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Before I move to what might laughably be called a peroration, I assume that the hon. Member for Epsom and Ewell was referring to the forum bar to extradition that the Opposition wish to introduce. That is not a power for the Home Secretary to intervene, but for the court to intervene. Even if the case for a forum bar is accepted, there is an existing mechanism by which the Opposition can seek to introduce forum as a bar to extradition without the need for any amendment. During the passage of the Police and Justice Act 2006, the
Opposition successfully pressed for the insertion of provisions that would force the Government to commence proceedings on a bar to extradition, if a resolution to that effect had been passed by both Houses of Parliament.
I think that the system is fair. There can be no doubt that the 2003 Act has been beneficial in enabling the UK legal system to bring to account criminals who have either committed grave harm to individuals or threatened the interests of this country. It also enables us to fulfil our international obligations more expediently. In doing so, it provides greater safeguards and greater clarity to those subject to extradition proceedings. I commend the amendment to the House.
Chris Huhne (Eastleigh) (LD): I welcome the Opposition's motion on the Extradition Act 2003. This is a timely and important debate. Every few months, an extradition case hits the headlines, including most recently the case of Gary McKinnon, which is still sub judice while judicial review proceeds. Before that, as the Home Secretary and my right hon. and learned Friend the Member for North-East Fife (Sir Menzies Campbell) have pointed out, there were the NatWest three. These repeated causes célèbres underline the problems with our extradition arrangements. They underline the injustice of the unequal treaty that we have signed with the United States, and they will go on and on until that treaty is amended to put American and British citizens on an equal footing.
I am astonished by the Home Secretary's new doctrine, which no previous Minister has advanced-perhaps we could call it the Johnson doctrine-that there is an equality of treatment. In the past, Ministers have confessed that there is no equality of treatment, but they have justified that on other grounds. The reality is-this is the key point, which the Home Secretary confirmed-that we have to show fact if we want to extradite from the US, and that is not the case for the other way around. For any Government to agree that our citizens should be treated as second-class citizens is an outrage and demands correction.
That is why the Conservative motion does not go far enough. It calls for a review of the Extradition Act 2003, without signalling the problems and highlighting the unjust arrangements contained in the US-UK extradition treaty. The Extradition Act has good and bad parts. Let me start with the good. We like its enabling of the European arrest warrant, a sensible measure for the easyJet age, that has brought back more than 300 dangerous criminals-including rapists, murderers, paedophiles and drug runners-to face British justice. That, sadly, is what the Conservatives seem to dislike: because the EAW is European, they oppose it even though it tackles crime and locks up dangerous people. Judge parties by what they do, not what they say.
Exactly the same applies to the Conservatives' decision to withdraw from the European People's party. If the Conservatives cared more about gay rights or action against climate change, they would hardly have leapt into bed with parties that oppose those things.
I do not think that that is the high point of the hon. Gentleman's argument. I am on record, as are others in my party, as saying that in many cases the European arrest warrant works much better than our
extradition agreement with the US. There are, however, some challenging areas in connection with the EAW, because it also applies to countries where the state of the justice system has been criticised by the Council of Europe. We cannot just ignore the fact that the way in which the EAW works can lead, and has led, to anxieties being expressed about whether individuals are being extradited under it for very slight cause, in circumstances that may be unreasonable.
Chris Huhne: I am grateful to the hon. and learned Gentleman for that point. I was hoping that he would make a full tribute at the Dispatch Box to his colleague, Edward McMillan-Scott, for the service that he has performed for the Conservative party over the years. Sadly, the hon. and learned Gentleman did not do so. I regret that. On his substantive point, however, let us be clear that there are within the justice and home affairs chapters of the treaties very substantial ways in which member states can raise their concerns about other member states' justice systems, if that is required.
Let us also remember that every member of the European Union that is subject to the European arrest warrant is also a signatory of the European convention on human rights, and, by the way-I should explain for the benefit of the hon. and learned Gentleman's party-is also prepared to have the European convention applied in their domestic law. His proposals to fail to do that would be an astonishing break with what is happening elsewhere. The points that he is raising are therefore much less significant than the enormous benefits that we have derived from the European arrest warrant.
I have raised issues myself. For example, I did not approve of the German application to extradite Dr. Toben for the crime of holocaust denial, which we do not recognise in British justice. I merely point out to the hon. and learned Member for Beaconsfield (Mr. Grieve) that other member states-such as Belgium-have decided that there is room for interpretation on this. The European arrest warrant is a perfectly workable instrument as it is, and although it should perhaps be improved it has certainly done an enormous amount to help crack down on crime in this country and to help crack down on the old costa del crime. I am astonished that the Conservative party, which was once known as the party of law and order, should have become so obsessed with its Europhobia as to turn its face against this very sensible set of measures- [ Interruption. ] I am glad to see that I have some support from the right hon. Member for Suffolk, Coastal (Mr. Gummer), who, sadly, is on the Back Benches and no longer speaks for his party on these matters.
Mr. Shepherd: I am grateful to the hon. Gentleman for giving way, but I could not let pass that reference to what was a highly contentious piece of legislation because at the heart of it was a mutual recognition of the legal systems of other countries. There were big queries about the role of investigating justices who can hold British citizens in prison for many months in Italy-Greece was another nation suspected of this-without proof or clear evidential reasons for doing so. Mutual recognition of the quality of the legal system was central to the arguments that took place during the debate on this subject.
Chris Huhne: I am grateful to the hon. Gentleman for that point, and I have a certain amount of sympathy with it. I would merely go back to the point that I was making in my exchange with the hon. and learned Member for Beaconsfield, which was that this is a process, not a snapshot. It is a process by which we hope not merely to entrench democratic values and democracies in central and eastern Europe and other member states that have not had the benefit of our traditions for quite as long as we have, but also to entrench their commitment to the rule of law and to fair standards of justice. That process, it seems to me, is one of which we can avail ourselves.
Mr. Shepherd: Within the grand sweep of words that the hon. Gentleman just used lies the poor British citizen who might be stuck in prison for six months while a trumped-up or inadequate case is explored and investigated in another jurisdiction's domain. That was at the heart of it. It is our concern for the British citizen that is central to these arguments.
Chris Huhne: The hon. Gentleman has a point. I said that I was sympathetic on that point, and I certainly think that there are examples-not just of British citizens, as the case of Dr. Toben involved an Australian national who happened to be arrested at a British airport-of cases in which we should stand up against such injustices. We should continue to do so.
The objectionable part of the Extradition Act was the ability to shoehorn through this place a treaty with the United States that was never scrutinised here, never voted on, and would never have received this House's approval if its unequal provisions had been made clear, but was introduced through the royal prerogative. We have therefore tabled an amendment calling for the US-UK extradition treaty to be placed
"on a basis of full reciprocity".
We take particular issue with section 69 of the Extradition Act, because it designates category 2 countries, and the statutory instruments that gave the US-UK treaty effect stem from it. The treaty, as I have already mentioned, was sneaked in by the Government without debate or consultation. Even the text of the treaty was a closely guarded secret, for it was not made public until May 2003-two months after its initial signing, when MPs were leaving for the Whitsun recess. The manner of the treaty's approval and implementation illustrates abundantly the disregard that the Executive has for this legislature. There are few better examples of this place being found on its knees, prostrate before Government power.
Mr. Denis MacShane (Rotherham) (Lab): Can the hon. Gentleman tell us whether the Liberal Democrats have ever used one of their Supply days to debate the treaty in the terms that he has described and call for the changes to it that he wants?
I hope that that is an offer from the Labour Benches to increase the number of Liberal Democrat Supply days. I will take the right hon. Gentleman up on that, and I look forward to his joining us on delegations to the Leader of the House to press that
point. We use many ways of making our opposition clear; my right hon. and learned Friend the Member for North-East Fife, in particular, has been extremely active in this regard. Indeed, on one occasion he even appeared before a Committee of which he was not a member in order to make our opposition clear. I do not think that anybody can be in any doubt. At least the right hon. Friend of the right hon. Member for Rotherham (Mr. MacShane), the Home Secretary, has paid tribute to our consistency, although sadly he has not yet been persuaded of the fact that we are right.
Mr. Shepherd: To be traduced in such a way by that former Minister for Europe-the right hon. Member for Rotherham (Mr. MacShane)-is outrageous. Of course we are missing the essential debates on these matters. The hon. Member for Eastleigh (Chris Huhne) is right to have mentioned the treaty provisions in 2003, the discussions on which took place during the passage of the Police and Justice Bill of the 2005-06 Session. That was when that matter was thoroughly thrashed out. That was when the Liberal Democrats led, with Conservatives, in the Lords to bring down that unequal treaty. That is fully on the record. The Home Secretary says that something has been added to the 2003 legislation, and does not acknowledge the fierceness of the debates when rough equivalence, and so on, appeared. He should get his people in the Box to do some work.
Chris Huhne: I am grateful for the hon. Gentleman's support on that point. What is most startling is the fact that the Labour Government signed away one of our basic freedoms-the right to a fair trial-with that unbalanced agreement. The fact that we signed the treaty unilaterally is more evidence of its lopsided nature and the Blair Government's blind faith in, and service to, the United States. Although our Government were eager to shackle themselves to the document, the United States did not even bother to ratify the US-UK extradition treaty until 2006, even though for three years we were applying its provisions.
Sir Menzies Campbell: Is my hon. Friend aware that the reason for that was that the Irish lobby in the United States was able to exercise such pressure over the Senate that it declined to ratify, on the grounds that suspected Irish terrorists might be extradited to the United Kingdom to face prosecution?
Mr. Grieve: The point has been made about the nature of reciprocity. The hon. Gentleman might also be aware that under the terms of the US-UK extradition agreement, in the United States the definition of the political offence is left to the Executive branch to determine, whereas in this country it is determined by the judiciary. The hon. Gentleman might think that that raises some continuing concerns about how that might be applied in practice.
The hon. and learned Gentleman makes another point about the unbalanced nature of the treaty. I say advisedly that it is an unequal treaty, and I am taking account of the historical context. It is the sort of treaty that one normally sees between an imperial power
and a satellite and, frankly, I find it astonishing that any British Government should have agreed to it. I am at a loss to know why David Blunkett, who was then the Home Secretary, bound the UK to an arrangement-
Chris Huhne: The then Home Secretary, the right hon. Member for Sheffield, Brightside (Mr. Blunkett), agreed and bound the UK to an arrangement that lacks reciprocity and places higher burdens on UK requests than on those from the US. What was the justification? We have not seen any here. What was the purpose? Perhaps a more fitting question is, "What was the incentive?" There has been no clear answer-except for the rather novel doctrine that denies the existence of any imbalance. I note, however, that in expressing that view, the Home Secretary signally failed to make a commitment to place his legal advice in the Library of the House, although I challenged him to do so.
Let us be clear about what the treaty does. Article 8 removes the requirement for the US to provide prima facie evidence when requesting extradition from the UK, yet article 8, section 3, subsection (c) still requires the UK authorities to provide the US with "a reasonable basis to believe" that the US national whom they are seeking to extradite committed the offence. The key point is precisely the one that the Home Secretary made about facts: it is simply ludicrous that this Government are prepared to afford our American counterparts greater protection than they do our own citizens.
In the past, of course, the Government have said that the Americans have the small matter of their own constitution, which insists on probable cause and constrains what they can do. Quite. The US constitution is one of the finest pieces of liberal drafting in legal history. US citizens have enormous advantages over British citizens in the guarantees of freedoms and the checks and balances on arbitrary state power that the US constitution affords, but that is not an argument for ditching our safeguards, weak and feeble though they are in comparison. It is surely an argument that Ministers should have taken even more care to defend UK citizens' rights, precisely because we do not benefit from a written constitution.
This is a practical and a moral issue. Even when it comes to extradition to a state where the death penalty exists, we did not see fit to impose an absolute refusal on our duty to extradite-even to Texas, where the death penalty is rife, or, in the past, to Illinois, where a retiring governor was so distraught by the evidence that he had sent so many innocent men to execution that he pardoned everyone on death row.
Chris Huhne: Even faced with those appalling examples of an affront to the settled will of this House that we will not contemplate the death penalty, we still allow extradition to American states that carry out that objectionable practice; the treaty merely says that we "may refuse". I suspect that the Home Secretary wanted to intervene to make that point, so I shall let him go ahead.
Once extradited, British citizens are unlikely to receive bail while they wait for trial because they are seen as a flight risk, which means that they can spend a substantial period pre-trial in prison. I am also informed that many of those extradited will come under extraordinary pressure to plead guilty to minor charges in order to escape a long trial and extended pre-trial detention on major charges. Where is the justice in that? Where are the protections for our citizens? If the Home Secretary regards that practice as fair in a system of justice, why have he and his predecessors refused to introduce it in British justice? It seems to me that he has a real case to answer.
Given all the evidence against the fairness and equality of the treaty and the motion that we are debating here today, it is perhaps surprising that the Conservatives did not oppose the treaty at the time. We did not receive support from the Conservatives when we attempted to secure the withdrawal of the name of the US from the offending statutory instrument in the other place in December 2003. Instead, the Conservatives put their
"trust in the judicial system of our closest ally"-[ Official Report, House of Lords, 16 December 2003; Vol. 655, c. 1068.],
largely abstaining in the votes both in the other place and in this House, with some honourable exceptions among their Back Benchers. I can only assume that the Conservatives no longer have such trust in our ally, given what they have been saying about certain cases in recent weeks. What we have here smacks just a little of Conservative opportunism. Because the Daily Mail has, quite rightly, taken up case of Gary McKinnon-I pay tribute to that newspaper's campaigning zeal-the Conservative Front Benchers have snapped to attention. General Dacre's wish is Lieutenant's Grayling's command.
The Liberal Democrats have consistently opposed the extradition arrangements with America. We spoke and voted against the orders implementing our end of the treaty in December 2003. In 2006 we tabled a Bill to restore the need for prime facie evidence to be provided by US authorities when requesting extradition. More recently, we made a pledge in our freedom Bill to ensure that the treaty is redrafted immediately. We did all that because we believe the Extradition Act 2003 is manifestly unfair to British citizens and those who have been caught up by the treaty, such as Gary McKinnon.
The Government need to renegotiate the treaty immediately and make the extradition test reciprocal. They should also introduce proper parliamentary scrutiny of treaties and amend the royal prerogative so that such an arrangement can no longer be entered into without meaningful reference to Parliament. That is the least they can do. We will back the Conservative motion today, even though we would prefer more detail and more commitment. We welcome damascene conversions to good causes, and we only hope that our new allies in this matter are not fair-weather friends of the freedoms that British citizens should enjoy.
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