Before calling Chris Grayling to move the motion, I should inform the House that Mr. Speaker has decided to exercise his discretion and waive the House's sub judice rule, to enable passing reference to be made to the case of Mr. Gary McKinnon in relation to the principle of the motion. Members should not, however, discuss the details of the case.
On another matter, the House will be aware that Mr. Speaker is seeking to increase the opportunities for Back Benchers to contribute at Question Time, on statements and in debates. In the Opposition day last week, he was conscious that the Front Benchers absorbed a disproportionate share of the time available for the debate. He hopes that that will not happen again.
I beg to move,
That this House
expresses its very great concern that the Extradition Act 2003 is being undermined by a series of high profile cases that are jeopardising confidence in the extradition system;
and calls on the Government to hold immediately a review of the Act with a view to reforming it at the earliest opportunity to deal with the issues of public concern.
I am grateful to you, Mr. Deputy Speaker, for clarifying Mr. Speaker's judgment in this matter. If it helps, let me give Members a brief background. The Gary McKinnon case has been extensively publicised in recent days, but it cannot currently be the subject of debate in this House, as you rightly say, because of the rules that apply on sub judice. The McKinnon case is currently subject to a further round of legal proceedings in the courts-proceedings that were taking place this morning and, as far as I am aware, are still taking place as we speak this afternoon. The House has strict rules about debating matters where legal proceedings are in train. Under a resolution of this House that was passed on
However, the concerns that exist about our current extradition arrangements go much wider than simply the McKinnon case. The matter has been debated and issues have been raised for a number of years. As I think you will agree, Mr. Deputy Speaker, the McKinnon case has brought those issues back to the fore. That is why we have sought to use this time to allow Members in all parts of the House to discuss those concerns and to send a clear message to Ministers that we want the current situation to be reviewed. Such a review is vital to maintain the integrity of the extradition system, to make changes to ensure that it is fair and just, and to ensure that it enjoys public confidence.
There is no doubt that public confidence has been sorely lacking in the past few years. In several cases raised by hon. Members on behalf of constituents there has been a prima facie case for believing that justice was not being done. Current events make the case for a review all the more urgent. The motion that we will vote on at the end of this debate is therefore designed to underline the case for such a review. The motion does not seek to prescribe what changes should take place, even though many right hon. and hon. Members will have strong views about the detail. Neither does it seek to condemn the Government for their handling of our extradition system in recent years. The motion is simply designed to demonstrate that there is a will in Parliament for change. I hope that Members in all parts of the House will join me in the Lobby to send a message to Ministers about the need for change.
Extradition is a pretty trying process for a person to go through and it can take an immense psychological and physical toll. In the United Kingdom alone, the act of extracting someone from their home to stand trial and then serve a prison sentence will change their life for ever. To do that to someone and also send them to a foreign country with a different legal system is something that should be decided only in a process of the utmost rigour and scrutiny. That is why any system that is put in place to manage such a process must be subject to the most serious checks and balances on both sides of the arrangement. It is our fear on the Conservatives Benches-and, I suspect, among Members in all parts of the House-that the arrangements that are currently in place for extradition from the United Kingdom do not meet the criteria that we would expect on reciprocity and fairness.
The previous Home Secretary but one is on record as saying that when the agreement was signed, Britain did not get the best possible deal from the United States. The Opposition have put forward a very modest motion-it is a motion not to end extradition, but to review it. Does the hon. Gentleman not agree that that issue should form part of a review, to ensure that we get the possible deal for our citizens, even when we are dealing with allies and friends?
I absolutely agree with the right hon. Gentleman. The principle of reciprocity is particularly important, and I will return to it later in my remarks.
The hon. Gentleman has now acknowledged that, in considering this matter, we should consider issues of principle. Would not a reasonable principle to take into account-a principle that might have formed part of his motion-be that the constitutional position of British citizens under the extradition treaty should be no less strong than the constitutional position of American citizens?
I absolutely agree with the right hon. and learned Gentleman. Indeed, if the Home Secretary will consider opening such a review, as I very much hope he will after today's debate, I believe strongly that the principle that the right hon. and learned Gentleman has just outlined should underpin it.
The right hon. and learned Gentleman referred to the United States. Our arrangements with the United States have most regularly been the subject of question and concern, although the issue also applies to our legal relationships with other countries. I am not seeking to criticise the conduct of the United States or any other country-they are rightly looking after the interests of their citizens. Rather, it is this Parliament and our Government who make the rules surrounding extradition from the United Kingdom. The Extradition Act 2003 set the framework for those rules, but we are unconvinced that it is working in the way that we should expect.
We on the Conservative Benches have spent many an hour over the past few years pointing out some of the iniquities of the current arrangements, as have many outside this House, as well as Members from other parties here. Once again, the Government have constructed a piece of legislation that, although intended to do something useful and important, has managed to spread into a whole host of other areas. Frankly, we have seen that again and again-indeed, it is a trap that the Government have fallen into on many occasions.
Let us take the example of the Regulation of Investigatory Powers Act 2000. It was designed to address terrorism and serious crime, but it is now used by local councils to do a whole range of things for which it was not intended, such as spying on garden centres to see whether they are selling pot plants without planning permission for a change in use, or monitoring dog walkers with covert CCTV cameras. The law of unintended consequences has been all too present in the legislative processes of the past few years.
I hope that the shadow Home Secretary will not think that my point is merely one of semantics. We talk about the extradition treaty between the United States and the United Kingdom, but actually there is no such piece of legislation in the United Kingdom. These things are done under the royal prerogative. In contrast, the measures in question were endorsed in legislation in the United States Congress two and a half years after we promulgated our side of the so-called bargain. There has clearly been a disparity from the beginning. For two and a half years, we were implementing our part of the treaty, whereas the United States refused to do so. That is simply unfair. A previous Home Secretary, my right hon. Friend Mr. Blunkett, ignored the fact that this Parliament's Foreign Affairs Select Committee protested time and again about the disparity and the inequality of application of the treaty.
The hon. Gentleman's comments speak for themselves, and he is absolutely right. This issue must be addressed.
Clearly, the concern that is felt in the House about the high-profile cases is also strongly felt in the country. Does the hon. Gentleman agree that it is the mark of a strong Government, rather than a weak one, to recognise that mistakes have sometimes been made? I hope that many of my colleagues will join others this afternoon in supporting this very sensible move to review an Act that is now falling into disrepute.
I agree with the hon. Lady. In this place, it is very easy to believe that Governments either get it all wrong or get it all right. Actually, the truth is somewhere between those two extremes. They get things wrong, and they get things right, and she is absolutely right to say that it is the mark of a strong Government to accept when they have got something wrong and to make changes.
Given the fact that the motion has been phrased so as not to criticise the Government, did it not surprise my hon. Friend that they did not find it possible simply to accept it? Instead, they have tabled a portentous and pretentious amendment which suggests that the world is a better place because they are always perfect. Why do this Government find it impossible ever to say sorry about anything?
My right hon. Friend is absolutely right. The House would be grateful to the Home Secretary if he withdrew his amendment, accepted the principle of the motion and agreed to look again at the arrangements.
There are three big problems with the current arrangements. The first relates to the people who are being extradited. We have long argued that the Extradition Act 2003 has resulted in a situation whereby the people who get caught up in the system and who are being extradited are not those whom the Government said the legislation was designed to target. We were originally told that the legislation represented a move to address the international security situation after the horrendous incidents of 2001. However, the House of Commons Library has assembled an analysis of the people who have been requested for extradition by the United States. They include 20 people requested for drugs offences, 18 for fraud, two for satellite signal theft, three for theft and just one who was involved in a terrorist case.
These issues are not just about our relationship with the United States. The 2003 Act also enacted the arrangements that exist with other countries, particularly the European arrest warrant. It is another example of a measure that was introduced when security was top of the agenda. It was designed to enable the swift transfer between one country and another of terrorist suspects, but it has subsequently developed mission creep, and in so doing, it has undermined civil liberties.
Is it not also noteworthy that, in the list of offences that my hon. Friend just gave to the House, there was no mention of computer hacking? Other serious computer hacking offences have been dealt with by our own courts, leading in some cases to custodial sentences. Crucially, justice has been seen to be done in this country.
My hon. Friend makes an important point, and I will come back to that issue, because another key question is where we should implement justice when a case involves multiple jurisdictions.
British citizens can be extradited to other parts of Europe for a range of extraordinarily ill-defined offences that might not even constitute a crime here or in many other European countries. There have already been examples of the European arrest warrant being used in a way that most of us would feel was inconsistent with the original principles discussed at the time of its introduction. The rapid move to strengthen extradition arrangements in the first part of this decade was clearly designed to combat the terror threat, but those new arrangements should not be allowed to become a quick and convenient way of bypassing what would have been the due process for other forms of charge and alleged offence.
The second big problem with the present arrangements involves the way in which we appear to be sub-contracting justice to other countries in cases in which there appears to be a competing jurisdiction. This goes back to the point that my hon. Friend Mr. Burrowes made a moment ago. There is a strong case for arguing that the courts should have a statutory duty to consider issues of what is called forum-in other words, the question of which country has the most appropriate claim to prosecute-and that this country should not sub-contract difficult prosecutions to other countries.
This problem is going to arise again and again in cases involving cybercrime in particular-my hon. Friend has just mentioned computer hacking-not only in the Gary McKinnon case but in a whole variety of others around the world. I remind the House of the recent case of the two Swedish men who were prosecuted in their own country for piracy offences, but whose crimes had clearly crossed jurisdictions around the world. The provisions of the law in this country should be much clearer about when a case should or should not be tried in the United Kingdom. There are clear legal precedents for this: British people charged with crimes that were allegedly committed in the United Kingdom but which electronically targeted organisations in other countries have been brought before the courts in the United Kingdom.
Let us take as an example the case of Aaron Caffrey, a young British man suffering from Asperger's syndrome, who was blamed for causing the biggest systems crash ever to hit the United States. During a two-week trial at Southwark Crown court in 2003, Caffrey was accused of launching an electronic attack in 2001 on America's busiest port at Houston, Texas. The jury cleared him of any wrongdoing after accepting his claim that unknown computer users had hijacked his machine, using it as a Trojan horse to stage the attack. His case was tried in this country, and he was found not guilty. He was not extradited to the United States.
Then there was Richard Pryce, a man said to have been
"doing more harm than the KGB"
and dubbed the
"No. 1 threat to US security".
Pryce, working from his bedroom with two £750 computers to help him with exams, hacked into systems at NASA and at US air bases. From there, he explored systems in south-east Asia, causing chaos when he invaded the computer of a Korean atomic research institute. At the time, the Americans were in the midst of delicate negotiations with the North Koreans, and they were terrified because the break-in appeared to originate from a US air base. In 1997, Bow street magistrates fined the 19-year-old £1,200 after he admitted 12 offences that his lawyer described as a "schoolboy prank".
There was also the case of Andrew Harvey and Jordan Bradley, who were part of an Anglo-American hacking group that set out to cause worldwide chaos by infiltrating home computers. The US security services and the FBI co-ordinated raids on the homes of the group's members, including those of Harvey in County Durham and Bradley in Darlington. At Newcastle Crown court in 2005, Harvey, aged 24, was jailed for two months, and Bradley, aged 22, for three months when they admitted conspiracy to cause unauthorised modification of computers with intent.
In all those instances, the crimes were tried in the United Kingdom and extradition was not required. It is important to state that I am not commenting on the verdicts or on the circumstances of those cases; I am simply underlining that Britain has in the past been willing and able to try people in the United Kingdom when there are issues of conflicting jurisdictions, and I believe that our extradition arrangements should reflect that.
The Police and Justice Act 2006 incorporated provisions to insert an appropriate forum requirement into the Extradition Act 2003. However, the Government have refused to activate it. It provides that if extradition is not in the interests of justice, it can be barred, and that a decision not to prosecute in the UK may be a relevant factor. My hon. Friend James Brokenshire sought to activate this provision while the current Policing and Crime Bill was being considered in this House, but his efforts were talked out.
The late, and sadly lamented, Lord Kingsland and my noble Friend Baroness Hanham tabled an amendment to the Policing and Crime Bill that would affect the Police and Justice Act 2006. The amendment would provide that paragraphs 4 and 5 of schedule 13 should come into force on the day on which the Policing and Crime Act 2009 is passed. In the light of this debate, and of the issues that lie behind it, perhaps Labour Members in another place might wish to consider carefully whether to join us in trying to redress this imbalance.
The third big problem relates to the imbalances that exist-despite what the Government claim in their amendment-in the current extradition arrangements. As hon. Members have pointed out, there is an inherent unfairness relating to the evidence that needs to be presented to begin an extradition. Countries that are classified for the purposes of the 2003 Act as category 2 countries can be given an additional designation, enabling them to dispense with the requirement to provide prima facie evidence with their extradition requests. A territory in the enhanced category 2 status need only provide "information" rather than "evidence" to satisfy tests for the issuing of warrants. Under section 84 of the Act, the United States need only provide
"evidence which would be sufficient to make a case requiring an answer by the person if the proceedings were the summary trial of any information against him".
That is pretty weak anyway, but this provision is not reciprocal; there is an imbalance in the evidential requirements for extradition between the US and the UK.
"If the second order designating category 2 territories is approved, the United States will no longer be required to supply prima facie evidence to accompany its extradition requests to the United Kingdom...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'...I do not see why we should impose a more stringent test on the USA. Nor do I see why the absence of complete reciprocity affects the issue."-[ Official Report, Third Standing Committee on Delegated Legislation ,
Well, I think that the right hon. Lady was wrong then, that the Government have been wrong about this issue, and that it is essential to address it. Her candid observations will provide little comfort to those who will suffer because of the different levels of evidence required. It is this issue that, I suspect more than most, underpins many of the cases that Members of all parties have brought forward when their constituents have found themselves caught up in a system that they rightly think is unfair and risks causing some real injustices.
There have been practical examples, as in the case of Alex Stone, who was extradited to the US because he was accused of injuring the child of a woman whom he had met online. Yet once he had been extradited, the original charges against him were dropped. His lawyer commented at the time:
"No longer do the American authorities have to provide prima facie evidence for extradition, but what is also of concern is what happened to Alex Stone when he was returned to the US".
This in an example in which there was not even sufficient evidence to pursue a case once the extradition had taken place. That surely underlines the concerns that rightly exist about the current system. We think that those imbalances need to be addressed and that there should be reciprocity in our extradition arrangements. We also think that a reasonable burden of proof should apply before someone can be extradited.
Could my hon. Friend venture an explanation of why the Government thought it necessary not to enact the same level of evidential standards as the Americans demanded? What is it that led the Government to make this ludicrous decision that we did not need what the Americans insisted was constitutionally necessary?
I would love to be able to give my right hon. Friend an answer to that question, but I do not have a clue-it makes no sense to me, and I simply cannot understand the thought processes. I know that the Home Secretary has inherited from his predecessors a pig in a poke, but I cannot understand why reciprocity was not a basic principle of an extradition treaty. It makes no logical sense, and we can see the consequences in the cases I mentioned. I do not seek to comment on the guilt or otherwise of any of those people, but I believe their cases highlight the ways in which current arrangements are rightly subject to criticism and why there is a real need for reform.
Notwithstanding the comments of my right hon. Friend Mr. Gummer, does my hon. Friend agree that it would be a very simple matter for the Government to support our motion today because it implies no criticism of the Government whatever? They could support it without any loss of face.
My hon. Friend is absolutely right. The Home Secretary and I will have days when we spar and days when we do not, and I very much hope that today can be one of constructive discussion leading to a genuine consensus across the House that a review is necessary to deal with a whole range of actual or potential injustices that have taken place in our extradition system in recent years as a result of these agreements.
I seem to recall that the original negotiations were done in an unusual manner and were peculiarly related to terrorism, war and defence implications. The heart of the Government's argument at the time was that there was "rough equivalence", but the very use of the word "rough" demonstrated that there was no equivalence. That lies at the heart of our current difficulties. If the new Home Secretary could stand back from all this and see the process leading up to these arrangements, I think he might come around to the view that it is reasonable to establish protection for British citizens that is not rough equivalence, but equivalence.
I absolutely agree with my hon. Friend. I am tempted to say "very rough equivalence", because the gap is really quite big, as we have seen in some of the cases. I do not suggest that it was initially the Government's intention that some of these injustices should take place, but none the less they have taken place, and there are real concerns about individual cases. Perhaps more than anything else, those cases underline the need for change. All our debate and discussion of these issues is relevant to the concerns about Gary McKinnon, yet his is but one of many cases brought to our attention by right hon. and hon. Members that amplify the need for change.
I am grateful to the hon. Gentleman for giving way a second time. I have been interested in this matter since 2003. I have sought an explanation, including from the former Prime Minister, of why the UK was willing to enter into a treaty that disadvantaged British citizens to the advantage of American citizens. I have received no such explanation, but may I suggest that it may well be that in the period immediately after the military action against Iraq, the then Government's policy of staying as close as they possible could to the United States was the motive that lay behind the treaty. It is a policy that has been shown, if I may say so, to be rather barren and unhelpful by subsequent events.
The right hon. and learned Gentleman may well be right, but sufficient time has now passed, regardless of the original reasons, for it to be both sensible and logical to embark on a review of those arrangements in order to see what can be done to improve them.
Some other countries refuse to extradite their citizens at all. As a nation, we have not chosen that path, but we should exercise maximum caution in circumstances where we allow the extradition of British people. We should seek proper reciprocity in our mutual arrangements with other nations; we should be much more clearly willing to try in this country cases that affect multiple jurisdictions; we should make sure our arrangements do not have mission creep and are used for the purposes they were intended for-not those they were never intended for. I believe that the will of this House is for these issues to be looked at again. After six years of the Act's operation, it is time to examine not only where it is working-
I appreciate the hon. Gentleman giving way. I sense that he is coming to the end of his speech. The motion talks about
"a series of high profile cases".
I have heard about one case, on which Mr. Speaker has ruled, so I wonder whether the hon. Gentleman could set out the other high-profile cases. [Hon. Members: He has.]
If the Home Secretary wants me to do so briefly, we could take the case of the former chief executive of Morgan Crucible, for example. We greatly debated the NatWest three at the time, and I suspect that as our debate continues we will hear from a number of hon. Members about cases where similar issues have arisen. I do not know the exact number, but there are many cases-probably a dozen-where these issues are relevant. I found the particular case of the former boss of Morgan Crucible to be one of the most alarming. He was threatened with extradition for committing an offence that did not exist at the time his actions took place. This is a matter of particular concern to my hon. and learned Friend Mr. Grieve, who will undoubtedly say more about it in his winding-up speech.
As I was saying, I think that the will of this House is for these issues to be looked at again. After six years of the Act's operation, it is time to examine where it is working and where it is not. The Home Secretary says he wants lots of cases, but I believe that if there is just one injustice as a result of these arrangements, it is one injustice too many. We are conducting this debate today because we fear that there may well be one injustice too many, and we need the Government to look at what they can do about it. People outside the House will be looking at what we say and do today and hoping against hope that Ministers will go away from this debate with a commitment to look at not only one injustice, but all of them. I hope that Ministers will accept the need for review, and that they will go forth today accepting that the will of the House is for change. I hope that the House will back this motion and that it will lead to a proper review of our extradition system.
I beg to move an amendment, to leave out from "House" to the end of the Question and add:
"notes that it is beneficial to the public to be able to extradite people accused of crimes in another country who might otherwise escape justice and that extradition treaties such as the US-UK Extradition Treaty 2003 work to the significant benefit of both countries;
notes that the UK must demonstrate 'probable cause' to the US courts while the US must demonstrate 'reasonable suspicion' to the UK courts;
notes that these tests are broadly equivalent given the differences between the legal systems in the two jurisdictions;
recognises the view that ascertaining whether prosecution ought to take place in the UK should be considered by relevant prosecutors at the beginning of the process and not by judges at extradition hearings, which could result in serious criminals evading justice;
and further notes that since 2004, people have been convicted on murder, manslaughter and smuggling charges in the UK following extradition from the US, whilst those charged with murder and terrorism offences have been extradited to the USA.".
I appreciate the tone in which Chris Grayling introduced the debate. The issue is important, and it is important to discuss it. The reason why I shall be urging the House to support the Government amendment is that I do not think that the Opposition have made the case for amending the Extradition Act 2003. The motion refers to
"a series of high profile cases".
Without stretching the definition of the words "high" and "profile", I believe that there are two such cases. I shall deal with those two cases, but I shall also deal with some low-profile cases which, while they may not have made the newspapers, have been handled successfully under the 2003 Act.
I do not think that we should confine ourselves to an examination of our relations and extradition treaties with the United States, because the issue goes very much further than that. The 2003 Act facilitates extradition under the European arrest warrant in circumstances in which, I suggest to the Home Secretary, it has been called into question, because of anxieties about the systems of justice in some of the states to which people can be extradited, and indeed in other parts of the world. It is not just a question of UK-US relations.
I am sorry, but the headings on the Order Paper read as follows: "Main Business", "Opposition Day (16th allotted day)", "US-UK Extradition Treaty". I am well aware of the points that the hon. and learned Gentleman has made, but the point that I am making is that a case has not been made for reviewing the 2003 Act. As for
"a series of high profile cases",
there are two such cases, and I shall say something about them shortly.
First, I want to talk about the 2003 Act. I am pleased that Mr. Grieve mentioned the European arrest warrant. I have read the report of the Second Reading of the 2003 Act, which took place in December 2002. It was a very interesting debate. Mr. Cameron-at the time, he was a member of the Home Affairs Committee, which did an awful lot of work on the Bill-said:
"I will vote against the Bill because I disapprove of... specifically the changes to dual criminality."-[ Hansard, 9 December 2002; Vol. 396, c. 106.]
That issue related specifically to the European arrest warrant. However, I cannot find a single mention of reciprocity in the report of the Second Reading debate. The issue on which the Liberal Democrats, I believe, abstained and the Conservative Opposition walked through the No Lobby was, once again, their absolute fixation with Europe and the European arrest warrant. [Hon. Members: "Rubbish!"] Those who are saying "Rubbish" should read the report of the debate in Hansard.
As one who cannot be accused of being in any way antagonistic to the European Union, let me say to the Home Secretary that he is not doing either himself or the Government any good by not facing the real issue. There is profound dissatisfaction and unhappiness not about what happened originally, but about the workings of the 2003 Act. Will the Home Secretary address the question why he will not look at that again?
I have been around for long enough to know that when one is advancing an effective argument, there are an awful lot of interventions. The hon. and learned Member for Beaconsfield has said that this is not about UK-US relations, although the heading of the Conservatives' own motion says that it is. Then there is what happened on Second Reading. I am not making this up; it is on the record in Hansard. There was no mention of reciprocity or UK-US relations- [ Interruption. ]-apart from by the Liberal Democrats. Her Majesty's official Opposition were concentrating on the European arrest warrant, to which the hon. and learned Member for Beaconsfield referred in his intervention. The debate was totally dominated by that issue.
I will give way once more, but then I must make some progress.
I am obliged to the Home Secretary. He has referred to the Second Reading debate, but the fact is that we had a series of debates on the subject, including an important one when John Reid was Home Secretary. The arguments about rough equivalence and so forth were examined and fought over. The underlying principle was that when a British citizen was involved, the case should be made in a British court in the ordinary, traditional way. That imperative originated before the European arrest warrant and the war on terrorism. It relates to a meeting in Washington, and we have argued it.
I am sure that people have argued it. I am telling the House what happened on Second Reading. Second Reading is important to this debate, because we are talking about reviewing the 2003 Act, and I returned to it to see what was controversial at that time.
The 2003 Act provides the necessary framework to ensure that people who have committed serious crimes cannot evade justice by virtue of their residence in another country. Such arrangements are critical in an age when crime-in particular, serious and organised crime and terrorism-knows no national borders, and bringing perpetrators to justice depends increasingly on effective co-operation between criminal justice systems across the world.
It was wrong to suggest that the 2003 Act was brought before the House as a result of 9/11. In fact, the report on which it was based was published in March 2001, months before 9/11, as a result of a long and studious examination by the Home Affairs Committee and others. The reason a change was needed then-unlike now-is that extradition was then governed by the Extradition Act 1989, whose purpose was to ensure that the UK complied with the European convention on extradition, signed in 1957, which in itself consolidated legislation made as long ago as about 1879. There was a real need to update the system.
"Our extradition arrangements are in urgent need of reform. On average, it takes 18 months to extradite someone from the UK and, in many cases, much longer. The system allows the fugitive to raise the same-arguably, often spurious-points time and again, and to mount numerous legal challenges. Even when-as has happened many times-an individual appeals all the way to the House of Lords following the committal hearing, he
"can, once the Secretary of State has considered the case, appeal all the way again on exactly the same grounds."-[ Hansard, 9 December 2002; Vol. 396, c. 39.]
This was a system that had been in urgent need of reform for many years. The point that I am making is that before saying that we want to look into and reform a system, we must consider the effects that that would have. We should not be changing the Extradition Act every couple of years. The 2003 Act dealt with some serious anomalies, and it dealt with them successfully.
I take the Home Secretary's point that there was a need to examine this whole area, but does he not accept that at a certain stage it became clear that the system was not working in terms of natural justice, in the contexts of both public confidence and individuals? Can he not spend a little time telling us how he feels that it could be changed in order to end ridiculous situations, which the public will not accept, involving individuals such as Gary McKinnon? The present system is simply not acceptable. It is not fair, it is not just, and we should be able to do something about it in this Parliament.
I shall come to the specific issues. This is not a speech that will end in a couple of seconds, although I want to make some progress.
I was explaining why we had to change the previous system. The 1989 Act was both unwieldy and cumbersome. Extradition procedures took too long, and we were not able to respond flexibly or quickly to the evolving and increasingly global nature of criminal activity today. The Bill was not produced in a rush after 9/11; it took a long time and much consideration in the House, including consideration by the Select Committee.
No. I will make some progress before taking any more interventions.
The 2003 Act has simplified extradition procedures, while ensuring that the rights of those wanted in other countries are upheld. The amount of time that it takes to extradite people from other countries in Europe has been reduced from an average of 18 months to 50 days. The 2003 Act has been instrumental in bringing criminals to justice. It has made possible the operation of the European arrest warrant, which I do not believe has failed-for instance, it led to the extradition of Hussain Osman, who was wanted in connection with the failed bombing attempts in London on
The hon. Gentleman is clearly bursting to intervene, so I shall allow him to.
I am extremely grateful to the Home Secretary. He has explained how the 2003 Act has reduced the amount of time that it takes for someone to be extradited from this country. Given the way in which the American courts can be used to string out decisions for years, has he any figures to indicate whether the 2003 Act has concertinaed the time that it takes for people to be extradited from the United States?
I have not got any figures, but I have no reason to think that that has not been a result of this new treaty. [Interruption.] I stand to be corrected, but I do not have any information that it has failed in that regard.
I understand why the Secretary of State is trying to mix and match the Extradition Act 2003 and the precise terms of the US-UK treaty, but will he confirm that this House first had an opportunity to express opinion on the treaty on
Well, I am allowed to mix and match in that way on a motion that is headed "US-UK extradition treaty", the terms of which talk about looking at the Extradition Act 2003. I accept that the hon. Gentleman has been consistent; he has not been right on these issues, but he has certainly been consistently wrong.
A moment ago, the Secretary of State said that my suggestion that we should widen the examination to the 2003 Act was wrong, but he is now admitting that it is correct. Is not the point that ultimately everything, including the treaty and the European arrest warrant, is governed by the terms of the 2003 Act, and the 2003 Act is deficient? There is no point in blaming the United States, and we certainly do not seek to do so, but the fact is that there are insufficient safeguards, and on top of that the treaty that was negotiated with the United States is more visibly deficient in terms of lack of proper reciprocity than any other agreement that we have entered into. That is why this debate is so relevant.
I am sorry, but I did not frame this motion; the Opposition did. I am just pointing out the disparities. Of course I want to talk about the 2003 Act and the UK-US treaty, because they are both important subjects in this debate. The hon. and learned Gentleman intervened on me to say that this is not just all about the US and the UK, but it is also about Europe. That is where this particular discussion comes from.
I disagree profoundly about there being an absence of any safeguards, but I shall come on to that shortly, and I certainly reject the suggestion that the extradition arrangements between the UK and the US, as set out in the 2003 Act and in the treaty, are somehow unbalanced. That argument has traditionally been made on the following basis. First, it is argued that the evidential requirement placed on US authorities seeking to extradite people from the UK is somehow less burdensome than the evidence that the UK is expected to produce to extradite people from the US.
Historically, all requests by countries to extradite people from the UK had to provide prima facie evidence. There are too many right hon. and hon. and learned Members present for me to have to explain this, but I will do so for the record: prima facie evidence is evidence that if taken at face value would be enough to convict someone. This was a much stronger requirement than some other nations demanded for UK extradition requests. The requirement was dropped for all EU member states, signatories to the 1957 European convention on extradition and other trusted international partners with mature judicial systems such as Canada, New Zealand and Australia. UK courts instead asked for "reasonable suspicion"-in other words, the same level of evidence required by the magistrates court to issue an arrest warrant in the UK.
Following the introduction of the 2003 Act, the relaxation of the evidence requirement was extended to cover other trusted extradition partners including, but not limited to, the US. That is hugely significant, because it means that the UK and the US now demand of each other essentially the same level of evidence. The imbalance was prior to the change, not after it.
No, I will take an intervention later.
The US and the UK have different legal systems. I am sure that there are no hon. Members who think that we could put the two legal systems together and-hey presto!-get similar definitions. However, what we ask for in demonstrating reasonable suspicion is as follows: the
"circumstances of the case being such that a reasonable man"-
this language is not gender-friendly-
"acting without passion or prejudice would fairly have suspected the person of having committed the offence".
That is what we in this country apply.
The US asks in its legal terminology for "probable cause"-this dates back to the constitution, so it has always been the case and was not developed as part of the treaty-which is defined as
"facts and circumstances which are sufficient to warrant a prudent person to believe a suspect has committed, is committing, or is about to commit a crime".
Those two definitions are about as close as they can be in any two different legal systems.
The Home Secretary has been consistent in seeking to rebut the argument that there is imbalance and that the 2003 Act is lopsided, but does he accept the words of the Attorney-General, Baroness Scotland, during the passage of the 2003 Act? She explicitly said:
"when we make extradition requests to the United States we shall 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".-[ Hansard, House of Lords, 16 December 2003; Vol. 655, c. 1063.]
She was clear that it is imbalanced; why is the Home Secretary not?
The advice that I am working on comes from the Attorney-General. She was, of course, absolutely right that it is a lower test than prima facie, as there is a lower test now for signatories to the European convention and for Australia, New Zealand and Canada. There is no argument to turn the clock back and to use that as a reason why we should review the 2003 Act.
"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."?
That was her opinion then. Does he still understand it to be her opinion now?
I have pointed out the definition of these two terms in UK law and US law. I accept that I am not a lawyer or a barrister, but it seems to me that those two definitions are as close as we can get in two different systems.
The Home Secretary is a very down-to-earth, reasonable and sensible person with common sense. Does he not accept that, whatever he might want to say and whatever briefings he has been given about how simple this is and how similar these definitions are, the reality is that to the ordinary lay person, including the Attorney-General, they are not the same?
Flattery gets my hon. Friend everywhere; I will allow her to intervene at any time. The first point to make is that this is not the issue in one of the high-profile cases, namely that of Gary McKinnon-I shall come on to that. I am dealing with a specific point that was the issue in another high-profile case: that of the NatWest three, which I shall also come on to shortly. As I am not legally trained-I am not a lawyer or a barrister; I am a hack politician-I can only go by the advice that I receive from lawyers in the Attorney-General's Department as to what these two definitions mean. I think that I am digging myself into quite enough trouble with the legal profession.
It is assumed that the fact that more people have been extradited to the US from the UK than the other way round somehow indicates an imbalance-the hon. Member for Epsom and Ewell did not use that in his argument, but the most common argument used against the treaty deals first with reciprocity and secondly with that fact, rather than simply telling us that more people flee the US for the UK than the other way round. It is the case that between 2001 and 2008, about 30 people were extradited to the UK, compared with around 60 being extradited to the US. Since 2007, however, we have extradited more people from the US than vice versa, and many of the people extradited since the 2003 Act came into force have committed serious offences-those are the "low-profile cases" that I mentioned earlier.
Members of this House may recall the successful extradition from the US of Mark and Sean Gorman, who were wanted in this country for a savage hammer attack that left a man with permanent brain damage. They were apprehended in New York, subsequently extradited and are now serving seven years and five years respectively for their horrific crime. Another low-profile case was that of Calvin Berry, who was extradited from the US and jailed for 10 years for the manslaughter and robbery of a teenage girl. Hon. Members may also be interested to know that since 2004, 10 people have been extradited from the US on suspicion of murder, manslaughter or attempted murder, six have been extradited for sexual offences, including one case of gross indecency with a child, and two have been extradited for kidnap and child abduction. So there is no question of this being one-way traffic.
Let us move on to the high profile cases that the Opposition say are bringing the 2003 Act into disrepute. The motion, for understandable reasons, does not specifically mention which cases those are, but one of them, as we have discussed, must be that of the so-called NatWest three, whose extradition was vigorously opposed by many Opposition Members. That was despite the fact that there was "reasonable suspicion" of their involvement in a major case of fraud, which, in turn, played a role in the Enron scandal that deprived 21,000 people of their jobs and many more of their pensions and life savings.
I was at the Department of Trade and Industry at the time of the NatWest three marches and protests, so I recall that, as in the other current case to which I assume the motion refers, it was claimed that the NatWest three should be tried on British soil. The High Court was clear on this matter: the case had substantial connections with the United States and could properly be tried there. It was claimed by those campaigning against extradition that the NatWest three would be denied bail and would spend two years in a maximum-security prison-they were, in fact, granted bail and the trial was delayed only at their instigation. When it was tried in November 2007, they pleaded guilty to fraud and were each sentenced to 37 months. Following short periods spent in US prisons, they are now serving the remainder of their sentences in the UK. I understand how the public become involved in high-profile cases, but it is difficult to understand how cases are not reported so accurately when they go from being high profile to low profile and how the actual experience of the NatWest three can be left completely out of the argument now raging about Gary McKinnon.
If the Home Secretary is interested in the experience of the NatWest three, who include Mr. Gary Mulgrew, he should consult his fellow Labour party member, Mrs. Trish Godman, who is an MSP and the mother of Mr. Mulgrew. I have kept in touch with her, as I did with Mr. Mulgrew during his imprisonment. She has made it clear, as indeed has he, that such was the nature of the prosecution and the implied threat behind it that he was compelled to accept a plea bargain-that is not unusual in the United States, where prosecutors traditionally load the prosecution in the hope of encouraging accused persons to try to do the best they can by offering a plea to a reduced charge. If the right hon. Gentleman is anxious to deal with that matter, he should be more aware of the circumstances before he seeks to draw inferences from it.
I am sorry, but I do not take it from that intervention that Mr. Mulgrew was innocent. I take things from the action of the courts and what has happened through the courts. Of course all kinds of people are involved emotionally in these incidents, but the majesty of the law must come above that. I am pointing out that for all the campaigning and hyperbole about the NatWest three, they were treated fairly in the American courts and were brought back to serve their sentences in the UK, so I can hardly see how the case brought the 2003 Act into disrepute-it might have brought a lot of other things into disrepute, but not the 2003 Act.
We rehearsed these debates endlessly at the time of the NatWest three extradition and it is right that the outcome of that case is on the record. What seemed to be missed time and again in those debates is the fact that this extradition treaty is about speedy justice and bringing people to justice. Ordinary lay people, to whom reference has been made, understand that that is the imperative.
That was a blast of common sense, which is not unusual from my right hon. Friend.
The second case that the motion no doubt refers to is ongoing and is subject to judicial review-I should say "reviews", because there are two-so I shall not comment on the detail, but I wish to set out clearly for the House and, in particular, for the benefit of my hon. Friend Kate Hoey, how the process works. The 2003 Act places the vast majority of matters relating to extradition procedures in the hands of the judiciary and deliberately limits the role or influence that politicians or others could bring to bear on extradition cases. That is important and right, because it removes the possibility that any extradition case could be influenced for political reasons or determined on the basis of prejudicial influences.
I am going to make progress. On the question of prosecution, as I made clear to the House, only the Director of Public Prosecutions can make such a decision, and that includes deciding in which country the prosecution should be brought. In practice, under the 2003 Act, the extradition process works as follows. First, the case for extradition is submitted to the Home Office by prosecutors from another country and is then referred to the magistrates court. The magistrates court must consider whether there are grounds for the issuing of an arrest warrant-and whether there are any "barriers", as they are termed, to it-which means that there must be reasonable suspicion that the subject in question has committed the offence. An arrest warrant is then issued to the police following that procedure, if no barriers were found-no barriers were found in the case of Gary McKinnon. The case is then heard in the magistrates court, and the court must decide whether or not there are any grounds that bar the extradition-for example, whether the individual in question has already been tried and cleared of the offence for which they are to be extradited, which is known as double jeopardy, or whether the extradition would be a breach of that person's human rights under human rights legislation, which Opposition Members seem to find so difficult at times.
Once the court is satisfied that there are no grounds that bar extradition, the case comes to the Home Office and the Home Secretary. The Home Secretary is then legally obliged to order that person's extradition, except in three specific circumstances set out in law: where it is possible that the person who is to be extradited could be sentenced to death if convicted; where there are inadequate arrangements in place in that country to prevent someone's being also charged with an offence that was committed prior to extradition and not included in the request that led to their extradition; and where the person who is to be extradited was previously extradited to the UK from another country and that country has not consented to any further extradition. If none of these circumstances apply, the Home Secretary must order extradition.
Will the Home Secretary explain to the House why three years ago, in primary legislation, this Government gave the Home Secretary greater powers to intervene in such matters, but-up to this time-the Government have not implemented the provisions of that legislation?
No, I cannot explain that at this point, but I am learning all the time, and I will find out about that bit of the jigsaw puzzle. I am talking about the 2003 Act as it stands and the specific case that has such a high profile at the moment. I am not seeking extra powers, because I think that it is right that people are judged on the facts under the law, not on whether they happen to be popular or a newspaper takes up their campaign. It is important that we ensure that all people are treated fairly before the law.
The Home Secretary mentioned my constituent, Gary McKinnon. Is it not the case that the public loses confidence when the doors of No. 10 are flung open for petitions to be accepted and tears of concern to be shed for his plight, but at the same time the Government and the Home Secretary have shut the door on considering his vulnerability-he has Asperger's syndrome-and the widespread concerns about his case? The Home Secretary has himself accepted the need for proper consideration when a significant part of an offence was committed in this country and where the interests of justice may be served best by the case being heard here-
Order. Before the Home Secretary answers that question, I just say to the House that he has been on his feet for some 32 minutes. That is quite a long time, and he obviously has more to say. It is not his fault that he has been on his feet so long: it is because he has taken so many interventions, which obviously stimulate the debate and need to be made. I just hope that he is conscious of the time, because it is passing quickly and many hon. Members still seek to catch my eye.
I understand that Mr. Burrowes is intimately involved in his constituent's case, but I assure him that the safeguards are in the 2003 Act. I have no problem with campaigns, whether by newspapers or others, because that is a healthy part of our democracy, but we have to act in accordance with the law, which provides safeguards in this case. We have gone through the process whereby the magistrates court has decided that there are no reasons and has sent the case to the Home Secretary. I have three specific points to judge such cases on, none of which applied in this case.
The individual can then appeal against the decision of the magistrates court and the Home Secretary in the High Court. If their appeal fails, they can appeal it in the other place. If that fails, there is then a legal duty on the UK Government to extradite the individual within 28 days. But within that time, the person in question can also refer their case to the European Court of Human Rights, which will look at whether the extradition would breach that person's human rights. If the court rules that an extradition would not breach their rights, the UK is legally obliged to continue with the extradition. So there are safeguards at every single stage.
Following these failed appeals, only if powerful and compelling evidence comes to light that demonstrates clearly that the extradition would breach our obligations under the European convention on human rights-for example, a life-threatening illness-can the Home Secretary halt the extradition. In doing so, he or she must apply strict legal tests to determine whether the new information about the subject's mental or physical health would mean that their human rights would be breached should the extradition continue. If the case does not meet that test, they cannot halt the extradition, although their decision not to do so can be challenged in the courts.
Before I move to what might laughably be called a peroration, I assume that the hon. Member for Epsom and Ewell was referring to the forum bar to extradition that the Opposition wish to introduce. That is not a power for the Home Secretary to intervene, but for the court to intervene. Even if the case for a forum bar is accepted, there is an existing mechanism by which the Opposition can seek to introduce forum as a bar to extradition without the need for any amendment. During the passage of the Police and Justice Act 2006, the Opposition successfully pressed for the insertion of provisions that would force the Government to commence proceedings on a bar to extradition, if a resolution to that effect had been passed by both Houses of Parliament.
I think that the system is fair. There can be no doubt that the 2003 Act has been beneficial in enabling the UK legal system to bring to account criminals who have either committed grave harm to individuals or threatened the interests of this country. It also enables us to fulfil our international obligations more expediently. In doing so, it provides greater safeguards and greater clarity to those subject to extradition proceedings. I commend the amendment to the House.
I welcome the Opposition's motion on the Extradition Act 2003. This is a timely and important debate. Every few months, an extradition case hits the headlines, including most recently the case of Gary McKinnon, which is still sub judice while judicial review proceeds. Before that, as the Home Secretary and my right hon. and learned Friend Sir Menzies Campbell have pointed out, there were the NatWest three. These repeated causes célèbres underline the problems with our extradition arrangements. They underline the injustice of the unequal treaty that we have signed with the United States, and they will go on and on until that treaty is amended to put American and British citizens on an equal footing.
I am astonished by the Home Secretary's new doctrine, which no previous Minister has advanced-perhaps we could call it the Johnson doctrine-that there is an equality of treatment. In the past, Ministers have confessed that there is no equality of treatment, but they have justified that on other grounds. The reality is-this is the key point, which the Home Secretary confirmed-that we have to show fact if we want to extradite from the US, and that is not the case for the other way around. For any Government to agree that our citizens should be treated as second-class citizens is an outrage and demands correction.
That is why the Conservative motion does not go far enough. It calls for a review of the Extradition Act 2003, without signalling the problems and highlighting the unjust arrangements contained in the US-UK extradition treaty. The Extradition Act has good and bad parts. Let me start with the good. We like its enabling of the European arrest warrant, a sensible measure for the easyJet age, that has brought back more than 300 dangerous criminals-including rapists, murderers, paedophiles and drug runners-to face British justice. That, sadly, is what the Conservatives seem to dislike: because the EAW is European, they oppose it even though it tackles crime and locks up dangerous people. Judge parties by what they do, not what they say.
Exactly the same applies to the Conservatives' decision to withdraw from the European People's party. If the Conservatives cared more about gay rights or action against climate change, they would hardly have leapt into bed with parties that oppose those things.
I do not think that that is the high point of the hon. Gentleman's argument. I am on record, as are others in my party, as saying that in many cases the European arrest warrant works much better than our extradition agreement with the US. There are, however, some challenging areas in connection with the EAW, because it also applies to countries where the state of the justice system has been criticised by the Council of Europe. We cannot just ignore the fact that the way in which the EAW works can lead, and has led, to anxieties being expressed about whether individuals are being extradited under it for very slight cause, in circumstances that may be unreasonable.
I am grateful to the hon. and learned Gentleman for that point. I was hoping that he would make a full tribute at the Dispatch Box to his colleague, Edward McMillan-Scott, for the service that he has performed for the Conservative party over the years. Sadly, the hon. and learned Gentleman did not do so. I regret that. On his substantive point, however, let us be clear that there are within the justice and home affairs chapters of the treaties very substantial ways in which member states can raise their concerns about other member states' justice systems, if that is required.
Let us also remember that every member of the European Union that is subject to the European arrest warrant is also a signatory of the European convention on human rights, and, by the way-I should explain for the benefit of the hon. and learned Gentleman's party-is also prepared to have the European convention applied in their domestic law. His proposals to fail to do that would be an astonishing break with what is happening elsewhere. The points that he is raising are therefore much less significant than the enormous benefits that we have derived from the European arrest warrant.
I have raised issues myself. For example, I did not approve of the German application to extradite Dr. Toben for the crime of holocaust denial, which we do not recognise in British justice. I merely point out to Mr. Grieve that other member states-such as Belgium-have decided that there is room for interpretation on this. The European arrest warrant is a perfectly workable instrument as it is, and although it should perhaps be improved it has certainly done an enormous amount to help crack down on crime in this country and to help crack down on the old costa del crime. I am astonished that the Conservative party, which was once known as the party of law and order, should have become so obsessed with its Europhobia as to turn its face against this very sensible set of measures- [ Interruption. ] I am glad to see that I have some support from Mr. Gummer, who, sadly, is on the Back Benches and no longer speaks for his party on these matters.
I am grateful to the hon. Gentleman for giving way, but I could not let pass that reference to what was a highly contentious piece of legislation because at the heart of it was a mutual recognition of the legal systems of other countries. There were big queries about the role of investigating justices who can hold British citizens in prison for many months in Italy-Greece was another nation suspected of this-without proof or clear evidential reasons for doing so. Mutual recognition of the quality of the legal system was central to the arguments that took place during the debate on this subject.
I am grateful to the hon. Gentleman for that point, and I have a certain amount of sympathy with it. I would merely go back to the point that I was making in my exchange with the hon. and learned Member for Beaconsfield, which was that this is a process, not a snapshot. It is a process by which we hope not merely to entrench democratic values and democracies in central and eastern Europe and other member states that have not had the benefit of our traditions for quite as long as we have, but also to entrench their commitment to the rule of law and to fair standards of justice. That process, it seems to me, is one of which we can avail ourselves.
Within the grand sweep of words that the hon. Gentleman just used lies the poor British citizen who might be stuck in prison for six months while a trumped-up or inadequate case is explored and investigated in another jurisdiction's domain. That was at the heart of it. It is our concern for the British citizen that is central to these arguments.
The hon. Gentleman has a point. I said that I was sympathetic on that point, and I certainly think that there are examples-not just of British citizens, as the case of Dr. Toben involved an Australian national who happened to be arrested at a British airport-of cases in which we should stand up against such injustices. We should continue to do so.
The objectionable part of the Extradition Act was the ability to shoehorn through this place a treaty with the United States that was never scrutinised here, never voted on, and would never have received this House's approval if its unequal provisions had been made clear, but was introduced through the royal prerogative. We have therefore tabled an amendment calling for the US-UK extradition treaty to be placed
"on a basis of full reciprocity".
We take particular issue with section 69 of the Extradition Act, because it designates category 2 countries, and the statutory instruments that gave the US-UK treaty effect stem from it. The treaty, as I have already mentioned, was sneaked in by the Government without debate or consultation. Even the text of the treaty was a closely guarded secret, for it was not made public until May 2003-two months after its initial signing, when MPs were leaving for the Whitsun recess. The manner of the treaty's approval and implementation illustrates abundantly the disregard that the Executive has for this legislature. There are few better examples of this place being found on its knees, prostrate before Government power.
Can the hon. Gentleman tell us whether the Liberal Democrats have ever used one of their Supply days to debate the treaty in the terms that he has described and call for the changes to it that he wants?
I hope that that is an offer from the Labour Benches to increase the number of Liberal Democrat Supply days. I will take the right hon. Gentleman up on that, and I look forward to his joining us on delegations to the Leader of the House to press that point. We use many ways of making our opposition clear; my right hon. and learned Friend the Member for North-East Fife, in particular, has been extremely active in this regard. Indeed, on one occasion he even appeared before a Committee of which he was not a member in order to make our opposition clear. I do not think that anybody can be in any doubt. At least the right hon. Friend of Mr. MacShane, the Home Secretary, has paid tribute to our consistency, although sadly he has not yet been persuaded of the fact that we are right.
To be traduced in such a way by that former Minister for Europe-Mr. MacShane-is outrageous. Of course we are missing the essential debates on these matters. Chris Huhne is right to have mentioned the treaty provisions in 2003, the discussions on which took place during the passage of the Police and Justice Bill of the 2005-06 Session. That was when that matter was thoroughly thrashed out. That was when the Liberal Democrats led, with Conservatives, in the Lords to bring down that unequal treaty. That is fully on the record. The Home Secretary says that something has been added to the 2003 legislation, and does not acknowledge the fierceness of the debates when rough equivalence, and so on, appeared. He should get his people in the Box to do some work.
I am grateful for the hon. Gentleman's support on that point. What is most startling is the fact that the Labour Government signed away one of our basic freedoms-the right to a fair trial-with that unbalanced agreement. The fact that we signed the treaty unilaterally is more evidence of its lopsided nature and the Blair Government's blind faith in, and service to, the United States. Although our Government were eager to shackle themselves to the document, the United States did not even bother to ratify the US-UK extradition treaty until 2006, even though for three years we were applying its provisions.
Is my hon. Friend aware that the reason for that was that the Irish lobby in the United States was able to exercise such pressure over the Senate that it declined to ratify, on the grounds that suspected Irish terrorists might be extradited to the United Kingdom to face prosecution?
I am aware of that; I am grateful to my right hon. and learned Friend for making that point.
The point has been made about the nature of reciprocity. The hon. Gentleman might also be aware that under the terms of the US-UK extradition agreement, in the United States the definition of the political offence is left to the Executive branch to determine, whereas in this country it is determined by the judiciary. The hon. Gentleman might think that that raises some continuing concerns about how that might be applied in practice.
The hon. and learned Gentleman makes another point about the unbalanced nature of the treaty. I say advisedly that it is an unequal treaty, and I am taking account of the historical context. It is the sort of treaty that one normally sees between an imperial power and a satellite and, frankly, I find it astonishing that any British Government should have agreed to it. I am at a loss to know why David Blunkett, who was then the Home Secretary, bound the UK to an arrangement-
Order. It is a minor point, but the hon. Gentleman is supposed to refer to Members of this House by their constituencies, not by their names.
The then Home Secretary, Mr. Blunkett, agreed and bound the UK to an arrangement that lacks reciprocity and places higher burdens on UK requests than on those from the US. What was the justification? We have not seen any here. What was the purpose? Perhaps a more fitting question is, "What was the incentive?" There has been no clear answer-except for the rather novel doctrine that denies the existence of any imbalance. I note, however, that in expressing that view, the Home Secretary signally failed to make a commitment to place his legal advice in the Library of the House, although I challenged him to do so.
Let us be clear about what the treaty does. Article 8 removes the requirement for the US to provide prima facie evidence when requesting extradition from the UK, yet article 8, section 3, subsection (c) still requires the UK authorities to provide the US with "a reasonable basis to believe" that the US national whom they are seeking to extradite committed the offence. The key point is precisely the one that the Home Secretary made about facts: it is simply ludicrous that this Government are prepared to afford our American counterparts greater protection than they do our own citizens.
In the past, of course, the Government have said that the Americans have the small matter of their own constitution, which insists on probable cause and constrains what they can do. Quite. The US constitution is one of the finest pieces of liberal drafting in legal history. US citizens have enormous advantages over British citizens in the guarantees of freedoms and the checks and balances on arbitrary state power that the US constitution affords, but that is not an argument for ditching our safeguards, weak and feeble though they are in comparison. It is surely an argument that Ministers should have taken even more care to defend UK citizens' rights, precisely because we do not benefit from a written constitution.
This is a practical and a moral issue. Even when it comes to extradition to a state where the death penalty exists, we did not see fit to impose an absolute refusal on our duty to extradite-even to Texas, where the death penalty is rife, or, in the past, to Illinois, where a retiring governor was so distraught by the evidence that he had sent so many innocent men to execution that he pardoned everyone on death row.
Even faced with those appalling examples of an affront to the settled will of this House that we will not contemplate the death penalty, we still allow extradition to American states that carry out that objectionable practice; the treaty merely says that we "may refuse". I suspect that the Home Secretary wanted to intervene to make that point, so I shall let him go ahead.
Extradition is barred if there is a risk that the death penalty may be carried out. That is what the treaty says.
My understanding is that the treaty says that we "may" refuse.
Once extradited, British citizens are unlikely to receive bail while they wait for trial because they are seen as a flight risk, which means that they can spend a substantial period pre-trial in prison. I am also informed that many of those extradited will come under extraordinary pressure to plead guilty to minor charges in order to escape a long trial and extended pre-trial detention on major charges. Where is the justice in that? Where are the protections for our citizens? If the Home Secretary regards that practice as fair in a system of justice, why have he and his predecessors refused to introduce it in British justice? It seems to me that he has a real case to answer.
Given all the evidence against the fairness and equality of the treaty and the motion that we are debating here today, it is perhaps surprising that the Conservatives did not oppose the treaty at the time. We did not receive support from the Conservatives when we attempted to secure the withdrawal of the name of the US from the offending statutory instrument in the other place in December 2003. Instead, the Conservatives put their
"trust in the judicial system of our closest ally"-[ Hansard, House of Lords, 16 December 2003; Vol. 655, c. 1068.],
largely abstaining in the votes both in the other place and in this House, with some honourable exceptions among their Back Benchers. I can only assume that the Conservatives no longer have such trust in our ally, given what they have been saying about certain cases in recent weeks. What we have here smacks just a little of Conservative opportunism. Because the Daily Mail has, quite rightly, taken up case of Gary McKinnon-I pay tribute to that newspaper's campaigning zeal-the Conservative Front Benchers have snapped to attention. General Dacre's wish is Lieutenant's Grayling's command.
The Liberal Democrats have consistently opposed the extradition arrangements with America. We spoke and voted against the orders implementing our end of the treaty in December 2003. In 2006 we tabled a Bill to restore the need for prime facie evidence to be provided by US authorities when requesting extradition. More recently, we made a pledge in our freedom Bill to ensure that the treaty is redrafted immediately. We did all that because we believe the Extradition Act 2003 is manifestly unfair to British citizens and those who have been caught up by the treaty, such as Gary McKinnon.
The Government need to renegotiate the treaty immediately and make the extradition test reciprocal. They should also introduce proper parliamentary scrutiny of treaties and amend the royal prerogative so that such an arrangement can no longer be entered into without meaningful reference to Parliament. That is the least they can do. We will back the Conservative motion today, even though we would prefer more detail and more commitment. We welcome damascene conversions to good causes, and we only hope that our new allies in this matter are not fair-weather friends of the freedoms that British citizens should enjoy.
I am pleased to follow Chris Huhne. I am not a recent convert to the cause of Gary McKinnon: he is my constituent and I have been campaigning for him for three years. I welcome the support for Gary McKinnon from the Liberal Democrats and Members of other parties. Mr. McKinnon's case brings into sharp relief the problems caused by the operation of the Extradition Act 2003 and the treaty.
I shall respect Mr. Speaker's direction and not base my remarks wholly on the case of Gary McKinnon. However, it is important to recognise that Mr. Speaker's direction on sub judice matters relates to the challenge to the DPP's decision not to prosecute, as opposed to the challenge to the decision on whether the Home Secretary should have taken account of Mr. McKinnon's condition of Asperger's syndrome, which on its own the House would have been free to debate fully.
I was worried to hear the Home Secretary trying to pick and mix justifications for the operation of the extradition treaty. We thought that we had moved on from a Home Secretary who trumpets the Government's terrorism-fighting credentials and focuses only on terrorists whom we all want to be prosecuted and extradited. We thought that we had moved on from a Home Secretary who only talks about fighting on behalf of the innocent. What we are all concerned about is justice-justice for the innocent and for the guilty. That is as important for Gary McKinnon, who has not sought to hide his guilt, as for anyone else. We are concerned about proper due process.
One would have thought that the Home Secretary had learned from his predecessors' mistakes. One of them-Mr. Blunkett-has come on board and acknowledged the deficiencies of the 2003 Act, of which he was very much an architect, as it affects Gary McKinnon. During the passage of the Bill in 2003, no one in his right mind would have used as the centrepiece of his argument the case of Gary McKinnon-someone who has the severe autistic condition of Asperger's syndrome and is now the subject of this unbalanced process.
I do not propose to go into the details of Gary McKinnon's case today; nor will I attempt to defend his actions-I doubt that any hon. Member would do so. What I want to do is defend Mr. McKinnon's right to justice and that of others who become victims of the 2003 Act and the treaty. The Home Secretary talked about causes célèbres, but Gary McKinnon is the last person whom one would promote as a cause célèbre. He shuns publicity in many ways: his condition makes him introverted and he shies away from communicating. He needs others to speak up on his behalf. I am pleased to do that as his Member of Parliament, and others have also done so. I commend the Daily Mail for the momentum it has given to the campaign .
It is important to recognise that this is a matter of justice. I have an interest in having practised as a criminal solicitor for 11 years. I and others who have practised in the justice system recognise that although it is not perfect, it is marked by an historical determination to provide fair trial for defendants. Whatever we think of them as individuals, or whatever the community or any state thinks of them, they all have a right to a fair trial. Regrettably, those who do not fit in with the system-those who are vulnerable or mentally ill, or who have special needs-often cannot get justice, although they deserve it as much as anyone else.
The Home Secretary talked about safeguards. Those safeguards are plainly not in place. Whether we are dealing with one case or a number of cases, and whether we call them high profile or low profile, there needs to be justice and appropriate safeguards for all. That was not the case for Gary McKinnon, who was diagnosed late with Asperger's syndrome, and it is not the case for anyone else like him who has symptoms of compulsive behaviour, not communicating well, and not seeking to make the case for themselves.
The hon. Gentleman is making a moving plea on his constituent's behalf. He says that his constituent was diagnosed late; when was that diagnosis made?
It was made in August 2008. Decisions on Gary McKinnon and others in his position are subject to the Secretary of State's discretion and to the European convention on human rights. It is for the Secretary of State to determine whether that discretion should be applied in the case of those with Gary McKinnon's condition. It has been argued that it should be applied in Gary McKinnon's case, as in others, but the Secretary of State has chosen to ignore that. Although there have been concerns expressed by No. 10, it has chosen to ignore Gary McKinnon's particular condition.
The McKinnon case and others show the problems that occur when there is a challenge of the process. Gary McKinnon and others are left to look to the Home Secretary or the Director of Public Prosecutions for relief. The Home Secretary is saying, "I don't have to consider forum, because that is a matter for the Director of Public Prosecutions", and the DPP is saying, "We've decided to cede jurisdiction to the United States." That leaves any appellant, defendant, or whatever one calls them, to challenge via judicial review a DPP decision not to prosecute in this country, and to challenge the Home Secretary's decision, too-that is the case for Gary McKinnon. As should be clear to the Home Secretary, that shows the plain need for forum to be properly determined. It should not be left to applicants to mount a campaign, find legal advice and representation, and go through all the complicated procedures on the judicial review route. It clearly shows the need for proper consideration of forum, and the lack of consideration of forum in the current process.
I pay tribute-as others have done, both previously and today-to the work of the late Lord Kingsland, who will be sadly missed in the other place. Part of his legacy is an amendment that he supported, together with Baroness Hanham, to the Policing and Crime Bill. That amendment would deal with many of our concerns. Paragraphs 4 and 5 of the old schedule 13 to that Bill deal properly with two issues. The first is the issue of evidence and the conditions relating to whether a significant part of the conduct alleged to constitute the extradition offence was conducted in the United Kingdom. The second issue relates to whether an extradition would be barred if, in view of all the circumstances, it would not be in the interests of justice for the person to be tried for the offence in the requesting territory.
On the issue of the interests of justice, such a provision would allow the court properly to consider the applicant before them. In the case of Gary McKinnon or others like him, it could consider the fact that the applicant was severely autistic, and could consider the implications of that, not only for the defendant's understanding of the crime that they are alleged to have committed, but particularly with regard to the impact of the extradition process, the impact of the process taking place in another country such as the United States, and the impact of the sentence. The sentence would have a profound effect on people such as Gary McKinnon, particularly given the length of sentence proposed; it is judged that it could be up to 60 years. The provision would also allow bail to be considered carefully.
The example was given of the NatWest three, but that was an exceptional case, and should not be brought forward as a precedent-certainly not as regards bail-when we are talking about cases such as that of Gary McKinnon, who is penniless. The question of adequate representation would be a key factor in America. Also, the question whether there was confidence that the defendant would get bail, rather than be in custody before trial, perhaps for two years, would be relevant if we considered forum properly in this country.
The same is true of consideration of repatriation after sentence. Again, we heard the example of the NatWest three, in which repatriation took place after conviction. However, in the case of Gary McKinnon, there has been no assurance that that would happen, despite the fact that other countries have agreements with the United States on that subject. The Netherlands and Israel have, on behalf of all their citizens, come to an agreement, whereby their Home Secretaries would give a specific assurance before extradition that, on conviction, the person would be repatriated to serve their sentence in their country. Gary McKinnon does not have the benefit of that assurance, and nor do other citizens of this country, because the Government have not properly negotiated on behalf of their citizens to allow for due process and justice.
Prima facie evidence will not be considered; that point has already been debated today, and on other occasions. The Government ceded the part of the Extradition Act 2003 that has that requirement in it-a requirement to provide sufficient evidence to make a case. That requirement has been a fundamental principle of our criminal justice system, but the Government gave it away; the treaty makes a point of removing that requirement. That has had a crucial effect, but it would in many ways be remedied by the forum position, because consideration of forum would enable consideration of whether the offence or a significant part of the offence had been committed in this country. Currently, in cases such as that of Gary McKinnon, prosecutors do not have the evidence before them to enable them to come to a judgment, because the United States has it for its own purposes. The authorities in this country have only a partial picture on which to make a judgment. If the court had forum provisions, it could give proper consideration to whether a significant part of the offences and the criminality took place in this country, and could then form a judgment.
My hon. Friend Chris Grayling has given clear examples of other cases of cyber-attacks that led to prosecutions in this country-cases in which the evidence was before this country. There were the cases of Richard Pryce and Mathew Bevan, which came before Bow Street magistrates court. Charges were laid under the Computer Misuse Act 1990, and Pryce was convicted. As we have heard, he received a £1,200 fine. In the case of Bevan, no prosecution was brought forward in the public interest.
It is significant to hear what was said by Bevan:
"I was bullied at school and I found my little community and interaction through my computer...The hackers would all egg each other on. There wasn't anything malicious about it. If there was, I could have downed as many computer systems as I wanted. I was just really looking for anything about UFOs."
That is a similar situation to that of Gary McKinnon. What is different is that Pryce-Bevan was not prosecuted-was prosecuted in this country. That is not the case for Gary McKinnon.
The cases of Andrew Harvey and Jordan Bradley involved the spread of a global worm, which had a significant impact on the United States and Britain. Harvey received a six-month sentence, which was later reduced to two months, and Bradley received a three-month sentence. Significantly, in that case, there were conspirators in the United States. There was a direct connection with those committing offences in the United States, but Harvey and Bradley were dealt with in this country.
Without those reforming provisions, we are left at the behest of America. I do not wish to criticise America; it has managed to negotiate its part of the bargain. The problem is that this country has not done so. We have clearly ceded to America, and the Government need to own up to that. The Government amendment to the motion suggests that the tests that are applied
"are broadly equivalent given the differences between the legal systems in the two jurisdictions".
That is certainly at odds with what the Attorney-General said in debate on the Extradition Bill, as we have heard; I will not repeat her words. There is certainly a difference between the Attorney-General's recognising the imbalance in the extradition procedures and the Government's seeking to spin the line that the tests are broadly equivalent. That must change, in the interests of Gary McKinnon and others, so that there is proper justice.
I believe that in many ways the Home Office has a split personality. A week or so ago, it launched its cyber-strategy because it wanted to recruit computer hackers who could be of use to the Government. Lord West talked about "naughty boys" and, although I am not sure that Gary McKinnon would come under that definition, perhaps the Government should employ him. That would be better than letting him go off to serve a sentence in America, where he says that his prospects of survival are dim.
I want to conclude by saying that I very much stand up for justice for Gary McKinnon, who has become a victim of an unfair treaty. However, it is not just about him: people before him have suffered, and others will in future. The Government must do more than just shed tears when a petition arrives at No. 10. They must act to stop this extradition, and review this unfair Act.
I am sorry that he is not here, but I have to say that I was deeply disappointed by the new Home Secretary's performance. I had thought that he was a man whose natural common sense would have led him to come to the House with a recognition of the seriousness of the issue before us. Instead, he flatly refused to accept that the Attorney-General had given advice that was wholly contrary to what he asserted again and again. He prayed in aid the fact that he was not very bright-that, because he is not a lawyer, we ought to take his view of the law rather than that of the Law Officer herself. The Home Secretary went on to say that the Attorney-General was anyway not a Law Officer when she gave the advice, but a Home Office Minister. It is not good enough for him to come to the House and propose to begin his answer to a serious and polite debate in that way.
That is my first concern, but things got worse. Secondly, the Home Secretary went on to admit that he did not have the key figures that he was asked for in connection with the numbers of people extradited from the US to Britain, and the circumstances of each case. He had only the figures that suited his case: he had none of the other figures for which he was asked.
Thirdly, the Liberal Democrat Front-Bench spokesman asked the Home Secretary to put his advice in the Library, and he did not even have the courtesy to reply. The spokesman had to intervene again, yet he still did not get a response. Not only did the Home Secretary come to the debate unprepared; he came believing that hectoring and rudeness were suitable responses to what is a serious issue for many people around the country.
Fourthly, the Home Secretary was asked a direct question about the implications of the extra powers that the Government had assumed, and he did not know the answer. It seems to me that the right hon. Gentleman must be moonlighting, because he did not prepare for a debate in this House about a serious issue that many people have pressed repeatedly.
I know that the Liberal Democrats tend to tease people on matters like this, but they cannot tease me on this one. I have been concerned about it from the beginning, as a result of my experience of the US judicial system. I had a constituent who was an American citizen and who was on death row in Texas for more than 20 years. I went there to plead for his life, and I will repeat what a senior law officer of the state of Texas told me. He said, "Your ex-constituent may be innocent, but he is not a nice man and I don't want him on my streets. That's why he is going to be executed." Those were the words not of some gash prosecution lawyer, but of an official of the Texas court.
Many of us are not happy with how the system works in many American states. Of course it is true that this Government have interpreted the agreement to mean that they will not extradite people who might be subject to the death penalty, but my example illustrates that the American system of justice is not the same as the one in this country-or, dare I say it, in the rest of the EU. We are governed by the European convention on human rights, so it is reasonable to say that people have a right to be concerned when extradition to the US is raised as a possibility.
Does my right hon. Friend agree that a key source of anxiety about the US criminal justice system is that it imposes very substantial penalties on those who are found guilty? To people throughout the European continent, they often appear to be utterly disproportionate to the offence that has been committed.
I agree with my hon. and learned Friend. That is one of the three things that I am concerned about. First, I am concerned about the concept in many parts of the US that the real purpose of the law is to get off the streets people with whom the law does not hold. Secondly, I am concerned that the punishment is therefore very often out of line with anything that we in Europe would think acceptable. My third concern has to do with the concept of plea bargaining. People in Europe think that those who plead guilty are in fact guilty, whereas in many cases they plead guilty merely because the alternative is very much more serious. Such people will have learned from their lawyers that, especially for those who are not American, to stand out is to risk very long prison sentences indeed.
I see complacent smiles on the faces of the Minister for Policing, Crime and Counter-Terrorism and his Parliamentary Private Secretary, but as far as British justice is concerned, it is not good enough for them not to take seriously the fact that we are in this House above all to defend the freedom of the people of Britain. I want to ask the fundamental question: what were the Government doing signing a treaty that was not reciprocated? On what possible basis could they have done so?
I have real worries about the nature of the treaty anyway, but it cannot be fair to sign a treaty when one side has a higher degree of proof requirement than the other. I would rather take the tutored views of the noble Baroness Scotland than the admittedly untutored and-as far as I understand it-largely unprepared views of the Home Secretary. I want also to say a word about the European warrant.
Before the right hon. Gentleman moves on, will he confirm something that he has just said? When the US was being considered for designation as a category 2 country for the Extradition Act 2003, the Conservative spokesman in the House of Lords said that his party had enough faith in the US judicial system not to be worried about the unfair treatment that British citizens would face. Given what the right hon. Gentleman and Mr. Grieve have just said, will he confirm that the Conservatives no longer agree with the view expressed in the other place?
One of the joys of being on the Back Benches is that I did not have to agree with that view in the first place. I therefore do not have a problem, although I would not have agreed with that remark even if I had been on the Front Bench. However, there is a thing called learning, and it means that our practical experience of the Extradition Act leads us to say that it needs to be looked at again.
Before I finish, I want to say to my hon. Friend Mr. Shepherd that this matter does relate to the European treaty. We belong to a Community-a Union that we support-whose members seek to operate together. In those circumstances, it is not unreasonable to have a mechanism that shortens the period needed for extraditing a person from one member country to another. I have no difficulty in accepting that. I have been through the list and do not see any cases that disturb me, except those where one country's law is wholly different from another's on a particular point. Chris Huhne and others were right to draw attention, for example, to the question of holocaust denial. One can understand precisely why there is a law on it in Germany, but why there might not be somewhere else. That is a perfectly reasonable judgment to make, and we need to have a mechanism to overcome it, but in general there is no problem with the European arrest warrant. That has been proven by the period that has elapsed. What has not been proven is that there is no problem with the British-American agreement, and I wish to end on that. The problem with the agreement is that it leads people in Britain to believe that this country will do anything that the United States asks, without being prepared to stand up for its own people.
I was at a Home Affairs Committee meeting with my right hon. Friend Keith Vaz, which is the reason why I have not been present for the entire debate.
Is there not a danger that the situation creates anti-US feeling-a prejudice? Many people who would not otherwise be, or have no reason to be, prejudiced against the United States will now be rather anti-American for the reasons that we are debating.
The hon. Gentleman has pre-stated what I was going to say. As somebody who is not anti-American but believes strongly in the relationship between Europe and United States, I do not want issues to get in the way which suggest that it is proper to refer to the relationship as "imperial"-something that the hon. Member for Eastleigh, who spoke for the Liberal Democrats, mentioned. We need to make it clear to the United States that we are partners not subjects. There is a constant refrain. We are told, "America cannot do this because of the constitution", but we have to do something. The business about ratification is universal. America still has not ratified the convention on international trade in endangered species, which it has signed. It has not done so because it does not think that partnership requires reciprocity.
I say to the Government that the reason why I feel so passionately about the issue is not just that I want to defend the human rights and freedom of my constituents and of the people of Britain, but that we need to bring it home to our American partners that they must treat the rest of the world as they expect the rest of the world to treat them. Reciprocity is a serious issue, not one that can be covered up by an argument between the Home Secretary and the Attorney-General about the precise details of what the wording under discussion means.
I finish where I began. As the Home Secretary is not present, I hope that the Minister will take this point back to him: the Home Secretary's chatty, jokey little comments at the beginning of the debate demeaned him. He is the Home Secretary of the United Kingdom. He is not here to perform second-rate, school-debating tricks on a serious matter that concerns people's freedoms; he is here to uphold the most ancient rights of a nation of which he is fortunate enough-for what will be a very short time-to be Home Secretary.
It is always a pleasure to follow Mr. Gummer, this time after his philippic about schoolboy debating techniques. I remember as a student at Oxford university attending perhaps my only Oxford Union debate. The right hon. Gentleman came in to represent the Conservative cause, as a former president of the Cambridge Union, and exactly the same vim, vigour, vivid metaphor and utter wrongheadedness that we sometimes hear today were on display all those years ago.
One paradox of the debate is that many of those who have spoken are convinced pro-Europeans, and part of the debate is about the application of international rule of law. Mr. Burrowes made for his constituent a very moving and compelling plea that does him and the cause honour. The hon. Gentleman said that he spent many years as a solicitor practising in criminal law, and were I ever to find myself in trouble I should be delighted, after that excellent speech, to have him defend me.
However, I was slightly alarmed when I heard that the gentleman-who is not mentioned in the motion but about whom we are talking and the Daily Mail is campaigning-was diagnosed with his distressing condition only last year. One gets a slight hint of the famous Ernest Saunders defence: he said that he was suffering from Alzheimer's to get off a criminal prosecution, but the moment that he was out of court, he somehow skipped off and his memory came back with marvellous vigour.
It is quite important that we read into the record article 94 of the treaty, on the death penalty. I was astonished that Chris Huhne had not read the treaty. Article 94 states:
"The Secretary of State must not order a person's extradition...if he could be, will be or has been sentenced to death for the offence concerned".
That is not the treaty, but the Extradition Act 2003. They are two different things.
The hon. and learned Gentleman should understand that treaty is law and law makes treaty. The law of our country, as defined in Parliament, is explicit on the point.
We do not have much time. I am concerned that we should not send a signal to all our friends in America that one newspaper and one very hard cause will overturn the need to speed up extraditions between our two countries.
A case comes to mind; it does not concern my constituents, thank goodness, but it is of great concern in Yorkshire. It involves Simon Sheppard and Steve Whittle. I doubt whether Members know those names, because this grave case has been given absolutely no national publicity. Last year, those two gentlemen were convicted at Leeds Crown court of publishing anti-Semitic and racist material on the web, including pictures showing Jews being cruelly disfigured. There were up to 4,000 hits a day. They also published a book called the "Tales of the Holohoax"-we get the sense of what they were trying to argue-and they sent it to synagogues.
The men were arrested, fairly tried and convicted, but they jumped bail and fled to the United States. In Los Angeles, they claimed that they should be allowed to stay in America under the provisions of the first amendment to the US constitution which gives the absolute right to free speech. Had they been Americans and published the material in America, they could not have been prosecuted. One of the big problems for those of us who campaign against anti-Semitism and racism on the net is that the United States cannot take any control of the internet service providers.
I am glad to say that, having examined the case and heard the powerful plea that the men should be allowed to stay in America under the provisions of American law, the courts in Los Angeles said no. They said that the men were British citizens who had committed a crime in Britain and should be sent back. Last Friday, Whittle and Sheppard were sent to jail-for three and four years respectively, I think. That was an important victory in the fight against anti-Semitism, but it could not have been won without the willingness of the Americans to rise above their own constitution and free speech amendment and co-operate with us.
There is the similar case of Mr. Hussain Osman, who was one of the gentlemen involved in the 7/7 outrages. He fled to Italy and asked to be defended from British justice, which he said was unfair. The hon. Member for Eastleigh, who is not in his place, referred to the Council of Europe's observations about the justice systems in other countries. I serve on the Council of Europe and know something about it; its observations on aspects of British justice and police procedures do not always make pretty reading. We should look at motes and beams before becoming contemptuous of the legal, judicial, police and investigating systems in other countries.
I understand that Mr. Grieve now accepts the European arrest warrant, although with many qualifications. He was not involved in the debates at the time, but when I was Minister for Europe the Conservative party opposed the warrant tooth and nail-so did the Daily Mail and The Daily Telegraph. If the newspapers opposed to Europe, which are now legitimately campaigning for the constituent of the hon. Member for Enfield, Southgate, and the Conservative party had had their way, there would have been no European arrest warrant and Mr. Osman would still be protected in Rome by civil liberties lawyers.
We claim to be superior in all regards to all other countries, but let us not forget the case of Rachid Ramda. How many Members know who he was? He was an Algerian Islamist living in London who was arrested as a financier of the Paris Metro bombings of 1995, which were a huge shock in France. There was clear evidence linking him to the attacks. For 10 years, he was protected by our judges. The organisation Liberty said, "He can't go back to France. There is no justice there-they'll beat him up and bash him over the head." The lawyers made a fortune defending him. Whitehall defended him. The Conservative Home Secretary at the time, Mr. Howard, accepted those arguments-so, I am sad to say, did a Labour Home Secretary, until my right hon. Friend Mr. Clarke became Home Secretary and, in 2005, sent him home. At last, after 10 years of being protected by the British legal system, he had to face his accusers, and the families of the men who died thanks to the money that he was sending over to finance that terrorist plot. He is now serving a life sentence in prison.
We need an internationalisation of the fight against international criminality, whether it is terrorism, paedophilia, race hate or money laundering. I could not believe the arguments we heard earlier-that the men who were responsible for destroying the lives of scores of thousands of Americans in the Enron swindle were just copping a plea, that they had no real involvement and that they just pleaded guilty because it was a way of getting a slightly lower sentence. When are we going to understand that we need international law to deal with the swindlers, fraudsters and banksters who are destroying the lives of ordinary working people in America, in Europe and across the world?
We need, if anything, to extend and increase the idea of international arrest warrants and of rapid extraditions-no, not when the death penalty is at stake; I fully accept and understand that. I would be happy if the United States authorities could give some indication about the case of the constituent of the hon. Member for Enfield, Southgate, given that there is talk of a 60-year sentence. We heard the same with the NatWest three, but in fact it was not that long. If he stays in this country, I will have no problem with that; we have children, and we defend them as best we can.
We must understand that every nation has different rules of law. There are different rules of law, evidence and court procedures in Scotland and in England, but that does not mean that we have to have extradition between our two countries. The House and the nation needs to come to terms with the fact that the rule of law no longer has a national flag stamped all over it.
The message to the people of America is that the House of Commons, and above all the Conservative party, which has moved this motion, have nothing but contempt for American law and the rights of the American people. If the American people feel that a grave crime has allegedly-I stress the word "allegedly"-been committed that threatens their national security, then we here, praying in aid the "civis Britannicus sum" arrogance of Palmerston in the 1860s, can stop justice being done. The Conservatives have been cynical and opportunistic in tabling this motion; the Liberal Democrats, as ever, have been Liberal Democrats.
I had not thought of Mr. MacShane as a Robespierre of liberty, but I would not look to him to protect me in the face of an extradition order in any other country.
It is useful that the Home Secretary has come back at this moment, because this all goes back to something that happened long before his time as Home Secretary. In March 2003, while Parliament was discussing the Extradition Act 2003, the then Home Secretary signed a new extradition treaty between the United Kingdom and the United States. The treaty was subsequently published as a Command Paper in May 2003, after the legislation had been enacted. The most significant difference between the new treaty and its predecessor treaty, which was signed in 1972, lay in article 8 of the new treaty, which set out extradition procedures and required documents. The previous treaty required an extradition request to be accompanied by such evidence as would justify the person's committal for trial according to the law of the state from which extradition was sought, including evidence that the person requested was the person to whom the request warrant referred.
For requests made by the United Kingdom to the United States, the new treaty required such information as would provide a reasonable basis for believing that the person sought committed the offence for which extradition was requested-"probable cause". There is no corresponding requirement for requests made by the United States for extradition from the United Kingdom.
The 2003 treaty between the UK and the US did not remove the need for the US to provide prima facie evidence at extradition hearings in the UK. That was achieved by the designation order made in this House under the 2003 Act on
When the Extradition Act 2003 (Designation of Part 2 Territories) Order 2003 was debated in the House of Lords on
"Every country with which we currently have general extradition relations is being redesignated."
She then turned to what she called
"the thorny issue of the United States",
"If this order is approved, the United States will no longer be required to supply prima facie evidence to accompany extradition requests that it makes to the United Kingdom. This is in line with the new bilateral extradition treaty signed by my right honourable friend the Home Secretary earlier this year.
By contrast, when we make extradition requests to the United States we shall 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. The fact is that under the terms of its constitution the United States of America cannot set its evidential standard any lower than 'probable cause'."
She said of other countries:
"For all of these countries there is no change to the evidential standard which they will have to meet."-[ Hansard, House of Lords, 16 December 2003; Vol. 655, c. 1062-1063.]
That is at the heart of what this is all about. There was no requirement to drop the prima facie rule. It was an act of the Home Office-God knows why the Home Secretary was negotiating an extradition treaty when it is normally the function of the Foreign Office, but it was nevertheless done. It was in the designation orders of December 2003 that we changed the whole process, which has given rise to indignation and a sense of injustice.
All those matters were debated on
I will be very brief, because I know that time is short. I begin with an apology. The Select Committee on Home Affairs met earlier, and my hon. Friend Mr. Winnick and I were there, so we missed part of the debate.
I have only three quick things to say. On my way to the debate, I bumped into a previous Home Secretary, my right hon. Friend Mr. Blunkett, and asked him whether I could quote what he had said to me about the time when he signed the treaty. He said that I could. He is on record as saying that when the treaty was signed we did not get the best deal, and that frankly the Americans got a better deal than we did. That is why there is a difference between the standard of proof required to get someone over from America and the standard of proof required when the Americans are seeking to get someone from this country.
I pay tribute to Mr. Burrowes for what he has done for his constituent. I appreciate that we are governed by the sub judice rule, though it was waived briefly for the purposes of the debate. I tried earlier to sign the early-day motion that the hon. Gentleman tabled about Mr. McKinnon, but it was withdrawn because it was out of order.
There is a time when the House and, indeed, the public, should be listened to. Of course, some of us went along with the Government on 42 days, even though my hon. Friend Mr. Winnick warned me that the meaning of the slightest word in a Select Committee report could be widened. He was right. In the discussions on the Gurkhas, the Government again lagged behind public opinion and certainly did not take the will of Parliament into account, though as soon as Parliament expressed its view in a vote, they changed their mind.
This is another occasion when the Government should listen, and I am therefore minded to support the motion. It is a modest motion, which calls for a review of the Extradition Act 2003. It is important that we examine it, now that it has existed for five years, measure what it has achieved and ascertain whether we can improve it. The motion is not against Government policy-it would not undermine extradition to a friendly country that is an ally, but it would give us an opportunity to review what has happened, so that cases such as Mr. McKinnon's can be tackled in this country.
I greatly admire the Home Secretary, who appeared before the Select Committee yesterday. When I put it to him that he had the power to intervene and halt Mr. McKinnon's extradition, he said that he had no power to do that. I think that he has that power and that, if he sought a different set of legal advisers, they would tell him that. Surely the Home Secretary can exercise discretion in the public interest. Mr. McKinnon, who has already admitted to committing an offence, should be tried in this country. I urge, even at this late stage, the Home Secretary or the Attorney-General to write to the Director of Public Prosecutions and ask that that happens. That is the sensible, pragmatic way in which to deal with the situation, and I hope that the Government will take that course of action.
I apologise to my hon. Friends who have made powerful contributions if I do not have time to dwell on each one at length. I am particularly grateful to my hon. Friend Mr. Burrowes, who has so eloquently championed Mr. McKinnon's case.
Hon. Members of all parties accept that it is desirable for extradition to take place to maintain international justice. Some countries do not have it-apart from under the European arrest warrant, France will not extradite its own nationals-but we have never adhered to that principle, and we do not seek to advocate it.
In it is inevitable, given that extradition is a human process, that it may contain errors, it is for the Government, in setting out parameters, to try to ensure that those errors are minimised. In adopting the 2003 Act, the Government moved fundamentally away from the previous principle that there would be close scrutiny of each extradition application, from wherever it came. Before that, there was a need to show a prima facie case: the evidence had to be rehearsed in court and the Home Secretary also had administrative powers to prevent miscarriages of justice. I fully accept that, consequently, many extraditions took far too long, and the Home Secretary has my sympathy, because that was an intolerable situation that needed rectifying.
In adopting the 2003 Act, however, we have moved far too far in the opposite direction. We have extradition on reasonable suspicion, which is no more than a statement of fact, on which it is sufficient to ground an offence. That applies whether it is the United States or any other category 1 or 2 countries. In this country, if a reasonable suspicion is found not to exist, there is at least the remedy that the police officer who came upon the unfounded suspicion can be prosecuted for false arrest and malicious prosecution. No such protection exists once a person has been extradited. We effectively have to take it on trust that the reasonable suspicion exists elsewhere. That is why, to make the precise point, I told the Home Secretary earlier that the problem goes way beyond the United States. In some ways, it is unfair to pillory the United States Government, who have simply taken advantage of the structures that we have put in place. Whether we are talking about that or, desirable as I am sure many of its consequences have been, the European arrest warrant, each has that underlying issue, which merits being revisited.
We then have to turn to the particular problems that appear to exist in our treaty with the United States and in how it is operated. The point has been made quite forcefully that true reciprocity in the US-UK treaty does not exist. In particular, it does not exist because of the differential standards. There may be good reasons why the Government had to go for those differential standards, but they cannot escape the fact that there are safeguards for a United States national being extradited to this country that do not exist in the opposite direction.
Secondly, we cannot escape the unfortunate fact, which has been touched on in these debates, that, although nobody would question its desire for fairness, to ensure that only the guilty are convicted, the United States criminal justice system has some onerous aspects to it. That is particularly true in relation to plea bargaining and the astonishing disparity of sentencing between those who have engaged in plea bargaining and those who have not. That gives rise to genuine fears that justice may not be done, because people may be coerced into pleading guilty because they are so frightened of the consequences on conviction, which, particularly for financial offences, most people on this side of the Atlantic would consider to be dramatically disproportionate to anything that would be inflicted in this country.
To take an example that does not concern extradition, Chantal McCorkle is a lady who received 24 years in prison, which was subsequently reduced to 18, for a fraud on a matter that, if it had come to the courts in this country, would have been unlikely to attract a sentence of more than three or four years in prison. The Government have a particular responsibility in that respect.
Then there is the fact that the United States prosecutors have been remarkably creative in interpreting the new regime that is in place to expand their jurisdiction. We have discussed and debated the issue of forum. That is because the United States prosecutors are now exercising an almost universal jurisdiction, particularly in the case of offences that may concern the internet, where messages frequently go through servers around the world. That enables them to extradite people to the United States for offences that one could argue were far more closely connected with this country, yet where no decision in this country has been made for prosecution or, indeed, where no complaint has even been made.
That must inevitably give rise to disquiet about the fact that under the new system individuals, where the prosecutors have decided in this country that there is no possible reason to proceed-and where, if they did proceed, those individuals would receive a rather light sentence-can be extradited to the United States, where they are likely to receive a sentence that is drastically and dramatically different from that which they would receive here. The Government cannot escape responsibility on that.
As an example, in the Morgan Crucible case, which involves my constituent Ian Norris, the United States has sought extradition for an offence and failed, because that offence does not constitute dual criminality, because it was not an offence at the time that it allegedly took place. However, the United States is still seeking extradition on the related matter of obstruction of justice, when, as the law currently stands, there appears to be no safeguard to ensure that, if a trial took place and he were convicted of that offence, he would not be sentenced for the original offence.
I am most grateful to the hon. and learned Gentleman for giving way, and I will be very brief. Is not another factor that we ought to take into account the fact that it was originally suggested that the current treaty was a response to terrorism cases? Mr. MacShane pretended again that it dealt only with grave cases, but in fact it applies to any case for which the maximum sentence is 12 months' imprisonment. That includes a lot of cases that are not grave cases.
I agree entirely with the hon. Gentleman. However, I rather ignored the remarks that Mr. MacShane made, especially when he resorted to such cheap and revolting statements about autism as to induce in me a revulsion about what he was saying.
I simply say this to the Minister. Anxieties on this subject have been raised repeatedly in this House. That is not some cheap polemic: those of us who are friends of the United States wish to see a system in place that commands widespread acceptance. However, it really is time that the Government listened to the anxieties being expressed, particularly because mechanisms are available to address the problems. An example is a provision introduced in the other place by my noble Friend Lord Kingsland-whose passing is much regretted and lamented-and other noble Lords that would allow forum to be considered. This would provide considerable protection, but the Government have shown no inclination to put the provision on to the statute book, even though the mechanism now exists for that to happen. Furthermore, a review could undoubtedly take place that might not even require the renegotiation of the UK-US treaty, because I believe that our own national safeguards could be introduced without jeopardising it.
Those are the issues that the Minister needs to address, and I have set out the sensible points that a sensible Parliament ought to be debating. Simply coming to the Dispatch Box and having a rant about this being a cheap matter does not help, because the issue is not going to go away. Most people can apply their common sense to matters of criminality. They feel a revulsion against it and a desire that it should be stopped, but they also want to see fairness. I have to say to the Home Secretary that, at the moment, there is a strong perception that we have created a system that might, on occasion, be very unfair. It is our responsibility in this House to try to do something about that. I commend our motion to the House.
We have had an interesting and full debate this afternoon. It has been characterised by some strong views being expressed about the position of the Extradition Act 2003 and the position of several individuals under that legislation. We have heard strong speeches from Mr. Gummer, from Mr. Shepherd and, helpfully, from my right hon. Friend Keith Vaz, all of whom put forward arguments in support of the motion.
The judgment that my right hon. Friend the Home Secretary and I have had to make is whether we believe that the review of the Act requested in the Opposition motion is justified. The motion states that
"the Extradition Act 2003 is being undermined by a series of high profile cases that are jeopardising confidence in the system".
My right hon. Friend and I have made the judgment that we do not believe that to be the case, and I will try to illustrate our reasons for doing so. To support a review, we would have to say that we believed that public confidence was being jeopardised and that the Act was being undermined. As my right hon. Friend has said, we believe that the Act is operating in a fair and effective way, providing modernisation of the extradition treaty between ourselves and the United States, and undertaking a valuable function for our community.
The treaty came into force, following the Act, on
The Home Secretary who signed the treaty at the time-my right hon. Friend Mr. Blunkett-is on record as saying that we did not get the best deal from the Americans. Surely that must mean that it is time to review the Act.
I have to say that I have not heard my right hon. Friend Mr. Blunkett say that. I believe that the treaty is an effective modernisation of this aspect of the relationship between the US and the UK.
The reason why we did that is quite simple-and I believe that Mr. Grieve agrees that we need effective judicial co-operation between the two countries to fight serious and organised crime, and terrorism. We need a treaty that is fair, balanced and effective, and I believe that we have one.
I do not believe that the suggestions that the treaty is in some way unfair or unbalanced are true. We have looked at the two judicial systems and, as the Home Secretary has said, we have examined the evidence test in both countries and-this relates to the point made by Mr. Shepherd-reached the conclusion that we need to look at how judicial systems that are different can be brought together in the best possible way.
I am grateful. Does the Minister accept that even those who will vote with the Government this evening are disturbed because many of our constituents feel that the relationship between us and the United States in respect of the operation of this treaty is unfair to people in this country?
If my right hon. Friend had attended the debate, he would have heard the Home Secretary say strongly that we believe that we are trying, as far as we can with two different judicial systems, to ensure that we have parity.
UK prosecutors are required to demonstrate "probable cause" in the UK courts. This is a requirement of the US Bill of Rights. In American law, this is described as
"facts and circumstances which are sufficient to warrant a prudent person to believe a suspect has committed, is committing, or is about to commit a crime".
Similarly, US prosecutors are required to demonstrate "reasonable suspicion" in the UK courts. As the Home Secretary said earlier, this has been defined in UK case law in the following terms: that the
"circumstances of the case should be such that a reasonable man acting without passion or prejudice would fairly have suspected the person of having committed the offence".
The similarity is there.
We have a number of key legislative safeguards in place. Identity, for example, is one. Extradition is barred if the judge is not satisfied on the balance of probabilities that the person before him is the person sought. Dual criminality provides another safeguard, as extradition is barred if dual criminality is not established. Evidence must be there, as I have outlined. Double jeopardy is another, as extradition is barred if the person has already been convicted or acquitted elsewhere. Other criteria include injustice due to ill health or passage of time; injustice due to domestic proceedings; specific legislation on the death penalty; and specific legislation on onward extradition from another state to another country. All those are real and proper safeguards.
I accept that Mr. Burrowes made a passionate case on behalf of his constituent, Gary McKinnon. The hon. Gentleman will know that I cannot comment in detail because judicial reviews are before the House, but it is important to put it on the record that so far, the US request has faced a challenge by magistrates courts, the High Court, the House of Lords, and now the European Court of Human Rights in Strasbourg. Even now there are separate judicial reviews being undertaken. How much more does the process require? There are safeguards in place and opportunities to consider those matters. It is important to stress that the Home Office has not ignored Mr. McKinnon's medical condition. That has been considered in detail today by my noble Friend Lord West, who is dealing with these matters.
How would a proper relationship between the United Kingdom and the United States be prejudiced if both countries had to meet the same standard-probable cause?
The key to our discussion is that we believe that there are two judicial systems that are self-evidently different. Within that, we have tried to marry up together the evidential tests for the US Government and ourselves. As we have made clear, the extradition agreements with the US are, in my view, not only fair and balanced, but also ensure that we do what we are trying to do, which is bring individuals on both sides of the Atlantic to justice, when those matters are required to be examined before the courts.
The suggestion has been made that a number of high-profile extradition cases have been unbalanced and unfair. I cannot accept that. I believe that the evidence on these matters is important. At first glance, the Opposition motion may look relatively attractive and it might be thought that a review could easily be undertaken by my right hon. Friend. The evidence base for that review can be provided so that the hon. Member for Epsom and Ewell can understand it.
The motion refers to "jeopardising confidence", and says that the Extradition Act is "being undermined". Those are not presumptions that I wish to make. The Opposition's views are not shared by my right hon. Friend the Home Secretary and me, and I commend the Government amendment to the House.
Question accordingly negatived.
Question put forthwith (
Question agreed to.
The Deputy Speaker declared the main Question, as amended, to be agreed to (
That this House notes that it is beneficial to the public to be able to extradite people accused of crimes in another country who might otherwise escape justice and that extradition treaties such as the US-UK Extradition Treaty 2003 work to the significant benefit of both countries; notes that the UK must demonstrate 'probable cause' to the US courts while the US must demonstrate 'reasonable suspicion' to the UK courts; notes that these tests are broadly equivalent given the differences between the legal systems in the two jurisdictions; recognises the view that ascertaining whether prosecution ought to take place in the UK should be considered by relevant prosecutors at the beginning of the process and not by judges at extradition hearings, which could result in serious criminals evading justice; and further notes that since 2004, people have been convicted on murder, manslaughter and smuggling charges in the UK following extradition from the US, whilst those charged with murder and terrorism offences have been extradited to the USA.
I have now to announce the result of the Division deferred from a previous day. On the question relating to the East Midlands Regional Grand Committee, the Ayes were 277 and the Noes were 180, so the Question was agreed to.
[ The Division list is published at the end of today's debates.]