Lords amendments considered.
After Clause 46
Lords amendment: No. 36.
I beg to move, That this House disagrees with the Lords in the said amendment.
The adoption of these amendments by the other place was a bad day for international co-operation in the fight against crime. Today, we have the opportunity to put that right, and it is the last chance to do so. The amendments were proposed by misguided right hon. and hon. Opposition Members. Why? Because they believed that the amendments would somehow protect people accused of serious offences from facing justice abroad, rather than at home.
Leaving aside the whole question of whether Her Majesty’s Opposition should have allowed themselves to be so heavily influenced by blatantly inaccurate media reporting without checking their facts, my question is this: what is wrong with a provision on extradition that, when in government, they voted into law fully 17 years ago, when they implemented the European convention on extradition?
The question is not about extradition per se but about making a prima facie case to the courts. The United States requires a prima facie case to be made if it is to extradite someone here, but we do not require it to extradite someone there. That is the matter in question.
I understand the hon. Gentleman’s point, which has been made several times in the Chamber and in another place. Hon. Friends and I have answered it in Committee and at the Dispatch Box. I repeat—I shall do so again later in my speech—that the hon. Gentleman is, frankly, wrong. The United States demands probable cause of us. We demand of it information sufficient for a magistrate to issue a warrant for arrest. That constitutes reasonable suspicion. Probable cause and reasonable suspicion have what we call rough parity. They are as close as it is possible to get, given that no two legal systems exactly match. We therefore have parity and reciprocity in the evidence required between the United States and us.
I am grateful to the Under-Secretary for giving way so early in her remarks, but her point needs immediate clarification before she misleads herself or the House. Does she accept that the 1973 treaty between the United States and the United Kingdom required mutual parity, albeit through different wording? We required a prima facie case and it required reasonable cause. Does she accept that the 2003 treaty does not contain parity and reciprocity, and that probable cause is not matched by information? Information is a different legal concept from probable cause, which is based on evidence.
I regret that the hon. and learned Gentleman does not appear to have listened to what I said. However, let me answer his two points clearly. I do not accept that the 1973 treaty delivered parity. There is no parity between a prima facie case and probable cause. I believe that there is rough parity—I repeat that no two legal systems are the same—between probable cause and reasonable suspicion. Before the Extradition Act 2003 was introduced, an imbalance existed but it was the opposite of what Conservative Members suggest.
The Under-Secretary may know that I sit part-time as a district judge, so I know as well as many our duty to do justice. If a UK citizen is before a court because the Americans are trying to extradite him or her, is not it our fundamental duty to say to the Americans, “You have to establish a prima facie case through evidence before we extradite”? Is not anything else a gross dereliction of duty to our UK citizens?
I disagree. It is our duty to do justice, and our extradition arrangements are about justice for victims and bringing the perpetrators of crime to justice. The purpose of the 2003 Act and the treaty is to ensure that justice is done in some serious cases—I am sure that I do not need to tell the hon. Gentleman that. We are dealing with a trusted partner and a legal system in a long-standing democracy, with which we have had a relationship for more than 100 years. We have operated under the 2003 Act for two years without experiencing any difficulty. We demand of the United States information sufficient for a magistrate to issue a warrant for arrest. An individual before the courts facing extradition has to go through due process, and has numerous opportunities to put their case to the courts. They are also covered by the European convention on human rights. It is important that we take that into account.
I do not ask the hon. Lady to accept anything that we say; I simply ask her to accept what her ministerial colleague, Baroness Scotland, said in another place on this point on 16 December 2003. She said that the test that we have to meet when we seek extradition to this country is
“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.]
Those were the precise words of the hon. Lady’s ministerial colleague in another place. Why does she continue to fly in the face of those words?
I have said to the House that there is no exact parity. There is rough parity. I reiterate that case, and no amount of insisting that there is a higher threshold or a lower threshold will change the fact that this is rough parity. It is as close as we can get, and we are satisfied—because we see it in operation—that it delivers justice.
I want to make a little more progress, then I will give way to other hon. Gentlemen and hon. Ladies.
The European convention on extradition enabled the UK to extradite without prima facie evidence. Since 1991, when it came into force, scores of people who were wanted for very serious offences have been extradited from this country without prima facie evidence. I have no doubt that the world, including this island, is a safer place because of that convention. In the same way, the UK has been able to bring people back here to face justice in our own courts. I salute those on the Opposition Benches who were members of the Government at that time for their foresight and common sense. Sadly, however, some of those same Members and others on those Benches thought that the decision to extend those provisions to our arrangements with the United States—a decision that the official Opposition did not oppose in 2003—should be reversed. Why? People have been extradited from here to the United States, and vice versa, for more than 100 years. We trust the United States’ system just as it trusts ours—it is as trustworthy as that of our neighbours in Europe—and its Bill of Rights safeguards defendants’ rights in its courts just as our convention on human rights does in ours. So, what could be the problem?
Is not the real difference between evidence on the one side and information on the other? Does not that mean that in the United States it is possible for someone to challenge the evidence on the substance of the case against them, in terms of whether it is believable and whether it could be negated—or, to use the American term, obliterated—by other evidence? In this country, however, that is not possible. That is an important difference, and the Minister should recognise that that is the difference that she is talking about.
I should like to go back to the question that I just asked. What could be the problem? Why do Opposition Members want the US not to be in this relationship with us? Could it be something to do with the new extradition treaty that our countries signed in 2003? That treaty was under discussion, by the way, before the terrible events of September 2001. The treaty was necessary to bring our extradition arrangements with the United States up to date, to enable us to co-operate with each other effectively, and to fight the ever-changing threats of 21st century crime.
The problem is that although many Conservative Members were tolerant and sympathetic to the Government when the provision was presented as something to do with terrorism, in the case of alleged white collar crime—[Hon. Members: “Ah!”] This concerns Labour Members’ constituents as well as ours, and they should listen carefully. Where the person has committed no crime in Britain, the prosecuting authorities are bringing their case, and the employer—a multinational—is quite happy, is it right that that person should be plucked away from their family for a very long time on a charge that we do not think will go anywhere?
I say to the right hon. Gentleman that fraud is not entitled to some kind of exemption. There is no such thing as a victimless crime. The victims of fraud have no choice about being victims, whereas the person who perpetrates fraud makes a choice. The victims of fraud often lose their savings and their pensions. The fact that people can subsequently be convicted does not restore to victims what they have lost. These are therefore very serious matters. The right hon. Gentleman will know that when the effects of a crime are judged to be primarily in another state, where the evidence and witnesses are based, our independent prosecutor system decides whether the prosecution should take place here or there. That decision is not made by politicians.
When the Minister says that there is reciprocity because information is evidence, does she agree that the key point is that information laid by the Americans cannot be contested by defendants on this side, whereas in America, as the hon. Member for Cambridge (David Howarth) correctly says, it is possible for our claims to be contested by defendants?
I have explained to the House that there is rough parity, and that in this context information is evidence.
For an individual for whom the courts are considering an extradition order, there is lengthy due process. Not only does the prosecutor consider the case but a certificate must be issued in the Home Office. The case goes to a district court, and it can be appealed to a higher court, the House of Lords and the European Court. Due process protects the rights of our citizens. If those citizens stand accused of serious crime, however, we should facilitate justice. That is what this Act and treaty are all about.
It is a little distressing to see the Minister trying to argue an unarguable case, which is probably not necessary. The plain fact is that we do not have reciprocity, and everybody knows that. I and many others like me are entirely in favour of fast-track extradition, which we have with many civilised countries in the world. I would be in favour of having that arrangement with the United States, but the problem lies with the fact that America will not and cannot sign up to that, as, constitutionally, it cannot do so. That is what has been argued, and I think that the Minister knows that very well. We therefore have an unequal system. The plain fact, however, is that that probably does not matter much. With great respect, that is where the Minister—
I thank my hon. and learned Friend for his support on fast-track extradition. We will have to agree to disagree on the question of reciprocity. I think that it is reciprocity, and many others agree with that. However, my hon. and learned Friend gets to the crux of the matter. As I said, this is about justice. Under either system, and whatever level of evidence has been required, the United States has extradited more quickly to us than we have done to it.
One of the things that trouble me, and perhaps other Members, is the possibility of United Kingdom nationals who ought to be tried in the United Kingdom being extradited to America when there is a case that should be heard here. What discussions have the Minister and the Attorney-General had with the Americans to try to build on the co-operation that she mentioned earlier, and particularly to ensure that proper decisions are made about the correct forum? I am thinking mostly about the position of defendants from minority communities, as I am more concerned about them than I am about rich bankers.
I hope that I can satisfy my hon. Friend. The Attorney-General has opened discussions with his counterpart in the United States. He met the US Attorney General in Washington in September, and raised those issues then. Discussions are now under way between their respective officers on enhanced procedures for consultation between the UK and US prosecutors on such transnational cases. The proposed procedures envisage early consultation in any case in which it appears to a prosecutor in one country that there is a real possibility that a prosecutor in the other country may have an interest in prosecuting it. I can also tell my hon. Friend that my right hon. Friend the Home Secretary will be speaking to the US Attorney-General in the next few days on exactly these matters. We think that my hon. Friend’s point is important, and we are addressing it.
I think that I should make a little progress. I will certainly take more interventions after that.
If the Opposition amendments are not reversed, the new treaty—including all its new provisions to help British victims of crime—cannot be ratified. On 29 September the United States Senate gave its advice and consent to the treaty’s ratification, thus reaffirming what we have believed all along—that both sides signed the treaty in good faith, and for the mutual benefit and safety of our citizens. Now we must act too.
If my hon. Friend will bear with me for one moment, I will ensure that I give her an accurate answer.
The Senate’s advice and consent to the treaty was subject to a resolution relating to the situation in Northern Ireland, which is, I think, what my hon. Friend is asking me about. The United Kingdom Government have already stated, in September 2000, that they will no longer pursue the extradition of individuals who, if they were to return to Northern Ireland, would now be eligible for early release under the terms of the Good Friday agreement scheme, and who would, on making a successful application to the Sentence Review Commissioners, have little if any of their original sentences to serve.
The resolution to which the Senate’s consent to the treaty was subject is non-binding. It was intended to reassure senators than the treaty would be implemented in accordance with the US law and constitution. I hope that that deals with the point that my hon. Friend was making. As I said, on 29 September the US Senate gave its advice and consent to the ratification of the treaty, and now we must act too.
Let me pause to spell out what will change when the treaty comes into force. I ask for Members’ patience, because extradition is complex: the distorted simplifications in the media bear witness to that.
I have already fully answered the question put by my hon. Friend the Member for Vauxhall (Kate Hoey) and what the hon. Gentleman has just said was not part of my answer.
The new treaty will define extraditable offences not with a fixed list of crimes, but by sentence threshold. Offences punishable in both countries by a year’s imprisonment or more will be extraditable, which is the dual criminality rule.
It is essential that we have the ability to go after suspects who have fled the UK. If they are wanted for a new offence, perhaps one not dreamed of in 1972 when the current treaty was signed—we need to reflect on how much crime, especially organised and serious crime, has changed since then—we must ensure that we have the tools to fight it.
The treaty will also allow the extradition of someone who is already serving a prison sentence—a measure called temporary surrender, which is incredibly important, because with increased ease of travel, criminals, just like the law-abiding majority, can travel much more than in the past. It was a new measure in the Extradition Act 2003, and the UK recently effected its first temporary surrender in Europe on someone serving a long sentence here for rape, who was also wanted abroad for the same terrible crime. Owing to the temporary surrender measure, his victim abroad is able to get speedy justice for that crime. I need hardly say that justice delayed for a crime like that is justice denied. That procedure needs to be made possible between the UK and the US, for the same reason.
As I understand the amendment and the motion to disagree, we are dealing particularly with the USA. However, I understand—the Minister will correct me if I am wrong—that since 1991, the UK has had arrangements with a number of countries for extradition based on information rather than on a prima facie case. I do not know how long it would detain the House, but could the Minister provide some indication of some or all the other countries with which we already have an information rather than a prima facie arrangement?
I am answering my hon. Friend’s intervention.
In that category are some 50 countries with which we have that particular relationship, so by no means is the US out there in some amazing category on its own. Other countries where prima facie evidence is not required include Albania, Andorra, Armenia, Azerbaijan, Croatia, Georgia, Iceland—and I could go on. Canada, Australia and a huge range of countries that have these extradition arrangements could be specified, but I am sure that my hon. Friend gets the point. It is not at all unusual; what is unusual is that, for some reason, there is a huge focus on the arrangement with the USA.
I am deeply grateful to the Minister. However, the planted intervention from the hon. Member for Wolverhampton, South-West (Rob Marris) was interesting only in so far as it pointed out that all the countries that she began to list have exactly reciprocal arrangements with us. The US does not, so the point is a false one.
We also have reciprocity with the US, as I have outlined a number of times. At the end of the day, that question can be put time and again, but the hon. and learned Gentleman is not prepared to accept my explanation. My explanation is, however, the correct interpretation, because we have reciprocity. It is rough parity—the highest level of reciprocity that is possible between two legal systems.
I am not giving way on that point, as I want to make some progress.
The treaty will also permit the waiver of speciality protection. I want to talk about the treaty because it has been such a big issue for hon. Members, especially Opposition Members, every time the issue has been discussed in the Chamber. Opposition Members have insisted that we would not be able to achieve ratification in the US Senate, but Baroness Scotland went to the United States and persuaded the Senate that ratification was right. The measures in this treaty, which bring great benefits to British citizens in terms of delivering justice, are worthy of a little attention. It saddens me that Opposition Members do not want to talk about what is actually in the treaty, but are entirely focused on the points in the Extradition Act 2003, which we have discussed ad infinitum. I ask them to address some of the issues in the treaty.
The speciality protection could be very important. “Speciality” means that when someone is extradited they can be tried only for the conduct on the extradition warrant. That is an obvious protection of their rights, but what if our police found—after the person had been returned here—that he was also the prime suspect in a completely separate crime? And what if it was a very serious crime, such as a sexual attack on a child or a terrorist offence? It has happened in real cases that such offences have come to light after extradition. Would it not be in the interests of justice and the victims of the crime to be able to prosecute those offences as well? Waiver of speciality enables that to happen where appropriate. It is essential that we have that measure in our arrangements with the United States.
Can my hon. Friend give specific reassurance to a group of my constituents from the Muslim Welfare House who are especially concerned that if one of their number were to be extradited they could end up in Guantanamo Bay?
I know that that has been an issue of concern for several hon. Members, so I am grateful for the opportunity to address that point. When a judge in this country is making a decision about an extradition warrant, they have to apply the European convention on human rights. If we extradite someone to the United States and they are then removed to a detention centre such as Guantanamo Bay, that would in our view be a breach of their human rights. If our courts, when hearing an extradition request, thought for one moment that a breach of human rights would occur, they would not extradite. If they did extradite and there were a breach, it would never happen again, because our courts would refuse to extradite on that basis. We would immediately be in a situation in which the US was no longer designated in that category.
I wish to add what is perhaps the most important point. We seek assurances on such matters, where appropriate, from the US. For instance, when we extradite someone who has committed an offence that would carry the death penalty in the US, we seek assurances that that penalty will not be applied to the citizen we are extraditing. Similarly, in cases such as those that my hon. Friend mentions, we seek assurances, and we have been given assurances. I can tell my hon. Friend that the US has never breached the assurances that it has given. I hope that that covers the point that she has raised with me.
The situation in Guantanamo Bay is very worrying for many of us, but when the magistrate who deals with such applications for extraditions to the US gave evidence to the Home Affairs Committee, he was asked if he would ever agree to the extradition of anyone who could end up in that place—which should not even exist. He said that if he thought that there was any such danger, his response would be to reject the application. I hope that that continues to be the position.
Both of my hon. Friends who have intervened about Guantanamo Bay are right to say that it is a matter of deep concern to members of the Muslim community. Will my hon. Friend the Minister confirm that my right hon. Friend the Home Secretary has written a letter to me about Mr. Babar Ahmed, whose case is before the High Court? If Mr. Speaker will allow me, I should like to read from it. My right hon. Friend says that
“in relevant cases, the court has been given an assurance that the person sought will not be sent to Guantanamo Bay.”
I can indeed confirm that my right hon. Friend the Home Secretary has written to my right hon. Friend in exactly those terms. I thank him for that helpful intervention on this very serious matter. It further illuminates and confirms what I am telling the House.
I want to make progress, as I am sure that other hon. Members want to contribute to the debate.
There is another measure that will bring justice to those who have been denied it in this treaty. When an offence in the US is barred by lapse of time from prosecution there, dual criminality means that the suspect cannot be extradited to be prosecuted for it here. The treaty’s removal of the bar due to lapse of time could be important in returning sex offenders to the UK, where their victims might not have spoken of their ordeal until many years after the event, or in prosecuting a so-called “cold case”.
That explains why we need the treaty.
I am grateful to the Minister. My constituent Mr. Giles Darby is one of the so-called NatWest Three. He is experiencing not rough parity but rough justice. Is it right that a person can be extradited to face such draconian bail terms? Fortunately, my constituent is not in Guantanamo Bay, but he faces months and months away from his family, home and livelihood. Where is the parity in that?
We are discussing the Lords amendments, and it would not be appropriate for me to discuss individual cases in the Chamber. However, Conservative Members insisted that bail would never be given in the US, and that the Senate would never ratify the treaty, yet bail was given and the Senate did ratify the treaty. Their assertions are falling one by one, so perhaps they should reassess their position.
I give way to the hon. Member for Somerton and Frome.
I am grateful to the Minister, as I want to speak from the consistent Benches. I draw her attention to article 2, clause 4 of the treaty. As she knows, America claims extraterritorial jurisdiction over a wide range of American offences, whereas we tend not to do the same. The passage to which I refer is interesting, as it states that
“if the laws in the Requested State do not provide for the punishment of such conduct committed outside its territory in similar circumstances…the executive authority of the Requested State, in its discretion, may grant extradition provided that all other requirements of this Treaty are met.”
In other words, there is discretion if America is claiming extra-territorial jurisdiction in circumstances in which we do not, but that is not transposed into our law either through the Extradition Act or through the regulations that flow from it. Why is the one element of discretion available to us to prevent inappropriate extraditions not being dealt with in British law?
As I said, I want to move on and deal with each of the three Lords amendments in turn.
The first of the amendments restores the prima facie evidence requirement in US requests, to which I referred earlier. Much has been said about claimed differences in the standards of evidence required by the US system and ours. The fourth amendment to the US constitution refers to “probable cause”, stating that
“no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”
In the UK, the law that applies is section 71(4) of the Extradition Act, which states that
“the judge may issue a warrant…if the judge has reasonable grounds for believing that…there is information that would justify the issue of a warrant for the arrest of a person”.
Clearly, those standards are not exact replicas—of course not; our system is not exactly replicated in any other country—but they are very similar, and much closer than before. I remind Members that other robust safeguards in our extradition law can, and do, prevent unjust extradition, and they have been upheld in several cases taken to the High Court.
On the point about rough reciprocity, in previous debates in this and the other place Ministers stated that probable cause is a lower cause than prima facie, but a higher threshold than we ask of the US. Ministers have, therefore, acknowledged that lack of reciprocity, although I agree with my hon. Friend that it is not reciprocity that is important, but justice.
I think I have covered that point more than once this afternoon, and we shall no doubt come back to it more than once as the debate continues. Rough parity is all that is possible unless we harmonise our legislation, which we do not propose to do. Rough parity means that we are as close as we can get to having the same standard of evidence required in the US or the UK for an extradition request to be confirmed.
The second amendment from the other place requires the judge who is considering the request to refuse it if any of the conduct was carried out in the UK, unless it would be in the interests of justice to extradite the person. I understand that some Members attended a briefing this afternoon by the supporters of the amendment, so I shall explain why amendments Nos. 81 to 84 will not solve the problem as they see it. We cannot remedy one problem—real or perceived—by substituting another.
There are several reasons why these amendments are wrong. The first is the difficulty that they would impose on the judge in coming to a reasonable decision on a case without having access to all the evidence, which may itself not be in the interests of justice and could lead to the person being tried twice. Alternatively, it could result in someone accused of serious cross-border offences escaping justice altogether. Where prosecutors have decided that a case should be tried in country A, rather than country B or C, it is not proper for a judge to second-guess that. If a person is requested for extradition, the Extradition Act in any case—right now—provides for the extradition to be halted if the prosecutors here decide to take proceedings. So the amendment is both unnecessary in the interests of justice, and wrong.
Is it always the case that prosecutors in this country will seriously look at the case in that way? If extradition proceedings were initiated from another country—we are not talking just about the United States; the measures apply to a whole range of countries—will the Crown Prosecution Service seriously consider whether there should be a prosecution in this country? Is it not just as likely that the extradition proceedings will go ahead without that consideration being given?
I can assure my hon. Friend that our prosecutors look seriously at such matters. I refer him to the answer that I gave my hon. Friend the Member for Hendon (Mr. Dismore): of course these issues have been raised and the Attorney-General and the Home Secretary are having conversations with the Attorney-General of the United States about the system. As my hon. Friend the Member for Walthamstow (Mr. Gerrard) said, this is not just about the United States—although I am afraid that in this instance it is, because those are the amendments before us. Perhaps he, like me, is thinking that there are 50 countries in this category. I can reassure him that one of the strengths of our prosecution system is that it is independent of the judiciary. We do not wish to discard that, and the amendment would mean that we had to discard it.
Our prosecutors do consider the cases. As I have said—I hope that this reassures my hon. Friend, because we have seen cases in which this has happened—if the prosecutors, such as the Crown Prosecution Service, the Serious Organised Crime Agency and the Financial Services Authority, decide that there is a case to answer here, that takes precedence. That is why the amendment is both unnecessary and wrong. However, the Government recognise that much concern has been expressed about the fairness of our provisions—rightly or wrongly—and that there is a widespread perception that there is a lack of clarity. In view of that, as I have said, the Attorney-General has already raised the issue with his counterparts in the United States.
As I also said in response to my hon. Friend the Member for Hendon, the proposed procedures envisage early consultation on any case which it appears to a prosecutor in one country that there is a real possibility of a prosecutor in the other country having an interest in prosecuting. That does not need to be repeated further. Reassurance has been provided on that point. These proposals would not contain the serious flaws of the Opposition’s forum amendments, and would, I am sure, provide business people and others with reassurance that the Government have listened to their concerns and taken action. My right hon. Friend the Home Secretary will meet the Attorney-General in the next few days to discuss these matters, and to take that forward.
I am not going to give way any more on that point.
Finally, the third change suggested by the Opposition, amendment No. 85, requires a future designation of the United States, and the treaty in force, to be consistent. The amendment is badly drafted and obscure, but basically it is unnecessary, because any such designation order must be approved by a vote in both Houses of Parliament, so parliamentary control over future designation orders is already securely in place.
As I said at the beginning of the debate, this is our last opportunity to undo the damage done in the other place and enable the United Kingdom to realise the benefits of the new treaty. Hon. Members should be in no doubt about the consequences of the Lords amendments: they would wreck the chance to ratify the new treaty, wreck our ability to bring more fugitives from justice to book, and make extradition slower and less effective. In the interests of justice, in the interests of victims of crime and in the interests of making this world a safer place, those amendments must go.
The American jurisdiction has a concept of cruel and unusual punishment. Having listened to the Minister for the past 45 minutes, I sympathise.
First, I want to tackle head on a mistake that the Minister allowed to emerge from her speech when she cited section 71 of the Extradition Act 2003 and tried to gain support from that provision for the assertion that the concepts of information and evidence were precisely the same. Either she does not understand section 71, or she has misread it. A careful or, indeed, cursory reading of the provision makes it clear that evidence and information are wholly different concepts and that they are applicable in different jurisdictions. Evidence is what we have to show to the United States, while information is what the United States has to provide to our courts. The two concepts are not the same and the 2003 Act does not say that they are, so it was wrong of the Minister to mislead the House, albeit unwittingly, by saying that they were similar concepts.
Could we not have highlighted another mistake if the Minister had allowed us to intervene? She seemed to think that none of the forum rules was determined by judges, but the forum rules under the 1957 European convention on terrorism are determined by judges. The idea that the forum should be determined by prosecutors is rather novel. The Minister seemed to think—and was pretending to the House—that that was the norm, but clearly it is not.
My hon. Friend and I know, as others will know from practising at the Bar, that judges day in and day out have to decide the issue of forum, whether it is in the civil or criminal jurisdiction. My hon. Friend is entirely right—it might be for a prosecutor to make a case, but it is for a judge to make a decision.
I urge the House to support the Lords amendments because the Government’s opposition to them is unjust, unfair, undemocratic and damaging to the interests of this country and our citizens. In November 2003, the Extradition Bill, as it was then, to alter the extradition arrangements between the United States and this country became law. Such a measure became law in this country, but not in the United States. It is not certain whether the measure’s American counterpart is in force in the United States because although the new extradition treaty has been ratified by the United States Senate, it is not yet clear whether the President of the United States has signed the relevant legislation into law. In a sense, that might not matter to the argument that I will make against the Government’s conduct of the treaty and their acceptance of its contents.
My complaint is that in March 2003 our Government, through the then Home Secretary, the right hon. Member for Sheffield, Brightside (Mr. Blunkett), reached an agreement with the then United States Attorney-General, Mr. John Ashcroft, that replaced the 1972 British-American extradition treaty and, in doing so, did not protect our national interest. The new treaty is neither fair nor based in justice. The 1972 treaty set out each country’s obligations to the other. It was fair, just, balanced and transparent. The treaty allowed for the extradition of people from here to the United States if a prima facie case of criminal conduct could be shown in America that matched, or was similar to, a crime in this jurisdiction. We could extradite from the United States to Britain if we could show probable cause. I accept that there was a difference in wording, but, in all practical terms, the treaty demanded an equal legal test. In short, we had a treaty that honoured the doctrine of reciprocity. Each country had to show that there was evidence in the hands of the prosecution that, if uncontradicted by evidence from the accused, would be sufficient to justify conviction or demonstrate reasonable grounds for a suspicion of guilt.
The 2003 treaty was signed by the two Governments without prior notice to the House. It was negotiated and signed behind our backs. We can speculate on the reason why the Government chose not to let us in on the secret, but until the former Home Secretary writes that part of his diaries, it can only be speculation. Was it part of some side deal on Iraq, or something to do with advancing the peace process in Northern Ireland? Was it because he did not know what he was doing, or because he was under such domestic pressure that he could not think straight? Who knows?
We know, however, that the secret treaty of 2003 upset the balance of the 1972 treaty. The Americans need no longer demonstrate a prima facie case, but we must still show probable cause. They need only provide information, but we must have evidence, and the two are by no means identical concepts in law. That is what is fundamentally wrong with the current treaty. Even though the United States ratified it during our summer recess—all of us would accept that it took far too long to do so—it is a treaty to which the Government should not have agreed. Indeed, they would not have been allowed to agree to it if they had asked Parliament’s permission before signing it.
The Government have never given any good reason for the provisions in the treaty that set a lower test for the United States than for the United Kingdom and which were made law in this country by the Extradition Act 2003. Nor has any good reason been given for the Home Secretary excluding the United States from the list of countries required to show a prima facie case under the designation order of November 2003. Why has the United States been removed, by Government order, from the list of countries in category 2 that have to show a prima facie case?
I am concerned, too, that the Government have been careless with our citizens’ rights and the jurisdiction of our courts, which should try citizens for crimes committed in this country. When the Government introduced the European convention on human rights into domestic law, they proclaimed, quite falsely, that they were bringing human rights home, yet that same Government ignored the 1957 European convention on extradition and the European Council framework decision of June 2004, to which the UK is party while the United States is not.
Further to my hon. and learned Friend’s point, is not the lack of reciprocity and the inadequacy of the treaty made worse by the fact that, of all the countries that have bilateral extradition treaties with the United States of America, only the United Kingdom lacks the provision for a carve-out, which enables US citizens to be tried in this country for offences committed on UK soil? Is that not a serious and grave omission in the treaty?
It is, and what my hon. Friend says is true. I have before me a little list, which is no doubt exactly the same as the Minister’s list. It starts with Albania and runs all the way down to Zimbabwe. The only country on the list that does not have a reciprocal arrangement with the United States, from A to Z, is—hon. Members will have guessed it—the United Kingdom.
The European convention and the European Council framework decision seem to us to be good enough to support, but the Government do not think so. Article 7.1 of the convention states that if the conduct in question was partly committed in the UK, the judge dealing with the request for extradition will not order extradition unless, in all the circumstances, it is in the interests of justice to do so—a point made by my hon. Friend the Member for Banbury (Tony Baldry). It is the judges who make the orders, not the prosecutors. The 1991 European convention on extradition says precisely the same, and in deciding where the interests of justice lie the judge will consider whether the prosecuting authorities in this country have refrained from prosecuting the person whose extradition is requested.
I may have misunderstood the point, but my understanding is that both France and Ireland have treaties with evidential provisions identical to those that the UK has with the United States, so it is not the case that the UK arrangements are unique. Is that correct?
Is it not the case that although France and Ireland have unreciprocated treaties with the United States, that is mitigated by the fact that the French authorities will not under any circumstances extradite a French citizen, and by the fact that, in the Irish case, there is a forum provision similar to the one before us today?
That is exactly right. The further exceptions that Ireland has come under article 3 and article 5 of its treaty, with which I am sure the right hon. Member for Southampton, Itchen (Mr. Denham) is wholly familiar.
Under the convention law applicable here, an arrest warrant prior to transfer of the accused to another convention country will not be issued unless the judge is persuaded that it would not be right to try the case here and the case has a better connection with the other country. He will consider the connection between this jurisdiction compared with the other as regards the facts and the persons involved in the case, where the witnesses are more available, the nature of the evidence, and the availability and admissibility of the evidence. In the jargon, these are the issues of territoriality and forum—where is it right to try a particular case?
If there is no adequate connection between the facts, the witnesses, the evidence and the accused on the one hand, and the requesting jurisdiction on the other, the judge will deny the warrant and prevent the transfer. Admittedly, that does not involve the argument over probable cause or prima facie case, but it does not need to because of the protection provided by the arguments over connectivity and the terms of the conventions, and because—this is the point that the Minister failed to grasp—there is reciprocity of terms as between the countries involved. That does not exist in the treaty between the United States and the United Kingdom.
If that was good enough for the convention on extradition, it ought to be good enough for applications to remove British bankers from England to Texas, for example. And if it is good enough for the extradition treaty between Ireland and America, it should be good enough for the extradition treaty between America and us. If it was good enough for the European Council framework decision of June 2004, it should be good enough for the United States and us. That is what the Lords amendments at heart are all about, and the Government have failed to produce even half an argument against them.
The Home Secretary has been muttering under his breath, in so far as he is capable of muttering, that the reciprocity argument is precisely the line that his agreement, or the agreement of his predecessor but one, with the United States is all about, but it is not based on fact. It is not based on a reasonable interpretation of the language that we speak in the House—English. I suggest to the Home Secretary that rather than mumble, and rather than allow the Minister to go through the ordeal of presenting the Government’s case to the House on this day, he should have done his own homework, he should have read back, and he should have looked at the treaty, at what it says, what it means and what it does to the relationship between us and the United States.
If the Government have, as they claim, brought human rights home, why does the Court of Appeal say that the extradition treaty signed in 2003 overrides the Human Rights Act 1998? Justice should be blind, but it should not be stupid, nor should it be told by the Government to ignore common sense, our traditions of fair play and the comity of nations that underpins all international treaties. “Mutual respect” are the two words that make treaties stick, but they were absent from the Government’s mind when the treaty was signed. The Lords amendments restore that mutual respect to our judicial relations with America.
Whether or not the hon. and learned Gentleman believes it, I am listening carefully to his speech and I am trying to work out what his principal objection is. Perhaps he could elucidate it for the House. Does he object principally because he perceives a lack of reciprocity, which is why he referred to the list from Albania to Zimbabwe, or because the evidential burden—the information in contradistinction to probable cause—is too big a gap evidentially? Is it one or both objections that trouble him?
It is sometimes possible in the House to lose the will to live. Let me try again, and I will speak a little more slowly. The hon. Gentleman should understand that there is no reciprocity between the obligations imposed upon the United States as a requesting jurisdiction to Britain, as compared with Britain’s obligations when requesting extradition from the United States. So internally, within the treaty, there is no reciprocity. There is no balance. There is no meeting of obligations. That is point 1. [Interruption.]
There was no identical reciprocity. I accept that. The Home Secretary is mumbling again. Let me explain to him, too, as he is listening. It is very good of him to turn up. Under the 1973 treaty, we had to demonstrate probable cause in the United States; the US had to demonstrate a prima facie case in this country. We all accept—there is no controversy about this—that those were not exactly equal terms, but to all intents and purposes the courts on both sides of the Atlantic treated them as equal tests. They were both based on evidence. Now we have a different test. [Interruption.] We still have to demonstrate probable cause. That essentially means evidence that can be tested and which, if uncontradicted, allows a court to reach the conclusion that there is a good case to answer and that the person who is under the request is suspected of being guilty. The United States merely has to lodge with our courts information that comprises essentially untested allegations.
Perhaps the hon. and learned and Gentleman would deign to share his views, for the elucidation of lesser minds, on this simple question: if there could be reciprocity previously where there was no identity—as he has said, the burden of proof for prima facie evidence was higher than that for probable cause—why can there not be reciprocity without identity now?
Let me try again. As I said before the Home Secretary interrupted—I was delighted that he did—the tests that we had to apply on both sides of the Atlantic were evidence-based, and the evidence could be contested. [Interruption.] The problem that we now face is that we have to present evidence, while the Americans only have to present information, and the information and the allegations are untestable.
Has my hon. and learned Friend spotted the complete contradiction between the line now taken by the Home Secretary and the line taken by the Minister in her speech? The Home Secretary has acknowledged that there is no reciprocity in the two tests, but the Minister went to endless lengths to pretend that there is. They cannot both be right.
It would help if the hon. and learned Gentleman understood English as well as he understands law. I was not saying that there is no reciprocity; I was saying that there is no need for identity in order to have reciprocity. [Interruption.] That is precisely what the hon. and learned Gentleman has said about the prior position.
If I say it three times, the cock will probably crow, so I will leave the matter there.
Under the 1973 treaty, both sides had to present evidence. Although the wording was different—we all accept that “prima facie” are two different words from “probable cause”—to all intents and purposes the courts on both sides of the Atlantic agreed that the tests were similar and that the evidence could be tested. Now we face a situation in which we must provide evidence, whereas the United States will merely make allegations.
As a result of what the Home Secretary has done, we have given greater protection to the citizens of the United States than we are willing to grant to the citizens of the United Kingdom.
At the risk of the hon. and learned Gentleman being gratuitously rude to me, as he has been to other Labour Members, I shall put this point: on probable cause, is it not the case that before a federal warrant for extradition can be issued, probable cause must be shown in America to a grand jury? The issue of probable cause is tested in the American courts to the satisfaction of a grand jury, a system which in some ways is superior to our own, before it is considered in a United Kingdom court.
The hon. Gentleman’s experience of the federal jurisdiction in the United States is surely greater than that of all of us, but I suggest that he looks at the treaty to see what it says. We have to apply the treaty as amended by the designation order. He may find little comfort in his remarks; certainly, the Government will find no comfort in them.
Did my hon. and learned Friend notice that the Minister said that it was now clear to the Government that detaining people at Guantanamo Bay violated the rights granted under the European arrangements? Does he remember them saying that when British citizens were detained in Guantanamo Bay the Government had a duty of care to them? Does not that show that they are craven towards the American jurisdiction, which is the nub of the problem?
My right hon. Friend uses his own language. However, as we have said any number of times today, there is clearly a disparity between the obligations on us as against them and on them as against us. That is the central point, and until the Government grasp that—until they read their own treaty—we are going to find this pretty heavy weather.
If I may help the hon. Member for Hendon (Mr. Dismore), probable cause before a grand jury differs from probable cause before an extradition magistrate for precisely the reason that we are discussing. In a grand jury, the other side of the case is not put, whereas in an extradition court it is.
The hon. and learned Gentleman has been on his feet for not far short of 25 minutes, giving us his lawyerly dissertation on these matters. However, the only people he has mentioned are white collar defendants. Not once has the word “victims” crossed his lips. Does he care where the victims are? Is there no victim between here and the US whom he wishes to mention?
Let me make it clear to the hon. Lady, who at least represents a constituency within this jurisdiction, that I am interested in justice for all my constituents and for all the people of this country. I am not selecting one class of alleged criminal as against another. Let me make another thing clear. Opposition Members, particularly Conservative Members, are not anti-American—quite the contrary. We are pro-justice and pro-fairness. We were elected by our constituents not to give away their rights to a foreign power, but to stand up and protect them within the rule of law.
Surely the founding fathers of that great republic, the United States of America—men like John Adams, Thomas Jefferson, Benjamin Franklin and their co-signatories of the declaration of independence, from Georgia in the south to Rhode Island in the north, and men such as Washington who argued and fought for independence in the 1770s and created a country united in its fierce defence of freedom under the law—would shudder at what our Government have done. Let me recall just a few of the words written by Jefferson in the declaration of independence signed on 4 July 1776. Many Members will already know the preamble, which I will not repeat, but they may not be so familiar with the signatories’ indictment against King George III towards the end. This is part of it:
“He has combined with others to subject us to a jurisdiction foreign to our constitution, and unacknowledged by our laws; giving his Assent to their Acts of pretended Legislation”.
They go on to accuse him of
“transporting us beyond Seas to be tried for pretended offences”.
Then the declaration booms out across the centuries these painful charges:
“Nor have We been wanting in attentions to our British brethren. We have warned them from time to time of attempts by their legislature to extend an unwarrantable jurisdiction over us. We have reminded them of the circumstances of our emigration and settlement here. We have appealed to their native justice and magnanimity, and we have conjured them by the ties of our common kindred to disavow these usurpations, which would inevitably interrupt our connections and correspondence. They too have been deaf to the voice of justice and of consanguinity.”
If we change the countries around, the thrust of those charges fits today. The reach of the United States is long and powerful, but its founders would not agree with some of what it is doing now. Guantanamo Bay, military commissions and extraordinary rendition all fly in the face of the declaration of independence, and if, by supporting the other place in these amendments, we can realign the desires and principles of 18th-century America with those of 21st-century Great Britain and restore mutual respect, we will have done good work today. I urge the House to get off its knees and stand up for justice and fairness, and to control the Executive.
Non-lawyers such as I tread into these areas with some hesitation. The danger of being caught out on a finer point of law is ever present.
In considering the Lords amendments before us today, it is important to look a little at the history of how we came to be in the position that we are in. There is no doubt that the emotion that runs around this set of Lords amendments is, unfortunately, coloured by the way that the Extradition Act 2003 and the treaty, and the unilateral arrangements in respect of the USA, came into being, rather than by merely the merits of the issues that we are addressing. It is important that we make that distinction, and also that we record some proper concerns about the process that has led to where we are today.
Let me give some key dates. On 28 November 2002, the Home Affairs Committee—chaired by my predecessor, my hon. Friend the Member for Sunderland, South (Mr. Mullin)—reported on the Extradition Bill. Its Second Reading took place on December 2002, the treaty was agreed at the end of March 2003, and the legislation was enacted at the end of that session. The USA was added to list 2 of the legislation at the end of 2003 and, by that, the unilateral decision was taken to drop the evidence requirements on the USA. The Senate has only now ratified the treaty.
There should be some concerns about the speed at which those events took place. When—before I chaired it—the Committee reported on the Extradition Bill in 2002, it reported the Home Office position at that time. The Home Office had stated that
“there is a case for removing the prima facie evidential requirement from certain Commonwealth countries and bilateral treaty partners”
“there are no current plans to negotiate bilateral extradition treaties with any new countries”.
That was reported in November 2002, and the treaty was finalised and agreed at the end of March 2003—a very short period later.
The Extradition Act has always worried me because I was the Minister of State who moved the Bill’s Second Reading on 9 December 2002. Since that time I have been unable to remember anything that was under way with the USA in respect of these matters. Short-term memory loss is always a possible explanation in this place, but parliamentary protocol requires that if a Bill is not introduced by a Secretary of State, it is introduced by a Minister of State rather than an Under-Secretary of State, so I was not the sponsor-Minister of the Bill; I picked it up, as it were, at the last moment, to move it.
There was almost no reference at all in that debate to the United States of America. Indeed, about the only one I can find was made by the right hon. Member for Witney (Mr. Cameron), who asked for an assurance. He said:
“As the Minister is aware, many important extraditions have not gone ahead because of…article 3 of the European convention on human rights”,
and he referred to
“the Soering judgment, in which someone accused of murder could not be extradited to the United States”
because of that convention, and he asked:
“What will the Bill do to try to streamline such cases and make the extraditions go ahead?”—[Official Report, 9 December 2002; Vol. 396, c. 40.]
So to the extent that any interest was shown in the United States in that debate, it concerned speeding up extraditions from this country to the USA, and the point was made by the right hon. Member for Witney, who is now the Leader of the Opposition. That was the tone of the discussion.
The right hon. Gentleman made only a brief intervention, so he was unable to cover that point.
Such was my concern about the lack of reference to the United States at that time that I wrote to the permanent secretary of the Home Office during the summer asking for a copy of the briefing pack that Ministers get on such occasions—such packs can ruin many a weekend for Ministers. I simply put on the record that the briefing that I received as the Minister handling that Bill contained no reference to treaty negotiations being under way with the USA, or to any specific plans—other than the reference to other bilateral treaty partners—to include the USA in list 2.
It seems inconceivable that civil servants would have provided me with a briefing that made no reference to treaty negotiations unless none were under way, and I can only conclude that the treaty signed on 31 March 2003 had not even started the negotiation process when the Extradition Bill was debated in December 2002. That worries me greatly. There is every reason for modernising our extradition arrangements with the USA, who are our most important extradition partner. But our going from a standing start to an entire treaty in about three months, given the many controversial issues that have then followed, explains an awful lot about why we are where we are. I cannot see any basis for the haste with which this was done. Nor can I understand the basis for the decision to move ahead with the change of evidence requirements, ahead of agreeing the treaty on both sides of the Atlantic.
There was a problem with the extradition system, but it was almost entirely to do with our failure to extradite criminals to the USA, rather than the other way round. The USA had everything to gain from the new treaty arrangement; we, in practice, had relatively little to gain. Most of the people we wanted were here, and despite the key categories of sex offenders to which my hon. Friend the Minister referred, and one or two others, things were generally going in the right direction.
This process has caused much of the concern that lies behind today’s debate.
I have been listening very carefully to my right hon. Friend and the point that he is making is enormously important. Has he asked my right hon. Friend the Home Secretary for his explanation of the timing, and has he received a reply?
When the Home Affairs Committee held a one-day hearing on this matter last November with Judge Timothy Workman—my hon. Friend the Member for Walsall, North (Mr. Winnick) mentioned him earlier—and the then Minister with responsibility for such matters, my hon. Friend the Member for Leigh (Andy Burnham), we attempted to get a detailed timetable and copies of draft treaties from the Home Office, so that we could see the treaty’s evolution and pin down its timing. Understandably, the Home Office could not provide draft treaties because doing so would have breached our diplomatic relations with a foreign country, so I have been unable to pin down the timing. I therefore do not know why the treaty was agreed so rapidly. I merely make the point that if that had been avoided, what is a now a very emotive discussion could have taken place on a more rational basis.
It has to be my assumption that the reverse is the case. I have taken part in many debates in this House as a Minister, and I have occasionally had cause to be not entirely satisfied with the quality of the briefing that one gets. But if a treaty had been under negotiation, it is extraordinarily unlikely that the Home Office would have told my predecessor Committee that there were no plans to negotiate a further treaty, or that I, as a Minister, would not have had something of that sort drawn to my attention in the background notes, given the obvious danger of misleading the House of Commons, were one to be asked about such matters. It seems more likely, although I cannot be certain about it, that the treaty was negotiated in short order.
We therefore approach today’s debate against the background of several high profile cases that have had a great deal of publicity, some of it wildly misleading about the case against individuals, in a position whereby the treaty was not in force and only half the agreement had been implemented—unilaterally by this country. That has overshadowed the debate.
I believe that we should resist the Lords amendments on the substance of the issue. I shall make three brief points and outline one aspect to which the Government need to give much greater attention. Reciprocity is important, but it has never been an absolute principle in our law. For a long time after introducing the Extradition Act 1870, we extradited people to many countries that, on constitutional grounds, never extradited anyone back to us. Parliament took the view that it was better to serve the interests of justice in one direction even if they were not served in the other. Reciprocity is not an absolute principle.
Whatever concerns most of us have about many other justice systems, there is no doubt that, if the United States did not have a constitutional bar to dropping the requirement for prima facie evidence, it would, like the other 50 countries on the list, be a country with which we had an agreement not to require prima facie evidence. I accept that, as Baroness Scotland said, there is no absolute parity in the test. Her comments were accurate and the right hon. and learned Member for Folkestone and Hythe (Mr. Howard) referred to them earlier. However, is the difference so great that it creates genuine injustice or are we pursuing a difference because we do not like the US at this time in politics?
Without the constitutional bar in the US to dropping the requirement for prima facie evidence and with a requirement for information on both sides, we would show little hesitation in reaching an agreement. In that case, people would be extradited from the US on exactly the same basis as people are extradited from this country under the treaty. The big question is, therefore, whether the difference is so great that we should support the Lords amendment. I do not believe that it is.
My second point is about forum, which the Lords amendments cover. If the process had been more open and the treaty had been up for a longer period of discussion and debate, we could have sorted out many such matters. Determining the appropriate jurisdiction is complicated. There were genuine concerns about the European arrest warrant when one of those accused of taking part in the 21 July attempted bombings fled to Italy. We were worried that demands could be made to try him in Italy because it was suggested that he might have committed offences there. We said that that would be wrong and that he must return here, where the major crime took place. There are matters of judgment, and I am unclear from my hon. Friend the Under-Secretary’s comments about the exact criteria that the Crown Prosecution Service is expected to use when judging whether someone should be tried here, if that is possible, or in the US, if that is possible. Those criteria should be made explicit. They do not form part of the treaty arrangements and that is why we should not support the amendments, but the Government need to set out more clearly the basis on which we expect the CPS to make such decisions.
Before my right hon. Friend leaves the forum issue, will he reflect on something that is perhaps even more serious than the CPS determining where the forum or forums should be? What happens when the CPS, Customs and Excise or whatever constitutes the prosecuting authority decides that someone should not be prosecuted in this country and tells them and their lawyers that? Initiating a prosecution at that stage would be an abuse of process in this country. What would happen if, at that point, the United States were to attempt to initiate fast-track extradition proceedings on those proceedings? That would be a matter of immense concern that would cause feelings of real injustice, particularly if it happened in a sensitive case.
My hon. and learned Friend makes an important point. These matters need to be made much clearer. Decisions are being made about whether to prosecute and about where to prosecute, and they get tangled up together. Judge Workman, in his judgment of 17 May 2005 in the case of Babar Ahmad, commented that this was
“a difficult and troubling case”,
“the defendant is a British subject who is alleged to have committed offences which, if the evidence were available, could have been prosecuted in this country”.
It is not clear to me whether the Crown Prosecution Service made a decision that that case was not prosecutable in this country, but that Babar Ahmad could still be extradited, or whether it decided that he could be prosecuted but—we must allow for this possibility—that it would be more appropriate for him to be prosecuted in another jurisdiction. The criteria by which that important set of judgments was made should be made much more public than they are at the moment.
This whole story suggests that there is a great deal that is not really very good about the way in which we conclude treaties and scrutinise them in this place. [Hon. Members: “Hear, hear.”] The hon. Member for Aldridge-Brownhills (Mr. Shepherd) has made this point a number of times. Equally, we should not seek fundamentally to amend the Extradition Act 2003 on the basis of an individual concern about an individual treaty. Perhaps we need to step back from this process and examine how we could do these things better in the future, but we should not support the Lords amendments this afternoon.
It is a genuine pleasure to follow the right hon. Member for Southampton, Itchen (Mr. Denham). It must be a bitter-sweet experience for those on his Front Bench to see an intelligent and perceptive former Minister rise to make the kind of comments that he has just made. They have taken our discussion forward in a real sense.
I support the retention of the Lords amendments. That should not come as a surprise to the House, as we have been entirely consistent in our position on these matters ever since they were first put before the delegated legislation Committee on which I served and in which we voted against these provisions. We did so because we believed that they were an affront to what ought to be expected on behalf of British citizens in relation to the reciprocity of the agreements. In the interests of justice, and as far as British citizens were concerned, we felt that we should resist a one-sided treaty of this kind. We have not resiled from that position in any way since then.
Listening to the debate on the issues, however, I have detected three convenient fictions that have been propagated since that time. The first is that those who oppose the treaty—and, therefore, the unequal provisions—are doing so in response to an expensive public relations campaign mounted on behalf of certain individuals, and that this is all a matter of the guilt or innocence, presumed or otherwise, of the NatWest three or, now, the chief executive of Morgan Crucible. That is emphatically not the case. My colleagues and I opposed this measure long before any of those cases were being considered, because we believed in the justice of the case that we were putting forward.
I obviously hope that those British citizens are found not to have been guilty of the crimes of which they have been accused, but I have no way of knowing the guilt or innocence of those individuals. That is not for me to say; it is for a court to determine guilt or innocence. My job, and the job of all parliamentarians, is to consider the process by which our citizens face a court in a foreign land thousands of miles away on charges of questionable validity in this country.
Is not it a particular concern that a number of matters that are offences in the United States are not offences here? The issue that all Members of the House must address is how they would deal with a constituent who, like one of my constituents, has a brother or sister who is subject to extradition to the United States for having sold computer software to a university in Iran, which is not an offence in the United Kingdom but appears to be an offence under US jurisdiction. Someone is therefore threatened with extradition to the US on a matter that is not an offence under UK law, which must be a matter of concern for us all.
Indeed, and I will turn to the point of dual criminality in a moment, as it is extremely important.
The second convenient fiction is that those of us who have opposed the measure from the beginning were doing so largely on the basis that it remained unratified by the United States Administration. That is absolutely not the case. Indeed, many of us have argued that ratification is almost irrelevant because of the Government’s pre-emptive action of putting the measure into effect in British law a full three years before it was ratified by the United States Senate—we understand that, although it has been passed by the Senate, it is still on the President’s desk, and the instruments of ratification have not yet been exchanged. If the treaty is unfair and unequal, ratification is irrelevant, as it is still not in the interests of the United Kingdom and its citizens. That is our point.
There is a slightly erudite point, which ought at least to be mentioned, as to whether ratification is possible if the amendments are retained in the legislation. Undoubtedly, we would be brought into conflict with the law of international treaties if we have legislation in contradiction of the terms of the treaty that we have signed and ratified. That is a problem for the Government, however, and not for the House, which can legislate only on the basis of the measures before it and their implications for British citizens. It is an illustration of the folly of using secondary legislation to put into law provisions that were not subject to proper consideration by the House.
I have listened carefully to a robust denunciation of what is undoubtedly an unequal treaty, with which no one would disagree. The point with which I am struggling, which my right hon. Friend the Member for Southampton, Itchen (Mr. Denham) articulated, is that we would undoubtedly have entered into a fast-track treaty with the United States in any event. If that is the case, and we have fast-track procedures with the United States, how are our citizens any worse off because, on the other side, we must work harder to get citizens out of that country? That is what I do not understand.
That is a fair comment but not a genuine concern. We can expect from our Government due protection of British citizens, which should take the form of prima facie evidence, except where there are genuinely reciprocal arrangements for another standard of proof, which we have with several countries. I agree with the comment of the right hon. Member for Southampton, Itchen that, had the matter been approached properly through a sensible debate and negotiation on the treaty, we could have arrived at a satisfactory conclusion. I also agree that, prior to the latest treaty, we had an imbalance in the other direction. I believe that the American authorities had a marginally higher hurdle to overcome than the British authorities, and I have always made that plain. But I think there was a greater similarity between probable cause and prima facie evidence, in that both required evidence to be produced and an opportunity for the person accused to refute that evidence before a court of law. That is the difference between the situation then and the situation now: the imbalance is now in the opposite direction. That evidence is not required.
The Minister got into a bit of a muddle when trying to distinguish between evidence and information in this context, but British citizens are clearly at a disadvantage by comparison with United States citizens. I am arguing first that they should not be at that disadvantage, and secondly that the British Government should not have put them in a position in which they could be at that disadvantage, because it is the duty of the British Government to protect the interests of British citizens. Perhaps the “process” point mentioned by the right hon. Member for Southampton, Itchen, to which I shall return shortly, explains the extraordinary neglect on the Government’s part in consideration of the treaty in the first instance.
I think that the hon. Gentleman is trying to ride two horses, and that it is becoming rather uncomfortable. If—as he has said more than once during his speech—this is about the protection of British citizens, British citizens who might be extradited to the United States under the information standard would be no less protected than British citizens who might be extradited to Albania, Canada or a Council of Europe country under that standard. They would have the same protection vis-à-vis extradition from the United Kingdom to the United States as they would have vis-à-vis extradition to another country in the list of 50 to which my hon. Friend the Minister adverted when I intervened on her speech. The protection would be equal: there is no problem with regard to the protection of British citizens. So what is the hon. Gentleman’s problem?
There is no problem if protection of the obligations falls to the signatories to the Council of Europe and its conventions. The United States is not a signatory to the Council of Europe and its provisions, so I think there is a distinction to be made.
The third convenient fiction has been implied and not stated today, but it has been current in the press. It is that somehow it is in the greater interests of justice for this imbalance to occur, because of the inadequacy of prosecution for white-collar offences in this country. That was almost made explicit by Margaret Cole, director of enforcement of the Financial Services Authority, who pointed out recently that British criminal convictions were “sparse”. She attributed that to greater public support for convictions for white-collar crime in the United States, and therefore presumably a greater predisposition of an American jury to convict by comparison with a British jury.
I have to say first that I consider that an entirely spurious argument, and secondly that, if it is correct, what it suggests is that we have inadequate prosecuting authorities in this area, not that we should send people—effectively under a sub-contracting arrangement—to stand trial in the United States. If there is a perceived inadequacy in this area, the Government should be clear about it and should ensure that our prosecution authorities and our laws on white-collar crime are as robust as those in the United States.
We come back to the issue of parity. It has already been pointed out—but I shall do so again, because it is important—that what the Minister told us today is completely at odds with what was said by a Minister of State in the other place during the passage of the original order, and with what a House of Commons Minister, the hon. Member for Don Valley (Caroline Flint), said in this Chamber: namely, that there is now a lower requirement for the United States than there is for Britain.
It is nonsense to say that there is rough parity when there is not—for all the reasons that we have already given—and that there is no difference between having to provide evidence and having to have it questioned in court, and not being subject to that requirement. I hope that that position will not be pursued. Let us be open and honest about it and acknowledge that a lower standard of proof is required, but say that it is in the best interests of the justice systems of the western world, even if it is not equivalent to that of the UK.
The scope of the treaty is the next important issue. I find it astonishing that we should have had such a clear analysis from Ministers when we opposed the measure in the first instance. The hon. Member for Banbury (Tony Baldry) made the point, though he is no longer in his place. A relevant Minister said at the time:
“We do not have such a range of offences involving financial crime. The cases mentioned by the Financial Times—such as price fixing—would not apply. Dual criminality would have to exist.”—[Official Report, Third Standing Committee on Delegated Legislation, 15 December 2003; c. 26.]
What do we have now? We have a full case for extradition of a person from this country to the United States to stand trial for price fixing—for a crime that was not a crime under this jurisdiction at the time he may or may not have committed it. That is in direct contradiction of what the House was told when it was asked to support these measures in the first instance.
If my hon. Friend the Member for Beaconsfield (Mr. Grieve) had been in his place—he is in Committee—he would have mentioned the case of his constituent, Mr. Ian Norris, who faces this particular dilemma. It was not at all eased by the Minister’s words earlier.
It was precisely Mr. Norris’s case to which I referred, if perhaps rather obliquely, as it is not helpful to rehearse in the House arguments for or against a particular individual. What surprises me is that something that we were told categorically could not happen is now happening as a consequence of the Bill.
Right from the start, I rejected the view that this was all somehow necessary to deal with terrorism and that something had to be rushed through because of the need to deal with terrorist suspects. It was quite clear that the scope was always wider than that. It was always applicable across the whole range of potential criminal activity. Frankly, it appals me that it was ever suggested that this was a limited treaty of extradition. It was never that, as is now clear from current cases.
We now face circumstances in which the US has bilateral extradition arrangements with 132 states and territories around the world. As the hon. and learned Member for Harborough (Mr. Garnier) pointed out earlier, there are just three countries with which the arrangements are not fully reciprocated. The first is France, as no French citizen is allowed to be extradited to stand trial in a foreign country. Those who are not French citizens are happily exported, but not French citizens. Secondly, there is the Republic of Ireland, where a forum position—similar to the Lords amendment—ensures that, in the interests of justice, the appropriate place for a trial is considered. Then there is the UK, where we have sold the pass and are prepared to act with supine acquiescence in everything that the Americans want, simply rolling over and doing as we are told.
The right hon. Member for Southampton, Itchen made a point about process that says it all. It is quite clear that this was not a process of negotiation. The then Home Secretary, the right hon. Member for Sheffield, Brightside (Mr. Blunkett), went across to Washington and had this treaty presented to him. He was told that it would be very helpful to the US authorities if he would just sign his name at the bottom—“Thank you very much, Mr. Home Secretary, that gives us exactly what we want”. Simply reading the treaty is enough to make the point: it is written in American! This is the British version with the crown at the top, but it is written in American English. It is as though it were dictated by the American Secretary of State or Attorney General and the British Home Secretary rolled over and said, “Yes, sir. Thank you, sir. That is what we will put into British law”.
All this bluster does not make the hon. Gentleman’s contribution fact. The Government were always very clear that the Extradition Act 2003 and the treaty applied to all crime, not just to terrorism. However serious a crime terrorism is—and it is very serious—our extradition arrangements apply across the board. The hon. Gentleman also talked about France not extraditing its citizens, but he will—I am sure—be aware that it has signed up to the European arrest warrant, so the situation has changed. Crime changes and extradition arrangements need to change as well. This is about modernising our extradition arrangements.
Well, modernising seems to involve running up a thoroughly modern white flag and saluting it. I accept the Minister’s first proposition, because I said at the time that the treaty was always intended to cover every crime. Some may have changed their position on that, but I have not. She also mentioned France’s arrangements with regard to Council of Europe members and the European arrest warrant. I did not deny that, but I was talking about the bilateral arrangements between France and the US. It is a fact that not a single other country or territory, not even Gibraltar or the Channel islands, has the same unreciprocated arrangements as we have with the US—fact. That is not bluster: it is outrage on behalf of our citizens that any Home Secretary should have signed such an unequal proposition.
I agree with the hon. Gentleman’s point. It is also worth observing that in the case of French citizens and the European arrest warrant, they will still have the convention protections, which do not apply in the case of the US. The hon. Gentleman also highlighted the problem with forum, which I have noticed as a member of both the English Bar and the Irish Bar. In Ireland, the very existence of the forum provision enables one to deal with a situation in which one has to deal not only with offences that may not have existed in law in the state from which extradition is sought, but with massive disparities in sentence. For example, someone might be chargeable with an offence that in Ireland or the UK carries a maximum punishment of five years, but is extradited—under a slightly stretched analogy—to the US, where it is punishable by 25 years imprisonment. The forum provision provides some safeguard that is not present in the Government’s proposals.
The hon. Gentleman is right. Forum is not a matter that can be left to the prosecuting authorities. It is an absurd contention that somehow it is in the interests of justice for the prosecuting authorities of the UK and the US to get together to decide who would like first shot at a British subject. That is a matter for a court to determine in the interests of justice. That is what is at issue in these amendments.
The forum provisions do not sufficiently mitigate the inequalities in the Bill and are not enough to persuade me to support the treaty. However, they go some way to safeguarding the interests of British citizens, and that is what I want to establish.
The hon. Gentleman mentioned the process of negotiation of the treaty. I suggest that the situation he presented was mere speculation, but what is more troubling is the fact that we have no means of knowing whether it is speculation or truth. We congratulate ourselves on our parliamentary democracy, but we are very bad at scrutinising treaty procedure. Surely there must be a way to improve that so that we do our duty better by our citizens.
The hon. Gentleman is right on that last point.
What should we do with this hopeless treaty? The short answer is that the Government must renegotiate it to ensure that there is a genuine rough parity, rather than an entirely imaginary one. In those negotiations, or even before them, the Government could consider whether the provisions offer latitude for courts to consider matters of forum. I think that that would be entirely appropriate.
Earlier, the Minister had no response to my earlier question about clause 4 of article 2 in the treaty. It gives our Executive discretion to ensure that justice is done in matters where the Americans claim universal jurisdiction and we do not, but it is not contained in the Extradition Act 2003 or the relevant statutory instruments. I do not understand how the Government can have ignored the treaty’s one bit of discretion for preserving British citizens’ interests.
As a legislator in this House, I am entitled to ask why the Government are ratifying a treaty when one of its key provisions in respect of British citizens has not been incorporated into British law. I do not believe that the articles of ratification can be exchanged until the Executive address that gap.
We are told that other matters to do with protocol and the use of the extradition treaty will be negotiated. I hope that they are reported in full to the House and that the Government will give us a clear exposition before the Bill finishes its passage through the House. If the amendments are knocked out tonight, I am sure that we will have another opportunity to discuss these matters, so there will be time for the Attorney-General to report back on the progress of his discussions with the Americans.
Finally, I agree with the hon. Member for Rhondda (Chris Bryant) that our process for dealing with treaties is disgraceful. It takes us back to the problem of the royal prerogative, which is a relic of a previous age and inconsistent with a modern legislature. Executives should report back to this House on treaty negotiations, and seek its assent on treaties that they have signed. Treaties should be subject to proper scrutiny: never again should unequal provisions of a treaty be put into British law, unilaterally and three years before the other party even considers them for ratification.
That is an outrage, and an example of the supine acquiescence that has characterised the Government’s approach to the treaty. Everything was done in a rush, to please the Americans. The Home Secretary at the time was inadequately briefed in advance, and it is British citizens who will pay the cost.
May I say, with enormous sadness and a funereal step, that I shall not be supporting Lords amendment No. 36 this evening? Whether I support the Government will depend very much on what I hear in the wind-up speeches at the end of the debate. I shall not support the amendment because the treaty visits on us something that we lawyers used to call—in the days when we were able to use Latin—injuria sine damno. That means—
Well done, the hon. Gentleman is right: injury without loss. Injured we most certainly have been—as a Parliament and as a nation—by the signing of the treaty. It is manifestly not reciprocal, in any sense of that word. If we were to persuade ourselves that there was any reciprocity in it, we would have to relearn the alphabet, let alone the English language. That distresses me for two reasons.
First, it distresses me to hear a Minister attempt to argue what is manifestly and plainly casuistry. I do not blame her; a completely untenable brief has been served up to her—but it is a great pity that she did not say so at the time. The second reason for my distress is that I dislike treaties that are not reciprocal; in particular, I dislike treaties that are not reciprocal with the United States of America. This is a very bad time to appear to be subservient to the United States of America—on any basis—and the extradition treaty is meat and drink to those who allege that this Government are the lackey and cat’s-paw of the United States, and in particular of the neo-cons of America. Speaking as someone who has frequently made that allegation, I am very sorry indeed that I shall be unable to attempt to inflict a further measure of punishment on the Government for their past misdemeanours by voting against them on amendment No. 36, but in truth I cannot do so.
I am distressed to hear that the hon. and learned Gentleman will not vote on what I thought he agreed earlier was the side of reason and common sense. The provision is not sine damno, because the evidentiary imbalance means that there is a huge absence of reciprocity, parity, equality, symmetry—whatever we choose to call it—between our arrangements and the American arrangements, with the result that 45 of our nationals, or citizens, go to America every year, while only two or three come the other way. When we consider the respective size of our populations it is obvious that the thing is completely asymmetrical and is causing huge disquiet. That is what we should sort out by addressing the forum issue, on which I thought the hon. and learned Gentleman supported us.
I could see that you were about to rise to stop the hon. Gentleman, Mr. Deputy Speaker, and I am grateful that you did not, because I was enjoying his intervention enormously.
The problem is communication, as is so often the case with the hon. Gentleman. He was having difficulty in reading the document at the time, but I am sure that when he reflects on my earlier comments he will recall that in fact I said that Lords amendment No. 81 was critical, so I shall most certainly support that and vote against the Government. However, although amendment No. 36 is tempting, as I distinctly remember saying to him, I shall not give way to the temptation, because the truth is that there is no loss.
I shall not reiterate what was said by my right hon. Friend the Member for Southampton, Itchen (Mr. Denham).
The hon. and learned Gentleman says there is no loss, but another reason for our concern is that if an ordinary citizen is directed by extraordinary rendition—if I may use that term—by the American authorities seeking to take them to the American jurisdiction, an enormous burden is placed on them, of cost, estrangement from their circumstances and so on. There is a cost; it is a real human cost, which is why we are examining the issue.
As the hon. Gentleman knows, I have enormous respect for him—and of course there can be loss in individual extradition cases. Indeed, if people are extradited, there is always loss in some way or another. I respect that, and we must ensure that people are not extradited when there is no due process. What has happened to extradition law over the last 10 years is that we have fast-tracked our extradition process with regard to many countries, not just an individual country, so as to keep pace with the fast track in the movement of people. Old extradition laws increasingly could not keep pace with the amount of extradition that was required—not from the United States, but elsewhere.
The fast-track procedure, which I do not particularly enjoy, whereby the prima facie evidence is not exhaustively analysed, is now commonplace, and undoubtedly would have been put into place in respect of the United States of America. There is no doubt about that. As far as the United States was concerned, we would have precisely the same burden as we have in any event; the difficulty lies in reciprocity. The Americans—as may be their right, as they have said—could not, or would not, sign up to a treaty because of their constitutional inhibitions. The answer is that we are no worse off than we would have been, and they, arguably, may be a little better off. In those circumstances, I find it difficult to make myself part of the rewriting—effectively the wrecking—of a treaty, when it appears to me that there is, in truth, no loss, in the macro rather than the micro sense.
Because of the knives and the time constraints that we are under, we do not have time for more than one vote. We therefore cannot be too nice about choosing which vote to cast. I urge the hon. and learned Gentleman to vote on amendment No. 36, because he will not have an opportunity to vote on amendment No. 81.
May I assist the hon. and learned Gentleman? I took the trouble to sit by the Chair earlier to discuss the vote; I thought that he might have done so too, given that he is leading for the Opposition. There almost certainly will be a vote on amendment No. 81 as well as amendment No. 36. That is my information. It is a great joy to be able to inform him of these things.
Of course, the water in this whole extradition matter has been muddied by one recent case, which I will not name. The extradition of three people to the United States was sought. If I may say so, those representing them did a wonderful job in enlisting extra-judicial support against their extradition. I can remember newspapers never before seen in the pantheon of civil liberty that were practically singing the Marseillaise, and printing it, because of the pain that they envisaged in those three cases. One newspaper had an entire page showing the prisons in which those people were likely to be incarcerated and describing the type of regime—involving the very worst mediaeval conditions—under which they were to be held. There were pictures of the shackles into which they were to be put. Of course, when the people concerned arrived in America, the first thing they did was to appear in front of a judge, who gave them bail. Secondly, they were told that if they wanted to go home they could certainly do so, as long as they turned up for their trial. That is not unusual in this country, either.
So, with a heavy heart, because I thoroughly dislike this treaty—non-reciprocity is always wrong, and the treaty should not have been negotiated—I cannot bring myself to support amendment No. 36. Amendment No. 81 is completely different. The forum provision is a completely different matter, because there could be real, serious and dangerous consequences if we allow the measure on to the statute book unamended by the Lords amendment.
There is one simple perception of what will happen—not if we decide to prosecute, but if we decide not to prosecute in this country. If we are dealing with a terrorist case or a high-profile case, so much the worse. If the prosecuting authorities here make that decision, which they frequently do, and communicate it to the person they have held, saying, “We have decided that we will not prosecute you on these charges,” and then a fast-track procedure, without a hearing by a judge, is initiated to extradite that person to another country—particularly the United States—the social backwash is likely to be terrible. That will be particularly true if it is a Muslim or a terrorist case. We have to understand that.
If a crime is tried or is said to be committed partly in this country, the judgment as to whether this country extradites to another country must be made on its merits by a tribunal. That is what amendment No. 81 would provide. I hope that enough of my colleagues will join me in the Lobby—with the Opposition—to pass this amendment, which will eradicate those problems.
I hope that I will not frighten my hon. and learned Friend if I say that I might not be with him—but what concerns me a little is the clarity of the situation. For the benefit of those of us who are non-lawyers, is he saying that if, for example, in a terrorism case there was insufficient evidence in this country to prosecute, but nevertheless within the United States there was suitable and convincing evidence that would allow people to prosecute, we should not be prepared to let that person be extradited?
No, what I am saying, and what the amendment provides, is that where there are offences that are partly committed in two countries and we decide not to prosecute in this country, there would have to be a hearing. That would not necessarily mean that the person would not be extradited. In the circumstances that my hon. Friend sets out, extradition almost certainly would take place, but there would have to be a hearing. If there was a hearing, it would remove most of the dangers implicit in the Extradition Act as it stands.
I pay tribute to the right hon. Member for Southampton, Itchen (Mr. Denham) for a truly outstanding speech. In saying that, I cast no aspersion on the other outstanding speeches that we have heard so far in this debate. The whole House will be grateful to him for the way in which he shed light on—illuminated—the process by which we find ourselves in our present position and the part that he played in it, which perhaps was not quite as incidental as he sought to portray, and for the analysis that he gave of the problems that we face as a consequence of the series of events that he explained so lucidly.
I go along with much of the right hon. Gentleman’s analysis. We walk step in step, but we part company when it comes to the final conclusion as to how we should cast our votes in the Division Lobby this evening. In truth, I do not believe that the penetrating analysis that he gave the House in the course of that speech supports the conclusion that he purported to have reached, but be that as it may, it was an outstanding speech and the whole House will be grateful to him for what he said.
The Minister said—this was the only thing on which I agreed with her—that we have discussed these issues ad infinitum. That is true. The reason we have done so is that the Government have, ad infinitum, refused to see reason on these important matters.
I will seek to deal head on with the point made by the hon. and learned Member for Medway (Mr. Marshall-Andrews). I am sorry that he has apparently reached the conclusion that he will not be with us when it comes to voting on Lords amendment No. 36. The damage that has been caused by the injury that he acknowledges takes place is that, as was said clearly by my right hon. and learned Friend the Member for Sleaford and North Hykeham (Mr. Hogg), as a consequence of these arrangements, we afford our citizens a lower degree of protection than the United States affords to its citizens. If anyone is to be extradited from the United States, evidence has to be produced that is contestable in the courts of the United States, but there is no comparable provision for extradition from the United Kingdom. That is the damage. It seems insupportable that this House, which is the guardian of the liberties of our citizens, should accept a lower degree of protection for the liberties of our citizens than is afforded to citizens of the United States under these arrangements.
I entirely agree with the right hon. and learned Gentleman’s point about reciprocity, and an injury seems to have been done to us in that regard. However, let us consider the damage that has actually been done. If the standard of protection that we are affording to our citizens is the same as that which we are perfectly content to give to them in respect of many other countries in the world, how are we failing to protect their interests?
There are two answers to that. First, there is the question of reciprocity itself. When the Government and Parliament of the United Kingdom assess the protection that they afford their citizens on extradition, it is reasonable for them to insist on comparable—I would argue identical—protection from the countries to which extradition is contemplated under the arrangements.
The second answer to the question asked by the hon. and learned Gentleman—I am astonished that it is not clearly apparent to him, of all people—is that the European convention on human rights applies to the other countries with which we have made the arrangements to which he refers. The convention affords a degree of protection on extradition to and from those countries that is wholly absent from our arrangements with the United States. For those two reasons, we are discussing not simply a lack of reciprocity, but a lack of reciprocity that has serious consequences for the liberty of the subjects of the United Kingdom.
As far as I understand it, the right hon. and learned Gentleman is suggesting that reciprocity is the absolute principle. However, I wonder whether there is a higher principle than that. According to his argument, France provides more protection for its citizens than we do. Surely we believe that the French are wrong to do so.
That is the case in respect of the United States, but not in respect of other member states of the European Union or, I believe, of the Council of Europe. However, I am not here to argue the pros and cons of the attitude taken by the French Government to the liberty of their citizens. I am concerned about the liberty of the subjects of the United Kingdom.
Despite the quality of the analysis that the right hon. Member for Southampton, Itchen gave to the House, he seemed reluctant to support the Lords amendments because he said that it would be inappropriate to do fundamental damage to the statute dealing with extradition. Whatever the rights and wrongs of that argument, it does not apply to Lords amendment No. 36, which would simply de-designate the United States and cause no fundamental damage to the statute at all. I hope that he will take that point into account when he ultimately decides how to vote on Lords amendment No. 36, at least.
I entirely understand the right hon. and learned Gentleman’s point, and I was grateful for his earlier generous comments. However, my other argument applies to Lords amendment No. 36. I do not think that we are doing great damage by applying to the United States of America a test that we have been prepared to apply to many other countries.
That is the argument that I have been trying to rebut, and I am sorry that I have thus far not been able to persuade the right hon. Gentleman of its merits.
I will make only one other point, because much of the ground that we have covered has been canvassed before. The response of the Government, unlike that of the right hon. Gentleman, to the arguments that have been put against them has been thoroughly wretched, inconsistent, contradictory and increasingly desperate. Despite the words of Baroness Scotland that are on record, they have refused to acknowledge that there is no reciprocity. Indeed, the Prime Minister is on record as having denied in the House that there was any difference at all in the evidential arrangements applying to this country and to the United States. Sometimes the Government say that there is reciprocity, yet sometimes they say, as the Home Secretary seems to have done, that perhaps there is not reciprocity, but that it does not matter.
When it suits Ministers, however, they are only too happy to rely on the importance of reciprocity. On 11 July, Baroness Scotland resisted an Opposition amendment that would have required a judge deciding on extradition to take account of the fact that the United Kingdom authorities had decided not to prosecute—that is the forum argument that we have been discussing—by saying:
“In the interests of justice, the United Kingdom took the view…that extradition could proceed where the person was wanted for conduct committed at least partly in the United Kingdom, providing that the UK had the same jurisdiction to try the conduct if it had occurred outside the UK.”—[Official Report, House of Lords, 11 July 2006; Vol. 684, c. 654.]
When it suits the Government, the argument for reciprocity is important, convincing and compelling, but when reciprocity is inconvenient to them, it can be dismissed with a wave of a peremptory hand.
The injustice of the present arrangements has been the subject of widespread comment and concern inside and outside the House. In the Financial Times last Wednesday, Sir Martin Jacomb, a former chairman of the Prudential insurance company and a highly respected figure in the business community, drew attention to their unfairness. He said:
“parliament has a duty to safeguard the liberty of the individual against the State and this is a case where it must act quickly.”
I commend his words to the House, and urge right hon. and hon. Members on both sides of the House to vote accordingly.
I had not intended to speak in the debate, but the comments made by the hon. Member for Somerton and Frome (Mr. Heath) have prompted me to say that it is important to try to offer a different perspective on why there might be a case for supporting the Lords amendments. I listened to the case that we were offered and suddenly felt desperately uneasy that somehow the failings of UK law and the Bill’s provisions were such that we had failed to stand up to prevent bankers from facing serious charges of criminal misconduct, albeit just because the UK’s legislative framework was lax enough to allow them to dance a coach and horses of transgressions through our system. It seemed to be suggested that just because they were able to do that, they should be able to get away with it.
If that case was being made, I have to say that when the allegations came forward many Labour Members examined them, looked across at the City of London and said, “Not enough!” There ought to be more who face charges for financial misconduct. If there is a case for harmonising international law on financial misconduct, one of the lessons that we should have learned from the Enron scandal is the case for toughening up our domestic legislation. We should not say that we stand at a distance from mutual arrangements for trials, but reflect on our consequential duties to protect our citizens from misconduct that takes place under the shelter of our shores.
What if the person concerned works in London and his employer says that there is no charge to answer and that nothing went wrong, and the British prosecuting authorities say that he is innocent and that there is no charge to answer? Is it then right that he can be whisked away to an American jurisdiction? Does not the hon. Gentleman understand that the same could happen to someone who is not a banker, such as a trade unionist or a Labour-supporting industrial captain? We are talking about fairness and justice for everyone. The issue is not that the people concerned are bankers; it is that they are being treated unfairly.
That is the attraction of Lords amendment No. 81, under which a hearing must be held. I would not be so supportive of it if I thought that it precluded the prospect of a hearing taking place in this country, in which the court could come to the view that there was a compelling case for extraditing people who faced charges to an area where a proper trial could take place, for crimes committed against our citizens or others. What is important is the process—the hearing—that the amendment allows.
It saddens me that in all our discussion there has not been a single reference to the very important starting point of this debate—the treatment of Gary McKinnon, who hacked into US computers and posted a note on a website saying that the US was guilty of state terrorism. He was arrested in the UK but was not charged—if he had been charged, he would probably have got community service. He faces extradition for an offence that may be punished with a prison sentence of up to 60 years. It is absolutely right that the Lords amendment should specifically give the right to a hearing in this country, in which the test will be whether extradition is in the interests of justice.
We could make heavy weather of Lords amendment No. 36. I have considered it and Labour Members have discussed it a great deal, and in the end I have decided that there is no loss or damage done by including it. It is a belt-and-braces provision that means that the agreement will come into place when it is fully signed. It does not make for identical legal systems, but it does make for a sort of reciprocity.
Lords amendments Nos. 81 to 84, which give the basis on which those reciprocal arrangements will come into place, are driven by considerations of justice, not of partiality. They are driven not by the question of whether it is possible to get away with something in this country if it is committed from a base in the Cayman Islands, but by the question of whether there is a case in law, and in justice, for allowing a trial to take place. It is against that benchmark that we best defend the rights of citizens, irrespective of their wealth, and that is why we should have a forum test, in which there is a hearing, and at the centre of which is the issue of justice.
I begin by saying how passionately I agree with the last point made by the hon. Member for Nottingham, South (Alan Simpson). The principle that we are talking about applies to all British citizens irrespective of where they come from, what constituency they happen to live in or their walk of life. I absolutely agree with him that that applies equally to Gary McKinnon, Barbar Ahmad and everyone else on whose behalf we have been lobbied.
I congratulate the Government on finally persuading the US Senate to ratify the treaty—[Interruption.]—or, rather, on persuading it to begin to ratify the treaty, as my hon. Friend the Member for Beaconsfield (Mr. Grieve) says. The situation is better than it was, and that is largely due to the campaign that has been waged to get the Government’s attention. Rather than scorning all those who spoke on behalf of their constituents and scorning the newspapers that took up the cudgels on behalf of those constituents, the Government should give credit where credit is due. Without that campaign, we would not have seen the wonderful spectacle of Ministers scuttling around Washington trying to persuade the Senate to ratify the treaty. The Government should have a little humility on that point.
The Under-Secretary of State for the Home Department, the hon. Member for Enfield, North (Joan Ryan), in a not-very-distinguished passage of argument, tried to draw a distinction between two terms—I forget whether they were identity and reciprocity, or symmetry and mutuality, or parity and equality. It was not at all obvious to me what she was trying to say, but it was perfectly obvious to everyone in the House who has listened to our arguments all afternoon that there will be no reciprocity in the treaty, even if and when the Senate finally ratifies it. The brute fact is that if the United States wants to extradite a person from this country to the United States, the American authorities need merely present information at Horseferry Road magistrates court.
My constituent, Mr. Crook, is subject to extradition proceedings and is awaiting trial in the United States, but he protests his innocence. He has already had to sell his home to raise bail money. He has lost his living in this country—his job is gone. Does my hon. Friend agree that, under the treaty, such people are guilty until proved innocent?
My hon. Friend is quite right. The key difference is that her constituent had absolutely no opportunity to contest the information provided by the US authorities, whereas, of course, if UK authorities want to extradite a suspect from America, they are obliged to lay evidence that may be contested by the defendant. That has been pointed out repeatedly by hon. Members on both sides of the House. That is a plain absence of reciprocity, and it is calling black white for the Government continually to assert otherwise.
I am saying that when we require the extradition of someone from America, it is possible for the defendant or suspect to contest the evidence, or supply countervailing evidence in his defence, in court before he is extradited. That is the key. I see the hon. and learned Gentleman smirking with the look of a man who has been chastised on a point of law. That is the key difference between our jurisdiction and the American jurisdiction. It is a blatant asymmetry that is acknowledged by hon. Members on the Labour Benches and it should be remedied, because the result is that a great many more British citizens are extradited to America than American citizens are to the UK. The ratio is to the tune of 20:1.
In that case, Mr. Crook would have the protection of forum. He would have the protection provided for in the European convention on extradition, under which, if the alleged crime took place in the UK’s jurisdiction, or partly in it, a person would have the protection of the fact that a judge can decide whether, in the interests of justice, he should be tried in the UK jurisdiction. That is how the evidentiary imbalance links with the problem on forum. We could sort out the problem by remedying the evidentiary imbalance, although the hon. Member for Wolverhampton, South-West (Rob Marris) refuses to sort it out in that way, but above all we have to sort out the problem on forum.
Was the hon. Gentleman as anxious as I was about the Minister’s hollow response, namely, that the UK has received assurances from the US Government that our citizens will not be sent to Guantanamo Bay, especially given the practice of extraordinary rendition, which the Government have failed to condemn publicly?
The Government’s assurances on many of those questions have proved quite worthless.
I want to return to the central point about forum provision. I do not wish to revive the polemical arguments that were made in an earlier debate about my constituents and my hon. Friends constituents who are involved in banking. Aspersions have been cast on their innocence, but if a crime that counters UK interests is allegedly committed in the UK by UK nationals, it is a matter of simple justice that it should be tried in this country. All the other countries that have treaties with the US have either the evidentiary protection that I have discussed or the protection offered by a forum provision. The French and the Irish have such a provision. The French would not dream of extraditing one of their own nationals and the Irish insist that a judge decides whether it is in the interests of justice that the suspect be taken to the US.
In conclusion, there is a simple task before us. We should give effect to article 7 of the European convention and we should agree to the Lords amendments. I am delighted that the hon. and learned Member for Medway (Mr. Marshall-Andrews) agrees with at least one of them and I hope to see him in the Division Lobby. We have a chance to do something very simple of great benefit to our constituents. It would reassure the country that we are not poodling needlessly to the United States. It would show that we are not a banana republic that needs to contract out to America trials of complicated financial offences that are alleged to have been committed by UK subjects on UK soil against UK interests. That is contrary to justice and we have a chance to remedy it tonight.
It is clear in my own mind that if we are a democracy and if we hold justice high, it is appropriate that any of our constituents who are threatened with withdrawal from our jurisdiction should have a prima facie case brought against them. At the earliest possible stage, they should be able to try to avert the possibility that they will be taken beyond these shores to face judgment in a court elsewhere. I am absolutely sure about that because process and procedure are a key feature of justice. Many hon. Members represent individuals who have been rendered elsewhere or have suffered at Guantanamo, and such occurrences are not to be dismissed lightly. One does not dismiss lightly any citizen who is sought by the authorities of another country. Not all jurisdictions are equally fastidious as ours in ensuring the protection of people’s rights.
Not wishing to make a misjudgment, I make no condemnation of the American system, but the US constitution affirms something on which we used to insist. If a British citizen were sought by the authorities of another country a case had to be made in a British court—that was the bottom line. The hon. and learned Member for Medway (Mr. Marshall-Andrews), whom I respect, casually said that this is a small injustice in the greater scheme. It is not—it is colossal to each one of us who suffers an injury. Some of the people whom we represent are not articulate and do not have the resources that they need. When they are plucked from our jurisdiction to a distant land, they are frightened and afraid. Proceedings may not even be conducted in their own language.
The European arrest warrant is an unmitigated affront to our very principles and many Conservative Members opposed its introduction. Similarly, the measure is founded on a treaty which, according to the Court of Appeal, takes precedence over the Human Rights Act 1998, so there is no protection under that Act for the NatWest three who have been taken abroad. I urge the House to vote for the Lords amendments, which give us an opportunity to look at what was entered into by prerogative power, and thus has not received the scrutiny that it deserved, even through it strikes at things as important as liberty, freedom and justice.
I call the Minister.
Order. The hon. Lady should ask for the leave of the House.
May I seek the leave of the House to respond to our debate, Mr. Deputy Speaker?
We have had a useful debate. The right hon. and learned Member for Folkestone and Hythe (Mr. Howard) is correct that I have said that we have had this debate ad infinitum. However, I am happy to do so because, like other right hon. and hon. Members, the issues are of great importance so it is right to discuss them. I was struck by what my right hon. Friend the Member for Southampton, Itchen (Mr. Denham) said about justice, and I concur with him. This is a matter of justice, not reciprocity, although as far as possible we have achieved reciprocity on reasonable suspicion and probable cause. He asked whether the difference between reasonable suspicion and probable cause was so great that it created an injustice. The answer is no. At the risk of repeating myself, we have achieved rough parity. My noble Friend Baroness Scotland, my hon. Friend the Member for Don Valley (Caroline Flint), now a Health Minister, and I never said that those things are identical—rough parity is what we have achieved.
May I say a word about forum provision, which has figured largely in our debate? The key issue is ensuring that offences are dealt with in the place where they can be prosecuted most effectively. The proposed procedures envisage early consultation in any case in which it appears to a prosecutor in one country that there is a serious possibility that a prosecutor in the other country may have an interest in prosecution. We are alive to concerns about the matter, but we reject the Lords amendment. However, I reassure right hon. and hon. Members that we will take a further look at the issue.
The proposed arrangements provide for a three-step approach to decisions on jurisdiction—first, the early exchange of information between relevant jurisdictions; secondly, prosecutors consulting on those cases and the most appropriate jurisdiction; and thirdly, provision for consultation and involvement. We will consider the issues that have been raised.
In the interests of justice, in the interests of victims of crime and in the interests of making the world a safer place, I urge hon. Members to support the Government and reject the Lords amendments.
Question put, That this House disagrees with the Lords in the said amendment:—
Lords amendment disagreed to.
Lords amendment: No. 81.
Motion made and Question put, That this House disagrees with the Lords in the said amendment.—[Mr. McNulty.]
Lords amendment disagreed to.
Lords amendments Nos. 82 to 85 disagreed to.
Before Clause 2
Lords Amendment: No. 1.
I beg to move, That this House disagrees with the Lords in the said amendment.
The amendment would alter the process for making changes to police force areas. There are already perfectly adequate provisions for revising police areas; indeed, those very provisions were substantially revised by the last Administration in the Police and Magistrates’ Courts Act 1994. Under the current arrangements, a merger may take place either if the police authorities concerned have volunteered or if the Home Secretary considers that a merger would be in the interests of the efficiency or effectiveness of policing. In the latter case, the Home Secretary must give notice of his intention to merge forces to the affected police and local authorities, and give them a minimum of four months to submit any objections. The Home Secretary must then consider those objections and respond to them before an order is made. Moreover, with Home Secretary-initiated mergers, the necessary order is subject to the affirmative procedure, so there must be a debate and vote in both Houses.
The new clause that the amendment would insert removes those two routes, and instead requires both that the police authorities volunteer and that the Home Secretary considers the change to be in the interests of efficiency or effectiveness. I appreciate the value of requiring that the Home Secretary must be satisfied that a voluntary merger would promote the efficient or effective policing of the affected area, but the amendment also removes the ability of the Home Secretary to initiate changes to police areas. It is the function of the Home Secretary to take strategic decisions about policing—that is his traditional role in the tripartite relationship. Decisions about police areas are clearly strategic in nature. Therefore, it is right that the Home Secretary should be able to alter police areas, after proper consultation and with due parliamentary scrutiny. A provision for the Home Secretary to initiate mergers has long been on the statute book—going back to the Police Act 1964, and, indeed, before that, and rightly so. There remains a place for such a provision in the future.
In making the case for retaining the existing provisions in the Police Act 1996, I can do no better than refer the House to the police reform White Paper of June 1993. It contains the following passage, which rings as true today as it did 13 years ago:
“The Government considers that...it may be desirable in the long term to reduce the number of police forces...The Government intends to ensure...that it will be possible to implement a programme of police force amalgamations in the future when the time is right…Where in future police force amalgamations become desirable, the Secretary of State will be able to prescribe new police force areas.”
I commend the forethought of the then Home Secretary, the right hon. and learned Member for Folkestone and Hythe (Mr. Howard), and I trust that he will join us in the Division Lobby to reject this amendment, should things come to that.
I know that the amendment was agreed to in the other place during the controversy over the police merger programme initiated by the previous Home Secretary in response to a report of Her Majesty’s inspectorate of constabulary, “Closing the Gap”. That might have skewed its judgment in this matter. I therefore think that it is appropriate to take this opportunity to update the House on where we are now in respect of addressing the gap in forces’ capacity and capability to tackle terrorism, serious and organised crime, other threats to public safety and what are generally called level 2, or protective, services.
On 19 June, my right hon. Friend the Home Secretary made it clear that he was not going to force through mergers where they were not wanted. As a corollary to that clear statement, the notices of intention to merge that were issued on 3 March and 11 April were withdrawn on 13 July. That is not to say that the problems of providing adequate protective services in a 43-force model have gone away. There is widespread recognition that the status quo is not an option. We need to make progress in enhancing forces’ capacity and capability to protect the public from the threats posed by terrorism, serious and organised crime, civil emergencies and similar matters; but we are now more focused on the outcomes we want to achieve, and less on structural questions. I have said before on the public record that I think that in the past we got to a stage where the concerns in the strategic forces and merger debates were more about structure and process than about policing.
I have written to all chief constables and police authorities, seeking their views on how best to proceed in the absence of mergers. I have followed up that letter with a series of constructive meetings with chief constables and chairs of police authorities, out in the country as well as in London, to hear their views at first hand. As part of that dialogue with the service, we have made it clear that we are open to all possibilities, ranging from collaboration to federation and the lead-force model, and all other permutations. We are ready to do what we can to facilitate any innovative solutions to this issue. There is a real appetite for that debate out in the country in the service, and a recognition that the gaps indicated in O’Connor’s report still exist.
What matters is delivering real improvements in the quality of protective services while protecting neighbourhood policing. That is what we all want to achieve. It is not a culmination, but just next week I shall see all the chief constables and chairs of police authorities in the Home Office for a day that will be spent principally on this matter, although also on other matters to do with policing. The public want their local force to tackle crime and antisocial behaviour. They also want, and deserve, to be properly protected from threats posed by serious organised crime and terrorism, and I am heartened by the willingness that there is among forces and authorities to tackle that issue.
Accordingly, while we have made it clear that we have no plans to return to the issue of forced force mergers in the foreseeable future, we cannot—and I contend that no responsible Government could—rule out entirely the option of Home Secretary-initiated mergers in future. We must retain the ability to initiate mergers where that would be in the public’s best interests because it would enhance their protection. Therefore, I ask the House to reject Lords amendment No. 1.
Lords amendment No. 71 relates to the Home Secretary’s powers to intervene where serious and persistent police performance concerns have arisen. We have listened to the concerns expressed in the other place, and we are bringing forward two changes to our original proposals, which we believe address those worries. Policing is a service that should be delivered and governed locally, but it should also be delivered to a consistent and acceptable standard to all our communities. The responsibility for ensuring that such a service is provided rightly resides with the chief constable and the police authority. However, there might be occasions when it becomes clear that a particular local area is receiving an unacceptable standard of policing and the local force and authority have been unable to take the necessary steps to address that.
Beyond choosing where to live, local people have no effective choice about the police service they receive. For that reason, the Government need to have reserve powers to intervene in those cases where policing has fallen below an acceptable level and other non-statutory resolutions to performance issues have proved insufficient. Our proposals in the Bill as passed by this House modify the reserve powers to intervene in an underperforming force or police authority. I should stress that we are not taking new powers; in the case of police authorities, these powers have existed since 1994, and in the case of police forces, they have existed since 2002.
I shall return to that question as well, if I may, as it goes to the heart of many of our proposals in lieu of what the House of Lords has come up with.
The Bill simply ensures that these existing intervention powers are fit for purpose. The changes that will be made by the Bill draw on our experience over the past four years in supporting forces to embed a performance culture, and on our work helping underperforming forces to turn around their performance.
The Bill widens the sources of information that the Home Secretary can consider in deciding whether to exercise his powers. At present, intervention can only be triggered by an adverse report from HMIC, but there might well be other relevant sources of information such as the findings of a public inquiry—the most germane recent case in that respect being the Bichard inquiry.
Secondly, the Bill streamlines the intervention process. In all but the most exceptional cases, statutory intervention will be considered at the point when all other means of collaboration and support have been attempted, but performance has failed to improve. In such circumstances, it may be that it is taking too long to show an acceptable level of performance improvement; that the force in question simply does not have the capability itself to address its problems; or, in the most extreme and unusual cases, that it refuses to co-operate to remedy its failings. In these circumstances, it is only right that we be able to act decisively and swiftly to address problems that are failing the communities whom the force and the police authority serve.
It is interesting to note that the debate on intervention powers has moved on from that of five years ago. There seems to be more of an acceptance that the Home Secretary should have the powers to take action where the circumstances necessitate, and we have debated instead the right safeguards and the most appropriate path for their use. We recognise the strong feelings expressed about the changes, which would allow the Secretary of State—on some occasions—to direct a chief constable on performance matters, and not require him to route such direction through the police authority first. That is an entirely fair point.
The provisions were by no means developed to shift the balance of power, and it has always been our intention that the usual route for intervention be directed through the police authority. The ability to direct the chief officer had been developed in the light of experience, which shows that there could be occasions when a police authority might not feel able—or, indeed, be able—to take the necessary steps. It was in such circumstances that we proposed direct intervention with the force, to enable us to get to the heart of the problem quickly and to take the necessary remedial action. We listened to the concerns raised in debates about this issue, and our amendments restore the position under the Police Reform Act 2002, which routes the intervention power through the police authority on all occasions. The amendments recognise that the police authority is primarily charged with holding the chief constable of a force to account.
The second main concern has focused on what we feel is a misrepresentation of the intention behind these powers—namely, that the Secretary of State could use them on a whim or for trivial purposes, which he clearly would not. We have made it clear throughout that they are intended to be used only where serious and persistent performance concerns have arisen and other attempts to address them have failed. However, to provide further reassurance we are introducing an amendment that requires the Secretary of State to consult the inspectorate of constabulary when he proposes to use these powers and imposes a duty to publish the inspectorate’s opinion on the evidence leading to the proposed course of action.
The intention is to ensure that the inspectorate’s professional and independent advice is available to the Secretary of State on whether the use of the powers is, in its opinion, the right course of action. That should provide confidence that the inspectorate’s opinion will remain in view when deciding whether to invoke the powers. The Government agreed on Report in the other place that it is right that this safeguard also be extended to include police authorities, and our amendments make such provision accordingly. So our amendments are intended to provide the Government with effective but proportionate intervention powers. We have listened to the concerns expressed about how those powers might be interpreted or used, and we have responded accordingly with some specific safeguards.
These amendments need to be seen in the context of a series of Government amendments tabled in the other place that rightly reflected the concerns expressed there, and by the Association of Chief Police Officers, the Association of Police Authorities and others over the summer. We have sought to listen and to get this right, so it is almost with regret that I ask the House to reject amendment No. 1. It is important that the Home Secretary retain this reserve power, regardless of what party and Government he represents. I believe that we have moved sufficiently to deal with the concerns expressed about the extent of the Home Secretary’s intervention powers. Routing the process through the inspectorate and taking full account of the police authority, in the way outlined in our amendments, is the way forward and addresses those concerns. I therefore ask the House to accept our amendments and to reject the Lords amendments.
I cannot deal fully now with the question that the hon. Member for Broxbourne (Mr. Walker) asked earlier. Regarding the powers that have been in place since 2002, the answer to his question is none. As yet, intervention of that sort has not been required. But that is not to say that the police standards unit, as was—the Home Office changes its name all the time; I cannot remember what it is called now—has not engaged with constabularies in need of assistance in a largely informal, supportive and professional way to try to turn them round. The baseline assessments published by HMIC and the Home Office today show that such engagement does work. In the past couple of years, some eight forces have been engaged in such a fashion. As of today, the figure is only three, and their baseline assessments show a significant improvement compared with last year and that everything is moving in the right direction. I do not have to hand the figures on the use of the powers since 1994, about which the hon. Member for Broxbourne also asked. If I do not get some inspiration by the time the debate finishes, I shall write to him.
I therefore ask the House as humbly as I can to reject amendments Nos. 1 and 71, and to accept the words in lieu.
I am grateful to the Minister for his explanation of why the Government disagree with Lords amendments Nos. 1 and 71, but I want to explain why we believe that the Lords are correct in seeking to amend the Bill in this way.
On amendment No. 1 and mergers, the Government are asking us to agree to the retention of a power to enforce the merger of police forces, against the wishes of police authorities, to drive through compulsory mergers. Let us examine the manner in which the Government attempted to use that power in the past year, because doing so will inform the House as to whether it should continue to be happy that the power remain available to the Government.
The uncomfortable fact for the Government is that they tried to drive through the biggest reorganisation of the police for 40 years with minimal debate and consultation. They dismissed the concerns of police authorities, many chief constables and councillors, and were frankly contemptuous of opinion in this House. They did their level best to avoid parliamentary debate, and when we finally secured a debate just before Christmas, it was only on a motion for the Adjournment.
My hon. Friend will know that as recently as today, the Government published a league table. Staffordshire came right at the top with 18 points—the Associated Press worked out the points system for what is virtually a league table—and West Midlands had only 12 points. Does that not demonstrate that if the Government’s original plan to merge Staffordshire with the West Midlands police had happened, Staffordshire’s standards would have been lowered to those of the West Midlands?
I am grateful to my hon. Friend for that point, which he makes very well. He is rightly proud of his local police force. Had that merger been enforced, it would have been against the will of one of the major police forces concerned, which felt very strongly that such a merger would have resulted in its being subsumed into the larger force, and in a loss of accountability. People in rural areas in particular felt very unhappy about the creation of a West Midlands super-force, which, ultimately, is one reason why the proposal fell. But the absence—
I am sorry to stop the hon. Gentleman mid-flow, but I just want to make clear two points. First and importantly, Staffordshire was not the force resisting merger with the West Midlands. Secondly, I need to correct the hon. Member for Lichfield (Michael Fabricant): we did not publish any such league table. Indeed, I have spent all day on TV and radio saying that league tables are utterly invidious and meaningless in this regard.
The Minister knows that he has published performance assessments. People are entitled to compare different forces’ performance. He is right about Staffordshire—the force did not object to the merger. Indeed, the former chief constable of Staffordshire was the Minister’s chief adviser on amalgamations. However, that does not reflect the view of the people of Staffordshire, for whom my hon. Friend the Member for Lichfield (Michael Fabricant) spoke. They greatly opposed the merger, as every opinion poll showed and the Minister knows. Local people opposed amalgamations. Not a single police force area showed a majority of the public—the people who experience the policing—in favour of the mergers.
It is generally true that the public have been left behind in the reorganisation of public services—the police are not alone in being reorganised. The public have not been properly consulted about health service and police changes. We tried to draw that major point to the Government’s attention when the proposals were considered.
Before the interventions, I was considering the absence of parliamentary debate. Conservative and Liberal Democrat Members always initiated discussion and the Government tried to avoid parliamentary debate. That was one of the worst aspects of their proposals for mergers. They drove the process to an absurdly tight timetable, giving police authorities only three months to prepare their cases before Christmas, and ignored the offer that we made in February to allow a year for proper consultation. They gravely damaged the perceived independence of Her Majesty’s inspectorate of constabulary, and many Conservative Members fear that the inspectorate’s reputation was unnecessarily undermined by the Government’s pressing for early publication of an inadequate report. The Government proceeded regardless of the financial implications, and before they had secured adequate financing from the Treasury to make even the first voluntary merger, between Cumbria and Lancashire, work.
As the Home Office director general of crime, policing and counter-terrorism said last month, the process was
“not well enough planned… not well enough managed”.
That is a masterpiece of official understatement. What did the Government achieve? They secured a delay in voluntary co-operation, which we and the Association of Police Authorities had urged, to strengthen protective services, and a bill of more than £10 million that police authorities incurred in preparation for amalgamation. The Government have had to pay compensation for that—money that will come from the police budget.
The expensive waste of police time has made us wary of potential abuse of the power to force mergers in future. The Minister said that my right hon. and learned Friend the Member for Folkestone and Hythe (Mr. Howard) had originally proposed that power, but I could as easily have quoted the then shadow Home Secretary, the right hon. Member for Sedgefield (Mr. Blair), who opposed it and warned that forcing police mergers without proper process would be
“a denial of constitutional principle”.
We cannot support the retention of that power unless the Government reassure the House that it will be exercised properly.
I therefore request five key reassurances. If the Minister can provide them, we will feel more comfortable about allowing the power to remain the Bill. First, we need to be confident that other options for improving protective services or otherwise enhancing force co-operation have been exhausted before the Government resort to amalgamation. The Minister has told the press that the power will be used as “absolutely” the “last resort”. Similarly, Baroness Scotland said that it would be used only as a “last resort” and a “back-stop”. It would be helpful if the Minister repeated that assurance in those words today.
Secondly, a proper case must be made for amalgamations with robust, costed and preferably independent evaluation of the options. Many of us believed that the O’Connor report—the report of Her Majesty’s inspectorate of constabulary—on which the Government relied to pursue amalgamations fulfilled none of those criteria.
Thirdly, adequate public consultation must take place, and not only during the statutory period of four months’ consultation once the Home Secretary has decided to press ahead with a force merger. There must be proper consultation with local people, police authorities, police forces and hon. Members before then.
Fourthly, the Minister mentioned due parliamentary scrutiny, which I welcome. However, there must be proper parliamentary consultation—not simply a short debate on any order that is laid, but proper debate on all the issues relevant to a compulsory merger, which, as Her Majesty’s inspector of constabulary conceded in the report, has constitutional significance.
Fifthly, we must have an assurance that the financial implications have been tackled, not least precept equalisation, which effectively sank the merger between Cumbria and Lancashire.
I hope that the Minister accepts that those requirements are reasonable. Let me repeat them, because I am serious about our offer. First, we must be confident that all the options for improving services have been exhausted and that the power will be used as a last resort. Secondly, a proper case for amalgamation must be made. Thirdly, there should be genuine public consultation. Fourthly, proper parliamentary consultation and scrutiny must take place. Fifthly, we need an assurance about the financial implications.
We previously sought a local referendum on force mergers and an independent cost-benefit analysis of the proposals. We do not request those checks today. We simply ask the Government to assure us that if force mergers become necessary—in the main, Conservative Members hope that they do not—they will conduct the process properly and thoroughly. I hope that the Minister can give us the reassurances that we seek about the process. If so, we will not try to oppose him when he asks the House to retain the power for force mergers as a last resort. We dislike the power, but the reassurances will give us the knowledge that the House and, importantly, the other place, can hold the Government to them should we and they consider and vote on a proposed merger in future.
I welcome the Minister’s acknowledgement that there should be a debate on outcomes rather than structures. We will support him in encouraging voluntary co-operation between forces to strengthen protective services. We accept that the gap needs to be closed and that the issue is important. We urge police authorities to be serious and to take forward as robustly as possible the proposals to make savings, which they can reinvest in protective services. Such savings should be achievable through sharing, for example, back-office functions. We support the Government on that.
Despite the concessions that I acknowledge that the Minister has made, we are not happy about the new power that the Government seek to direct police forces and intervene in their performance. Lords amendment No. 71 deals with that. The Association of Police Authorities and the Association of Chief Police Officers perceived the power as a major shift in the tripartite balance between chief constables, police authorities and the Home Secretary, and an unwelcome step towards the accrual of central power. I acknowledge that the Government amendments would, to some extent, redress the balance, but they are not adequate to allay our concerns.
The Home Secretary can currently intervene only in the case of a negative report from Her Majesty’s inspectorate of constabulary. However, under the proposals the Home Secretary could intervene without such a report. The intervention could be based on his or her opinion, and the measure contains no definition of failure to discharge any of a police force’s or authority’s functions effectively. Indeed, the Government could intervene pre-emptively, so that the Secretary of State could divine that forces or authorities were about to under-perform.
I am grateful to my hon. Friend for his clear explanation of these issues. Does he think that the Home Office would have the power to intervene if local people were demanding from their police force a set of priorities to deal with their own local circumstances that was different from the national priorities that were being imposed? Such national priorities are now the driver of much of Britain’s policing.
My hon. Friend makes an interesting point. The powers are not circumscribed at all. It is not clear how they could be used, and there appears to be no limit on their use. The judgment as to whether a police force or authority is failing is largely a judgment for the Home Secretary, and there could indeed be a conflict between the way in which a police force was responding to local demands and the Home Secretary’s desire for some other aspect of policing. I will return to that point in a moment.
During the passage of the Bill, Ministers have claimed that these powers of intervention will be used only as a last resort. That explanation appeared in the notes that accompanied the publication of the original Bill. However, Ministers have consistently refused to put the expression “last resort”—or a similar check—into the Bill. It was in the explanatory notes, but it has never been in the Bill. The power that the Government are now seeking to take is not circumscribed; it is entirely open-ended.
The Minister said that he had made a concession to the Association of Police Authorities and to ACPO, and indeed he has. We need to examine the extent of that concession, however, and ask whether it really addresses the concern about the centralisation of power. Part of the concession is that the Government can now make a direction only through a police authority. But what that means is that it will be the police authority that is directed, rather than the force. If the police authority is so directed, it is not clear that it will have the discretion to do anything other than obey the direction. That change might preserve the amour propre of the Association of Police Authorities, but if authorities have to comply with a direction, what difference will the change actually make?
The Minister said that the Secretary of State would now have to consult the inspectorate of constabulary about an intervention, but the Bill does not use the word “consult”. It simply says that the Secretary of State has to inform the inspectorate, and that the inspectorate can then make its own views known. I am not sure that that amounts to consultation. It certainly does not resemble the existing power that the inspectorate has to initiate the intervention of the Secretary of State. The Secretary of State is now taking that power to himself.
The hon. Gentleman is not quite right. We would be obliged under the amendment to inform the inspectorate of the grounds of any intervention. It would then be obliged to put in writing to us any concerns that it had about the matter, and we would be obliged fully to publish the result of the inspectorate’s deliberations. That sounds an awful lot like consultation to me.
That might pass for consultation in the Government, but I do not think that it is meaningful consultation at all. The Government would simply inform the inspectorate of what they intended to do, and allow the inspectorate to publish its views. That is not the same as consultation, and it is certainly a major shift from the present situation, in which the request for an intervention comes from the inspectorate. That power is effectively being taken away from the inspectorate and accrued by the Secretary of State.
It is not clear why the Government are seeking this power. Throughout the passage of the Bill, we have never been given an explanation of what the Government are seeking to direct. When will they want to intervene? It has been difficult for us to accept this open-ended power when we have no understanding of the circumstances in which it might be used. The Minister in the other place, Baroness Scotland, made an interesting concession, saying:
“Our experience of last resort is borne out by the first five years or so of these powers being available to the Home Secretary. He has not needed to use them”.—[Official Report, House of Lords, 9 October 2006; Vol. 685, c. 67.]
So why is there a need for more open-ended powers? I do not think that that case has been made.
For the same reason as the 1994 powers were on the statute book but never used. They will be a method of intervention of last resort. I do not know, and neither does the hon. Gentleman or anyone else in the House, in precisely what circumstances—perverse or otherwise—a force or authority might go off the rails and resist an attempt to give it help, assurance or support. Any responsible Government would have these powers of last resort on the statute book.
I am grateful to the Minister for repeating the words “last resort”, even though they are still not in the Bill. It is curious that he is saying that the Government have had these powers for five years and have not had to use them, yet they now feel that they will need greater powers over the next 10 or 15 years, or even indefinitely. They still cannot persuade anyone that they might have to use them, or give a single example of where they feel that the existing powers have proved inadequate over the past five years.
This is purely contingency planning by statute. Every statute in this area, and in many others, is littered with such powers, which are never used because whatever the Government of the day seek to do—short of using those powers—usually works, using exhortation or motivation, for example. I would also ask the hon. Gentleman not to misquote me. I made it very clear that we have had powers on the statute book for 12 years—and, happily, never had to use them—and not just since 2002.
I certainly do not want to misquote the Minister. I was quoting the Minister in the other place, who referred to five years. Now, however, it appears that the existing powers have not been used for 12 years. This is quite bizarre, and the more I hear about this power, the more I become convinced that it is unnecessary for the Government to take it, and the more I distrust them for seeking to do so. The Government’s métier has been to accrue power to the centre and to direct public services from the centre. We are particularly worried that that is what they are now attempting to do in relation to the police. They attempted to do it in relation to the proposed amalgamations, and they are now attempting to do it again.
The history of attempted interventions in the affairs of police forces has not been an entirely happy one for the Government. In February 2002, the then Home Secretary, the right hon. Member for Sheffield, Brightside (Mr. Blunkett), warned the then Metropolitan Police Commissioner, Sir John Stevens, that unless the Metropolitan police cut violent street crime levels within six months, he would send in his own management hit squad. Presumably, he intended to machine-gun recalcitrant officers in Scotland Yard. In June 2004, the then Home Secretary took on Humberside police authority and eventually succeeded in having the chief constable, David Westwood, sacked, against the wishes of the authority. In the new diaries of the right hon. Member for Sheffield, Brightside, which I am sure the Minister has read, he says:
“In thinking back on it, my desire to see speedy action and to be decisive probably coloured my judgement…The spat between the Home Secretary and David Westwood was not in the interests either of improvement in the service or myself. It simply prolonged the problem.”
We are worried that there is a danger of politicising policing. There is a fundamental difference in perspective between our approach and the Government’s proposals. To whom should police forces ultimately be accountable? We believe that accountability should be primarily to the local community, and that policing should respond to the wishes and demands of local people, as my hon. Friend the Member for Beckenham (Mrs. Lait) pointed out earlier. The Government, by contrast, have a mantra of double devolution, but will not let go of the strings and, in this case, are attempting to tighten their grip on policing. Our primary concern about the powers is the danger of central political direction leading to politicisation of policing. In 2002, the then Metropolitan Police Commissioner, Sir John Stevens, responding to the then Home Secretary and his threat to intervene in the force, said that
“accountability must never be translated into political veto over operational policing. The freedom for police officers to conduct sensitive inquiries must be sacrosanct in a democracy.”
In spite of the Government’s concessions, we still believe that the provision transfers too much power to the Home Secretary and upsets the balance that should exist between local people, a police force and Government. For that reason, we will support the Lords amendment.
It will come as no surprise that the Liberal Democrats will seek to retain both Lords amendments.
First, the extremely hostile reaction by police forces and local people up and down the land to the Government’s impossibly bullying and prescriptive—not to mention rushed and expensive—merger proposals was hardly surprising. The reaction was compelling, because it was a challenge not just to the future shape of our police forces but to the improper haste of the proposal, the consultation process, the cost and the consequences. In addition, the proposal to merge police forces threatened a double whammy for local communities. Undoubtedly, people recognised that they would be expected to fork out more council tax for the funding gap and for harmonisation between different councils, while having less of a say as to how their police force was run.
All hon. Members understood that there was a need to address gaps in the service, particularly with regard to level 2 crime, and recognised that smaller forces sometimes struggle with complex cases. Forcing a construct on them, however, was not the answer. The not so subtle carrot of the Government bribe—a share in the £125 million on offer for the good boys who volunteered to merge—was somewhat distasteful. The Government say that they are in favour of neighbourhood policing and local accountability. We support them in that. They say that they want a police service that is fit for purpose in the 21st century. We support them in that. Those are both laudable objectives. But then the Government’s merger proposals zoomed off in a direction that would not deliver those objectives.
The insistence that police forces should merge even where local opinion was firmly against that, where the results could have been damaging for effective policing, and when the Government had not given any alternatives an opportunity to be debated let alone trialled, resulted in forces that did not want to merge in the way prescribed by the Government, and some rebelled to the point of legal action. I welcome the move to discussing outcomes rather than structures, which I have always felt was a more productive approach, and the Lords amendment cleverly puts the decision to merge or reconfigure police forces back into the hands of police authorities. As the royal commission took two years to produce a report and legislation took a further year, I also welcome the Minister’s statement that he is open to all suggestions and will take his time to talk to people about the future.
The downfall of the Government’s proposals resulted from a previously cavalier approach to change. Merger is a serious business; any change in structure is. The eye is taken off the ball for many months as energies are put into change rather than front-line services. Mergers are more often unsuccessful than successful in the business world, and are not a panacea to paper over cracks. Targeted responses are more appropriate.
Research has shown unequivocally that about 80 per cent. of all mergers in the private sector either fail completely or perform worse than the previous individual organisations. One of the main negative consequences is that even if we get the merger right we create winners and losers, and while that dip in morale takes place, productivity declines. Even in the best of mergers, one can expect a minimum of 18 months to pass before efficiencies are recovered. If such a dramatic change is to be successful, buy-in is necessary from all stakeholders—local people, as the hon. Member for Arundel and South Downs (Nick Herbert) said, police officers, staff and local authorities. Otherwise, structural change has not a flying cat’s chance—
If the Minister will forgive me, I did not say that forces had been disabled, but that there was the potential for them to be disabled if the merger had gone forward.
If we want joined-up police forces, we must make them into partners, good neighbours and allies, by sharing information and best practice, and perhaps by restructuring commissioning of any gaps in service. In private industry, restructuring is the last resort—a phrase that will be bandied around this evening—but in government, apparently, it is the first. Ultimatums, threats, bullying and bribes do not demonstrate confidence in the dynamic of a good idea or a natural imperative. If we have to force something, we are not likely to get the results that we seek.
The Government have clung to the “Closing the Gap” report as the answer to everything, and yet that report has been pulled apart by academics. The Government rejected all the alternative proposals for a federated model put forward by police and police authorities. I am grateful that the Minister has now said that he is willing to consider those. I agree with the hon. Member for Arundel and South Downs that one is left suspicious of the motive behind the Government’s conversion. Their attempt to steamroller though the merger, and their deafness to alternatives, made me consider whether they wanted to move towards a national police force, or perhaps more control with less trouble—12 chief constables being less trouble than 43.
Efficiency savings and economies of scale can be achieved in many ways. I have no doubt that several police forces would have been considering sharing back-office and payroll functions anyway, as the continual need to find savings sharpens minds as to the benefits of collaboration. Where there is to be merger, it should be voluntary and decided by the local police force in consultation with partners, and local people should be involved. It should be clear to local people what the costs are and who will be paying for them, and that information should be published.
Unless we receive assurances on the five tests that the hon. Member for Arundel and South Downs put forward, we cannot agree with the Government’s motion to disagree with the Lords amendment. We will oppose it. Whether we move forward in a more constructive fashion, with the element of compulsion thus reduced, is therefore in the Minister’s hands.
Order. I am not sure whether the hon. Lady was giving way, but I suspect that she would like to add a little.
I am grateful, to you, Mr. Deputy Speaker. I apologise for sitting down too soon.
Lords amendment No. 71 concerns intervention in a failing police force. When a police force is failing, people will indeed want to be protected by Government intervention to ensure that they are safe and have a police force that delivers. There is no dispute about that. However, although the Government talk of localism and local policing, the Bill proposes to centralise power in the hands of the Home Secretary by empowering him to intervene directly in any police force that he believes is failing, or—even more scarily—any police force that he believes may fail in the future.
The critical issue for us is the lack of objective criteria by which such a power would be invoked. I acknowledge that the Minister has made some moves, but there is no actual commitment or specific detail. Gone is the need for a negative report cataloguing and evidencing failure, although there has been a marginal concession in that consultation, or the opinions of the inspectorate, will be published. The Government have gone a little way towards limiting the powers. The changes mean that an authority must be failing before the Home Secretary can intervene, or the authority must first request an intervention. However, the new relationship will change the tripartite balance and, given the constitutional implications, I do not think that the Minister’s offer goes far enough to provide adequate safeguards.
The Home Secretary will direct the chief officer and/or the police authority to undertake specific measures to correct and address any failure that he perceives. That power goes beyond anything we have seen to date, and despite assurances in Committee that it would be used solely as a “last resort”—that appeared only in the explanatory notes—or when forces were failing, the Bill still contains no explanation or definition of “last resort” or “failing”.
Not only can the Home Secretary intervene if he believes that a force is failing but, as I have said, he can intervene if he believes that it may fail. The Home Secretary may be very talented in many ways, but I do not think that he is a clairvoyant. I do not understand how he can predict whether a force will fail. According to what criteria will that prediction be made?
The Liberal Democrats entirely support the idea of the police and police authorities being able to request help, but although the Government have moved somewhat and Her Majesty’s Inspectorate of Constabulary will now have some involvement, the Government have not said how, why or to what degree. The definition of that safeguard is far too unspecific, and the Government have given no commitments other than their commitment to publish the inspectorate’s opinions.
Without independent scrutiny and examination, and without the oversight of a specialist agency making an assessment and a judgment, the way is still open for inappropriate intervention. The only rationale for such intervention—its sole basis—must be proper assessments of the performance and operational ability of a force. We are told that the triggers for intervention will be broadened because the Home Secretary will be able to look at national performance assessments of police forces, or ask the new chief inspector of inspectorates for an opinion. I hope that that would happen in any case, but I am not reassured that it is in itself a safeguard.
No one is saying that the Government do not have a duty to intervene when things are going wrong. What we want is a definition of “going wrong”. We must have objective criteria in the Bill so that we can judge what “wrong” is, and there must be a genuine and evidential base for intervention. There is a danger that the Home Secretary will find himself micro-managing the police. It would be better to ensure that intervention occurs only when a force itself asks for help, or when a force is measurably and irrefutably failing to meet its performance and operational standards.
It is a great shame that the Government appear to have so little faith in the professionalism of the police, police authorities, inspectorates and chief officers. Unless and until we can be completely assured that objective criteria will be used to evaluate “failure”, and unless and until we have a definitive and measurable quantum for what constitutes “last resort”, we still cannot support measures that would compromise the operational independence of our police forces.
I fear that the House may have already heard the best of my speech, but I shall plough on regardless.
It is a great privilege to speak in the debate, not least because I have the almost undivided attention of the Minister for Policing, Security and Community Safety, which I am delighted to have. I have not had a chance to look at the performance table—not the league table—and establish where Hertfordshire resides in it, but I am sure that Hertfordshire is doing an excellent job. I regularly meet our chief constable and chief superintendent, and I know they are very much committed to the safety of my constituents. They could do with more resources, but I have yet to meet a public servant who does not demand more resources, and they are managing very well with what they have.
The debate has raised the vexed question of accountability versus independence. In principle I very much like the idea of an independent Hertfordshire police force, free to make its own decisions and pursue local objectives and concerns. However, I also understand the Government’s wish for a level of accountability. I think that if a police force is clearly failing, there is good reason for some form of intervention to address that failure if the police authority is struggling.
Two contradictory forces pull me in different directions. In Hertfordshire there is a drive for local accountability; meanwhile, understandably, the Government and the Home Secretary seek to ensure that most police forces deliver to a uniformly excellent standard throughout the country. The Government clearly need to be protected from persistent failure. I am delighted that since 1994 the Home Office has not felt the need to intervene in the running of a police force, and I hope that that continues for a long time, but I am sure that if a reason for intervention arose in the future, we who are here in the Chamber—and those in the many House of Commons bars and restaurants—would like to know the basis on which the Home Office and the Secretary of State would intervene. I do not consider that concern unreasonable, and I am sure that the Minister will take it into account.
The merger of police forces created a great deal of angst in Hertfordshire, as it did in many counties and constabularies. My constituents feared that mergers would cause forces to focus on issues that were not of local concern. Like many of my constituents, I watch police programmes in which, accurately or inaccurately—I know that it is fiction—we see many policemen making their careers by chasing international criminal masterminds, pulling down Mr. Big, securing an audience with the Prime Minister and having well-deserved medals pinned on their chests. However, although it is important, international crime does not keep my constituents awake at night. What keeps them awake at night is the fear of low-level thuggery and persistent antisocial behaviour. Let me add, at the risk of sounding repetitive, that they feared that a more “global” police force would view issues on a global rather than a local basis.
That is not to say that the people of Hertfordshire would turn their backs indefinitely on future police mergers if a good case could be made, but I hope that if the circumstance arose there would be full and proper local consultation: not a three-month consultation, but a consultation allowing a period of reflection and consideration, allowing the Home Secretary and his Ministers to devise a cogent argument and allowing us, the elected representatives of Hertfordshire and the local people, to respond.
I hope that as the Bill proceeds, the Minister will keep in mind the need for accountability. It is required at all levels, and I know it will ensure that the people of Hertfordshire sleep more soundly tonight and in the future.
With the leave of the House, Mr. Deputy Speaker.
We have had a reasonable and reflective debate, rightly looking at some of the contextual issues around mergers in the summer. I do not deprecate that—it is perfectly reasonable in that context. It seems rather strange that I have prayed in aid the right hon. and learned Member for Folkestone and Hythe (Mr. Howard) and the hon. Member for Arundel and South Downs (Nick Herbert) has prayed in aid my right hon. Friend the Prime Minister—and long may that continue in one way or another. I take seriously the points raised and also some of the offers suggesting what I need to do to resist a vote, at least on the first set of amendments. First, though, I shall look at the general context of the points raised by hon. Members.
I commend the hon. Member for Broxbourne (Mr. Walker) for his honesty. He said—and I think that it would resonate with all of us—that his local constituents could not care less about protective services and level 2 crime. I accept that and it is part of our difficulty—mine as Minister with responsibility for policing, hon. Members’ as responsible MPs, and the police forces. The only time they have concerns about level 2 provision is when it is needed but is not there. Beyond that, their immediate concern is volume crime, neighbourhood policing and whether local police are visible and accountable, as they should be, on our streets. I commend the hon. Gentleman for his honesty, and it goes to the heart of the debate—a debate that we are not planning to have in the near future, but one that I have had since I assumed this role last May, at the tail end of the mergers debate. I have certainly tried to deal with those matters since July when the mergers fell away—or whatever description people want to use. We then got into serious discussions about wither public protective services, if not through the mergers route. It is one of the dilemmas that we face.
On level 2 protective services, does the Minister agree that one of the benefits of closing the gap was raising the focus within all constabularies on the need to provide such services? One of the perverse benefits of the decision not to proceed with mergers was that many forces—my own of West Mercia included—have gone a long way towards addressing the perceived shortfalls in providing those services and are now, of their own volition, putting in even greater resources in order to meet those shortcomings.
I certainly agree with the thrust of what the hon. Gentleman says, although if I were pedantic I might dispute the notion of it being perverse. Some hon. Members have suggested today that all the effort put into the discussions over mergers were a complete distraction, a complete waste of time and got in the way of seriously trying to address the problems raised by O’Connor, among others. I am with the hon. Gentleman, however. If we leave perversity to one side, most forces seriously engaged with those discussions during the merger process and since its demise.
I have also said to many forces that, perhaps because of a shorthand—the speed of it all—much of the merger debate was carried out on the premise that such collaborations and discussions had not happened beforehand. There had not been enough, but there certainly had been some, so there was no total vacuum in respect of discussions, collaborations or actions.
The Minister is absolutely right that collaborations and discussions did happen. It seems to me that what has emerged from the merger process is a realisation of how multi-dimensional these relationships have to be. If we take the example of my own force, Avon and Somerset, it was looking into collaborating not just with other police forces, but with other local government agencies and even the private sector in respect of the provision of some back-room services. The Avon and Somerset force was looking to collaborate with neighbouring forces on some provisions, not just within the region but, for example, with those in proximity such as Gwent across the Bristol channel, which is part of the same crime pattern area, and also with West Midlands, Merseyside and other forces that have the same sort of crime problems and are facing the same enemy and need to co-operate.
Much of that work is at least under way, if not developed, in some parts of the country. Avon and Somerset force is developing a very interesting model that does not go the strategic or operational service level, but to back-office services, as the hon. Gentleman mentioned. It is looking across the public sector to secure some degree of rationalisation. That makes perfect sense, whether it be about pay, human resources—perhaps not IT, which goes to the operational sector of policing—and generic business, back-office functions. Why should the local health authority, the local council and local police forces have different and distinct systems with all the incumbent directives? Avon and Somerset will be first, and part of the model of investigation may be broadened out to the public sector across the south-west region. I commend that as it is worth pursuing. I take the hon. Gentleman’s point about the other dimensions, both operational and strategic.
Moving on slightly from that point, does the Minister accept that the mergers discussion postponed precisely the sort of—[Interruption.] I do not wish to disagree with the Minister while he is still sitting, but I have to declare an interest here as my husband is the chairman of the Sussex police authority, so I am aware that before the mergers debates started the sort of process mentioned by the hon. Member for Northavon (Steve Webb) had already been discussed by police authorities, and even some local authorities. The mergers discussions postponed it all for a long time and it cost people, including the Home Office, money.
No, I disagree with that, and I think that the hon. Lady will find that she meant to refer to the hon. Member for Somerton and Frome (Mr. Heath), not the hon. Member for Northavon (Steve Webb). I believe that I have met the hon. Lady’s spouse and he is doing a very good job, too. She is right to the extent that Sussex was doing much of that with Surrey, but not much beyond—just partly, but not terribly much, with Kent. People are right to point out that a huge matrix is emerging, which is far more elaborate than simply back-office or operational service or strategic service sharing.
Where we are at now is that most forces recognise, as we recognise across the House, that counter-terrorism operations are probably not best done at the local basic command unit level. The substance and strategic nature of terrorism suggests that. Most forces recognise, merger aside, that a degree of authority needs to be ceded up to the regions at least, and in some cases up to the national level. It is still an issue to see how local level neighbourhood policing and BCU commanders are folded into the counter-terrorist effort, as they have a role to play from top to bottom. There is recognition of the need to cede some authority and sovereignty up the chain of command to the regional and national level. That is recognised in respect of expertise. I believe that Sussex has an excellent reputation and teaches many other forces about firearms. Why reinvent that wheel, assuming that we can talk about wheels and firearms at the same time, of course?
I hope that the Minister accepts that it was not my intention in my brief speech to diminish organised crime. Clearly, people trafficking, international terrorism and drug dealing are hugely important. Is the Home Office looking at a different formula for tackling those issues beyond the idea of merging police forces? It may be slightly off the point, but I would grateful if the Minister answered that question.
I want to make two points on that issue. First, what I said on counter-terrorism rightly does not prevail in respect of serious and organised crime, which belongs more readily at the regional or more localised level, albeit under the umbrella of the Serious Organised Crime Agency. However, we have taken out of that, almost sideways, our centre for human trafficking—although the hon. Gentleman will understand that we are against such trafficking rather than promoting it—and other elements such as the European action plan, so that runs alongside, though very much with the grain, what police forces are doing locally and nationally.
I repeat that I am hugely impressed and enthused by the co-operation and enthusiasm of police forces, services and authorities in taking this matter forward. I give a little to the hon. Member for Beckenham (Mrs Lait) in allowing that Sussex is ahead of the game—as are some other forces—but others are way behind in even thinking about filling the gap or protecting services. They have come on in leaps and bounds—perversely or otherwise, to pick up on the point made by the hon. Member for Ludlow (Mr. Dunne)—and we are already in a healthier position in terms of filling the gap that O’Connor recognised than we were before mergers were contemplated. We can argue cause and effect, but that would be like counting the angels dancing on the head of a pin.
Even given that context, it is right and proper that we have the ability to enforce merger if necessary. The hon. Member for Arundel and South Downs (Nick Herbert) mentioned five tests and I shall answer as sincerely as possible. He asked whether amalgamations would be a last resort, and I confirm that they would. My colleague in the other place has already made that clear and I am happy to do so, too. His second question was whether a proper case would have to be made for amalgamation, and the answer is of course yes. The Bill requires the Home Secretary to set out the case for merger and, having learned the lessons from the summer, we recognise that the case would have to be made very clearly.
The hon. Gentleman asked about adequate public consultation beyond the statutory period. That is what we tried last time, perhaps feebly. The four-month statutory period came right at the tail end of the process, which started last September and finished in July, which is somewhat more than four months. We will learn the lessons about the method of consultation. As a democrat, I would resist the call for local plebiscites, because I do not think that they are very democratic.
On the point made by the hon. Member for Broxbourne, Hertfordshire was enthusiastic about a merger, just not with Essex. It would have been happy to merge with Bedfordshire and there is still a strong desire for the two to work strongly together. Naturally, they look more to Thames Valley than to Essex for further help, assistance and collaboration. The picture that has been painted of the Government on one side and 43 forces railing against merger on