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UK-US Extradition Treaty
12.38 pm
Mr. Nick Clegg (Sheffield, Hallam) (LD): I beg to move, That this House do now adjourn.
Leave having been given on Tuesday 11 July under Standing Order No. 24.
Thank you, Mr. Speaker, for allowing this debate to be held on a matter of tremendous seriousness and urgency. We are all aware that tomorrow morning, three British citizens are to be extradited to the United States on the basis of an unfair, imbalanced treaty that the Government negotiated in secret and to which they devoted the most cursory parliamentary scrutiny imaginable. Although it is too late to alter the fate of the so-called NatWest three, except in terms of pressing for bail, in which we support any efforts that the Government are able to make, it is not too late to abandon that treaty, which is not yet in force in international law, but which we have chosen, inexplicably, to implement unilaterally.
We on the Liberal Democrat Benches have objected to the extradition arrangements with the USA ever since the text of the new treaty was published in May 2003. We spoke and voted against the orders implementing our end of the treaty in December 2003. We have tabled a Bill in the House to restore the need for prima facie evidence to be provided by US authorities when requesting extradition. We have supported in another place amendments to the Police and Justice Bill that would suspend our implementation of the treaty. The purpose of those parliamentary initiatives has been to prevent serious injustice for those who face extradition to the USA or may do so in future—injustice because the extradition treaty and its enactment through the Extradition Act 2003 is manifestly unfair to British citizens.
Mr. Chris Mullin (Sunderland, South) (Lab): Several times in the past 24 hours or so, the hon. Gentleman has made the point that parliamentary scrutiny of the measure was minimal, but, in fact, the draft Bill was the subject of a fairly detailed Home Affairs Committee report. The Committee made a number of recommendations, many of which were sympathetic to his point of view, and some of which were implemented.
Mr. Clegg: It is true that the report was published. However, the hon. Gentleman knows that the treaty was negotiated in secret and the text was only published two months later—a day before the Whitsun recess, I believe. Then, it was the subject of no more than 90 minutes’ scrutiny in the Committee.
Mr. Mullin rose—
Mr. Clegg: I need to make progress—many hon. Members want to speak.
Hon. Members: Give way!
Mr. Clegg: We did not see the treaty.
Mr. Mullin: There were many sessions of hearings on the subject—many.
Mr. Clegg: Did the hon. Gentleman see the treaty before the report was published? I think not. The full text was published two months later.
In recent days, the Government have claimed in strong terms that the treaty is reciprocal—a claim repeated by the Prime Minister today. They say that the arrangements with the United States are, despite all appearances, reciprocal and equivalent. As my noble Friend Lord Goodhart said in another place last night:
“That is simply and totally incorrect.”—[ Official Report, House of Lords, 11 July 2006; Vol. 684, c. 630.]
Let me explain. Article 8 of the UK-US extradition treaty sets out the new procedures between the two countries. It states that the requesting country—either the United Kingdom or the United States—must provide
“a statement of the facts of the offense(s)”.
Then, in paragraph 3(c), an additional burden is placed on the United Kingdom when requesting an extradition from the United States. The provision requires:
“for requests to the United States”—
“such information as would provide a reasonable basis to believe that the person sought committed the offense for which extradition is requested.”
That fulfils the now well known requirement for “probable cause” for extradition from the United States, in line with the terms of the US constitution. However, there is no requirement for any corresponding information for extradition from the United Kingdom.
Before the issue hit the headlines, the Government admitted that lack of reciprocity. In a Committee of the House on 15 December 2003, the hon. Member for Don Valley (Caroline Flint), then a Home Office Minister, said:
“when we make extradition requests to the United States, we will need to submit sufficient evidence to establish ‘probable cause’.”
She acknowledged that that is a lower test than the previous prima facie standard, but added that it was
“a higher threshold than we ask of the United States, and I make no secret of that.”—[ Official Report, Third Standing Committee on Delegated Legislation, 15 December 2003; c. 7.]
In another place, on 16 December last year, the noble Baroness Scotland repeated the same sentiment in almost identical terms.
Those admissions of two and a half years ago are in total contrast to the Prime Minister’s statement to my right hon. and learned Friend the Member for North-East Fife (Sir Menzies Campbell) last week, that
“it is not true that the United States has a different evidential burden from this country. The probable cause, which is the burden that the United States places on countries that want to extradite from the United States, is analogous to what we now provide under the Extradition Act 2003.”—[ Official Report, 5 July 2006; Vol. 448, c. 807.]
The
Government cannot have it both ways. The treaty does, as I have
explained, place different evidential burdens on the two parties.
Either it is not reciprocal, as Ministers have repeatedly confirmed for
months,
or—miraculously—it is now reciprocal, in accordance with
the Prime Minister’s pronouncements last week and
today.
Mr. Michael Wills (North Swindon) (Lab): I want to understand the point that the hon. Gentleman is making. He is saying that the treaty between the United States and the United Kingdom is asymmetrical. Can he tell us which extradition treaties are exactly symmetrical?
Mr. Clegg: I know of no other extradition treaty that is as asymmetric as that treaty. All the extradition treaties covered by the Extradition Act 2003, as the hon. Gentleman probably knows, are almost entirely reciprocal. That is why they are covered by the Council of Europe convention and the European arrest warrant, which are founded on a symmetrical relationship between the two parties.
Mr. Douglas Hogg (Sleaford and North Hykeham) (Con): Would the hon. Gentleman care to tell the hon. Member for North Swindon (Mr. Wills) that the 1972 treaty between the United States and the United Kingdom was extremely balanced?
Mr. Clegg: Indeed. For reasons that seem to have escaped the Prime Minister and other members of the Government, it was balanced between the burden of probable cause in the United States and the necessity for the US authorities to present prima facie evidence in British courts. At the time, that treaty was considered by all legal experts and Government Ministers to be balanced in its application.
The Leader of the House of Commons (Mr. Jack Straw): Not true.
Mr. Clegg: I accept that the prima facie burden was slightly higher than probable cause, but we have wildly over-compensated by removing the prima facie burden altogether.
To return to the NatWest three, that case is not the be-all and end-all of this debate. It is the tip of the iceberg, and it has highlighted a wider problem—the Government signed a lopsided treaty that short-changes the interests of British citizens and people under our judicial protection. It may be the case, as the Prime Minister suggested today, that the extradited individuals could have been extradited under the terms of the 1972 treaty. It is perfectly possible that in initiating extradition proceedings against the NatWest three, the US authorities presented sufficient evidence to meet the higher hurdles under the 1972 treaty. The point is that we do not know, because under the new provisions, there is no cross-questioning or examination of the substantive evidence that they present. Much more importantly, they are not required to present the amount of evidence that could have been presented in the case of the NatWest three—a non-requirement that will apply to all future cases.
Keith
Vaz (Leicester, East) (Lab): I have a great deal of
sympathy for the points that the hon. Gentleman has made, but he was in
the Chamber when the Prime
Minister responded to the question from the right hon. and learned
Member for North-East Fife (Sir Menzies Campbell). The worry for the
families of the NatWest three is that they will go to the United States
and stay there for years and years before the case is concluded. Was
the hon. Gentleman not reassured by the Prime Minister’s
comments that there will be no opposition to an application for bail
which, of course, will allow those three individuals to return to the
United Kingdom?
Mr. Clegg: The courts in Houston, Texas must determine bail terms—they are notoriously stringent—but, of course, we welcome any measures by the Government to facilitate the granting of bail to those three individuals.
The Government have got themselves into that sticky situation by eagerly enforcing our obligations under the treaty and failing to exert, until very late in the day, meaningful political pressure on the United States to do likewise. There is no excuse, however, for the mess in which we find ourselves. The Government repeatedly argue that, because we do not demand prima facie evidence from Council of Europe countries—Albania and Azerbaijan are the most salubrious examples in the long list of countries cited by the Government—we should not demand it from the US. Broadly, because the US is a “mature democracy” we should not have any qualms about extraditing British citizens there.
I should like to make three quick observations. First, as I mentioned, we have reciprocal agreements with those countries, but none of the arrangements have such wildly differing evidential burdens. Hence our support for the European arrest warrant which, as I said, is based on symmetry between the parties that entered into it, and is reciprocal between nations. The US-UK agreement, by contrast, is unique in its lopsided provisions. Secondly, Council of Europe countries are all signatories of the European convention on human rights, which is not binding on the United States. Any contravention of the ECHR by a Council of Europe state subsequent to extradition can be reviewed by the European Court of Human Rights, but such judicial review is not available to individuals extradited to the United States.
Anne Snelgrove (South Swindon) (Lab): Does not the hon. Gentleman agree that the human rights conditions were met in the various courts that those gentlemen have been through in this country. Is not that sufficient? Has not the hon. Gentleman been unduly influenced by a public relations campaign funded by multi-millionaires who have made a packet from selling shares in Enron?
Mr.
Clegg: As the hon. Lady must know, the courts merely heard
the appeal against the application for extradition, which they could
consider only in the limited terms of the 2003 Act. The courts have no
power to second-guess an application made by the US
authorities —[ Interruption. ] The Home
Secretary has now said on several occasions that the US is not in
Europe. I am well aware of that fact. However, he may need to reflect a
little further on it, because we keep
being told by the Prime Minister—and may be told by the Home
Secretary and his Ministers—that there is no reason why we
should not grant exactly the same provisions to the United States as to
European countries. As I have explained, however, those arrangements
were framed in the context of the ECHR, the conventions of the Council
of Ministers and the legal terms of the European arrest warrant, which
completely—legally and politically—sets the European
examples apart from the US
examples.
Mrs. Ann Cryer (Keighley) (Lab): Why has the hon. Gentleman waited such a long time before raising all these questions—[ Interruption.] As my hon. Friend the Member for Sunderland, South (Mr. Mullin) said, those matters were covered in great detail—
Mr. David Heath (Somerton and Frome) (LD): On 15 December 2003.
Mrs. Cryer: No, on 22 November—[ Interruption.]
Mr. Deputy Speaker (Sir Alan Haselhurst): Order.
Mrs. Cryer rose—
Mr. Deputy Speaker: Order. I am trying to help the hon. Lady. As the hon. Member for Sheffield, Hallam (Mr. Clegg) has given way, it would be a courtesy if he and his colleagues listened to what she has to say.
Mrs. Cryer: I am simply trying to say that on 22 November 2005, eight months ago, when a colleague of the hon. Member for Sheffield, Hallam (Mr. Clegg) was present, the Select Committee on Home Affairs went into a great deal of detail on those questions with my hon. Friend the Member for Leigh (Andy Burnham), then the Under-Secretary of State at the Home Office. I have some sympathy with the questions that the hon. Member for Sheffield, Hallam is putting, but they were all put eight months ago so why has he waited until now to raise them again?
Mr. Clegg: I hazard the suggestion that even eight months ago it was too late; the decision was taken on 15 December 2003, by order, to enact our side of the extradition treaty with the United States. As the hon. Lady may know, the only Members who objected at that point—when the House could have stopped the process—were Liberal Democrats.
I want to refer to scale. The United States is by a long way our largest extradition partner. There are between 15 and 20 ongoing requests for extradition from the United States to the United Kingdom, and in 2005 13 people were extradited to the US—the highest number in five years and more than double the figure in 2003, just before the provisions of the bilateral treaty came into effect.
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
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
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.
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?
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:
“Although this case proceeds under the Extradition Act 2003, the request was prepared to meet the requirements of schedule 1 to the Extradition Act 1989.”—
“There is therefore available affidavit evidence giving considerable factual detail of the allegations. As a matter of interest, that evidence makes a case to answer.”
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
“that evidence makes a case to answer.”
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.
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
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.
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