, assured the Commons in a written statement that ‘before the treaty can come into force it needs to be ratified by the United States Senate’. In a letter dated 26 July 2005, Andy Burnham, the then home office minister, told the Commons European scrutiny committee that, where possible, ‘a prosecution should take place in the jurisdiction where the majority of the criminality occurred or where the majority of the loss was sustained’. Neither statement can be much comfort to the three businessmen, who are days away from a grim stay in a Texan jail awaiting trial.
Self-evidently, the case is a travesty of natural justice. British companies, understandably fearful of the precedent about to be set, are now frantically reviewing what they do in Britain that might have a connection with America, however distant. The debacle of the 2003 treaty is also giving a bad name to important procedures. In a world of unprecedented population mobility, global terror and porous borders, it is more essential than ever that the nation-state be able both to expel undesirables — witness the foreign prisoners fiasco — and to extradite from other countries criminals who have fled its jurisdiction. The plight of these three businessmen undermines all confidence in the arrangements that have been put in place. The public has every right to ask why Afghan hijackers get to stay in Britain, but not three businessmen whose alleged crimes did not even take place in America.
The most offensive claim made in connection with this controversy is that those in Britain who want the 2003 treaty suspended are ‘anti-American’. The opposite is true. There is no more devoted Atlanticist MP than Michael Howard. In a Commons debate in May, he argued with customary eloquence that the cause of the special relationship ‘is not well served by the current unbalanced extradition arrangements between our two countries. Indeed, if they are allowed to continue, they are likely to do significant damage to that relationship. I hope the House will make good use of the opportunity before us today to minimise that damage by restoring a degree of equity to the arrangements for extradition between our two countries.’
On that occasion, the Commons did not take Mr Howard’s sage advice in a vote to overturn the worst features of the new system. But ministers can still take corrective action. In this treaty, Britain simply got a raw deal: the equivalent US–Irish treaty provides for refusal of extradition when the alleged offence is regarded under the law of the requested state as having been committed in its territory, and provides for no extradition when the requested state has decided to refrain from prosecuting or has discontinued proceedings. Why did the British government not press for similar rights? Joan Ryan, the Home Office minister, has said that ‘the treaty provides a better, faster approach to extradition’. Yes, minister: as long as you are an American investigator. It is not too late for her boss, Mr Reid, to correct this appalling breach of trust in a long-treasured relationship.
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