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I urge the House to support the Lords amendments because the Government’s opposition to them is unjust, unfair, undemocratic and damaging to the interests of this country and our citizens. In November 2003, the Extradition Bill, as it was then, to alter the extradition arrangements between the United States and this country became law. Such a measure became law in this country, but not in the United States. It is not certain whether the measure’s American counterpart is in force
in the United States because although the new extradition treaty has been ratified by the United States Senate, it is not yet clear whether the President of the United States has signed the relevant legislation into law. In a sense, that might not matter to the argument that I will make against the Government’s conduct of the treaty and their acceptance of its contents.
My complaint is that in March 2003 our Government, through the then Home Secretary, the right hon. Member for Sheffield, Brightside (Mr. Blunkett), reached an agreement with the then United States Attorney-General, Mr. John Ashcroft, that replaced the 1972 British-American extradition treaty and, in doing so, did not protect our national interest. The new treaty is neither fair nor based in justice. The 1972 treaty set out each country’s obligations to the other. It was fair, just, balanced and transparent. The treaty allowed for the extradition of people from here to the United States if a prima facie case of criminal conduct could be shown in America that matched, or was similar to, a crime in this jurisdiction. We could extradite from the United States to Britain if we could show probable cause. I accept that there was a difference in wording, but, in all practical terms, the treaty demanded an equal legal test. In short, we had a treaty that honoured the doctrine of reciprocity. Each country had to show that there was evidence in the hands of the prosecution that, if uncontradicted by evidence from the accused, would be sufficient to justify conviction or demonstrate reasonable grounds for a suspicion of guilt.
The 2003 treaty was signed by the two Governments without prior notice to the House. It was negotiated and signed behind our backs. We can speculate on the reason why the Government chose not to let us in on the secret, but until the former Home Secretary writes that part of his diaries, it can only be speculation. Was it part of some side deal on Iraq, or something to do with advancing the peace process in Northern Ireland? Was it because he did not know what he was doing, or because he was under such domestic pressure that he could not think straight? Who knows?
We know, however, that the secret treaty of 2003 upset the balance of the 1972 treaty. The Americans need no longer demonstrate a prima facie case, but we must still show probable cause. They need only provide information, but we must have evidence, and the two are by no means identical concepts in law. That is what is fundamentally wrong with the current treaty. Even though the United States ratified it during our summer recess—all of us would accept that it took far too long to do so—it is a treaty to which the Government should not have agreed. Indeed, they would not have been allowed to agree to it if they had asked Parliament’s permission before signing it.
The Government have never given any good reason for the provisions in the treaty that set a lower test for the United States than for the United Kingdom and which were made law in this country by the Extradition Act 2003. Nor has any good reason been given for the Home Secretary excluding the United States from the list of countries required to show a prima facie case under the designation order of November 2003. Why has the United States been removed, by Government order, from the list of countries in category 2 that have to show a prima facie case?
I am concerned, too, that the Government have been careless with our citizens’ rights and the jurisdiction of our courts, which should try citizens for crimes committed in this country. When the Government introduced the European convention on human rights into domestic law, they proclaimed, quite falsely, that they were bringing human rights home, yet that same Government ignored the 1957 European convention on extradition and the European Council framework decision of June 2004, to which the UK is party while the United States is not.
Robert Neill: Further to my hon. and learned Friend’s point, is not the lack of reciprocity and the inadequacy of the treaty made worse by the fact that, of all the countries that have bilateral extradition treaties with the United States of America, only the United Kingdom lacks the provision for a carve-out, which enables US citizens to be tried in this country for offences committed on UK soil? Is that not a serious and grave omission in the treaty?
Mr. Garnier: It is, and what my hon. Friend says is true. I have before me a little list, which is no doubt exactly the same as the Minister’s list. It starts with Albania and runs all the way down to Zimbabwe. The only country on the list that does not have a reciprocal arrangement with the United States, from A to Z, is—hon. Members will have guessed it—the United Kingdom.
The European convention and the European Council framework decision seem to us to be good enough to support, but the Government do not think so. Article 7.1 of the convention states that if the conduct in question was partly committed in the UK, the judge dealing with the request for extradition will not order extradition unless, in all the circumstances, it is in the interests of justice to do so—a point made by my hon. Friend the Member for Banbury (Tony Baldry). It is the judges who make the orders, not the prosecutors. The 1991 European convention on extradition says precisely the same, and in deciding where the interests of justice lie the judge will consider whether the prosecuting authorities in this country have refrained from prosecuting the person whose extradition is requested.
Mr. John Denham (Southampton, Itchen) (Lab): I may have misunderstood the point, but my understanding is that both France and Ireland have treaties with evidential provisions identical to those that the UK has with the United States, so it is not the case that the UK arrangements are unique. Is that correct?
Mr. Garnier: No. The right hon. Gentleman is almost right, but not entirely. He would be misleading himself if he based his argument on the French and the Irish treaties.
Mr. Heath: Is it not the case that although France and Ireland have unreciprocated treaties with the United States, that is mitigated by the fact that the French authorities will not under any circumstances extradite a French citizen, and by the fact that, in the Irish case, there is a forum provision similar to the one before us today?
Mr. Garnier: That is exactly right. The further exceptions that Ireland has come under article 3 and article 5 of its treaty, with which I am sure the right hon. Member for Southampton, Itchen (Mr. Denham) is wholly familiar.
Under the convention law applicable here, an arrest warrant prior to transfer of the accused to another convention country will not be issued unless the judge is persuaded that it would not be right to try the case here and the case has a better connection with the other country. He will consider the connection between this jurisdiction compared with the other as regards the facts and the persons involved in the case, where the witnesses are more available, the nature of the evidence, and the availability and admissibility of the evidence. In the jargon, these are the issues of territoriality and forum—where is it right to try a particular case?
If there is no adequate connection between the facts, the witnesses, the evidence and the accused on the one hand, and the requesting jurisdiction on the other, the judge will deny the warrant and prevent the transfer. Admittedly, that does not involve the argument over probable cause or prima facie case, but it does not need to because of the protection provided by the arguments over connectivity and the terms of the conventions, and because—this is the point that the Minister failed to grasp—there is reciprocity of terms as between the countries involved. That does not exist in the treaty between the United States and the United Kingdom.
If that was good enough for the convention on extradition, it ought to be good enough for applications to remove British bankers from England to Texas, for example. And if it is good enough for the extradition treaty between Ireland and America, it should be good enough for the extradition treaty between America and us. If it was good enough for the European Council framework decision of June 2004, it should be good enough for the United States and us. That is what the Lords amendments at heart are all about, and the Government have failed to produce even half an argument against them.
The Home Secretary has been muttering under his breath, in so far as he is capable of muttering, that the reciprocity argument is precisely the line that his agreement, or the agreement of his predecessor but one, with the United States is all about, but it is not based on fact. It is not based on a reasonable interpretation of the language that we speak in the House—English. I suggest to the Home Secretary that rather than mumble, and rather than allow the Minister to go through the ordeal of presenting the Government’s case to the House on this day, he should have done his own homework, he should have read back, and he should have looked at the treaty, at what it says, what it means and what it does to the relationship between us and the United States.
If the Government have, as they claim, brought human rights home, why does the Court of Appeal say that the extradition treaty signed in 2003 overrides the Human Rights Act 1998? Justice should be blind, but it should not be stupid, nor should it be told by the Government to ignore common sense, our traditions of fair play and the comity of nations that underpins all international treaties. “Mutual respect” are the two
words that make treaties stick, but they were absent from the Government’s mind when the treaty was signed. The Lords amendments restore that mutual respect to our judicial relations with America.
Rob Marris: Whether or not the hon. and learned Gentleman believes it, I am listening carefully to his speech and I am trying to work out what his principal objection is. Perhaps he could elucidate it for the House. Does he object principally because he perceives a lack of reciprocity, which is why he referred to the list from Albania to Zimbabwe, or because the evidential burden—the information in contradistinction to probable cause—is too big a gap evidentially? Is it one or both objections that trouble him?
Mr. Garnier: It is sometimes possible in the House to lose the will to live. Let me try again, and I will speak a little more slowly. The hon. Gentleman should understand that there is no reciprocity between the obligations imposed upon the United States as a requesting jurisdiction to Britain, as compared with Britain’s obligations when requesting extradition from the United States. So internally, within the treaty, there is no reciprocity. There is no balance. There is no meeting of obligations. That is point 1. [Interruption.]
There was no identical reciprocity. I accept that. The Home Secretary is mumbling again. Let me explain to him, too, as he is listening. It is very good of him to turn up. Under the 1973 treaty, we had to demonstrate probable cause in the United States; the US had to demonstrate a prima facie case in this country. We all accept—there is no controversy about this—that those were not exactly equal terms, but to all intents and purposes the courts on both sides of the Atlantic treated them as equal tests. They were both based on evidence. Now we have a different test. [ Interruption. ] We still have to demonstrate probable cause. That essentially means evidence that can be tested and which, if uncontradicted, allows a court to reach the conclusion that there is a good case to answer and that the person who is under the request is suspected of being guilty. The United States merely has to lodge with our courts information that comprises essentially untested allegations.
The Secretary of State for the Home Department (John Reid): Perhaps the hon. and learned and Gentleman would deign to share his views, for the elucidation of lesser minds, on this simple question: if there could be reciprocity previously where there was no identity—as he has said, the burden of proof for prima facie evidence was higher than that for probable cause—why can there not be reciprocity without identity now?
Mr. Garnier: Let me try again. As I said before the Home Secretary interrupted—I was delighted that he did—the tests that we had to apply on both sides of the Atlantic were evidence-based, and the evidence could be contested. [ Interruption. ] The problem that we now face is that we have to present evidence, while the Americans only have to present information, and the information and the allegations are untestable.
Mr. Howard: Has my hon. and learned Friend spotted the complete contradiction between the line now taken by the Home Secretary and the line taken by the Minister in her speech? The Home Secretary has acknowledged that there is no reciprocity in the two tests, but the Minister went to endless lengths to pretend that there is. They cannot both be right.
Mr. Garnier: I think that my right hon. and learned Friend will agree that where there is no reciprocity is between the Home Secretary and his junior Ministers.
John Reid: It would help if the hon. and learned Gentleman understood English as well as he understands law. I was not saying that there is no reciprocity; I was saying that there is no need for identity in order to have reciprocity. [ Interruption. ] That is precisely what the hon. and learned Gentleman has said about the prior position.
Mr. Deputy Speaker (Sir Alan Haselhurst): Order. A chorus of sedentary comments from both sides is not helping the principal argument.
Mr. Garnier: If I say it three times, the cock will probably crow, so I will leave the matter there.
Under the 1973 treaty, both sides had to present evidence. Although the wording was different—we all accept that “prima facie” are two different words from “probable cause”—to all intents and purposes the courts on both sides of the Atlantic agreed that the tests were similar and that the evidence could be tested. Now we face a situation in which we must provide evidence, whereas the United States will merely make allegations.
Mr. Douglas Hogg (Sleaford and North Hykeham) (Con): As a result of what the Home Secretary has done, we have given greater protection to the citizens of the United States than we are willing to grant to the citizens of the United Kingdom.
Mr. Garnier: That is the regrettable and inescapable conclusion that we must draw from the treaty agreed by the right hon. Member for Sheffield, Brightside in one of his better moments in March 2003.
Mr. Dismore: At the risk of the hon. and learned Gentleman being gratuitously rude to me, as he has been to other Labour Members, I shall put this point: on probable cause, is it not the case that before a federal warrant for extradition can be issued, probable cause must be shown in America to a grand jury? The issue of probable cause is tested in the American courts to the satisfaction of a grand jury, a system which in some ways is superior to our own, before it is considered in a United Kingdom court.
Mr. Garnier: The hon. Gentleman’s experience of the federal jurisdiction in the United States is surely greater than that of all of us, but I suggest that he looks at the treaty to see what it says. We have to apply the treaty as amended by the designation order. He may find little comfort in his remarks; certainly, the Government will find no comfort in them.
Mr. Redwood:
Did my hon. and learned Friend notice that the Minister said that it was now clear to the Government that detaining people at Guantanamo Bay violated the rights granted under the European
arrangements? Does he remember them saying that when British citizens were detained in Guantanamo Bay the Government had a duty of care to them? Does not that show that they are craven towards the American jurisdiction, which is the nub of the problem?
Mr. Garnier: My right hon. Friend uses his own language. However, as we have said any number of times today, there is clearly a disparity between the obligations on us as against them and on them as against us. That is the central point, and until the Government grasp that—until they read their own treaty—we are going to find this pretty heavy weather.
David Howarth: If I may help the hon. Member for Hendon (Mr. Dismore), probable cause before a grand jury differs from probable cause before an extradition magistrate for precisely the reason that we are discussing. In a grand jury, the other side of the case is not put, whereas in an extradition court it is.
Mr. Garnier: I am most grateful to the hon. Gentleman. He demonstrates the difficulty of Government Members nipping out to the Government Whips Office and picking up the Whips’ brief. It is probably better to read the text of the treaty.
Joan Ryan: The hon. and learned Gentleman has been on his feet for not far short of 25 minutes, giving us his lawyerly dissertation on these matters. However, the only people he has mentioned are white collar defendants. Not once has the word “victims” crossed his lips. Does he care where the victims are? Is there no victim between here and the US whom he wishes to mention?
Mr. Garnier: Let me make it clear to the hon. Lady, who at least represents a constituency within this jurisdiction, that I am interested in justice for all my constituents and for all the people of this country. I am not selecting one class of alleged criminal as against another. Let me make another thing clear. Opposition Members, particularly Conservative Members, are not anti-American—quite the contrary. We are pro-justice and pro-fairness. We were elected by our constituents not to give away their rights to a foreign power, but to stand up and protect them within the rule of law.
Surely the founding fathers of that great republic, the United States of America—men like John Adams, Thomas Jefferson, Benjamin Franklin and their co-signatories of the declaration of independence, from Georgia in the south to Rhode Island in the north, and men such as Washington who argued and fought for independence in the 1770s and created a country united in its fierce defence of freedom under the law—would shudder at what our Government have done. Let me recall just a few of the words written by Jefferson in the declaration of independence signed on 4 July 1776. Many Members will already know the preamble, which I will not repeat, but they may not be so familiar with the signatories’ indictment against King George III towards the end. This is part of it:
“He has combined with others to subject us to a jurisdiction foreign to our constitution, and unacknowledged by our laws; giving his Assent to their Acts of pretended Legislation”.
“transporting us beyond Seas to be tried for pretended offences”.
Then the declaration booms out across the centuries these painful charges:
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