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The Solicitor-General: I want to clarify the nature of the hon. Gentleman’s argument. He seems almost to be suggesting that we should make it the responsibility of
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a judge at a hearing to determine whether it is appropriate for the Serious Fraud Office in this case, but in other cases the Crown Prosecution Service, to take a view about whether a prosecution should occur, and that we abrogate that responsibility, which is for prosecutors. Perhaps I have misunderstood him. Alternatively, he is suggesting that the judge would oblige the SFO to investigate a case when the SFO decided that the best place to try it is elsewhere, as in the case of the three individuals under discussion. We should also remember that the district judge said that he had real concerns that, were there an obligation on the SFO to undertake a complete investigation, when it had already been done in the US, there could be issues around abuse of process, which would be serious. Is it the hon. Gentleman’s view that we should return to a situation in which we must have a mini-trial in each case to examine all the evidence—some such cases have lasted 30 months and one lasted 10 years—and that that would also apply in terrorist cases?

Mr. Grieve: I am afraid that the Solicitor-General again does himself less than justice. Other courts, such as the Irish jurisdiction, are perfectly capable of resolving the issue of the forum test. He has once again moved from the general points that I want to make to the particular points about the case involving Messrs Bermingham, Mulgrew and Darby, which is precisely what I want to avoid. I have no idea whether, after consideration of forum points, those individuals might still be extradited to the United States. The fact is, however, that no such consideration has taken place, and that should be possible under the Extradition Act 2003 for every country to which we are carrying out extradition. That is a serious flaw in the legislation. The fact that that is provided for specifically in the 1957 extradition convention makes it all the odder that, when the Government move to try to streamline and simplify the extradition system, with which I do not disagree, they do not include such an essential safeguard. The lack of that safeguard is one of the major reasons for the Government’s present problem.

The Solicitor-General: The provisions of the European convention on extradition were incorporated in the Extradition Act 1989 by the Conservative Government, but the natural forum protection provisions were not. Why did the Conservative Government not include those provisions?

Mr. Grieve: The Solicitor-General makes a good point. The answer to his question is that I do not know, but I would hazard a guess. At that time, we were still operating on the basis of having to show a prima facie case. The removal of that essential safeguard makes it all the more important to read the 1957 convention to establish whether there are other safeguards that ought to be included. All I can say to the Solicitor-General is that, in my view, the forum safeguard ought to be incorporated in the existing legislation.

Mr. Hogg: Perhaps another reason was that the Home Secretary retained residual discretion not to extradite.

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Mr. Grieve: My right hon. and learned Friend is of course right. That is one of the issues that have arisen over the past two weeks. When people have written to me saying that the Home Secretary should exercise his discretion not to extradite, I have had to write back pointing out that no such discretion exists any longer. It has gone.

Let me return to the point that I was making to the Solicitor-General. That residual paternalism, which was there to protect the citizen through the mechanisms and operation of the state, has been removed. Something else must be put in its place, so that people consider that the outcome is fair.

This is not the first occasion on which this problem has arisen and, if the Government do not listen to what is being said, it will not be the last. It will continue. There are numerous other cases in the pipeline, some of them—on their facts—much more challenging that the case of Messrs Bermingham, Mulgrew and Darby. Unless the Government heed the warnings, the criminal justice system in this country will be tainted. There is no need for that to happen. Sensible measures can be put in place. I ask the Government to listen to what a large number of people are saying about this matter.

2.1 pm

Mr. David Winnick (Walsall, North) (Lab): I have reservations and concerns about what we are debating, but I will say this: if the position were different and either of the Opposition parties were in office, the same procedure would be taking place. I know that the Opposition parties do not agree. My hon. and learned Friend the Solicitor-General made a telling point to the hon. Member for Beaconsfield (Mr. Grieve) a few moments ago, and although the Liberal Democrats are hardly likely to agree, I believe that the same position would arise if they were in government. I must add that if my party were in opposition, we would be strenuously opposing what is intended. That is the nature of party politics in the House of Commons. I make no complaints about it, as long as we are not hypocritical and have no illusions.

If there were a free vote on the treaty, which will not happen, I doubt that many Members would vote for it. I would be surprised if more than 25 or 30 did so. As I have said, however, this is the House of Commons. Party politics dominate here, and I certainly have no complaints about that.

Bankers are not a group whom I would normally defend. They do not fall within the category of causes for which I have campaigned for 40 years and more, involving people who have been caught up in various cases and whom I have wished to defend. When, on past occasions, we have talked of the four, the five or the six, they have not been bankers. Perhaps this is a first.

I should also make it as clear as possible that if there have been dishonest dealings, as there may well have been, I am the last person to try to defend them. White-collar crime should certainly be taken seriously. It may well be that these three are guilty. They may have been seriously involved in all the dishonesty of Enron. If that is the case, obviously they should pay the penalty.

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It has been suggested by one or two people—not in today’s debate—that there has been a clever PR exercise in which the three have made themselves out to be heroes. If that is the case, to a large extent the Government have played into their hands. What is happening is a result of the treaty, and I do not think that that should be overlooked.

This is not a matter of bankers. It is the principle that concerns me: the principle of an unfair arrangement between the United States and ourselves. I know that some Members—perhaps I may cite my hon. Friend the Member for Sunderland, South (Mr. Mullin)—have concerns about the United States criminal justice system. That is not necessarily my concern. I do not work on the basis that the American legal system is so inferior, or indeed inferior in any way, to the British criminal justice system. I am not a lawyer, but for some time all the evidence has suggested to me—despite Guantanamo, and despite what has happened more recently in the United States—that the United States is a country based on law, and that its criminal justice system is exercised no less than is ours in this country.

Mr. Hogg: When the hon. Gentleman reflects on the American system, perhaps he should keep in mind Guantanamo Bay, and also the extraordinarily long prison sentences that are being imposed in respect of matters that would attract very modest sentences in this country.

Mr. Winnick: At the cost of arguing against myself, I did mention Guantanamo. I do not think there is any evidence that the three people involved in this case will be given uniforms like those who are detained there. We should also bear in mind what the United States Supreme Court has decided on Guantanamo—a decision of which I am sure the right hon. and learned Gentleman is aware. By and large, on the basis of what I have read and seen in films—although it may not reflect reality—I am by no means persuaded that the United States criminal justice system is inferior to ours. That is not part of my argument today, although it may be part of the arguments of others.

Let me return to the reason why I am concerned enough to speak in the debate. The treaty between the United States and ourselves is one-sided. As has been emphasised enough times before, and will be emphasised again, it is not reciprocal. We will not be able to extradite from the United States people living there, as US nationals or otherwise, on the same basis that enables the United States to extradite people from Britain.

All that I would ask the Government—not, I repeat, as a lawyer—is why the same level of evidence is not required on both sides. That, surely, is the issue: that is the principle that we are debating. It is simply not good enough to argue that the earlier treaty tended to be more one-sided in Britain’s favour—although that may be so. In fact, the consensus is that it was slightly more one-sided in Britain’s favour. But surely the remedy is not to reverse that. Surely the remedy is obvious, even, as I say, to a non-lawyer. There should be a balance: the same level of evidence should be the requirement. That is not the position now, and despite what has been
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argued by my hon. and learned Friend the Solicitor-General and others, I simply cannot be persuaded that what is being done is the remedy.

The Solicitor-General: I have listened carefully to my hon. Friend’s argument, and it is an important argument—but, with the greatest respect to my hon. Friend, he is making a legal point. He is claiming that there is not a broad similarity between the two tests. As far as I can see, this is not a one-sided treaty, and, more particularly, the Act is not a one-sided Act. Exact reciprocity between two different legal systems is not possible, but what we have is broadly similar—sufficiently similar to be as good as anything that we are ever likely to get in terms of equality between the tests in the two countries. That is the legal position.

Mr. Winnick: I have listened to what has just been said. I have also read the report of the debate in the other place, and it appears to me that the position is not as my hon. and learned Friend has described it. That balance does not exist; if it did, the present controversy would not have arisen. The level of evidence required for this country to secure the extradition of a United States national, or someone living in the United States, to Britain is not the same as the level of evidence that is required for the opposite procedure.

Susan Kramer (Richmond Park) (LD): Does the hon. Gentleman agree that there are two imbalances? One is the imbalance inherent in the treaty—even if it were signed by both parties—but the more acute imbalance is the fact that the treaty is not even signed by the other party. Does he agree that when signing a treaty with the US, we have to be conscious that it involves a relationship with the Senate, not just the Administration? The American Civil Liberties Union and the Irish lobby campaigned strenuously from day one to ensure that the treaty was not ratified, so is it not obvious that the British Government must have known that obtaining that signature was near impossible?

Mr. Winnick: The hon. Lady makes just the point that I was about to make. First, the treaty has not been ratified. Indeed, it could well be argued on the American side that there is no need for any hurry. If it is being implemented on the British side, why should there be any hurry on the part of the American Senate to ratify it? There is no incentive to do so. The hon. Lady rightly made that first point, and her second one, too, remains relevant. Even if it is ratified the imbalance remains, so it is not just a question of the Senate acting in due course. Apparently, great efforts are being made on the British side to get ratification, but even if that happens, the imbalance and the controversy will continue. As has been said already, no other country in Europe—not even countries that are no less favourable allies than ourselves—has the same sort of arrangement that we have negotiated with the United States.

I conclude my brief remarks by saying that I am far from being anti-American, and I have shown that over recent events. Like the Prime Minister, though perhaps
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not to the same extent, I believe that it is in the interests of Britain to have a close, friendly working relationship with the US. It may come as a surprise to one or two people on the Opposition side to hear me say that, but that has nevertheless been my position. I do not believe that since 1945 it would have been to this country’s advantage not to have such a close working relationship with the US. We have already lived through the cold war and now face acute terrorist threat and danger, as we saw only yesterday in India and in what happened on 7/7.

Obviously, I do not work on the basis that we are necessarily countries of equal size or influence; it would be nonsense to believe that. I am concerned, however, that there is a growing feeling in Britain, even among people who would not view themselves as anti-American, that in our relationship with the US we are not getting the balance and equality that we should. People feel that what the US wants, we concede without too much difficulty, and without going properly through all the ramifications. There is a real danger that such feeling could turn into real antagonism towards the US, which, as I said, would certainly not be in Britain’s interest.

I ask the Solicitor-General to reflect on the fact that we are talking about three individuals now, but who knows what will happen next year or the year after? It may not necessarily be bankers next time. If that happens, there will be far more of an outcry on the Labour Benches than we have seen today. The principle is the important thing, and I hope that even at this late stage, my hon. and learned Friend will give further consideration to this matter. There is a great deal of anxiety in the country. He may think otherwise, but for all the reasons advanced in the debate, I believe that the anxiety is very considerable.

2.14 pm

Mr. Michael Howard (Folkestone and Hythe) (Con): I congratulate the hon. Member for Sheffield, Hallam (Mr. Clegg) on obtaining the debate and on the way in which he opened it. I also congratulate the shadow Attorney-General on the extremely cogent points that he made, and I find myself in total agreement with the speech of the hon. Member for Walsall, North (Mr. Winnick). In those circumstances, it will not be easy for me entirely to avoid repetition. However, in the light of the Solicitor-General’s continued assertion that black is white, and of his continued refusal to accept the most convincing propositions put in the debate thus far, some repetition may not be entirely out of order.

The first and overriding duty and responsibility of the House is to safeguard the liberties of the individual against unfair, arbitrary or oppressive action by the Executive. That is what we are here to do, and the question before us this afternoon is whether we can rise to the challenge of fulfilling that duty and discharging that responsibility, or whether we will allow the Government to ride roughshod over individual liberties.

The difficulties that we are debating arose out of two serious mistakes that the Government made. The first was to agree to a set of arrangements for governing extradition between this country and the United States, which lack reciprocity and are one-sided. The House
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need not take my word for that, because chapter and verse have already been provided. On 16 December 2003, Baroness Scotland, the Minister responsible for these matters, said as much in the other place. She said that, under these arrangements, the test that we have to meet when we seek extradition to this country is, and I quote her exact words,

In the light of that absolutely categorical statement, it is, to put it mildly, incomprehensible that Government spokesmen from the Prime Minister down have since continued to claim that the arrangements are reciprocal. They are not.

Mr. Hogg: And what is more, the imbalance is perpetuated in the terms of article 8(3)(c) of the treaty. The imbalance is actually stated there.

Mr. Howard: Indeed, it is stated explicitly in article 8(3)(c).

The difference, in a nutshell, is this. In order to obtain the extradition of anyone from the United States, we have to show that there is probable cause that the person concerned has committed the relevant offence, whereas the United States has to provide only information—not evidence—to justify the issue of a warrant for the arrest of the person concerned. There is a clear and enormous difference between the two, so the Government’s first mistake was to agree to this one-sided test.

The Government’s second mistake, as has already been pointed out, was to designate the United States under the Extradition Act 2003 before the US Senate had ratified the extradition treaty. Any incentive that there would otherwise have been for the Senate to ratify the treaty was thereby removed.

In response to overwhelming criticism from all quarters, the Government have tended to say three things. First, in the face of the facts and of the statement by Baroness Scotland in the other place, they assert that the arrangements are reciprocal. Just a week ago today, the Prime Minister said:

That statement is plainly incorrect, and the Prime Minister should apologise and withdraw it.

Secondly, the Government resort to the terrorism gambit. On 1 March, in response to the leader of the Liberal Democrats, the Prime Minister referred to these issues as “international terrorism issues”. As we know, that is a gross distortion of the issues at stake, and the Prime Minister demeans himself and devalues the importance of dealing with terrorism by using that argument in that way.

Thirdly, the Government accuse their critics of being anti-American. For those of us who have devoted a political lifetime to transatlantic relations, that is perhaps the most contemptible charge of all.

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