New Clause 8 — Designation of Part 2 Territories: Omission of United States of America

Orders of the Day – in the House of Commons at 4:45 pm on 10 May 2006.

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'(1) The Extradition Act 2003 (Designation of Part 2 Territories) Order 2003 (S.I. 2003/3334 is amended as follows.

(2) In the list of territories in paragraph 3(2) "The United States of America" is omitted.'. — [Mr. Grieve.]

Brought up, and read the First time.

Photo of Dominic Grieve Dominic Grieve Shadow Attorney General

I beg to move, That the clause be read a Second time.

Photo of Michael Lord Michael Lord Deputy Speaker (Second Deputy Chairman of Ways and Means)

With this it will be convenient to discuss the following amendments: No. 114, in page 125, line 3 [Schedule 14], at end insert—

' "(j) forum".'.

No. 115, in page 125, line 5 [Schedule 14], leave out '19A' and insert '19B'.

No. 116, in page 125, line 23 [Schedule 14], at end insert—

'"19B Forum

(1) If the conduct disclosed by the request was committed partly in the United Kingdom, the judge shall not order the extradition of the person unless it appears, in the light of all the circumstances, that it would be in the interests of justice that the person should be tried in the category 1 territory.

(2) In deciding whether extradition is in the interests of justice the judge shall take into account whether the competent UK authorities have decided to refrain from prosecuting the person whose surrender is sought for the conduct constituting the offence for which extradition is requested.".'.

Government amendment No. 66.

No. 117, in page 133, line 8 [Schedule 14], at end insert—

'Bars to extradition

15A (1) Section 79 (bars to extradition) is amended as follows.

(2) After subsection (1)(d) there is inserted—

"(e) forum".

(3) In subsection (2) "83" is omitted and "83A" inserted.

(4) After section 83 there is inserted—

"83A Forum

(1) If the conduct constituting the offence was committed partly in the United Kingdom, the judge shall not order the extradition of the person unless it appears, in the light of all the circumstances, that it would be in the interests of justice that the person should be tried in the category 2 territory.

(2) In deciding whether extradition is in the interests of justice the judge shall take into account whether the competent UK authorities have decided to refrain from prosecuting the person whose surrender is sought for the conduct constituting the offence for which extradition is requested.".'.

No. 118, in page 133, line 8 [Schedule 14], at end insert—

'Case where person has not been convicted

15B In section 84 (case where person has not been convicted) after subsection (7)(b) there is inserted—

"(c) The Secretary of State may not designate under this subsection if to do so would be inconsistent with any obligation set out in an extradition treaty or other extradition arrangements in force between the United Kingdom and a category 2 territory.".'.

Government amendments Nos. 67 to 71, 78 and 79

Photo of Dominic Grieve Dominic Grieve Shadow Attorney General

It is clear from early-day motions, which numerous Members of Parliament of all parties signed—the last one I saw contained 154 signatures—that the amendments cover a matter of serious concern. The new clause deals with the Extradition Act 2003, especially its operation in relation to the United States of America, but also more generally, and whether it is a fair and reasonable way to proceed.

If new clause 8 were accepted, it would omit the United States of America from the list of designated territories in category 2 of the 2003 Act. The United States could not therefore continue to enjoy its current privileged status in securing extradition without producing evidence. That is linked to amendment No. 118, which would prevent any redesignation until the ratification of the United Kingdom-United States extradition treaty, which was concluded in 2003, on both sides of the Atlantic. Ratification has taken place here but, as yet, there has been no reciprocity from the United States.

Amendments Nos. 116 and 117 try to cover a separate but related issue. If they were accepted, they would introduce into European extradition proceedings, under the European extradition warrant, and into extradition to a category 2 territory, the possibility of the court's examining whether the conduct disclosed by a request or constituting the offence was committed partly in the United Kingdom. No order for extradition would be made unless it appeared, in the light of all the circumstances, that it was in the interests of justice for the person to be tried in the territory that sought extradition. Moreover, under subsection (2), in deciding whether the interests of justice required extradition, the judge would be entitled to look at whether the competent United Kingdom authorities had decided to refrain from prosecuting the person whose surrender was sought, and for whom the extradition was requested.

I shall try to be brief, but it is important to understand the background to these matters. Before 1 January 2004 and the implementation of the Extradition Act 2003, extradition to many countries outside Europe—the United States in particular—was governed by a treaty entered into in 1972. There was reciprocity under that treaty. If we wished to extradite someone from the United States, it was necessary to show probable cause of an offence having been committed. If the United States wished to extradite someone from the United Kingdom, a prima facie case had to be established. Some play has been made of the fact that it might be easier to show probable cause than to establish a prima facie case. However, both requirements responded to national legal principles and, in reality, very little turns on the distinction.

There were problems with the 1972 treaty. It was suggested that it took a long time to get extradition from this country, although I believe that that says more about the problems with our court procedure than anything else. In addition, there were further blocks on extradition that presented a real problem. They included the fact that certain offences were not covered at all. For example, a person could not be extradited from the United States for child pornography, which we have just discussed. Indeed, that still applies. The statute of limitations was also frequently invoked in the United States, placing a bar on some offences for which we sought extradition. Speciality claims were made, and some offences became incapable of extradition. There were also problems when someone was in prison in the United States for a minor offence but was wanted in this country for a major one.

I welcome the fact that a new treaty was negotiated between this country and the United States of America. It went a long way towards solving those problems. However, although we have signed and ratified the treaty, and allowed the United States to operate a procedure for extradition that is akin to that of our European neighbours and requires no evidence whatever to be produced, no reciprocity has been provided by the United States at all.

The treaty was signed on 31 March 2003. On 16 December, Baroness Scotland gave assurances in another place that ratification was due to take place in the United States in early 2004. On 16 June 2005, she expressed

"genuine disappointment that the United States' authorities have not found the time or energy to ratify the provision."—[ Hansard, House of Lords, 16 June 2005; Vol. 672, c. 1198.]

Twelve months later, we are still waiting. There is considerable evidence in the United States that there are many bodies—including civil rights groups and the senators linked to them—that intend to prevent ratification from taking place if possible.

It is not surprising that this state of affairs has come about. Why should the United States Government be bothered? As Baroness Scotland candidly explained, in a debate in the other place last year,

"the Extradition Act 2003 effectively implemented the provisions of the new UK/US extradition treaty."—[ Hansard, House of Lords, 30 June 2005; Vol. 673, c. 408.]

She failed to add that this had happened on an entirely one-sided basis. The statutory instrument that was passed designated the United States under category 2. Extradition has become easy, and virtually all scrutiny has been removed. Bizarrely, this is completely contrary to article 9 of the treaty, which is still legally in force.

When the Government proceeded to include the United States as a category 2 designation under the Extradition Act, they told us that this was essential for the prevention of terrorism and for bringing suspected terrorists to justice. That is plainly an important consideration, of which the House must be mindful. That being said, in the case of Mr. Lotfi Raissi, the Algerian national and airline pilot whose extradition from this country was sought after 9/11 on the grounds that he had failed to disclose information to the US authorities that might have prevented that attack, the United States Government had to operate under the old system of showing a prima facie case. As was graphically described to the Home Affairs Committee by the district judge who handled that matter, it became apparent in the course of proceedings that there was no case against him whatever, and there was a complete mistake as to his identity, who he was and what his involvement had been. Under the Extradition Act provisions as they currently stand, Mr. Raissi would have been extradited to the United States without more ado.

Perhaps more relevantly, when anxiety was being expressed about the operation of the Extradition Act, the Government gave assurances that it would not extend to financial crime. Those were the very words of Caroline Flint, then a Home Office Minister. She was responding to a Financial Times article expressing specific concern that offences such as price fixing, which were not offences in the United Kingdom but might have been offences in the United States in the past in parallel, could become extraditable. She said:

"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.]

It has become apparent that what she told the House on that occasion was completely erroneous.

United States district attorneys, discovering—to their considerable pleasure, I am sure—that extradition has become a mere mechanistic procedure in this country, have found ways of side-stepping problems with the lack of dual criminality. My constituent, Mr. Ian Norris, managing director of Morgan Crucible, is currently facing extradition for price fixing at a time when it was completely legal in the United Kingdom and all the decisions were taken here. The allegations have been changed to conspiracy to defraud, on the basis that that was the outcome as it affected the United States, thus getting round the dual criminality provisions. The Minister will be able to provide us with more information, but I understand that such examples are becoming numerous.

In addition, the United States has also asserted jurisdiction in cases in which every bit of common sense dictates that the connection with the United States is extremely tenuous. The mere passage of an e-mail through a United States server is sufficient for the purposes of jurisdiction. In theoretical terms, that must give the USA almost universal worldwide jurisdiction over every crime. In the Enron case, extradition is being applied for in relation to defendants whose alleged crime is to have defrauded—a serious offence—a British bank of many millions of pounds in this country, when the bank has never alleged fraud and no proceedings have ever been brought here.

Photo of Mark Pritchard Mark Pritchard Conservative, The Wrekin 5:00, 10 May 2006

My hon. Friend mentions the Enron case, which involves serious amounts of money. Is he aware, however, that the powers extend to citizens who may have committed offences, however serious, involving no more than £1,000.01?

Photo of Dominic Grieve Dominic Grieve Shadow Attorney General

Yes, I am aware of that. The lowest threshold for such extradition to operate is £1,000. My hon. Friend is right to highlight the fact that it can apply to individuals whose criminality may not appear high at all.

No system is perfect, and I fully acknowledge that there are strong reasons why countries should co-operate to combat crime: there is nothing wrong with that. In allowing for extradition and securing the reciprocity that is so desirable, we must sometimes accept minor concerns about the operation of other countries' criminal justice systems, as long as we know that justice is the aim that they strive to achieve. However, we could have done very much better in the Extradition Act to prevent abuses such as those involved in the cases that I have described.

Even if the United States does ratify the new treaty, there is a compelling case for our extending greater protection to defendants in extradition proceedings involving offences that are wholly unrelated to the United States. As I said at the outset, that is what amendments Nos. 116 and 117 seek to achieve.

The Government have suggested that all this is a figment of the Opposition's imagination—or of that of their own Back Benchers who signed the early-day motion. They have suggested that we are all getting worked up about nothing, and that the system is perfectly sensible. It is worth pointing out that many other countries provide exactly the protection that the British Government chose to avoid in the Extradition Act. Article III of the Irish-USA treaty provides for refusal of extradition when the alleged offence is regarded under the law of the requested state as having been committed in its territory. Article V of the treaty provides for no extradition when the requested state has decided to refrain from prosecuting, or has discontinued proceedings.

Before it is thought that this is a piece of Euro-bashing by the Opposition and that somehow the European arrest warrant is being held up to opprobrium, I should point out that article 4(7) of the European Union framework decision, on the basis of which the European Union arrest warrant was put together, allows for precisely this kind of exemption, which the Irish have used and the Government have chosen not to incorporate. Article 7(1) of the original 1957 European convention on extradition, brought about by the Council of Europe—a model of its kind—says exactly the same. So it is not a question of a degree of Euro-scepticism; it is a question of a degree of scepticism about why the Government seem so resolute about setting administrative convenience against the interests of justice.

When the Scottish Parliament debated the issue recently, disquiet was expressed by every party about the way in which the system operates. There is no need for that disquiet to continue. The Government could see sense and do two things. First, they could enable us to have a better system that provides protection when there is no proper link between the individual and the state that seeks to extradite that individual for an offence. Secondly, in the case of the United States, the House should exercise a bit of will and common sense and say to a Government who seem to be incapable of carrying out sensible diplomatic negotiations, "You will not get what you want unless you withhold what you are offering at the same time."

The Government's decision—not to ratify the treaty, because it cannot be fully ratified until the United States has ratified it, but gratuitously to provide the United States with all that it sought in the treaty—is an error of judgment of monumental proportions. If the Government wish to see the advantages of the treaty, they would do well to accept new clause 8 and ensure that the United States is politely reminded that reciprocity is the absolute basis of international relations.

Photo of David Heath David Heath Shadow Leader of the House of Commons, Shadow Spokesperson (Cabinet Office) 5:15, 10 May 2006

I rise to speak in support of new clause 8, which stands in the name of Mr. Grieve and his colleagues, and in mine. I do not wish to repeat large parts of what the hon. Gentleman has said. He and I have not disagreed at any stage in our interpretation and construction of what this extradition treaty means for British citizens. I simply chide him gently on one point, of which he will be aware: on consideration of the statutory instrument that dealt with the provision, the Conservatives, unlike my colleagues and I, were unable to vote against it. That was a mistaken view on their part.

Photo of Dominic Grieve Dominic Grieve Shadow Attorney General

The hon. Gentleman is absolutely right, in that the House and the Conservative party accepted assurances from the Government that in the existing climate of terrorism, the operation of the extradition treaty was necessary. We did not fully appreciate the consequences that would flow from it.

Photo of David Heath David Heath Shadow Leader of the House of Commons, Shadow Spokesperson (Cabinet Office)

I accept what the hon. Gentleman says, and that he and his colleagues acted in good faith; I simply say that they were mistaken.

I want to deal first with the lack of ratification on the part of the United States Congress. I find it quite astonishing that this treaty, which we have signed with those who are supposed to be our closest allies, is apparently of so little import in the US legislature. It is far from being a priority for Congress, which has found opportunities to ratify extradition treaties with Lithuania, the Marshall Islands, Micronesia and Peru, but, apparently, cannot find an opportunity to give proper consideration to reciprocal arrangements with the United Kingdom. That says a lot for the supposedly special relationship that we enjoy with our friends in the United States.

That would be cause for concern in itself, were it not for the extraordinarily asymmetric position of the treaty that the Government entered into. As I said in the Committee on the statutory instrument, even a Government acting under duress could not have signed a treaty that so badly sold short the interests of the citizens of this country, in comparison with those of another. [Interruption.] The Minister of State, Department of Health, Andy Burnham, says from a sedentary position that my observation is nonsense, but he or his hon. Friends will have to demonstrate why. This is clearly an entirely one-sided treaty. In fact, the then Minister —[Interruption.] If the hon. Gentleman wishes to intervene, he can explain to me, from the Dispatch Box, why my argument is nonsense. He has only just been reshuffled, yet he wants to interfere.

In saying "Nonsense" from a sedentary position, the hon. Gentleman is asking the House to consider that the Minister then involved, Caroline Flint, who is now a Health Minister, was mistaken in saying that the treaty was asymmetric. She said:

"In contrast, when we make extradition requests to the United States, we will need to submit sufficient evidence to establish 'probable cause'. That is a lower test than prima facie but a higher threshold than we ask of the United States, and I make no secret of that. Under the terms of its constitution the USA cannot set its evidential standard any lower than 'probable cause'."—[ Official Report, Third Standing Committee on Delegated Legislation, 15 December 2003; c. 7.]

So on that day, the hon. Lady made no secret of the fact that there was an imbalance in the treaty, yet the hon. Gentleman says that that view is nonsense. The House will come to its own conclusions. [Interruption.] The hon. Lady has arrived—she no doubt remembers the occasion when we last discussed this issue and what was said then.

All manner of changes were implicit in the proposal that was before us. First, the treaty changed the basis on which extradition could take place. A certain level of evidence used to be required, and there was a list of extraditable offences. However, the treaty removed that list and we now have simply a sentence threshold of 12 months. Any offence that attracts a sentence of more than 12 months becomes an extraditable offence. The House will immediately draw from that the conclusion that it is now open to any of the legislatures in the US to make any offence that it deems to require a sentence of more than 12 months an extraditable offence. That is my second point.

When we talk about the US, we are not talking about a relationship between our jurisdiction and their jurisdiction. We have two separate jurisdictions, but they have 51, including not only the federal jurisdiction, but the jurisdiction of 50 states, from Alabama to Wyoming, with vastly different concepts of jurisprudence and legal systems. To be frank, we also have vastly different levels of confidence in the ability of those various legislatures to conduct a trial in the way in which we would expect. Not only do we have an asymmetric view, but we have a treaty that applies to 51 different jurisdictions and we have no control over what they might determine to be an extraditable offence.

The defence that the Minister gave at the time was that we also have reciprocal extradition arrangements with other countries, and she mentioned other European countries and what could be termed the "Anglo-Saxon" jurisdictions of Canada, New Zealand and Australia. But those systems are very much more similar to ours than are the American systems, so those comparisons are of no particular value. The US is a one-off in such terms.

The next point is that the provisions were retrospective. Article 22.1 states:

"This Treaty shall apply to offenses committed before as well as after the date it enters into force."

Not only have we a prospective asymmetric arrangement with the US, but we will allow them to extradite British citizens for offences that took place before the treaty was even signed, let alone ratified—which looks unlikely to happen in the near future.

On all those grounds, we have legitimate reasons for concern. However, Mr. Grieve made another important point about the extraterritorial jurisdiction claimed by the US and by its states. My right hon. and learned Friend Sir Menzies Campbell, who attended the Committee, recalled the old joke that if one flies in a plane above the state of New York on one's way to California, the state of New York assumes a territorial jurisdiction on anything one may do. That is not far from the truth, and as the hon. Gentleman pointed out, it is a real concern when it comes to email traffic.

We also have legitimate concerns when we see prospective extraditions for commercial crime against people operating in British companies that have connections with American companies, but whose activities are solely based in this country and who have never been to the great state of Delaware or Idaho, or wherever the American parent company may be based. Those people may be extraditable for matters that are not even offences in this country and were carried out in this country, not the US. They can be extradited and held in custody before trial in the US in a state in which they have never previously set foot. That is an extraordinary position to adopt.

Another problem is that the level of evidence required does not go much beyond simple identification. The subject arouses much concern in this country, but the American investigatory bodies are not entirely foolproof in that regard. The House may recall a case that was current when we considered the Bill in Committee. It involved a Mr. Bond, arrested in South Africa at the request of FBI officials on the basis that he was really a Mr. Derek Sykes, who had defrauded many people out of millions of dollars. However, he really was Mr. Bond, a retired charity worker who worked in the Rotary club in Clifton in Bristol. He was nothing to do with the US, but he was imprisoned in South Africa on the basis of an identification by the FBI. Had he been in this country, he could have been extradited to stand trial for an offence and in a country of which he knew nothing, and on the basis that he was someone that he was not.

That is not proper protection for people in this country. If we were sensible, we would say to the US Government, "Look, given that you haven't ratified the treaty, we must look again at its terms. This time, we shall protect the interests of British citizens and apply the sort of tests that American Congressmen apply as a matter of course, even if they are not part of the provisions of the constitution." The minimum American requirement of probable cause is not so very different from our requirement of prima facie evidence, but we have thrown away all that protection for British citizens because it seemed a good idea at the time. The aim was to please an American Administration who have not yet been prepared to put the treaty through the American legislature.

The Government are in a shameful position, and we were right to reject the proposal when it first came before us. We are right to support the new clause, which would bring an end to an asymmetric arrangement of no benefit to the UK.

Photo of Michael Howard Michael Howard Conservative, Folkestone and Hythe

I begin by welcoming the Minister to his new responsibilities. Far be it from me to give him advice, but I assure him that the Home Office need not be a dysfunctional Department. I wish him well as he discharges his new responsibilities.

My hon. Friend Mr. Grieve, the shadow Attorney-General, has expressed the widely shared reservations on this issue with his usual admirable clarity. That will enable me to be relatively brief in adding my voice to those who have expressed concern about the matter.

On 31 March 2003, the day that the treaty was signed, the then Home Secretary, Mr. Blunkett, made a written statement to the House. He said:

"Before the treaty can come into force it needs to be ratified by the United States Senate"—[ Hansard, 31 March 2003; Vol. 402, c. 42WS.]

The Lord Chancellor gave a similar assurance in another place. However, the provisions of the Extradition Act 2003 and the associated secondary legislation mean that those assurances have turned out to be completely worthless. This afternoon, the House has the opportunity to hold the Government to their word. If we are to take seriously our central responsibility of safeguarding the liberties of the individual against unfair, arbitrary or oppressive action by the Executive, we will seize that opportunity.

It is difficult to imagine a more one-sided or unfair set of arrangements than those in existence at present. The treaty is itself one-sided: its effect, and that of the Act, is to lower substantially the requirements that the United States Government have to satisfy to secure the extradition of those who are accused of offences under United States law. What was previously reciprocal and similar has become unbalanced and one-sided.

Today, we have the opportunity to put things right. As we have heard, the United States Senate has still to ratify the treaty. In plain language, the United States has not honoured its side of the deal: the ratification legislation is stuck in the Senate and shows no sign whatever of getting unstuck. That is hardly surprising, because as my hon. Friend pointed out, the United Kingdom has removed any incentive for the Senate to proceed. If, to gain the advantage that the treaty would, and the Act does, confer on the Government of the United States, the treaty had to be ratified by the US, it is a fair bet that more progress would have been made. By designating the United States, for the purpose of the Act, without the minimal degree of reciprocity that ratification would provide, the Government of the United Kingdom have surrendered the only lever of influence they possessed to secure what we assume is their objective.

Fortunately, the House has the opportunity today to do what the Government themselves should have done. New clause 8 would remove the United States of America from the list of territories in paragraph 3(2) of the designation order and that would give the US Senate the incentive it needs. If and when the treaty is ratified the matter could be looked at again and the US could be restored to the list, as a subsequent amendment provides.

I hope that the delay that the passage of new clause 8 would achieve would enable a fresh look to be taken at the arrangements in the treaty so that they can be revised. As has been said more than once, the arrangements are one-sided, and my hon. Friend has explained why. Some of the cases that have arisen since the Act came into force in that one-sided way have given rise to widespread concern.

In Committee, the Minister's predecessor asked why the United States was being singled out for expressions of concern. I refer not to Caroline Flint—now a Minister of State at the Department of Health—who was in the Chamber briefly a few moments ago, but to another former Home Office Minister, Hazel Blears, who is now Minister without Portfolio. The answer to the right hon. Lady's question is simple and twofold. First, as far as I am aware, no cases in respect of other jurisdictions have led to the same concerns. The proof of any legislative pudding is in the eating; it is in respect of the arrangements with the United States that cases of concern have arisen. That is no accident, and it brings me to the second point, to which my hon. Friend and the Liberal Democrat spokesman referred.

The United States has a particular view on extraterritoriality. It claims for itself jurisdiction over acts that have not been committed in the United States and for which other countries, including ours, would make no similar claim. That should mean that any arrangements for extradition with the US need to be scrutinised with great care if the liberties of Her Majesty's subjects are not to be jeopardised.

To make those points is not in any sense to be anti-American, and it was unworthy of the Minister's predecessor to make silly allegations of that kind in Committee. Some Opposition Members—I certainly include myself in this—have devoted a lifetime of energy to the improvement of relations between this country and the United States. That objective is not well served by the current unbalanced extradition arrangements between our two countries. Indeed, if they are allowed to continue they are likely to do significant damage to that relationship. I hope the House will make good use of the opportunity before us today to minimise that damage by restoring a degree of equity to the arrangements for extradition between our two countries.

Photo of John Maples John Maples Conservative, Stratford-on-Avon 5:30, 10 May 2006

I rise to support everything that has been said by the three Members who have spoken. My hon. Friend Mr. Grieve made the speech that I should have liked to make in the debate. He covered the issues lucidly and made his points persuasively, and I should simply like to add some brief remarks.

First, I want to put things in context. Until 11 September 2001, we were pretty relaxed about extradition. Cases were dragging through our courts, where the French had requested the extradition of someone whom they thought was involved in the Paris metro bombings. The Americans had also requested the extradition of three people whom they thought were involved in the east African embassy bombings. Those cases were strung out through our courts. No one in the Government seemed at all worried about the fact that Rachid Ramda had been in prison for six and half years by then. I think that he has now finally been sent to France. I do not think that the three people whom the United States wanted have been sent there. No one in the Government—or, I agree, in the Opposition for that matter—was particularly worried about that at the time.

Since 9/11, we seem to have gone into a panic. We have all signed up to the European arrest warrant, which has thrown out of the window all sorts of protections that we have had for ages, and we have apparently done the same with the United States. I simply do not understand why. I can understand that we needed far faster extradition proceedings, particularly in terrorism cases, because we were all very worried about them, but in the process we have thrown out all sorts of common law protections that have existed for absolutely ages, including dual criminality and the prima facie rule.

There were two occasions on which the Home Secretary had to agree to the proceedings going ahead, each of which was subject to two appeals. I forget how many stages that process involved—seven or eight in the end—but they are the reason such cases often took so long. But why did we have to throw out all the existing protections? There was a perfectly good reason for dual criminality, and we have retained it in the treaty with the United States and in the European arrest warrant for those offences that are not included in the treaty list. I accept that we gave up the prima facie rule under an earlier Council of Europe treaty with our European partners and neighbours, but there was a backstop in that, the Home Secretary was entitled to ask whether it was in the interests of justice that such rules could be disapplied. Various legal protections were built in.

I can understand the case for eliminating some of the protections. Perhaps the Home Secretary's discretion should have related to some fairly narrow points—the interest of justice, for instance—and perhaps he should have been able to exercise that discretion only once. Perhaps the prima facie rule could have been done away with in some cases. I have, however, always been worried about doing away with dual criminality. I do not understand how someone can be extradited from this country and prosecuted in another country if what they did was not an offence here at the time. However, we have now got ourselves into that position with the United States through the backdoor by allowing the prima facie evidence rule to be eroded. In so doing, we have effectively eroded the dual criminality rule as well.

I do not understand why we went into a panic in September 2001, which resulted in the European arrest warrant, the treaty with the United States and the Extradition Act 2003. Many hon. Members made a great many of those points in considering the European arrest warrant and the Bill in Committee, but the Government were deaf to those arguments.

Secondly, I want to deal with the US position. We got to this point as a result of bad negotiation, quite frankly. The Government did not foresee that the United States might not ratify the treaty. Anyone who has watched its refusal to extradite IRA terrorists over the past 30 years surely cannot be surprised that that is the main reason why ratification is being held up in the Senate Foreign Relations Committee by a couple of Senators, probably from New York and Massachusetts, who do not want to risk former terrorists who may still be living peacefully in San Francisco or somewhere else being extradited here. If we did not foresee that, it is a terrible mistake, but if we did, why did we not build into the treaty something to deal with it—or why cannot we do so now? If that is the problem, why cannot we try to renegotiate the treaty now.

As my right hon. and learned Friend Mr. Howard said, the United States now has no incentive to ratify the treaty. What bothers me is that all this is set in the context of a lot of other issues. No Conservative Member, possibly barring my right hon. and learned Friend, could be more pro-American than I am, but I am deeply concerned that we have allowed ourselves to be put in the position not just of a junior partner, but one without any influence.

There is a raft of things on which we are not getting what we want from the United States—the international traffic in arms regulations waiver, the second engine on, and the guarantee of the order for, the joint strike fighter, as well as the ratification of the treaty. I go to Washington about once or twice a year, and many of those things have been on that list for about nine or 10 years, and the Americans keep saying that something is happening, but it does not.

The fact is that the Government are not taken seriously because they are lousy at negotiating. They give away their position up front and do not retain any cards to play at the end of the game when things get difficult. That is what has happened in this case. The Minister is new to the job and I ask him to think seriously about the points that have been made. I hope that he is listening, because I do not think that this is a party political issue.

Photo of John Maples John Maples Conservative, Stratford-on-Avon

I am sorry. I was looking at the wrong Minister. Perhaps she is not so new to the job. I ask her to think seriously about this issue, because British citizens are being put at risk of serious injustice. The case of Ian Norris involves price fixing, which was not a criminal offence here at the time when he committed it. If the dual criminality rule were properly applied, he could not be extradited to the United States for it. However, because the United States can pick up on an offence for which there is dual criminality and charge him with that, it can apply the weak prima facie evidence test that is now in the treaty.

I suggest that, inadvertently, the treaty with the United States and the Extradition Act are resulting in—and will continue to result in—serious miscarriages of justice in which innocent British citizens are put through extradition and a court procedure in the United States that they should not be put through. If the proper protections were in place, they would not be put through that. The Government must be galled that the United States Senate refuses to ratify the treaty, but they have it in their hands to accept the amendments, or something like them, and simply put the favourable treatment that the United States gets on hold—in abeyance, in escrow, or whatever one wants to call it—until the United States performs its side of the bargain. We would not have so much trouble then. However, I suspect that the United States will not ever implement its side of the bargain and that at some point we will have to renegotiate if we want to get the United States to sign up to a new treaty. Perhaps the sooner we get there, the better.

In pursuit of the interests of justice, I hope that the Government will consider the matter again. They should not feel that it would be a terrible climbdown or loss of political machoism to admit that a mistake has been made. They can blame the United States. They need to find some way out of the problem that we have been led into by the Extradition Act.

Photo of Mark Pritchard Mark Pritchard Conservative, The Wrekin

I rise to support the new clause that has been tabled by my right hon. and hon. Friends. We can understand why the Government have introduced a new extradition regime. The events of 9/11 are an important political context. I think that we would all agree that extradition laws needed to be updated and speeded up. However, that has been done at the cost of explicit due process, equity and fairness. Many critics of the treaty with the United States quite rightly cite the lack of reciprocity, which we have heard mentioned many times in the Chamber today. They suggest that the treaty is unbalanced, unfair and leaves UK citizens at a great disadvantage compared with US citizens. They are right. Unless the legislation is amended, UK business men and citizens will become increasingly vulnerable to over-zealous and extraterritorial US prosecutors.

There is inequity not only in the process, but in the application of the law. It cannot be right that UK citizens alleged to have committed crimes in the United Kingdom, with perhaps the vaguest of links to any criminal activity in the United States, can be extradited without the requirement for prima facie evidence. In many cases, we no longer have physical borders when it comes to white-collar crime. Cybercrime and commercial crime through the internet are increasing. We need to be mindful of that. Nevertheless, cases need to be driven by evidence.

Like the UK, the US should be required to provide evidence amounting to probable cause. Instead, the Government have created an extradition regime that has lowered the evidence threshold for the United States authorities alone. They have entered into an agreement that allows the US authorities to use extradition powers that perhaps go far beyond what the Government originally envisaged—to be fair to them.

I would like, if I may, to ask the Minister on a point of law whether the 2003 extradition treaty is actually ratified. We know that the 1972 treaty was ratified here in the United Kingdom and in the United States, but the 2003 treaty was ratified in the United Kingdom, but not in the United States. Was the treaty ratified? There are 44 cases involving people who might go to the United States, and I believe that 12 UK citizens have already left the country and gone to the US. If the treaty has not been ratified, is there not a case to say that the Government or the judicial process have acted ultra vires, or beyond their legal powers? There might be a strong case to answer on that, and I would be interested if the great legal minds in the House would like to advise me on the matter either inside or outside the Chamber.

As my right hon. and learned Friend Mr. Howard rightly said in his most excellent speech, there are many friends of the United States on both sides of the House. I declare an interest because my wife is a US citizen. However, we need to move to a position of equity, fairness and reciprocity so that US-UK relations are safeguarded.

Photo of Joan Ryan Joan Ryan Parliamentary Under-Secretary, Home Office, The Parliamentary Under-Secretary of State for the Home Department 5:45, 10 May 2006

It is with pride that I rise to speak at the Dispatch Box for the first time for my Government. I am especially pleased to be facing Mr. Grieve and to be in the Chamber with many other hon. Members, both in front of me and behind me, with whom I have long worked on Home Office matters. However, I have not been able to use my voice on these issues, certainly for the past four years, so I hope that I will use it well on this occasion and others to come.

Government amendments Nos. 66 to 71, 78 and 79 are largely technical in nature. Government amendments Nos. 66 and 67 simply correct a drafting flaw in the Extradition Act 2003 to ensure that it reflects the devolution settlement.

Paragraph 21 of schedule 14 to the Bill would extend legislative powers to allow time served abroad on remand while awaiting extradition to the UK to count towards a person's sentence. In practice, judges usually deduct time served abroad from sentences, but we had intended to take this opportunity to reflect the practice in legislation. However, on closer inspection, and bearing in mind recent changes to our domestic sentencing law, the provisions in paragraph 21 of schedule 14 do not close the technical gaps that we have identified in legislation relating to offenders who are convicted before, but sentenced after, extradition, and to certain juveniles. It became clear that paragraph 21 required amendment. Indeed, we have concluded that it would be better to omit paragraph 21 and its associated provisions and start again. The area of law is complex and it has taken further reflection to get an amendment right. Government amendment No. 69 ensures that the power to give credit for time served pending extradition applies equally to all, regardless of when the offender is convicted or sentenced in the UK, and regardless of the offender's age.

Let me turn to the amendments tabled by David Davis and new clause 8. I should say at the outset that many Labour Members will be surprised by the content and tone of Conservative Members' remarks. I will explain why during the course of my speech and attempt to respond to the points that have been raised. However, I ask Conservative Members to bear in mind the limited time at my disposal today, because we wish to allow time for all Back Benchers to have a full opportunity to contribute.

New clause 8 is perhaps the most surprising of the amendments and new clauses that have been tabled to this part of the Bill. We do not recall the official Opposition taking quite the same attitude to our extradition arrangements with the United States when the relevant legislation was debated in Parliament. They are now revealing a deep distrust of one of our longest and most trusted extradition partners. We look back to the Act of 2003. Conservative Members expressed shrill opposition to the European arrest warrant, which has proved its worth. We no longer hear that opposition. It seems that Conservative Members go about seeking their enemies. It is clear that—

Photo of Joan Ryan Joan Ryan Parliamentary Under-Secretary, Home Office, The Parliamentary Under-Secretary of State for the Home Department

I will give way in a moment.

It is clear that particular cases that we cannot discuss in the House have motivated some of the current concerns, but I am certain that those concerns are misplaced. The proposed amendments would have the effect of requiring the US once more to provide prima facie evidence with its extradition requests, as it did before the legislation of 2003, along with the subordinate legislation that came into effect.

As we have said on many previous occasions, the 2003 Act provides a better and faster approach to extradition than previous legislation. It applies not only to the US, but to all our extradition partners. Some 47 other countries have exactly the same agreement with us, and we have exactly the same extradition arrangements. It may throw some illumination on the issue if I mention some of those countries—for example, Albania, Australia, Azerbaijan, Bangladesh, Barbados, Chile, Colombia, the Cook Islands, Macedonia, Jamaica, Kenya and the Russian Federation. Where else can we go? There is Turkey, Sri Lanka, Swaziland, Australia, as I have said, Canada, Zimbabwe and the United States of America.

Photo of Joan Ryan Joan Ryan Parliamentary Under-Secretary, Home Office, The Parliamentary Under-Secretary of State for the Home Department

I will give way in a moment.

We have before us a better and faster approach to extradition. Among the provisions was secondary legislation to designate those countries that do not need prima facie evidence. Those countries, some of which I have listed, are in category 2 for extradition consideration. The removal of the prima facie requirement was possible long before the 2003 Act came into force. The possibility dates back to when the Opposition were in Government in 1991, when the UK became an active party to the European convention on extradition.

Photo of Joan Ryan Joan Ryan Parliamentary Under-Secretary, Home Office, The Parliamentary Under-Secretary of State for the Home Department

I will give way in a moment.

Signatories to the convention do not require prima facie evidence from one another. By the end of 2003, the convention applied between almost all European states. We have heard the convention praised by Conservative Members. It applied to almost all European states, including Russia and other former Soviet states, which are all members of the Council of Europe, as well as to Israel and South Africa. The convention still applies to our extradition arrangements with all these states except for those which have joined the European Union, with which we operate the European arrest warrant mechanism.

Photo of Michael Howard Michael Howard Conservative, Folkestone and Hythe

Will the Minister identify any cases from any of the countries that she has so painstakingly and painfully listed that have given rise to concern and therefore make those countries relevant as compared with the United States, where we know that there has been a series of cases that has given rise to concern? Will the hon. Lady deal with the cases of concern that have been referred to by everyone who has spoken from the Opposition Benches rather than—I am sorry to say this—insulting the intelligence of the House by reciting a list of countries in respect of which there have been no cause for concern?

Photo of Joan Ryan Joan Ryan Parliamentary Under-Secretary, Home Office, The Parliamentary Under-Secretary of State for the Home Department

The right hon. and learned Gentleman voices the deep distrust that we see in the new clause, and that is an astonishing position for the Conservative party to adopt.

Returning to the list, we have added Australia, Canada and New Zealand, which do not require prima facie evidence, and the US, which the Opposition seek to remove.

Photo of Joan Ryan Joan Ryan Parliamentary Under-Secretary, Home Office, The Parliamentary Under-Secretary of State for the Home Department

I am sorry that I shall not accept any more Back-Bench interventions, as there is very little time.

We added the US to the list because, despite what the Opposition imply, it is a trusted extradition partner and a mature democracy with a fair system of justice. Its requests therefore deserve at least the same level of consideration as requests from other countries.

Photo of Dominic Grieve Dominic Grieve Shadow Attorney General

Why did we embark on a treaty revision with the United States if we could have proceeded on the basis of what she has said, and given the US what it wanted? We embarked on that revision because we believed that we could benefit from concessions by the United States. Surely, that is the basis of trust, buttrust cannot be maintained without reciprocity. Furthermore, as the Minister well knows, while some aspects of the US legal system seek justice, they can be onerous and the extra-territoriality of US jurisdiction is quite extraordinary.

Photo of Joan Ryan Joan Ryan Parliamentary Under-Secretary, Home Office, The Parliamentary Under-Secretary of State for the Home Department

There is a deep misunderstanding on the part of the Opposition of the issue of reciprocity, perhaps because of certain cases that have arisen. We have reciprocity precisely because of the Extradition Act 2003. Before it was passed, the bar for the US to extradite people from the United Kingdom was much higher, and was based on prima facie evidence. For the UK to extradite people from the US, the requirement was probable cause but, as a result of the 2003 Act, we have come into line. One could characterise the requirement as one of reasonable suspicion, but the reciprocal arrangement is based on the fact that it is not just identification that is required. Sufficient information is needed to issue a warrant for arrest, and that is the basis of reciprocity with the United States. There is never 100 per cent. reciprocity, but probable cause and reasonable suspicion are equivalent. We do not require prima facie evidence from many of the countries on the list, because we trust their judicial system and we have reciprocity. However, we do require prima facie evidence from the Cook Islands and other countries.

Turning to the proposal to insert the word, "forum", in schedule 14, the Opposition wish to turn our prosecutorial system on its head and subvert it. They suggest setting up a system whereby a judge considering a request to extradite an individual makes a decision as to whether they should be prosecuted in this country. If they do not think that they should be, that individual could escape scot-free. Extradition aims to bring people who have committed a crime to justice. The ordinary people of this or any other country want justice to be applied equally to the perpetrators of white-collar crime and to the perpetrators of any other crime. The 2003 Act aims to speed up and simplify the process, but it has never applied only to terrorist acts. It applies to any crime that attracts a 12-month sentence. On that basis, I urge the House to reject the Opposition amendments.

Photo of Dominic Grieve Dominic Grieve Shadow Attorney General

Although I warmly welcome the Minister's arrival at the Dispatch Box, I cannot welcome her words this afternoon. She has failed completely to meet the issues that have been raised. She suggested that asking judges to consider the question of forum is in some way wrong. Judges deal with abuse of process applications frequently. It is perfectly within their competence to do so. I find incomprehensible her misunderstanding of the issues concerning the United States, our friend and ally. If we want to maintain friendship and alliance, reciprocity is the basis.

It being Six o'clock, Mr. deputy speaker put forthwith the Question already proposed from the Chair, pursuant to Order [6 March].

Question put, That the clause be read a Second time:—

The House divided: Ayes 224, Noes 293.

Division number 227 Orders of the Day — New Clause 8 — Designation of Part 2 Territories: Omission of United States of America

Aye: 224 MPs

No: 293 MPs

Aye: A-Z by last name

Tellers

No: A-Z by last name

Tellers

Question accordingly negatived.