The following MPs spoke during the debate in favour of the motion. Those who raised Babar Ahmad's case are indicated by an asterisk:
Steven Baker (Wycombe, Conservative) *
David Blunkett (Sheffield, Brightside and Hillsborough, Labour)
Angie Bray (Ealing Central and Acton, Conservative)
Robert Buckland (South Swindon, Conservative)
Conor Burns (Bournemouth West, Conservative)
David Burrowes (Enfield, Southgate, Conservative)
Jeremy Corbyn (Islington North, Labour) *
Michael Crockart (Edinburgh West, Liberal Democrat) *
David Davis (Haltemprice and Howden, Conservative)
Nick de Bois (Enfield North, Conservative)
Richard Drax (South Dorset, Conservative)
Charlie Elphicke (Dover, Conservative)
Hywel Francis (Aberavon, Labour)
Richard Fuller (Bedford, Conservative) *
John Hemming (Birmingham, Yardley, Liberal Democrat)
Lindsay Hoyle (Deputy Speaker; Chorley, Labour)
Charlotte Leslie (Bristol North West, Conservative)
Caroline Lucas (Brighton, Pavilion, Green) *
Stephen McCabe (Birmingham, Selly Oak, Labour) *
Jesse Norman (Hereford and South Herefordshire, Conservative)
Richard Ottaway (Croydon South, Conservative)
Stephen Phillips (Sleaford and North Hykeham, Conservative) *
Dominic Raab (Esher and Walton, Conservative)
Jacob Rees-Mogg (North East Somerset, Conservative)
Andrew Smith (Oxford East, Labour) *
Bob Stewart (Beckenham, Conservative)
Stephen Timms (East Ham, Labour) *
The following MPs spoke against the motion:
Chris Bryant (Rhondda, Labour) *
Thomas Docherty (Dunfermline and West Fife, Labour)
Michael Ellis (Northampton North, Conservative)
Damian Green (Minister of State (Immigration), Home Office; Ashford, Conservative) *
The debate was also attended by:
Jonathan Ashworth (Leicester South, Labour)
Mike Gapes (Ilford South, Labour)
Graham Jones (Hyndburn, Labour)
Dawn Primarolo (Deputy Speaker; Bristol South, Labour)
George Young (Leader of the House of Commons, House of Commons; North West Hampshire, Conservative)
Highlights from the Debate
The motion:
That this House
calls upon the Government to reform the UK’s extradition arrangements to strengthen the protection of British citizens by introducing as a matter of urgency a Bill to enact the safeguards recommended by the Joint Committee on Human Rights in its Fifteenth Report, HC 767, and by pursuing such amendments to the UK-US Extradition Treaty 2003 and the EU Council Framework Decision 2002 on the European Arrest Warrant as are necessary in order to give effect to such recommendations.
Stephen McCabe (Birmingham, Selly Oak, Labour) I congratulate the hon. Gentleman on his efforts to secure the debate. Does he agree that whatever the outcome of the debate tonight, it would be helpful if the Government Front-Bench team gave us an update on the Gary McKinnon and Babar Ahmad cases, given that they have been so closely involved in them in the past?
Dominic Raab (Esher and Walton, Conservative) I thank the hon. Gentleman. It would certainly be useful to have an update on the cases that have attracted so much limelight and controversy. More generally, we ought to have some discretion in this country to prosecute such cross-border cases here. Jurisdiction ought to be decided transparently, by independent courts, according to clear legal rules, not by prosecutors haggling behind closed doors. That is why the idea of guidelines for prosecutors does not go far enough. Of course, the legislation is already in place under the Police and Justice Act 2006. Let us bring it into force and take the political heat out of these cases, which I respectfully suggest would be in the interests of both countries. The previous Government enacted that legislation, so it is difficult to understand why Labour Front Benchers might seek to block it by opposing the motion.
Stephen Timms (East Ham, Labour) Many constituents have raised with me the Babar Ahmad case, which my hon. Friend Steve McCabe mentioned. Will the hon. Gentleman clarify what effect he understands his motion, if agreed to, will have on pending cases, as opposed to future cases?
Dominic Raab (Esher and Walton, Conservative) I thank the right hon. Gentleman for his question. The short answer is that it is not clear. There has been talk about whether it might have some impact on the Babar Ahmad case, and indeed the Gary McKinnon case, but the truth is that it is not clear, and from this position I cannot give legal advice on individual cases.
Steven Baker (Wycombe, Conservative) My hon. Friend makes his case with great erudition and I have every admiration for him, but I would like to return to something he said earlier about the practical import of the matter. Does he agree that, whatever the measure’s impact, it is essential that never again must anyone spend seven years in prison awaiting extradition?
Dominic Raab (Esher and Walton, Conservative) My hon. Friend is of course right. That must be a point of principle, even when serious allegations have been laid. The proposed change in the law might not even necessitate amendment of the treaty. Nevertheless, given its disproportionate value to our American friends, it is inconceivable that they would refuse if pressed to change the treaty. I also note that in the US’s extradition treaties with Brazil, Mexico and Australia, to name a few, those countries retain the right to decline extradition in those and far wider circumstances as it affects their nationals. Is it so unreasonable for Britain, a stalwart ally, to ask for that rather modest adjustment?
Caroline Lucas (Brighton, Pavilion, Green) With regard to an earlier intervention, it might be helpful to the House if I explained that the legal advice I have received—I know that there is plenty of legal advice on all sides—indicates that if it can be demonstrated that there were original flaws in the Babar Ahmad case, as I believe it can, the outcome of the vote could be particularly relevant to that case.
David Blunkett (Sheffield, Brightside and Hillsborough, Labour) On the American issue, however, I shall talk about not just balance, but the rule of law, because we must have sensible arrangements that do not rest on whether we think an individual’s case is a good one. The Americans quite rightly put to me, “What about Abu Hamza? Whose hands are going up for a type 1 diabetic who is a double amputee, and for his associate, who is alleged to be bipolar? Who feels they ought to run such campaigns on their behalf to stop extradition?” How do the United States see the issue when they are trying to ensure that principles are applied and a precedent not set which would then create complete havoc in the justice system? The rule of law has to apply equally and sensitively, but it has to include rules to which we can all adhere.
The NatWest three, or the Enron three as the Americans prefer to call them, were totally innocent according to their campaigns, and even I began to be convinced that they were, until of course they reached the United States and pleaded guilty.
John Hemming (Birmingham, Yardley, Liberal Democrat) The Enron three told me that if they pleaded not guilty in America and were found guilty they would get 35 years, but that if they pleaded guilty they would get five years. They were concerned about being forced into pleading guilty in America.
David Blunkett (Sheffield, Brightside and Hillsborough, Labour) With an agreement between prosecuting authorities, it would be perfectly feasible to use video conferencing so that the accused could not only take part in the trial and be questioned, but view the trial and, if found guilty, serve their sentence in a friendly state, where everyone agreed that conditions were acceptable. Let us have the further review on the back of Scott Baker. We have had the review that people wanted, and they do not like it. By all means let us keep reviewing it, but let us do so with a degree of common sense and balance, in the spirit of this debate.
David Davis (Haltemprice and Howden, Conservative) There is a balance between justice and security, but security without justice is a very fragile security. It is our job to defend our lives and way of life, and in this respect I do not think that we have done so...
Let me make a simple point. In this country, we presume innocence. That has all sorts of implications that we do not think about most of the time. For example, it means that unless there is a threat to a jury, an ongoing threat to the public, or a risk of absconding, we generally give bail—we do not imprison people who are awaiting trial if we can avoid it. If we do imprison someone, we put them on remand, where they are treated as innocent. They wear their own clothes; they are not made to work; they are called “Sir”: all sorts of things apply to prisoners on remand that do not apply to other prisoners, either in this country or, indeed, abroad. The presumption of innocence has a distinct effect on how we treat people.
Let us compare that with people who are extradited. They feel as though they have been deported. They are in a foreign prison, often with lower standards; my hon. Friend referred to that in terms of Greece. They are not only in a different culture, but often surrounded by people speaking a different language. They are, in effect, in psychological isolation; one might think of it as psychological solitary. They are often thousands of miles away from their family. They are viewed as an alien in the institution in which they are held. That, of itself, is a very serious punishment of people we are presuming innocent at this stage of the process.
In addition, such people face a different justice system; I will describe it only as lightly as that. As was alluded to in the context of the NatWest three, this is a justice system that is not above saying, “Here is a plea bargain. Either you plead guilty or you’re going to stay in this nasty Texan jail for the next two years while we think up the case against you.” That is different from what they face here—and, frankly, I do not think that it is justice. As worst, it is a justice system that is actually corrupt, as we have seen in Greece. Although I understand the ex-Home Secretary’s point of view, this was not new to us even when the EAW was created. I had a constituent who was one of the plane spotters and who was locked up, in effect, for political reasons and not given what I would judge to be anything like a fair trial—and, of course, he was tried for doing something that was not illegal in this country. That is, at this stage, how we treat people who are presumed innocent under our system.
John Hemming (Birmingham, Yardley, Liberal Democrat) I very much agree with my right hon. Friend. Does he agree that that supports a strong argument that, where possible, any prosecutions where there are alternative forums should be in the home forum?
David Davis (Haltemprice and Howden, Conservative) I entirely agree. That is very much the thrust of what I will say in the next few minutes.
Because of the terrorist problem, the international crime problem, and the pressure for a fast agreement, we have left out some proper protections in the agreements that we have made, particularly with America. Debating this when he was in opposition, the current Attorney-General said 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…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.”—[Hansard, 12 July 2006; Vol. 448, c. 1419.]
He is right. Not only the Irish, but Norway, Switzerland, Holland, France and Germany all have such provision. In fact, the Germans’ law will not allow the extradition of any of their citizens outside their country. Similarly, two Commonwealth countries—Australia and New Zealand, two of America’s closest allies in the war on terror—have total discretion over who among their own nationals they allow to be extradited. The idea that we are somehow at odds with the accepted—and, indeed, acceptable—approach among the western nations in their battle with terrorism is nonsense...
Let me look at the other side—American reciprocity. Much of this is about reciprocity, so how have the Americans behaved? My hon. Friend Richard Ottaway, who is the Chairman of the Foreign Affairs Committee, asked how many cases have been refused. I have worked in the murky world of international relations in the Foreign Office, and I know that the number of requests refused is zero—but of course it does not work like that. If one wants to turn something down, one rings up one’s ally and says, “Would you mind withdrawing it?” The US subsequently withdrew 5% of its applications, whereas we withdrew 20% of ours. I wonder why. I do not think that the Americans can claim a very great moral high ground in terms of reciprocity. Indeed, the attitude taken to that by many countries, including Canada, Spain, France, Germany and Italy, has traditionally been much more robust than ours.
So what should we do? My hon. Friend the Member for Esher and Walton has made this point in some detail, so I will be quick. We should change the forum arrangements. They should pay proper attention to not accidentally punishing the innocent or over-punishing those guilty of minor crimes. I do not know why the Americans should think it better for Gary McKinnon to spend two years in an American prison than for two American witnesses to spend two weeks in a hotel in Britain while the case is tried. We should have prima facie evidence requirements so that we do not repeat the Symeou experience of somebody spending a year in a foreign prison before eventually being proven innocent. Finally, we should introduce a filter for cases that are acceptable using dual criminality, seriousness and timeliness, so that justice does not become so heavy handed that it tips over into being injustice.
Hywel Francis (Aberavon, Labour) I remind Members that this debate is about human rights. My purpose is simple: it is to give the motion my full support as Chair of the Joint Committee on Human Rights. I do so officially on behalf of the Joint Committee. I confirm that the motion embraces all the key recommendations of the Committee’s report, which was adopted unanimously. I got the sense that the two previous contributions endorsed the recommendations of my Committee...
Beyond that, the Government should look carefully at the big fairness and human rights issues on which my Committee is more unequivocal and forthright, such as rebalancing the US-UK treaty, mistaken identity and the use—or, as I would say, the misuse—of the European arrest warrant as an aid to investigation, which is sometimes a travesty of justice...
I cannot recall a time in the decade since I entered the House when there has been such unanimity across the Back Benches. For that unanimity to be achieved on such a major policy area as the human rights of our citizens is gratifying to me as the Chair of the Joint Committee on Human Rights, particularly given that extradition engages so many fundamental human rights, such as the prohibition of torture and inhuman or degrading treatment, the right to liberty and security, the prohibition of discrimination, the right to respect for private and family life and, most fundamentally of all, the right to a fair trial. I believe that all Members are united in striving to achieve those fundamental human rights and long may that continue, throughout the length of this Parliament and beyond. I will end, Madam Deputy Speaker, by paraphrasing one of your great heroes and a fellow feminist, Eleanor Roosevelt, who was a great champion of human rights. She asked: if we do not defend human rights in our own back yard, how on earth can we fight for human rights universally?
Andrew Smith (Oxford East, Labour) I also wish to add my voice to those of Members who have raised the case of Babar Ahmad. It cannot be acceptable that someone is held without trial for as long as he has been. To pick up on a point that was made earlier, it is encouraging that if there is a change to the law, it will affect pending cases, so he will no longer face the uncertainty of not knowing what will happen to him, or even when he will find out what will happen to him.
Michael Crockart (Edinburgh West, Liberal Democrat) Some 140,538 individuals have added their signature to the “Free Babar Ahmad” e-petition, which is rightly the catalyst for this debate, although the problem is much wider, as has been shown. I am glad that such cross-party support exists—even the Daily Mail, which I do not normally read,supports the campaign—but it was not always so. The Liberal Democrats have been vocal in our criticism of the lopsided extradition arrangements between Britain and the US for many years. Indeed, my hon. Friends the Members for Somerton and Frome (Mr Heath) and for Southport (John Pugh) were the only Members to vote against it in a scrutiny Committee. In 2006, we proposed amendments to the Extradition Act 2003 to protect the freedom and fair judicial treatment of British citizens, but, sadly, the previous Government refused to accept them. I am pleased that the Liberal Democrats are acting on this issue in government and that my right hon. and learned Friend Sir Menzies Campbell will lead a Liberal Democrat review of UK-US extradition arrangements. I await the findings of his report with interest.
Caroline Lucas (Brighton, Pavilion, Green) The motion calls on the Government to introduce “as a matter of urgency” a Bill to enact the safeguards recommended by the Joint Committee on Human Rights in its recent report. The motion calls for urgent legislation rather than simply legislation because a number of British citizens face the risk of extradition at any moment—this is an urgent issue. Babar Ahmad’s father started a grass-roots e-petition with no formal organisation and no big newspaper backing, but none the less it garnered more than 140,000 signatures.
People signed the petition because they were horrified by the plight of Babar Ahmad, a British citizen who was detained in the UK for more than seven years without charge or trial. He faces extradition to the US with the prospect of solitary confinement for life in super-max conditions, which arguably amount to torture. Babar is not alone in his ordeal. The poet, Talha Ahsan, another UK citizen, is also being held—his case is related to Babar’s—without charge or trial under our shocking extradition arrangements. He is entering his sixth year of imprisonment.
Of course, such asymmetric extradition arrangements do not apply only in terrorism cases, and I put on record my deep concern about the Gary McKinnon case, but I want to focus on the case of Babar Ahmad. I pay tribute to the courage and bravery of the families of Babar and Talha in fighting for justice for their sons, and to their MP, Sadiq Khan, who has worked to support them since their ordeal began.
I have long lobbied for the closure of Guantanamo Bay. As we approach its 10th anniversary, the cases of Talha and Babar remind us that one of the most fearful things about Guantanamo Bay—people being held without charge or trial—is happening on UK soil, right now, at the behest of the US.
In a debate in Westminster Hall last month, Members heard of the appalling circumstances of Babar Ahmad’s arrest in 2003 and the fact that he sustained at least 73 injuries for which he was awarded £60,000 compensation by the High Court in 2009. He is now in his eighth year at a top-security prison without charge. The allegations against him are serious. The US has alleged that Babar was running a website that solicited funds for terrorist organisations, including al-Qaeda and Chechen rebels. That is a grave accusation and there should of course be a trial. Indeed Babar and his family desperately want the case to come to trial so that they can clear his name. They want it to take place in the UK and not in the US partly because Babar is a British citizen and is accused of committing crimes in the UK.
Jeremy Corbyn (Islington North, Labour) I congratulate my hon. Friend on taking up this case and on what she is saying. Does she agree that if Babar Ahmad were to face trial in this country, it is likely that the case would collapse because of the way he has been treated, the conditions under which he has been held and the nature of the accusations that have been made against him throughout?
Caroline Lucas (Brighton, Pavilion, Green) I agree with the hon. Gentleman. I was explaining that Babar wants to stand trial here partly because he is a British citizen and partly because going to the US would separate him from his family, friends, and legal representatives, which would seriously undermine his ability to mount a strong defence.
Interestingly, I have seen extracts from the European Court interim decision on the cases of Babar and Talha. In paragraph 175, it is clear that the European Court has had from the UK Government an acknowledgement that they could be tried here, which runs counter to what is generally asserted. Moreover, Babar’s lawyers also point out that other comparable prosecutions are proceeding in the UK. Nevertheless, in July 2004 and December 2006, the CPS and the Attorney-General declared that there was insufficient evident to charge Babar Ahmad with any criminal offence under UK law and that he should therefore be extradited.
If it is agreed today that there should be a Bill and a new approach, it would be even more essential for there to be new prosecutorial decisions in these very disturbing cases. In Babar Ahmad’s case, it is my understanding that his lawyers are requesting a new prosecutorial decision on the basis that there has not been a proper one to date. That should mean that the changes that we are calling for today need not be retrospective but, rather, current in relation to these new prosecutorial decisions. Those decisions are needed because of these very disturbing cases in which it is clear that things have gone wrong.
The night before the debate on extradition in Westminster Hall, there was a shocking turn of events. Babar’s lawyers received a letter from the CPS that admitted for the first time that it was never given the evidence that was sent to the US, apart from a few documents. The bulk of the evidence was shipped straight to the US by the police. Astoundingly, although we had previously been led to believe that the CPS had viewed all the evidence and judged it insufficient to bring the case to trial in the UK, we now have a confession that it had not even seen all the evidence let alone investigated it properly. Quite simply, a proper decision has not been made on whether a prosecution can go ahead in the UK. That is shocking and it raises serious questions about why evidence that should have been given to the CPS was not and why Babar was not told about it. Who directed and authorised that circumvention of the CPS, apparently in deference to and at the behest of the US? Given the seriousness of what the CPS has told Babar Ahmad’s lawyers, we need not just new prosecutorial decisions but a full public inquiry into what has gone on in this case.
The second major failure of prosecutors relates to human rights. Decisions to prosecute or not to prosecute here should not be relinquished so easily in favour of the US. There are grave human rights implications that have not been properly taken into account. In these cases over whether and where to prosecute and whether to extradite, it is incredibly important for us to understand that the police, the CPS, the Home Office, the Foreign Office and the Attorney-General’s office are all bound to consider the implications of the Human Rights Act 1998 in relation to every one of their decisions. That means that it is extremely relevant that concern has already been expressed, both by the courts here and now by the European Court, that the human rights issues that lie at the heart of the ongoing consideration in Strasbourg clearly never even formed part of the CPS’s original decision in Babar’s case and that the evidence was almost immediately conveyed to the US.
That in itself demonstrates that there has been a failure in the fundamental duty of prosecutors, which has not been adequately addressed to date. We cannot and should not tell the CPS who to prosecute, but we can and we should tell it to do its job properly and to insist on it receiving and properly reviewing all the UK evidence.
Let me say a little more about the significance of the current role of the European Court in Babar’s case. The European Court of Human Rights has been wrestling with fundamental issues that relate not just to Babar Ahmad’s case but to many others for the past four years. The final decision is expected imminently. The European Court has been considering two key issues: whether the use of extreme isolation for prisoners in prisons in the US before trial and post-trial amounts to a violation of article 3 of the European convention on human rights—the article prohibiting torture—and whether the length of sentences in the US, in particular the imposition of life imprisonment without parole or of 80 to 100 years, also violates article 3 of the convention. Whether or not the European Court finds for the applicants, in which case the UK cannot extradite them as long as those two potential fates await them, it is shocking that things have come to this. Courts here and the court in Europe have expressed their concern that what faces UK citizens if they are extradited to the US in a number of cases might arguably constitute what the law defines as torture.
These cases raise, in the most fundamental way, a convergence of issues between whether these men should be prosecuted here and the extreme consequence of what would happen to them if they were extradited to the US. Now we have today’s debate. It is a matter of weeks before we hear the result of four years of anxious scrutiny by the European Court of Babar’s case. I ask hon. Members to support the motion that has been tabled today because it is a crucial opportunity for us to send a clear message to say that the extradition laws in this country need to be radically reformed. If we do not do that, we are failing in our most basic duty of protecting British citizens. That is why it is so significant that there has been huge Back-Bench support for this motion, and I hope that it will be demonstrated when it comes to a vote—if it does—later tonight.
Stephen Phillips (Sleaford and North Hykeham, Conservative) ...Furthermore, there are principles surrounding the protection of people’s human rights—the principle that we do not require those domiciled in this country, regardless of whether they are citizens, to be extradited if they might face capital punishment. That was alluded to by Caroline Lucas—although I could not agree with all her remarks about torture.
Two issues have arisen out of the 2003 Act. The first concerns the disparity—or lack of reciprocity—perceived to exist between the arrangements that we have in place for extradition to the United States and the arrangements that the United States has in place for the extradition to this country of those accused of crimes here. Notwithstanding what was said by the then Attorney-General, Baroness Scotland, when the commencement provisions of the 2003 Act were debated in the other place, I agree with the Baker report that there is little difference between the tests applied on this side of the Atlantic and on the other side. Fundamentally, there is no difference between probable cause and reasonable suspicion.
What so concerns our constituents—certainly in my constituency—and many lawyers is that whereas in the United States the fourth amendment to the constitution, which requires probable cause to be shown, requires that an extradition request go before a court, there is no such requirement in this country. In those circumstances, it is perceived—I think, perhaps, correctly—that citizens or anybody domiciled in this jurisdiction whose extradition is sought to the United States are being denied a right that they might otherwise have had.
The commencement of the forum provisions contained in the Police and Justice Act 2006, in so far as they amended the 2003 Act, would go some way to meeting these difficulties. I agree with the Joint Committee on Human Rights that it is difficult to understand why those provisions have not been commenced, including by the previous Government. Liberty obtained advice from leading counsel, Edward Fitzgerald and Julian Knowles, that no amendment to the treaty between this country and the United States would be required were those provisions to be commenced. I would like to hear from the Minister, therefore, that the Government will at the very least bring forward the commencement of those provisions.
Richard Fuller (Bedford, Conservative) My hon. and learned Friend is talking about the immediacy and the timing of some of these issues. That Babar Ahmad, who is the most pertinent example, has still not been brought to trial after seven years is further evidence of a scar on general jurisprudence in this country. Does that not give a sense of the importance of immediacy?
Stephen Phillips (Sleaford and North Hykeham, Conservative) I agree with my hon. Friend that it is a stain on justice in this country and, in my view, on justice in the United States that Babar Ahmad has been locked up for seven years. If Babar Ahmad wanted a trial, he could have one in the United States, but one of the great difficulties with forum issues is this: why on earth should he have to do so? Why should he be taken to a foreign jurisdiction, when the witnesses, the evidence and his legal representatives might be here, to defend himself against these very serious accusations? As the hon. Member for Brighton, Pavilion pointed out, these are very serious allegations indeed. I was horrified to hear her comments about the absence of evidence before the Crown Prosecution Service. I hope that that matter will be looked into and that the Minister will assure us that the evidence will be made available.
Jeremy Corbyn (Islington North, Labour) I start by congratulating the Backbench Business Committee on securing this debate and Mr Raab on how he introduced it. I also place on the record my pleasure that, after the unfortunate way in which the debate was punted into Westminster Hall, we now have it on the Floor of the House. I thank those concerned and those who campaigned to ensure that these huge petitions were responded to properly.
When I was first elected to the House, I never would have dreamed it possible that public campaigns and public concern could result in a debate in the House of Commons. We spent years trying to secure debates on the Birmingham Six, the Guildford Four and several other cases that turned out to be serious miscarriages of justices and which, in the current atmosphere, would undoubtedly have attracted the same number of petitioners as the cases being discussed tonight. We should welcome the fact that Parliament has manoeuvred itself into a position where it can be more responsive to public concerns and justice issues. I hope that it continues. After all, that is what we are sent here for—not only to write laws and change laws but to consider issues of miscarriages of justice.
Stephen Phillips (Sleaford and North Hykeham, Conservative) I am extremely grateful to the hon. Gentleman for giving way so soon. Is not one of the problems with the McKinnon case that there is nothing in the 2003 Act to enable the Home Secretary to take into account either mental or physical illness? That means that Gary McKinnon’s Asperger’s cannot be taken into account when deciding whether he should be extradited.
Jeremy Corbyn (Islington North, Labour) The hon. and learned Gentleman makes an excellent point, and I agree with him. That is the fundamental weakness in the 2003 Act, which does not allow that discretion which any sensible, right-thinking person would apply straight away on a humanitarian basis...
The third case that I want to mention is that of Babar Ahmad, which was brought up excellently by my friend Caroline Lucas. Yesterday I received an e-mail from his father that I would like to quote from:
“I am writing to request that you attend the debate…and…vote in favour of reforming the laws so that they strengthen the protection for British citizens, such as my son Babar Ahmad, who is now in his eighth year of detention-without-trial.”
He continues:
“Babar is the longest detained-without-trial British citizen in the modern history of the UK. He is in his 8th year of detention in a maximum security institution. He has served the equivalent of a 14 year sentence and if he had been tried and convicted in the UK, he would be probably out by now. The CPS has recently admitted that it never considered the evidence against Babar before it was sent to the US authorities”—
a point made by my friend, the hon. Lady—
“yet for over seven years, they have allowed him to languish in prison without trial, refusing to prosecute him on the alleged basis that there is ‘insufficient evidence’ to prosecute him. The crimes for which he stands accused are said to have taken place in the UK. Over 141,000 people and 100 senior lawyers have written in his support. If extradited to the US Babar faces a period of 3 years pre-trial detention in complete isolation. If convicted he would face life without parole in solitary confinement at a Supermax prison”.
Is that really what we want for British citizens under this law? That is what will happen if Babar Ahmad’s extradition goes ahead. His father continues:
“On 22 June 2011, Parliament’s JCHR explicitly raised concerns over Babar’s case recommending that the government urgently re-negotiate the UK-US”
agreement. Finally, just to make the point, he says that this debate is part of the “enormous public interest” in the case, and in particular the examination of it by the Muslim community in this country, which feels that Babar Ahmad’s case is indicative of something about the treatment of people where there is any suspicion of the kind of offences in which he is alleged to have been involved. He cannot be tried in this country because of the way he has been treated—the trial would collapse—so why on earth should we even consider allowing him to go to the United States?
Baroness Helena Kennedy, who is extremely eminent on all legal matters and somebody for whom I have enormous respect, wrote an excellent article in The Guardian today in which she raised the question of the forum. She wrote:
“To my mind, where there is clear evidence to a criminal standard of a crime being committed either in the UK or from the UK and jurisdiction is being contested, an English court should be required to determine the strength of the evidence and the ‘forum conveniens’—that is, the location of any prosecution. The court’s decision on forum should be based on clear guidance—the nationality of the defendant and the victim; location of both the prosecution and defence evidence, witnesses, and so forth. Yet as it stands there is no statutory right for a UK defendant to challenge extradition on forum grounds.”
I hope that the Minister will be able to respond to that in winding up the debate.
The general point that I want to make is this. We are not here to defend criminals. We are here to ensure that those who have been charged are given a proper hearing and a fair trial. Extradition arrangements must be fair and reciprocal, and in most past cases they have been, in the sense that the Minister for the Interior, or the Home Secretary, has been able to exercise some degree of discretion as to whether or not a person should be extradited. I think that that is right, although one might disagree with the discretion used on certain occasions. What we have here, however, is a completely imbalanced system—as a result of both the European arrest warrant and our arrangements with the United States—which
I consider to be contrary to all the judicial traditions of this country, and on which I think it right for the House to take a stand.
I hope that the motion will be passed, and that that will send a clear message to the Government about what we want. I understand that there may not even be a vote. That either indicates unanimity or indicates that the dark forces of the Whips’ Offices in all parties have taken the night off, but I fear that they are forces that never sleep.
On 11 November the Home Secretary received a long letter from Shami Chakrabarti, general secretary of Liberty, which made points about forum, and many more general points. She wrote:
“The human rights bar in the 2003 Act is of the utmost importance and we continue to encourage its effective application by the British judiciary.”
I hope that the Minister will be able to assure us that that letter has received a reply, and will be able to inform us of the Government’s general attitude. We are here to stand up for justice and liberty, and I believe that our arrangement with the United States is the opposite of those things.
Charlie Elphicke (Dover, Conservative) My hon. Friend is making a powerful speech, but let me ask him a question. If I were facing a Texas jury having been extradited from my homeland here in the United Kingdom under the extradition treaty to face trial, would I have recourse to legal aid or something analogous to it under the wonderful rights-based system in the United States?
Michael Ellis (Northampton North, Conservative) The systems provided by the United States are accepted by the international community as being perfectly amenable to the interests of democracy and the rights of the individual within the state of Texas and other states of the American union... I have heard no evidence, and the Baker report came up with no evidence, pinpointing where there is imbalance. There is different terminology, with “reasonable suspicion” being used often in the UK arrangements in relation to the evidential burden that is required, whereas “probable cause” is used by the United States. Those two terms may be slightly different in phraseology but they mean very much the same thing, and those who have analysed the position in some detail, either in the Baker report or elsewhere, have come to that clear conclusion.
David Davis (Haltemprice and Howden, Conservative) My hon. Friend has asked for an example. How does he see the circumstances of someone facing trial in Texas who is thousands of miles from their nearest and dearest, isolated from their community and has no financial support? Does not the plea-bargaining system in America become a predatory process that threatens them with long-term loss of liberty or the prospect of giving in and admitting guilt?
Michael Ellis (Northampton North, Conservative) There have been extradition arrangements between our two peoples since the later part of the 18th century. As for plea-bargain arrangements, there are also pressures on defendants in the British system. We do not refer to them as plea-bargaining, but defendants know that if they plead guilty they are likely to receive a lesser sentence, so although we have no plea-bargaining arrangement, it is not correct to assume that the two systems are completely different.
Dominic Raab (Esher and Walton, Conservative) My hon. Friend has made the point about the paper test, but the key point made by Alun Jones QC is that the quality of evidence is assessed in extraditions both ways by the US courts—that is a requirement of the US constitution—but in neither case by the UK courts. There is the imbalance. Does my hon. Friend accept that?
Michael Ellis (Northampton North, Conservative) No, I do not accept that. I agree with the Scott Baker report that there is no fundamental imbalance. It is important to point out that the United States has not denied a single extradition request from the United Kingdom under the treaty. Although the United States makes more requests to the United Kingdom than it receives, the difference is largely because the population of the United States is five times greater than that of the United Kingdom. There is no imbalance. The Scott Baker report confirms that, and I cannot support the motion.
Charlie Elphicke (Dover, Conservative) ...This error, which in my opinion results from the use of different legal definitions in our two systems, has crept into the defence of the treaty. Indeed, His Excellency the American ambassador to the Court of St James, Louis Susman, has decided to take an interest in our internal affairs and wrote in The Daily Telegraphtoday that there is no real difference. I think that in a deep sense there is a difference. He states:
“In all extradition cases, the UK authorities always begin by considering whether an individual can and should be tried in the UK instead of being extradited. Once the UK authorities decide that the case should be tried in the US, all extradition hearings are then held in UK courts”,
and then off the person goes. My difficulty with that argument is that I see nothing in the treaty that makes that the case. There is a provision in the treaty that states clearly, in my humble opinion, that just because no action is being taken in the UK the person can be extradited. Nothing states that. Paragraph 4 of article 2 states:
“If the offense has been committed outside the territory of the Requesting State, extradition shall be granted in accordance with the provisions of the Treaty if the laws in the Requested State provide for the punishment of such conduct committed outside its territory in similar circumstances.”
It also seems clear, in the paragraph relating to no prosecution, that if charges are not made in the UK the person can be extradited, but even if charges were laid in the UK, my reading of article 5 is that there is no bar on extradition being sought from the United States in that case either.
My fundamental trouble with the support being given to the US-UK treaty in its current format is very simple: if a crime is committed or alleged to have been committed on British soil so that the act of the crime, what lawyers call the actus reus, was in the UK, meaning that the deed was done in the UK, surely the proper forum is the UK. Many of the cases that we have discussed tonight and that have caused so much ire are cases where people in the UK have allegedly committed crimes for which the foreign requesting jurisdiction, typically the US, is asking for them, and we know that if a crime has been committed it has been committed in the UK. Surely the right place for that person to be tried is the UK, for all the reasons my right hon. Friend Mr Davis has given. For example, they have their friends, family and loved ones around one, they have a house, they do not have to pay to maintain themselves and they have access to legal aid.
If people are shipped over to face a jury in Texas, as the NatWest Three or Enron Three were, they will know very well that they will have to maintain themselves, that they are far from their loved ones and best advisers and that they will have to pay all the fees if they want to see the court case through. When someone faces the massive likelihood of a conviction because there is a Texas jury and they are not from Texas, which regrettably can be the case, they will accept a plea bargain that is made to look very enticing and attractive. They can have a massively long sentence of multiple years on the one hand or a very short sentence on the other. What will they do? Of course they will accept the plea-bargain. I think that that is incredibly unfair. If people in that situation have committed a crime, it was in the UK and they should have been prosecuted in the UK.
Jacob Rees-Mogg (North East Somerset, Conservative) It is a real privilege to follow my learned hon. Friend Charlie Elphicke and to speak in this debate, called by my hon. Friend Mr Raab, who is so right to be defending the ancient rights of the British people. My hon. Friend Richard Drax got it absolutely right when he said that we spend a lot of time talking about the human rights of people in this country until, suddenly, extradition comes up and then—bingo!—they have gone, and they are sacrificed to transportation to a foreign land.
The point that we should focus on is the first principle of why we have such protections for the innocent in the criminal law. We have, as we know, a powerful state. The state provides the police and the prosecuting authority, and the state pays the judges and reimburses the juries, and, because of that great power, the state then feels it is right to put in place protections for the individual who is charged: the right to trial by jury; the right to habeas corpus; and the right to be presumed innocent until found guilty. These are the foundation rights of our criminal justice system and have a history stretching back 1,000 years.
But, when it comes to extradition, people can go to countries that do not have or follow that tradition...
The United States is our greatest and closest ally, and a country with which we want to have the friendliest of relations, but we have already heard about the extraordinary approach it takes to plea bargaining: one may be threatened with 400 years without the option of parole, or if one pleads guilty one gets a week in a resort near Canada, as happened to the man who was prosecuted at the same point as Lord Black of Crossharbour—his noble lordship. One of them was offered an enormously long sentence, and the other was offered a Canadian golf club.
Michael Ellis (Northampton North, Conservative) We do not have a system of plea bargaining in this country, but does my hon. Friend not accept that people who plead guilty in the United Kingdom’s courts will almost invariably receive a lower sentence than if they are found guilty after trial? There are good public policy reasons why.
Jacob Rees-Mogg (North East Somerset, Conservative) There are, indeed, but that is of a completely different order of magnitude: one gets a little off one’s sentence if one pleads guilty early—rather than being threatened with hundreds of years against a week in a golf club. That does not happen under the British system, but we know that it happened to the man who turned the equivalent of Queen’s evidence against Conrad Black. We know that it happens in the United States system, but we are willing to risk British subjects going over there...
However, I do not think that the ambassador to the Court of St James—the extraordinary plenipotentiary of the United States—behaves in a diplomatic way when he starts telling this House how we ought to consider our business. I like to think what the noise would be in Washington if our ambassador there decided to suggest to the Senate or to the House of Representatives how they ought to conduct their business. Sitting as he does in his grand fortress in Grosvenor square like some Persian satrap, he should not be telling the House of Commons how to conduct her business. Of course we should have friendly extradition arrangements with the United States, but crucially ones that protect the ancient rights of the British subject whereby they should be innocent until proved guilty and should remain within the jurisdiction of this country until evidence is produced against them.
If we are worried about the United States, how much more worried should we be about some European countries, which can, in effect, arrest people and have them removed from this country without so much as a by-your-leave? We are risking people’s freedom and liberty. This House exists to protect the freedoms and the liberties of the British subject. Yes, I know that some of them will be guilty and will deserve severe punishment for the crimes they have committed, but have we not set up our justice system on the basic principle that it is better for 100 guilty men to go free than for one innocent man or, indeed, woman, although women commit fewer crimes—[ Interruption ] It is true; they do—to be imprisoned when innocent? If that is the starting point of our justice system, then surely we ought to apply it when it comes to extradition, and therefore the Government ought to review the arrangements that they have with the United States.
Michael Ellis (Northampton North, Conservative) Does my hon. Friend give no credence to the fact that in the 500-page Scott Baker report, commissioned by Her Majesty’s Government, eminent jurists came to the conclusion that the imbalance that he is assuming between British and American relations regarding extradition does not exist?
Jacob Rees-Mogg (North East Somerset, Conservative) Had my hon. Friend paid closer attention to the excellent speech by my hon. Friend the Member for Esher and Walton, he would understand that there are differing views on that. It is well known that, with Government reports, the people are appointed who will provide the report that is wanted. That has been practised over many centuries.
Stephen Phillips (Sleaford and North Hykeham, Conservative) As I understand it, the hon. Gentleman is therefore advocating that it is perfectly acceptable for citizens of this country to be extradited to jurisdictions where conditions in the justice system are less than ideal when no prima facie case is shown. Is that right?
Chris Bryant (Rhondda, Labour) The Committee makes it clear in its report that the “EAW is based on the principle of mutual recognition of judicial decisions and… mutual trust” between the judicial authorities of EU states. That is a legitimate position for us to adopt, just as it was adopted in 1991 by the Conservative Government when they signed us up to the ECE...
Let me turn to the imbalance in the US-UK treaty. Members will know that the US constitution requires that nobody can be arrested without a prosecuting authority proving probable cause. That applies equally for a US arrest for US prosecution, for an international arrest warrant or, under the 2003 treaty, for extradition. The requirement for a UK extradition to the US is that information must be provided that satisfies the reasonable suspicion test. Both tests are based on reasonableness and require similar paperwork and evidence to be submitted. In the case of someone to be extradited from the UK, the US authorities first have to secure a warrant or grand jury indictment, both of which require that the probable cause test is met in the United States of America. The argument that the treaty is imbalanced is simply not made.
Let me briefly turn to the cases of Gary McKinnon and Babar Ahmad, which are much in Members’ thoughts today. It is not for this House to decide the guilt or innocence of anyone, nor do I believe that this motion can legally affect either of the two cases, notwithstanding the points that have been made by others. The length of time that these two cases have taken makes it difficult to see how justice is being done in either of them. Whatever changes the Government bring forward will not directly affect them. None the less, I urge the Secretary of State to make a final decision on Gary McKinnon as soon as possible, and the European Court on Human Rights to do the same by Babar Ahmad. Nothing we do tonight will free either of them, but we can ensure that in future others do not suffer in the same way.
Damian Green (Minister of State (Immigration), Home Office; Ashford, Conservative) It is a terrible ministerial cliché to stand at the Dispatch Box and say that this has been a good and useful debate, but tonight it is true. Particular thanks should go to my hon. Friend Mr Raab and to members of the Backbench Business Committee for securing time in this House to debate these important issues. My hon. Friend made some kind remarks about me at the start of the debate and I should reciprocate by praising not just his energy in pursuit of this campaign—this is our second debate in nine days on the subject—but the considerable legal expertise that he brings to the subject, as well as his contribution to the Joint Committee on Human Rights, whose Chairman also contributed to the debate.
As I made clear in the debate in Westminster Hall, the Government are currently considering what action to take to ensure that this country’s extradition arrangements work both efficiently and fairly. I welcome multiple debates on these matters and of course the Government will take them into account when responding to Sir Scott Baker’s independent review of extradition along with the work done by the Joint Committee on Human Rights and the Home Affairs Committee.
Many interesting points have been made this evening, but the only one with which I flatly disagree was made by my hon. Friend Jacob Rees-Mogg, who said that 1,000 years ago habeas corpus was an important part of our constitution. I would normally defer to him in matters of mediaeval history, but I do not remember in the dying decades of the Anglo-Saxon kings, underrated though they are in history, that habeas corpus featured particularly highly.
Jacob Rees-Mogg (North East Somerset, Conservative) As it happens, one can trace habeas corpus back an extremely long way, but I do not think that I said that.
Damian Green (Minister of State (Immigration), Home Office; Ashford, Conservative) The record will tell us which of us recollects correctly. Moving rapidly to the 21st century—
David Davis (Haltemprice and Howden, Conservative) rose—
Damian Green (Minister of State (Immigration), Home Office; Ashford, Conservative) Oh dear, I should not have done this.
David Davis (Haltemprice and Howden, Conservative) For the first time in my life, I am ashamed of my hon. Friend the Minister—actually the record goes back to the Kings of Kent in the eighth century.
Damian Green (Minister of State (Immigration), Home Office; Ashford, Conservative) I can feel a fascinating and wholly irrelevant debate coming upon us, Mr Speaker.
David Blunkett (Sheffield, Brightside and Hillsborough, Labour) rose—
Damian Green (Minister of State (Immigration), Home Office; Ashford, Conservative) This will be the last intervention on mediaeval history.
David Blunkett (Sheffield, Brightside and Hillsborough, Labour) I just want to make the obvious point that what matters is not when habeas corpus was agreed in principle but whether people can implement it.
Damian Green (Minister of State (Immigration), Home Office; Ashford, Conservative) In his known wisdom, the right hon. Gentleman brings me back to the modern era.
When we entered office last year, we recognised that there were long-standing and deeply held concerns about the UK’s extradition arrangements with other EU member states and about our extradition treaty with the United States. That is why in the coalition’s programme for government we made a clear commitment to review the operation of the Extradition Act 2003 and the US-UK extradition treaty to ensure that they were even- handed. That was why the Home Secretary announced an independent review to be chaired by Sir Scott Baker and assisted by two lawyers—an important point given some of the criticisms of the Baker commission—who between them had extensive experience of extradition from prosecution and defence perspectives...
Members on both sides of the House asked that we deal with individual cases of particular concern to them. I am, of course, happy to do that. Let me first summarise what I said about Babar Ahmad’s case. He was arrested for extradition purposes in August 2004, and in June 2007 he exhausted all the available domestic avenues for contesting the request for his extradition. He then applied to the European Court of Human Rights. On 12 June 2007, the Court imposed a stay on his extradition and on 8 July 2010 declared his case partially admissible. His case remains under consideration by the Court. The allegations against him in the United States relate to alleged conduct that took place while he was in the United Kingdom. As the House knows, an e-petition on behalf of Mr Ahmad calling for him to be put on trial in the UK has attracted more than 140,000 signatures.
Of course, the Government recognise the concern of those petitioners but it is not for the Government to decide if and when someone should be prosecuted in the United Kingdom.
Caroline Lucas (Brighton, Pavilion, Green) rose—
Damian Green (Minister of State (Immigration), Home Office; Ashford, Conservative) I am about to deal with the hon. Lady’s point.
The decision about whether to bring a prosecution is a matter for the independent prosecuting authorities, and the Crown Prosecution Service has to date decided not to prosecute Mr Ahmad in the UK.
Caroline Lucas (Brighton, Pavilion, Green) rose—
Damian Green (Minister of State (Immigration), Home Office; Ashford, Conservative) If the hon. Lady will hold on a second, I shall deal directly with her point.
The CPS has advised that a small number of documents relating to Mr Ahmad were seized by the Metropolitan police and were submitted to the domestic prosecutor for advice in 2004. The domestic prosecutor was specifically asked to advise on whether any of those documents might disclose offences under the Terrorism Act 2000 with a view to prosecution in the UK. I am advised that, on the material provided, there was insufficient evidence to mount a UK prosecution. However, when the decision was made not to prosecute Mr Ahmad in the UK, prosecutors here were aware of evidence against him in the possession of the US authorities. I understand that that evidence was far more extensive than that which was in the possession of the UK authorities. Although the CPS extradition team was in possession of some of the US material, it amounted only to that which was necessary to seek extradition, and was provided to the CPS for extradition purposes only.
The extradition proceedings in this country have concluded. The case has been heard extensively through all tiers of the UK extradition process, and extradition has been ordered. The UK courts have held that the US authorities have jurisdiction in relation to the offences of which Mr Ahmad is accused and that they are entitled to seek his extradition. The offences are crimes in both countries, thereby satisfying the extradition test of dual criminality. Mr Ahmad is now challenging extradition before the European Court of Human Rights. The Court has asked a number of questions in relation to the case; both sides have submitted observations on these points on several occasions. The extradition review panel highlighted in its report those cases that awaited a decision by the European Court of Human Rights and the amount of time that they had been before that Court. The panel recommended that the matter of the delay be taken up by the Government urgently and that the Court should be encouraged to give priority to those cases where extradition had been stayed. The Government are considering that recommendation, along with others, but the United Kingdom has pressed, and continues to press, for the Court to reach its decision as soon as possible.
Many concerns have been expressed about the length of time for which Mr Ahmad has been detained in custody awaiting the outcome of the extradition request. This has at all times been on the order of the Court, and we continue to press the Court to reach its decision on the case as soon as possible. Where the Court seeks observations or clarifications from the Home Office on the representations in the case, these are provided as soon as possible. We are acutely aware of the time that has passed since the extradition request was first made and of the importance of dealing with the matters raised as quickly as is consistent with fairness to all sides.
Caroline Lucas (Brighton, Pavilion, Green) Will the Minister agree to investigate why the CPS acknowledged and admitted that it had not seen all the information only on 23 November, after many, many years in which Babar Ahmad had essentially been in prison? If that information had been available earlier, the process here in the UK could have been much faster.
Damian Green (Minister of State (Immigration), Home Office; Ashford, Conservative) I am not sure that the hon. Lady’s last point is right, but I take her general point, and obviously the CPS will have heard what she has said.
The debate has provided much more useful information and analysis, all of which I know the Home Secretary will take carefully into account. As soon as we can, we will announce what action we propose to take in the light of the extradition review.
Dominic Raab (Esher and Walton, Conservative) With the House’s permission, Mr Speaker, I rise for the second time to wind up what has been an excellent debate. Let me thank the Backbench Business Committee again for making it happen.
We have heard powerful speeches on the basic principles of justice which are at stake. I doubt that I shall have time to mention all of them, but Mr Blunkett started us off with the benefit of his considerable experience as Home Secretary; my right hon. Friend Mr Davis spoke passionately and at length about the importance of the presumption of innocence; Dr Francis, the Chair of the Joint Committee on Human Rights, talked about the Committee’s review and report; and my hon. Friend Conor Burns spoke about the flaws in the European arrest warrant. I am sure that we all look forward to the publication of his report in due course.
We also heard compelling speeches from a range of Members representing victims of rough justice under our extradition laws. My hon. Friend Mr Burrowes spoke passionately and powerfully about the arbitrary treatment of Gary McKinnon, while my hon. Friend Richard Drax talked about the Michael Turner case. I welcome the Minister’s engagement. He has listened very patiently, and I hope that he has been convinced of the case for reform and the strong consensus in favour of it in the House.
I listened carefully to the considered speech of Chris Bryant. He seems to be rather lukewarm about the whole issue of extradition reform, but I am glad that at least he does not oppose the forum provision enacted by the previous Government.
In truth, it is for Members of Parliament in all parts of the House to stand up for our constituents, to stand up for our citizens, and to stand up for the basic principles of British justice.
Question put and agreed to.
Resolved,