Don't blame US for this 'wretched' treaty saga

Boris Johnson, shy as always, says the US is bullying, Britain is spineless, and the entire affair is "neo-con lunacy." Even David Blunkett now says the treaty may have given away too much.

Well, slow down. McKinnon has defenders because the British love an eccentric. But in 2005, before he grasped the redemptive power of eccentricity, he said that he hacked into US government computers "to screw the Americans" and to reveal the truth about 9/11. You can believe what you want to, but when you start messing around in other people's computers to prove your point, you have crossed the line from eccentricity into criminality.

And then there's the treaty. The story behind it is complicated, but one thing is clear: if there are faults in the way Britain handles extraditions, the US isn't to blame. The saga begins back in 1997, when Labour began to reassess Britain's domestic legislation on extradition. That process stopped in 1998, while former Chilean President Pinochet was extradited from Britain.

By March 2001, the Government concluded – publicly – that extraditions from Britain needed to be easier, both so that future extraditions would be less drawn out than Pinochet's, and to accommodate the EU's desire to create the European Arrest Warrants. In 2003, it passed legislation – the Extradition Act – to make that happen.

Simultaneously, the US and Britain were negotiating a new extradition treaty. The old extradition treaty did not allow extradition for offences committed over the internet. It thus prevented Britain from extraditing child pornographers from the United States. The new treaty was concluded in 2003, after 9/11, but that does not mean it was meant to apply only to terrorists. In fact, it was intended to cover internet crimes like McKinnon's.

So is there a higher standard on British claims for extraditions from the US than for US claims for extraditions from Britain? Yes, there is. Is this because the US bullied Britain into signing an unfair treaty? No. The standards are different not because of the treaty, but because of Britain's own Extradition Act.

After all, Labour – remember Pinochet and the EU – specifically set out to make it easier to extradite people from Britain.

If Britain wants to raise its standards, that's no problem for the US. Higher standards wouldn't violate the 2003 treaty, which allows either country to "require additional information" before agreeing to an extradition request.

Nor does the treaty give Americans the right to swoop in and grab British subjects, regardless of the course of British justice. In fact, the treaty only allows extraditions from Britain if British authorities have decided not to prosecute. So if Britain doesn't want to extradite McKinnon, the answer is simple: try him in Britain. If that is done, whether he is found innocent or guilty, the US will have no legal basis to request extradition.

Initially, the treaty was popular in Britain. After all, for years, Britons had complained – rightly – that the US was sheltering not only child pornographers, but also IRA terrorists. In fact, when the US Senate was slow to ratify the new treaty, Labour MPs and Conservatives in the Lords condemned the United States for not acting faster.

But as soon as the Senate ratified the treaty in 2007, the complaints began to fly. Suddenly, America was attacked for having negotiated exactly the treaty that everyone in Britain had demanded all along.

The simple fact is that Labour thought extradition from Britain was too hard. It acted, domestically and internationally, to make it easier, both for the EU and for many countries, including the United States. The Left thought this was a brilliant idea. Now everyone is shocked that extradition from Britain is easier. But that was the point of the exercise. Only one thing has not changed: the US still gets most of the blame.

The time has come for a simpler, more coherent system that restores British sovereignty, offers a reasonable minimum of protection to all, and does no favours for those accused of terrorism. That will involve reassessing the 2003 Extradition Act, the incorporation of the Convention into British law, and Britain's legal subordination to the EU.

What it will not involve are changes to the treaty between the US and Britain, which is compatible with the legal protections to which all British subjects are entitled.