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Extradition Treaty: UK and the State of Kuwait

Volume 793: debated on Tuesday 30 October 2018

Motion to Take Note

Moved by

That this House takes note of the Extradition Treaty between the United Kingdom and the State of Kuwait.

My Lords, I appreciate that this evening will potentially be a very long one. I do not anticipate taking up too much time. I am rather disappointed about the procedure being used relating to these Motions on treaties. I looked at the computer on Friday and noticed that there was a speakers’ list, which promptly disappeared. Speakers’ lists aid the business of the House. They encourage people to participate. I can understand why there are some circumstances where lists are not used, but I hope that in the future the usual channels will consider it appropriate to have them.

I start by saying that Labour absolutely supports the use of extradition treaties, including with such states as the US which practise the death penalty, although we strongly believe that extradition should not take place where the subject could face the death penalty. Of course, the Extradition Act 2003 set out the basis for the UK’s extradition policy. Part 1 implemented the European arrest warrant and Part 2 allows treaties with other states to be established. Under Part 2, the Secretary of State must decide whether to certify each individual request for extradition. Of course, the 2003 Act also stated that extradition is expressly prohibited where the subject could face the death penalty.

The UK’s extradition treaty with Kuwait specifies that extradition between the two states is permitted under certain circumstances, the first being that the offence attracts a maximum penalty of at least 12 months and the requesting state must establish a prima facie evidential case in respect of any person whom they wish to extradite. The agreement specifically refers to several grounds on which extradition must be refused. These include if,

“the request for extradition has been made for the purpose of prosecuting or punishing a person on account of that person’s race, religion, nationality, sex or status, or political opinions, or that that person’s position may be prejudiced or his or her liberty restricted for any of those reasons”,

and if the extradition would breach human rights. Another element, of course, is if,

“the person whose extradition is sought could be, or has been sentenced to death”.

One of the first issues I want to raise is the fact that the penal code in Kuwait contains general provisions against debauchery. That means that it can punish lesbian and gay people, and fine and imprison them for up to six years simply for being gay. I have mentioned that the agreement specifically refers to the grounds on which extradition must be refused, but we can have a situation where someone was charged with an offence not related to their sexuality but a return to Kuwait might lead to abuse and further charges because their sexuality might become known or is likely to be known. There are horrific circumstances with some of the abuse that could take place in prison. Could the Minister give the House an assurance that, in such circumstances, an application will fail?

Human Rights Watch has raised concerns about the Kuwaiti justice system and claimed that, due to process violations, it makes it very difficult for defendants to get a fair trial. In fact, this week Labour MEPs have raised one such case that has had scant attention in the media, of Marsha Lazareva, Kuwait’s top woman CEO, who was jailed earlier this year for corruption following a trial in which the prosecution did not give her defence team full disclosure of incriminating documents and other evidence. In fact, the conditions for non-nationals such as Marsha Lazareva, who is Russian, are described by Human Rights Watch as “truly shocking” by those with experience of the prison system in Kuwait. Accounts tell us of seven women to a cell, with clothes and food limited intentionally by prison officials who distribute to Kuwaitis first and foreigners second.

Human Rights Watch has also said that foreign women working in Kuwait are particularly vulnerable. They are particularly vulnerable to false accusations of theft, summary dismissal by employers, assault and even rape. Many women then face imprisonment and expulsion. Human Rights Watch has repeatedly raised concerns over the lack of a right to a free trial in Kuwait. Will the Minister tell us what, if any, actions the Government have taken to raise these concerns over due process with Kuwaiti officials, particularly in regard to negotiating this treaty?

On the death sentence, we on this side have criticised the Government for paving the way for two ISIS terrorists formerly of British citizenship to be extradited to the US and potentially executed. Sajid Javid, the Home Secretary, wrote to the US Attorney-General, Jeff Sessions, that he would not demand a death penalty assurance in this particular case. In a letter quoted by the Daily Telegraph, he wrote:

“I am of the view that there are strong reasons for not requiring a death penalty assurance in this specific case, so no such assurance will be sought”.

He continued:

“I have instructed my officials to set out the terms of our assistance and to work with your officials to action the request. As you are aware, it is the long held position of the UK to seek death penalty assurances, and our decision in this case does not reflect a change in our policy on assistance in US death penalty cases generally, nor the UK Government’s stance on the global abolition of the death penalty”.

The reason for his letter, the Home Secretary said, was that US courts were better placed to handle foreign fighter cases because of the risk of legal challenge in the United Kingdom. Sajid Javid appears to have secretly and unilaterally abandoned Britain’s opposition to the death penalty. His actions will not simply impact on the lives of those two particular terrorists—whose actions were absolutely disgusting and appalling—but will impact on the lives of other Britons, including potentially innocent ones across the world. Will the Minister explain how the principles in the 2003 Act will be maintained, because I am not sure, in the light of the Home Secretary’s actions, how any assurances given can be seen as credible? His actions have the potential to undermine all of our efforts over many years to persuade countries such as the US, Iran and others to drop the death penalty.

On 25 January last year, Kuwait carried out seven executions by hanging for those convicted of violent crime: two nationals, including a member of the royal family, an Ethiopian woman, a Filipina woman, two Egyptian men and a Bangladeshi woman. The January 2017 executions are believed to be the most recent to have taken place in Kuwait. Prior to 2017, the last known executions took place in 2013, which themselves ended the de facto death penalty moratorium that had been in place since 2007. The 2017 executions took place in private, in stark contrast to the previous executions, which were before an invited media. Given that the Kuwaitis did not publicise these executions, can we really be certain that no further executions have taken place since? I hope that the Minister will be able to assure us on that point.

In April 2017, we had the case of Fahad al-Rajaan, the former head of the Kuwaiti social security fund, arrested in London. This case has gained significant public attention in Kuwait, but there is little indication of how many other Kuwaiti nationals could potentially be extradited from the UK. Will the Minister tell us whether the Government have made an assessment as to how many Kuwaiti nationals in custody could be extradited on ratification of these treaties?

I have raised these issues not because we are opposed to the principle of this treaty but because we are genuinely concerned about our human rights policies and our commitment to seek the abolition of the death penalty. If the Home Secretary’s actions are considered, it looks like that commitment will be undermined, both in general and in the specific case of Kuwait. I beg to move.

My Lords, I thank the noble Lord, Lord Collins, for initiating this debate. It is important that treaties like this are scrutinised. This treaty was initialled by UK and Kuwaiti Ministers in November 2015, signed in December 2016, ratified by the Kuwaiti parliament in April 2017, but only laid before the UK Parliament in July 2018. I guess we had various other things that we were thinking about.

We know that there has been much engagement with Gulf states in recent years. In fact, the UK offered to host the first-ever meeting of the Gulf Cooperation Council outside the region. I understand that this is on hold because of the Saudi/UAE dispute with Qatar. The UK has put effort into increasing exports to the region. Exports to Kuwait rose 23% from 2017 to 2018, with goods and services valued at £1.7 billion. Perhaps we should pay tribute here to the Prime Minister’s trade envoy to Kuwait, the noble Baroness, Lady Morris. If the UK leaves the EU, the Government have made it clear that they wish to have a free trade agreement with the GCC states. That has been made particularly difficult in relation to Saudi Arabia, with its involvement in Yemen, the blockade of Qatar, and of course, the murder of Jamal Khashoggi.

Set against some of its neighbours in the Gulf and the wider Middle East, Kuwait has often been seen by the Government as an example of moderation and political reform. A House of Commons Library paper from 2016 notes that Kuwait has,

“one of the liveliest and most influential parliaments in the region, with the power to cross examine ministers and significant influence over legislation”.

It is obviously good to hear that.

Nevertheless, as the noble Lord, Lord Collins, has pointed out, concerns have been expressed, most notably by Amnesty International and Human Rights Watch, about human rights and freedom of expression in Kuwait. Thus, Amnesty reports that in March, the UK-based writer and blogger Rania al-Saad was sentenced in her absence to three years in prison on charges of “insulting Saudi Arabia” on Twitter. Former MP Musallam al-Barrak was released in April after serving a two-year prison sentence for criticising the Government but continues to face other charges.

Amnesty further reports that the authorities have prosecuted and imprisoned government critics and online activists under penal code provisions that criminalise comments deemed offensive to the Emir or damaging to relations with neighbouring states. Human Rights Watch noted in its 2017 report:

“Provisions in Kuwait’s constitution, the national security law, and other legislation continue to restrict free speech, and were again used in 2017 to prosecute dissidents and stifle political dissent”.

It was noted, however, that Human Rights Watch was allowed access to and dialogue with the Government of Kuwait.

As the noble Lord, Lord Collins, also mentioned, Kuwait has recently used the death penalty. As he explained, in January 2017 Kuwait executed seven people, though it had not, as he pointed out, carried out any such executions since 2013. This is obviously a very worrying development, as he emphasised. There are, in addition, concerns about the independence of the judiciary and prospects for a fair trial. Thus, for example, in the case of the “al-Fintas group”, 13 men were charged in connection with WhatsApp discussions about video footage that appeared to show government members advocating the Emir’s removal from power. This case obviously causes concern. Amnesty concluded:

“The trial was marred by irregularities”.

Concern has also been expressed about the 2016 electronic media law which, as Amnesty argues,

“criminalises … criticism of the government, religious figureheads or foreign leaders”.

The Government’s overseas business risk assessment for Kuwait describes it as a “semi-democratic” country, which is an interesting way of putting it. Political parties are prohibited, or as the Government document carefully puts it:

“Political parties have not been legalised”.

The Emir “reserves the right” to dissolve the 50-member National Assembly. Criticism of the Emir is illegal. These are serious issues which must be considered when assessing this extradition treaty.

We understand that the Kuwaitis have been keen for the treaty to be implemented, arguing that corrupt former officials have relocated to London. Kuwait’s Minister of Justice commented when the extradition treaty was signed:

“It supports efforts to bring convicts and fugitives to justice, which in turn will help ameliorate Kuwait’s ties with the UK”.

The Speaker of the Parliament stated:

“Kuwaitis will no longer see embezzlers of public funds roaming the streets of London and Britain”.

Indeed, as the noble Lord, Lord Collins, mentioned, in 2017 Britain arrested the former head of the social security fund, who was wanted on corruption charges. Although the extradition treaty had not yet been ratified, the extradition request was acceded to and the judge in this case ruled that the extradition could proceed. This case in fact showed that an extradition treaty was not required for individual extradition requests to be agreed by the Home Secretary.

In the light of this background, I have a number of questions for the Minister. What considerations in the UK-Kuwait relationship made this treaty a priority for the UK? In what context was this treaty discussed, both bilaterally with Kuwait and internally within the UK Government? Were linkages made to progress on political reform and human rights? Are the Government generally using extradition treaties as a way of encouraging political reform? How have the Government kept the wider political situation in Kuwait under review since first initialling this treaty in 2015, with the changes that have been noted? Did commercial considerations, particularly if the UK were to leave the EU, play a part?

In addition, given that our international partners in some cases do not appreciate that our judiciary is genuinely independent, what potential fallout could we see for the relationship with Kuwait if extradition requests are refused on human rights grounds? What are the Government’s options to revoke or suspend a treaty if they see violations of human rights in the judicial system or have systemic concerns around freedom of speech and fair trials? Will they keep the extradition treaty under review? There is no bilateral extradition treaty now with Saudi Arabia, Oman or Bahrain. Are any such treaties in the pipeline?

Setting aside Kuwait-specific concerns, there has been concern around extradition policy over the last few years. As the Lords Extradition Law Committee stated in 2015,

“the system of seeking, accepting and monitoring assurances during the extradition process cannot guarantee the UK is meeting its human rights obligations”.

What review have the Government made of their policy in the light of those comments? The UK does have extradition treaties with countries where there are significant limitations on human rights and dubious judicial systems—for example, Uganda, Libya and Russia. It is important, therefore, that this extradition treaty should be adequately scrutinised, and I thank the noble Lord, Lord Collins, again for ensuring that we are doing so. I look forward to the noble Baroness’s response.

My Lords, I am pleased to speak for the Government today on the important matter of extradition, a matter in which I know the House has taken a close interest over recent years. By way of introduction, I say to the noble Lord, Lord Collins, that I have observed his disquiet over procedure. In the small number of debates we have had on treaties—I think we had two before tonight—we have not had speakers’ lists, but I am prepared to take it up with the usual channels, because in terms of certainty, and so that people can make a judgment on whether they wish to participate in the debate, further information might be helpful. I undertake to relay that to my very good chum the Chief Whip and see what progress I can make.

I am grateful to the noble Lord, Lord Collins, for securing this debate to discuss a further step forward in enhancing the close relationship between the UK and an important and valued historical friend in the Middle East: Kuwait. Our co-operation with Kuwait in recent years has spanned the entire spectrum of the UK’s strategic priorities. It has focused on building links between our economies through developing trade and investment, working together to counter the threat from extremism, radicalisation and terrorism that we both face, and continuing to enhance our close and valuable military relationship. Together, we also strive to support peace and stability in a changing region. Kuwait is a major donor in areas of conflict, providing humanitarian aid in Syria and Yemen, as well as supporting projects for the reconstruction of Iraq.

The UK has strongly supported Kuwait’s mediation efforts in recent talks in the Gulf and its support for de-escalation and Gulf unity has demonstrated its commitment to regional stability. As a non-permanent member of the United Nations Security Council since January 2018, Kuwait has also worked effectively alongside the UK, during which time Kuwait has arranged a fact-finding mission on the Rohingya crisis, supported sanctions against the DPRK and condemned the use of, or threat to use, chemical weapons following the appalling incident of the Salisbury poisoning in our own country. As a close friend, we are also able to offer support and advice, where appropriate, as Kuwait continues to develop its democracy, governance and human rights frameworks. I will come to this point and points specifically raised by noble Lords in the course of my comments.

The next important frontier in our co-operation with Kuwait is that of criminal justice. The noble Baroness, Lady Northover, asked about the context of all this. I have tried to explain that we value our very close relationship with Kuwait and we want to reach a mutually supportive situation in which we can each play our role in dealing with challenging issues that arise in the field of and in relation to criminal justice. That is why co-operation on criminal justice with Kuwait is very important.

In July, the Policing Minister laid before Parliament a package of judicial co-operation measures, comprising treaties on mutual legal assistance and extradition. Kuwait has acted with admirable swiftness to be ready to ratify both treaties. I am very pleased that they have now been laid before the House for the requisite number of sitting days to now allow the Government to move towards ratification. As your Lordships may be aware, the mutual legal assistance treaty needs no further legislation to be able to enter into force and will be ratified in the coming months.

In accordance with the provisions of the Extradition Act, Kuwait must be designated a Part 2 country before ratification of the latter treaty can take place. As the noble Baroness, Lady Northover, observed, there have been pressures on the parliamentary timetable with Brexit, but the Government intend to lay a statutory instrument to effect ratification as soon as the parliamentary timetable allows. Orders made under the Extradition Act are made under the affirmative procedure, so it will not be long before your Lordships have the opportunity to debate this treaty a second time. Work is proceeding on the drafting. As I say, the next task is to find a slot in the parliamentary timetable.

By way of general comment on extradition, the UK’s extradition framework is an essential tool for ensuring that those who seek to flee from their crimes are not able to evade justice. In a world where crime and terrorism are no longer contained within national borders, the importance of ensuring effective co-operation on criminal justice has never been greater. We all share a deep respect for the fundamental principle that no one should be above the law. The extradition treaty we are discussing tonight is a further building block in an international structure that will facilitate our collective global ability to bear down on terrorism and serious organised crime. The Government are pleased to have the co-operation of Kuwait on this important issue.

The noble Lord, Lord Collins, and the noble Baroness, Lady Northover, have tonight raised a number of issues relating to Kuwait’s human rights record and the continued use of the death penalty. Let me reaffirm: this Government are committed to upholding human rights and oppose the death penalty in all circumstances as a matter of principle. The safeguards available in the Extradition Act are strong and reliable in that respect. Extradition from the UK is not possible if it would be incompatible with a person’s human rights. The Home Secretary must not, in law, order an individual’s extradition if they have been, will be or could be sentenced to death. I hope that clarifies matters that naturally concerned the noble Lord, Lord Collins, and the noble Baroness.

On the broader issues raised, the Government of Kuwait respect our position on this matter and we have accordingly included provisions in the treaty before both Houses that make it entirely clear.

On human rights, the noble Lord, Lord Collins, referred to the position of LGBT persons in Kuwait. I was looking at the grounds for refusal in the treaty.

I am sorry to interrupt the Minister. I did read out the grounds and it did not seem clear that sexual orientation was covered, although there is a sentence referring to “sex and other”. Could she clarify that?

I would take great pleasure in doing that. I am just talking about the first paragraph, Article 3(1)(a), which I think the noble Lord read out. My understanding is that the specific reference to sex, or indeed to status, is intended to ensure that persons are not wrongly persecuted for their sexual orientation and that extradition under this treaty shall be refused in any such cases. I hope that that clarifies the understanding of the position.

Can I seek a further reassurance? As regards the reference to “other” status, as in the UN Declaration of Human Rights, in my dealings with some African, Caribbean and Pacific countries I have noted that some significantly fail to recognise that “other” status includes sexual orientation.

I have described the grounds on which extradition under this treaty would be refused. As your Lordships will be aware, the exercise of extradition is a matter for both the Home Secretary and the courts. The courts must consider the actual application. That is our interpretation of what the phrasing means.

My question did not relate specifically to crimes because of somebody’s sexuality. There can be circumstances where, if someone is being sent back to a country where homosexuality is illegal—and certainly homosexual acts are—and it becomes known that that person is gay, they might be accused or charged with one crime but could then be subject to treatment because of their sexuality. It is that issue that I sought clarity on.

I will write to the noble Lord in further detail. This will come before the House again in the form of the affirmative statutory instrument, but I am very happy to seek further clarification on the points being raised to see whether I can go further than what I have before me this evening.

The noble Lord, Lord Collins, and the noble Baroness, Lady Northover, also raised the matter of the decision in the cases of Alexanda Kotey and El Shafee Elsheikh. That was not an extradition of individuals. It was a decision by the Home Secretary to provide assistance, including mutual legal assistance. The decisions are taken in accordance with the Government’s overseas security and justice assistance guidance, which requires an assessment of human rights risk, including the death penalty. Overseas security and justice assistance guidance has always permitted the Government not to require assurances in mutual legal assurance requests where there are strong reasons not to do so. I reiterate that the UK remains opposed to the death penalty in all circumstances as a matter of principle.

I think that the noble Baroness, Lady Northover, raised the particular matter of Al Rajaan. I cannot comment on individual cases, I am afraid; that is not the policy of the Government. On the serious issue of the 2017 executions, I repeat the Government’s position on the death penalty: we believe that the death penalty undermines human dignity, there is no conclusive evidence of its deterrent value, and any miscarriage of justice leading to its imposition is clearly irreparable. We raised our concerns with the Government of Kuwait at the time and expressed our disquiet that this should have taken place. Again, regarding potential extraditions, we do not comment on individual cases.

The noble Baroness, Lady Northover, raised the matter of other Gulf states. As noble Lords have pointed out, extradition is clearly possible on a case-by-case basis with all countries, regardless of treaties. The Government discuss mutual legal assistance and extradition with partners in the course of bilateral relations. The extradition treaty was negotiated in its own right without linkage to other policy areas. There is a word here that I cannot make out because the writing in the Box is, I am afraid, not of the clarity that I was taught to observe in primary 1 in my Scottish school. I beg the Box’s pardon. It was laid in Parliament as part of a judicial co-operation package alongside a mutual legal assistance treaty. I hope that that reassures the noble Baroness.

In conclusion, we are committed to the global campaign to abolish the death penalty and continue to maintain this position in discussions with the Government of Kuwait. This forms part of the advice and support, which I mentioned earlier, that we provide as Kuwait continues to develop its democracy, governance and human rights frameworks. We share with Kuwait a commitment to pursuing justice internationally.

Perhaps when the Minister writes to the noble Lord, Lord Collins, she might also address some of my other questions with a bit more precision—perhaps she will be able to read the writing of the people in the Box. I would be grateful if she did that.

Yes, of course. I will be very happy to do that. As your Lordships are aware, I do look at the Official Report and try to address any points I may have overlooked in the debate. I certainly undertake to do that.

In the spirit of writing, perhaps the Minister might wish to reflect on this. Given that she has suggested that this is going to come before the House again, I have been reflecting on it during the debate but I have not fully worked out my thinking. Is there any question in relation to the European arrest warrant? Some odd cases have come through the system where the system has been somewhat abused, if I may say, by certain states. Is there any possibility that European arrest warrant issues will come into play and be relevant to this? People are shaking their heads but perhaps the Minister might wish to respond.

It is a rare pleasure to receive comfort from the Liberal Democrat Benches. I understand from the noble Lord, Lord Paddick, that this does not appear to be germane to the issue under discussion—but I hear what the noble Viscount says.

It was a question of whether any other state within the European Union could come into play and make an issue in relation to the European arrest warrant that might affect the process.

I can see a whole debate being possible on this issue alone. I hear what the noble Viscount is saying and we will certainly bear that in mind when we come to a later state of the procedure.

I am sure your Lordships will have realised that the whole purpose of this is to ensure that criminals are brought to trial. But it also means, as noble Lords have rightly pointed out, ensuring that our judicial system maintains its full respect for human rights and protection of those procedural safeguards necessary to ensure the fairness of our system. Our extradition framework, including this treaty, achieves a balance of these fundamental principles, and we look forward to the success of our future co-operation with Kuwait on this crucial subject.

In conclusion, I thank the noble Lord, Lord Collins, for introducing this very illuminating debate, which was a helpful prelude to the debate that will take place when the affirmative instrument comes to the Chamber. It has been a useful opportunity to listen to the exchange of views and I thank noble Lords for their contributions.

I thank the Minister for her response. I have attended one other debate on the treaty. The noble Baroness who moved that Motion exercised her right of reply and, as there is no speakers list, I will do the same.

I just want to reassure the Minister that I do not see this treaty as something bad or regrettable. It is an opportunity. As the Minister says, individual cases can be considered anyway by the courts, but in negotiating and agreeing this treaty, the opportunity was there, as she rightly said, to raise issues about due process and human rights and our concerns over the use of the death penalty. I am somewhat reassured by her comments in this regard.

The Minister said that the purpose of the treaty is that no one should be able to avoid justice—absolutely right. We certainly need to ensure that globally people cannot act with impunity. She knows that I have raised this point on many occasions. No one should avoid justice, and justice must be served and be seen to be served. That is why it is really important for the principles we have raised in the debate to be heard. I am grateful to the noble Baroness, Lady Northover, for her contribution. It is absolutely right that we see these things in context and see them as an opportunity to bring change. The fact that there are still countries in this world where being gay is subject to execution is absolutely disgusting and we need to challenge that.

Motion agreed.