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There is a slightly erudite point, which ought at least to be mentioned, as to whether ratification is possible if the amendments are retained in the legislation. Undoubtedly, we would be brought into conflict with the law of international treaties if we have legislation in contradiction of the terms of the treaty that we have
signed and ratified. That is a problem for the Government, however, and not for the House, which can legislate only on the basis of the measures before it and their implications for British citizens. It is an illustration of the folly of using secondary legislation to put into law provisions that were not subject to proper consideration by the House.
Mr. Marshall-Andrews: I have listened carefully to a robust denunciation of what is undoubtedly an unequal treaty, with which no one would disagree. The point with which I am struggling, which my right hon. Friend the Member for Southampton, Itchen (Mr. Denham) articulated, is that we would undoubtedly have entered into a fast-track treaty with the United States in any event. If that is the case, and we have fast-track procedures with the United States, how are our citizens any worse off because, on the other side, we must work harder to get citizens out of that country? That is what I do not understand.
Mr. Heath: That is a fair comment but not a genuine concern. We can expect from our Government due protection of British citizens, which should take the form of prima facie evidence, except where there are genuinely reciprocal arrangements for another standard of proof, which we have with several countries. I agree with the comment of the right hon. Member for Southampton, Itchen that, had the matter been approached properly through a sensible debate and negotiation on the treaty, we could have arrived at a satisfactory conclusion. I also agree that, prior to the latest treaty, we had an imbalance in the other direction. I believe that the American authorities had a marginally higher hurdle to overcome than the British authorities, and I have always made that plain. But I think there was a greater similarity between probable cause and prima facie evidence, in that both required evidence to be produced and an opportunity for the person accused to refute that evidence before a court of law. That is the difference between the situation then and the situation now: the imbalance is now in the opposite direction. That evidence is not required.
The Minister got into a bit of a muddle when trying to distinguish between evidence and information in this context, but British citizens are clearly at a disadvantage by comparison with United States citizens. I am arguing first that they should not be at that disadvantage, and secondly that the British Government should not have put them in a position in which they could be at that disadvantage, because it is the duty of the British Government to protect the interests of British citizens. Perhaps the “process” point mentioned by the right hon. Member for Southampton, Itchen, to which I shall return shortly, explains the extraordinary neglect on the Government’s part in consideration of the treaty in the first instance.
Rob Marris:
I think that the hon. Gentleman is trying to ride two horses, and that it is becoming rather uncomfortable. If—as he has said more than once during his speech—this is about the protection of British citizens, British citizens who might be extradited to the United States under the information standard would be no less protected than British citizens who might be extradited to Albania, Canada or a Council of Europe country under that standard. They would have the same protection
vis-Ã -vis extradition from the United Kingdom to the United States as they would have vis-Ã -vis extradition to another country in the list of 50 to which my hon. Friend the Minister adverted when I intervened on her speech. The protection would be equal: there is no problem with regard to the protection of British citizens. So what is the hon. Gentleman’s problem?
Mr. Heath: There is no problem if protection of the obligations falls to the signatories to the Council of Europe and its conventions. The United States is not a signatory to the Council of Europe and its provisions, so I think there is a distinction to be made.
The third convenient fiction has been implied and not stated today, but it has been current in the press. It is that somehow it is in the greater interests of justice for this imbalance to occur, because of the inadequacy of prosecution for white-collar offences in this country. That was almost made explicit by Margaret Cole, director of enforcement of the Financial Services Authority, who pointed out recently that British criminal convictions were “sparse”. She attributed that to greater public support for convictions for white-collar crime in the United States, and therefore presumably a greater predisposition of an American jury to convict by comparison with a British jury.
I have to say first that I consider that an entirely spurious argument, and secondly that, if it is correct, what it suggests is that we have inadequate prosecuting authorities in this area, not that we should send people—effectively under a sub-contracting arrangement—to stand trial in the United States. If there is a perceived inadequacy in this area, the Government should be clear about it and should ensure that our prosecution authorities and our laws on white-collar crime are as robust as those in the United States.
We come back to the issue of parity. It has already been pointed out—but I shall do so again, because it is important—that what the Minister told us today is completely at odds with what was said by a Minister of State in the other place during the passage of the original order, and with what a House of Commons Minister, the hon. Member for Don Valley (Caroline Flint), said in this Chamber: namely, that there is now a lower requirement for the United States than there is for Britain.
It is nonsense to say that there is rough parity when there is not—for all the reasons that we have already given—and that there is no difference between having to provide evidence and having to have it questioned in court, and not being subject to that requirement. I hope that that position will not be pursued. Let us be open and honest about it and acknowledge that a lower standard of proof is required, but say that it is in the best interests of the justice systems of the western world, even if it is not equivalent to that of the UK.
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The scope of the treaty is the next important issue. I find it astonishing that we should have had such a clear analysis from Ministers when we opposed the measure in the first instance. The hon. Member for Banbury (Tony Baldry) made the point, though he is no longer in his place. A relevant Minister said at the time:
“We do not have such a range of offences involving financial crime. The cases mentioned by the Financial Times—such as price fixing—would not apply. Dual criminality would have to exist.”—[ Official Report, Third Standing Committee on Delegated Legislation, 15 December 2003; c. 26.]
What do we have now? We have a full case for extradition of a person from this country to the United States to stand trial for price fixing—for a crime that was not a crime under this jurisdiction at the time he may or may not have committed it. That is in direct contradiction of what the House was told when it was asked to support these measures in the first instance.
Mr. Garnier: If my hon. Friend the Member for Beaconsfield (Mr. Grieve) had been in his place—he is in Committee—he would have mentioned the case of his constituent, Mr. Ian Norris, who faces this particular dilemma. It was not at all eased by the Minister’s words earlier.
Mr. Heath: It was precisely Mr. Norris’s case to which I referred, if perhaps rather obliquely, as it is not helpful to rehearse in the House arguments for or against a particular individual. What surprises me is that something that we were told categorically could not happen is now happening as a consequence of the Bill.
Right from the start, I rejected the view that this was all somehow necessary to deal with terrorism and that something had to be rushed through because of the need to deal with terrorist suspects. It was quite clear that the scope was always wider than that. It was always applicable across the whole range of potential criminal activity. Frankly, it appals me that it was ever suggested that this was a limited treaty of extradition. It was never that, as is now clear from current cases.
We now face circumstances in which the US has bilateral extradition arrangements with 132 states and territories around the world. As the hon. and learned Member for Harborough (Mr. Garnier) pointed out earlier, there are just three countries with which the arrangements are not fully reciprocated. The first is France, as no French citizen is allowed to be extradited to stand trial in a foreign country. Those who are not French citizens are happily exported, but not French citizens. Secondly, there is the Republic of Ireland, where a forum position—similar to the Lords amendment—ensures that, in the interests of justice, the appropriate place for a trial is considered. Then there is the UK, where we have sold the pass and are prepared to act with supine acquiescence in everything that the Americans want, simply rolling over and doing as we are told.
The right hon. Member for Southampton, Itchen made a point about process that says it all. It is quite clear that this was not a process of negotiation. The then Home Secretary, the right hon. Member for Sheffield, Brightside (Mr. Blunkett), went across to Washington and had this treaty presented to him. He was told that it would be very helpful to the US authorities if he would just sign his name at the bottom—“Thank you very much, Mr. Home Secretary, that gives us exactly what we want”. Simply reading the treaty is enough to make the point: it is written in American! This is the British version with the crown at the top, but it is written in American English. It is as though it were dictated by the
American Secretary of State or Attorney General and the British Home Secretary rolled over and said, “Yes, sir. Thank you, sir. That is what we will put into British law”.
Joan Ryan: All this bluster does not make the hon. Gentleman’s contribution fact. The Government were always very clear that the Extradition Act 2003 and the treaty applied to all crime, not just to terrorism. However serious a crime terrorism is—and it is very serious—our extradition arrangements apply across the board. The hon. Gentleman also talked about France not extraditing its citizens, but he will—I am sure—be aware that it has signed up to the European arrest warrant, so the situation has changed. Crime changes and extradition arrangements need to change as well. This is about modernising our extradition arrangements.
Mr. Heath: Well, modernising seems to involve running up a thoroughly modern white flag and saluting it. I accept the Minister’s first proposition, because I said at the time that the treaty was always intended to cover every crime. Some may have changed their position on that, but I have not. She also mentioned France’s arrangements with regard to Council of Europe members and the European arrest warrant. I did not deny that, but I was talking about the bilateral arrangements between France and the US. It is a fact that not a single other country or territory, not even Gibraltar or the Channel islands, has the same unreciprocated arrangements as we have with the US—fact. That is not bluster: it is outrage on behalf of our citizens that any Home Secretary should have signed such an unequal proposition.
Robert Neill: I agree with the hon. Gentleman’s point. It is also worth observing that in the case of French citizens and the European arrest warrant, they will still have the convention protections, which do not apply in the case of the US. The hon. Gentleman also highlighted the problem with forum, which I have noticed as a member of both the English Bar and the Irish Bar. In Ireland, the very existence of the forum provision enables one to deal with a situation in which one has to deal not only with offences that may not have existed in law in the state from which extradition is sought, but with massive disparities in sentence. For example, someone might be chargeable with an offence that in Ireland or the UK carries a maximum punishment of five years, but is extradited—under a slightly stretched analogy—to the US, where it is punishable by 25 years imprisonment. The forum provision provides some safeguard that is not present in the Government’s proposals.
Mr. Heath: The hon. Gentleman is right. Forum is not a matter that can be left to the prosecuting authorities. It is an absurd contention that somehow it is in the interests of justice for the prosecuting authorities of the UK and the US to get together to decide who would like first shot at a British subject. That is a matter for a court to determine in the interests of justice. That is what is at issue in these amendments.
The forum provisions do not sufficiently mitigate the inequalities in the Bill and are not enough to persuade me to support the treaty. However, they go some way to safeguarding the interests of British citizens, and that is what I want to establish.
Chris Bryant (Rhondda) (Lab): The hon. Gentleman mentioned the process of negotiation of the treaty. I suggest that the situation he presented was mere speculation, but what is more troubling is the fact that we have no means of knowing whether it is speculation or truth. We congratulate ourselves on our parliamentary democracy, but we are very bad at scrutinising treaty procedure. Surely there must be a way to improve that so that we do our duty better by our citizens.
Mr. Heath: The hon. Gentleman is right on that last point.
What should we do with this hopeless treaty? The short answer is that the Government must renegotiate it to ensure that there is a genuine rough parity, rather than an entirely imaginary one. In those negotiations, or even before them, the Government could consider whether the provisions offer latitude for courts to consider matters of forum. I think that that would be entirely appropriate.
Earlier, the Minister had no response to my earlier question about clause 4 of article 2 in the treaty. It gives our Executive discretion to ensure that justice is done in matters where the Americans claim universal jurisdiction and we do not, but it is not contained in the Extradition Act 2003 or the relevant statutory instruments. I do not understand how the Government can have ignored the treaty’s one bit of discretion for preserving British citizens’ interests.
As a legislator in this House, I am entitled to ask why the Government are ratifying a treaty when one of its key provisions in respect of British citizens has not been incorporated into British law. I do not believe that the articles of ratification can be exchanged until the Executive address that gap.
We are told that other matters to do with protocol and the use of the extradition treaty will be negotiated. I hope that they are reported in full to the House and that the Government will give us a clear exposition before the Bill finishes its passage through the House. If the amendments are knocked out tonight, I am sure that we will have another opportunity to discuss these matters, so there will be time for the Attorney-General to report back on the progress of his discussions with the Americans.
Finally, I agree with the hon. Member for Rhondda (Chris Bryant) that our process for dealing with treaties is disgraceful. It takes us back to the problem of the royal prerogative, which is a relic of a previous age and inconsistent with a modern legislature. Executives should report back to this House on treaty negotiations, and seek its assent on treaties that they have signed. Treaties should be subject to proper scrutiny: never again should unequal provisions of a treaty be put into British law, unilaterally and three years before the other party even considers them for ratification.
That is an outrage, and an example of the supine acquiescence that has characterised the Government’s approach to the treaty. Everything was done in a rush,
to please the Americans. The Home Secretary at the time was inadequately briefed in advance, and it is British citizens who will pay the cost.
Mr. Marshall-Andrews: May I say, with enormous sadness and a funereal step, that I shall not be supporting Lords amendment No. 36 this evening? Whether I support the Government will depend very much on what I hear in the wind-up speeches at the end of the debate. I shall not support the amendment because the treaty visits on us something that we lawyers used to call—in the days when we were able to use Latin—injuria sine damno. That means—
Mr. Boris Johnson: Injury without loss.
Mr. Marshall-Andrews: Well done, the hon. Gentleman is right: injury without loss. Injured we most certainly have been—as a Parliament and as a nation—by the signing of the treaty. It is manifestly not reciprocal, in any sense of that word. If we were to persuade ourselves that there was any reciprocity in it, we would have to relearn the alphabet, let alone the English language. That distresses me for two reasons.
First, it distresses me to hear a Minister attempt to argue what is manifestly and plainly casuistry. I do not blame her; a completely untenable brief has been served up to her—but it is a great pity that she did not say so at the time. The second reason for my distress is that I dislike treaties that are not reciprocal; in particular, I dislike treaties that are not reciprocal with the United States of America. This is a very bad time to appear to be subservient to the United States of America—on any basis—and the extradition treaty is meat and drink to those who allege that this Government are the lackey and cat’s-paw of the United States, and in particular of the neo-cons of America. Speaking as someone who has frequently made that allegation, I am very sorry indeed that I shall be unable to attempt to inflict a further measure of punishment on the Government for their past misdemeanours by voting against them on amendment No. 36, but in truth I cannot do so.
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Mr. Boris Johnson: I am distressed to hear that the hon. and learned Gentleman will not vote on what I thought he agreed earlier was the side of reason and common sense. The provision is not sine damno, because the evidentiary imbalance means that there is a huge absence of reciprocity, parity, equality, symmetry—whatever we choose to call it—between our arrangements and the American arrangements, with the result that 45 of our nationals, or citizens, go to America every year, while only two or three come the other way. When we consider the respective size of our populations it is obvious that the thing is completely asymmetrical and is causing huge disquiet. That is what we should sort out by addressing the forum issue, on which I thought the hon. and learned Gentleman supported us.
Mr. Marshall-Andrews: I could see that you were about to rise to stop the hon. Gentleman, Mr. Deputy Speaker, and I am grateful that you did not, because I was enjoying his intervention enormously.
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