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If we change the countries around, the thrust of those charges fits today. The reach of the United States is long and powerful, but its founders would not agree with some of what it is doing now. Guantanamo Bay, military commissions and extraordinary rendition all fly in the face of the declaration of independence, and if, by supporting the other place in these amendments, we can realign the desires and principles of 18th-century America with those of 21st-century Great Britain and restore mutual respect, we will have done good work today. I urge the House to get off its knees and stand up for justice and fairness, and to control the Executive.

5 pm

Mr. Denham: Non-lawyers such as I tread into these areas with some hesitation. The danger of being caught out on a finer point of law is ever present.

In considering the Lords amendments before us today, it is important to look a little at the history of how we came to be in the position that we are in. There is no doubt that the emotion that runs around this set of Lords amendments is, unfortunately, coloured by the way that the Extradition Act 2003 and the treaty, and the unilateral arrangements in respect of the USA, came into being, rather than by merely the merits of the issues that we are addressing. It is important that we make that distinction, and also that we record some proper concerns about the process that has led to where we are today.

Let me give some key dates. On 28 November 2002, the Home Affairs Committee—chaired by my predecessor, my hon. Friend the Member for Sunderland, South (Mr. Mullin)—reported on the Extradition Bill. Its Second Reading took place on December 2002, the treaty was agreed at the end of March 2003, and the legislation was enacted at the end of that session. The USA was added to list 2 of the legislation at the end of 2003 and, by that, the unilateral decision was taken to drop the evidence requirements on the USA. The Senate has only now ratified the treaty.

There should be some concerns about the speed at which those events took place. When—before I chaired it—the Committee reported on the Extradition Bill in 2002, it reported the Home Office position at that time. The Home Office had stated that


That was reported in November 2002, and the treaty was finalised and agreed at the end of March 2003—a very short period later.

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The Extradition Act has always worried me because I was the Minister of State who moved the Bill’s Second Reading on 9 December 2002. Since that time I have been unable to remember anything that was under way with the USA in respect of these matters. Short-term memory loss is always a possible explanation in this place, but parliamentary protocol requires that if a Bill is not introduced by a Secretary of State, it is introduced by a Minister of State rather than an Under-Secretary of State, so I was not the sponsor-Minister of the Bill; I picked it up, as it were, at the last moment, to move it.

There was almost no reference at all in that debate to the United States of America. Indeed, about the only one I can find was made by the right hon. Member for Witney (Mr. Cameron), who asked for an assurance. He said:

and he referred to

because of that convention, and he asked:

So to the extent that any interest was shown in the United States in that debate, it concerned speeding up extraditions from this country to the USA, and the point was made by the right hon. Member for Witney, who is now the Leader of the Opposition. That was the tone of the discussion.

Mr. Garnier: Did my right hon. Friend the Member for Witney (Mr. Cameron) mention then that he wanted an unequal relationship in the extradition treaty?

Mr. Denham: The right hon. Gentleman made only a brief intervention, so he was unable to cover that point.

Such was my concern about the lack of reference to the United States at that time that I wrote to the permanent secretary of the Home Office during the summer asking for a copy of the briefing pack that Ministers get on such occasions—such packs can ruin many a weekend for Ministers. I simply put on the record that the briefing that I received as the Minister handling that Bill contained no reference to treaty negotiations being under way with the USA, or to any specific plans—other than the reference to other bilateral treaty partners—to include the USA in list 2.

It seems inconceivable that civil servants would have provided me with a briefing that made no reference to treaty negotiations unless none were under way, and I can only conclude that the treaty signed on 31 March 2003 had not even started the negotiation process when the Extradition Bill was debated in December 2002. That worries me greatly. There is every reason for modernising our extradition arrangements with the USA, who are our most important extradition partner. But our going from a standing start to an entire treaty in about three months, given the many controversial issues that have then followed, explains an awful lot about why we are where we are. I cannot see any basis
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for the haste with which this was done. Nor can I understand the basis for the decision to move ahead with the change of evidence requirements, ahead of agreeing the treaty on both sides of the Atlantic.

There was a problem with the extradition system, but it was almost entirely to do with our failure to extradite criminals to the USA, rather than the other way round. The USA had everything to gain from the new treaty arrangement; we, in practice, had relatively little to gain. Most of the people we wanted were here, and despite the key categories of sex offenders to which my hon. Friend the Minister referred, and one or two others, things were generally going in the right direction.

This process has caused much of the concern that lies behind today’s debate.

Mrs. Gwyneth Dunwoody (Crewe and Nantwich) (Lab): I have been listening very carefully to my right hon. Friend and the point that he is making is enormously important. Has he asked my right hon. Friend the Home Secretary for his explanation of the timing, and has he received a reply?

Mr. Denham: When the Home Affairs Committee held a one-day hearing on this matter last November with Judge Timothy Workman—my hon. Friend the Member for Walsall, North (Mr. Winnick) mentioned him earlier—and the then Minister with responsibility for such matters, my hon. Friend the Member for Leigh (Andy Burnham), we attempted to get a detailed timetable and copies of draft treaties from the Home Office, so that we could see the treaty’s evolution and pin down its timing. Understandably, the Home Office could not provide draft treaties because doing so would have breached our diplomatic relations with a foreign country, so I have been unable to pin down the timing. I therefore do not know why the treaty was agreed so rapidly. I merely make the point that if that had been avoided, what is a now a very emotive discussion could have taken place on a more rational basis.

Mr. Boris Johnson: I am very interested in what the right hon. Gentleman is saying. Is he saying that negotiations on this treaty were effectively taking place behind his and other Ministers’ backs?

Mr. Denham: It has to be my assumption that the reverse is the case. I have taken part in many debates in this House as a Minister, and I have occasionally had cause to be not entirely satisfied with the quality of the briefing that one gets. But if a treaty had been under negotiation, it is extraordinarily unlikely that the Home Office would have told my predecessor Committee that there were no plans to negotiate a further treaty, or that I, as a Minister, would not have had something of that sort drawn to my attention in the background notes, given the obvious danger of misleading the House of Commons, were one to be asked about such matters. It seems more likely, although I cannot be certain about it, that the treaty was negotiated in short order.

We therefore approach today’s debate against the background of several high profile cases that have had a great deal of publicity, some of it wildly misleading about the case against individuals, in a position whereby the treaty was not in force and only half the
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agreement had been implemented—unilaterally by this country. That has overshadowed the debate.

I believe that we should resist the Lords amendments on the substance of the issue. I shall make three brief points and outline one aspect to which the Government need to give much greater attention. Reciprocity is important, but it has never been an absolute principle in our law. For a long time after introducing the Extradition Act 1870, we extradited people to many countries that, on constitutional grounds, never extradited anyone back to us. Parliament took the view that it was better to serve the interests of justice in one direction even if they were not served in the other. Reciprocity is not an absolute principle.

Whatever concerns most of us have about many other justice systems, there is no doubt that, if the United States did not have a constitutional bar to dropping the requirement for prima facie evidence, it would, like the other 50 countries on the list, be a country with which we had an agreement not to require prima facie evidence. I accept that, as Baroness Scotland said, there is no absolute parity in the test. Her comments were accurate and the right hon. and learned Member for Folkestone and Hythe (Mr. Howard) referred to them earlier. However, is the difference so great that it creates genuine injustice or are we pursuing a difference because we do not like the US at this time in politics?

Without the constitutional bar in the US to dropping the requirement for prima facie evidence and with a requirement for information on both sides, we would show little hesitation in reaching an agreement. In that case, people would be extradited from the US on exactly the same basis as people are extradited from this country under the treaty. The big question is, therefore, whether the difference is so great that we should support the Lords amendment. I do not believe that it is.

My second point is about forum, which the Lords amendments cover. If the process had been more open and the treaty had been up for a longer period of discussion and debate, we could have sorted out many such matters. Determining the appropriate jurisdiction is complicated. There were genuine concerns about the European arrest warrant when one of those accused of taking part in the 21 July attempted bombings fled to Italy. We were worried that demands could be made to try him in Italy because it was suggested that he might have committed offences there. We said that that would be wrong and that he must return here, where the major crime took place. There are matters of judgment, and I am unclear from my hon. Friend the Under-Secretary’s comments about the exact criteria that the Crown Prosecution Service is expected to use when judging whether someone should be tried here, if that is possible, or in the US, if that is possible. Those criteria should be made explicit. They do not form part of the treaty arrangements and that is why we should not support the amendments, but the Government need to set out more clearly the basis on which we expect the CPS to make such decisions.

Mr. Marshall-Andrews: Before my right hon. Friend leaves the forum issue, will he reflect on something that is perhaps even more serious than the CPS determining where the forum or forums should be? What happens
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when the CPS, Customs and Excise or whatever constitutes the prosecuting authority decides that someone should not be prosecuted in this country and tells them and their lawyers that? Initiating a prosecution at that stage would be an abuse of process in this country. What would happen if, at that point, the United States were to attempt to initiate fast-track extradition proceedings on those proceedings? That would be a matter of immense concern that would cause feelings of real injustice, particularly if it happened in a sensitive case.

5.15 pm

Mr. Denham: My hon. and learned Friend makes an important point. These matters need to be made much clearer. Decisions are being made about whether to prosecute and about where to prosecute, and they get tangled up together. Judge Workman, in his judgment of 17 May 2005 in the case of Babar Ahmad, commented that this was

and that

It is not clear to me whether the Crown Prosecution Service made a decision that that case was not prosecutable in this country, but that Babar Ahmad could still be extradited, or whether it decided that he could be prosecuted but—we must allow for this possibility—that it would be more appropriate for him to be prosecuted in another jurisdiction. The criteria by which that important set of judgments was made should be made much more public than they are at the moment.

This whole story suggests that there is a great deal that is not really very good about the way in which we conclude treaties and scrutinise them in this place. [Hon. Members: “Hear, hear.”] The hon. Member for Aldridge-Brownhills (Mr. Shepherd) has made this point a number of times. Equally, we should not seek fundamentally to amend the Extradition Act 2003 on the basis of an individual concern about an individual treaty. Perhaps we need to step back from this process and examine how we could do these things better in the future, but we should not support the Lords amendments this afternoon.

Mr. Heath: It is a genuine pleasure to follow the right hon. Member for Southampton, Itchen (Mr. Denham). It must be a bitter-sweet experience for those on his Front Bench to see an intelligent and perceptive former Minister rise to make the kind of comments that he has just made. They have taken our discussion forward in a real sense.

I support the retention of the Lords amendments. That should not come as a surprise to the House, as we have been entirely consistent in our position on these matters ever since they were first put before the delegated legislation Committee on which I served and in which we voted against these provisions. We did so because we believed that they were an affront to what ought to be expected on behalf of British citizens in relation to the reciprocity of the agreements. In the interests of justice, and as far as British citizens were
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concerned, we felt that we should resist a one-sided treaty of this kind. We have not resiled from that position in any way since then.

Listening to the debate on the issues, however, I have detected three convenient fictions that have been propagated since that time. The first is that those who oppose the treaty—and, therefore, the unequal provisions—are doing so in response to an expensive public relations campaign mounted on behalf of certain individuals, and that this is all a matter of the guilt or innocence, presumed or otherwise, of the NatWest three or, now, the chief executive of Morgan Crucible. That is emphatically not the case. My colleagues and I opposed this measure long before any of those cases were being considered, because we believed in the justice of the case that we were putting forward.

I obviously hope that those British citizens are found not to have been guilty of the crimes of which they have been accused, but I have no way of knowing the guilt or innocence of those individuals. That is not for me to say; it is for a court to determine guilt or innocence. My job, and the job of all parliamentarians, is to consider the process by which our citizens face a court in a foreign land thousands of miles away on charges of questionable validity in this country.

Tony Baldry: Is not it a particular concern that a number of matters that are offences in the United States are not offences here? The issue that all Members of the House must address is how they would deal with a constituent who, like one of my constituents, has a brother or sister who is subject to extradition to the United States for having sold computer software to a university in Iran, which is not an offence in the United Kingdom but appears to be an offence under US jurisdiction. Someone is therefore threatened with extradition to the US on a matter that is not an offence under UK law, which must be a matter of concern for us all.

Mr. Heath: Indeed, and I will turn to the point of dual criminality in a moment, as it is extremely important.

The second convenient fiction is that those of us who have opposed the measure from the beginning were doing so largely on the basis that it remained unratified by the United States Administration. That is absolutely not the case. Indeed, many of us have argued that ratification is almost irrelevant because of the Government’s pre-emptive action of putting the measure into effect in British law a full three years before it was ratified by the United States Senate—we understand that, although it has been passed by the Senate, it is still on the President’s desk, and the instruments of ratification have not yet been exchanged. If the treaty is unfair and unequal, ratification is irrelevant, as it is still not in the interests of the United Kingdom and its citizens. That is our point.

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