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10 May 2006 : Column 397
Before it is thought that this is a piece of Euro-bashing by the Opposition and that somehow the European arrest warrant is being held up to opprobrium, I should point out that article 4(7) of the European Union framework decision, on the basis of which the European Union arrest warrant was put together, allows for precisely this kind of exemption, which the Irish have used and the Government have chosen not to incorporate. Article 7(1) of the original 1957 European convention on extradition, brought about by the Council of Europe—a model of its kind—says exactly the same. So it is not a question of a degree of Euro-scepticism; it is a question of a degree of scepticism about why the Government seem so resolute about setting administrative convenience against the interests of justice.
When the Scottish Parliament debated the issue recently, disquiet was expressed by every party about the way in which the system operates. There is no need for that disquiet to continue. The Government could see sense and do two things. First, they could enable us to have a better system that provides protection when there is no proper link between the individual and the state that seeks to extradite that individual for an offence. Secondly, in the case of the United States, the House should exercise a bit of will and common sense and say to a Government who seem to be incapable of carrying out sensible diplomatic negotiations, “You will not get what you want unless you withhold what you are offering at the same time.”
The Government’s decision—not to ratify the treaty, because it cannot be fully ratified until the United States has ratified it, but gratuitously to provide the United States with all that it sought in the treaty—is an error of judgment of monumental proportions. If the Government wish to see the advantages of the treaty, they would do well to accept new clause 8 and ensure that the United States is politely reminded that reciprocity is the absolute basis of international relations.
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Mr. David Heath (Somerton and Frome) (LD): I rise to speak in support of new clause 8, which stands in the name of the hon. Member for Beaconsfield (Mr. Grieve) and his colleagues, and in mine. I do not wish to repeat large parts of what the hon. Gentleman has said. He and I have not disagreed at any stage in our interpretation and construction of what this extradition treaty means for British citizens. I simply chide him gently on one point, of which he will be aware: on consideration of the statutory instrument that dealt with the provision, the Conservatives, unlike my colleagues and I, were unable to vote against it. That was a mistaken view on their part.
Mr. Grieve: The hon. Gentleman is absolutely right, in that the House and the Conservative party accepted assurances from the Government that in the existing climate of terrorism, the operation of the extradition treaty was necessary. We did not fully appreciate the consequences that would flow from it.
Mr. Heath: I accept what the hon. Gentleman says, and that he and his colleagues acted in good faith; I simply say that they were mistaken.
I want to deal first with the lack of ratification on the part of the United States Congress. I find it quite astonishing that this treaty, which we have signed with those who are supposed to be our closest allies, is apparently of so little import in the US legislature. It is far from being a priority for Congress, which has found opportunities to ratify extradition treaties with Lithuania, the Marshall Islands, Micronesia and Peru, but, apparently, cannot find an opportunity to give proper consideration to reciprocal arrangements with the United Kingdom. That says a lot for the supposedly special relationship that we enjoy with our friends in the United States.
That would be cause for concern in itself, were it not for the extraordinarily asymmetric position of the treaty that the Government entered into. As I said in the Committee on the statutory instrument, even a Government acting under duress could not have signed a treaty that so badly sold short the interests of the citizens of this country, in comparison with those of another. [Interruption.] The Minister of State, Department of Health, the hon. Member for Leigh (Andy Burnham), says from a sedentary position that my observation is nonsense, but he or his hon. Friends will have to demonstrate why. This is clearly an entirely one-sided treaty. In fact, the then Minister —[Interruption.] If the hon. Gentleman wishes to intervene, he can explain to me, from the Dispatch Box, why my argument is nonsense. He has only just been reshuffled, yet he wants to interfere.
In saying “Nonsense” from a sedentary position, the hon. Gentleman is asking the House to consider that the Minister then involved, the hon. Member for Don Valley (Caroline Flint), who is now a Health Minister, was mistaken in saying that the treaty was asymmetric. She said:
“In contrast, when we make extradition requests to the United States, we will need to submit sufficient evidence to establish ‘probable cause’. That is a lower test than prima facie but a higher threshold than we ask of the United States, and I make no secret of that. Under the terms of its constitution the USA cannot set its evidential standard any lower than ‘probable cause’.”—[ Official Report, Third Standing Committee on Delegated Legislation, 15 December 2003; c. 7.]
So on that day, the hon. Lady made no secret of the fact that there was an imbalance in the treaty, yet the hon. Gentleman says that that view is nonsense. The House will come to its own conclusions. [Interruption.] The hon. Lady has arrived—she no doubt remembers the occasion when we last discussed this issue and what was said then.
All manner of changes were implicit in the proposal that was before us. First, the treaty changed the basis on which extradition could take place. A certain level of evidence used to be required, and there was a list of extraditable offences. However, the treaty removed that list and we now have simply a sentence threshold of 12 months. Any offence that attracts a sentence of more than 12 months becomes an extraditable offence. The House will immediately draw from that the conclusion that it is now open to any of the legislatures in the US to make any offence that it deems to require a sentence of more than 12 months an extraditable offence. That is my second point.
When we talk about the US, we are not talking about a relationship between our jurisdiction and their jurisdiction. We have two separate jurisdictions, but they have 51, including not only the federal jurisdiction, but the jurisdiction of 50 states, from Alabama to Wyoming, with vastly different concepts of jurisprudence and legal systems. To be frank, we also have vastly different levels of confidence in the ability of those various legislatures to conduct a trial in the way in which we would expect. Not only do we have an asymmetric view, but we have a treaty that applies to 51 different jurisdictions and we have no control over what they might determine to be an extraditable offence.
The defence that the Minister gave at the time was that we also have reciprocal extradition arrangements with other countries, and she mentioned other European countries and what could be termed the “Anglo-Saxon” jurisdictions of Canada, New Zealand and Australia. But those systems are very much more similar to ours than are the American systems, so those comparisons are of no particular value. The US is a one-off in such terms.
The next point is that the provisions were retrospective. Article 22.1 states:
“This Treaty shall apply to offenses committed before as well as after the date it enters into force.”
Not only have we a prospective asymmetric arrangement with the US, but we will allow them to extradite British citizens for offences that took place before the treaty was even signed, let alone ratified—which looks unlikely to happen in the near future.
On all those grounds, we have legitimate reasons for concern. However, the hon. Member for Beaconsfield (Mr. Grieve) made another important point about the extraterritorial jurisdiction claimed by the US and by its states. My right hon. and learned Friend the Member for North-East Fife (Sir Menzies Campbell), who attended the Committee, recalled the old joke that if one flies in a plane above the state of New York on one’s way to California, the state of New York assumes a territorial jurisdiction on anything one may do. That is not far from the truth, and as the hon. Gentleman pointed out, it is a real concern when it comes to email traffic.
We also have legitimate concerns when we see prospective extraditions for commercial crime against people operating in British companies that have connections with American companies, but whose activities are solely based in this country and who have never been to the great state of Delaware or Idaho, or wherever the American parent company may be based. Those people may be extraditable for matters that are not even offences in this country and were carried out in this country, not the US. They can be extradited and held in custody before trial in the US in a state in which they have never previously set foot. That is an extraordinary position to adopt.
Another problem is that the level of evidence required does not go much beyond simple identification. The subject arouses much concern in this country, but the American investigatory bodies are not entirely foolproof in that regard. The House may recall a case that was current when we considered the Bill in Committee. It involved a Mr. Bond, arrested in South Africa at the request of FBI officials on the basis
that he was really a Mr. Derek Sykes, who had defrauded many people out of millions of dollars. However, he really was Mr. Bond, a retired charity worker who worked in the Rotary club in Clifton in Bristol. He was nothing to do with the US, but he was imprisoned in South Africa on the basis of an identification by the FBI. Had he been in this country, he could have been extradited to stand trial for an offence and in a country of which he knew nothing, and on the basis that he was someone that he was not.
That is not proper protection for people in this country. If we were sensible, we would say to the US Government, “Look, given that you haven’t ratified the treaty, we must look again at its terms. This time, we shall protect the interests of British citizens and apply the sort of tests that American Congressmen apply as a matter of course, even if they are not part of the provisions of the constitution.” The minimum American requirement of probable cause is not so very different from our requirement of prima facie evidence, but we have thrown away all that protection for British citizens because it seemed a good idea at the time. The aim was to please an American Administration who have not yet been prepared to put the treaty through the American legislature.
The Government are in a shameful position, and we were right to reject the proposal when it first came before us. We are right to support the new clause, which would bring an end to an asymmetric arrangement of no benefit to the UK.
Mr. Michael Howard (Folkestone and Hythe) (Con): I begin by welcoming the Minister to his new responsibilities. Far be it from me to give him advice, but I assure him that the Home Office need not be a dysfunctional Department. I wish him well as he discharges his new responsibilities.
My hon. Friend the Member for Beaconsfield (Mr. Grieve), the shadow Attorney-General, has expressed the widely shared reservations on this issue with his usual admirable clarity. That will enable me to be relatively brief in adding my voice to those who have expressed concern about the matter.
On 31 March 2003, the day that the treaty was signed, the then Home Secretary, the right hon. Member for Sheffield, Brightside (Mr. Blunkett), made a written statement to the House. He said:
“Before the treaty can come into force it needs to be ratified by the United States Senate”—[ Official Report, 31 March 2003; Vol. 402, c. 42WS.]
The Lord Chancellor gave a similar assurance in another place. However, the provisions of the Extradition Act 2003 and the associated secondary legislation mean that those assurances have turned out to be completely worthless. This afternoon, the House has the opportunity to hold the Government to their word. If we are to take seriously our central responsibility of safeguarding the liberties of the individual against unfair, arbitrary or oppressive action by the Executive, we will seize that opportunity.
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It is difficult to imagine a more one-sided or unfair set of arrangements than those in existence at present. The treaty is itself one-sided: its effect, and that of the
Act, is to lower substantially the requirements that the United States Government have to satisfy to secure the extradition of those who are accused of offences under United States law. What was previously reciprocal and similar has become unbalanced and one-sided.
Today, we have the opportunity to put things right. As we have heard, the United States Senate has still to ratify the treaty. In plain language, the United States has not honoured its side of the deal: the ratification legislation is stuck in the Senate and shows no sign whatever of getting unstuck. That is hardly surprising, because as my hon. Friend pointed out, the United Kingdom has removed any incentive for the Senate to proceed. If, to gain the advantage that the treaty would, and the Act does, confer on the Government of the United States, the treaty had to be ratified by the US, it is a fair bet that more progress would have been made. By designating the United States, for the purpose of the Act, without the minimal degree of reciprocity that ratification would provide, the Government of the United Kingdom have surrendered the only lever of influence they possessed to secure what we assume is their objective.
Fortunately, the House has the opportunity today to do what the Government themselves should have done. New clause 8 would remove the United States of America from the list of territories in paragraph 3(2) of the designation order and that would give the US Senate the incentive it needs. If and when the treaty is ratified the matter could be looked at again and the US could be restored to the list, as a subsequent amendment provides.
I hope that the delay that the passage of new clause 8 would achieve would enable a fresh look to be taken at the arrangements in the treaty so that they can be revised. As has been said more than once, the arrangements are one-sided, and my hon. Friend has explained why. Some of the cases that have arisen since the Act came into force in that one-sided way have given rise to widespread concern.
In Committee, the Minister’s predecessor asked why the United States was being singled out for expressions of concern. I refer not to the hon. Member for Don Valley (Caroline Flint)—now a Minister of State at the Department of Health—who was in the Chamber briefly a few moments ago, but to another former Home Office Minister, the right hon. Member for Salford (Hazel Blears), who is now Minister without Portfolio. The answer to the right hon. Lady’s question is simple and twofold. First, as far as I am aware, no cases in respect of other jurisdictions have led to the same concerns. The proof of any legislative pudding is in the eating; it is in respect of the arrangements with the United States that cases of concern have arisen. That is no accident, and it brings me to the second point, to which my hon. Friend and the Liberal Democrat spokesman referred.
The United States has a particular view on extraterritoriality. It claims for itself jurisdiction over acts that have not been committed in the United States and for which other countries, including ours, would make no similar claim. That should mean that any arrangements for extradition with the US need to be scrutinised with great care if the liberties of Her Majesty’s subjects are not to be jeopardised.
To make those points is not in any sense to be anti-American, and it was unworthy of the Minister’s predecessor to make silly allegations of that kind in Committee. Some Opposition Members—I certainly include myself in this—have devoted a lifetime of energy to the improvement of relations between this country and the United States. That objective 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.
Mr. Maples: I rise to support everything that has been said by the three Members who have spoken. My hon. Friend the Member for Beaconsfield (Mr. Grieve) made the speech that I should have liked to make in the debate. He covered the issues lucidly and made his points persuasively, and I should simply like to add some brief remarks.
First, I want to put things in context. Until 11 September 2001, we were pretty relaxed about extradition. Cases were dragging through our courts, where the French had requested the extradition of someone whom they thought was involved in the Paris metro bombings. The Americans had also requested the extradition of three people whom they thought were involved in the east African embassy bombings. Those cases were strung out through our courts. No one in the Government seemed at all worried about the fact that Rachid Ramda had been in prison for six and half years by then. I think that he has now finally been sent to France. I do not think that the three people whom the United States wanted have been sent there. No one in the Government—or, I agree, in the Opposition for that matter—was particularly worried about that at the time.
Since 9/11, we seem to have gone into a panic. We have all signed up to the European arrest warrant, which has thrown out of the window all sorts of protections that we have had for ages, and we have apparently done the same with the United States. I simply do not understand why. I can understand that we needed far faster extradition proceedings, particularly in terrorism cases, because we were all very worried about them, but in the process we have thrown out all sorts of common law protections that have existed for absolutely ages, including dual criminality and the prima facie rule.
There were two occasions on which the Home Secretary had to agree to the proceedings going ahead, each of which was subject to two appeals. I forget how many stages that process involved—seven or eight in the end—but they are the reason such cases often took so long. But why did we have to throw out all the existing protections? There was a perfectly good reason for dual criminality, and we have retained it in the treaty with the United States and in the European arrest warrant for those offences that are not included in the treaty list. I accept that we gave up the prima facie rule under an earlier Council of Europe treaty with our European partners and neighbours, but there was a backstop in that, the Home Secretary was
entitled to ask whether it was in the interests of justice that such rules could be disapplied. Various legal protections were built in.
I can understand the case for eliminating some of the protections. Perhaps the Home Secretary’s discretion should have related to some fairly narrow points—the interest of justice, for instance—and perhaps he should have been able to exercise that discretion only once. Perhaps the prima facie rule could have been done away with in some cases. I have, however, always been worried about doing away with dual criminality. I do not understand how someone can be extradited from this country and prosecuted in another country if what they did was not an offence here at the time. However, we have now got ourselves into that position with the United States through the backdoor by allowing the prima facie evidence rule to be eroded. In so doing, we have effectively eroded the dual criminality rule as well.
I do not understand why we went into a panic in September 2001, which resulted in the European arrest warrant, the treaty with the United States and the Extradition Act 2003. Many hon. Members made a great many of those points in considering the European arrest warrant and the Bill in Committee, but the Government were deaf to those arguments.
Secondly, I want to deal with the US position. We got to this point as a result of bad negotiation, quite frankly. The Government did not foresee that the United States might not ratify the treaty. Anyone who has watched its refusal to extradite IRA terrorists over the past 30 years surely cannot be surprised that that is the main reason why ratification is being held up in the Senate Foreign Relations Committee by a couple of Senators, probably from New York and Massachusetts, who do not want to risk former terrorists who may still be living peacefully in San Francisco or somewhere else being extradited here. If we did not foresee that, it is a terrible mistake, but if we did, why did we not build into the treaty something to deal with it—or why cannot we do so now? If that is the problem, why cannot we try to renegotiate the treaty now.
As my right hon. and learned Friend the Member for Folkestone and Hythe (Mr. Howard) said, the United States now has no incentive to ratify the treaty. What bothers me is that all this is set in the context of a lot of other issues. No Conservative Member, possibly barring my right hon. and learned Friend, could be more pro-American than I am, but I am deeply concerned that we have allowed ourselves to be put in the position not just of a junior partner, but one without any influence.
There is a raft of things on which we are not getting what we want from the United States—the international traffic in arms regulations waiver, the second engine on, and the guarantee of the order for, the joint strike fighter, as well as the ratification of the treaty. I go to Washington about once or twice a year, and many of those things have been on that list for about nine or 10 years, and the Americans keep saying that something is happening, but it does not.
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