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Police and Justice Bill

Volume 451: debated on Monday 6 November 2006

Lords message considered.

Clause 15

Conditional cautions; types of condition

Lords amendment: No. 5B.

With this, it will be convenient to discuss Lords amendments Nos. 5C to 5H and the Government motion to agree thereto.

We have listened carefully, during the course of debates, to the concerns raised in this House and in the other place about the proposed extension of the conditional cautioning to include punitive conditions. Those concerns centred on the discretion that would be available to prosecutors, particularly with respect to financial penalties. We therefore tabled amendments in the other place to deal with that.

The amendments achieve four objectives. First, they reduce the maximum amount of any required financial penalty from £500 to £250. Secondly, they provide that the financial penalties can be used only in respect of a set of offences specified in secondary legislation. Thirdly, they require that secondary legislation must specify in relation to each offence the maximum penalty for that offence or group of offences. The prosecutor would have some discretion to set a lower financial penalty than would otherwise be attracted by the offence in question—for example, to take account of the offender’s ability to pay. There will therefore be a maximum for that particular offence according to the prosecutor’s judgment about offender’s being able to pay. Finally, the amendments make subject to the affirmative resolution procedure any proposed changes to the maximum hours—set at 20 in the Bill—that an offender can be required to attend at a specified place, and to the maximum financial penalty of £250.

Before I do so, may I deal with another matter? On 24 October, the right hon. and learned Member for Sleaford and North Hykeham (Mr. Hogg) asked me whether a person could get a conditional caution for burglary. I said that we were essentially looking at petty offences and that it would not be our intention for burglary, especially residential burglary, to be included. That is indeed the case and we do not intend to include commercial burglary either. That remains true, but my officials reminded me this morning that breaking into a garden or allotment shed might, depending on the seriousness of the offence, result in a conditional caution. We noted cases in the pilots where a couple of people were seen walking down a road after removing a bicycle from a shed, breaking a lock in the process. They were arrested and dealt with through a conditional caution, one of the conditions being to compensate the shed’s owner for the cost of the lock. The owner accepted that and was pleased to receive the compensation. The defendants obviously accepted the conditional caution, too. I just wanted to put that on the record before giving way

I am grateful for that clarification, but my question is about a related but different matter. The Solicitor-General mentioned affirmative resolutions, but may I ask him whether the affirmative or negative resolution procedure applies to the designation of offences referred to in amendment No. 5E(1)?

That would be dealt with through the negative procedure. The affirmative resolution would apply to any proposal to increase the maximum hours or the maximum penalty of £250. Negative resolution procedure applies to other matters.

In short, the amendments limit the maximum financial penalty that can be required through the scheme and provide increased parliamentary oversight of key aspects of it. They would nevertheless extend the usefulness of the scheme by enabling it to apply in low-level cases that fall outside its current remit. I commend the amendments to the House.

It seems to us that an important principle is at stake here that Parliament should uphold—that the police and the Crown Prosecution Service should prosecute and our courts, whether magistrates courts or Crown courts, should try a case on evidence, convict or acquit and sentence where appropriate. Our courts should not prosecute and our police and prosecutors should not sentence. Conditional cautions breach that principle, since they give the power of sentencing to agencies other than the courts. I want to see justice in the court room not at the cash point, and I want the separation between the police, the prosecution and the courts maintained.

The analogy made previously between the penal aspects of a conditional caution and a fixed penalty notice is not strictly accurate, but it will, for now at least, have to do. I accept that the best is sometimes the enemy of the good, and that the concession on conditional cautions made by the Government in the other place has to some extent mitigated the most offensive elements of the scheme. I congratulate my noble Friends on their achievement—and, indeed, the Government on having the good sense to agree to a compromise. I am content, if not deliriously happy, to accede to the Government’s motion.

Although the Government tabled some amendments in the other place to address some of the concerns of Opposition Members, we remain concerned that the proposals herald a shift in British justice, with the prosecution effectively setting the sentence. Another concern is that, under these proposals, criminals may be able to afford to buy their way out of a criminal conviction. The maximum fine has been lowered, which we welcome, but the principle remains.

In passing, I note a comment by Lord Goldsmith in the other place about the efficacy of the pilot schemes. He said:

“There has not been enough time to reach any conclusions on the reoffending rate, but the scheme has been operating in parts of the country sufficiently to know that it is well worthwhile—I have had that directly from those operating it, who have also reported to me what the victims involved have said”.—[Official Report, House of Lords, 10 October 2006; Vol. 685, c. 129-30.]

That evidence is hardly convincing enough to persuade that the good done is so compelling in benefiting the public interest truly to win the argument. It could be argued that the exact opposite is the truth. Because a fine can be paid—possibly without further ado—for what amounts to a criminal conviction with no criminal record being held, the public may be at greater risk. There will be no criminal record, yet the person has admitted guilt for a criminal offence.

I also remain concerned about the switch from the original purpose of a conditional caution, which was rehabilitation. Are we changing behaviour? That is the all-important factor. Surely we would all regard the change of behaviour as the real measure of success, and the pay-and-go policy will not change behaviour. However, Lord Goldsmith acknowledged that the Bill might not be drafted perfectly in that it could be interpreted as imposing a fine without additional conditions pertaining to rehabilitation or reparation. He inferred that that was not the intention and stated:

“If that is noble Lords’ only concern, we may be able to give further thought to that”.—[Official Report, House of Lords, 10 October 2006; Vol. 685, c. 133.]

I encourage the Government to do so because, without that clarification, our concerns remain that they may be creating a two-tier system of justice—one for the rich and one for the poor.

The Government are seeking to speed up the justice system for low-level crimes and we support that intention. Our concerns and criticisms have been directed to ensuring that changes made to our criminal justice system achieve the right result, rather than create unintended consequences and problems in dealing with what is a real issue for people throughout the country: dealing with antisocial behaviour speedily through the criminal justice system. The guiding light in all that we do must remain just that—ensuring that our streets are safer and making the reoffending rate the measure of our success. Although it is clear to me that we shall not persuade the Government of our remaining arguments, I welcome the changes that they have made and I am glad to have the opportunity to put those concerns on record.

I encourage the Government to measure the efficacy of the new proposals as they pass into law. We need to monitor closely the success or otherwise of the new powers. That means measuring the rate of reoffending. We need to understand what punishments are given alongside fines and conditional cautions—if fines alone are not given—and the range of conditional cautions. Without knowing that, we will not understand the impact on the reoffending rate.

We need to understand who chooses a conditional caution and whether those who refuse have to opt for court because they cannot afford the fine. It is important to measure those aspects. Only with such monitoring can we begin to understand whether the changes bring success. Success means safer streets and changed behaviour, not ticked boxes.

I want to direct hon. Members’ attention to a small point that arises in amendment 5E. Subsection (1) would provide that a financial penalty may be attached to a conditional caution for any offence that the Secretary of State prescribes by designation. The Solicitor-General has been kind enough to confirm that the designation will happen through the negative, not the affirmative, resolution procedure. That means that, through negative resolution procedure, the Secretary of State can put into a statutory instrument any offence that he may wish to designate. The effect is that the Government can drive up the gravity of the offences that the financial penalty covers.

The Solicitor-General fairly said that he did not wish domestic burglary to be included in the designated category of offence. However, I believe that he would concede that his successors could include domestic burglary or, indeed, grievous bodily harm, if they were so minded, in the designated class of offence to which the financial penalty attaches. They could do that by the negative procedure.

Anyone who is familiar with the procedures of the House knows that the statutory instrument procedure is imperfect because the House either accepts or rejects a statutory instrument in its entirety. I can contemplate a statutory instrument that includes several offences, some that hon. Members would not wish to be included in the designated category and others that they would be content to welcome into it. However, we could not pick and choose because of the procedure.

In a spirit of compromise, I ask the Solicitor-General to publish a draft of the statutory instrument before it is formally laid so that hon. Members and, indeed, anyone who dissents from the proposition that one specific offence should be included in the draft statutory instrument, could object at that early stage rather than being obliged to try to reject the whole list by a negative prayer. I do not like the procedure, but if we must have it, an undertaking to proceed in the way that I suggest would go some way towards dealing with the objections that I have always had to the overall procedure.

I thank the hon. and learned Member for Harborough (Mr. Garnier) for the way in which he set out his views. There has been much discussion of the matter. I realise that he and the Liberal Democrats have concerns about what they perceive to be the principle that the police and the Crown Prosecution Service are involved in the investigation and take forward a prosecution but that it is for the courts to dispose of cases. However, we have said here and in another place that procurator fiscal fines have existed for some time in Scotland and that cautions have also been used. They have a long history in this country and there are also fixed penalty notices. I do not want to rehearse those arguments, save to say that I do not accept that the principle exists in the way that he assumes that it does. I do not therefore believe that we are breaking a great principle. We are proposing a sensible way in which to deal with cases that takes better account of victims’ concerns so that their cases are tackled more effectively and quickly, and, I hope, with compensation paid more quickly.

The hon. Member for Hornsey and Wood Green (Lynne Featherstone) set out a rather illiberal approach. She appeared to object strongly to cautions, speaking of them as “pay and go” or buying one’s way out of criminal convictions. She appeared to insist on people having criminal convictions instead. I suspect that, on reflection, the operation of the conditional caution will cause a different view to emerge from the Liberal Democrats.

The right hon. and learned Member for Sleaford and North Hykeham (Mr. Hogg) talked about the need to re-examine the way in which we introduce the list of offences that might be suitable for conditional cautions, and suggested that it might be possible to publish a draft at an early stage. We propose to consult about the list of offences and I hope that that will give him and others the opportunity to examine the offences and have a broader discussion about what should be included before we lay the negative resolution. If there are subsequent objections, it will be up to the Opposition to pray against it in the normal way under the negative resolution procedure.

We have been through a process whereby the Government have set out their views, we have listened to the debate, tabled amendments in another place and listened to the comments made there. It is now broadly accepted that we have gone through the proper process that Parliament goes through in such circumstances and reached a view that we can all accept. Perhaps, in future, we will wish to reconsider the matter and go further. We said that we would like the limit for the financial penalty to be higher. We wanted a figure of £500 but accepted £250 to take account of Opposition views.

There is room for further discussion but I hope that it can be conducted in the context of ascertaining how the ideas work in practice. Perhaps we can then examine some of suggestions of the hon. Member for Hornsey and Wood Green, the results of some of the pilots and the operation of conditional cautions.

Lords amendment agreed to.

Lords amendments Nos. 5C to 5H agreed to.

After Clause 46

Lords Reason: 36B.

I beg to move, That this House insists on its disagreement with the Lords in their amendment.

With this, it will be convenient to discuss Government amendments (a) and (b) in lieu of the Lords amendment, Lords amendments 81B, 82B, 83B, 84B, the Government motion to disagree and Government amendments (a) and (b) in lieu of the Lords amendments.

The House has spent much time discussing the Bill and the amendments. The Government do not accept the Opposition amendments, for reasons that I shall state as succinctly as possible. First, they are outside the scope of the treaty, and would require us to renegotiate it.

Secondly, in strictly legal terms, were the amendments to succeed, we would have to renegotiate some 20 other bilateral treaties. I heard a shout from the Conservative Front Bench of “Good thing” to the first—[Interruption.] Apparently, the shout came from the Bench behind. I wonder if Opposition Members think that renegotiating the other 20 treaties would also be a good thing.

Thirdly, the amendments are simply unnecessary. The Extradition Act 2003 already contains safeguards, including the precedence of any UK prosecution.

Fourthly, we have been prepared to listen to Members’ concerns and to move in their direction when we felt that the suggestions improved the treaty and the Bill. For example, on jurisdiction, my noble and learned Friend the Attorney-General is already developing with his US counterpart, with whom he has spoken—and with whom I have spoken twice since the matter was last discussed in the House—guidance to cover the forum issue. We hope that that will be completed in the next three to four weeks. Partly as a result of that willingness to address and clarify such issues, the majority in favour of the amendments in the other place fell from 102 and 83 to 37 and 33 the last time around. I hope that that process continues, as we have been prepared to move in that direction.

One of the Home Secretary’s principal grounds for rejecting the amendments from Liberal Democrat and Conservative Members in another place was that they were incompatible with the treaty. Will he confirm that his proposed amendments in lieu, which he wants the House to accept, are entirely compatible with the treaty, both in their present and future effect, if implemented?

Yes, I can. It might help Members on both sides of the House if I were to explain the amendments. We have tabled the amendments in their proposed form simply to ensure that the Bill does not fall. As a technical measure to comply with the conventions of both Houses, we have inserted a so-called sunrise provision, which ensures that the amendments never see the light of day. Under the amendments, both Houses would need to pass a resolution before the amendments could come into force. The Government are not, of course, obliged to bring forward such a resolution, and have no intention of doing so. Consequently, the Government’s amendments have no practical effect in lying outwith the treaty. They do, however, enable us to cope with the conventions of both Houses.

As the Home Secretary knows, I would not support the Lords amendment on designation, as I said when the House last considered it. But will he spell out to me precisely which part of the treaty—for example, but only for example, the American treaty—is offended or contradicted by the amendment on forum? I confess that I really cannot see which part that is.

My hon. and learned Friend, who has probably studied these matters longer and in more depth than most Members of the House, will recognise that, as far as I am aware, forum does not appear in the treaty at all. If we therefore impose a forum requirement on the treaty, that will be outside the existing treaty. That is not to say that it will never be acceptable to the United States or anyone else, but, in strict legal terms, it would require a renegotiation of the treaty. As I said, it would require a renegotiation not just with the United States, but with approximately 20 other countries. I would be happy to list the countries involved, if Opposition Members would like me to do so.

For those four reasons, it would be wise to accept the current situation, without trying to impose the Lords amendments. I therefore commend the Government amendments.

A fifth reason has not featured as much as it might have done, due to our disputation over important legal points—the human and practical element of our deliberation. The Opposition amendments could result in serious offenders and suspected offenders escaping justice. I want to concentrate on that fundamental point, as, however we approach the matter, I want to make sure that we understand the implications were the treaty blocked, which would be the effect of the Opposition amendments. Opposition Members will have to show the country where they stand on the issue that is surely at the heart of the debate—ensuring that victims of crime get the justice that they deserve.

I am grateful for the Government’s movement on the issue. I understand what my right hon. Friend said, I think, about certain amendments being devices. I have two questions about the wording of the Government amendments. First, will he explain the circumstances in which the powers contained in subsection (6) of the first amendment (a), on page 4148 of our amendment paper, would be used? Secondly, what does the word “significant”, which appears twice on page 4149, mean in the second amendment (a) on forum?

For technical reasons of complying with the conventions of both Houses, we have incorporated the Opposition amendments, but we have inserted sunrise clauses, which ensure that they do not take effect unless certain things happen. I have assured the hon. Member for Somerton and Frome (Mr. Heath) that those things will not happen, because we have no intention of moving the resolution or failing to ratify the treaty. I can understand the desire to discuss the technicalities of those resolutions, but the important point is that we would not give effect to them, as we would not pass such resolutions or fail to ratify within the 12 months specified. Therefore, we can comply with the conventions of both Houses while ultimately defeating the Opposition amendments, which would, in effect, block the treaty.

The Government have a forum amendment on the amendment paper, so surely the Home Secretary concedes that the proposition included in the forum amendment is in principle desirable. Therefore, why is he saying that something that is in principle desirable is something that he will not do?

If we ever had any intention of giving effect to such an amendment, the right hon. and learned Gentleman’s argument would bear weight. I made it plain at the beginning of my contribution, however, that we had no intention of doing so, precisely because we do not accept the forum amendment in principle or in practice. Therefore, we will not move the resolutions to give effect to it.

If my hon. and learned Friend will allow me to make some progress, I was talking about the victims of crime. Justice for victims should be at the heart of our consideration. As I noted the last time we discussed the matter, the word “victims” was rarely if ever used in any of the contributions from those on the Opposition Front Bench. That observation is not in any way to minimise their arguments, but merely to point out a sin of omission, as those who should surely be at the centre of all our deliberations when discussing the general principles of justice are those who suffer most when injustice occurs.

The other issues have been addressed. The United States has consented to the treaty, as we asked it to following the urging of those in the other place who share party membership with the Opposition spokesmen. We dispatched a Minister to Washington to urge action on the United States, on the basis of arguments deployed in this House that it was presenting an insuperable obstacle to ratification and to the Bill’s passage. We went to the United States, and cajoled—and persuaded—the Senate to ratify. That has now been dealt with, and the forum arrangements have been clarified. As I have said, the Attorney-General is having discussions with his United States counterpart. Given all those developments, the argument about the practical effects on the implementation of justice, and on the victims themselves, is one from which the Opposition can no longer hide.

If the Conservative amendments were upheld, they would make ratification of a new extradition treaty with the United States impossible. Opponents of the Government would effectively prevent suspected serious criminals from being brought to justice. Having addressed all the issues that they have raised so far, I believe that that would be an intolerable position to present to the people of this country.

It is nonsense to suggest that we are not in a position to extradite people just because we have changed the basis of the treaty. There is an existing law on extradition, which would make it possible to proceed.

Let me give the hon. Gentleman some examples of people whom we cannot extradite under the present arrangements. There are a number of paedophiles, for instance. One in particular has been long sought by the authorities in this country, and is now sheltering in the United States behind the technicality that because his alleged sexual attacks on children happened a long time ago he cannot be extradited. Does that serve the purpose of justice?

I can give another example. A doctor fled to the United States using the same loophole to escape prosecution in respect of the death of a child. Fraudsters, one of whom is wanted for 250 crimes, are also using that get-out-of-jail card. Extradition is prevented in all those cases, and would continue to be prevented if the treaty did not become effective.

I do not believe that any of those cases serve justice, and of course none of them represents justice from the point of view of the victims. Unless the treaty is ratified, justice in those cases and some others cannot and will not happen. Once the new treaty is in place, that loophole will be closed. I do not say that no one can be extradited from the United States at present, but in a number of cases we cannot extradite under the existing arrangements, but will be able to do so under the arrangements I have described.

I am grateful to the Home Secretary. I should like him to help me—and he knows that this is friendly fire.

I am very concerned about the forum issue, and the serious social and legal problems that I envisage if we do not pass the amendment. The Home Secretary says that forum is not in the treaty, and that is why it is offensive to the treaty. He is right—forum is not in the treaty, but it is in the law, and in the Act. The law and the Act provide that if we choose to prosecute someone, our forum will take precedence. How does that not offend the Act, as opposed to saying that if we choose not to prosecute someone we must look at the overall picture before we extradite? I have to tell my right hon. Friend that I do not follow his argument.

Let me try to explain, in the spirit of fraternity that always underpins our discussions. I speak without the expertise that my hon. and learned Friend brings to these legal matters—and I mean that truthfully.

My understanding is that forum is not part of the treaty, although it is mentioned in the Act. That means that if we wish to establish it in the treaty, although it may be acceptable to the other party to the treaty—that will depend on what we suggest—it will nevertheless require a renegotiation of the treaty. That is self-evident. I am not saying that it is not possible, but it will mean a renegotiation, and if it means a renegotiation with the United States, it will also mean a renegotiation of the same forum in the case of 20 other bilateral treaties. We will be prevented not just from ratifying this treaty, but from continuing without renegotiation of those other treaties. I do not consider it acceptable to block the treaty in that manner.

That is not to say, however—this might help my hon. and learned Friend—that we could not, outside the treaty, attempt to achieve some guidance on the procedures that we might use in an informal, or “less formal than treaty”, manner in relation to such an important subject. That is why I have spoken in general terms to the United States Attorney General twice in the past week, and why my noble Friend the Attorney-General has spoken to him with a view to developing guidance on this subject.

I will not go into all the safeguards that already exist in relation to forum. At present, if there is a case to be held in this country it will take precedence over any request for extradition from the United States.

I am answering my hon. and learned Friend’s question at some length, because he clearly considers the issue important: so do I, so does the United States Attorney General and so does our Attorney-General. We are not saying that we will not deal with it, but I am asking for us to be able to deal with it outside the treaty, because we can then secure the benefits of the treaty as well as the benefits of clarification on guidance. I hope that that goes some way towards explaining the important issue that my hon. and learned Friend has raised.

It would not have the legal status of legislation or of part of the treaty. I fully accept that. However, it constitutes a move towards trying to address the problems that interest and worry my hon. Friend. I would guess—I was going to mention this later—that we will be able to say something about the arrangements in three or four weeks’ time. I cannot give my hon. Friend the details tonight, but I can tell him that we regard the issue as important, and that we are already addressing it.

Let me now explain the other benefits of the new treaty, apart from those relating to people who are currently hiding from justice. First, let me draw a clear line. Either we have the treaty or we do not, and I do not believe that justice will be served if we do not.

The new treaty will define extraditable offences not by a fixed list of crimes, but by a sentence threshold. That has the advantages of flexibility and dynamism to take account of changing circumstances. We are currently hampered by our inability to chase a criminal for a crime not thought of in 1972. We want to ensure that future-proofing is written into the treaty, making it more effective over a period than a treaty listing extraditable offences by name rather than according to a threshold of seriousness.

The treaty will also allow the extradition of someone who is already serving a prison sentence. For example, at present a murderer serving a whole life sentence in America is highly unlikely ever to be brought to justice for other crimes that he may have committed here. That means that we are selling some British victims of crime short, because they will never see their attackers in the dock. The new treaty will resolve the problem.

Would not the UK victims of a criminal serving a whole-life sentence in the United States be delighted that he would more than likely spend the rest of his life behind bars? They would prefer that to the English system under which, having been given a ludicrously lenient sentence, the criminal would be let out less than halfway through, wearing some sort of a tag and free to commit further offences.

I take it that the hon. Gentleman objects to the mandatory revision of sentences, release at given points, mandatory reductions in sentences for pleading guilty and so on. I congratulate him on being several months behind me in saying so publicly, and we are this week issuing a consultation on sentencing—[Interruption.] I will proceed, if the hon. Member for Beaconsfield (Mr. Grieve) can calm down a little.

Under the new treaty, provided all the other extradition safeguards are observed, law enforcement agencies will be able to extend the charge sheet against the suspect even if the subsequent charges were not on the original extradition warrant. Obviously, that will be helpful in ensuring that justice is fully served. I fail to see how the House could disagree with any of these measures, as they are entirely sensible. They have the sole purpose of serving justice, and ensuring justice for victims.

I mentioned the amendments that we have tabled and why they have been tabled in that form. I am well aware that we have a limited time—

I will conclude my remarks, if hon. Members will allow me to do so without interruption.

I have tried to set out the benefits of the treaty and why allowing the Opposition’s amendments to stand would be disastrous for British victims of crime in practical terms. During the weeks and months of discussion, we have tried to address many of the concerns that have been raised, especially the one about forum, which has been raised again tonight. We have tried to do that in a way commensurate with maintaining this treaty, the non-ratification of which was the main objection raised by Opposition Members for weeks and weeks. It is beyond me how they can now take a position that would further delay that ratification.

We have tried to address the concerns in a way that did not further delay the ratification of the treaty. We have moved on issues of concern. I believe that we can say that we have worked hard to speed up ratification in the US. That has been achieved despite the scepticism when Baroness Scotland set off. I hardly think that this is the time to renege on the deal, having asked others to ratify it. The old saying advises being careful of what one asks for, because sometimes one gets it. In this case, the Opposition, here and in the other place, demanded loudly that we get something, and we got it. Now they are upset because we have shot their fox, if I may use that expression after our earlier debate on animal welfare.

It is now time to assert this Chamber’s independence and prerogative, and our democratic right over the other place. That is not an irrelevant consideration, whatever differences we have between us. If we are to assert our sovereignty in this place, now is the time to do so.

I am clear where the Government stand. We stand for justice and the victims of crime, not with the criminals. Now we will find out where the Opposition stand.

The Home Secretary began his speech with some unusual, but none the less disarming, honesty when he told us that the amendments that he had tabled in lieu, both in relation to designation of the US and to forum, were utterly meaningless. He does not mean a word of them. They are merely devices. I hope that the House will judge the Home Secretary and his arguments through that filter. We are not here to be abused in that way. We are not here to allow the Executive to ride roughshod over the rights of the House of Commons, still less to ignore the advice of the other place.

I found the Home Secretary’s speech breathtaking in its use of Aunt Sallies that have nothing to do with the guts of the treaty or the Bill. He produced a load of utterly irrelevant arguments that had nothing to do with anything other than Labour party propaganda. It was also a nasty and sinister speech—unsurprisingly—underneath which lay an invidious threat that had nothing to do with the duties of Members of Parliament. The Home Secretary said that unless Members did as he advised and kowtowed to the Executive, and unless they agreed to what the right hon. Member for Sheffield, Brightside (Mr. Blunkett) did secretly in March 2003, they would be allowing paedophiles to go free. I have heard some revolting arguments in my time, but that just about takes the biscuit—

It is not true, and if the hon. Gentleman thinks that it is, he should have the guts to stand up and defend his position.

No, and that is just as well.

Let us analyse what the Government seek to persuade us to agree. They say that the US should be designated as a jurisdiction that does not require a prima facie case to be made unless certain things happen within certain periods. We have just heard from the right hon. and very cynical Gentleman that those things will never happen. So the amendment on designation is cynical, meaningless and hollow.

Let us concentrate on the more important amendment which deals with forum. The issue of forum is part of the extradition arrangements that exist between the US and several other jurisdictions, not least Ireland, Denmark and some of the Baltic states. Those countries, I suggest, are somewhat less powerful than the UK, or should be, when it comes to exerting influence on the US. The treaty is not of great military significance. It does not decide whether the west will fall or the east succeed. It is a matter of administration to do with the arrangements by which each jurisdiction permits extradition. Why the Government thought it appropriate to continue to defend the treaty come hell or high water, with this cynical collection of amendments in lieu, when it has so many fundamental flaws, defies logic and explanation.

The Home Secretary sought to rehearse the letter that the Under-Secretary of State for the Home Department, the hon. Member for Enfield, North (Joan Ryan) wrote to my right hon. Friend the Member for Witney (Mr. Cameron) over the weekend, which she saw fit to publish in the newspapers today. Its purport was that unless we do what the Government ask—or demand—we will be letting paedophiles, murderers and other criminals off scot-free. However, the Government failed to remind the House that the treaty deals with what are called the specialty defences. So those accused of paedophilia in the US many years ago lose the defence of the statute of limitations in respect of those offences. If the Secretary of State thinks that he can persuade those of us who have actually thought about this matter for more than a few seconds that to accept the forum provision and give the judges a discretion to consider whether there is a connection between the crime, the criminal, the evidence and the case as a whole means that in return the US Government will withdraw the specialty reliefs, he demonstrates more about his own negotiating powers than anything else. I invite the House to accept that the Home Secretary, and the Under-Secretary in her letter, have made ridiculous and desperate assertions. They have no knowledge of the details of the cases on which they seek to rely and, in any event, if a prima facie or reasonable cause case can be made, under the old or new treaty, it is highly unlikely that the US would refuse to extradite.

If the treaty be lost and we go back to the status quo ante, will the hon. and learned Gentleman tell the House what the position would be regarding forum, particularly in relation to guidance in contradistinction to a legislated position? Tonight, the Home Secretary promised guidance. Is not that what we had under the status quo ante?

First, given the nature of the Home Secretary’s speech, I am not sure that his promises are worth waiting for and, secondly, the implied assertion that the introduction of the forum question would destroy the treaty is false. If it were true, the Secretary of State would not have introduced his forum amendment. The right hon. Gentleman cannot have his cake and eat it; either he accepts that the forum argument is worthy of consideration or he does not. He has told us that of course the collection of amendments is utterly bogus and—I suggest—intellectually dishonest. I am afraid that he will be taken at his word: by the nature of his amendments, he has assumed that forum should be included, and we agree. He has followed our suggestion and I am very happy with that. The only point on which we differ is implementation and its timing.

The Home Secretary has disarmingly honestly, but cynically, admitted that he has absolutely no intention of complying with his implementation timetable, so I do not see why we should allow him to get away with one thing and not the other; he must accept—

I do not think I ever had the hon. Gentleman.

We do not need to allow the Home Secretary to have the benefits without the burdens.

No, I shall not give way. The Home Secretary spoke for 25 minutes in a 45-minute debate and other Members want to speak—[Interruption.] There is no point in the Home Secretary mumbling away; he sauntered into our debate the other day and he has done so again today. The House takes the issue rather more seriously than he does. The House takes justice and fairness rather more seriously than he does and it will not be persuaded by the ridiculous and utterly desperate arguments put by him in today’s debate, and by the Under-Secretary of State for the Home Department, the hon. Member for Enfield, North in her letter to my right hon. Friend the Member for Witney, that if we do something we shall destroy the whole relationship between us and the United States. That is a feeble and ridiculous argument, and I urge the House to resist it and the Home Secretary’s rather tiresome blandishments.

Even in the brief time available for the rest of the debate, I want to welcome the fact that the Home Secretary came to the House this evening to give us the benefit of his views. However, I hoped that he would use the opportunity, first, to apologise for the fact that his predecessor had concluded such a hopelessly unequal Bill. Secondly, I hoped he would say that he recognised the deficiencies of the treaty but that there was scope for renegotiation, which he was prepare to undertake, and that he would then come back to the House with a greatly improved treaty. Thirdly, I hoped he would say that he recognised the deficiencies in the House’s protocols for dealing with ratification of treaties and that he would hold talks with the Leader of the House to ensure that we had a better way of looking at treaties in future so that such things would not occur again.

Sadly, we have heard none of those things from the Home Secretary, which is hardly surprising, because it was well trailed in advance that today was the day when he would lead an assault on the Tories for being soft on crime. If that is what he chooses to do, we have no means of stopping him in the context of this important consideration of Lords amendments—but if his way of exercising his choice is to present in lieu of the Lords amendments words that he admits are entirely bogus and have no effect, and to ask the House to conclude that that is a satisfactory response to those in another place who are trying desperately to improve the law of the land, he does a disservice to the House. Indeed, he holds the House and the other place in contempt, which is a most unfortunate state of affairs.

As the House knows, we have always argued against the treaty because we believe that it contains fundamental inequalities. We have voted against it from the outset because we believe that it needs to be renegotiated. We have not called for its early ratification because we do not believe in ratifying a treaty based on such unequal terms, and we are no more satisfied with it now than we were in the first place.

The Home Secretary has at least been prepared to consider forum, if not in his amendment at least in the assurances he gave the House, but assurances are not enough. We need a successful outcome to the negotiations, but they can be held only in an appropriate legislative framework, which is not provided by the words he urges the House to accept. Until he proposes an appropriate form of words, we can only resist his position.

I want to allow some time for others to speak, so this is my last point: it is preposterous to suggest that those who argue against the treaty for sound legal and constitutional reasons do so to give succour to those who break the law and avoid due process in the United States or in this country. That is not the case and it is inappropriate to suggest it. If the Home Secretary’s argument rests solely on the removal of the statute of limitations in the treaty, he needs much firmer grounds to argue his case in this place.

The debate has revealed a surprising degree of ad-hocery in our extradition arrangements with a great many countries, not just with the United States of America. Perhaps the point of principle on which Members need to dwell before the vote is whether the treaty should be wrecked on the basis of a wider flaw in many of our extradition treaties, especially in relation to forum and what should be done when a case could be tried in one of two jurisdictions, or worse, when somebody is judged not to have a case to answer in this country but is still subject to extradition requests—not only from the US but from many other countries.

One of the things that we have achieved in the debate is the promise of guidance and, at least in relation to the United States, a clear set of criteria and a process whereby the decisions will be judged. I have to say that many of us would have preferred some judicial oversight of the process, but I have it in writing from the Under-Secretary of State for the Home Department, my hon. Friend the Member for Enfield, North (Joan Ryan), and we have heard today from the Home Secretary, that to insert those clauses would mean that we made this country ridiculous in its conduct of international diplomacy and international agreements. We should not take that step this evening.

There are many gains to be had from the treaty. The arguments about reciprocity that we discussed in previous debates do not carry the weight that Opposition Members gave them.

I am sorry, I have far too little time to give way.

I hope that we shall learn from these proceedings that we need to give such treaties much greater scrutiny in the future. I hope that we shall hear some words from the Government, in the Chamber or outside, about how such issues might be approached in the future.

Order. I think that on this occasion brevity becomes the hon. and learned Gentleman.

It being one hour after the commencement of proceedings, Mr. Deputy Speaker put the Question already proposed from the Chair, pursuant to Order [24 October].

Question agreed to.

Lords amendment disagreed to.

Government amendments in lieu thereof agreed to.

Mr. Deputy Speaker then put the remaining Question required to be put at that hour, pursuant to Order [24 October].

Schedule 14


Lords amendments: Nos. 81 to 84.

Motion made, and Question put, That this House insists on its disagreement with the Lords in the said amendments and proposes Government amendments (a) and (b) in lieu thereof.—[John Reid.]

Lords amendments disagreed to.

Government amendments in lieu thereof agreed to.


With the leave of the House, I shall put together motions 9,10,11 and 12.

Motion made, and Question put forthwith, pursuant to Standing Order No. 118(6) (Standing Committees on Delegated Legislation),


That the draft Code of Practice on the Treasure Act 1996 (Second Revision) England and Wales 2006, which was laid before this House on 20th July, be approved.

northern ireland

That the draft Electricity Consents (Planning) (Northern Ireland) Order 2006, which was laid before this House on 9th October, be approved.

That the draft Victims and Survivors (Northern Ireland) Order 2006, which was laid before this House on 9th October, be approved.

dangerous drugs

That the draft Misuse of Drugs Act 1971 (Amendment) Order 2006, which was laid before this House on 12th October, be approved.—[Mr. Cawsey.]

Question agreed to.


Motion made, and Question put forthwith, pursuant to Standing Order No. 83A(6)(Programme motions,)

That the following provisions shall apply to the Road Safety Bill [Lords] for the purpose of supplementing the Order of 8th March 2006 (Road Safety Bill [Lords] (Programme)):

Consideration of Lords Message

1. Proceedings on consideration of the Lords Message shall (so far as not previously concluded) be brought to a conclusion one hour after their commencement at this day’s sitting.

Subsequent stages

2. Any further Message from the Lords may be considered forthwith without any Question being put.

3. The proceedings on any further Message from the Lords shall (so far as not previously concluded) be brought to a conclusion one hour after their commencement.—[Mr. Cawsey.]