Mr. Dominic Grieve (Beaconsfield) (Con)

1.32 pm

The Solicitor-General has given the impression that the current media anxiety—which is clearly shared by the public, if the volume of e-mails that I have been receiving is anything to go by—is in some way manufactured, and, indeed, that it was suggested by a public relations agency. I rather doubt that that is the case. It seems to me that the events that have surrounded the extradition of Mr. Bermingham, Mr. Darby and Mr. Mulgrew to the United States have exposed misgivings on the part of the public about how the extradition arrangements between us and the US are operating. That must be a legitimate topic of debate in this House; it is what we are here to do. If we indeed made a mistake in respect of the Extradition Act 2003 three years ago, or in respect of our treaty with the United States, it is high time that we considered those issues.

Simon Hughes (North Southwark and Bermondsey) (LD): Does the hon. Gentleman agree with the views expressed by my hon. Friend the Member for Sheffield, Hallam (Mr. Clegg), and by many others, first that there should only be implementation of a treaty to which we are a signatory when the other signatory also implements the treaty, so that there is reciprocity in respect of it coming into effect, and secondly that all such treaties should be subjected to proper parliamentary scrutiny before they are signed on behalf of the United Kingdom Government?

Mr. Grieve: Yes, I agree with the hon. Gentleman, and I will return to those points shortly.

Mr. Hogg: Does my hon. Friend also agree with this proposition: what the Government have done by designating the United States a country that benefits from a fast-track procedure is to remove from the United States any incentive to ratify this treaty?

Mr. Grieve: I entirely agree with my right hon. and learned Friend, and I shall also return to that point shortly.

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I shall start with a few general points, because it is important that we get them clear. First, I have no idea whether Mr. Bermingham, Mr. Darby or Mr. Mulgrew are guilty or innocent of the offences with which they are charged—indeed, that outcome is irrelevant to our debate. Secondly, regardless of whether people are innocent or guilty, the process by which we extradite individuals to foreign countries to stand trial can be onerous: during the trial process, they are removed from proximity to their families; they are sometimes in foreign countries—not only the United States—with different cultural practices; and the conditions of imprisonment can be very different from those that prevail in this country. Those are not reasons why we should not extradite people, so long as we are satisfied with the fairness of the trial process. We are perfectly prepared to contemplate that. This country has been doing that, and the comity that exists between nations makes it important that we preserve that position.

I say this to the Solicitor-General because I hope that it might provide a quieter and calmer framework within which we can debate the issues. The problem arises because the Government perfectly sensibly chose to renegotiate the existing 1972 treaty with the United States of America. They had good reason to do that, because the old treaty had many flaws. The Solicitor-General has not touched on them, and I will not go into them in detail, but there were issues to do with time limits and temporary surrender, and there were handicaps, as has often been pointed out in the House, to do with extraditing certain types of United States defendants to this country, particularly if they were Irish nationals wanted for terrorist offences. To embark on renegotiation was perfectly sensible, and it was also perfectly sensible for those involved in that process to consider our own practices, particularly in light of the fact that the Extradition Act 2003 was in contemplation at the time.

The problem arises because, in negotiating that treaty, the Government allowed themselves—the expression used by Lord Mayhew in the other place was correct—to be treated like patsies in relation to reciprocity of implementation. They had a treaty that had some mutual advantages, although I do not think that its terms were sufficiently well scrutinised, but they gratuitously chose to give them to the United States without deriving any benefits for ourselves under it by giving the US privileged status under the Extradition Act 2003. I will return to that. When Baroness Scotland in the other place or Ministers in the House of Commons express their sadness, irritation, annoyance or anxiety on behalf of those in this House and the general public that the United States has not ratified the treaty, they have only themselves to blame for what happened. A little realpolitik dictates that those who give people everything that they want without asking for the return that they were promised are never going to get that return. I gather that Baroness Scotland is going to the United States—she may be flying over at this very moment—to supplicate the US Attorney-General, but the truth is that she cannot persuade Congress, which is made up of some pretty hard-headed individuals, unless they decide that there is something in it for them. There is a fundamental failure of government here, and although

Mr. Hogg: Will my hon. Friend remind the House that there is a termination clause in the treaty—article 24—and that, if we do not get satisfaction from the United States, we are entitled to invoke it to terminate the treaty?

Mr. Grieve: My right hon. and learned Friend makes a valid point. The Government should consider giving a terminal date to the United States by which ratification on their side must take place, or we should go back to the drawing board. The reason why we should go back to the drawing board is that the treaty raises a number of difficult issues that this House has not properly considered.

Mr. Bellingham: Does my hon. Friend agree that the way in which the Solicitor-General skipped over the ratification point was a disgrace? If the Government feel strongly about ratification and want to put pressure on, one thing that the Home Secretary surely could do is to refuse to allow any extraditions until ratification takes place.

Mr. Grieve: It is open to the Home Office to suspend operation of the designation of the United States as a part 2 territory with special privileges. That could be done by the signature of the Home Secretary at any time, and if I were in his position, I think that I would do just that.

Kate Hoey (Vauxhall) (Lab): Does the hon. Gentleman agree that it is possible that Congress will never agree to sign this treaty? It is clear from the history of cases of a political nature where people were not allowed to come back, particularly those involving Irish terrorism, that there are those in the United States who will never accept that British courts have a right to try anyone from Ireland.

Mr. Grieve: I agree with the hon. Lady and that point is a source of concern. The history—or non-history—of the ratification process strongly suggests that ratification may never happen. Indeed, the only way that it will is if this Government have the courage to point out to the United States that the privileges that we are giving to them, and which are of advantage to them and their criminal justice system, will be withdrawn. That, I am afraid, is how diplomacy works. Given that that approach has been abandoned for the airy-fairy concepts that have governed the Government’s dealings with the United States since then, we should not blame the United States if, when it comes to the crunch, they look to their own advantage in these matters. It is only when countries on both sides look to their own advantage that one gets an agreement that is binding and durable.

The Solicitor-General: I am listening with care to the hon. Gentleman’s argument and trying to work out

Mr. Grieve: I have to say to the Solicitor-General that I cannot think of any reason not to abrogate the treaty with the United States at the moment. There is absolutely no national advantage to our having signed it whatsoever. I said to the Solicitor-General that I would consider the other aspects —[Interruption.] He shakes his head, but the reality is that, at the moment, if we wish to extradite individuals from the United States, we are entirely bound by the 1972 treaty, which is still in operation and which I have no desire to abrogate. That is our advantage at the moment—nothing more. If we choose to abrogate the later treaty, which has not been ratified and has therefore never been brought into operation—I am not sure that it requires abrogation; it simply has not happened—I do not see that we would lose anything whatsoever in our current relations with the United States.

Several hon. Members rose—

Mr. Grieve: I want to make progress.

I turn to the Extradition Act 2003. In fact, the Government’s willingness to give to the United States special privileges under that Act that required no treaty at all with the US; it was merely a gratuitous act by this Parliament. [Interruption.] If the Leader of the House looks at what happened, he will see that in fact, we abstained on the order. [Interruption.] We abstained and expressed our misgivings, which were— [Interruption.] If the Leader of the House wants to intervene, I will give way to him.

Mr. Straw: The Conservatives did indeed abstain on the vote on the order; only the Liberal Democrats voted against it. Did they abstain because they were in favour, because they were against, or because they had absolutely no view?

Mr. Grieve: We abstained because we expressed misgivings about the scope of the powers given to the United States. We were swayed by the Government’s arguments about the need to have the new arrangements to deal with terrorism. Speaking personally, I regret that, in view of what I have discovered since about the way that this process is operating. I say candidly to the Leader of the House that what happened troubles me, but it was done in good faith and the Government should be pleased, I suppose, that for once, assurances that they gave to hon. Members received a response on this side of the House. But the truth is that those assurances proved to be flawed.

Mr. Straw: That is a paltry explanation. The hon. Gentleman is familiar with the 2003 Act under which

Mr. Grieve: I do not know whether the Leader of the House has read the relevant Hansard, but if he has not and he does, he will see that during those debates, the hon. Member for Don Valley (Caroline Flint) made a number of claims about the way that the 2003 Act would operate in relation to the United States that were—I am sure inadvertently—misleading. The fact is that they certainly had an effect in persuading Members of this House to go along with what the Government wanted to do.

Mr. Iain Duncan Smith (Chingford and Woodford Green) (Con): As Leader of the Opposition at that time, it was clear to me—and to all my colleagues—that the main reason why we acquiesced to the speed with which this provision was pushed through was that the Government said that it was absolutely vital in the pursuit of terrorists. There were other aspects to it, but terrorism was the key driver, which the Government should not resile from. Will my hon. Friend please ask the Government a very simple question? Apart from the details that my hon. Friend thinks might be wrong, or which there might be problems with, what is it that the Government object to? The reality for all of us in this place is that when this provision was pushed through, the Government never said that parity was unimportant. Surely parity is vital, so why do the Government not act?

Mr. Grieve: I agree entirely with my right hon. Friend and I also agree that parity is vital.

That leads me to my next point, which concerns parts 1 and 2 of the 2003 Act. Part 1 deals with the European arrest warrant, which is backed by the fact that the signatories are signatories to the European convention on human rights. I want to pick up on the earlier intervention of the hon. Member for Sunderland, South (Mr. Mullin). He might have been about to make this point himself, but I will make it. In the summary of the report that considered that legislation, his Select Committee pointed out the following:

“we express concerns about proposals to relax the requirement that extradition requests from non-European countries must demonstrate that there is a prima facie case to answer”.

The report goes into greater detail on that issue later. However, that is exactly what the Government chose to do, and they chose to do so in the context of the United States, when they were also aware that in fact, there would be no parity in terms of the test that had to be applied on both sides.

The weakest point of the Government’s argument, both here and—in the light of yesterday’s debate in the Lords—in the other place, is the extraordinary assertion that reasonable cause and making out mere suspicion, which is all that it boils down to, are on a par with each other. We have a substantial hurdle to overcome in the United States. The tendering of prima facie evidence in an evidential sense is not necessarily required, but the making of a prima facie case in a documentary and discursive sense is certainly required, although it can be done by hearsay. In contrast, all that the United States must now do is send in a document in

The Solicitor-General knows about the Raissi case, which posed the threat of a serious miscarriage of justice. Under the existing new rules, Mr. Raissi would undoubtedly have gone to the United States. He was spared that because it turned out, as the prima facie case was examined, that there was a case of mistaken identity. More than that, the case against him was entirely flawed.

Those are not slight or academic matters but have a practical impact. In deciding to grant this special privilege to the United States of designation under section 84(7) of the Act, the Government have made a mistake. The lack of parity immediately gives rise to the taint of unfairness. In any event, I have some reservations about moving away from the old test in the case of non-European countries generally. In that regard, I have genuine anxieties that go beyond merely the UK-US extradition treaty.

Malcolm Bruce: The hon. Gentleman is making an important point. Does he share my concern that the Solicitor-General, in quoting the district judge’s comment on the submissions made in this case, failed to point out—in relation to which the hon. Member for Henley (Mr. Johnson) understandably intervened with some anger—that the defendants had no right to challenge, test, explain or counter that evidence, which might well have been produced by those engaged in a plea bargain in the United States and could have been entirely false?

Mr. Grieve: The hon. Gentleman is right, and that is why I intervened on the Solicitor-General when he started telling the House that we should not worry about anything, because the United States sent over volumes of material, as if it were doing a pre-2003 Act extradition. That might be true, and I accept that, if that material had been tested on the 1972 Act provisions, the three defendants might still be extradited to the United States. The difference is that there would not be such huge public disquiet about the manner in which it has been carried out. Even though the material was available, the defendants were deprived, in the course of the extradition proceedings, of the opportunity to carry out the pre-2003 Act scrutiny that they could have done previously, even when they took the matter to the High Court on review. The points taken in the Court of Appeal related to the Human Rights Act, and by their very nature were not as extensive, and could not be the same, as if we had provided a balancing exercise to enable that scrutiny to take place.

Mr. John Redwood (Wokingham) (Con): Is not the crucial point that, according to the British Government, these three men are entirely innocent. We know that that is the British Government’s view,

Mr. Grieve: My right hon. Friend makes a good pint. That brings me to the consideration—finally, I hope, as I do not want to take up too much time—of the issue of forums.

The second issue that we must consider, which was considered in the other place yesterday, is that we chose in the 2003 Act, bizarrely, to get rid of the protection that existed in article 7(1) of the 1957 convention on extradition, which allowed an extradition to be prevented if the person was being sent to an inappropriate forum for the trial. As I did not participate in detailed consideration of the 2003 Act, I am unclear as to why the Government decided not to include that safeguard in the Act generally. Every other country has that safeguard. The Irish, who regard themselves as close partners and friends of the United States, and who have an extradition arrangement, have a forum clause in their treaty, which enables the question of the appropriate forum to be considered.

One reason why so much public disquiet has been expressed about the case of Mr. Mulgrew, Mr. Bermingham and Mr. Darby is that they are in this country, the victim, NatWest, is in this country, and a trial could properly take place in this country without the onerous burden of extradition. However, they have been deprived of that opportunity—it has only been taken as a Human Rights Act point, which is inadequate. I have yet to hear from the Solicitor-General why the Government have not adopted that protection, which, in my understanding, applies across virtually every other European country. That makes a considerable difference. Were we to introduce that protection, along with reciprocity with the United States, the Solicitor-General would find that the public disquiet that has arisen, which, as I said, is genuine, would be allayed.

The Government have a responsibility for good governance. One of the features of good governance—picking up the point made by my right hon. Friend the Member for Wokingham (Mr. Redwood)—is the paternal relationship between the state and its citizens. That is not to say that the state should not give up its citizens for trial elsewhere when there is clear evidence that they should be tried and it is in the public interest. But the state should not appear to be cavalier with their rights. One of the things about the Government that makes me anxious, which is a wider issue than the UK-US extradition treaty and runs through a host of pieces of legislation that have an authoritarian tinge that undermines civil liberties in this country, is that they combine an extraordinary internationalism and an attitude that state boundaries and borders are rather archaic with a reluctance to stand up for their own. That is troubling, as it undermines public confidence in the state, and will ultimately, and corrosively, undermine public confidence in the criminal justice system.

The Solicitor-General: I want to clarify the nature of the hon. Gentleman’s argument. He seems almost to be suggesting that we should make it the responsibility of

Mr. Grieve: I am afraid that the Solicitor-General again does himself less than justice. Other courts, such as the Irish jurisdiction, are perfectly capable of resolving the issue of the forum test. He has once again moved from the general points that I want to make to the particular points about the case involving Messrs Bermingham, Mulgrew and Darby, which is precisely what I want to avoid. I have no idea whether, after consideration of forum points, those individuals might still be extradited to the United States. The fact is, however, that no such consideration has taken place, and that should be possible under the Extradition Act 2003 for every country to which we are carrying out extradition. That is a serious flaw in the legislation. The fact that that is provided for specifically in the 1957 extradition convention makes it all the odder that, when the Government move to try to streamline and simplify the extradition system, with which I do not disagree, they do not include such an essential safeguard. The lack of that safeguard is one of the major reasons for the Government’s present problem.

The Solicitor-General: The provisions of the European convention on extradition were incorporated in the Extradition Act 1989 by the Conservative Government, but the natural forum protection provisions were not. Why did the Conservative Government not include those provisions?

Mr. Grieve: The Solicitor-General makes a good point. The answer to his question is that I do not know, but I would hazard a guess. At that time, we were still operating on the basis of having to show a prima facie case. The removal of that essential safeguard makes it all the more important to read the 1957 convention to establish whether there are other safeguards that ought to be included. All I can say to the Solicitor-General is that, in my view, the forum safeguard ought to be incorporated in the existing legislation.

Mr. Hogg: Perhaps another reason was that the Home Secretary retained residual discretion not to extradite.

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Mr. Grieve: My right hon. and learned Friend is of course right. That is one of the issues that have arisen over the past two weeks. When people have written to me saying that the Home Secretary should exercise his discretion not to extradite, I have had to write back pointing out that no such discretion exists any longer. It has gone.

Let me return to the point that I was making to the Solicitor-General. That residual paternalism, which was there to protect the citizen through the mechanisms and operation of the state, has been removed. Something else must be put in its place, so that people consider that the outcome is fair.

This is not the first occasion on which this problem has arisen and, if the Government do not listen to what is being said, it will not be the last. It will continue. There are numerous other cases in the pipeline, some of them—on their facts—much more challenging that the case of Messrs Bermingham, Mulgrew and Darby. Unless the Government heed the warnings, the criminal justice system in this country will be tainted. There is no need for that to happen. Sensible measures can be put in place. I ask the Government to listen to what a large number of people are saying about this matter.