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24 Oct 2006 : Column 1420

The problem is communication, as is so often the case with the hon. Gentleman. He was having difficulty in reading the document at the time, but I am sure that when he reflects on my earlier comments he will recall that in fact I said that Lords amendment No. 81 was critical, so I shall most certainly support that and vote against the Government. However, although amendment No. 36 is tempting, as I distinctly remember saying to him, I shall not give way to the temptation, because the truth is that there is no loss.

I shall not reiterate what was said by my right hon. Friend the Member for Southampton, Itchen (Mr. Denham).

Mr. Shepherd: The hon. and learned Gentleman says there is no loss, but another reason for our concern is that if an ordinary citizen is directed by extraordinary rendition—if I may use that term—by the American authorities seeking to take them to the American jurisdiction, an enormous burden is placed on them, of cost, estrangement from their circumstances and so on. There is a cost; it is a real human cost, which is why we are examining the issue.

Mr. Marshall-Andrews: As the hon. Gentleman knows, I have enormous respect for him—and of course there can be loss in individual extradition cases. Indeed, if people are extradited, there is always loss in some way or another. I respect that, and we must ensure that people are not extradited when there is no due process. What has happened to extradition law over the last 10 years is that we have fast-tracked our extradition process with regard to many countries, not just an individual country, so as to keep pace with the fast track in the movement of people. Old extradition laws increasingly could not keep pace with the amount of extradition that was required—not from the United States, but elsewhere.

The fast-track procedure, which I do not particularly enjoy, whereby the prima facie evidence is not exhaustively analysed, is now commonplace, and undoubtedly would have been put into place in respect of the United States of America. There is no doubt about that. As far as the United States was concerned, we would have precisely the same burden as we have in any event; the difficulty lies in reciprocity. The Americans—as may be their right, as they have said—could not, or would not, sign up to a treaty because of their constitutional inhibitions. The answer is that we are no worse off than we would have been, and they, arguably, may be a little better off. In those circumstances, I find it difficult to make myself part of the rewriting—effectively the wrecking—of a treaty, when it appears to me that there is, in truth, no loss, in the macro rather than the micro sense.

Mr. Garnier: Because of the knives and the time constraints that we are under, we do not have time for more than one vote. We therefore cannot be too nice about choosing which vote to cast. I urge the hon. and learned Gentleman to vote on amendment No. 36, because he will not have an opportunity to vote on amendment No. 81.

Mr. Marshall-Andrews: May I assist the hon. and learned Gentleman? I took the trouble to sit by the Chair earlier to discuss the vote; I thought that he
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might have done so too, given that he is leading for the Opposition. There almost certainly will be a vote on amendment No. 81 as well as amendment No. 36. That is my information. It is a great joy to be able to inform him of these things.

Of course, the water in this whole extradition matter has been muddied by one recent case, which I will not name. The extradition of three people to the United States was sought. If I may say so, those representing them did a wonderful job in enlisting extra-judicial support against their extradition. I can remember newspapers never before seen in the pantheon of civil liberty that were practically singing the Marseillaise, and printing it, because of the pain that they envisaged in those three cases. One newspaper had an entire page showing the prisons in which those people were likely to be incarcerated and describing the type of regime—involving the very worst mediaeval conditions—under which they were to be held. There were pictures of the shackles into which they were to be put. Of course, when the people concerned arrived in America, the first thing they did was to appear in front of a judge, who gave them bail. Secondly, they were told that if they wanted to go home they could certainly do so, as long as they turned up for their trial. That is not unusual in this country, either.

So, with a heavy heart, because I thoroughly dislike this treaty—non-reciprocity is always wrong, and the treaty should not have been negotiated—I cannot bring myself to support amendment No. 36. Amendment No. 81 is completely different. The forum provision is a completely different matter, because there could be real, serious and dangerous consequences if we allow the measure on to the statute book unamended by the Lords amendment.

There is one simple perception of what will happen—not if we decide to prosecute, but if we decide not to prosecute in this country. If we are dealing with a terrorist case or a high-profile case, so much the worse. If the prosecuting authorities here make that decision, which they frequently do, and communicate it to the person they have held, saying, “We have decided that we will not prosecute you on these charges,” and then a fast-track procedure, without a hearing by a judge, is initiated to extradite that person to another country—particularly the United States—the social backwash is likely to be terrible. That will be particularly true if it is a Muslim or a terrorist case. We have to understand that.

If a crime is tried or is said to be committed partly in this country, the judgment as to whether this country extradites to another country must be made on its merits by a tribunal. That is what amendment No. 81 would provide. I hope that enough of my colleagues will join me in the Lobby—with the Opposition—to pass this amendment, which will eradicate those problems.

Mr. Garnier: Just to make it clear, let me explain that I had not anticipated a second vote because of the timing—I do not want to eat into the remainder of the debate—but if there is a vote, we will be with the hon. and learned Gentleman.

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Mr. Marshall-Andrews: I am pleased. Elucidation of that kind is always welcome, particularly at this time. I will be with the hon. and learned Gentleman on amendment No. 81. He should have no fear about that.

Mrs. Dunwoody: I hope that I will not frighten my hon. and learned Friend if I say that I might not be with him—but what concerns me a little is the clarity of the situation. For the benefit of those of us who are non-lawyers, is he saying that if, for example, in a terrorism case there was insufficient evidence in this country to prosecute, but nevertheless within the United States there was suitable and convincing evidence that would allow people to prosecute, we should not be prepared to let that person be extradited?

Mr. Marshall-Andrews: No, what I am saying, and what the amendment provides, is that where there are offences that are partly committed in two countries and we decide not to prosecute in this country, there would have to be a hearing. That would not necessarily mean that the person would not be extradited. In the circumstances that my hon. Friend sets out, extradition almost certainly would take place, but there would have to be a hearing. If there was a hearing, it would remove most of the dangers implicit in the Extradition Act as it stands.

Mr. Howard: I pay tribute to the right hon. Member for Southampton, Itchen (Mr. Denham) for a truly outstanding speech. In saying that, I cast no aspersion on the other outstanding speeches that we have heard so far in this debate. The whole House will be grateful to him for the way in which he shed light on—illuminated—the process by which we find ourselves in our present position and the part that he played in it, which perhaps was not quite as incidental as he sought to portray, and for the analysis that he gave of the problems that we face as a consequence of the series of events that he explained so lucidly.

I go along with much of the right hon. Gentleman’s analysis. We walk step in step, but we part company when it comes to the final conclusion as to how we should cast our votes in the Division Lobby this evening. In truth, I do not believe that the penetrating analysis that he gave the House in the course of that speech supports the conclusion that he purported to have reached, but be that as it may, it was an outstanding speech and the whole House will be grateful to him for what he said.

The Minister said—this was the only thing on which I agreed with her—that we have discussed these issues ad infinitum. That is true. The reason we have done so is that the Government have, ad infinitum, refused to see reason on these important matters.

I will seek to deal head on with the point made by the hon. and learned Member for Medway (Mr. Marshall-Andrews). I am sorry that he has apparently reached the conclusion that he will not be with us when it comes to voting on Lords amendment No. 36. The damage that has been caused by the injury that he acknowledges takes place is that, as was said clearly by my right hon. and learned Friend the Member for Sleaford and North Hykeham (Mr. Hogg), as a consequence of these arrangements, we afford our citizens a lower degree of protection than the United States affords to its citizens. If anyone is to be extradited from the United States,
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evidence has to be produced that is contestable in the courts of the United States, but there is no comparable provision for extradition from the United Kingdom. That is the damage. It seems insupportable that this House, which is the guardian of the liberties of our citizens, should accept a lower degree of protection for the liberties of our citizens than is afforded to citizens of the United States under these arrangements.

Mr. Marshall-Andrews: I entirely agree with the right hon. and learned Gentleman’s point about reciprocity, and an injury seems to have been done to us in that regard. However, let us consider the damage that has actually been done. If the standard of protection that we are affording to our citizens is the same as that which we are perfectly content to give to them in respect of many other countries in the world, how are we failing to protect their interests?

6 pm

Mr. Howard: There are two answers to that. First, there is the question of reciprocity itself. When the Government and Parliament of the United Kingdom assess the protection that they afford their citizens on extradition, it is reasonable for them to insist on comparable—I would argue identical—protection from the countries to which extradition is contemplated under the arrangements.

The second answer to the question asked by the hon. and learned Gentleman—I am astonished that it is not clearly apparent to him, of all people—is that the European convention on human rights applies to the other countries with which we have made the arrangements to which he refers. The convention affords a degree of protection on extradition to and from those countries that is wholly absent from our arrangements with the United States. For those two reasons, we are discussing not simply a lack of reciprocity, but a lack of reciprocity that has serious consequences for the liberty of the subjects of the United Kingdom.

Chris Bryant: As far as I understand it, the right hon. and learned Gentleman is suggesting that reciprocity is the absolute principle. However, I wonder whether there is a higher principle than that. According to his argument, France provides more protection for its citizens than we do. Surely we believe that the French are wrong to do so.

Mr. Howard: That is the case in respect of the United States, but not in respect of other member states of the European Union or, I believe, of the Council of Europe. However, I am not here to argue the pros and cons of the attitude taken by the French Government to the liberty of their citizens. I am concerned about the liberty of the subjects of the United Kingdom.

Despite the quality of the analysis that the right hon. Member for Southampton, Itchen gave to the House, he seemed reluctant to support the Lords amendments because he said that it would be inappropriate to do fundamental damage to the statute dealing with extradition. Whatever the rights and wrongs of that argument, it does not apply to Lords amendment No. 36, which would simply de-designate the United States and cause no fundamental damage to the statute at all. I hope that he will take that point into account when he ultimately decides how to vote on Lords amendment No. 36, at least.

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Mr. Denham: I entirely understand the right hon. and learned Gentleman’s point, and I was grateful for his earlier generous comments. However, my other argument applies to Lords amendment No. 36. I do not think that we are doing great damage by applying to the United States of America a test that we have been prepared to apply to many other countries.

Mr. Howard: That is the argument that I have been trying to rebut, and I am sorry that I have thus far not been able to persuade the right hon. Gentleman of its merits.

I will make only one other point, because much of the ground that we have covered has been canvassed before. The response of the Government, unlike that of the right hon. Gentleman, to the arguments that have been put against them has been thoroughly wretched, inconsistent, contradictory and increasingly desperate. Despite the words of Baroness Scotland that are on record, they have refused to acknowledge that there is no reciprocity. Indeed, the Prime Minister is on record as having denied in the House that there was any difference at all in the evidential arrangements applying to this country and to the United States. Sometimes the Government say that there is reciprocity, yet sometimes they say, as the Home Secretary seems to have done, that perhaps there is not reciprocity, but that it does not matter.

When it suits Ministers, however, they are only too happy to rely on the importance of reciprocity. On 11 July, Baroness Scotland resisted an Opposition amendment that would have required a judge deciding on extradition to take account of the fact that the United Kingdom authorities had decided not to prosecute—that is the forum argument that we have been discussing—by saying:

When it suits the Government, the argument for reciprocity is important, convincing and compelling, but when reciprocity is inconvenient to them, it can be dismissed with a wave of a peremptory hand.

The injustice of the present arrangements has been the subject of widespread comment and concern inside and outside the House. In the Financial Times last Wednesday, Sir Martin Jacomb, a former chairman of the Prudential insurance company and a highly respected figure in the business community, drew attention to their unfairness. He said:

I commend his words to the House, and urge right hon. and hon. Members on both sides of the House to vote accordingly.

Alan Simpson (Nottingham, South) (Lab): I had not intended to speak in the debate, but the comments made by the hon. Member for Somerton and Frome (Mr. Heath) have prompted me to say that it is important to try to offer a different perspective on why there might be a case for supporting the Lords amendments. I listened to the case that we were offered
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and suddenly felt desperately uneasy that somehow the failings of UK law and the Bill’s provisions were such that we had failed to stand up to prevent bankers from facing serious charges of criminal misconduct, albeit just because the UK’s legislative framework was lax enough to allow them to dance a coach and horses of transgressions through our system. It seemed to be suggested that just because they were able to do that, they should be able to get away with it.

If that case was being made, I have to say that when the allegations came forward many Labour Members examined them, looked across at the City of London and said, “Not enough!” There ought to be more who face charges for financial misconduct. If there is a case for harmonising international law on financial misconduct, one of the lessons that we should have learned from the Enron scandal is the case for toughening up our domestic legislation. We should not say that we stand at a distance from mutual arrangements for trials, but reflect on our consequential duties to protect our citizens from misconduct that takes place under the shelter of our shores.

Mr. Redwood: What if the person concerned works in London and his employer says that there is no charge to answer and that nothing went wrong, and the British prosecuting authorities say that he is innocent and that there is no charge to answer? Is it then right that he can be whisked away to an American jurisdiction? Does not the hon. Gentleman understand that the same could happen to someone who is not a banker, such as a trade unionist or a Labour-supporting industrial captain? We are talking about fairness and justice for everyone. The issue is not that the people concerned are bankers; it is that they are being treated unfairly.

Alan Simpson: That is the attraction of Lords amendment No. 81, under which a hearing must be held. I would not be so supportive of it if I thought that it precluded the prospect of a hearing taking place in this country, in which the court could come to the view that there was a compelling case for extraditing people who faced charges to an area where a proper trial could take place, for crimes committed against our citizens or others. What is important is the process—the hearing—that the amendment allows.

It saddens me that in all our discussion there has not been a single reference to the very important starting point of this debate—the treatment of Gary McKinnon, who hacked into US computers and posted a note on a website saying that the US was guilty of state terrorism. He was arrested in the UK but was not charged—if he had been charged, he would probably have got community service. He faces extradition for an offence that may be punished with a prison sentence of up to 60 years. It is absolutely right that the Lords amendment should specifically give the right to a hearing in this country, in which the test will be whether extradition is in the interests of justice.

We could make heavy weather of Lords amendment No. 36. I have considered it and Labour Members have discussed it a great deal, and in the end I have decided that there is no loss or damage done by including it. It is a belt-and-braces provision that means that the agreement will come into place when it is fully signed.
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It does not make for identical legal systems, but it does make for a sort of reciprocity.

Lords amendments Nos. 81 to 84, which give the basis on which those reciprocal arrangements will come into place, are driven by considerations of justice, not of partiality. They are driven not by the question of whether it is possible to get away with something in this country if it is committed from a base in the Cayman Islands, but by the question of whether there is a case in law, and in justice, for allowing a trial to take place. It is against that benchmark that we best defend the rights of citizens, irrespective of their wealth, and that is why we should have a forum test, in which there is a hearing, and at the centre of which is the issue of justice.

Mr. Boris Johnson: I begin by saying how passionately I agree with the last point made by the hon. Member for Nottingham, South (Alan Simpson). The principle that we are talking about applies to all British citizens irrespective of where they come from, what constituency they happen to live in or their walk of life. I absolutely agree with him that that applies equally to Gary McKinnon, Barbar Ahmad and everyone else on whose behalf we have been lobbied.

I congratulate the Government on finally persuading the US Senate to ratify the treaty— [Interruption.]—or, rather, on persuading it to begin to ratify the treaty, as my hon. Friend the Member for Beaconsfield (Mr. Grieve) says. The situation is better than it was, and that is largely due to the campaign that has been waged to get the Government’s attention. Rather than scorning all those who spoke on behalf of their constituents and scorning the newspapers that took up the cudgels on behalf of those constituents, the Government should give credit where credit is due. Without that campaign, we would not have seen the wonderful spectacle of Ministers scuttling around Washington trying to persuade the Senate to ratify the treaty. The Government should have a little humility on that point.

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