Police and Justice Bill |
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The Chairman: I allowed the hon. Lady to range wide of the clause, and some of the discussion may have taken place more appropriately under schedule 12. However, there is a degree of movement between the two, so I intend to stick to the amendments to schedule 12. If hon. Members want to contribute generally to any points that are not covered by the amendments, now would be the time for the general debate, and schedule 12 will just deal with the amendments specifically. I hope that have not confused everybody with that advice. Does the Minister wish to speak on clause stand part? Hazel Blears: I am happy to have a more extensive debate on the amendments to schedule 12. Question put and agreed to. Clause 39 ordered to stand part of the Bill. Column Number: 271 Schedule 12 Extradition Nick Herbert: I beg to move amendment No. 150, in schedule 12, page 110, line 11, at end insert—
The Chairman: With this it will be convenient to discuss the following amendments: No. 151, in schedule 12, page 110, line 13, leave out ‘19A’ and insert ‘19B’. No. 152, in schedule 12, page 110, line 31, at end insert—
No. 155, in schedule 12, page 115, line 18, at end insert—
No. 156, in schedule 12, page 115, line 18, at end insert
Nick Herbert: I am grateful for the opportunity to speak to the issue that the hon. Member for Hove (Ms Barlow) has raised—the imbalance in our extradition arrangements with the United States—which a number of my hon. Friends also raised on Second Reading. On 31 March 2003, the UK signed a new extradition treaty with the United States in order, according to the preamble,
The impact of that new treaty has already been profound. Since it was signed, the United States has sought the extradition of 44 alleged offenders, and 12 have already been sent to the US. The extradition of several others has been approved, but is awaiting appeal. For obvious reasons, I shall not comment on specific cases that may be sub judice. The important point is that, by contrast, Britain extradited only five suspects from the United States in the same period under the previous 30-year-old extradition treaty, including just one suspect in 2005. The imbalance takes a number of forms. First, the treaty has not been ratified by the United States Senate. The Under-Secretary of State for the Home Department, the hon. Member for Leigh (Andy Burnham), giving evidence to the Home Affairs Committee, said: Column Number: 272
That was optimistic, because the treaty has been vigorously opposed by Irish-American groups in the United States. Professor Francis Boyle of the university of Illinois went so far as to tell the Irish Echo recently:
At the moment, the United States Senate shows no sign of wishing to ratify the treaty. Mr. Robert Flello (Stoke-on-Trent, South) (Lab): Will the hon. Gentleman confirm my understanding that the Senate needs to vote by at least two thirds to one third to bring in the treaty? Nick Herbert: I do not know whether that is the case. The hon. Gentleman may be correct, but the point is that there is no sign of the vote on the treaty even being held. The treaty has nevertheless been applied unilaterally by our own Government. As a consequence, since December 2003, extradition requests made by the United States have not had to be accompanied by prima facie evidence that there is a case to be tried. Instead, the United States authorities merely have to supply the facts of the charge along with appropriate identification information. By contrast, the United Kingdom has to provide evidence of probable cause when making extradition requests of the USA. There lies the fundamental imbalance. Michael Fabricant: I should be grateful if my hon. Friend clarified one point. Much as I support the United States, I appreciate that he feels that the imbalance is wrong, but does he think that we were right to enter into a treaty under which, if the Senate ratified it, either party could simply ask for extradition without giving any reason for it? Nick Herbert: I shall come to that very point. It is wrong that there is an imbalance in the evidential requirement and that the United States authorities should be able to extradite someone having offering insufficient evidence. I will give examples of that shortly. We all understand that the reason for the evidential imbalance is that the requirement of probable cause is enshrined in the United States constitution. We could have maintained the same requirement ourselves, but we voluntarily gave it up. One practical consequence was reported in The Times on March 7:
So the evidential requirement placed on us prevents the extradition of people for sex offences from the United States. A second concern about imbalance is that under the treaty offences do not have to be committed, or even substantially committed, in the requesting state for
It is quite clear that the new treaty makes extradition possible where it would not have been possible before. In a statement made before the Senate Committee on Foreign Relations, the United States Department of Justice said:
Lotfi Raissi, an Algerian pilot arrested on holding charges in a US extradition request shortly after 11 September 2001, was released five months later when no evidence to support the request was forthcoming. That calls into question the validity of the new arrangements, which remove the safeguard of the prima facie evidence requirement in relation to the United States. Members of the Home Affairs Committee—I was one—questioned a senior district judge, Tim Workman, who leads on extradition matters in this country, about the Raissi trial, over which he presided. He was asked whether the current treaty would have resulted in the same treatment of Mr. Raissi. Mr. Workman said:
Mark Pritchard (The Wrekin) (Con): Does my hon. Friend agree that there is concern not only about the principle of the application of the law, but about the detail and the process that he is outlining? Rather than help the process, the Government’s proposals will increase people’s concern. Nick Herbert: There is no doubt that the operation of the treaty, which the amendments would redress and modify, has given rise to public concern. Such concern was not expressed about the previous extradition arrangements. Mr. Flello: Am I correct in understanding that the hon. Gentleman is less concerned about the ease of extradition as he is about the quality of justice on arrival in the United States? Nick Herbert: Some argue that the quality of justice in the United States means that we should be concerned about the imbalance in the arrangements, but that is not the line that I shall pursue. I shall focus on the fact that there is an imbalance in the arrangements, but I shall come to the issues that the hon. Gentleman raises Michael Fabricant: I suspect that I know to what the hon. Member for Stoke-on-Trent, South (Mr. Flello) is alluding. One might argue that there is no imbalance in the United States with regard to the justice that is delivered, and that that is why Camp X-Ray at Guantanamo Bay—a sovereign base, which is not part of the United States, but which is administered by it—must be used for its current purpose. Column Number: 274 Nick Herbert: I am grateful to my hon. Friend, but I shall not be drawn into discussion of Guantanamo Bay. Anomalous—to use the Prime Minister’s word—though the existence of that institution is, I shall concentrate on the specific imbalances that the new extradition arrangements create. I was referring to the case of Mr. Raissi. The attempt to extradite him under the previous arrangements was not successful, but he could be the subject of a new extradition request for which no evidence would be required under the new treaty. Mark Pritchard: Does my hon. Friend share my concern that the United States Government might use any new treaty, given the lack of equity with the provisions here in the United Kingdom, to extradite people for all manner of things, including alleged tax evasion? The argument is that beefed-up legislation is needed to combat terrorism, but it will be a catch-all measure, rather than used specifically to combat terrorism. Nick Herbert: My hon. Friend is correct that it is a catch-all in the sense that the extradition arrangements can apply to offences with a penalty of £1,000 or more, and that includes some relatively low-level offences. I shall come to the question whether the operation of the treaty and its introduction were largely about dealing with terrorist matters, but I agree with my hon. Friend. The fourth concern about the application of the new treaty is that it was, in effect, introduced behind Parliament’s back. It was announced in this country on 31 March 2003—the day that it was signed. Issuing a press notice that day, the former Home Secretary said:
There we have the Home Office’s favourite catch-all offence: any new proposal will deal with unnecessary delays in the current system and prevent criminals from exploiting loopholes. We have heard that justification during our proceedings on the Bill. That argument was advanced before any of us could see what was in the treaty: the text was not released until 21 May, nearly two months later and the day before the Whitsun recess. The text said that the treaty was intended to modernise and simplify the UK’s extradition arrangements with the United States. 12.30 pmThe Government contend that overall the provisions are, in the words of the Under-Secretary of State, the hon. Member for Leigh (Andy Burnham), “proportionate and fair”. I should like to deal specifically with some of the defences that the Under-Secretary has offered for the arrangements, and show why they are neither proportionate nor fair. First, the Government claim that they were working on an overhaul of extradition law long before 9/11, and that the treaty was not first and foremost a terrorist treaty. That point goes to the concern raised by my hon. Friend the Member for The Wrekin (Mark
He thus singled out terrorism, and at the time when he announced the treaty, before Parliament could examine it, he gave the clear impression that it was intended to deal with terrorism and other serious crime. The treaty, of course, changed the basis on which extradition can take place, as I have described, and, as I mentioned, instead of the list of extraditable offences it introduced a sentence threshold of just 12 months, which means that any crime that carries a sentence of more than 12 months in Britain or the United States is now an extraditable offence, without the necessity of setting out a prima facie case. As a consequence, more than half the extradition applications made by the United States under the new treaty last year related to white-collar crime. That is a concern, partly because making anti-competitive agreements has been an imprisonable offence in this country only since the Enterprise Act 2002, but some of the reported extradition requests have concerned directors accused by the United States of competition law offences prior to that date. That is because the treaty is in some respects retrospective. The Under-Secretary’s second suggestion was that the new arrangements have redressed the balance in evidential arrangements. I find it extraordinary that the Government can claim that the balance has been redressed. The evidential requirements beforehand were broadly balanced, but now, as I mentioned, it is possible to extradite UK citizens on the basis of identification only, without showing probable cause. Mark Pritchard: Does my hon. Friend share my concern that authorities in this country might use their time and resource to apprehend those against whom allegations of white-collar crime are made, when we know that tax evasion and fraud are on the increase in this country? Does he agree that it is perhaps better that we should start at home dealing with people who evade tax here, rather than trying to help the Americans? Perhaps we should help them later. Nick Herbert: I do not think that we should send any signal that serious white-collar crime should not be dealt with. It should be dealt with, but the question is first whether it can be dealt with in our courts and secondly whether we can be confident that it is being properly dealt with in another country, or that it is proper for that country to seek the extradition of people on the basis of laws that may not have been in force when the alleged crime was committed in our country. Column Number: 276 The use of identification only as the basis of extradition is dangerous. To realise that, we have only to remind ourselves of the case of Mr. Derek Bond, who was arrested in South Africa at the request of FBI officials on suspicion that he was a Mr. Derek Sykes who had defrauded people out of millions of dollars. It transpired that Mr. Bond was a retired charity worker who worked for the Rotary club in Clifton. It is worth reminding ourselves that under the operation of this treaty, had Mr. Bond been in the United Kingdom he would have been successfully extradited to the United States, because all that it would have had to do was to show the evidence that a crime had taken place and to identify Mr. Bond. It would have been the FBI’s word that Mr. Bond was indeed the suspect. The third concern that the Under-Secretary sought to address was that the Government misled Parliament. He said that that was not the case. In fact, when Lord Falconer of Thoroton announced the signing of the new treaty he said:
We now know that that is not the case and that, contrary to the precise words that he used, the United Kingdom Government went ahead with implementation before the United States Senate ratified the treaty. That came as a great surprise of many people in the United States. The United States Department of Justice said in the evidence that it gave to the United States Senate Committee on Foreign Relations:
The Government had taken it upon themselves to go ahead with a one-sided introduction of the treaty before the Senate had even begun the process of ratification. It is difficult to understand why they thought that was a wise thing to do. When the Home Affairs Committee scrutinised the Extradition Bill in 2002 it asked the Home Office in what circumstances it envisaged exempting countries from the prima facie requirement that is provided for now in section 71(4) of the Extradition Act 2003. The Home Office replied that the provision was necessary in order to exempt those countries that were Council of Europe member states but not EU member states. The report stated:
It was published on 28 November 2002. The new treaty with the United States was signed just four months later. In two important respects Parliament was misled about what was happening. First, Lord Falconer said that the treaty would be ratified before it could come into force and secondly the Government gave no indication to the Home Affairs Committee that a new treaty was being negotiated with the United States.
Fourthly, the Under-Secretary sought to suggest that protections in the European convention on human rights are enshrined in the Extradition Act 2003. However, during the debate on the Extradition Bill, Parliament was constantly told that the incorporation of the protections of the European convention on human rights would provide such safeguards. The then Under-Secretary at the Home Office, the hon. Member for Don Valley (Caroline Flint) described them as solid safeguards. Similarly, on Second Reading of that Bill, the then Minister for Policing, the right hon. Member for Southampton, Itchen (Mr. Denham), said that extradition could be barred if the fugitive’s rights under the European convention on human rights would be breached. The problem is that, in spite of the Government’s contention on the matter, since then counsel for the Government has successfully contended in the High Court that in practice human rights protections will always be trumped by a valid extradition request—so it transpires that those assurances cannot be relied upon to provide safeguards in the legislation. Mark Pritchard: Does my hon. Friend agree that we should perhaps hear from the European Court of Human Rights on the matter? We might bring a case before that court in the near future that results in a different judgement. Nick Herbert: So far, our courts are denying that the matter can properly be considered under the convention on human rights; they say that it has not been breached. Whether there will be an appeal, as a consequence of which the decision that he suggests will be made, remains to be seen. Similar defences of the current arrangements were offered by the then Under-Secretary when the order was approved, back in December 2003. She suggested that reciprocity had never been a feature of our extradition arrangements and that complete reciprocity was not possible. Perhaps complete reciprocity is not possible, but our citizens used to have the same protection as that which is afforded to United States citizens by their constitution. Now, our citizens enjoy lesser constitutional rights than US citizens. It is interesting that there are circumstances in which the written constitution of the United States is able to offer protections to its citizens that our constitution cannot offer to ours. The Under-Secretary also suggested that France and Ireland had accepted the terms of the arrangements, and asked why it was necessary to single out the United States of America. That was to miss the point that in the extradition arrangements that have been negotiated with both France and Ireland, extradition may be refused according to the terms of the treaty if, under the law of the requested state, the offence is seen as having been committed on its
Similarly, article 3 of the French-US treaty provides that the requested party may refuse to extradite a person claimed for an offence that is regarded by its law as having been committed in whole or in part in its territory or in a place treated as its territory, so the contention that France, Ireland and other countries have accepted terms similar to those that have been accepted in the United States is wrong. My amendments will help to deal with the imbalance that has been created as a consequence of the existing extradition arrangements. I would be grateful for the Committee’s forbearance for a moment while I identify which amendments I am speaking to, as I note that they have been grouped separately. I do not want to make the mistake of speaking to the wrong ones. Does anyone have a marshalled list that they can offer me? The Chairman: Order. I might be able to help the hon. Gentleman. We will debate his second group of amendments, which deals with cases in which persons have not been convicted, when we have disposed of this group. He is on amendment No. 150, on page 826 of the amendment paper. Nick Herbert: I am grateful for your guidance, Mr. Conway. This group of amendments would enable the courts to refuse extradition if the crime could be dealt with in the United Kingdom unless the requesting territory can demonstrate that it would be in the interests of justice for the trial to take place there rather than here. The amendments would effectively incorporate article 7 of the European convention on extradition into the treaty by adding to the list of bars to extradition in section 79 of the Extradition Act a new category of “forum”, which is not currently a bar to extradition. There are three reasons why the amendments would be a welcome change. First, the proposed changes are consistent with UK policy and those of our extradition partners. It is stated UK policy that where possible a person should be tried in the jurisdiction where the offence took place. Although territoriality is the main criterion, it is acknowledged that modern crime that takes place across several borders presents developing challenges, and that other factors, such as the location of witnesses and evidence, are also important. A recent High Court case established that no single entity, individual or organisation in the UK has responsibility to make a determination on the appropriate forum where more than one justification could prosecute. The Extradition Act does not permit any decision on forum; the amendment would rectify that anomaly, allowing the UK courts to be the arbiters, and permitting extradition where the requesting state can demonstrate why it makes sense for the trial to take place abroad rather than in the UK.
Secondly, the amendments are consistent with the principles on which extradition is based. It has always had the ultimate objective of preventing criminals from evading justice by crossing national borders. As crime has become more international, so have the criminal legal systems adopted by different countries. Many countries can now prosecute crimes that have no obvious nexus with their borders. It seems logical to allow the refusal of extradition where it is obvious that the crime would best be dealt with in the UK. In no sense, could that be seen as allowing fugitives to evade justice. On the contrary, it would merely give expression in domestic law to the practical realities of how jurisdictional conflicts are already being solved between different countries on an ad hoc basis. Thirdly, the amendments would provide a solid safeguard for UK citizens. As many territories can now request extradition without evidence, and many have legal systems that allow them to claim jurisdiction over acts that have no direct nexus with their borders, it seems sensible to protect UK citizens from being transported abroad—potentially thousands of miles from their homes and families—often to be put in prison pending trial for offences that might more properly be dealt with in the UK. The forum amendments are permissible within the European framework decision. Article 4.7 of the framework says:
At no stage has it been argued that extradition should be easier under part 2 of the Act than under part 1. If the part 1 formulation is specifically permitted by the framework decision, therefore, which is the justification for part 1, it should logically also apply to part 2. That is what the amendments are intended to achieve. Great concern has been expressed outside the House about the imbalance in the treaty, particularly by business organisations. The CBI has supported amendments that would provide for trial in the United Kingdom, and the director-general of the Institute of Directors has pointed out:
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