Uk-us extradition Treaty

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UK-US Extradition Treaty

12.38 pm

Mr. Nick Clegg (Sheffield, Hallam) (LD): I beg to move, That this House do now adjourn.

Leave having been given on Tuesday 11 July under Standing Order No. 24.

Thank you, Mr. Speaker, for allowing this debate to be held on a matter of tremendous seriousness and urgency. We are all aware that tomorrow morning, three British citizens are to be extradited to the United States on the basis of an unfair, imbalanced treaty that the Government negotiated in secret and to which they devoted the most cursory parliamentary scrutiny imaginable. Although it is too late to alter the fate of the so-called NatWest three, except in terms of pressing for bail, in which we support any efforts that the Government are able to make, it is not too late to abandon that treaty, which is not yet in force in international law, but which we have chosen, inexplicably, to implement unilaterally.

We on the Liberal Democrat Benches have objected to the extradition arrangements with the USA ever since the text of the new treaty was published in May 2003. We spoke and voted against the orders implementing our end of the treaty in December 2003. We have tabled a Bill in the House to restore the need for prima facie evidence to be provided by US authorities when requesting extradition. We have supported in another place amendments to the Police and Justice Bill that would suspend our implementation of the treaty. The purpose of those parliamentary initiatives has been to prevent serious injustice for those who face extradition to the USA or may do so in future—injustice because the extradition treaty and its enactment through the Extradition Act 2003 is manifestly unfair to British citizens.

Mr. Chris Mullin (Sunderland, South) (Lab): Several times in the past 24 hours or so, the hon. Gentleman has made the point that parliamentary scrutiny of the measure was minimal, but, in fact, the draft Bill was the subject of a fairly detailed Home Affairs Committee report. The Committee made a number of recommendations, many of which were sympathetic to his point of view, and some of which were implemented.

Mr. Clegg: It is true that the report was published. However, the hon. Gentleman knows that the treaty was negotiated in secret and the text was only published two months later—a day before the Whitsun recess, I believe. Then, it was the subject of no more than 90 minutes’ scrutiny in the Committee.

Mr. Mullin rose—

Mr. Clegg: I need to make progress—many hon. Members want to speak.

Hon. Members: Give way!

Mr. Clegg: We did not see the treaty.

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Mr. Mullin: There were many sessions of hearings on the subject—many.

Mr. Clegg: Did the hon. Gentleman see the treaty before the report was published? I think not. The full text was published two months later.

In recent days, the Government have claimed in strong terms that the treaty is reciprocal—a claim repeated by the Prime Minister today. They say that the arrangements with the United States are, despite all appearances, reciprocal and equivalent. As my noble Friend Lord Goodhart said in another place last night:

“That is simply and totally incorrect.”—[ Official Report, House of Lords, 11 July 2006; Vol. 684, c. 630.]

Let me explain. Article 8 of the UK-US extradition treaty sets out the new procedures between the two countries. It states that the requesting country—either the United Kingdom or the United States—must provide

“a statement of the facts of the offense(s)”.

Then, in paragraph 3(c), an additional burden is placed on the United Kingdom when requesting an extradition from the United States. The provision requires:

“for requests to the United States”—

to the United States only—

“such information as would provide a reasonable basis to believe that the person sought committed the offense for which extradition is requested.”

That fulfils the now well known requirement for “probable cause” for extradition from the United States, in line with the terms of the US constitution. However, there is no requirement for any corresponding information for extradition from the United Kingdom.

Before the issue hit the headlines, the Government admitted that lack of reciprocity. In a Committee of the House on 15 December 2003, the hon. Member for Don Valley (Caroline Flint), then a Home Office Minister, said:

“when we make extradition requests to the United States, we will need to submit sufficient evidence to establish ‘probable cause’.”

She acknowledged that that is a lower test than the previous prima facie standard, but added that it was

“a higher threshold than we ask of the United States, and I make no secret of that.”—[ Official Report, Third Standing Committee on Delegated Legislation, 15 December 2003; c. 7.]

In another place, on 16 December last year, the noble Baroness Scotland repeated the same sentiment in almost identical terms.

Those admissions of two and a half years ago are in total contrast to the Prime Minister’s statement to my right hon. and learned Friend the Member for North-East Fife (Sir Menzies Campbell) last week, that

“it is not true that the United States has a different evidential burden from this country. The probable cause, which is the burden that the United States places on countries that want to extradite from the United States, is analogous to what we now provide under the Extradition Act 2003.”—[ Official Report, 5 July 2006; Vol. 448, c. 807.]

The Government cannot have it both ways. The treaty does, as I have explained, place different evidential burdens on the two parties. Either it is not reciprocal, as Ministers have repeatedly confirmed for months,

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or—miraculously—it is now reciprocal, in accordance with the Prime Minister’s pronouncements last week and today.

Mr. Michael Wills (North Swindon) (Lab): I want to understand the point that the hon. Gentleman is making. He is saying that the treaty between the United States and the United Kingdom is asymmetrical. Can he tell us which extradition treaties are exactly symmetrical?

Mr. Clegg: I know of no other extradition treaty that is as asymmetric as that treaty. All the extradition treaties covered by the Extradition Act 2003, as the hon. Gentleman probably knows, are almost entirely reciprocal. That is why they are covered by the Council of Europe convention and the European arrest warrant, which are founded on a symmetrical relationship between the two parties.

Mr. Douglas Hogg (Sleaford and North Hykeham) (Con): Would the hon. Gentleman care to tell the hon. Member for North Swindon (Mr. Wills) that the 1972 treaty between the United States and the United Kingdom was extremely balanced?

Mr. Clegg: Indeed. For reasons that seem to have escaped the Prime Minister and other members of the Government, it was balanced between the burden of probable cause in the United States and the necessity for the US authorities to present prima facie evidence in British courts. At the time, that treaty was considered by all legal experts and Government Ministers to be balanced in its application.

The Leader of the House of Commons (Mr. Jack Straw): Not true.

Mr. Clegg: I accept that the prima facie burden was slightly higher than probable cause, but we have wildly over-compensated by removing the prima facie burden altogether.

To return to the NatWest three, that case is not the be-all and end-all of this debate. It is the tip of the iceberg, and it has highlighted a wider problem—the Government signed a lopsided treaty that short-changes the interests of British citizens and people under our judicial protection. It may be the case, as the Prime Minister suggested today, that the extradited individuals could have been extradited under the terms of the 1972 treaty. It is perfectly possible that in initiating extradition proceedings against the NatWest three, the US authorities presented sufficient evidence to meet the higher hurdles under the 1972 treaty. The point is that we do not know, because under the new provisions, there is no cross-questioning or examination of the substantive evidence that they present. Much more importantly, they are not required to present the amount of evidence that could have been presented in the case of the NatWest three—a non-requirement that will apply to all future cases.

Keith Vaz (Leicester, East) (Lab): I have a great deal of sympathy for the points that the hon. Gentleman has made, but he was in the Chamber when the Prime
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Minister responded to the question from the right hon. and learned Member for North-East Fife (Sir Menzies Campbell). The worry for the families of the NatWest three is that they will go to the United States and stay there for years and years before the case is concluded. Was the hon. Gentleman not reassured by the Prime Minister’s comments that there will be no opposition to an application for bail which, of course, will allow those three individuals to return to the United Kingdom?

Mr. Clegg: The courts in Houston, Texas must determine bail terms—they are notoriously stringent—but, of course, we welcome any measures by the Government to facilitate the granting of bail to those three individuals.

The Government have got themselves into that sticky situation by eagerly enforcing our obligations under the treaty and failing to exert, until very late in the day, meaningful political pressure on the United States to do likewise. There is no excuse, however, for the mess in which we find ourselves. The Government repeatedly argue that, because we do not demand prima facie evidence from Council of Europe countries—Albania and Azerbaijan are the most salubrious examples in the long list of countries cited by the Government—we should not demand it from the US. Broadly, because the US is a “mature democracy” we should not have any qualms about extraditing British citizens there.

I should like to make three quick observations. First, as I mentioned, we have reciprocal agreements with those countries, but none of the arrangements have such wildly differing evidential burdens. Hence our support for the European arrest warrant which, as I said, is based on symmetry between the parties that entered into it, and is reciprocal between nations. The US-UK agreement, by contrast, is unique in its lopsided provisions. Secondly, Council of Europe countries are all signatories of the European convention on human rights, which is not binding on the United States. Any contravention of the ECHR by a Council of Europe state subsequent to extradition can be reviewed by the European Court of Human Rights, but such judicial review is not available to individuals extradited to the United States.

Anne Snelgrove (South Swindon) (Lab): Does not the hon. Gentleman agree that the human rights conditions were met in the various courts that those gentlemen have been through in this country. Is not that sufficient? Has not the hon. Gentleman been unduly influenced by a public relations campaign funded by multi-millionaires who have made a packet from selling shares in Enron?

Mr. Clegg: As the hon. Lady must know, the courts merely heard the appeal against the application for extradition, which they could consider only in the limited terms of the 2003 Act. The courts have no power to second-guess an application made by the US authorities —[ Interruption. ] The Home Secretary has now said on several occasions that the US is not in Europe. I am well aware of that fact. However, he may need to reflect a little further on it, because we keep

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being told by the Prime Minister—and may be told by the Home Secretary and his Ministers—that there is no reason why we should not grant exactly the same provisions to the United States as to European countries. As I have explained, however, those arrangements were framed in the context of the ECHR, the conventions of the Council of Ministers and the legal terms of the European arrest warrant, which completely—legally and politically—sets the European examples apart from the US examples.

Mrs. Ann Cryer (Keighley) (Lab): Why has the hon. Gentleman waited such a long time before raising all these questions—[ Interruption.] As my hon. Friend the Member for Sunderland, South (Mr. Mullin) said, those matters were covered in great detail—

Mr. David Heath (Somerton and Frome) (LD): On 15 December 2003.

Mrs. Cryer: No, on 22 November—[ Interruption.]

Mr. Deputy Speaker (Sir Alan Haselhurst): Order.

Mrs. Cryer rose—

Mr. Deputy Speaker: Order. I am trying to help the hon. Lady. As the hon. Member for Sheffield, Hallam (Mr. Clegg) has given way, it would be a courtesy if he and his colleagues listened to what she has to say.

Mrs. Cryer: I am simply trying to say that on 22 November 2005, eight months ago, when a colleague of the hon. Member for Sheffield, Hallam (Mr. Clegg) was present, the Select Committee on Home Affairs went into a great deal of detail on those questions with my hon. Friend the Member for Leigh (Andy Burnham), then the Under-Secretary of State at the Home Office. I have some sympathy with the questions that the hon. Member for Sheffield, Hallam is putting, but they were all put eight months ago so why has he waited until now to raise them again?

Mr. Clegg: I hazard the suggestion that even eight months ago it was too late; the decision was taken on 15 December 2003, by order, to enact our side of the extradition treaty with the United States. As the hon. Lady may know, the only Members who objected at that point—when the House could have stopped the process—were Liberal Democrats.

I want to refer to scale. The United States is by a long way our largest extradition partner. There are between 15 and 20 ongoing requests for extradition from the United States to the United Kingdom, and in 2005 13 people were extradited to the US—the highest number in five years and more than double the figure in 2003, just before the provisions of the bilateral treaty came into effect.

Given the sheer number of requests made by the US compared to other countries, and the fact that the US has increasing ambitions for extra-territorial prosecutions, it is vital that the treaty is fair to the British people. But events have already proved without doubt that it is not. Surely questions must be asked
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when Ian Norris, a former chief executive of Morgan Crucible, can be extradited for price-fixing, even though during the period he was alleged to have committed the offence it was not a criminal offence in the UK.

Mr. Ian Taylor (Esher and Walton) (Con): Will the hon. Gentleman underline the fact that one of the reasons why many Conservative Members supported the measure in the Chamber was that we thought it was to be used against potential terrorists? That is why there were grounds for passing the legislation; we did not expect the Government to encourage its use for purposes such as those we are discussing.

Mr. Clegg: The hon. Gentleman makes a valid point, although I am duty-bound to point out that it would have been helpful if he had listened to some of the arguments made from the Liberal Democrat Benches two years ago, which put the measure into a wider context. However, even if we consider the treaty only as part of the battle against terrorism, serious questions must be raised. For example, Lotfi Raissi, the Algerian pilot wrongly accused of training the 11 September hijackers, would have been extradited to the US under the provisions of the new treaty, but he was protected under the old one because the US could provide no evidence whatever that he was involved in the plot.

Peter Luff (Mid-Worcestershire) (Con): I realise that the hon. Gentleman is coming towards the end of his speech and that he has understandably and necessarily rested his arguments so far on issues relating to extradition and treaties, but does he share my concern about the impact on the confidence of people engaged in commercial relationships with the United States of America of what I consider an abuse of the treaty?

Mr. Clegg: The impact on the confidence of the British business community in its dealings with the United States is very considerable indeed.

The case is not, as the Government would have us believe, merely a technical issue to be debated on legalistic points; it is causing serious consternation in the business community where fears of doing business in the US are increasing. I should be interested to learn from the Solicitor-General whether he agrees that the Chancellor’s City taskforce should consider the damage the case could do to our world-class financial services industry.

Mr. Gerald Howarth (Aldershot) (Con): Will the hon. Gentleman give way?

Mr. Clegg: I need to make progress, as many Members want to speak on this important topic.

It is more than three years since the Government signed the extradition treaty with the United States, two and half years since the secondary legislation introducing that treaty was passed and less than 24 hours before the high-profile individuals who have brought such attention to the treaty will leave the country for a Texan jail. We should have debated the
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treaty years ago, but we did not have the chance, thanks to the Government’s continued disregard for the opinions of the House.

The treaty was negotiated in secret, signed by royal prerogative and announced merely in a written statement, offering the House no chance to question the Home Secretary on the wisdom of his actions. The text of the treaty was published two months later on 21 May 2003, as I mentioned earlier, the day before the Whitsun recess, thus reducing the chances of parliamentary scrutiny. The Extradition Act was piloted through the House by a junior Minister, with the Home Secretary making no comment on its progress. The secondary legislation was passed in a Committee that sat for barely 90 minutes.

Until the case started making daily headlines, the Government had made no attempt to persuade the United States to keep its end of the bargain and ratify the treaty; indeed, we know that as recently as March, during the US Secretary of State’s last visit to the UK, the Foreign Secretary did not even mention the issue. And the Government had to be forced, by Mr. Speaker’s decision, to come to the House today to hear this debate.

Much emphasis has been put on the Senate’s failure to ratify the treaty. Surely, we should be asking why we have no ratification process in this country similar to that enjoyed by the US Senate. Why is there no proper parliamentary scrutiny, and no written constitution to protect us from the Government’s willingness to hand away vital legal protections?

It is six years since the Wakeham Commission on Lords reform proposed proper parliamentary scrutiny of treaties in Parliament. The Government must take action. First, they should recognise the force of opinion among the public and in another place—where the Police and Justice Bill has been amended to repeal our part of the treaty—and revoke the 2003 order immediately so far as it applies to the USA. Next, the Government should renegotiate the 2003 treaty to make the extradition test reciprocal. Finally, they must introduce proper parliamentary scrutiny of treaties, and amend the royal prerogative so that international agreements can no longer be entered into without meaningful reference to the House.

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