I beg to move, That this House do now adjourn.
Leave having been given on Tuesday 11 July under Standing Order No. 24.
Thank you, Mr. Speaker, for allowing this debate to be held on a matter of tremendous seriousness and urgency. We are all aware that tomorrow morning, three British citizens are to be extradited to the United States on the basis of an unfair, imbalanced treaty that the Government negotiated in secret and to which they devoted the most cursory parliamentary scrutiny imaginable. Although it is too late to alter the fate of the so-called NatWest three, except in terms of pressing for bail, in which we support any efforts that the Government are able to make, it is not too late to abandon that treaty, which is not yet in force in international law, but which we have chosen, inexplicably, to implement unilaterally.
We on the Liberal Democrat Benches have objected to the extradition arrangements with the USA ever since the text of the new treaty was published in May 2003. We spoke and voted against the orders implementing our end of the treaty in December 2003. We have tabled a Bill in the House to restore the need for prima facie evidence to be provided by US authorities when requesting extradition. We have supported in another place amendments to the Police and Justice Bill that would suspend our implementation of the treaty. The purpose of those parliamentary initiatives has been to prevent serious injustice for those who face extradition to the USA or may do so in future—injustice because the extradition treaty and its enactment through the Extradition Act 2003 is manifestly unfair to British citizens.
Several times in the past 24 hours or so, the hon. Gentleman has made the point that parliamentary scrutiny of the measure was minimal, but, in fact, the draft Bill was the subject of a fairly detailed Home Affairs Committee report. The Committee made a number of recommendations, many of which were sympathetic to his point of view, and some of which were implemented.
It is true that the report was published. However, the hon. Gentleman knows that the treaty was negotiated in secret and the text was only published two months later—a day before the Whitsun recess, I believe. Then, it was the subject of no more than 90 minutes’ scrutiny in the Committee.
Did the hon. Gentleman see the treaty before the report was published? I think not. The full text was published two months later.
In recent days, the Government have claimed in strong terms that the treaty is reciprocal—a claim repeated by the Prime Minister today. They say that the arrangements with the United States are, despite all appearances, reciprocal and equivalent. As my noble Friend Lord Goodhart said in another place last night:
“That is simply and totally incorrect.”—[Official Report, House of Lords, 11 July 2006; Vol. 684, c. 630.]
Let me explain. Article 8 of the UK-US extradition treaty sets out the new procedures between the two countries. It states that the requesting country—either the United Kingdom or the United States—must provide
“a statement of the facts of the offense(s)”.
Then, in paragraph 3(c), an additional burden is placed on the United Kingdom when requesting an extradition from the United States. The provision requires:
“for requests to the United States”—
to the United States only—
“such information as would provide a reasonable basis to believe that the person sought committed the offense for which extradition is requested.”
That fulfils the now well known requirement for “probable cause” for extradition from the United States, in line with the terms of the US constitution. However, there is no requirement for any corresponding information for extradition from the United Kingdom.
Before the issue hit the headlines, the Government admitted that lack of reciprocity. In a Committee of the House on 15 December 2003, the hon. Member for Don Valley (Caroline Flint), then a Home Office Minister, said:
“when we make extradition requests to the United States, we will need to submit sufficient evidence to establish ‘probable cause’.”
She acknowledged that that is a lower test than the previous prima facie standard, but added that it was
“a higher threshold than we ask of the United States, and I make no secret of that.”—[Official Report, Third Standing Committee on Delegated Legislation, 15 December 2003; c. 7.]
In another place, on 16 December last year, the noble Baroness Scotland repeated the same sentiment in almost identical terms.
Those admissions of two and a half years ago are in total contrast to the Prime Minister’s statement to my right hon. and learned Friend the Member for North-East Fife (Sir Menzies Campbell) last week, that
“it is not true that the United States has a different evidential burden from this country. The probable cause, which is the burden that the United States places on countries that want to extradite from the United States, is analogous to what we now provide under the Extradition Act 2003.”—[Official Report, 5 July 2006; Vol. 448, c. 807.]
The Government cannot have it both ways. The treaty does, as I have explained, place different evidential burdens on the two parties. Either it is not reciprocal, as Ministers have repeatedly confirmed for months, or—miraculously—it is now reciprocal, in accordance with the Prime Minister’s pronouncements last week and today.
I want to understand the point that the hon. Gentleman is making. He is saying that the treaty between the United States and the United Kingdom is asymmetrical. Can he tell us which extradition treaties are exactly symmetrical?
I know of no other extradition treaty that is as asymmetric as that treaty. All the extradition treaties covered by the Extradition Act 2003, as the hon. Gentleman probably knows, are almost entirely reciprocal. That is why they are covered by the Council of Europe convention and the European arrest warrant, which are founded on a symmetrical relationship between the two parties.
Would the hon. Gentleman care to tell the hon. Member for North Swindon (Mr. Wills) that the 1972 treaty between the United States and the United Kingdom was extremely balanced?
Indeed. For reasons that seem to have escaped the Prime Minister and other members of the Government, it was balanced between the burden of probable cause in the United States and the necessity for the US authorities to present prima facie evidence in British courts. At the time, that treaty was considered by all legal experts and Government Ministers to be balanced in its application.
I accept that the prima facie burden was slightly higher than probable cause, but we have wildly over-compensated by removing the prima facie burden altogether.
To return to the NatWest three, that case is not the be-all and end-all of this debate. It is the tip of the iceberg, and it has highlighted a wider problem—the Government signed a lopsided treaty that short-changes the interests of British citizens and people under our judicial protection. It may be the case, as the Prime Minister suggested today, that the extradited individuals could have been extradited under the terms of the 1972 treaty. It is perfectly possible that in initiating extradition proceedings against the NatWest three, the US authorities presented sufficient evidence to meet the higher hurdles under the 1972 treaty. The point is that we do not know, because under the new provisions, there is no cross-questioning or examination of the substantive evidence that they present. Much more importantly, they are not required to present the amount of evidence that could have been presented in the case of the NatWest three—a non-requirement that will apply to all future cases.
I have a great deal of sympathy for the points that the hon. Gentleman has made, but he was in the Chamber when the Prime Minister responded to the question from the right hon. and learned Member for North-East Fife (Sir Menzies Campbell). The worry for the families of the NatWest three is that they will go to the United States and stay there for years and years before the case is concluded. Was the hon. Gentleman not reassured by the Prime Minister’s comments that there will be no opposition to an application for bail which, of course, will allow those three individuals to return to the United Kingdom?
The courts in Houston, Texas must determine bail terms—they are notoriously stringent—but, of course, we welcome any measures by the Government to facilitate the granting of bail to those three individuals.
The Government have got themselves into that sticky situation by eagerly enforcing our obligations under the treaty and failing to exert, until very late in the day, meaningful political pressure on the United States to do likewise. There is no excuse, however, for the mess in which we find ourselves. The Government repeatedly argue that, because we do not demand prima facie evidence from Council of Europe countries—Albania and Azerbaijan are the most salubrious examples in the long list of countries cited by the Government—we should not demand it from the US. Broadly, because the US is a “mature democracy” we should not have any qualms about extraditing British citizens there.
I should like to make three quick observations. First, as I mentioned, we have reciprocal agreements with those countries, but none of the arrangements have such wildly differing evidential burdens. Hence our support for the European arrest warrant which, as I said, is based on symmetry between the parties that entered into it, and is reciprocal between nations. The US-UK agreement, by contrast, is unique in its lopsided provisions. Secondly, Council of Europe countries are all signatories of the European convention on human rights, which is not binding on the United States. Any contravention of the ECHR by a Council of Europe state subsequent to extradition can be reviewed by the European Court of Human Rights, but such judicial review is not available to individuals extradited to the United States.
Does not the hon. Gentleman agree that the human rights conditions were met in the various courts that those gentlemen have been through in this country. Is not that sufficient? Has not the hon. Gentleman been unduly influenced by a public relations campaign funded by multi-millionaires who have made a packet from selling shares in Enron?
As the hon. Lady must know, the courts merely heard the appeal against the application for extradition, which they could consider only in the limited terms of the 2003 Act. The courts have no power to second-guess an application made by the US authorities—[Interruption.] The Home Secretary has now said on several occasions that the US is not in Europe. I am well aware of that fact. However, he may need to reflect a little further on it, because we keep being told by the Prime Minister—and may be told by the Home Secretary and his Ministers—that there is no reason why we should not grant exactly the same provisions to the United States as to European countries. As I have explained, however, those arrangements were framed in the context of the ECHR, the conventions of the Council of Ministers and the legal terms of the European arrest warrant, which completely—legally and politically—sets the European examples apart from the US examples.
I am simply trying to say that on 22 November 2005, eight months ago, when a colleague of the hon. Member for Sheffield, Hallam (Mr. Clegg) was present, the Select Committee on Home Affairs went into a great deal of detail on those questions with my hon. Friend the Member for Leigh (Andy Burnham), then the Under-Secretary of State at the Home Office. I have some sympathy with the questions that the hon. Member for Sheffield, Hallam is putting, but they were all put eight months ago so why has he waited until now to raise them again?
I hazard the suggestion that even eight months ago it was too late; the decision was taken on 15 December 2003, by order, to enact our side of the extradition treaty with the United States. As the hon. Lady may know, the only Members who objected at that point—when the House could have stopped the process—were Liberal Democrats.
I want to refer to scale. The United States is by a long way our largest extradition partner. There are between 15 and 20 ongoing requests for extradition from the United States to the United Kingdom, and in 2005 13 people were extradited to the US—the highest number in five years and more than double the figure in 2003, just before the provisions of the bilateral treaty came into effect.
Given the sheer number of requests made by the US compared to other countries, and the fact that the US has increasing ambitions for extra-territorial prosecutions, it is vital that the treaty is fair to the British people. But events have already proved without doubt that it is not. Surely questions must be asked when Ian Norris, a former chief executive of Morgan Crucible, can be extradited for price-fixing, even though during the period he was alleged to have committed the offence it was not a criminal offence in the UK.
Will the hon. Gentleman underline the fact that one of the reasons why many Conservative Members supported the measure in the Chamber was that we thought it was to be used against potential terrorists? That is why there were grounds for passing the legislation; we did not expect the Government to encourage its use for purposes such as those we are discussing.
The hon. Gentleman makes a valid point, although I am duty-bound to point out that it would have been helpful if he had listened to some of the arguments made from the Liberal Democrat Benches two years ago, which put the measure into a wider context. However, even if we consider the treaty only as part of the battle against terrorism, serious questions must be raised. For example, Lotfi Raissi, the Algerian pilot wrongly accused of training the 11 September hijackers, would have been extradited to the US under the provisions of the new treaty, but he was protected under the old one because the US could provide no evidence whatever that he was involved in the plot.
I realise that the hon. Gentleman is coming towards the end of his speech and that he has understandably and necessarily rested his arguments so far on issues relating to extradition and treaties, but does he share my concern about the impact on the confidence of people engaged in commercial relationships with the United States of America of what I consider an abuse of the treaty?
The impact on the confidence of the British business community in its dealings with the United States is very considerable indeed.
The case is not, as the Government would have us believe, merely a technical issue to be debated on legalistic points; it is causing serious consternation in the business community where fears of doing business in the US are increasing. I should be interested to learn from the Solicitor-General whether he agrees that the Chancellor’s City taskforce should consider the damage the case could do to our world-class financial services industry.
I need to make progress, as many Members want to speak on this important topic.
It is more than three years since the Government signed the extradition treaty with the United States, two and half years since the secondary legislation introducing that treaty was passed and less than 24 hours before the high-profile individuals who have brought such attention to the treaty will leave the country for a Texan jail. We should have debated the treaty years ago, but we did not have the chance, thanks to the Government’s continued disregard for the opinions of the House.
The treaty was negotiated in secret, signed by royal prerogative and announced merely in a written statement, offering the House no chance to question the Home Secretary on the wisdom of his actions. The text of the treaty was published two months later on 21 May 2003, as I mentioned earlier, the day before the Whitsun recess, thus reducing the chances of parliamentary scrutiny. The Extradition Act was piloted through the House by a junior Minister, with the Home Secretary making no comment on its progress. The secondary legislation was passed in a Committee that sat for barely 90 minutes.
Until the case started making daily headlines, the Government had made no attempt to persuade the United States to keep its end of the bargain and ratify the treaty; indeed, we know that as recently as March, during the US Secretary of State’s last visit to the UK, the Foreign Secretary did not even mention the issue. And the Government had to be forced, by Mr. Speaker’s decision, to come to the House today to hear this debate.
Much emphasis has been put on the Senate’s failure to ratify the treaty. Surely, we should be asking why we have no ratification process in this country similar to that enjoyed by the US Senate. Why is there no proper parliamentary scrutiny, and no written constitution to protect us from the Government’s willingness to hand away vital legal protections?
It is six years since the Wakeham Commission on Lords reform proposed proper parliamentary scrutiny of treaties in Parliament. The Government must take action. First, they should recognise the force of opinion among the public and in another place—where the Police and Justice Bill has been amended to repeal our part of the treaty—and revoke the 2003 order immediately so far as it applies to the USA. Next, the Government should renegotiate the 2003 treaty to make the extradition test reciprocal. Finally, they must introduce proper parliamentary scrutiny of treaties, and amend the royal prerogative so that international agreements can no longer be entered into without meaningful reference to the House.
To listen to the hon. Member for Sheffield, Hallam (Mr. Clegg), we might think that the 2003 treaty had some relevance to whether the Enron three were extradited. In fact, if the treaty had been ratified it would have made not a blind bit of difference to whether the three were extradited.
Let us consider what the treaty would change if it was ratified. It would introduce a sentence threshold of 12 months for both sides and increase the number of offences covered, and temporary surrender would be allowed. In terms of the amount of proof required, it would change little. Indeed, in terms of the test, it would change nothing; the procedure would be changed but the actual test would not. As my noble and learned Friend Baroness Scotland made clear in another place yesterday, it would improve some of the procedures, but none of that would change anything for the Enron three.
Let me be clear: we want the treaty ratified, which is why Baroness Scotland will be going to the United States shortly to discuss with US Senators the need to ratify the treaty. We have the support of the White House. We need the support of the Senate.
My hon. and learned Friend has mentioned the test and the question whether it will be changed. Will he elaborate on the test for the House, because I understand that we are discussing a two-door test, rather than the over-simplification that we heard from the Liberal spokesman?
It is important to consider how the tests operate and how they operated in relation to Enron. As my hon. Friend has said, there is a double-door procedure in relation to extraditions from this country to the US and in the opposite direction—in effect, there is a door in the US courts and a door in the UK courts—and both those doors must be passed through in order to extradite someone either way. In order for us to apply to extradite someone from the US, we must issue a letter based on information from the UK, which is the first door, and we then have to show probable cause in a US court, which is the second door.
In order for the Enron three, for example, to be extradited from the UK, both doors must be passed through in the opposite direction. A grand jury must have a case shown to it that there was probable cause to issue an indictment in the United States, which is the first door. The second door is that a UK court must be satisfied that there was sufficient information to justify the issue of a warrant for arrest in this country, if the offence had been committed here. If a police officer were to apply for a warrant in front of a magistrate for an offence in this country, he would have to satisfy the magistrate that a criminal offence had taken place or that one was suspected to have taken place and that an identified person was suspected of having committed that offence.
The test is higher than mere suspicion, because in the US the phrase “probable cause” means that the person who is asking to arrest someone has a reasonable basis to believe that a crime has been committed and that that person committed the crime, which is more than reasonable suspicion. If we were to return to the pre-2003 situation, the US would have had to prove a prima facie case, which is a much higher test.
When the right hon. and learned Member for Folkestone and Hythe (Mr. Howard) was Home Secretary, there was an imbalance in the tests that were applied in different countries. That balance was enormously disadvantageous to the United States, the effect of which was that it sometimes took 30 months to extradite someone—one case took 10 years. How can he justify that?
I will deal with that, Mr. Deputy Speaker, when, if I am fortunate enough to catch your eye, I have the opportunity to contribute to the debate. Why has the Solicitor-General used the wholly prejudicial description “the Enron three” in relation to those British subjects, when the company that they are accused of defrauding, NatWest, is British, and when the British authorities have decided to take no action in respect of acts committed in this country? Why has he engaged in that entirely prejudicial description of those British subjects?
It is interesting that the right hon. and learned Gentleman should rise at this point. We have heard Opposition Members say that we should return to the prima facie test, which predated the Extradition Act 2003, but let us see what the district judge, Judge Evans, said about the case:
“Although this case proceeds under the Extradition Act 2003, the request was prepared to meet the requirements of schedule 1 to the Extradition Act 1989.”—
a Conservative measure.
“There is therefore available affidavit evidence giving considerable factual detail of the allegations. As a matter of interest, that evidence makes a case to answer.”
The learned district judge took a clear view in relation to the prima facie case.
The Solicitor-General is in danger of making a very bad point. The major difference was that those who appeared in front of the district judge were not, under the new rules, allowed to examine or explore whether there was a prima facie case, because the new rules do not allow that to happen. So to argue that the material that was originally submitted might have been sufficient to establish the case does not answer the question that the Solicitor-General has posed to himself, because those who appeared in front of the district judge could not carry out any examination of that material.
Half a dozen hon. Members are trying to get me to give way, Mr. Deputy Speaker. Perhaps it would be helpful if I were to deal with the points that have been raised already. If the hon. Member for Henley (Mr. Johnson) keeps his hair on, I will get to him, too.
The Enron three are to be extradited—
Today’s debate seems to have been prompted by the pressing case of the NatWest three. Does my hon. and learned Friend know whether the Liberal Democrats or the Conservatives ever protested about the case of Mr. Babar Ahmad, a UK-Asian heritage Muslim, as I did one year ago?
If the Solicitor-General is persuaded by the view of the district judge that there was evidence against the NatWest three, will he explain why the Home Office is so resolute in refusing to set in motion a procedure that would allow them to be tried in this country, where the offence, if it took place, was committed?
I do not blame the Enron three for the substantial publicity campaign that they have generated in order to prevent their extradition, nor do I blame the hon. Gentleman, who has done a good job of defending his constituent. Like all accused, the three individuals are innocent until proved guilty, and they may well be acquitted. No one, least of all the Enron three, has claimed that there is no evidence against them. [Interruption.] They have been accused of very serious crimes. [Interruption.] The allegations have been reviewed—
Order. Mr. Speaker granted this debate because he regarded it as a matter of genuine urgency and because there was great concern throughout the country about the issue. It is right and proper that the matter should be discussed in a dignified and moderate manner, which is being impeded by too many interventions and sedentary comments.
On a point of order, Mr. Deputy Speaker. The debate began with a discussion of the treaty, the imbalance in the treaty and the application of the treaty, but references have been made to the current cases which have caused so much concern. Quite properly, our proceedings are governed by a sub judice rule, and we do not normally debate the merits of individual criminal allegations or their handling in the courts. We are reaching the stage at which the language to describe the three suspects is being used to indicate on which side of the argument a particular hon. Member stands. I realise that the difficulty has arisen suddenly and taken you by surprise, but I suggest that the repeated use of such language, particularly by the Solicitor-General, is taking us dangerously near to inviting hon. Members to indicate by a thinly disguised formula their views on the merits of the case, which is presumably going to be tried.
On a point of order, Mr. Deputy Speaker. This is an important debate, and it is bound to be listened to in the United States. The fact that the Solicitor-General appears to be indicating by the language that he is using that he or the Government think that there is a strong case against these individuals will be prejudicial to those individuals. The Chair always has an ability to extend existing precedents. Mr. Speaker did so last week with regard to a question put to the Prime Minister about the Deputy Prime Minister. It would be perfectly proper for you to extend that rule to cover this situation.
If the right hon. and learned Member for Sleaford and North Hykeham (Mr. Hogg) had been listening, he would have heard me say that these three individuals are, like all accused people, innocent until proved guilty, and they may well be acquitted in a US court.
No. I have given way rather a lot, and I want to proceed with my argument and to deal with some of the points that have been raised.
When challenged in another place in relation to the term “Enron three”, my noble Friend Baroness Scotland quoted paragraph 66 of the High Court judgment, which states:
“Enron was deceived into parting with US $20,000,000.”
It is the description that is broadly used. If people are offended by it, I wish to make it clear that there is no indication that these men are anything other than innocent until proved guilty, like all persons who are accused.
The allegations in this case have been reviewed at length by our courts, which say that the three individuals should stand trial in the United States. The men want their trial to take place in the UK, if trial there is to be. In dismissing their case, the High Court found that their argument was wholly unsustainable and that the extradition was lawful and in accordance with their human rights. The Serious Fraud Office has declined to prosecute—
May I deal with the point raised by the hon. Member for Henley?
The Serious Fraud Office has declined to prosecute the case in the United Kingdom for a range of reasons, including the fact that no complaint has been made in this country and because the main evidence, in the form of the alleged conspiracy and the witnesses, is in the United States, where the case is well advanced. That is where the alleged conspiracy took place. The three individuals are British citizens resident in the UK. They were employees of a UK bank responsible for a number of bank clients, including a subsidiary of Enron in the United States. Enron’s headquarters are in Houston, Texas. [Interruption.] They were in Houston, Texas. Its bank had offices there, as well as in London. Some of the key witnesses, including Mr. Michael Kopper, the managing director at Enron, and Mr. Andrew Fastow, Enron’s chief financial director, are in the United States.
A crucial meeting is alleged to have taken place in Houston on 22 February, attended by the defendants, which US lawyers say played a central part in the case. The US prosecution alleges that it was a secret meeting with Enron’s chief financial officer, Mr. Andrew Fastow. The allegation is that the three individuals had access to information that enabled them to let their bank undertake certain financial transactions.
I will give way to the hon. Gentleman in a moment; let me put my argument first.
I will not go into the list of transactions, which are complex, but the prosecution alleges that the defendants conspired with US co-conspirators to deceive Enron into parting with $20 million, and that both Enron and NatWest were defrauded. It is alleged that the defendants got $7.3 million, which derived from Enron and represented the sale of the bank’s interest in a company called Swap Sub.
I will give way to the hon. Gentleman when I have finished these points, as I know that he is concerned about this issue in relation to his constituent.
On 14 January 2004, Mr. Fastow pleaded guilty on two counts, including conspiracy to wire fraud. There was also a plea agreement entered into with Mr. Kopper. In this, it became clear that allegations had been made, including this claim by Mr. Fastow:
“In…February 2000, I and others, including three bankers employed by NatWest, participated in a scheme to extract…increased value by defrauding Enron and NatWest.
Enron paid $30 million for the Swap Sub buyout. That price was based on my misleading representation to Enron that the limited partners of Swap Sub had agreed to sell their interests in Swap Sub for $20 million and $10 million, respectively. In fact, NatWest had agreed to sell its interest for only $1 million, not $20 million. I knew that the NatWest bankers induced NatWest to sell its interests in Swap Sub for $1 million at a time they knew the interest was worth significantly more.”
In summary, the SFO took the view that the case involved an allegation that UK-based employees conspired with US Enron executives. The main evidence was in the USA—that is, the co-conspirators. As the conspiracy took place there, no complaint has been received in the United Kingdom. The fraud could not have occurred without the complicity of the Enron executives, some of whom were key witnesses. The case was well advanced in the USA, and it was thought that in the overall interests of justice it would be best dealt with by one court in the USA.
Mr. Justice Evans made a very important point that I want to put to the hon. Member for Henley:
“The reality is that were the SFO to commence an investigation, then, by the time they were ready to launch a prosecution, there would be defence submissions inviting the court to stay the prosecution as an abuse because of what by then would be considerable delay. Additionally and crucially, Kopper and Fastow are important witnesses for the prosecution. They are readily available to give evidence in the States and not in the UK.”
Nothing that the Solicitor-General has said contradicts the central fact that these are UK citizens who, if they committed any crime, committed it against a UK company in the UK. Everything that he has said is completely irrelevant next to the central point that under American jurisdiction they would be able to challenge in an American court the stream of allegations that he has made against them before they were extradited to this country. Under the arrangements that his Government have entered into, it is not possible for them to have the allegations that he has made in this House tested before a court in this country before they are sent for trial in America. That is the point of this debate.
The point of this debate is to deal with the issue of whether there is an imbalance between the various requirements of the treaty and the Extradition Act 2003. When the hon. Member for Sheffield, Hallam put his case, he seemed to be arguing about the Act, not the treaty. The Act enables people against whom there is a reasonable suspicion of having committed serious offences imprisonable for more than one year to be extradited to another country. The Liberal Democrats seem to want to suspend that provision in relation to the United States in particular.
It will be interesting to discover what the Conservative position is. Yesterday, we had the bizarre situation whereby Baroness Thatcher went into the Lobby in another place to vote to deny to the United States the sort of provisions that are currently available to Russia, Azerbaijan, Albania and a whole range of other countries with which we have a similar provisions.
Perhaps the Solicitor-General could take this opportunity to clarify a matter around which there is a degree of muddle. We talk about part 2 territories, which include the United States and Russia. Will the Solicitor-General identify which part 2 territories have been given special privileges under section 84(7) of the 2003 Act, which enables extradition to take place without the submission of prima facie evidence?
The hon. Gentleman knows perfectly well that we are applying a similar test to the United States as we apply to a range of other countries, including South Africa, Azerbaijan, Russia, Australia and New Zealand. Is he seriously saying, on behalf of the Conservative Opposition, that the US legal system has inadequate safeguards for defendants and cannot be trusted to deal properly with cases such as these, compared with a whole range of other countries from Russia to Albania? If the Conservative Opposition are getting themselves into that position, they are digging a very deep hole indeed.
Will the Solicitor-General give way?
Let me make my point, then I will give way.
I remember that when the right hon. and learned Member for Folkestone and Hythe was Leader of the Opposition, he managed to become involved in something of a fracas with the United States. The hon. Member for Sheffield, Hallam asked whether we should be concerned that our economy could be affected by damaging our relationship with the United States. It is important that we have a relationship with the United States that pays respect to a legal system that may have diverged from ours to some extent 200 years ago, but which still has substantial safeguards for defendants in its courts. We should respect that. Some might decide not to do so, and if the Conservatives decide to put themselves in the position of saying that the US courts cannot be trusted, they are going to get themselves into a very difficult position.
The answer to the entirely spurious point that the Solicitor-General is making is that the arrangements that we have with all the other countries to which he has referred are entirely reciprocal. The objection that is being made from this side of the House to our arrangements with the United States is, as Baroness Scotland acknowledged in another place in December 2003, that they are not reciprocal. That is the key question; that is the distinction. Why does the Solicitor-General keep referring to those other countries in this thoroughly misleading way?
The United States has always required extradition on the basis of probable cause. Indeed, under its Bill of Rights, all criminal cases are determined in that way. The probable cause requirement is an evidential test that is enshrined in its Bill of Rights. The United States is not going to change that requirement, and we are not going to ask it to. Parliament has decided—correctly, in my view—that a probable cause standard of evidence, involving
“information which would justify the issue of a warrant for the arrest of a person”,
should be required of countries such as Canada, Australia, New Zealand, the USA and others. Parliament considered the extradition treaty and ensured that it had robust safeguards against unfairness, to protect individuals. Those safeguards were dealt with in the courts. There was a lengthy process that dealt with the three individuals, who were able to go before the court and argue their case.
Individuals may only be extradited for conduct that is also criminal in the UK. This is a dual criminality test which has to be established before a district judge in the UK and can be challenged on appeal.
I am most grateful to my hon. and learned Friend. I am following his arguments closely. What concerns the public and the families of the accused—whether we call them the Enron three or the NatWest three—is the issue of bail. They will be travelling all the way to the United States and staying there for months, or possibly years. We heard from the Prime Minister at Prime Minister’s questions that the Attorney-General had spoken to the United States Justice Department. What new information does the Solicitor-General have for the House that will reassure the public and the families of those concerned that the three might be granted bail?
I can tell my hon. Friend that discussions have taken place between our Attorney-General and the United States Attorney-General, Alberto Gonzales, who has indicated that the US prosecution will not oppose bail. It will of course be a matter for the court to set the appropriate conditions, and it will be a matter for the defendants to agree to those conditions. I hope that that will provide some reassurance.
No, I have taken a lot of interventions. I have great respect for the hon. Gentleman, who is a close neighbour of mine, but I have now been speaking for 25 minutes without managing to reach some of the core arguments that I want to put before the House.
No, I will not give way. I respect the hon. Gentleman and I apologise to him, but I must make some progress. I do not propose to stay on my feet for much longer, as there are many others who wish to speak in the debate.
The first myth is that the Extradition Act 2003 is intended solely to deal with terrorists. We heard that from Conservative Back Benchers. In fact, the Act covers all manner of crimes serious enough to attract a maximum sentence of more than 12 months’ imprisonment. That was clear throughout the passage of the legislation. It was not drafted in response to 9/11, as has also been suggested. Its origins lay in the early development of the European arrest warrant in 1999, and it was intended to update an extradition system that dated back to Gladstonian times. The Home Office published a review in March 2001—I emphasise the month, because it was well before September—to set out the basics of what was to become the Act. Although much was made of fraud cases, the majority of cases brought under the Act are likely to include murder, rape, drugs, money laundering, child pornography and robbery. It will also help to extradite people accused of terrorism, but the basis of the Act predates 9/11 and it is a myth that that is not the case.
A further myth is that the US needs to provide us with more information when making a request. Indeed, I heard the hon. Member for Sheffield, Hallam on Radio 4 this morning saying that the US needed only to prove the identity and whereabouts of a defendant, and not much else. That is not the case. In order to meet our information requirement, the United States needs to supply information that will provide a reasonable basis to believe that the person sought has committed the offence for which extradition is being requested. Based on the evidence that the courts have heard, it has achieved that in the case of these three individuals.
I will not give way. With the greatest respect to the hon. Gentleman, I am trying to make some progress.
Would the United States have been able to prove a case to the higher standard of a prima facie case? We have already heard the district judge take that view.
I appreciate that the Solicitor-General is dealing particularly with the case of Mr. Bermingham, Mr. Darby and Mr. Mulgrew, but will he confirm that other extradition cases are pending? Because those cases post-date the implementation of the 2003 Act, the kind of material that establishes a prima facie case is simply not being delivered. In the Morgan Crucible case, for example, the documents are very scanty indeed, yet they are still sufficient to give a basis for extradition.
Exact reciprocity between different legal systems is probably impossible. The US and UK legal systems diverged 200 years ago, and it is our view that probable cause and the UK’s information requirement are the nearest rough and ready parity that we are reasonably likely to be able to achieve in any reasonable circumstances. It is clear that the arrangements that existed before the Extradition Act 2003 were grossly unfair to the United States, because they required a much higher level of proof to extradite someone from the UK to the United States than the other way round. It often took 30 months to extradite someone. In one case, it took 10 years. The US system of probable cause is a lower test, and those we seek to extradite are normally removed to this country within about five months. We do not want to go back to a situation—as Opposition Members seem to want to—in which it takes 10 years to extradite someone.
We have modernised our extradition system to recognise the nature of global crime, and we do not want to send it back to the Victorian era. Exact reciprocity between two legal systems is almost impossible to achieve. We have been asked to look at the particular question of reciprocity many times since it was first raised during the passage of the 2003 Act, when we thought that probable cause might be a slightly higher test than others. We have gone into that in great detail. We have discussed the matter with the US, and we are entirely satisfied that it interprets the phrase that I have just used—such information as would provide a reasonable basis to believe that a person sought to commit the offence for which that extradition is requested—in a way that is broadly equivalent to our approach. That is our view, and I hope that Opposition Members will accept that there is such a view—that although the approaches are not entirely equivalent, they are broadly so, in a rough and ready manner. It may well be the case that probable cause is a slightly higher test than information, but we must remember that there is a two-door scenario going both ways. The test has to be proved to a probable-cause standard going both ways; that test is in the US courts. What we want is the treaty ratified, in order to ensure that other procedural benefits are put in place to make those whole procedures much faster and to ensure that we are able to extradite those persons who ought properly to be extradited.
The three individuals in this case face very serious allegations. Their case has been reviewed at length in the UK courts. It is a myth that this matter is all about events in the UK alone; that is pure myth. They are innocent until proved guilty, as are all accused. But we must remember that Enron was the biggest fraud in US history, and the US authorities are very concerned about any issues relating to it. The balance in the test for extradition that exists between the two countries is not identical but it is very similar. We believe that the treaty that we have entered into is the right one, and we also believe that about the Extradition Act 2003.
That Act is the real focus, not the treaty. This debate is all about that Act; it is about whether an Act that this House passed—that this House voted for—is the right Act. Those Opposition Members who will shortly speak need to decide what their position is on that; they were prepared to acknowledge the importance of dealing with these issues on a previous occasion, but are they still prepared to do so, or are they going to put themselves on course for another confrontation with the United States?
What we need is fairness. We have a broad level of fairness in the Extradition Act. We want to ensure that we keep that level of fairness, and that the Acts of Parliament passed by this House—Acts which were the right ones when they were passed, and which are the right ones now—are the Acts on which our courts are able fairly to decide cases.
I am sorry that those of us attending this debate on such a serious issue—which was fairly opened by the spokesman for the Liberal Democrats, the hon. Member for Sheffield, Hallam (Mr. Clegg)—should have been treated in the Solicitor-General’s response to a strange mixture of polemic and crude defence of the Government’s position in a particular case, although I have some sympathy with the Government on the issues of that particular case, as I shall make clear. Only at the very end of his speech was he prepared to start to deal with some of the underlying issues involving the UK-US extradition treaty and, as he rightly said, the proper operation of the Extradition Act 2003, which ought to be of concern to this House because, as often happens when we pass legislation, we can end up with the law of unintended consequences.
The Solicitor-General has given the impression that the current media anxiety—which is clearly shared by the public, if the volume of e-mails that I have been receiving is anything to go by—is in some way manufactured, and, indeed, that it was suggested by a public relations agency. I rather doubt that that is the case. It seems to me that the events that have surrounded the extradition of Mr. Bermingham, Mr. Darby and Mr. Mulgrew to the United States have exposed misgivings on the part of the public about how the extradition arrangements between us and the US are operating. That must be a legitimate topic of debate in this House; it is what we are here to do. If we indeed made a mistake in respect of the Extradition Act 2003 three years ago, or in respect of our treaty with the United States, it is high time that we considered those issues.
Does the hon. Gentleman agree with the views expressed by my hon. Friend the Member for Sheffield, Hallam (Mr. Clegg), and by many others, first that there should only be implementation of a treaty to which we are a signatory when the other signatory also implements the treaty, so that there is reciprocity in respect of it coming into effect, and secondly that all such treaties should be subjected to proper parliamentary scrutiny before they are signed on behalf of the United Kingdom Government?
I entirely agree with my right hon. and learned Friend, and I shall also return to that point shortly.
I shall start with a few general points, because it is important that we get them clear. First, I have no idea whether Mr. Bermingham, Mr. Darby or Mr. Mulgrew are guilty or innocent of the offences with which they are charged—indeed, that outcome is irrelevant to our debate. Secondly, regardless of whether people are innocent or guilty, the process by which we extradite individuals to foreign countries to stand trial can be onerous: during the trial process, they are removed from proximity to their families; they are sometimes in foreign countries—not only the United States—with different cultural practices; and the conditions of imprisonment can be very different from those that prevail in this country. Those are not reasons why we should not extradite people, so long as we are satisfied with the fairness of the trial process. We are perfectly prepared to contemplate that. This country has been doing that, and the comity that exists between nations makes it important that we preserve that position.
I say this to the Solicitor-General because I hope that it might provide a quieter and calmer framework within which we can debate the issues. The problem arises because the Government perfectly sensibly chose to renegotiate the existing 1972 treaty with the United States of America. They had good reason to do that, because the old treaty had many flaws. The Solicitor-General has not touched on them, and I will not go into them in detail, but there were issues to do with time limits and temporary surrender, and there were handicaps, as has often been pointed out in the House, to do with extraditing certain types of United States defendants to this country, particularly if they were Irish nationals wanted for terrorist offences. To embark on renegotiation was perfectly sensible, and it was also perfectly sensible for those involved in that process to consider our own practices, particularly in light of the fact that the Extradition Act 2003 was in contemplation at the time.
The problem arises because, in negotiating that treaty, the Government allowed themselves—the expression used by Lord Mayhew in the other place was correct—to be treated like patsies in relation to reciprocity of implementation. They had a treaty that had some mutual advantages, although I do not think that its terms were sufficiently well scrutinised, but they gratuitously chose to give them to the United States without deriving any benefits for ourselves under it by giving the US privileged status under the Extradition Act 2003. I will return to that. When Baroness Scotland in the other place or Ministers in the House of Commons express their sadness, irritation, annoyance or anxiety on behalf of those in this House and the general public that the United States has not ratified the treaty, they have only themselves to blame for what happened. A little realpolitik dictates that those who give people everything that they want without asking for the return that they were promised are never going to get that return. I gather that Baroness Scotland is going to the United States—she may be flying over at this very moment—to supplicate the US Attorney-General, but the truth is that she cannot persuade Congress, which is made up of some pretty hard-headed individuals, unless they decide that there is something in it for them. There is a fundamental failure of government here, and although it does not reflect badly on the Solicitor-General or the Law Officers, it certainly reflects very badly on the Home Office.
My right hon. and learned Friend makes a valid point. The Government should consider giving a terminal date to the United States by which ratification on their side must take place, or we should go back to the drawing board. The reason why we should go back to the drawing board is that the treaty raises a number of difficult issues that this House has not properly considered.
Does my hon. Friend agree that the way in which the Solicitor-General skipped over the ratification point was a disgrace? If the Government feel strongly about ratification and want to put pressure on, one thing that the Home Secretary surely could do is to refuse to allow any extraditions until ratification takes place.
It is open to the Home Office to suspend operation of the designation of the United States as a part 2 territory with special privileges. That could be done by the signature of the Home Secretary at any time, and if I were in his position, I think that I would do just that.
Does the hon. Gentleman agree that it is possible that Congress will never agree to sign this treaty? It is clear from the history of cases of a political nature where people were not allowed to come back, particularly those involving Irish terrorism, that there are those in the United States who will never accept that British courts have a right to try anyone from Ireland.
I agree with the hon. Lady and that point is a source of concern. The history—or non-history—of the ratification process strongly suggests that ratification may never happen. Indeed, the only way that it will is if this Government have the courage to point out to the United States that the privileges that we are giving to them, and which are of advantage to them and their criminal justice system, will be withdrawn. That, I am afraid, is how diplomacy works. Given that that approach has been abandoned for the airy-fairy concepts that have governed the Government’s dealings with the United States since then, we should not blame the United States if, when it comes to the crunch, they look to their own advantage in these matters. It is only when countries on both sides look to their own advantage that one gets an agreement that is binding and durable.
I am listening with care to the hon. Gentleman’s argument and trying to work out exactly what the “return” that he mentioned the need to have is. Is it that probable cause be removed? I think not, and the hon. Gentleman has not suggested that. Is it that the treaty should be ratified? He wants it to be ratified, but does he accept that an information and probable cause reciprocity is adequate? Is that what he is asking for, or is he asking for an abrogation of the treaty? He talked at one stage of going back to the drawing board; is it Conservative policy to abrogate a treaty with the United States?
I have to say to the Solicitor-General that I cannot think of any reason not to abrogate the treaty with the United States at the moment. There is absolutely no national advantage to our having signed it whatsoever. I said to the Solicitor-General that I would consider the other aspects—[Interruption.] He shakes his head, but the reality is that, at the moment, if we wish to extradite individuals from the United States, we are entirely bound by the 1972 treaty, which is still in operation and which I have no desire to abrogate. That is our advantage at the moment—nothing more. If we choose to abrogate the later treaty, which has not been ratified and has therefore never been brought into operation—I am not sure that it requires abrogation; it simply has not happened—I do not see that we would lose anything whatsoever in our current relations with the United States.
I want to make progress.
I turn to the Extradition Act 2003. In fact, the Government’s willingness to give to the United States special privileges under that Act required no treaty at all with the US; it was merely a gratuitous act by this Parliament. [Interruption.] If the Leader of the House looks at what happened, he will see that in fact, we abstained on the order. [Interruption.] We abstained and expressed our misgivings, which were—[Interruption.] If the Leader of the House wants to intervene, I will give way to him.
We abstained because we expressed misgivings about the scope of the powers given to the United States. We were swayed by the Government’s arguments about the need to have the new arrangements to deal with terrorism. Speaking personally, I regret that, in view of what I have discovered since about the way that this process is operating. I say candidly to the Leader of the House that what happened troubles me, but it was done in good faith and the Government should be pleased, I suppose, that for once, assurances that they gave to hon. Members received a response on this side of the House. But the truth is that those assurances proved to be flawed.
I do not know whether the Leader of the House has read the relevant Hansard, but if he has not and he does, he will see that during those debates, the hon. Member for Don Valley (Caroline Flint) made a number of claims about the way that the 2003 Act would operate in relation to the United States that were—I am sure inadvertently—misleading. The fact is that they certainly had an effect in persuading Members of this House to go along with what the Government wanted to do.
As Leader of the Opposition at that time, it was clear to me—and to all my colleagues—that the main reason why we acquiesced to the speed with which this provision was pushed through was that the Government said that it was absolutely vital in the pursuit of terrorists. There were other aspects to it, but terrorism was the key driver, which the Government should not resile from. Will my hon. Friend please ask the Government a very simple question? Apart from the details that my hon. Friend thinks might be wrong, or which there might be problems with, what is it that the Government object to? The reality for all of us in this place is that when this provision was pushed through, the Government never said that parity was unimportant. Surely parity is vital, so why do the Government not act?
I agree entirely with my right hon. Friend and I also agree that parity is vital.
That leads me to my next point, which concerns parts 1 and 2 of the 2003 Act. Part 1 deals with the European arrest warrant, which is backed by the fact that the signatories are signatories to the European convention on human rights. I want to pick up on the earlier intervention of the hon. Member for Sunderland, South (Mr. Mullin). He might have been about to make this point himself, but I will make it. In the summary of the report that considered that legislation, his Select Committee pointed out the following:
“we express concerns about proposals to relax the requirement that extradition requests from non-European countries must demonstrate that there is a prima facie case to answer”.
The report goes into greater detail on that issue later. However, that is exactly what the Government chose to do, and they chose to do so in the context of the United States, when they were also aware that in fact, there would be no parity in terms of the test that had to be applied on both sides.
The weakest point of the Government’s argument, both here and—in the light of yesterday’s debate in the Lords—in the other place, is the extraordinary assertion that reasonable cause and making out mere suspicion, which is all that it boils down to, are on a par with each other. We have a substantial hurdle to overcome in the United States. The tendering of prima facie evidence in an evidential sense is not necessarily required, but the making of a prima facie case in a documentary and discursive sense is certainly required, although it can be done by hearsay. In contrast, all that the United States must now do is send in a document in which it sets out a case. As long as that case is made out, and the other criteria, which are a list of safeguards on identity, dual criminality, double jeopardy and the illness of the defendant, are satisfied—[Interruption.] As long as those criteria, including the Human Rights Act 1998, are satisfied, there can be no possibility of further examination of the material to decide whether the extradition should happen.
The Solicitor-General knows about the Raissi case, which posed the threat of a serious miscarriage of justice. Under the existing new rules, Mr. Raissi would undoubtedly have gone to the United States. He was spared that because it turned out, as the prima facie case was examined, that there was a case of mistaken identity. More than that, the case against him was entirely flawed.
Those are not slight or academic matters but have a practical impact. In deciding to grant this special privilege to the United States of designation under section 84(7) of the Act, the Government have made a mistake. The lack of parity immediately gives rise to the taint of unfairness. In any event, I have some reservations about moving away from the old test in the case of non-European countries generally. In that regard, I have genuine anxieties that go beyond merely the UK-US extradition treaty.
The hon. Gentleman is making an important point. Does he share my concern that the Solicitor-General, in quoting the district judge’s comment on the submissions made in this case, failed to point out—in relation to which the hon. Member for Henley (Mr. Johnson) understandably intervened with some anger—that the defendants had no right to challenge, test, explain or counter that evidence, which might well have been produced by those engaged in a plea bargain in the United States and could have been entirely false?
The hon. Gentleman is right, and that is why I intervened on the Solicitor-General when he started telling the House that we should not worry about anything, because the United States sent over volumes of material, as if it were doing a pre-2003 Act extradition. That might be true, and I accept that, if that material had been tested on the 1972 Act provisions, the three defendants might still be extradited to the United States. The difference is that there would not be such huge public disquiet about the manner in which it has been carried out. Even though the material was available, the defendants were deprived, in the course of the extradition proceedings, of the opportunity to carry out the pre-2003 Act scrutiny that they could have done previously, even when they took the matter to the High Court on review. The points taken in the Court of Appeal related to the Human Rights Act, and by their very nature were not as extensive, and could not be the same, as if we had provided a balancing exercise to enable that scrutiny to take place.
Is not the crucial point that, according to the British Government, these three men are entirely innocent. We know that that is the British Government’s view, because there is no prosecution pending and no suggestion of any charge in this country about events that took place here. Is not it the duty of the British Government to defend the innocent?
My right hon. Friend makes a good pint. That brings me to the consideration—finally, I hope, as I do not want to take up too much time—of the issue of forums.
The second issue that we must consider, which was considered in the other place yesterday, is that we chose in the 2003 Act, bizarrely, to get rid of the protection that existed in article 7(1) of the 1957 convention on extradition, which allowed an extradition to be prevented if the person was being sent to an inappropriate forum for the trial. As I did not participate in detailed consideration of the 2003 Act, I am unclear as to why the Government decided not to include that safeguard in the Act generally. Every other country has that safeguard. The Irish, who regard themselves as close partners and friends of the United States, and who have an extradition arrangement, have a forum clause in their treaty, which enables the question of the appropriate forum to be considered.
One reason why so much public disquiet has been expressed about the case of Mr. Mulgrew, Mr. Bermingham and Mr. Darby is that they are in this country, the victim, NatWest, is in this country, and a trial could properly take place in this country without the onerous burden of extradition. However, they have been deprived of that opportunity—it has only been taken as a Human Rights Act point, which is inadequate. I have yet to hear from the Solicitor-General why the Government have not adopted that protection, which, in my understanding, applies across virtually every other European country. That makes a considerable difference. Were we to introduce that protection, along with reciprocity with the United States, the Solicitor-General would find that the public disquiet that has arisen, which, as I said, is genuine, would be allayed.
The Government have a responsibility for good governance. One of the features of good governance—picking up the point made by my right hon. Friend the Member for Wokingham (Mr. Redwood)—is the paternal relationship between the state and its citizens. That is not to say that the state should not give up its citizens for trial elsewhere when there is clear evidence that they should be tried and it is in the public interest. But the state should not appear to be cavalier with their rights. One of the things about the Government that makes me anxious, which is a wider issue than the UK-US extradition treaty and runs through a host of pieces of legislation that have an authoritarian tinge that undermines civil liberties in this country, is that they combine an extraordinary internationalism and an attitude that state boundaries and borders are rather archaic with a reluctance to stand up for their own. That is troubling, as it undermines public confidence in the state, and will ultimately, and corrosively, undermine public confidence in the criminal justice system.
I want to clarify the nature of the hon. Gentleman’s argument. He seems almost to be suggesting that we should make it the responsibility of a judge at a hearing to determine whether it is appropriate for the Serious Fraud Office in this case, but in other cases the Crown Prosecution Service, to take a view about whether a prosecution should occur, and that we abrogate that responsibility, which is for prosecutors. Perhaps I have misunderstood him. Alternatively, he is suggesting that the judge would oblige the SFO to investigate a case when the SFO decided that the best place to try it is elsewhere, as in the case of the three individuals under discussion. We should also remember that the district judge said that he had real concerns that, were there an obligation on the SFO to undertake a complete investigation, when it had already been done in the US, there could be issues around abuse of process, which would be serious. Is it the hon. Gentleman’s view that we should return to a situation in which we must have a mini-trial in each case to examine all the evidence—some such cases have lasted 30 months and one lasted 10 years—and that that would also apply in terrorist cases?
I am afraid that the Solicitor-General again does himself less than justice. Other courts, such as the Irish jurisdiction, are perfectly capable of resolving the issue of the forum test. He has once again moved from the general points that I want to make to the particular points about the case involving Messrs Bermingham, Mulgrew and Darby, which is precisely what I want to avoid. I have no idea whether, after consideration of forum points, those individuals might still be extradited to the United States. The fact is, however, that no such consideration has taken place, and that should be possible under the Extradition Act 2003 for every country to which we are carrying out extradition. That is a serious flaw in the legislation. The fact that that is provided for specifically in the 1957 extradition convention makes it all the odder that, when the Government move to try to streamline and simplify the extradition system, with which I do not disagree, they do not include such an essential safeguard. The lack of that safeguard is one of the major reasons for the Government’s present problem.
The provisions of the European convention on extradition were incorporated in the Extradition Act 1989 by the Conservative Government, but the natural forum protection provisions were not. Why did the Conservative Government not include those provisions?
The Solicitor-General makes a good point. The answer to his question is that I do not know, but I would hazard a guess. At that time, we were still operating on the basis of having to show a prima facie case. The removal of that essential safeguard makes it all the more important to read the 1957 convention to establish whether there are other safeguards that ought to be included. All I can say to the Solicitor-General is that, in my view, the forum safeguard ought to be incorporated in the existing legislation.
My right hon. and learned Friend is of course right. That is one of the issues that have arisen over the past two weeks. When people have written to me saying that the Home Secretary should exercise his discretion not to extradite, I have had to write back pointing out that no such discretion exists any longer. It has gone.
Let me return to the point that I was making to the Solicitor-General. That residual paternalism, which was there to protect the citizen through the mechanisms and operation of the state, has been removed. Something else must be put in its place, so that people consider that the outcome is fair.
This is not the first occasion on which this problem has arisen and, if the Government do not listen to what is being said, it will not be the last. It will continue. There are numerous other cases in the pipeline, some of them—on their facts—much more challenging that the case of Messrs Bermingham, Mulgrew and Darby. Unless the Government heed the warnings, the criminal justice system in this country will be tainted. There is no need for that to happen. Sensible measures can be put in place. I ask the Government to listen to what a large number of people are saying about this matter.
I have reservations and concerns about what we are debating, but I will say this: if the position were different and either of the Opposition parties were in office, the same procedure would be taking place. I know that the Opposition parties do not agree. My hon. and learned Friend the Solicitor-General made a telling point to the hon. Member for Beaconsfield (Mr. Grieve) a few moments ago, and although the Liberal Democrats are hardly likely to agree, I believe that the same position would arise if they were in government. I must add that if my party were in opposition, we would be strenuously opposing what is intended. That is the nature of party politics in the House of Commons. I make no complaints about it, as long as we are not hypocritical and have no illusions.
If there were a free vote on the treaty, which will not happen, I doubt that many Members would vote for it. I would be surprised if more than 25 or 30 did so. As I have said, however, this is the House of Commons. Party politics dominate here, and I certainly have no complaints about that.
Bankers are not a group whom I would normally defend. They do not fall within the category of causes for which I have campaigned for 40 years and more, involving people who have been caught up in various cases and whom I have wished to defend. When, on past occasions, we have talked of the four, the five or the six, they have not been bankers. Perhaps this is a first.
I should also make it as clear as possible that if there have been dishonest dealings, as there may well have been, I am the last person to try to defend them. White-collar crime should certainly be taken seriously. It may well be that these three are guilty. They may have been seriously involved in all the dishonesty of Enron. If that is the case, obviously they should pay the penalty.
It has been suggested by one or two people—not in today’s debate—that there has been a clever PR exercise in which the three have made themselves out to be heroes. If that is the case, to a large extent the Government have played into their hands. What is happening is a result of the treaty, and I do not think that that should be overlooked.
This is not a matter of bankers. It is the principle that concerns me: the principle of an unfair arrangement between the United States and ourselves. I know that some Members—perhaps I may cite my hon. Friend the Member for Sunderland, South (Mr. Mullin)—have concerns about the United States criminal justice system. That is not necessarily my concern. I do not work on the basis that the American legal system is so inferior, or indeed inferior in any way, to the British criminal justice system. I am not a lawyer, but for some time all the evidence has suggested to me—despite Guantanamo, and despite what has happened more recently in the United States—that the United States is a country based on law, and that its criminal justice system is exercised no less than is ours in this country.
At the cost of arguing against myself, I did mention Guantanamo. I do not think there is any evidence that the three people involved in this case will be given uniforms like those who are detained there. We should also bear in mind what the United States Supreme Court has decided on Guantanamo—a decision of which I am sure the right hon. and learned Gentleman is aware. By and large, on the basis of what I have read and seen in films—although it may not reflect reality—I am by no means persuaded that the United States criminal justice system is inferior to ours. That is not part of my argument today, although it may be part of the arguments of others.
Let me return to the reason why I am concerned enough to speak in the debate. The treaty between the United States and ourselves is one-sided. As has been emphasised enough times before, and will be emphasised again, it is not reciprocal. We will not be able to extradite from the United States people living there, as US nationals or otherwise, on the same basis that enables the United States to extradite people from Britain.
All that I would ask the Government—not, I repeat, as a lawyer—is why the same level of evidence is not required on both sides. That, surely, is the issue: that is the principle that we are debating. It is simply not good enough to argue that the earlier treaty tended to be more one-sided in Britain’s favour—although that may be so. In fact, the consensus is that it was slightly more one-sided in Britain’s favour. But surely the remedy is not to reverse that. Surely the remedy is obvious, even, as I say, to a non-lawyer. There should be a balance: the same level of evidence should be the requirement. That is not the position now, and despite what has been argued by my hon. and learned Friend the Solicitor-General and others, I simply cannot be persuaded that what is being done is the remedy.
I have listened carefully to my hon. Friend’s argument, and it is an important argument—but, with the greatest respect to my hon. Friend, he is making a legal point. He is claiming that there is not a broad similarity between the two tests. As far as I can see, this is not a one-sided treaty, and, more particularly, the Act is not a one-sided Act. Exact reciprocity between two different legal systems is not possible, but what we have is broadly similar—sufficiently similar to be as good as anything that we are ever likely to get in terms of equality between the tests in the two countries. That is the legal position.
I have listened to what has just been said. I have also read the report of the debate in the other place, and it appears to me that the position is not as my hon. and learned Friend has described it. That balance does not exist; if it did, the present controversy would not have arisen. The level of evidence required for this country to secure the extradition of a United States national, or someone living in the United States, to Britain is not the same as the level of evidence that is required for the opposite procedure.
Does the hon. Gentleman agree that there are two imbalances? One is the imbalance inherent in the treaty—even if it were signed by both parties—but the more acute imbalance is the fact that the treaty is not even signed by the other party. Does he agree that when signing a treaty with the US, we have to be conscious that it involves a relationship with the Senate, not just the Administration? The American Civil Liberties Union and the Irish lobby campaigned strenuously from day one to ensure that the treaty was not ratified, so is it not obvious that the British Government must have known that obtaining that signature was near impossible?
The hon. Lady makes just the point that I was about to make. First, the treaty has not been ratified. Indeed, it could well be argued on the American side that there is no need for any hurry. If it is being implemented on the British side, why should there be any hurry on the part of the American Senate to ratify it? There is no incentive to do so. The hon. Lady rightly made that first point, and her second one, too, remains relevant. Even if it is ratified the imbalance remains, so it is not just a question of the Senate acting in due course. Apparently, great efforts are being made on the British side to get ratification, but even if that happens, the imbalance and the controversy will continue. As has been said already, no other country in Europe—not even countries that are no less favourable allies than ourselves—has the same sort of arrangement that we have negotiated with the United States.
I conclude my brief remarks by saying that I am far from being anti-American, and I have shown that over recent events. Like the Prime Minister, though perhaps not to the same extent, I believe that it is in the interests of Britain to have a close, friendly working relationship with the US. It may come as a surprise to one or two people on the Opposition side to hear me say that, but that has nevertheless been my position. I do not believe that since 1945 it would have been to this country’s advantage not to have such a close working relationship with the US. We have already lived through the cold war and now face acute terrorist threat and danger, as we saw only yesterday in India and in what happened on 7/7.
Obviously, I do not work on the basis that we are necessarily countries of equal size or influence; it would be nonsense to believe that. I am concerned, however, that there is a growing feeling in Britain, even among people who would not view themselves as anti-American, that in our relationship with the US we are not getting the balance and equality that we should. People feel that what the US wants, we concede without too much difficulty, and without going properly through all the ramifications. There is a real danger that such feeling could turn into real antagonism towards the US, which, as I said, would certainly not be in Britain’s interest.
I ask the Solicitor-General to reflect on the fact that we are talking about three individuals now, but who knows what will happen next year or the year after? It may not necessarily be bankers next time. If that happens, there will be far more of an outcry on the Labour Benches than we have seen today. The principle is the important thing, and I hope that even at this late stage, my hon. and learned Friend will give further consideration to this matter. There is a great deal of anxiety in the country. He may think otherwise, but for all the reasons advanced in the debate, I believe that the anxiety is very considerable.
I congratulate the hon. Member for Sheffield, Hallam (Mr. Clegg) on obtaining the debate and on the way in which he opened it. I also congratulate the shadow Attorney-General on the extremely cogent points that he made, and I find myself in total agreement with the speech of the hon. Member for Walsall, North (Mr. Winnick). In those circumstances, it will not be easy for me entirely to avoid repetition. However, in the light of the Solicitor-General’s continued assertion that black is white, and of his continued refusal to accept the most convincing propositions put in the debate thus far, some repetition may not be entirely out of order.
The first and overriding duty and responsibility of the House is to safeguard the liberties of the individual against unfair, arbitrary or oppressive action by the Executive. That is what we are here to do, and the question before us this afternoon is whether we can rise to the challenge of fulfilling that duty and discharging that responsibility, or whether we will allow the Government to ride roughshod over individual liberties.
The difficulties that we are debating arose out of two serious mistakes that the Government made. The first was to agree to a set of arrangements for governing extradition between this country and the United States, which lack reciprocity and are one-sided. The House need not take my word for that, because chapter and verse have already been provided. On 16 December 2003, Baroness Scotland, the Minister responsible for these matters, said as much in the other place. She said that, under these arrangements, the test that we have to meet when we seek extradition to this country is, and I quote her exact words,
“a higher threshold than we ask of the United States, and I make no secret of that.”—[Official Report, House of Lords, 16 December 2003; Vol. 655, c. 1063.]
In the light of that absolutely categorical statement, it is, to put it mildly, incomprehensible that Government spokesmen from the Prime Minister down have since continued to claim that the arrangements are reciprocal. They are not.
Indeed, it is stated explicitly in article 8(3)(c).
The difference, in a nutshell, is this. In order to obtain the extradition of anyone from the United States, we have to show that there is probable cause that the person concerned has committed the relevant offence, whereas the United States has to provide only information—not evidence—to justify the issue of a warrant for the arrest of the person concerned. There is a clear and enormous difference between the two, so the Government’s first mistake was to agree to this one-sided test.
The Government’s second mistake, as has already been pointed out, was to designate the United States under the Extradition Act 2003 before the US Senate had ratified the extradition treaty. Any incentive that there would otherwise have been for the Senate to ratify the treaty was thereby removed.
In response to overwhelming criticism from all quarters, the Government have tended to say three things. First, in the face of the facts and of the statement by Baroness Scotland in the other place, they assert that the arrangements are reciprocal. Just a week ago today, the Prime Minister said:
“it is not true that the United States has a different evidential burden from this country.”—[Official Report, 5 July 2006; Vol. 448, c. 807]
That statement is plainly incorrect, and the Prime Minister should apologise and withdraw it.
Secondly, the Government resort to the terrorism gambit. On 1 March, in response to the leader of the Liberal Democrats, the Prime Minister referred to these issues as “international terrorism issues”. As we know, that is a gross distortion of the issues at stake, and the Prime Minister demeans himself and devalues the importance of dealing with terrorism by using that argument in that way.
Thirdly, the Government accuse their critics of being anti-American. For those of us who have devoted a political lifetime to transatlantic relations, that is perhaps the most contemptible charge of all.
I am equally stung by the assertion that those who criticise the Government’s approach are anti-American. Is the right hon. and learned Gentleman as struck as I am by the report of the American Bar Association’s symposium last year? The Las Vegas transcript of the symposium shows the US authorities almost incredulous at how far Britain has bent to accommodate their demands. One participant marvelled that a hearsay affidavit by the prosecutor was enough and that they did not even have to provide witness affidavits.
The hon. Gentleman is right. Other distinguished American lawyers have repeatedly made similar points. They cannot believe that this country so readily agreed to such a one-sided set of arrangements.
The Solicitor-General referred rather contemptuously to what he described as a “fracas” that I had with the President of the United States when I was Leader of the Opposition. It is true that I had a disagreement with the President of the United States, but the Solicitor-General appears to believe that there is something dishonourable or embarrassing about taking a view different from that of the President of the United States. The difference between him and me is that I do not believe that to maintain good relations between this country and the United States, it is necessary for the Prime Minister of the United Kingdom to be a poodle of the President of the United States.
The case that has given rise to the debate and the widespread concern behind it involves three British subjects who are accused of a crime committed in this country, largely against their British employers, who do not wish to press charges. The prosecuting authorities in this country do not wish to press charges, either. My hon. Friend the shadow Attorney-General referred to article 7.1 of the European convention on extradition—the forum clause, which obliges the court to take account of the matters that I described. If it had been incorporated in the 2003 Act, as it is in the extradition arrangements between the Irish Republic and the United States, it is at least open to question—I put it no more strongly; we cannot know the outcome—whether those men would have been extradited.
It would surely be an affront to our standards of justice and everything that the House should defend if those men found themselves in a Texas jail for up to two years before even having the opportunity to answer the charges against them.
My hon. Friend the shadow Attorney-General and my right hon. and learned Friend the Member for Sleaford and North Hykeham (Mr. Hogg) answered that point. The circumstances were different—it was necessary to establish a prima facie case, and the Home Secretary had a residual discretion to refuse extradition.
Perhaps I can deal with the other question that the Solicitor-General and the Leader of the House posed about why my party abstained and did not oppose the arrangements when they came before the House. With the benefit of hindsight I wish that we had not abstained, but the Solicitor-General and the Leader of the House appear to contend that we should have known better than to rely on assurances from members of the Government. They are right: we should have known better. Next time they ask us to rely on assurances from their colleagues, I have no doubt that my Front-Bench colleagues will remember their words today.
The expertise of my right hon. and learned Friend on such matters is renowned and he is making a powerful case. However, is not the crucial point the fact that there is no charge pending and apparently no intention of charging those people in Britain, where the alleged events took place? That shows how supine the Government are. They will not stand up for innocent British citizens against the arbitrary use of power elsewhere.
My right hon. Friend is right. The Solicitor-General appeared to regard it as important that several potential witnesses were in the United States. He has apparently overlooked the invention of the aeroplane and the possibility of bringing people from the United States, as frequently happens, to give evidence in this country’s courts. There is no reason why that should present difficulties.
The Prime Minister referred to the assurances that have been given about bail. The hon. Member for Leicester, East (Keith Vaz) asked about that earlier in the debate. It has been said that the United States prosecuting authorities will not oppose bail if the three men comply with “appropriate conditions”—I believe that I have quoted the Prime Minister correctly. What are appropriate conditions? The American courts will determine them, and we have no reason to suppose that they will depart from their precedents for what conditions are regarded as appropriate. Indeed, it would be extraordinary if they did so. We know that it is customary for American courts to demand the posting of a high value bond and to set onerous conditions before bail is granted.
I fear that, in the light of what has been said this afternoon, we will not be so easily taken in by the Prime Minister’s assurances. It behoves us in future to be considerably more sceptical about assurances from the Prime Minister and other members of the Government.
The Prime Minister’s efforts in connection with bail highlight the inadequacies of the arrangements. If we could have confidence in the treaty and if it was founded on the principles of justice, we would not have to witness the spectacle of Law Officers running around trying to pauchle bail on the other side of the Atlantic.
I agree. It is not too late to avert the injustice that we all fear.
I am grateful to the right hon. and learned Gentleman for giving way twice. I want to refer to my earlier point. He gave me an answer that he may wish to reconsider. He said that he and the Conservative Government did not include a forum clause in the protections in the Extradition Act 1989 because of a requirement for a prima facie case. However, the 1989 Act incorporated the provisions of the European convention, the key provision of which was the removal of the requirement for a prima facie case. It does not therefore make sense to claim that there was a requirement for a prima facie case. The 1989 Act removed that requirement in relation to European countries.
I was not in the Home Office in 1989, and I therefore had nothing to do with the Act. However, the point that I made to the Solicitor-General when he referred to other European countries is relevant. Our arrangements with other European countries are entirely reciprocal. We are considering our arrangements with the United States. The point has been made repeatedly and clearly in the debate that the arrangements with the United States are not reciprocal.
It is not too late for the injustice to be averted. It would be perfectly possible for the Government to introduce emergency legislation to remove the United States from the list of countries designated in the Extradition Act 2003. It would not take long. It could be done in an hour in the House and an hour in the other place. The Government should take that action without delay.
May I begin by thanking Mr. Speaker, through you, Mr. Deputy Speaker, for allowing this emergency debate to take place?
I submitted a petition to the previous Home Secretary in October last year. It was signed by 18,000 people who wanted to express concern about a constituent of mine. I realise that this debate has been allowed because of the concern felt by parliamentarians, the business community and ordinary lay citizens about the case of the so-called NatWest three who, under the terms of the UK-US extradition treaty, will board a plane for Texas tomorrow. I fully understand the huge amount of publicity that that case has generated, with or without a PR company, but I want to speak on behalf of my constituent. He faces extradition to the US, but he has not garnered the same amount of publicity in the mainstream or financial press. He is not photogenic, middle class or white, but it is important that I put on record my constituent’s concerns about his treatment.
Babar Ahmad is of a similar age to me and, like me, he was born and raised in Tooting. I have known him on and off for the past 12 or 13 years. Other hon. Members, including the right hon. and learned Member for Folkestone and Hythe (Mr. Howard), have spoken about the NatWest three facing two years of custody in Texas, but Babar Ahmad has already spent two years in custody in this country, in Belmarsh and Woodhill prisons.
Some Opposition Members have explained their abstention in the vote on the treaty on the grounds that they thought that it applied only to terrorists. They have said that they did not realise that it would involve bankers being sent to America. That presents a problem for the people who have signed the petition about Babar Ahmad, and it is one reason why some of us have expressed concern that there are parallel judicial systems in this country—one for so-called terrorists, and another for so-called ordinary criminals. Like the NatWest three, Babar Ahmad should be presumed innocent until he is found guilty. Moreover, he is in fact innocent, as I shall explain later.
I want to describe Babar’s background, as it is worth putting that on record. He is known locally in Tooting as a caring and helpful member of our community. He has worked with people of all ages—
I am grateful, Mr. Deputy Speaker.
None of us can say, with our hands on our hearts, whether the three people facing extradition to the US at present are innocent or not, but it is clear that the British police and the Serious Fraud Office have decided not to charge or prosecute them in the UK. The Crown Prosecution Service has done the same thing, where it has been the appropriate prosecuting authority. To me, that is a good indication of innocence, but the more important question has to do with principle and perceived injustice.
People who are subject to extradition say that they are happy to face the music here in the UK. Other hon. Members have said that they are not against extradition as such, but that they do oppose the principle that underlies it. However, when all the evidence in a case has been collected in this country and all the people involved have remained in this country at all times, it seems appropriate for them to be tried here. That is the point of the forum clause to which reference was made earlier in the debate.
People who express concern about the current extradition treaty have been caricatured as somehow anti-American. That is unfair. The hon. Member for Beaconsfield (Mr. Grieve) referred to the case of Lotfi Raissi, of which I know that Ministers are well aware. That case took place before the new UK-US extradition treaty, and the high thresholds then in place meant that it was possible to ascertain that the evidence underlying the extradition claim was flawed.
If I remember correctly, that case revolved around a question of identity. Similar evidentiary standards applied as in extradition cases, so it is very unlikely that a different decision would have been reached if the case had arisen after the extradition treaty had been agreed. I know that my hon. Friend is familiar with these matters, but I suspect that that is what would have happened.
I am afraid that the Solicitor-General is wrong about that. The evidence in that case was challenged, something that could not happen under the new regime. However, I do not want to speak about a single case, as I am interested in the principle underlying these matters.
Will the hon. Gentleman accept an assurance from me that Opposition Members think that justice must be blind to status, colour, creed and everything else? The point that we are making today would apply to anyone: people who are thought to have committed an offence in Britain should be tried here by a proper prosecuting authority. If they are not found guilty as a result, they are innocent.
I cannot accept the blanket assurance that the right hon. Gentleman offers, since some Opposition Members today have said that they abstained two years ago because they believed that the cases of people charged with terrorist offences would go through on the nod. Quite rightly, the Lotfi Raissi case has been widely trailed in the press and attracted a great deal of attention, but what about all the other cases involving people facing extradition?
May I assure the hon. Gentleman that many Opposition Members—including my hon. Friend the Member for Aldridge-Brownhills (Mr. Shepherd) and I—made very powerful arguments against the use of Belmarsh prison? We were entirely blind to the colour or the ethnic provenance of the people held in Belmarsh. The use of that prison was wrong, and we have said so repeatedly.
I do not question for one second the right hon. and learned Gentleman’s commitment on these issues. I was asked to accept a blanket assurance about the attitude of Opposition Members on these matters, and I have explained why I cannot do so.
Concerns have been expressed in the debate about the reciprocity of the treaty. I accept that the evidentiary thresholds in two different legal jurisdictions will not be exactly identical, but people are worried that we have lowered the threshold and that it is not now possible to challenge prima facie evidence. Reference has been made to article 8 of the treaty, and to the forum clause. That provision relates to people who have never left the UK and to evidence that has been found only in the UK. The evidence that the US is relying on in the NatWest three case was obtained as a result of a search carried out in the UK, so why are the people involved not being charged in the UK?
Like other speakers, I confined myself to the three people due to be sent to the US this week. That is because I realised that other cases are sub judice, as Mr. Deputy Speaker made clear earlier; otherwise, does my hon. Friend accept that I would have included those other cases in my remarks?
I am grateful to my hon. Friend. Of course, I am happy to give a blanket assurance that I accept that everyone on this side of the House will be consistent when it comes to issues of justice.
The press coverage this week has described the steps taken by my noble Friend Baroness Scotland to persuade colleagues in the US Senate to ratify the treaty. I hope that Ministers will understand that those of us making representations about these matters are not anti-American, but the lack of ratification has caused increased anti-American feeling around the country. That is unfortunate, because we merely want to ensure that we have an extradition treaty that is consistent and fair, irrespective of who is being extradited and of the offence that has been committed.
I am grateful.
I think all of us agree, on both sides, that this issue has nothing to do with what kind of person may be involved or what kind of constituent presents himself or herself before us. It is an issue of justice and reciprocity, and that is why it is arousing such strong passions across the country. We are all starting to see those feelings expressed in our e-mail in-boxes, and the Minister should be aware of them, as I am sure he increasingly is.
The feeling prompting the rage and fury that surrounds this issue, and which has actuated many comments in the debate, is, I am afraid to say, a certain anti-Americanism. On that, I agree with the Government: anti-American points are sometimes scored in this debate, and that is a great shame. It is sad and regrettable, and it is all the more reason why the best and kindest thing we could do for the special relationship, for which my right hon. and learned Friend the Member for Folkestone and Hythe (Mr. Howard) has laboured so long and on which he has spoken so eloquently, is to remove injustice and asymmetry and to restore confidence in the British people that their extradition arrangements with America are fair to them.
I thoroughly agree, but does my hon. Friend not also agree that the Americans could send an even more positive message about the importance of the special relationship not only by offering reciprocity but by returning to Britain some of the IRA murderers who live freely in the United States at the moment?
The hon. Gentleman’s point about ratification of the treaty seems to contradict in part what he said before. Because the treaty is inherently unequal, it might be a very good thing that the Senate will not ratify it. What we should do is go for a new treaty that is more equal.
If the hon. Gentleman will allow me, I shall try to address the point made by his colleague.
The absence of reciprocity was introduced by the signing of the treaty, which we enacted in the Extradition Act 2003. My right hon. and learned Friend the Member for Folkestone and Hythe rightly used the verb—or adjective—poodle. It was a poodle-like act of—[Interruption.] It is, indeed, a noun. It is also, however, a verb: to poodle is a verb—we poodled.
We poodled in implementing the treaty before the Americans had even ratified it, thereby—the point the hon. Member for Cambridge (David Howarth) was trying to make—negating the symmetry that pre-existed in the 1972 extradition treaty, which involved a rough parity. We have reached consensus that that parity was not totally perfect, but it certainly was not as asymmetrical and imbalanced as the arrangements into which the Government have entered now. The plain fact is—the Minister must accept it, as the point has been made to him beyond peradventure—that the United States does not now have to supply prima facie evidence. The key difference therefore is that a British national can be supramagnetically suctioned to America without any scrutiny of the evidence, as, on Thursday, the three are about to be, whereas the Americans would never allow that to happen to any of their nationals. That is the fundamental problem. We are failing to protect our nationals.
Does the hon. Gentleman agree that there are a lot of odd things about this situation, not least the word “pauchle” and the fact that we have had demonstrations without the hon. Member for Bethnal Green and Bow (Mr. Galloway), but also the fact that if an offence had been committed under UK law, it would have been tried within the UK? If an offence has been committed, it was committed within the UK, but because it is not charged in the UK, people are to be extradited.
I am not sure of that.
I sought to be generous to the hon. Member for Birmingham, Yardley (John Hemming) in order to prevent further interventions from the Liberal Democrats.
The Prime Minister and the Solicitor-General have told us that the three suspects, whom they brought into the debate, would have been extradited anyway under the terms of the 1972 arrangements. I am not at all sure that they can possibly know that. I am not at all sure that they have any right to say that in this House. The propositions that have been put, and which have obviously persuaded the Solicitor-General—who calls the men the “Enron three”—of their potential culpability, have never been tested in a court or a judicial proceeding in this country. That procedure would have taken place under the previous arrangements, and that is the procedure that has been wiped out by the Government’s poodle-like acquiescence in the treaty. The Solicitor-General is clutching at the Dispatch Box as if he wants to intervene; perhaps he does not, so I shall move on.
That is the injustice at the core of this debate, and that is why we should suspend the treaty, undesignate America as a category 2 country, and do justice by our people. Anyone who seeks evidence of the imbalance and asymmetry in our arrangements with America may look at the numbers. Look at the numbers going from this country to America, which had, last time I looked, a population approaching 300 million, and the number that America is sending to us. More than 40 a year go to America—
My hon. Friend says 45. And two or three a year come from America. I make no comment on the respective criminalities of the two populations, but that seems extraordinary. I see the Solicitor-General reaching for the statistics; he should apprise himself of the basic data. They are patently unreciprocal and asymmetrical.
I was interested earlier to hear a Labour Member—the hon. Member for North Swindon (Mr. Wills)—say that all extradition treaties were asymmetrical. Did anyone catch that? He said that all extradition treaties were asymmetrical and that we should not complain about it. That seemed to be the gist of it. The fact is that he is, of course, as he was in much that he said, wrong. There is reciprocity in the Euro-warrant system, for instance. Among the many things that we do in common with our European friends is that we allow some measure of political decision making over whether or not a crime was committed in our jurisdiction.
If we want to get around the problem, and I know that the Solicitor-General does, we should implement the course I have urged on him in an early-day motion, signed by many Members on both sides of the House, which is to insert article 7 of the 1957 convention on extradition into our arrangements with America, so that a British authority may decide whether or not, in the interests of justice, the crime—if there was a crime—took place in this jurisdiction. That would be a clear and elegant solution to the problem. As my right hon. and learned Friend the Member for Folkestone and Hythe pointed out, that is a basic protection that the Irish give their citizens and the French give their citizens. Why cannot we give that protection to our citizens? I look forward to hearing the response of the Under-Secretary of State for the Home Department, the hon. Member for Enfield, North (Joan Ryan).
My hon. Friend makes a powerful and persuasive point. Is it not a case not only of justice being done but being seen to be done? If a matter has a direct nexus with this country, it is essential that that matter should be disposed of here so that we can send a clear message that if something is criminal and happens here, we will deal with it and that we will not rely on other authorities to deal with matters that we should be dealing with ourselves.
My hon. Friend makes an excellent point, and I am grateful to him. It is incredible: what comment are we sending to the outside world about the seriousness with which we take white-collar crime if the allegations that the Solicitor-General was happy to read out earlier are so trivial and footling that we take no account of them in this country but none the less think them serious enough to be tried in America? It is quite extraordinary.
The Government seem to have decided on a twin-track strategy in their manipulation of this growing public relations disaster. The Prime Minister comes to the House, as he did earlier, and says that he is very concerned about the fate of the NatWest three and their families. It is a measure of the complete chaos that the extradition treaty has wrought that he is obliged to dispatch senior Ministers around America to plead on behalf of individual cases. It is absolute chaos. That is the compassion that he wants to show on the one hand. However, he then sends his understrapper, the Solicitor-General, to the House, who repeats—very largely—the case against the three. He called them the Enron three as though to prejudge the matter.
I do not necessarily dissent from that. If the torrent of allegations that the Solicitor-General read out against the three are so compelling, why cannot he put them on trial in this country? It is not too late for him to do that. He has the power at the stroke of a pen. Given the serious allegations that he has put before the House, he could command them to be arraigned before the courts in this country.
I want to make it very clear that decisions about whether the matter is investigated are not made by Ministers; in this case, they are made by the Serious Fraud Office and the director of the Serious Fraud Office—an independent prosecuting service—who took the view that, because much of the evidence was in the United States and the alleged conspiracy was likely to have taken place there, if indeed it ever did, the matter would be better dealt with there. I remind him, too, that the district judge was also concerned that if there was an investigation here, it might in due course result in an abuse of process argument, because of the length of time such an investigation would take. It is appropriate to deal with the matter in the USA.
I would say that I was grateful to the Solicitor-General, but I am not really. Lord Justice Laws himself was amazed that the UK authorities had sought to take no interest in this matter. Because there is no protection and no forum requirement inserted in the current Extradition Act—in the way that I propose and my right hon. and learned Friend the Member for Folkestone and Hythe agrees that it should be inserted—and because Parliament has failed to protect its citizens in the way that it should, the three are being sucked off to America.
May I suggest an elegant solution building on the solution of my right hon. and learned Friend the Member for Folkestone and Hythe (Mr. Howard)? The other place has passed certain amendments, which will come back to this House in October, the effect of which if passed will be to remove the United States from the fast-track procedure. Given that, the Government, pending a decision of this House, should pass the orders referred to by my right and learned. Friend, which would take the United States out of the class of a designated country, at which point the process of extradition would have to cease.
Does my hon. Friend agree that the logical corollary of the statement by the Attorney-General is that any crime involving an e-mail that is routed through a server in, say, California will fall within the jurisdiction of the United States? Does he not think that that is absolutely bizarre?
The United States Government take a broad view of their legal jurisdiction. The United States has few limits to its ambitions in the context of where a crime is committed against the interests of the United States. That is a matter for the United States. It is perfectly entitled to take that view, but it should be a matter for us—for this House and the Solicitor-General—to protect British citizens from injustice and the arrogance and abuse of power. I think that the Solicitor-General would agree that he is losing the argument. Increasingly, the Government have shown that they are losing the argument by the panic-stricken measures that they are taking in dispatching Ministers off around America. I do not believe—as I think that the hon. Member for Walsall, North (Mr. Winnick) said earlier, and I wholly agree with him—that it is the will of the House or the country that these unjust arrangements should persist. Above all, and paradoxically, I do not even think that it is the will of America. It is increasingly a matter of embarrassment that unnecessary hostility and unease is being engendered in this country by this incompetently negotiated treaty. I urge the Solicitor-General to have the humility to think again.
It is true, as the hon. Gentleman—whoever he was—said, that I was not on any demonstration for these three bankers, although I have been on demonstrations over the last two years on another case that you have precluded discussion of this afternoon, Mr. Deputy Speaker. Neither is it any good Labour Ministers trying to slip on their old class warrior clothes, fulminating about the Enron three. Eleven times in his remarks the Solicitor-General of the United Kingdom referred to the three individuals as the Enron three, in what can only have been an attempt to describe them pejoratively, which must be prejudicial and unprecedented from a Law Officer of the Crown in a matter such as this—fulminating about expensive public relations companies. With everything that we know about new Labour and its relationship to the corporate world and to PR companies, the idea that some sin has been created by a PR company being or not being involved is an allegation that can come from almost anyone except new Labour.
I have to agree with everything that the hon. Gentleman has just said. I have seen the political briefing provided to the Solicitor-General, which starts with the heading:
“Not allowing crime to escape over borders versus supporting the PR campaign of multi-millionaires charged in relation to the biggest fraud in US corporate history.”
At the end, it says:
“The Lib Dems have been spun by opportunistic PR merchants. We are fighting to get the benefits of the treaty for Britain to tackle crime. The opposition are supporting the campaign of multimillionaire bankers accused of serious crimes.”
That is the level of discourse that we are getting.
On a point of order, Mr. Deputy Speaker. I would appreciate your advice in relation to an allegation that I have seen something, when I have never seen whatever has been read out. Am I in a position where I can call the Member to order in relation to that?
I do not think that it is effective at all, because if it was not by means of a pager, it must have been by means of telepathy that the briefing notes read out by the shadow Solicitor-General were echoed in every particular in the contribution that the Solicitor-General made earlier. The country will not have missed the fact that Ministers, who a couple of weeks ago were wrapping themselves in the flag, are, on this occasion, wrapping themselves in quite a different flag—a point to which I shall come. The class warrior clothes no longer fit Ministers and they should not attempt to adopt them.
Equally hard to take was the contribution from one Conservative Member of Parliament—not others—who said that he had supported the unequal treaty because he thought that it was all about terrorists. He did not know that bankers, rich people, upper-class people, and white people might be caught up in this unequal relationship. British citizens accused of terrorist crimes are entitled to exactly the same protection and standards of justice as British citizens accused of white-collar crimes—not least because the reason why the Senate has not ratified, and I predict will never ratify, the treaty is because of the power of the lobby in the United States, in a state of perpetual election and re-election, in relation to the supporters of Irish republicanism in the United States of America.
Of course, as has been asked many times, why will the Senate have to ratify the treaty if we are already operating our half of it? Can the Minister not see that the absolutely logical conclusion from the national concern about these matters is to withdraw temporarily from our obligations under the treaty by whatever measures can be taken until the Senate has ratified it and we have reciprocity—it will be of an unequal kind, but at least reciprocity in that America will have signed the treaty and not just us. That is clear to everyone in the country except those on the Treasury Bench. It is clear to every newspaper and it is made clear on every radio phone-in show. It is clear in every one of our inboxes and postbags, and everyone in the House knows it—only those on the Treasury Bench resist it.
The most revealing thing of all in this whole debate was the near apoplexy of the Solicitor-General at the very idea that anyone in the House would suggest abrogating a treaty with the United States. He almost had a seizure. He asked the Conservatives to repeat the statement slowly so that people could hear it. The very idea that we would abrogate a treaty with the United States was quite beyond his ken, and that is the problem.
We all want a special relationship with the United States. I am the great-grandson of probably the only woman in the entire 19th century who emigrated from the United States to Scotland. She may have got on the wrong boat, but that was what she did— [Hon. Members: “Send him back.”] I am probably the only man who will not be asked back to the United States, because the last time I went there I gave them a bloody good hiding.
All we want is a special relationship that does not resemble that between Miss Lewinsky and a former United States President: unequal, disreputable and with the junior partner always on their knees. That is not the kind of special relationship that we want, but as the hon. Member for Henley (Mr. Johnson) powerfully made clear, it is exactly the kind of special relationship that most people in Britain think that we have with the United States of America, whether that is true or not.
What does the Minister think that the public deduce when they hear that a treaty was agreed between British Ministers and the Government of George Bush in secret? What does he think that the British public think when they hear that the agreement that was secretly reached between George Bush’s Government and new Labour was then passed on the royal prerogative without debate in this House? Does he think that the British people regard that as their Government standing up for them, or does he think that the British people imagine that that is just another example of the obeisance of the Government when it comes to the United States of America? I am absolutely sure what public opinion is on this matter and that the Government are absolutely isolated on it.
Had I been able to talk about other cases, as the hon. Member for Tooting (Mr. Khan) was, I would have gone much further down this road, but in view of your strictures, Mr. Deputy Speaker, I cannot. However, I say this: we are talking about sending our citizens—these three and two others, McKinnon and Babar Ahmad—into the maw of a US justice system that stands condemned around the entire world. There is no point in soft-soaping this. One cannot separate the facts of Guantanamo Bay, orange jump suits, cages in the tropics, people being hooded, manacled and forcibly injected with drugs, Abu Ghraib, Bagram air base and extraordinary rendition—by which people are flown around the world to be tortured by the United States Government, although we do not even know who those people are, or the jails in which they are hanging upside down, being water boarded and tortured—from the proposal to send our citizens casually into that maw. The British people do not separate them. Last night, the other place spoke for Britain. Would it not be good if this place could speak for Britain on this, too?
First, the House will want to say to Mr. Speaker through you, Mr. Deputy Speaker, that we are extraordinarily grateful for the opportunity to debate such an important matter. I know that we do not have much more time for the debate, so I will be brief. I will address just three matters: the condition of those who are extradited to overseas countries; what I think that we should do in the immediate future; and some longer-term actions.
I, like my hon. and learned Friend the Member for Torridge and West Devon (Mr. Cox), have considerable experience in the criminal courts. I can say without any question that those who are extradited and tried overseas are in great difficulty for several reasons. First, and inevitably, they are in a foreign country away from their home and their family’s support. They will not have a home and they will not know lawyers. They will face considerable costs. Frequently, although this does not apply in the case of the United States, they will have serious language problems. Sometimes they will be held in custody and not granted bail, which makes the task of preparing a case yet more difficult. Defendants who are extradited to a country of which they are not a national face grave disadvantages that raise the prospect of an injustice taking place.
I am grateful to my right hon. and learned Friend for citing the problems for those who are extradited, such as my constituent, Gary McKinnon, and his family. He has expressed great concern that as someone who does not have means—he is on benefits—he will have great difficulty meeting any bail conditions with which he will be obliged to comply. We heard the concerns expressed by my right hon. and learned Friend the Member for Folkestone and Hythe (Mr. Howard), and Gary McKinnon will not be able to comply with any of the conditions that we know might be put forward, such as high financial penalties.
Forgive me, but I had better press on because I think that the wind-ups will start in about 10 minutes.
My second point is specific to the United States. I speak as one who is a longstanding friend of the United States. My grandmother was an American citizen from Tennessee, and my father was proud of his close relations with the United States. My children have very close relations with the United States. However, I am deeply troubled by aspects of its policy and, especially, about its attitude towards the legal process. We cannot overlook Guantanamo Bay and we must not overlook extraordinary rendition. Although the hon. Member for Walsall, North (Mr. Winnick) was right to say that the Supreme Court has intervened—that is a good thing—the situation tells us about the underlying attitude of the Administration.
We must keep two related points in mind. First, the lengths of the sentences that are being imposed in the United States in respect of white-collar fraud are quite different from those imposed in this country. I am well aware that Mr. Lay is dead and has not been sentenced, but there was much discussion of the fact that he would have to spend years and years of his life in prison—perhaps a whole life sentence—which would have been wholly disproportionate to what we would impose in Europe.
I have been in many prisons. I was the Minister with responsibility for prisons, and I visit my clients in prison regularly in the United Kingdom. I have also seen United States prisons and frankly they are ghastly. Those that I have seen are an affront to civilisation. It seems to me that that is the background against which we ought to consider our attitude towards extradition.
That brings me on to two final points: first, what we should do now; and secondly, the longer term. As to what we should do now, we should stop the extradition of these three persons. We can do so because, as my right hon. and learned Friend the Member for Folkestone and Hythe pointed out, there is the order-making power by which we can de-designate the United States as a designated country. We should do that because the other place has passed amendments which, if carried in this place, would have that effect. We will debate that in October. It would be monstrous if we approved those changes, yet in the interim these three people were sent to the United States. So we should de-designate the United States immediately.
When the United States authorities read the debate, if they are not watching it, will it not help if they know the feelings of Members and the pressure from them? The fact that not one single Back-Bench Labour Member has spoken against what is being advocated by many of us is an indication of the strength of feeling in the House of Commons.
That is a valuable suggestion. The Americans have a distinguished ambassador in Britain. I feel sure that his officials in the embassy will be looking at what has been said in the Chamber and in the other place, and I very much hope that they will report back to their Administration.
There are two other steps that we should take immediately. We should immediately review the 2003 treaty. We can terminate it under article 24 in order to bring it to an end. I entirely agree with what my hon. Friend the Member for Beaconsfield (Mr. Grieve) said on that point. Lastly, we must look again at the 2003 Act. That takes me to the last point that I want to make.
When we look at the 2003 Act, we must ask ourselves whether there is sufficient safeguard for our citizens. I believe that the Act needs amendment, in at least two particulars. First, we need to reintroduce something like a prima facie test. It has been explained by other right hon. and hon. Members, so I will not repeat it, but a prima facie test needs to be reincorporated in our extradition law, as the United States in its constitution provides for its citizens. Secondly, I very much agree with the forum test, which is a point that my hon. Friend and others made. The district judge ought to have the discretion to refuse extradition on the grounds that it is more appropriate—the language is negotiable—that the trial should take place in the United Kingdom and not in the jurisdiction of the country seeking extradition.
I have been brief because this is an important and urgent matter and others wish to speak. The liberty of our citizens is at stake and, for that matter, the good name of the United States.
My right hon. and learned Friend the Member for Sleaford and North Hykeham (Mr. Hogg) has indeed been brief, eloquent, to the point and wholly right in what he said. I cannot claim any American ancestry, as he can. I can claim to be proud to be an honorary citizen of Texas, but for all my admiration for America and for that great state, I am full of apprehension about what will face these three people when they go to Texas.
My right hon. and learned Friend spoke about the appalling conditions in American jails. What has conditioned public opinion in this country perhaps more than anything else over the past two or three weeks are the accounts of the chains, the manacles and the cages, and people who are innocent until proved guilty being put in those conditions thousands of miles away from home. It is emotive and I make no apology for being emotive. It is important that Ministers should recognise how deeply concerned and disturbed people are by those accounts.
The Solicitor General did not give way to me, although he made some pleasant enough remarks. I was seeking to ask him precisely what assurances would be given about bail. It is all very well for the noble Baroness Scotland to go to the United States. I have a high regard for Baroness Scotland. She is a most eloquent and persuasive Minister, but that is not good enough.
My right hon. and learned Friend spoke about the present American ambassador to Britain and in what high regard he is held. What should be done in a case like this is that the American ambassador should be politely invited to No. 10 Downing street by the Prime Minister, and the Attorney-General should be there. The American ambassador should be presented with a copy of the report of this debate and told just how concerned hon. Members in all parts of the House are about the matter.
I am grateful to my hon. Friend for allowing me to intervene. My constituent, Mr. Giles Darby, is facing extradition tomorrow. Does my hon. Friend understand that he will hardly be reassured by the Prime Minister’s protestations that all is being done to improve the bail conditions for him? Once he is there, he will be subject to due process, which involves all the penalties to which my hon. Friend has referred.
Yes, but we are close allies of the United States. I strongly agree with the points made about the extradition process by my right hon. and learned Friend the Member for Folkestone and Hythe (Mr. Howard) and others, but we are where we are. I deplore the fact that the constituent of my hon. Friend the Member for Westbury (Dr. Murrison) will be getting on a plane tomorrow. I hope, even at this late hour, that there will be a delay, but there may not be.
I do not know whether my hon. Friend’s constituent and his colleagues are guilty or innocent. I do know about the disparity in sentences so eloquently described by my right hon. and learned Friend the Member for Sleaford and North Hykeham, and I know that in this country it has been deemed that there are no charges to answer. Whether there is guilt for some crime committed in the United States I do not know, but I am exceptionally concerned that those people should get on a plane tomorrow or at any other time and be incarcerated in those conditions.
I hope that the Solicitor-General will speak to the Attorney-General immediately after the debate. I hope that they together will go and see the Prime Minister. The Prime Minister is highly regarded in the United States. He has been given the congressional medal of honour. I teased him about that at the Liaison Committee last week, suggesting that he should go and get it. He is held in high regard, and this is a serious matter because three people’s lives—the conditions in which they live their lives over the next two or three years—are at stake.
I very much hope the Prime Minister will exercise the influence that he undoubtedly has upon the American ambassador and, through him, on the American Administration to say that there are certain things that we are above all enjoined to do in any democracy. One of those is to protect the welfare of our citizens, who are innocent until proved guilty.
I am not suggesting that we can go back to the days of 1850, when Palmerston spoke for some hours in the predecessor of this Chamber. As dawn broke, he was speaking in the Don Pacifico debate. However, the lessons of the Don Pacifico debate are to some degree still relevant today. I took the liberty of re-reading Palmerston’s speech and I should like to quote from it. He said that
“whether, as the Roman, in days of old, held himself free from indignity, when he could say Civis Romanus sum; so also a British subject, in whatever land he may be, shall feel confident that the watchful eye and the strong arm of England will protect him against injustice and wrong.”
We in the Chamber may not use such grandiloquent terms today, but we still have the same duty as our predecessors had to protect the innocent until proved guilty, to uphold the dignity of mankind, and to ensure that even the closest of alliances does not lead to any supine posture on our part. So although I have a regard for the Solicitor-General and the Attorney-General, and I make no comment about the merits of the case or judgments or any such thing, on the simple issue of human decency we have a duty to look after these three people and to ensure that if they have a trial, it is a fair one, and if they have to wait for their trial, they wait in civilised conditions on this side of the Atlantic with their families, not on the other side of the Atlantic. I look to the Government and to the Prime Minister in particular to ensure that that is so.
The speeches made over the best part of three hours have amply demonstrated the importance of the debate and justified Mr. Speaker’s confidence in providing the time for it to take place. I am grateful to all those who have taken part.
I shall not discuss every contribution for the simple reason that all but one of those who contributed spoke from the same perspective: we have an unacceptably asymmetric treaty and extradition arrangement that act against the interests of British citizens. The sole exception was the Solicitor-General, who clearly wanted to concentrate his remarks on the specific position of the three individuals who are to be extradited tomorrow, we believe. Their position is important, of course; it is important in human terms, it is important because they are constituents of some hon. Members, and it is important as an exposition of the effects of the treaty. However, I shall concentrate on the treaty and the orders as a whole and examine the ways in which they will affect, not just those three individuals, but many others in the months and years to come.
The hon. Gentleman says that I wished to focus entirely on one case; in fact, I did not. My notes were broad in relation to the treaty and the Extradition Act. I found it necessary to focus on the one case because I took a large number of interventions that dealt with it and therefore responded to the House’s wish to examine some of the issues in that case. I agree that we ought to have spent more time discussing the treaty and the Act rather than the specific case.
I am grateful to the Solicitor-General for his comments, but I think that most right hon. and hon. Members found an opportunity to discuss the general principles.
Let me sound one serious note of criticism in respect of the Solicitor-General’s remarks. I found his reference to “the Enron three” abhorrent. It was suggested that that is common usage, but in fact it is common usage only among Ministers. It is clearly pejorative and it is not an expression that the Solicitor-General—a Law Officer—should have used in this Chamber.
To complete my intervention on the hon. Member for Somerton and Frome (Mr. Heath). If I did as the hon. Member for Bethnal Green and Bow (Mr. Galloway) says, let me make it clear that I repeatedly said that at no point did I seek to prejudge or prejudice in any way the case in relation to those individuals, who, like all accused people, have a right to be considered innocent until proved guilty. That is my fundamental view and it applies to those individuals as well as to any others.
Of course I accept the Solicitor-General’s words at face value, but I repeat that the term is pejorative and could have been regarded as prejudicial had it been used in relation to a case that was still before a British court. It is extraordinary that it was almost claimed that a prima facie case had been proven against those individuals, despite the fact that no court has had the opportunity properly to examine the evidence and irrespective of the points made by the judge in the initial case.
Let me now discuss the general points on which the debate has focused. There is real concern about the asymmetry of the arrangements. That is nothing to do with the fact that the treaty is yet to be ratified—a fact that, to many people in this country, adds insult to injury. Even if the treaty were ratified tomorrow, it would remain an unfair treaty that the Liberal Democrats would oppose. I almost welcome the fact that it has not been ratified, because that might give us the opportunity to renegotiate.
The Government have behaved in an extraordinary fashion. First, let us consider ratification. The then Home Secretary, the right hon. Member for Sheffield, Brightside (Mr. Blunkett), in a written statement on 31 March 2003—our first opportunity to know about the treaty—said:
“Before the treaty can come into force it needs to be ratified by the United States Senate.”—[Official Report, 31 March 2003; Vol. 402, c. 42WS.]
As a statement of fact, that is true. Before the treaty can come into force, it has to be ratified by the Senate. What he omitted to mention was the fact that the British Government would not bother with bringing the treaty into force, but would instead ensure that its provisions came into force long before the Senate had had even the opportunity to not consider it. It is almost irrelevant whether the treaty is ratified, because the British Government, in an apparent attempt to curry favour with the US Administration, have already enacted all its provisions into our law.
Secondly, there is the matter of reciprocity. We have heard what I can only describe as sophistical arguments from the Law Officers and other Ministers about the equivalence of the provisions. I simply cannot reconcile their statements with what was plainly said by Home Office Ministers when we considered the orders made under the 2003 Act. In the Standing Committee on Delegated Legislation, the hon. Member for Don Valley (Caroline Flint) stated:
“In contrast, when we make extradition requests to the United States, we will need to submit sufficient evidence to establish ''probable cause''. That is a lower test than prima facie but a higher threshold than we ask of the United States, and I make no secret of that.”
It is impossible to reconcile that with what the Prime Minister said today and what the Law Officers have been saying in both Houses over the past two days.
Thirdly, there is the matter of application. We were told explicitly by Ministers that there was a limit to the application of the measures. I challenged that in the Committee, but was told by the hon. Member for Don Valley that
“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.”
That is directly countermanded by the fact that dual criminality was expressed in the form of the catch-all conspiracy to defraud provision, which meant that the individuals in the very case to which attention was drawn in Committee are now subject to extradition proceedings, so I cannot talk about the matter further.
Throughout the early stages of the legislation, we heard the refrain that it was all about terrorism. I do not want to dwell on the Conservatives’ position, because I welcome their support today. I utterly respect what the right hon. and learned Member for Folkestone and Hythe (Mr. Howard) said. I agreed with everything he said, which is a rare occurrence indeed. He admitted that the Conservatives had been gullible in believing what the Government said, he acknowledged that mistake and said that he would recommend to his right hon. and hon. Friends that they avoid repeating it. I exempt the right hon. Member for Wokingham (Mr. Redwood), who was a member of the Standing Committee and failed to vote on the draft order, who said
“perhaps the US-UK arrangements are a little less unbalanced than the Liberal Democrat spokesman has suggested”.
Well, he was wrong—they were every bit as unbalanced as I suggested and the right hon. Gentleman has now come to realise the folly of his position. The fact is that it was suggested that the legislation was to deal with big crimes and terrorism, when it was clear that it would apply to every offence that carried a tariff of more than one year’s imprisonment. That was clear to me right from the beginning.
We have an imbalance in the evidential requirements. The American authorities have to do little more than establish identity and the grounds for issuing a warrant—a much lower evidential test than anyone else must meet. We know that huge mistakes are made as a result of misidentification. Mr. Derek Bond, a rotary club member from Clifton in Bristol, was arrested in South Africa on the basis of CIA information that he was an international gangster and money launderer.
My right hon. and learned Friend the Member for North-East Fife (Sir Menzies Campbell) was right in Committee when he said:
“However, I ask those who feel tempted or disposed to vote for the orders to wait until a constituent is the subject of extradition proceedings on the basis of identification alone. I am willing to bet my bottom dollar, since we are talking about the US, that they will be beating at the doors of the Minister and the Home Office to say how unfair and unreasonable our provisions are that allow for their constituents to be treated in that way.”—[Official Report, Third Standing Committee on Delegated Legislation, 15 December 2003; c. 7, 26, 19, 21.
That is what we have seen today.
We should be concerned about the fact that we are dealing with 50 different state jurisdictions, plus the federal jurisdiction. Who knows what applies to Guantanamo Bay? We should be worried about the extra-territorial jurisdiction claimed by the Americans and about retrospectivity. Most of all, we should be concerned that we alone of the 132 states with which the US has bilateral extradition arrangements are willing to allow our citizens to be extradited on the basis of such a low and unequal burden of proof. A Minister acting under duress could not have signed a worse treaty and I object to that supine acquiescence, not because I am anti-American, but because a sovereign power such as Britain should defend the interests of British citizens. We are not a wholly owned subsidiary of the US. I urge the Government, even at this late stage, to consider tabling amendments to the Police and Justice Bill in another place, to consider revisions to the Extradition Act 2003, and to consider renegotiating the treaty. They should not be afraid to abrogate it, because it has been abrogated by the American Senate, which refused to ratify it. Let us deal with a situation that the people of this country recognise as unfair and which, I am pleased to see, the vast majority of hon. Members recognise as unfair, too.
I apologise in advance to right hon. and hon. Members if I fail to address their points, as I have only five or six minutes in which to respond.
We have had extradition treaties with the United States since 1796 and, for most of that time, those relationships have been uncontentious. The only criticism has been that procedures are often slow. Indeed, we heard about cases in which people waited eight or 10 years to be extradited. I am pleased that, under the Extradition Act 2003, such lengthy processes before someone can even stand trial, which are not in the interests of justice, will no longer take place. The Government have a responsibility to review and modernise the UK’s extradition laws, as that has not been undertaken thoroughly since 1870. The Home Office published a full review of extradition law in March 2001, which was well before 9/11—a point that has already been made. Many right hon. and hon. Members said that the treaty and the Act dealt only with crimes related to terrorism, but that is not the case. The Act deals with our relationship with a particular country and it covers all crimes, not just terrorism. I have a record of our debates in Standing Committee, in which the United States was designated as a country that did not require prima facie evidence. We made it clear that the designation, which changed our relationship with the United States, did not just apply to terrorism. Much of the debate, if anyone chooses to read it, was about different kinds of crime.
How would my hon. Friend regard a British firm whose criminal activity led to the destruction of thousands of people’s lives, their homes, pensions and their children’s education? What if we wanted to bring back to this country someone to give evidence on the international ramifications of such activity, but another sovereign legislature refused to accept our claim? We should not forget that we are talking about international law and international crime.
Absolutely. My right hon. Friend makes the case for the measure.
I shall concentrate on a few issues that arose in our debate. First, the Liberal Democrats requested a debate because they said that there had not been enough time or scrutiny. When the treaty was ratified, it was laid before the House for 21 days with an explanatory memorandum. It was submitted to the Select Committee on Home Affairs under the Ponsonby rules, which hon. Members can read in “Erskine May”. There was therefore an opportunity to examine the treaty, and it was dealt with in the way that new treaties are normally dealt with. The Extradition Bill proceeded through both Houses in an appropriate period, as is the case with any Bill, so hon. Members had an opportunity to comment on it. When the designation was made, it was subject to affirmative resolution in Standing Committee in both Houses, as normal. Conservative Members did not oppose the measure, but I accept that the Liberal Democrats did. We could therefore say that there is honourable opposition from our Liberal Democrat colleagues, but Conservative Members did not express opposition to the Bill, to the treaty during the 21 day-period in which it was laid before the House, or to the order in Committee. Provisions in the European convention on extradition were incorporated in the Extradition Act 1989 by a Conservative Government, who did not ask for natural—
On a point of order, Mr. Deputy Speaker. As I am sure that you are well aware, “Erskine May” makes it clear that, in this House, according to ancient practice, votes should follow voices. In my distinct observation, Government Front Benchers shouted, “No”, on the Division, but I have not seen any of them vote in the No Lobby. Will you therefore explain whether “Erskine May” has been observed by Government Front Benchers and confirm that that is the practice of this House? Perhaps you will even suggest why the Government are not voting in the Division.
The hon. Member for Banff and Buchan (Mr. Salmond) has misinterpreted what is set out in “Erskine May”. The best thing that we can do is wait to see the result of the Division.
Adjourned at six minutes to Four o’clock.