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Several hon. Members rose—
Mr. Grieve: I want to make progress.
I turn to the Extradition Act 2003. In fact, the Government’s willingness to give to the United States special privileges under that Act that required no treaty at all with the US; it was merely a gratuitous act by this Parliament. [Interruption.] If the Leader of the House looks at what happened, he will see that in fact, we abstained on the order. [Interruption.] We abstained and expressed our misgivings, which were— [Interruption.] If the Leader of the House wants to intervene, I will give way to him.
Mr. Straw: The Conservatives did indeed abstain on the vote on the order; only the Liberal Democrats voted against it. Did they abstain because they were in favour, because they were against, or because they had absolutely no view?
Mr. Grieve: We abstained because we expressed misgivings about the scope of the powers given to the United States. We were swayed by the Government’s arguments about the need to have the new arrangements to deal with terrorism. Speaking personally, I regret that, in view of what I have discovered since about the way that this process is operating. I say candidly to the Leader of the House that what happened troubles me, but it was done in good faith and the Government should be pleased, I suppose, that for once, assurances that they gave to hon. Members received a response on this side of the House. But the truth is that those assurances proved to be flawed.
Mr.
Straw: That is a paltry explanation. The hon. Gentleman is
familiar with the 2003 Act under which
the order was made and it is perfectly obvious that the order applies to
any kind of extradition, not just terrorist
offences.
Mr. Grieve: I do not know whether the Leader of the House has read the relevant Hansard, but if he has not and he does, he will see that during those debates, the hon. Member for Don Valley (Caroline Flint) made a number of claims about the way that the 2003 Act would operate in relation to the United States that were—I am sure inadvertently—misleading. The fact is that they certainly had an effect in persuading Members of this House to go along with what the Government wanted to do.
Mr. Iain Duncan Smith (Chingford and Woodford Green) (Con): As Leader of the Opposition at that time, it was clear to me—and to all my colleagues—that the main reason why we acquiesced to the speed with which this provision was pushed through was that the Government said that it was absolutely vital in the pursuit of terrorists. There were other aspects to it, but terrorism was the key driver, which the Government should not resile from. Will my hon. Friend please ask the Government a very simple question? Apart from the details that my hon. Friend thinks might be wrong, or which there might be problems with, what is it that the Government object to? The reality for all of us in this place is that when this provision was pushed through, the Government never said that parity was unimportant. Surely parity is vital, so why do the Government not act?
Mr. Grieve: I agree entirely with my right hon. Friend and I also agree that parity is vital.
That leads me to my next point, which concerns parts 1 and 2 of the 2003 Act. Part 1 deals with the European arrest warrant, which is backed by the fact that the signatories are signatories to the European convention on human rights. I want to pick up on the earlier intervention of the hon. Member for Sunderland, South (Mr. Mullin). He might have been about to make this point himself, but I will make it. In the summary of the report that considered that legislation, his Select Committee pointed out the following:
“we express concerns about proposals to relax the requirement that extradition requests from non-European countries must demonstrate that there is a prima facie case to answer”.
The report goes into greater detail on that issue later. However, that is exactly what the Government chose to do, and they chose to do so in the context of the United States, when they were also aware that in fact, there would be no parity in terms of the test that had to be applied on both sides.
The weakest
point of the Government’s argument, both here and—in the
light of yesterday’s debate in the Lords—in the other
place, is the extraordinary assertion that reasonable cause and making
out mere suspicion, which is all that it boils down to, are on a par
with each other. We have a substantial hurdle to overcome in the United
States. The tendering of prima facie evidence in an evidential sense is
not necessarily required, but the making of a prima facie case in a
documentary and discursive sense is certainly required, although it can
be done by hearsay. In contrast, all that the United States must now do
is send in a document in
which it sets out a case. As long as that case is made out, and the
other criteria, which are a list of safeguards on identity, dual
criminality, double jeopardy and the illness of the defendant, are
satisfied— [Interruption.] As long as those criteria,
including the Human Rights Act 1998, are satisfied, there can be no
possibility of further examination of the material to decide whether
the extradition should happen.
The Solicitor-General knows about the Raissi case, which posed the threat of a serious miscarriage of justice. Under the existing new rules, Mr. Raissi would undoubtedly have gone to the United States. He was spared that because it turned out, as the prima facie case was examined, that there was a case of mistaken identity. More than that, the case against him was entirely flawed.
Those are not slight or academic matters but have a practical impact. In deciding to grant this special privilege to the United States of designation under section 84(7) of the Act, the Government have made a mistake. The lack of parity immediately gives rise to the taint of unfairness. In any event, I have some reservations about moving away from the old test in the case of non-European countries generally. In that regard, I have genuine anxieties that go beyond merely the UK-US extradition treaty.
Malcolm Bruce: The hon. Gentleman is making an important point. Does he share my concern that the Solicitor-General, in quoting the district judge’s comment on the submissions made in this case, failed to point out—in relation to which the hon. Member for Henley (Mr. Johnson) understandably intervened with some anger—that the defendants had no right to challenge, test, explain or counter that evidence, which might well have been produced by those engaged in a plea bargain in the United States and could have been entirely false?
Mr. Grieve: The hon. Gentleman is right, and that is why I intervened on the Solicitor-General when he started telling the House that we should not worry about anything, because the United States sent over volumes of material, as if it were doing a pre-2003 Act extradition. That might be true, and I accept that, if that material had been tested on the 1972 Act provisions, the three defendants might still be extradited to the United States. The difference is that there would not be such huge public disquiet about the manner in which it has been carried out. Even though the material was available, the defendants were deprived, in the course of the extradition proceedings, of the opportunity to carry out the pre-2003 Act scrutiny that they could have done previously, even when they took the matter to the High Court on review. The points taken in the Court of Appeal related to the Human Rights Act, and by their very nature were not as extensive, and could not be the same, as if we had provided a balancing exercise to enable that scrutiny to take place.
Mr.
John Redwood (Wokingham) (Con): Is not the crucial point
that, according to the British Government, these three men are entirely
innocent. We know that that is the British Government’s view,
because there is no prosecution pending and no suggestion of any charge
in this country about events that took place here. Is not it the duty
of the British Government to defend the
innocent?
Mr. Grieve: My right hon. Friend makes a good pint. That brings me to the consideration—finally, I hope, as I do not want to take up too much time—of the issue of forums.
The second issue that we must consider, which was considered in the other place yesterday, is that we chose in the 2003 Act, bizarrely, to get rid of the protection that existed in article 7(1) of the 1957 convention on extradition, which allowed an extradition to be prevented if the person was being sent to an inappropriate forum for the trial. As I did not participate in detailed consideration of the 2003 Act, I am unclear as to why the Government decided not to include that safeguard in the Act generally. Every other country has that safeguard. The Irish, who regard themselves as close partners and friends of the United States, and who have an extradition arrangement, have a forum clause in their treaty, which enables the question of the appropriate forum to be considered.
One reason why so much public disquiet has been expressed about the case of Mr. Mulgrew, Mr. Bermingham and Mr. Darby is that they are in this country, the victim, NatWest, is in this country, and a trial could properly take place in this country without the onerous burden of extradition. However, they have been deprived of that opportunity—it has only been taken as a Human Rights Act point, which is inadequate. I have yet to hear from the Solicitor-General why the Government have not adopted that protection, which, in my understanding, applies across virtually every other European country. That makes a considerable difference. Were we to introduce that protection, along with reciprocity with the United States, the Solicitor-General would find that the public disquiet that has arisen, which, as I said, is genuine, would be allayed.
The Government have a responsibility for good governance. One of the features of good governance—picking up the point made by my right hon. Friend the Member for Wokingham (Mr. Redwood)—is the paternal relationship between the state and its citizens. That is not to say that the state should not give up its citizens for trial elsewhere when there is clear evidence that they should be tried and it is in the public interest. But the state should not appear to be cavalier with their rights. One of the things about the Government that makes me anxious, which is a wider issue than the UK-US extradition treaty and runs through a host of pieces of legislation that have an authoritarian tinge that undermines civil liberties in this country, is that they combine an extraordinary internationalism and an attitude that state boundaries and borders are rather archaic with a reluctance to stand up for their own. That is troubling, as it undermines public confidence in the state, and will ultimately, and corrosively, undermine public confidence in the criminal justice system.
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
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.
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.
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
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
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 right hon. 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
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,
“a higher threshold than we ask of the United States, and I make no secret of that.”—[ Official Report, House of Lords, 16 December 2003; Vol. 655, c. 1063.]
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:
“it is not true that the United States has a different evidential burden from this country.”—[ Official Report, 5 July 2006; Vol. 448, c. 807]
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.
Mr.
Clegg: I am equally stung by the assertion that those who
criticise the Government’s approach are anti-American. Is the
right hon. and learned Gentleman as
struck as I am by the report of the American Bar Association’s
symposium last year? The Las Vegas transcript of the symposium shows
the US authorities almost incredulous at how far Britain has bent to
accommodate their demands. One participant marvelled that a hearsay
affidavit by the prosecutor was enough and that they did not even have
to provide witness affidavits.
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