Mr. Michael Howard (Folkestone and Hythe) (Con)

2.14 pm

The first and overriding duty and responsibility of the House is to safeguard the liberties of the individual against unfair, arbitrary or oppressive action by the Executive. That is what we are here to do, and the question before us this afternoon is whether we can rise to the challenge of fulfilling that duty and discharging that responsibility, or whether we will allow the Government to ride roughshod over individual liberties.

The difficulties that we are debating arose out of two serious mistakes that the Government made. The first was to agree to a set of arrangements for governing extradition between this country and the United States, which lack reciprocity and are one-sided. The House
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need not take my word for that, because chapter and verse have already been provided. On 16 December 2003, Baroness Scotland, the Minister responsible for these matters, said as much in the other place. She said that, under these arrangements, the test that we have to meet when we seek extradition to this country is, and I quote her exact words,

“a higher threshold than we ask of the United States, and I make no secret of that.”—[ Official Report, House of Lords, 16 December 2003; Vol. 655, c. 1063.]

In the light of that absolutely categorical statement, it is, to put it mildly, incomprehensible that Government spokesmen from the Prime Minister down have since continued to claim that the arrangements are reciprocal. They are not.

Mr. Hogg: And what is more, the imbalance is perpetuated in the terms of article 8(3)(c) of the treaty. The imbalance is actually stated there.

Mr. Howard: Indeed, it is stated explicitly in article 8(3)(c).

The difference, in a nutshell, is this. In order to obtain the extradition of anyone from the United States, we have to show that there is probable cause that the person concerned has committed the relevant offence, whereas the United States has to provide only information—not evidence—to justify the issue of a warrant for the arrest of the person concerned. There is a clear and enormous difference between the two, so the Government’s first mistake was to agree to this one-sided test.

The Government’s second mistake, as has already been pointed out, was to designate the United States under the Extradition Act 2003 before the US Senate had ratified the extradition treaty. Any incentive that there would otherwise have been for the Senate to ratify the treaty was thereby removed.

In response to overwhelming criticism from all quarters, the Government have tended to say three things. First, in the face of the facts and of the statement by Baroness Scotland in the other place, they assert that the arrangements are reciprocal. Just a week ago today, the Prime Minister said:

“it is not true that the United States has a different evidential burden from this country.”—[ Official Report, 5 July 2006; Vol. 448, c. 807]

That statement is plainly incorrect, and the Prime Minister should apologise and withdraw it.

Secondly, the Government resort to the terrorism gambit. On 1 March, in response to the leader of the Liberal Democrats, the Prime Minister referred to these issues as “international terrorism issues”. As we know, that is a gross distortion of the issues at stake, and the Prime Minister demeans himself and devalues the importance of dealing with terrorism by using that argument in that way.

Thirdly, the Government accuse their critics of being anti-American. For those of us who have devoted a political lifetime to transatlantic relations, that is perhaps the most contemptible charge of all.

Mr. Clegg: I am equally stung by the assertion that those who criticise the Government’s approach are anti-American. Is the right hon. and learned Gentleman as
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struck as I am by the report of the American Bar Association’s symposium last year? The Las Vegas transcript of the symposium shows the US authorities almost incredulous at how far Britain has bent to accommodate their demands. One participant marvelled that a hearsay affidavit by the prosecutor was enough and that they did not even have to provide witness affidavits.

Mr. Howard: The hon. Gentleman is right. Other distinguished American lawyers have repeatedly made similar points. They cannot believe that this country so readily agreed to such a one-sided set of arrangements.

The Solicitor-General referred rather contemptuously to what he described as a “fracas” that I had with the President of the United States when I was Leader of the Opposition. It is true that I had a disagreement with the President of the United States, but the Solicitor-General appears to believe that there is something dishonourable or embarrassing about taking a view different from that of the President of the United States. The difference between him and me is that I do not believe that to maintain good relations between this country and the United States, it is necessary for the Prime Minister of the United Kingdom to be a poodle of the President of the United States.

The case that has given rise to the debate and the widespread concern behind it involves three British subjects who are accused of a crime committed in this country, largely against their British employers, who do not wish to press charges. The prosecuting authorities in this country do not wish to press charges, either. My hon. Friend the shadow Attorney-General referred to article 7.1 of the European convention on extradition—the forum clause, which obliges the court to take account of the matters that I described. If it had been incorporated in the 2003 Act, as it is in the extradition arrangements between the Irish Republic and the United States, it is at least open to question—I put it no more strongly; we cannot know the outcome—whether those men would have been extradited.

It would surely be an affront to our standards of justice and everything that the House should defend if those men found themselves in a Texas jail for up to two years before even having the opportunity to answer the charges against them.

The Solicitor-General: I give the right hon. and learned Gentleman the same opportunity as I gave the shadow Attorney-General to explain why, if the forum clause is so important, the Conservative Government decided not to include it in their 1989 legislation.

Mr. Howard: My hon. Friend the shadow Attorney-General and my right hon. and learned Friend the Member for Sleaford and North Hykeham (Mr. Hogg) answered that point. The circumstances were different—it was necessary to establish a prima facie case, and the Home Secretary had a residual discretion to refuse extradition.

Perhaps I can deal with the other question that the Solicitor-General and the Leader of the House posed about why my party abstained and did not oppose the arrangements when they came before the House. With the benefit of hindsight I wish that we had not

Mr. Redwood: The expertise of my right hon. and learned Friend on such matters is renowned and he is making a powerful case. However, is not the crucial point the fact that there is no charge pending and apparently no intention of charging those people in Britain, where the alleged events took place? That shows how supine the Government are. They will not stand up for innocent British citizens against the arbitrary use of power elsewhere.

Mr. Howard: My right hon. Friend is right. The Solicitor-General appeared to regard it as important that several potential witnesses were in the United States. He has apparently overlooked the invention of the aeroplane and the possibility of bringing people from the United States, as frequently happens, to give evidence in this country’s courts. There is no reason why that should present difficulties.

The Prime Minister referred to the assurances that have been given about bail. The hon. Member for Leicester, East (Keith Vaz) asked about that earlier in the debate. It has been said that the United States prosecuting authorities will not oppose bail if the three men comply with “appropriate conditions”—I believe that I have quoted the Prime Minister correctly. What are appropriate conditions? The American courts will determine them, and we have no reason to suppose that they will depart from their precedents for what conditions are regarded as appropriate. Indeed, it would be extraordinary if they did so. We know that it is customary for American courts to demand the posting of a high value bond and to set onerous conditions before bail is granted.

I fear that, in the light of what has been said this afternoon, we will not be so easily taken in by the Prime Minister’s assurances. It behoves us in future to be considerably more sceptical about assurances from the Prime Minister and other members of the Government.

Mr. Alistair Carmichael (Orkney and Shetland) (LD): The Prime Minister’s efforts in connection with bail highlight the inadequacies of the arrangements. If we could have confidence in the treaty and if it was founded on the principles of justice, we would not have to witness the spectacle of Law Officers running around trying to procure bail on the other side of the Atlantic.

Mr. Howard: I agree. It is not too late to avert the injustice that we all fear.

The Solicitor-General: I am grateful to the right hon. and learned Gentleman for giving way twice. I want to

Mr. Howard: I was not in the Home Office in 1989, and I therefore had nothing to do with the Act. However, the point that I made to the Solicitor-General when he referred to other European countries is relevant. Our arrangements with other European countries are entirely reciprocal. We are considering our arrangements with the United States. The point has been made repeatedly and clearly in the debate that the arrangements with the United States are not reciprocal.

It is not too late for the injustice to be averted. It would be perfectly possible for the Government to introduce emergency legislation to remove the United States from the list of countries designated in the Extradition Act 2003. It would not take long. It could be done in an hour in the House and an hour in the other place. The Government should take that action without delay.