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Mark Lazarowicz (Edinburgh, North and Leith) (Lab/Co-op):
Nobody reasonable in the House could dispute that the Home Secretary has a difficult decision to make in this case, and he has clearly considered it carefully. However, given that there is so much public concern
about Gary McKinnon's possible extradition, I urge my right hon. Friend to consider again whether there is any way in which he can take steps to prevent his being extradited. Many people in this country would certainly welcome that. I urge my right hon. Friend to think again and try to find some way of making it happen.
Alan Johnson: It is just not good enough for a Home Secretary to be told to find "some way", irrespective of what the European Court of Human Rights or the law says. It is not the Home Secretary's job to be popular or to please whatever media campaign happens to be on the go; it is the Home Secretary's job to uphold the law-to look at things carefully and make the right judgment. That is what I have done.
Sir Menzies Campbell (North-East Fife) (LD): As the Home Secretary knows, extradition is based on the principle of reciprocity. Let me ask him this question: does he think there would be the slightest chance of an American citizen being extradited to the United Kingdom in similar circumstances and on similar evidence?
Alan Johnson: I hear this kind of argument all the time. Yes is absolutely my answer to that question. Just as we have extradited more than 30 people since the treaty came in, we have not been refused on any occasion, so this kind of faint anti-Americanism-as if the Americans' system is totally corrupt and our system is brilliant-is not something I accept. Nor do I accept that America would not extradite somebody over here in exactly the same circumstances.
Andrew Mackinlay (Thurrock) (Lab): I listened carefully to the closing sentences of the Secretary of State's statement, which I want to look at in detail. He has basically inherited a Blunkett blunder, which is the treaty. The mood of the House is such that we want to revisit that treaty, in order that caveats can be put in. Will he consider bringing forward emergency legislation so we can address that issue?
Alan Johnson: No, and for three reasons. Number one, no one has given an argument explaining why probable cause is less of a hurdle to cross than reasonable suspicion; none. Number two, there is not a single case- [ Interruption. ] An hon. Member on the Opposition Front Bench says that the Attorney-General said that. In a debate in another place on precisely this issue just two weeks ago, when an amendment was tabled to the then Policing and Crime Bill to say that we should revisit the issue in relation to forum-where an individual would be prosecuted-and when the House of Lords successfully overturned an amendment of that nature, the Attorney-General made it absolutely plain that it is a matter of form against fact.
When the Attorney-General was a Home Office Minister, she talked at this Dispatch Box about the legislation that we were debating, but which was not then in place. We now have four or five years' experience of this legislation, and my hon. Friend the Member for Thurrock (Andrew Mackinlay) cannot point to one single case-and nor could my right hon. Friend the Member for Leicester, East (Keith Vaz) at the Home Affairs Committee-or any argument in fact showing that there was an imbalance between the two Acts. I repeat: they could not point to
one single argument. In relation to Gary McKinnon, of course, the issue is academic because he has admitted to the charges.
Mr. Douglas Hogg (Sleaford and North Hykeham) (Con): The right hon. Gentleman really must understand that there is a fundamental difference between the situation in the United States and here. The extradition of the UK citizen to the United States does not require prima facie evidence that the offence has been committed; the extradition of a US citizen to the United Kingdom requires probable cause. These things are different, and the matter must be looked at afresh.
Alan Johnson: I have been patronised by less wealthy people than the right hon. and learned Gentleman. Let me say to him that probable cause is defined in the US courts as
"reasonable grounds for belief of guilt";
while reasonable suspicion is defined by Lord Devlin like this:
"The circumstances of the case should be such as a reasonable man acting without passion or prejudice would fairly have suspected the person of having committed the offence".
The first point, then, is that that is as close as two different legal systems could be. The second point is that in all the years during which this treaty has been in place, there has not been an issue of fact that backs up the right hon. and learned Gentleman's argument. The third point is that this has nothing to do with Gary McKinnon's case because no one had to prove reasonable suspicion or probable cause, as he has admitted at least to a large chunk of the offences.
Mr. Tom Watson (West Bromwich, East) (Lab): I do not envy my right hon. Friend, who for the many years I have known him has always campaigned for justice. Is not the lesson from this case that there is at best a cross-jurisdictional opacity in the way we interpret treaties for alleged crimes conducted in cyberspace, which will be an increasing problem in the years to come, so we need a piece of work that looks at all our treaties and how we interpret this problem?
Alan Johnson: I, too, have great respect for my hon. Friend, and certainly for his expertise in this area. I have seen nothing, however, that suggests that there is any need for such an investigation or examination. Many cases now take place in cyberspace, and I think the courts are perfectly able to decide them and the prosecuting authorities to handle them. I see no need either in this case or in other cases of a similar nature under consideration at the moment, particularly those concerning extradition, to review how the law works in these circumstances.
David Davis (Haltemprice and Howden) (Con): I am not going to be rude to the Home Secretary because he is in a very difficult position-one forecast by Conservative Members in 2003 and then in 2006, when the right hon. Gentleman's Government put this foolish law in place. Much of what he said rested on legal advice. He will have seen from today's newspapers the comment from Geoffrey Robertson, the senior-very senior-human rights lawyer who said:
"To send a British citizen to the US, without any right to bail, to face 10 years in prison for a crime for which he would be unlikely to receive any custodial sentence if tried here amounts to 'cruel and unusual punishment' in breach of our 1689 Bill of
Rights. The home secretary should not hide behind the weasel words of the European Convention when he should be following the law laid down by our own historic bill of rights."
Will the right hon. Gentleman please answer that?
Alan Johnson: Yes, I read that piece. The courts-the district court, the High Court, the Law Lords, the European Court in Strasbourg-have all looked at this case and they have looked at it as against the law. Now there is an opportunity for them to look at it again. The right hon. Gentleman needs to recognise that the same arguments applied to the NatWest three. We were told about them that they would not get bail, but they did; we were told that they would spend two years in a maximum security prison, which they did not; and we were told that they would face 20 years in jail, which they did not. All the terrible things predicted to take place in the case of the NatWest three did not take place. The hon. Members for Chesham and Amersham (Mrs. Gillan) and for Tiverton and Honiton made the right point about what was the right time to look at those specific issues. At the moment, I believe that it is absolutely right that this extradition proceed, but there will be a time for a legal challenge.
Andrew Miller (Ellesmere Port and Neston) (Lab): I recognise the very difficult dilemma faced by my right hon. Friend, but is it not about time that we asked our American friends-I use the word "friends" deliberately-to examine the case again in the context of the benefits they have accrued through Gary McKinnon's work? Had he not masterfully broken through their security systems, those systems would be vulnerable today. It is about time the Americans recognised that. I am not in favour of people "testing" my burglar alarm, but in this instance Gary McKinnon has done a huge favour to the American state.
Alan Johnson: I do not accept that argument. It is akin to the argument that if people left their windows open-
Andrew Miller: He did not steal anything.
Alan Johnson: Please. The argument is that if someone is accused of serious criminal offences-and no one doubts that that applies to Gary McKinnon-
Andrew Miller: He did not steal anything.
Alan Johnson: My hon. Friend keeps saying that Gary McKinnon did not steal anything; I am not saying he did. What I am saying is that we do not judge such cases on the basis of whether or not it was easy to commit the crime, or whether the person involved made it easier for the crime to be committed. We do not do that in relation to any kind of offence, and we should not do it in relation to offences in cyberspace.
Mr. Crispin Blunt (Reigate) (Con): Having listened carefully to the Home Secretary, I conclude that he thinks that the actions of the United States authorities are reasonable in the circumstances. Does he also think that they are wise?
I think that they are reasonable actions. As for whether we would be in exactly the same position if someone had been hacking into the United Kingdom's defences over a 12-month period, with the same effect and at that particular time, and if that person had left
the messages that were left at that particular time, I am absolutely sure that Members would be outraged if the United States refused to extradite the person responsible to this country.
Rob Marris (Wolverhampton, South-West) (Lab): This is the sad case of a sad middle-aged man who is alleged to have deleted part of American security computer systems. That has led both Opposition Front-Bench spokespersons today to state in terms that anyone with Asperger's should never be extradited or tried. Does my right hon. Friend agree that that approach is an insult to people with Asperger's, who have a range of responsibilities and capabilities including, in some cases, criminal responsibility and criminal capability?
Alan Johnson: I agree that a diagnosis of Asperger's does not mean that it is a breach of human rights to be extradited to face trial for serious criminal offences. Every court in the land has said that, and it has been said by the highest court authority-the High Court. We will look at the facts again. We have looked at the fresh medical and psychiatric evidence, and that is open to be tested in the courts as well, but as yet the courts have decided that this does not approach article 3 severity.
Mrs. Iris Robinson (Strangford) (DUP): The decision will grate on the people of Northern Ireland, who for years have witnessed political and judicial protection for IRA terrorist murderers who fled to America and were never extradited despite many requests. In the light of that, will the Secretary of State reconsider his view?
Alan Johnson: I understand how deeply the hon. Lady feels about the issue, given her experience, but it is not my job or that of the courts-and I do not think any Member would suggest that it was-to make such quasi-judicial decisions on the basis of anything other than the law and anything other than the European declaration of human rights. It is absolutely not the case, in my view, that a decision such as this should be made on any kind of tit-for-tat basis which may or may not exist in respect of decisions that America may have made in the past.
Jeremy Corbyn (Islington, North) (Lab):
As the Home Secretary is apparently looking again at all the medical evidence and the issues surrounding the case, will he look again at the possibility of a prosecution being mounted in the United Kingdom to avoid the whole
issue of extradition? That would obviously bring an end to what is a very stressful experience for this young man.
Alan Johnson: At the risk of repeating myself, let me say that I will not look at all the medical evidence again. I have already looked at it; that is why the hon. Member for Enfield, Southgate has laid an urgent question in the House. Secondly, it is the job of the Director of Public Prosecutions to decide whether, and where, to prosecute. That has been upheld in the courts, and on 31 July the High Court refused permission to go to judicial review. That issue has now gone; the only issue left is whether extradition would breach Mr. McKinnon's human rights.
John Mason (Glasgow, East) (SNP): Tomorrow, we will debate the Equality Bill, which I support and whose aim is to protect people who are disabled. Does the Home Secretary not see an inconsistency between what the Equality Bill is intended to achieve and this decision?
Alan Johnson: I do not see any contradiction whatever. I am making a decision based on whether Mr. McKinnon's article 3 human rights would be breached. I am glad the hon. Gentleman and his party support the Equality Bill, but so far as I am aware, nobody is suggesting that people who are disabled should never be prosecuted.
Mr. Alistair Carmichael (Orkney and Shetland) (LD): When I was employed as a public prosecutor, it was my duty to make decisions on whether or not to prosecute based on what was in the public interest. The Home Secretary has got compelling evidence today that the decision not to prosecute exposes Gary McKinnon to the probable-if not the inevitable-risk of his committing suicide. I do not see how that can be in the public interest, and regardless of the question of judicial review, why, in these circumstances and with that evidence, is the DPP not being invited to reconsider his decision not to prosecute?
Alan Johnson: Because the High Court ruled, for the reasons I explained in my statement- [Interruption.] The High Court ruled that it was a matter for the DPP to decide- [Interruption.] Well, if the hon. Gentleman will just be quiet, I will give him the answer. The High Court decided, quite rightly, that it was the DPP's decision. He felt that the decision in this case was right. He set out the reasons why it was right-and I have set them out again in my statement-and he refused to allow judicial review. My deliberations have nothing to do with the decision to prosecute, or where to prosecute. My deliberations are about whether this decision breaches Gary McKinnon's human rights.
[Relevant documents: Thirty-second Report from the European Scrutiny Committee, Session 2008-09, Chapter 2, HC 19-xxx, and the First Report from the Committee, Session 20 09-10, Chapters 1 and 2, HC 5-i; and Sixteenth Report from the Treasury Committee, Session 2008-09, on the Committee's Opinion on proposals for European Financial Supervision, HC 1088, and the First Report from the Committee, Session 2009-10, Proposals for European financial supervision: further report, HC 37. ]
The Exchequer Secretary to the Treasury (Sarah McCarthy-Fry): I beg to move,
That this House takes note of the following European Union Documents-
(a) 3645/09, Proposal for a Council Decision entrusting the European Central Bank with concerning the functioning of the European Systemic Risk Board;
(b) 13648/09, Proposal for a regulation of the European Parliament and the Council on Community macro prudential oversight of the financial system and establishing a European Systemic Risk Board;
(c) 13652/09, Proposal for a Regulation of the European Parliament and of the Council establishing a European Banking Authority;
(d) 13653/09, Proposal for a Regulation of the European Parliament and of the Council establishing a European Insurance and Occupational Pensions Authority;
(e) 13654/09, Proposal for a Regulation of the European Parliament and of the Council establishing a European Securities and Markets Authority;
(f) 13656/09, Commission Staff Working Document-Possible amendments to Financial Services legislation-accompanying document to-
(g) 13657/09, Commission Staff Working Document-Impact Assessment-accompanying document to-
(h) 13658/09, Commission Staff Working Document-Summary of the Impact Assessment; and
(i) 15093/09, Proposal for a Directive of the European Parliament and of the Council amending Directives 1998/26/EC, 2002/87/EC, 2003/6/EC, 2003/41/EC, 2003/71/EC, 2004/39/EC, 2004/109/EC, 2005/60/EC, 2006/48/EC, 2006/49/EC and 2009/65/EC in respect of the powers of the European Banking Authority, the European Insurance and Occupational Pensions Authority and the European Securities and Markets Authority;
and endorses the Government's approach to setting up a new financial supervisory structure in the EU.
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