Three former NatWest employees extradited from Britain were bailed on Friday by a court in Texas on charges related to the Enron affair. The relevant law, the Extradition Act 2003, is deficient and should be changed but that is not reason enough to stay their trial. They are a bad example of the act’s failings since there is a clear case for them to answer, and in America. The Enron scandal, one of the biggest frauds in history, ruined the lives of tens of thousands of people. No British court found in favour of the trio’s plea to stay at home.

Britain is widely regarded as liberty hall to financial malpractice, as its auction houses long knew to their advantage. Yet Britain’s treatment of foreigners in its legal system is a disgrace, holding them in prison for long periods without trial and jailing 500 West Indian women, almost all first offenders, for being dupes of Jamaican drug dealers. Britain can hardly criticise American courts on these grounds. Nor do most of these people have “pro bono” public relations firms depicting them as humble citizens with tear-stained families. They have no costly lawyers or sudden parliamentary concern or “white-collar crime” epithets to launder their case. They cannot cry “civis Britannicus sum” and work Fleet Street’s financial pages into a lather of righteous indignation.

Extradition makes hard law because legal systems differ and proceedings can turn into prejudicial pre-trials. Yet terrorism and commercial crime are so international that some framework is required to avoid states becoming havens for each other’s crooks. Hence the extradition treaty passed in the illiberal aftermath of 9/11.

The act is depicted by the British government as an even-handed adjustment to what had been a dilatory process, when judges and Home Office played ping-pong with people’s lives for an average delay of 30 months. The old requirement that a court hear prima facie evidence of a case before allowing extradition was scrapped for the signatories of the European Convention on Extradition in 1991. What happened in 2003 was that America and 20 other countries joined the convention. It was not another case of Tony Blair’s subservience to Washington. The same fast-track procedure applied across Europe and even to Russia.

The hiccup in the treaty is that it gave America special treatment because its constitution protects its citizens from summary arrest without good cause proven in court. This means that while an American court can merely demand, with documentation, a person’s extradition from Britain, it will hold hearings into requests for extradition from America.

Defenders of the NatWest Three — a bizarre coalition of City figures, Tory MPs, anti-Americans and liberals — are incensed by this manifest asymmetry. They see it as a licence for the ever-lengthening arm of American regulators to trawl the world for anyone who might have breached their laws. They point out that almost all international finance now touches America, and extradition abroad is not just another trial but interim punishment without prior hearing. While financiers may summon publicists, win bail and be guaranteed a fair trial, others may enjoy no such privilege and suffer long periods of hardship away from home when possibly innocent.

Besides, the NatWest Three also point out that the treaty only “goes into force upon the exchange of the instruments of ratification”. While parliament has ratified it the US Congress has not, under pressure from the Irish-American lobby, long averse to extraditing IRA terrorist suspects. The law is thus lopsided in its terms and its implementation.

There is no doubt that America scores low in the league table of international legality. Indeed with American agents picking up all and sundry from foreign streets and airport lounges and “rendering” them to torturing states, the perils facing British bankers might seem merely the tip of an iceberg. Beneath it extend the horrors of Abu Ghraib, Guantanamo and other juridical limbos possibly awaiting a long line of victims of some casual FBI tip-off. Washington’s palpable double standard in matters of personal liberty has polluted the image of its judicial system.

But the British bankers are going to a system of federal justice that is not beholden to the Pentagon or the White House, indeed one struggling to recover some credibility after the Enron saga (in which a number of Britons, including Lord Wakeham, became embroiled). All who have followed Enron, seen the remarkable documentary on it and read the statement of claim against the NatWest Three would accept that they have a serious case to answer. The men themselves deny any wrongdoing.

As Lord Goldsmith, the attorney-general, said, the alleged crime was not confined to Britain nor were its putative victims only British. It involved three men pocketing $7m in the Cayman Islands in a $20m deal involving money from both NatWest and Enron. The Serious Fraud Office (SFO) and other agencies declined to prosecute, variously and reportedly because they thought the case would not pass a jury, because NatWest would not co-operate for fear of airing its dirty linen in public and because the SFO agreed that Houston would conduct Enron-related litigation. Deplorable as it may be that British financial regulation is so inadequate, these reasons seem plausible.

The NatWest Three were dealing directly with Andrew Fastow, one of the chief Enron conspirators and now in jail. With the principal evidence, including all electronic communications, collated in Texas, there was clearly prima facie evidence for extraditing the three even under the previous treaty. That America has yet to ratify the 2003 one is a good debating point, but hardly substantive to the case.

Nor were the three somehow victims of summary justice. Magistrates heard them. They were granted leave to appeal to the High Court, where Lord Justice Laws found the case “properly triable in the US courts”. They were turned away by both the House of Lords and the European Court of Human Rights. Britain would not try them, America would. I am sure if the roles were reversed Britons would take the same view. British citizens can hardly complain when American prosecutors are more assiduous at guarding their joint interests than their own regulators.

The morals to be drawn from the NatWest/Enron case are many. The 2003 treaty was undoubtedly lax in protecting individual rights. Britain and others should have demanded that foreign citizens enjoy the same right to preliminary hearing as is enjoyed by Americans. This point was made by critics of the mass of anti-terrorist legislation passed in 2003 and since. Such critics (and their columnist supporters) were accused of “appeasing terrorism”.

If ever there were an instance of democracy dropping its guard against authoritarianism at the bidding of terrorists, it was in the hysterical aftermath of 9/11. The Confederation of British Industry last week announced that the 2003 treaty is “an affront to natural justice”. Why did it not say so before?

The behaviour of the Tories now climbing aboard the bandwagon has been a disgrace. Where were they to protest against fast-track extradition in 2003? Could it be they never thought it would apply to their constituents, only to dodgy Muslims? Where were the self-righteous MPs and peers now earning City dinners by re-debating the 2003 law when they were supposedly scrutinising it three years ago? Since then, they have passed ever more draconian statutes to jail those involved in drugs and immigrant markets and curb free speech and habeas corpus. Have they no sense of double standard? That they should suddenly discover the virtues of natural justice and the horrors of imprisonment when it afflicts three men charged with “white-collar crime” is not a little sickening.

Britain should revoke and renegotiate the 2003 treaty to allow a judge to determine the place of a trans-national trial and to require some preliminary hearing to take place before extradition. This is yet another Blair law passed in emotion and haste and regretted at leisure. But such a law was passed and is in place. Even if it were revoked it would not be much help to the NatWest Three. They were playing in a globalised market and must accept globalised justice, which in the matter of Enron means American justice. They must take the rough with the smooth and consider themselves lucky they were not charged with terrorism.

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