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Given the sheer number of requests made by the US compared to other countries, and the fact that the US has increasing ambitions for extra-territorial prosecutions, it is vital that the treaty is fair to the British people. But events have already proved without doubt that it is not. Surely questions must be asked
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when Ian Norris, a former chief executive of Morgan Crucible, can be extradited for price-fixing, even though during the period he was alleged to have committed the offence it was not a criminal offence in the UK.

Mr. Ian Taylor (Esher and Walton) (Con): Will the hon. Gentleman underline the fact that one of the reasons why many Conservative Members supported the measure in the Chamber was that we thought it was to be used against potential terrorists? That is why there were grounds for passing the legislation; we did not expect the Government to encourage its use for purposes such as those we are discussing.

Mr. Clegg: The hon. Gentleman makes a valid point, although I am duty-bound to point out that it would have been helpful if he had listened to some of the arguments made from the Liberal Democrat Benches two years ago, which put the measure into a wider context. However, even if we consider the treaty only as part of the battle against terrorism, serious questions must be raised. For example, Lotfi Raissi, the Algerian pilot wrongly accused of training the 11 September hijackers, would have been extradited to the US under the provisions of the new treaty, but he was protected under the old one because the US could provide no evidence whatever that he was involved in the plot.

Peter Luff (Mid-Worcestershire) (Con): I realise that the hon. Gentleman is coming towards the end of his speech and that he has understandably and necessarily rested his arguments so far on issues relating to extradition and treaties, but does he share my concern about the impact on the confidence of people engaged in commercial relationships with the United States of America of what I consider an abuse of the treaty?

Mr. Clegg: The impact on the confidence of the British business community in its dealings with the United States is very considerable indeed.

The case is not, as the Government would have us believe, merely a technical issue to be debated on legalistic points; it is causing serious consternation in the business community where fears of doing business in the US are increasing. I should be interested to learn from the Solicitor-General whether he agrees that the Chancellor’s City taskforce should consider the damage the case could do to our world-class financial services industry.

Mr. Gerald Howarth (Aldershot) (Con): Will the hon. Gentleman give way?

Mr. Clegg: I need to make progress, as many Members want to speak on this important topic.

It is more than three years since the Government signed the extradition treaty with the United States, two and half years since the secondary legislation introducing that treaty was passed and less than 24 hours before the high-profile individuals who have brought such attention to the treaty will leave the country for a Texan jail. We should have debated the
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treaty years ago, but we did not have the chance, thanks to the Government’s continued disregard for the opinions of the House.

The treaty was negotiated in secret, signed by royal prerogative and announced merely in a written statement, offering the House no chance to question the Home Secretary on the wisdom of his actions. The text of the treaty was published two months later on 21 May 2003, as I mentioned earlier, the day before the Whitsun recess, thus reducing the chances of parliamentary scrutiny. The Extradition Act was piloted through the House by a junior Minister, with the Home Secretary making no comment on its progress. The secondary legislation was passed in a Committee that sat for barely 90 minutes.

Until the case started making daily headlines, the Government had made no attempt to persuade the United States to keep its end of the bargain and ratify the treaty; indeed, we know that as recently as March, during the US Secretary of State’s last visit to the UK, the Foreign Secretary did not even mention the issue. And the Government had to be forced, by Mr. Speaker’s decision, to come to the House today to hear this debate.

Much emphasis has been put on the Senate’s failure to ratify the treaty. Surely, we should be asking why we have no ratification process in this country similar to that enjoyed by the US Senate. Why is there no proper parliamentary scrutiny, and no written constitution to protect us from the Government’s willingness to hand away vital legal protections?

It is six years since the Wakeham Commission on Lords reform proposed proper parliamentary scrutiny of treaties in Parliament. The Government must take action. First, they should recognise the force of opinion among the public and in another place—where the Police and Justice Bill has been amended to repeal our part of the treaty—and revoke the 2003 order immediately so far as it applies to the USA. Next, the Government should renegotiate the 2003 treaty to make the extradition test reciprocal. Finally, they must introduce proper parliamentary scrutiny of treaties, and amend the royal prerogative so that international agreements can no longer be entered into without meaningful reference to the House.

12.58 pm

The Solicitor-General (Mr. Mike O'Brien): To listen to the hon. Member for Sheffield, Hallam (Mr. Clegg), we might think that the 2003 treaty had some relevance to whether the Enron three were extradited. In fact, if the treaty had been ratified it would have made not a blind bit of difference to whether the three were extradited.

Let us consider what the treaty would change if it was ratified. It would introduce a sentence threshold of 12 months for both sides and increase the number of offences covered, and temporary surrender would be allowed. In terms of the amount of proof required, it would change little. Indeed, in terms of the test, it would change nothing; the procedure would be changed but the actual test would not. As my noble and learned Friend Baroness Scotland made clear in another place yesterday, it would improve some of the procedures, but none of that would change anything for the Enron three.

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Let me be clear: we want the treaty ratified, which is why Baroness Scotland will be going to the United States shortly to discuss with US Senators the need to ratify the treaty. We have the support of the White House. We need the support of the Senate.

Mr. Robert Flello (Stoke-on-Trent, South) (Lab): My hon. and learned Friend has mentioned the test and the question whether it will be changed. Will he elaborate on the test for the House, because I understand that we are discussing a two-door test, rather than the over-simplification that we heard from the Liberal spokesman?

The Solicitor-General: It is important to consider how the tests operate and how they operated in relation to Enron. As my hon. Friend has said, there is a double-door procedure in relation to extraditions from this country to the US and in the opposite direction—in effect, there is a door in the US courts and a door in the UK courts—and both those doors must be passed through in order to extradite someone either way. In order for us to apply to extradite someone from the US, we must issue a letter based on information from the UK, which is the first door, and we then have to show probable cause in a US court, which is the second door.

In order for the Enron three, for example, to be extradited from the UK, both doors must be passed through in the opposite direction. A grand jury must have a case shown to it that there was probable cause to issue an indictment in the United States, which is the first door. The second door is that a UK court must be satisfied that there was sufficient information to justify the issue of a warrant for arrest in this country, if the offence had been committed here. If a police officer were to apply for a warrant in front of a magistrate for an offence in this country, he would have to satisfy the magistrate that a criminal offence had taken place or that one was suspected to have taken place and that an identified person was suspected of having committed that offence.

The test is higher than mere suspicion, because in the US the phrase “probable cause” means that the person who is asking to arrest someone has a reasonable basis to believe that a crime has been committed and that that person committed the crime, which is more than reasonable suspicion. If we were to return to the pre-2003 situation, the US would have had to prove a prima facie case, which is a much higher test.

Mr. Michael Howard (Folkestone and Hythe) (Con) rose—

The Solicitor-General: When the right hon. and learned Member for Folkestone and Hythe (Mr. Howard) was Home Secretary, there was an imbalance in the tests that were applied in different countries. That balance was enormously disadvantageous to the United States, the effect of which was that it sometimes took 30 months to extradite someone—one case took 10 years. How can he justify that?

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Mr. Howard: I will deal with that, Mr. Deputy Speaker, when, if I am fortunate enough to catch your eye, I have the opportunity to contribute to the debate. Why has the Solicitor-General used the wholly prejudicial description “the Enron three” in relation to those British subjects, when the company that they are accused of defrauding, NatWest, is British, and when the British authorities have decided to take no action in respect of acts committed in this country? Why has he engaged in that entirely prejudicial description of those British subjects?

The Solicitor-General: It is interesting that the right hon. and learned Gentleman should rise at this point. We have heard Opposition Members say that we should return to the prima facie test, which predated the Extradition Act 2003, but let us see what the district judge, Judge Evans, said about the case:

a Conservative measure.

The learned district judge took a clear view in relation to the prima facie case.

Mr. Dominic Grieve (Beaconsfield) (Con): The Solicitor-General is in danger of making a very bad point. The major difference was that those who appeared in front of the district judge were not, under the new rules, allowed to examine or explore whether there was a prima facie case, because the new rules do not allow that to happen. So to argue that the material that was originally submitted might have been sufficient to establish the case does not answer the question that the Solicitor-General has posed to himself, because those who appeared in front of the district judge could not carry out any examination of that material.

The Solicitor-General: The hon. Gentleman has made a bad point himself. The district judge took the view that so far as he was concerned

Several hon. Members rose—

The Solicitor-General: Half a dozen hon. Members are trying to get me to give way, Mr. Deputy Speaker. Perhaps it would be helpful if I were to deal with the points that have been raised already. If the hon. Member for Henley (Mr. Johnson) keeps his hair on, I will get to him, too.

The Enron three are to be extradited—

Mr. Hogg: On a point of order, Mr. Deputy Speaker. It must be wrong in principle to refer to those three people as “the Enron three”, because it is prejudicial to any trial that may take place. I ask you to intervene to stop it.

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Mr. Deputy Speaker: That is not a point of order for the Chair. That is a point of argument, which I have no doubt will continue in the course of the debate.

The Solicitor-General: If the right hon. and learned Gentleman is offended by the description, which has been used by many in the media, then perhaps he is right. I shall refer to them as “the three individuals”, and I hope that that satisfies him.

Rob Marris (Wolverhampton, South-West) (Lab): Today’s debate seems to have been prompted by the pressing case of the NatWest three. Does my hon. and learned Friend know whether the Liberal Democrats or the Conservatives ever protested about the case of Mr. Babar Ahmad, a UK-Asian heritage Muslim, as I did one year ago?

The Solicitor-General: The Liberal Democrats must answer for themselves, and I will let them do so, but I had not heard any complaints from Opposition Members until this particular case.

Mr. Boris Johnson (Henley) (Con): If the Solicitor-General is persuaded by the view of the district judge that there was evidence against the NatWest three, will he explain why the Home Office is so resolute in refusing to set in motion a procedure that would allow them to be tried in this country, where the offence, if it took place, was committed?

The Solicitor-General: I do not blame the Enron three for the substantial publicity campaign that they have generated in order to prevent their extradition, nor do I blame the hon. Gentleman, who has done a good job of defending his constituent. Like all accused, the three individuals are innocent until proved guilty, and they may well be acquitted. No one, least of all the Enron three, has claimed that there is no evidence against them. [ Interruption. ] They have been accused of very serious crimes. [ Interruption. ] The allegations have been reviewed—

Mr. Deputy Speaker: Order. Mr. Speaker granted this debate because he regarded it as a matter of genuine urgency and because there was great concern throughout the country about the issue. It is right and proper that the matter should be discussed in a dignified and moderate manner, which is being impeded by too many interventions and sedentary comments.

The Solicitor-General rose—

Mr. Kenneth Clarke (Rushcliffe) (Con): On a point of order, Mr. Deputy Speaker. The debate began with a discussion of the treaty, the imbalance in the treaty and the application of the treaty, but references have been made to the current cases which have caused so much concern. Quite properly, our proceedings are governed by a sub judice rule, and we do not normally debate the merits of individual criminal allegations or their handling in the courts. We are reaching the stage at which the language to describe the three suspects is being used to indicate on which side of the argument a
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particular hon. Member stands. I realise that the difficulty has arisen suddenly and taken you by surprise, but I suggest that the repeated use of such language, particularly by the Solicitor-General, is taking us dangerously near to inviting hon. Members to indicate by a thinly disguised formula their views on the merits of the case, which is presumably going to be tried.

Mr. Deputy Speaker: Order. The House will have heard what the right hon. and learned Gentleman has said, but I am not aware of a case that is currently being tried in this country to which the sub judice rule would apply.

Mr. Hogg: On a point of order, Mr. Deputy Speaker. This is an important debate, and it is bound to be listened to in the United States. The fact that the Solicitor-General appears to be indicating by the language that he is using that he or the Government think that there is a strong case against these individuals will be prejudicial to those individuals. The Chair always has an ability to extend existing precedents. Mr. Speaker did so last week with regard to a question put to the Prime Minister about the Deputy Prime Minister. It would be perfectly proper for you to extend that rule to cover this situation.

Mr. Deputy Speaker: Order. I have ruled on the question of sub judice. I think that what is of concern to some right hon. and hon. Members is the use of language, which is a matter of debate. I can only see it in that way.

The Solicitor-General: If the right hon. and learned Member for Sleaford and North Hykeham (Mr. Hogg) had been listening, he would have heard me say that these three individuals are, like all accused people, innocent until proved guilty, and they may well be acquitted in a US court.

Malcolm Bruce (Gordon) (LD): Will the Solicitor-General give way?

The Solicitor-General: No. I have given way rather a lot, and I want to proceed with my argument and to deal with some of the points that have been raised.

When challenged in another place in relation to the term “Enron three”, my noble Friend Baroness Scotland quoted paragraph 66 of the High Court judgment, which states:

It is the description that is broadly used. If people are offended by it, I wish to make it clear that there is no indication that these men are anything other than innocent until proved guilty, like all persons who are accused.

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