The US/UK Extradition Treaty 2003 has been ratified by the British government and the necessary legislation (i.e. the Extradition Act 2003 referred to above) has been passed into British domestic law to render it effective under British laws. The United States has not ratified the Treaty and, from what I have read, its ratification has been held up by the United States Senate - a link to the latest Senate record I can find on the proposed (so far as the US is concerned) Extradition Treaty with the UK is here (.pdf file) - this relates to testimony before the US Senate Committee on Foreign Relations given by Samuel L Witten, Deputy Legal Adviser, U.S. Department of State on 15th November 2005. From what I can gather, from other reports I have seen and heard, ratification has been held up by the US Senate because of lobbying by the 'Irish Lobby' who fear that it would affect persons who might be suspected, by the British Government, of acts relating to terrorist activities by those seeking the reunification of Ireland by separating Northern Ireland from the rest of the UK (in order words, aiding and abetting the IRA).
So much for formal aspects of this issue. I have for some months, though, been watching with great interest the progress of the efforts by three British citizens, former employees of National Westminster Bank plc (now part of the Royal Bank of Scotland), who are subject to extradition warrants from the United States for alleged fraud in connection with the spectacular financial collapse of US energy giant Enron.
Like many others, I have for a long time been extremely curious as to why The Royal Bank of Scotland has apparently taken no action of any kind against the 'Natwest three', as any crime which may or may not have been committed, seemingly by general agreement, solely involved their former employers National Westminster Bank plc and to have taken place, if it took place, solely in the United Kingdom. Indeed I came across this very interesting post by Houston-based attorney Tom Kirkendall in which he echoes the queries of British legal commentators who are now "openly questioning why the British government is giving in so easily to a U.S. government extradition request relating to reputable U.K. businessmen, particularly in regard to an extradition that would result in a prosecution of those U.K. citizens in Houston's anti-Enron environment for alleged crimes that the U.K. government has declined to prosecute?"; he concludes his article by writing: "That's a pretty darn good question.".
The speculation I have been reading for some weeks is that the motive for seeking their extradition is to offer them some sort of 'plea-bagain' to enable further prosecutions to be brought against others allegedly associated with the Enron fiasco. Who knows what the real reason is.
My curiosity at the seeming lack of action by The Royal Bank of Scotland was, to some extent, answered by a very interesting article which appeared in yesterday's Daily Telegraph, in their 'Business' Section, written by Katherine Griffiths - you can read it here, although I quote a few relevant parts of it:
RBS last year settled one case over Enron brought by its bankruptcy administrators, paying $20m (£11m). It has filed a motion to try to get the Newby case dismissed and has said the case has no merit. A ruling by the Houston judge, Melinda Harmon, is awaited. Ms Harmon threw out a similar motion by Barclays and the Newby litigation against that bank is due to start in October.
While RBS has been tight-lipped over most aspects of the litigation surrounding Enron, it is understood to have said one thing in private to the NatWest Three which could be significant. That was to tell them that in addition to the fact that it was difficult to engage with them due to the ongoing US case against them, it would also not collaborate following advice from its US lawyers.
That may be an oblique reference to RBS's own difficulties. The bank warns shareholders in its annual report that it faces litigation and says it has supplied the SEC and Department of Justice with documents in response to their requests.
Perhaps in the mind of Sir Fred Goodwin, chief executive of RBS, is what happened to KPMG. The accounting giant agreed with the Department of Justice and SEC to pay $456m to avoid being prosecuted as a firm for selling allegedly illegal tax shelters.
The deal is widely seen as having avoided a similar situation to Arthur Andersen, which collapsed after it was criminally indicted for its involvement with Enron.
As part of the agreement with the US authorities, KPMG is not helping the defence of the individual partners indicted over the tax shelters. They must fight their case alone.
It certainly makes one wonder! In the same 'Business' Section of the Dail Telegraph yesterday, Damian Reece wrote:
Who'll help us when the US marshals hit town?
It was gratifying to hear Richard Lambert, the new director general of the CBI, lend his voice yesterday to those criticising the Government for its supine attitude towards America's extradition demands.
He joined his alma mater, the Financial Times, who last Wednesday told the UK Government that it should suspend the current extradition treaty with the US.
Such support for the aim of our long-running Fair Trials for Business campaign may be too little too late but at least it adds fuel to the fire.
I'm delighted Lambert has decided to follow his vocal predecessor, Sir Digby Jones, in casting serious doubt over the Government's handling of extradition procedures with the US.
(please click on the link above to see the full article.)
In today's 'Business' Section of the Dail Telegraph, Jeff Randall writes:
The fog lifts over RBS's inaction on NatWest Three
So now we know. We have an answer to the question which, for many months, has been baffling British business leaders. Why won't Royal Bank of Scotland, owner of NatWest, involve itself directly in the case of its former executives who face extradition to the United States on fraud charges?
All the bank needs do is to start legal action here in Britain against the NatWest Three - David Bermingham, Giles Derby and Gary Mulgrew - for their extradition to be halted immediately.
But, so far, RBS has mysteriously refused. What's behind this apparent abnegation of responsibility? Why let American prosecutors grab the controls of what should be an all-British legal matter?
It seems not to make sense. For if RBS believes that the trio are innocent, surely the bank has a duty to protect them.
If, on the other hand, RBS is convinced of their guilt, why not take them to court here? After all, it was in Britain where the alleged crime was committed. All the witnesses are here; so too is the evidence.
Allegations that the NatWest Three were swindlers, which they deny, emerged after a dragnet by American authorities into the £40bn collapse of Enron, the US energy company. There is, however, no claim that the British bankers defrauded anyone other than NatWest.
So why would RBS sit on its hands and, by default, allow its ex-employees to endure a Texas jail for two years while awaiting trial? It's known as the Lone Star state, but the prisons there are unmistakeably no-star.
Stripped of easy access to family, friends and legal support, bankrupted by the horrendous cost of US litigation, Bermingham, Derby and Mulgrew could not possibly defend themselves properly. Banged up in Houston, they really would have a problem.
Why then put them through it? Not even his worst enemies suggest that RBS's chief executive, Sir Fred Goodwin, is motivated by either indifference or spite. So what's his reason for doing nothing, thereby letting the NatWest Three stew in the juice of their own fear and frustration?
Questions, questions, questions. Now, at last, we have some answers.
Sterling work by my colleague, Katherine Griffiths, in yesterday's Daily Telegraph, revealed that, when it comes to the fall-out from Enron, the fate of the NatWest Three could be the least of RBS's worries.
(please click on the link above to see the full article.)
That last bit, "the fate of the NatWest Three could be the least of RBS's worries", seems very likely to be the whole sordid crux of this apparent inaction! There is also another very interesting article in today's Daily Telegraph (on the front page of the print edition), by Political Editor George Jones which you can read here, neatly summarised in this brief extract:
"Downing Street indicated that it was washing its hands of the three, even though Washington has not ratified the treaty allowing similar treatment for Americans."
- this was brutally confirmed in today's Prime Minister's Questions when Tony Blair responded to a question from LibDem Leader Menzies Campbell MP by indicating that there IS reciprocity between the UK and the US in the Extradition Treaty and that it is 'merely' giving the US the same protection as the UK and many other countries already have in their extradition treaties. I am not a barrister, whereas both Menzies Campbell and Tony Blair are, but they seem to disagree fundamentally about whether there is such reciprocity in the operation of the Extradition Treaty by the UK and the US - and EVERY comment I have ever read about this agrees with Menzies Campbell on this basic point! One really does wonder whether Tony Blair has lied flagrantly to the House of Commons or whether EVERYONE ELSE has got it wrong! At least Blair has now had this somewhat grudging pledge forced out of him!
Also in today's 'Business' Section of the Dail Telegraph, Damian Reece writes:
Join your voices to the protests at this unjust treaty
Today is a call to action. Readers of The Daily Telegraph are being invited to add their names to an open letter to John Reid, the Home Secretary, protesting against our extradition treaty with the US which, as we have pointed out many times, is an affront to British justice.
The easiest way to do this is to go online to the Telegraph website and add your name that way. If you prefer, you can write to me expressing your support for our campaign and I will send on your letters to the Home Office. Please mark your letters "Extradition".
Readers, from ordinary folk to our most illustrious business leaders, are united in their opposition to what is an obvious flaw in our legislation, that could and should be amended. Of course Britain's relationship with America is special but that does not mean it has to be unequal. Yes, the greater economic and military power lies on the other side of the Atlantic but our freedom cannot be bargained away in a badly drafted and unfair treaty that we have signed but the US has not. It is crucial you add your support to this urgent matter. Do not delay.
If you would like to add your own voice to this petition (I have done so already), please click here. I urge you to do so.