extradition of nat west 3: commons debate 12 jul 2006 annotated

8/2/2019 Extradition of Nat West 3: Commons Debate 12 Jul 2006 Annotated

1/50

Legend:

Nick Clegg, Deputy Prime MinisterDominic Grieve, Attorney GeneralMichael Howard, former Home Secretary

Boris Johnson, Mayor of LondonJames Brokenshire, Home Office MinisterDavid Heath, Deputy Leader of the CommonsCurrent Senior Ministers voting

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 tremendousseriousness and urgency. We are all aware that tomorrow morning, three British citizens areto be extradited to the United States on the basis of an unfair, imbalanced treaty that theGovernment negotiated in secret and to which they devoted the most cursory parliamentaryscrutiny 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 areable to make, it is not too late to abandon that treaty, which is not yet in force in internationallaw, but which we have chosen, inexplicably, to implement unilaterally.

We on the Liberal Democrat Benches have objected to the extradition arrangements with theUSA ever since the text of the new treaty was published in May 2003. We spoke and votedagainst the orders implementing our end of the treaty in December 2003. We have tabled aBill in the House to restore the need for prima facie evidence to be provided by US authoritieswhen requesting extradition. We have supported in another place amendments to the Policeand Justice Bill that would suspend our implementation of the treaty. The purpose of thoseparliamentary initiatives has been to prevent serious injustice for those who face extradition tothe USA or may do so in futureinjustice because the extradition treaty and its enactmentthrough 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, thehon. 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 hispoint of view, and some of which were implemented.

Mr. Clegg: It is true that the report was published. However, the hon. Gentleman knows thatthe treaty was negotiated in secret and the text was only published two months latera day

before the Whitsun recess, I believe. Then, it was the subject of no more than 90 minutesscrutiny in the Committee.

Mr. Mullin rose

Mr. Clegg: I need to make progressmany hon. Members want to speak.


2/50

Hon. Members: Give way!

Mr. Clegg: We did not see the treaty.

12 July 2006 : Column 1397

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

Mr. Clegg: Did the hon. Gentleman see the treaty before the report was published? I thinknot. The full text was published two months later.

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

That is simply and totally incorrect.[ Official Report, House of Lords, 11 July2006; Vol. 684, c. 630.]

Let me explain. Article 8 of the UK-US extradition treaty sets out the new proceduresbetween the two countries. It states that the requesting countryeither the United Kingdomor the United Statesmust provide

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

Then, in paragraph 3(c), an additional burden is placed on the United Kingdom whenrequesting 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 personsought committed the offense for which extradition is requested.

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

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

when we make extradition requests to the United States, we will need to submitsufficient evidence to establish probable cause.

She acknowledged that that is a lower test than the previous prima facie standard, but addedthat 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 December2003; c. 7.]


3/50

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

Those admissions of two and a half years ago are in total contrast to the Prime Ministersstatement 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 thiscountry. The probable cause, which is the burden that the United States places oncountries that want to extradite from the United States, is analogous to what we nowprovide 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, placedifferent evidential burdens on the two parties. Either it is not reciprocal, as Ministers haverepeatedly confirmed for months,12 July 2006 : Column 1398

ormiraculouslyit is now reciprocal, in accordance with the Prime Ministerspronouncements 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 UnitedKingdom 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 theextradition treaties covered by the Extradition Act 2003, as the hon. Gentleman probablyknows, are almost entirely reciprocal. That is why they are covered by the Council of Europeconvention and the European arrest warrant, which are founded on a symmetrical relationshipbetween the two parties.

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

Mr. Clegg: Indeed. For reasons that seem to have escaped the Prime Minister and othermembers of the Government, it was balanced between the burden of probable cause in theUnited States and the necessity for the US authorities to present prima facie evidence inBritish courts. At the time, that treaty was considered by all legal experts and GovernmentMinisters 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, butwe 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 thetip of the iceberg, and it has highlighted a wider problemthe Government signed a lopsidedtreaty that short-changes the interests of British citizens and people under our judicialprotection. It may be the case, as the Prime Minister suggested today, that the extraditedindividuals could have been extradited under the terms of the 1972 treaty. It is perfectlypossible that in initiating extradition proceedings against the NatWest three, the USauthorities presented sufficient evidence to meet the higher hurdles under the 1972 treaty. Thepoint is that we do not know, because under the new provisions, there is no cross-questioningor examination of the substantive evidence that they present. Much more importantly, they are


4/50

not required to present the amount of evidence that could have been presented in the case ofthe NatWest threea 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 thehon. Gentleman has made, but he was in the Chamber when the Prime

12 July 2006 : Column 1399Minister responded to the question from the right hon. and learned Member for North-EastFife (Sir Menzies Campbell). The worry for the families of the NatWest three is that they willgo to the United States and stay there for years and years before the case is concluded. Wasthe hon. Gentleman not reassured by the Prime Ministers comments that there will be noopposition to an application for bail which, of course, will allow those three individuals toreturn to the United Kingdom?

Mr. Clegg: The courts in Houston, Texas must determine bail termsthey are notoriouslystringentbut, of course, we welcome any measures by the Government to facilitate thegranting of bail to those three individuals.

The Government have got themselves into that sticky situation by eagerly enforcing ourobligations under the treaty and failing to exert, until very late in the day, meaningful politicalpressure on the United States to do likewise. There is no excuse, however, for the mess inwhich we find ourselves. The Government repeatedly argue that, because we do not demandprima facie evidence from Council of Europe countriesAlbania and Azerbaijan are the mostsalubrious examples in the long list of countries cited by the Governmentwe should notdemand it from the US. Broadly, because the US is a mature democracy we should not haveany qualms about extraditing British citizens there.

I should like to make three quick observations. First, as I mentioned, we have reciprocalagreements with those countries, but none of the arrangements have such wildly differingevidential burdens. Hence our support for the European arrest warrant which, as I said, isbased 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 ofEurope countries are all signatories of the European convention on human rights, which is notbinding on the United States. Any contravention of the ECHR by a Council of Europe statesubsequent 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 humanrights conditions were met in the various courts that those gentlemen have been through inthis country. Is not that sufficient? Has not the hon. Gentleman been unduly influenced by apublic 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 theapplication for extradition, which they could consider only in the limited terms of the 2003Act. 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 inEurope. I am well aware of that fact. However, he may need to reflect a little further on it,because we keep12 July 2006 : Column 1400being told by the Prime Ministerand may be told by the Home Secretary and hisMinistersthat there is no reason why we should not grant exactly the same provisions to theUnited 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


5/50

legal terms of the European arrest warrant, which completelylegally and politicallysetsthe European examples apart from the US examples.

Mrs. Ann Cryer (Keighley) (Lab): Why has the hon. Gentleman waited such a long timebefore 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 forSheffield, Hallam (Mr. Clegg) has given way, it would be a courtesy if he and his colleagueslistened to what she has to say.

Mrs. Cryer: I am simply trying to say that on 22 November 2005, eight months ago, when acolleague of the hon. Member for Sheffield, Hallam (Mr. Clegg) was present, the SelectCommittee 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 theHome 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 toraise 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 theUnited States. As the hon. Lady may know, the only Members who objected at that pointwhen the House could have stopped the processwere 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 theUnited Kingdom, and in 2005 13 people were extradited to the USthe highest number infive years and more than double the figure in 2003, just before the provisions of the bilateraltreaty came into effect.

Given the sheer number of requests made by the US compared to other countries, and the factthat 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. Surelyquestions must be asked12 July 2006 : Column 1401when 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 nota criminal offence in the UK.

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

purposes such as those we are discussing.


6/50

Mr. Clegg: The hon. Gentleman makes a valid point, although I am duty-bound to point outthat it would have been helpful if he had listened to some of the arguments made from theLiberal 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, seriousquestions must be raised. For example, Lotfi Raissi, the Algerian pilot wrongly accused oftraining the 11 September hijackers, would have been extradited to the US under theprovisions of the new treaty, but he was protected under the old one because the US couldprovide no evidence whatever that he was involved in the plot.

Peter Luff (Mid-Worcestershire) (Con): I realise that the hon. Gentleman is comingtowards the end of his speech and that he has understandably and necessarily rested hisarguments so far on issues relating to extradition and treaties, but does he share my concernabout the impact on the confidence of people engaged in commercial relationships with theUnited 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 dealingswith the United States is very considerable indeed.

The case is not, as the Government would have us believe, merely a technical issue to bedebated on legalistic points; it is causing serious consternation in the business communitywhere fears of doing business in the US are increasing. I should be interested to learn fromthe Solicitor-General whether he agrees that the Chancellors City taskforce should considerthe 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 UnitedStates, two and half years since the secondary legislation introducing that treaty was passedand less than 24 hours before the high-profile individuals who have brought such attention tothe treaty will leave the country for a Texan jail. We should have debated the12 July 2006 : Column 1402treaty years ago, but we did not have the chance, thanks to the Governments continueddisregard for the opinions of the House.

The treaty was negotiated in secret, signed by royal prerogative and announced merely in awritten statement, offering the House no chance to question the Home Secretary on thewisdom 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 juniorMinister, with the Home Secretary making no comment on its progress. The secondarylegislation was passed in a Committee that sat for barely 90 minutes.

Until the case started making daily headlines, the Government had made no attempt topersuade the United States to keep its end of the bargain and ratify the treaty; indeed, weknow that as recently as March, during the US Secretary of States last visit to the UK, theForeign Secretary did not even mention the issue. And the Government had to be forced, byMr. Speakers decision, to come to the House today to hear this debate.

Much emphasis has been put on the Senates failure to ratify the treaty. Surely, we should beasking why we have no ratification process in this country similar to that enjoyed by the USSenate. Why is there no proper parliamentary scrutiny, and no written constitution to protectus from the Governments willingness to hand away vital legal protections?


7/50

It is six years since the Wakeham Commission on Lords reform proposed properparliamentary scrutiny of treaties in Parliament. The Government must take action. First, theyshould recognise the force of opinion among the public and in another placewhere thePolice and Justice Bill has been amended to repeal our part of the treatyand revoke the2003 order immediately so far as it applies to the USA. Next, the Government shouldrenegotiate the 2003 treaty to make the extradition test reciprocal. Finally, they mustintroduce proper parliamentary scrutiny of treaties, and amend the royal prerogative so thatinternational agreements can no longer be entered into without meaningful reference to theHouse.

12.58 pm

The Solicitor-General (Mr. Mike O'Brien): To listen to the hon. Member for Sheffield,Hallam (Mr. Clegg), we might think that the 2003 treaty had some relevance to whether theEnron three were extradited. In fact, if the treaty had been ratified it would have made not ablind bit of difference to whether the three were extradited.

Let us consider what the treaty would change if it was ratified. It would introduce a sentencethreshold of 12 months for both sides and increase the number of offences covered, andtemporary surrender would be allowed. In terms of the amount of proof required, it wouldchange little. Indeed, in terms of the test, it would change nothing; the procedure would bechanged but the actual test would not. As my noble and learned Friend Baroness Scotlandmade clear in another place yesterday, it would improve some of the procedures, but none ofthat would change anything for the Enron three.

12 July 2006 : Column 1403

Let me be clear: we want the treaty ratified, which is why Baroness Scotland will be going tothe United States shortly to discuss with US Senators the need to ratify the treaty. We havethe support of the White House. We need the support of the Senate.

Mr. Robert Flello (Stoke-on-Trent, South) (Lab): My hon. and learned Friend hasmentioned the test and the question whether it will be changed. Will he elaborate on the testfor the House, because I understand that we are discussing a two-door test, rather than theover-simplification that we heard from the Liberal spokesman?

The Solicitor-General: It is important to consider how the tests operate and how theyoperated in relation to Enron. As my hon. Friend has said, there is a double-door procedure inrelation to extraditions from this country to the US and in the opposite directionin effect,

there is a door in the US courts and a door in the UK courtsand both those doors must bepassed through in order to extradite someone either way. In order for us to apply to extraditesomeone from the US, we must issue a letter based on information from the UK, which is thefirst door, and we then have to show probable cause in a US court, which is the second door.

In order for the Enron three, for example, to be extradited from the UK, both doors must bepassed through in the opposite direction. A grand jury must have a case shown to it that therewas probable cause to issue an indictment in the United States, which is the first door. Thesecond door is that a UK court must be satisfied that there was sufficient information to

justify the issue of a warrant for arrest in this country, if the offence had been committed here.If a police officer were to apply for a warrant in front of a magistrate for an offence in thiscountry, he would have to satisfy the magistrate that a criminal offence had taken place or thatone was suspected to have taken place and that an identified person was suspected of havingcommitted that offence.


8/50

The test is higher than mere suspicion, because in the US the phrase probable cause meansthat the person who is asking to arrest someone has a reasonable basis to believe that a crimehas been committed and that that person committed the crime, which is more than reasonablesuspicion. If we were to return to the pre-2003 situation, the US would have had to prove aprima facie case, which is a much higher test.

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

The Solicitor-General: When the right hon. and learned Member for Folkestone and Hythe(Mr. Howard) was Home Secretary, there was an imbalance in the tests that were applied indifferent countries. That balance was enormously disadvantageous to the United States, theeffect of which was that it sometimes took 30 months to extradite someoneone case took 10years. How can he justify that?

12 July 2006 : Column 1404

Mr. Howard: I will deal with that, Mr. Deputy Speaker, when, if I am fortunate enough tocatch your eye, I have the opportunity to contribute to the debate. Why has the Solicitor-General used the wholly prejudicial description the Enron three in relation to those Britishsubjects, when the company that they are accused of defrauding, NatWest, is British, andwhen the British authorities have decided to take no action in respect of acts committed in thiscountry? Why has he engaged in that entirely prejudicial description of those British subjects?

The Solicitor-General: It is interesting that the right hon. and learned Gentleman should riseat this point. We have heard Opposition Members say that we should return to the prima facietest, which predated the Extradition Act 2003, but let us see what the district judge, JudgeEvans, said about the case:

Although this case proceeds under the Extradition Act 2003, the request wasprepared to meet the requirements of schedule 1 to the Extradition Act 1989.

a Conservative measure.

There is therefore available affidavit evidence giving considerable factual detail ofthe allegations. As a matter of interest, that evidence makes a case to answer.

The learned district judge took a clear view in relation to the prima facie case.

Mr. Dominic Grieve (Beaconsfield) (Con): The Solicitor-General is in danger of making a

very bad point. The major difference was that those who appeared in front of the district judgewere not, under the new rules, allowed to examine or explore whether there was a prima faciecase, because the new rules do not allow that to happen. So to argue that the material that wasoriginally submitted might have been sufficient to establish the case does not answer thequestion that the Solicitor-General has posed to himself, because those who appeared in frontof the district judge could not carry out any examination of that material.

The Solicitor-General: The hon. Gentleman has made a bad point himself. The district judgetook the view that so far as he was concerned

that evidence makes a case to answer.

Several hon. Members rose


9/50

The Solicitor-General: Half a dozen hon. Members are trying to get me to give way, Mr.Deputy Speaker. Perhaps it would be helpful if I were to deal with the points that have beenraised already. If the hon. Member for Henley (Mr. Johnson) keeps his hair on, I will get tohim, too.

The Enron three are to be extradited

Mr. Hogg: On a point of order, Mr. Deputy Speaker, it must be wrong in principle to refer tothose three people as the Enron three, because it is prejudicial to any trial that may take

place. I ask you to intervene to stop it.

12 July 2006 : Column 1405

Mr. Deputy Speaker: That is not a point of order for the Chair. That is a point of argument,which I have no doubt will continue in the course of the debate.

The Solicitor-General: If the right hon. and learned Gentleman is offended by thedescription, which has been used by many in the media, then perhaps he is right. I shall referto them as the three individuals, and I hope that that satisfies him.

Rob Marris (Wolverhampton, South-West) (Lab):Todays debate seems to have beenprompted by the pressing case of the NatWest three. Does my hon. and learned Friend knowwhether the Liberal Democrats or the Conservatives ever protested about the case of Mr.Babar Ahmad, a UK-Asian heritage Muslim, as I did one year ago?

The Solicitor-General: The Liberal Democrats must answer for themselves, and I will letthem do so, but I had not heard any complaints from Opposition Members until this particular

case.

Mr. Boris Johnson (Henley) (Con): If the Solicitor-General is persuaded by the view of thedistrict judge that there was evidence against the NatWest three, will he explain why theHome Office is so resolute in refusing to set in motion a procedure that would allow them tobe tried in this country, where the offence, if it took place, was committed?

The Solicitor-General: I do not blame the Enron three for the substantial publicity campaignthat they have generated in order to prevent their extradition, nor do I blame the hon.Gentleman, who has done a good job of defending his constituent. Like all accused, the threeindividuals are innocent until proved guilty, and they may well be acquitted. No one, least ofall the Enron three, has claimed that there is no evidence against them. [ Interruption. ] They

have been accused of very serious crimes. [ Interruption. ] The allegations have beenreviewed

Mr. Deputy Speaker: Order. Mr. Speaker granted this debate because he regarded it as amatter of genuine urgency and because there was great concern throughout the country aboutthe issue. It is right and proper that the matter should be discussed in a dignified and moderatemanner, which is being impeded by too many interventions and sedentary comments.

The Solicitor-General rose

Mr. Kenneth Clarke (Rushcliffe) (Con): On a point of order, Mr. Deputy Speaker, the

debate began with a discussion of the treaty, the imbalance in the treaty and the application ofthe treaty, but references have been made to the current cases which have caused so much


10/50

concern. Quite properly, our proceedings are governed by a sub judice rule, and we do notnormally debate the merits of individual criminal allegations or their handling in the courts.We are reaching the stage at which the language to describe the three suspects is being used toindicate on which side of the argument a12 July 2006 : Column 1406particular hon. Member stands. I realise that the difficulty has arisen suddenly and taken youby surprise, but I suggest that the repeated use of such language, particularly by the Solicitor-General, is taking us dangerously near to inviting hon. Members to indicate by a thinlydisguised formula their views on the merits of the case, which is presumably going to be tried.

Mr. Deputy Speaker: Order. The House will have heard what the right hon. and learnedGentleman has said, but I am not aware of a case that is currently being tried in this country towhich the sub judice rule would apply.

Mr. Hogg: On a point of order, Mr. Deputy Speaker. This is an important debate, and it isbound to be listened to in the United States. The fact that the Solicitor-General appears to beindicating by the language that he is using that he or the Government think that there is a

strong case against these individuals will be prejudicial to those individuals. The Chair alwayshas an ability to extend existing precedents. Mr. Speaker did so last week with regard to aquestion put to the Prime Minister about the Deputy Prime Minister. It would be perfectlyproper for you to extend that rule to cover this situation.

Mr. Deputy Speaker: Order. I have ruled on the question of sub judice. I think that what isof concern to some right hon. and hon. Members is the use of language, which is a matter ofdebate. I can only see it in that way.

The Solicitor-General: If the right hon. and learned Member for Sleaford and NorthHykeham (Mr. Hogg) had been listening, he would have heard me say that these threeindividuals are, like all accused people, innocent until proved guilty, and they may well beacquitted in a US court.

Malcolm Bruce (Gordon) (LD): Will the Solicitor-General give way?

The Solicitor-General: No. I have given way rather a lot, and I want to proceed with myargument and to deal with some of the points that have been raised.

When challenged in another place in relation to the term Enron three, my noble FriendBaroness Scotland quoted paragraph 66 of the High Court judgment, which states:

Enron was deceived into parting with US $20,000,000.

It is the description that is broadly used. If people are offended by it, I wish to make it clearthat there is no indication that these men are anything other than innocent until proved guilty,like all persons who are accused.

The allegations in this case have been reviewed at length by our courts, which say that thethree individuals should stand trial in the United States. The men want their trial to take placein the UK, if trial there is to be. In dismissing their case, the High Court found that theirargument was wholly unsustainable12 July 2006 : Column 1407and that the extradition was lawful and in accordance with their human rights. The SeriousFraud Office has declined to prosecute


11/50

Keith Vaz: Will my right hon. Friend give way?

The Solicitor-General: May I deal with the point raised by the hon. Member for Henley?

The Serious Fraud Office has declined to prosecute the case in the United Kingdom for a

range of reasons, including the fact that no complaint has been made in this country andbecause the main evidence, in the form of the alleged conspiracy and the witnesses, is in theUnited States, where the case is well advanced. That is where the alleged conspiracy tookplace. The three individuals are British citizens resident in the UK. They were employees of aUK bank responsible for a number of bank clients, including a subsidiary of Enron in theUnited States. Enrons headquarters are in Houston, Texas. [ Interruption. ] They were inHouston, Texas. Its bank had offices there, as well as in London. Some of the key witnesses,including Mr. Michael Kopper, the managing director at Enron, and Mr. Andrew Fastow,Enrons chief financial director, are in the United States.

A crucial meeting is alleged to have taken place in Houston on 22 February, attended by thedefendants, which US lawyers say played a central part in the case. The US prosecution

alleges that it was a secret meeting with Enrons chief financial officer, Mr. Andrew Fastow.The allegation is that the three individuals had access to information that enabled them to lettheir bank undertake certain financial transactions.

Mr. Boris Johnson rose

The Solicitor-General: I will give way to the hon. Gentleman in a moment; let me put myargument first.

I will not go into the list of transactions, which are complex, but the prosecution alleges thatthe defendants conspired with US co-conspirators to deceive Enron into parting with $20

million, and that both Enron and NatWest were defrauded. It is alleged that the defendants got$7.3 million, which derived from Enron and represented the sale of the banks interest in acompany called Swap Sub.

Mr. Johnson rose

The Solicitor-General: I will give way to the hon. Gentleman when I have finished thesepoints, as I know that he is concerned about this issue in relation to his constituent.

On 14 January 2004, Mr. Fastow pleaded guilty on two counts, including conspiracy to wirefraud. There was also a plea agreement entered into with Mr. Kopper. In this, it became clearthat allegations had been made, including this claim by Mr. Fastow:

In...February 2000, I and others, including three bankers employed by NatWest,participated in a scheme to extract...increased value by defrauding Enron andNatWest.

12 July 2006 : Column 1408

Enron paid $30 million for the Swap Sub buyout. That price was based on mymisleading representation to Enron that the limited partners of Swap Sub had agreed

to sell their interests in Swap Sub for $20 million and $10 million, respectively. Infact, NatWest had agreed to sell its interest for only $1 million, not $20 million. I


12/50

knew that the NatWest bankers induced NatWest to sell its interests in Swap Sub for$1 million at a time they knew the interest was worth significantly more.

In summary, the SFO took the view that the case involved an allegation that UK-basedemployees conspired with US Enron executives. The main evidence was in the USAthat is,

the co-conspirators. As the conspiracy took place there, no complaint has been received in theUnited Kingdom. The fraud could not have occurred without the complicity of the Enronexecutives, some of whom were key witnesses. The case was well advanced in the USA, andit was thought that in the overall interests of justice it would be best dealt with by one court inthe USA.

Mr. Justice Evans made a very important point that I want to put to the hon. Member forHenley:

The reality is that were the SFO to commence an investigation, then, by the timethey were ready to launch a prosecution, there would be defence submissions invitingthe court to stay the prosecution as an abuse because of what by then would be

considerable delay. Additionally and crucially, Kopper and Fastow are importantwitnesses for the prosecution. They are readily available to give evidence in theStates and not in the UK.

Mr. Boris Johnson: Nothing that the Solicitor-General has said contradicts the central factthat these are UK citizens who, if they committed any crime, committed it against a UKcompany in the UK. Everything that he has said is completely irrelevant next to the centralpoint that under American jurisdiction they would be able to challenge in an American courtthe stream of allegations that he has made against them before they were extradited to thiscountry. Under the arrangements that his Government have entered into, it is not possible forthem to have the allegations that he has made in this House tested before a court in thiscountry before they are sent for trial in America. That is the point of this debate.

The Solicitor-General: The point of this debate is to deal with the issue of whether there isan imbalance between the various requirements of the treaty and the Extradition Act 2003.When the hon. Member for Sheffield, Hallam put his case, he seemed to be arguing about theAct, not the treaty. The Act enables people against whom there is a reasonable suspicion ofhaving committed serious offences imprisonable for more than one year to be extradited toanother country. The Liberal Democrats seem to want to suspend that provision in relation tothe United States in particular.

It will be interesting to discover what the Conservative position is. Yesterday, we had thebizarre situation whereby Baroness Thatcher went into the Lobby in another place to vote to

deny to the United States the sort of provisions that are currently available to Russia,Azerbaijan, Albania and a whole range of other countries with which we have a similarprovisions.

Mr. Grieve: Perhaps the Solicitor-General could take this opportunity to clarify a matteraround which there12 July 2006 : Column 1409is a degree of muddle. We talk about part 2 territories, which include the United States andRussia. Will the Solicitor-General identify which part 2 territories have been given specialprivileges under section 84(7) of the 2003 Act, which enables extradition to take placewithout the submission of prima facie evidence?

The Solicitor-General: The hon. Gentleman knows perfectly well that we are applying asimilar test to the United States as we apply to a range of other countries, including South


13/50

Africa, Azerbaijan, Russia, Australia and New Zealand. Is he seriously saying, on behalf ofthe Conservative Opposition, that the US legal system has inadequate safeguards fordefendants and cannot be trusted to deal properly with cases such as these, compared with awhole range of other countries from Russia to Albania? If the Conservative Opposition aregetting themselves into that position, they are digging a very deep hole indeed.

Mr. Hogg: Will the Solicitor-General give way?

The Solicitor-General: I will give way in a moment.

Mr. Howard: Will the Solicitor-General give way?

The Solicitor-General: Let me make my point, then I will give way.

I remember that when the right hon. and learned Member for Folkestone and Hythe (Mr.Howard) was Leader of the Opposition, he managed to become involved in something of afracas with the United States. The hon. Member for Sheffield, Hallam asked whether we

should be concerned that our economy could be affected by damaging our relationship withthe United States. It is important that we have a relationship with the United States that paysrespect to a legal system that may have diverged from ours to some extent 200 years ago, butwhich still has substantial safeguards for defendants in its courts. We should respect that.Some might decide not to do so, and if the Conservatives decide to put themselves in theposition of saying that the US courts cannot be trusted, they are going to get themselves into avery difficult position.

Mr. Howard: The answer to the entirely spurious point that the Solicitor-General is makingis that the arrangements that we have with all the other countries to which he has referred areentirely reciprocal. The objection that is being made from this side of the House to our

arrangements with the United States is, as Baroness Scotland acknowledged in another placein December 2003, that they are not reciprocal. That is the key question; that is thedistinction. Why does the Solicitor-General keep referring to those other countries in thisthoroughly misleading way?

The Solicitor-General: The United States has always required extradition on the basis ofprobable cause. Indeed, under its Bill of Rights, all criminal cases are determined in that way.The probable cause requirement is an evidential test that is enshrined in its Bill of Rights. TheUnited States is not going to change that requirement, and we are not going to ask it to.12 July 2006 : Column 1410Parliament has decidedcorrectly, in my viewthat a probable cause standard of evidence,involving

information which would justify the issue of a warrant for the arrest of a person,

should be required of countries such as Canada, Australia, New Zealand, the USA and others.Parliament considered the extradition treaty and ensured that it had robust safeguards againstunfairness, to protect individuals. Those safeguards were dealt with in the courts. There was alengthy process that dealt with the three individuals, who were able to go before the court andargue their case.

Individuals may only be extradited for conduct that is also criminal in the UK. This is a dualcriminality test which has to be established before a district judge in the UK and can bechallenged on appeal.


14/50

Keith Vaz: Will the Solicitor-General give way?

The Solicitor-General: I will give way to my hon. Friend. He has been waiting a long time.

Keith Vaz: I am most grateful to my hon. and learned Friend. I am following his arguments

closely. What concerns the public and the families of the accusedwhether we call them theEnron three or the NatWest threeis the issue of bail. They will be travelling all the way tothe United States and staying there for months, or possibly years. We heard from the PrimeMinister at Prime Ministers questions that the Attorney-General had spoken to the UnitedStates Justice Department. What new information does the Solicitor-General have for theHouse that will reassure the public and the families of those concerned that the three might begranted bail?

The Solicitor-General: I can tell my hon. Friend that discussions have taken place betweenour Attorney-General and the United States Attorney-General, Alberto Gonzales, who hasindicated that the US prosecution will not oppose bail. It will of course be a matter for thecourt to set the appropriate conditions, and it will be a matter for the defendants to agree to

those conditions. I hope that that will provide some reassurance.

Mr. Henry Bellingham (North-West Norfolk) (Con): Will the Solicitor-General give way?

The Solicitor-General: No, I will not. I want to deal with some of the myths that have beenraised.

Sir Patrick Cormack (South Staffordshire) (Con): Will the Solicitor-General give way?

The Solicitor-General: No, I have taken a lot of interventions. I have great respect for thehon. Gentleman, who is a close neighbour of mine, but I have now been speaking for 25

minutes without managing to reach some of the core arguments that I want to put before theHouse.

Sir Patrick Cormack: Will the Solicitor-General give way?

12 July 2006 : Column 1411

The Solicitor-General: No, I will not give way. I respect the hon. Gentleman and I apologiseto him, but I must make some progress. I do not propose to stay on my feet for much longer,as there are many others who wish to speak in the debate.

The first myth is that the Extradition Act 2003 is intended solely to deal with terrorists. Weheard that from Conservative Back Benchers. In fact, the Act covers all manner of crimesserious enough to attract a maximum sentence of more than 12 months imprisonment. Thatwas clear throughout the passage of the legislation. It was not drafted in response to 9/11, ashas also been suggested. Its origins lay in the early development of the European arrestwarrant in 1999, and it was intended to update an extradition system that dated back toGladstonian times. The Home Office published a review in March 2001I emphasise themonth, because it was well before Septemberto set out the basics of what was to becomethe Act. Although much was made of fraud cases, the majority of cases brought under the Actare likely to include murder, rape, drugs, money laundering, child pornography and robbery.It will also help to extradite people accused of terrorism, but the basis of the Act predates 9/11

and it is a myth that that is not the case.


15/50

A further myth is that the US needs to provide us with more information when making arequest. Indeed, I heard the hon. Member for Sheffield, Hallam on Radio 4 this morningsaying that the US needed only to prove the identity and whereabouts of a defendant, and notmuch else. That is not the case. In order to meet our information requirement, the UnitedStates needs to supply information that will provide a reasonable basis to believe that theperson sought has committed the offence for which extradition is being requested. Based onthe evidence that the courts have heard, it has achieved that in the case of these threeindividuals.

Mr. Grieve: Will the Solicitor-General give way?

The Solicitor-General: I will not give way. With the greatest respect to the hon. Gentleman,I am trying to make some progress.

Would the United States have been able to prove a case to the higher standard of a prima faciecase? We have already heard the district judge take that view.

Mr. Grieve: I appreciate that the Solicitor-General is dealing particularly with the case of Mr.Bermingham, Mr. Darby and Mr. Mulgrew, but will he confirm that other extradition casesare pending? Because those cases post-date the implementation of the 2003 Act, the kind ofmaterial that establishes a prima facie case is simply not being delivered. In the MorganCrucible case, for example, the documents are very scanty indeed, yet they are still sufficientto give a basis for extradition.

The Solicitor-General: Exact reciprocity between different legal systems is probablyimpossible. The US and UK legal systems diverged 200 years ago, and it is our view that

probable cause and the UKs information requirement are the nearest rough and ready paritythat we are reasonably likely to be able to achieve in any12 July 2006 : Column 1412reasonable circumstances. It is clear that the arrangements that existed before the ExtraditionAct 2003 were grossly unfair to the United States, because they required a much higher levelof proof to extradite someone from the UK to the United States than the other way round. Itoften took 30 months to extradite someone. In one case, it took 10 years. The US system ofprobable cause is a lower test, and those we seek to extradite are normally removed to thiscountry within about five months. We do not want to go back to a situationas OppositionMembers seem to want toin which it takes 10 years to extradite someone.

We have modernised our extradition system to recognise the nature of global crime, and wedo not want to send it back to the Victorian era. Exact reciprocity between two legal systemsis almost impossible to achieve. We have been asked to look at the particular question of

reciprocity many times since it was first raised during the passage of the 2003 Act, when wethought that probable cause might be a slightly higher test than others. We have gone into thatin great detail. We have discussed the matter with the US, and we are entirely satisfied that itinterprets the phrase that I have just usedsuch information as would provide a reasonablebasis to believe that a person sought to commit the offence for which that extradition isrequestedin a way that is broadly equivalent to our approach. That is our view, and I hopethat Opposition Members will accept that there is such a viewthat although the approachesare not entirely equivalent, they are broadly so, in a rough and ready manner. It may well bethe case that probable cause is a slightly higher test than information, but we must rememberthat there is a two-door scenario going both ways. The test has to be proved to a probable-cause standard going both ways; that test is in the US courts. What we want is the treatyratified, in order to ensure that other procedural benefits are put in place to make those whole

procedures much faster and to ensure that we are able to extradite those persons who oughtproperly to be extradited.


16/50

The three individuals in this case face very serious allegations. Their case has been reviewedat length in the UK courts. It is a myth that this matter is all about events in the UK alone; thatis pure myth. They are innocent until proved guilty, as are all accused. But we must rememberthat Enron was the biggest fraud in US history, and the US authorities are very concernedabout any issues relating to it. The balance in the test for extradition that exists between thetwo countries is not identical but it is very similar. We believe that the treaty that we haveentered into is the right one, and we also believe that about the Extradition Act 2003.

That Act is the real focus, not the treaty. This debate is all about that Act; it is about whetheran Act that this House passedthat this House voted foris the right Act. Those OppositionMembers who will shortly speak need to decide what their position is on that; they wereprepared to acknowledge the importance of dealing with these issues on a previous occasion,but are they still prepared to do so, or are they going to put themselves on course for anotherconfrontation with the United States?

What we need is fairness. We have a broad level of fairness in the Extradition Act. We wantto ensure that we keep that level of fairness, and that the Acts of

12 July 2006 : Column 1413Parliament passed by this HouseActs which were the right ones when they were passed,and which are the right ones noware the Acts on which our courts are able fairly to decidecases.

1.32 pm

Mr. Dominic Grieve (Beaconsfield) (Con): I am sorry that those of us attending this debateon such a serious issuewhich was fairly opened by the spokesman for the LiberalDemocrats, the hon. Member for Sheffield, Hallam (Mr. Clegg)should have been treated inthe Solicitor-Generals response to a strange mixture ofpolemic and crude defence of theGovernments position in a particular case, although I have some sympathy with the

Government on the issues of that particular case, as I shall make clear. Only at the very end ofhis speech was he prepared to start to deal with some of the underlying issues involving theUK-US extradition treaty and, as he rightly said, the proper operation of the Extradition Act2003, which ought to be of concern to this House because, as often happens when we passlegislation, we can end up with the law of unintended consequences.

The Solicitor-General has given the impression that the current media anxietywhich isclearly shared by the public, if the volume of e-mails that I have been receiving is anything togo byis in some way manufactured, and, indeed, that it was suggested by a public relationsagency. I rather doubt that that is the case. It seems to me that the events that have surroundedthe extradition of Mr. Bermingham, Mr. Darby and Mr. Mulgrew to the United States have

exposed misgivings on the part of the public about how the extradition arrangements betweenus and the US are operating. That must be a legitimate topic of debate in this House; it is whatwe are here to do. If we indeed made a mistake in respect of the Extradition Act 2003 threeyears ago, or in respect of our treaty with the United States, it is high time that we consideredthose issues.

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

Government?


17/50

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

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

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

12 July 2006 : Column 1414

I shall start with a few general points, because it is important that we get them clear. First, Ihave no idea whether Mr. Bermingham, Mr. Darby or Mr. Mulgrew are guilty or innocent ofthe offences with which they are chargedindeed, that outcome is irrelevant to our debate.Secondly, regardless of whether people are innocent or guilty, the process by which weextradite individuals to foreign countries to stand trial can be onerous: during the trial process,

they are removed from proximity to their families; they are sometimes in foreign countriesnot only the United Stateswith different cultural practices; and the conditions ofimprisonment can be very different from those that prevail in this country. Those are notreasons why we should not extradite people, so long as we are satisfied with the fairness ofthe trial process. We are perfectly prepared to contemplate that. This country has been doingthat, and the comity that exists between nations makes it important that we preserve thatposition.

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

The problem arises because, in negotiating that treaty, the Government allowed themselvesthe expression used by Lord Mayhew in the other place was correctto be treated like patsiesin relation to reciprocity of implementation. They had a treaty that had some mutual

advantages, although I do not think that its terms were sufficiently well scrutinised, but theygratuitously chose to give them to the United States without deriving any benefits forourselves under it by giving the US privileged status under the Extradition Act 2003. I willreturn to that. When Baroness Scotland in the other place or Ministers in the House ofCommons express their sadness, irritation, annoyance or anxiety on behalf of those in thisHouse and the general public that the United States has not ratified the treaty, they have onlythemselves to blame for what happened. A little realpolitik dictates that those who givepeople everything that they want without asking for the return that they were promised arenever going to get that return. I gather that Baroness Scotland is going to the United Statesshe may be flying over at this very momentto supplicate the US Attorney-General, but thetruth is that she cannot persuade Congress, which is made up of some pretty hard-headedindividuals, unless they decide that there is something in it for them. There is a fundamental

failure of government here, and although12 July 2006 : Column 1415


18/50

it does not reflect badly on the Solicitor-General or the Law Officers, it certainly reflects verybadly on the Home Office.

Mr. Hogg: Will my hon. Friend remind the House that there is a termination clause in thetreatyarticle 24and that, if we do not get satisfaction from the United States, we are

entitled to invoke it to terminate the treaty?

Mr. Grieve: My right hon. and learned Friend makes a valid point. The Government shouldconsider giving a terminal date to the United States by which ratification on their side musttake place, or we should go back to the drawing board. The reason why we should go back tothe drawing board is that the treaty raises a number of difficult issues that this House has notproperly considered.

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

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

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

Mr. Grieve: I agree with the hon. Lady and that point is a source of concern. The historyornon-historyof the ratification process strongly suggests that ratification may never happen.Indeed, the only way that it will is if this Government have the courage to point out to theUnited States that the privileges that we are giving to them, and which are of advantage tothem and their criminal justice system, will be withdrawn. That, I am afraid, is howdiplomacy works. Given that that approach has been abandoned for the airy-fairy conceptsthat have governed the Governments dealings with the United States since then, we shouldnot blame the United States if, when it comes to the crunch, they look to their own advantagein these matters. It is only when countries on both sides look to their own advantage that onegets an agreement that is binding and durable.

The Solicitor-General:I am listening with care to the hon. Gentlemans argument and tryingto work out12 July 2006 : Column 1416exactly what the return that he mentioned the need to have is. Is it that probable cause beremoved? I think not, and the hon. Gentleman has not suggested that. Is it that the treatyshould be ratified? He wants it to be ratified, but does he accept that an information andprobable cause reciprocity is adequate? Is that what he is asking for, or is he asking for anabrogation of the treaty? He talked at one stage of going back to the drawing board; is itConservative policy to abrogate a treaty with the United States?

Mr. Grieve: I have to say to the Solicitor-General that I cannot think of any reason not toabrogate the treaty with the United States at the moment. There is absolutely no nationaladvantage to our having signed it whatsoever. I said to the Solicitor-General that I wouldconsider the other aspects[Interruption.] He shakes his head, but the reality is that, at the


19/50

moment, if we wish to extradite individuals from the United States, we are entirely bound bythe 1972 treaty, which is still in operation and which I have no desire to abrogate. That is ouradvantage at the momentnothing more. If we choose to abrogate the later treaty, which hasnot been ratified and has therefore never been brought into operationI am not sure that itrequires abrogation; it simply has not happenedI do not see that we would lose anythingwhatsoever in our current relations with the United States.

Several hon. Members rose

Mr. Grieve: I want to make progress.

I turn to the Extradition Act 2003. In fact, the Governments willingness to give to the UnitedStates special privileges under that Act that required no treaty at all with the US; it wasmerely a gratuitous act by this Parliament. [Interruption.] If the Leader of the House looks atwhat happened, he will see that in fact, we abstained on the order. [Interruption.] Weabstained and expressed our misgivings, which were[Interruption.] If the Leader of theHouse wants to intervene, I will give way to him.

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

Mr. Grieve: We abstained because we expressed misgivings about the scope of the powersgiven to the United States. We were swayed by the Governments arguments about the needto have the new arrangements to deal with terrorism. Speaking personally, I regret that, inview of what I have discovered since about the way that this process is operating. I saycandidly to the Leader of the House that what happened troubles me, but it was done in goodfaith and the Government should be pleased, I suppose, that for once, assurances that theygave to hon. Members received a response on this side of the House. But the truth is thatthose assurances proved to be flawed.

Mr. Straw: That is a paltry explanation. The hon. Gentleman is familiar with the 2003 Actunder which12 July 2006 : Column 1417the order was made and it is perfectly obvious that the order applies to any kind ofextradition, not just terrorist offences.

Mr. Grieve: I do not know whether the Leader of the House has read the relevantHansard,but if he has not and he does, he will see that during those debates, the hon. Member for DonValley (Caroline Flint) made a number of claims about the way that the 2003 Act would

operate in relation to the United States that wereI am sure inadvertentlymisleading. Thefact is that they certainly had an effect in persuading Members of this House to go along withwhat the Government wanted to do.

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


20/50

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

That leads me to my next point, which concerns parts 1 and 2 of the 2003 Act. Part 1 dealswith the European arrest warrant, which is backed by the fact that the signatories aresignatories to the European convention on human rights. I want to pick up on the earlier

intervention of the hon. Member for Sunderland, South (Mr. Mullin). He might have beenabout to make this point himself, but I will make it. In the summary of the report thatconsidered that legislation, his Select Committee pointed out the following:

we express concerns about proposals to relax the requirement that extraditionrequests from non-European countries must demonstrate that there is a prima faciecase to answer.

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

The weakest point of the Governments argument, both here andin the light of yesterdaysdebate in the Lordsin the other place, is the extraordinary assertion that reasonable causeand making out mere suspicion, which is all that it boils down to, are on a par with each other.We have a substantial hurdle to overcome in the United States. The tendering of prima facieevidence in an evidential sense is not necessarily required, but the making of a prima faciecase in a documentary and discursive sense is certainly required, although it can be done byhearsay. In contrast, all that the United States must now do is send in a document in12 July 2006 : Column 1418which it sets out a case. As long as that case is made out, and the other criteria, which are alist of safeguards on identity, dual criminality, double jeopardy and the illness of thedefendant, are satisfied[Interruption.] As long as those criteria, including the HumanRights Act 1998, are satisfied, there can be no possibility of further examination of thematerial to decide whether the extradition should happen.

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

Those are not slight or academic matters but have a practical impact. In deciding to grant thisspecial privilege to the United States of designation under section 84(7) of the Act, the

Government have made a mistake. The lack of parity immediately gives rise to the taint ofunfairness. In any event, I have some reservations about moving away from the old test in thecase of non-European countries generally. In that regard, I have genuine anxieties that gobeyond merely the UK-US extradition treaty.

Malcolm Bruce: The hon. Gentleman is making an important point. Does he share myconcern that the Solicitor-General, in quoting the district judges comment on the submissionsmade in this case, failed to point outin relation to which the hon. Member for Henley (Mr.Johnson) understandably intervened with some angerthat the defendants had no right tochallenge, test, explain or counter that evidence, which might well have been produced bythose engaged in a plea bargain in the United States and could have been entirely false?

Mr. Grieve: The hon. Gentleman is right, and that is why I intervened on the Solicitor-General when he started telling the House that we should not worry about anything, because


21/50

the United States sent over volumes of material, as if it were doing a pre-2003 Actextradition. That might be true, and I accept that, if that material had been tested on the 1972Act provisions, the three defendants might still be extradited to the United States. Thedifference is that there would not be such huge public disquiet about the manner in which ithas been carried out. Even though the material was available, the defendants were deprived,in the course of the extradition proceedings, of the opportunity to carry out the pre-2003 Actscrutiny that they could have done previously, even when they took the matter to the HighCourt on review. The points taken in the Court of Appeal related to the Human Rights Act,and by their very nature were not as extensive, and could not be the same, as if we hadprovided a balancing exercise to enable that scrutiny to take place.

Mr. John Redwood (Wokingham) (Con): Is not the crucial point that, according to theBritish Government, these three men are entirely innocent. We know that that is the BritishGovernments view,12 July 2006 : Column 1419because there is no prosecution pending and no suggestion of any charge in this country aboutevents that took place here. Is not it the duty of the British Government to defend the

innocent?

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

The second issue that we must consider, which was considered in the other place yesterday, isthat 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 theperson was being sent to an inappropriate forum for the trial. As I did not participate indetailed consideration of the 2003 Act, I am unclear as to why the Government decided not toinclude that safeguard in the Act generally. Every other country has that safeguard. The Irish,who regard themselves as close partners and friends of the United States, and who have an

extradition arrangement, have a forum clause in their treaty, which enables the question of theappropriate forum to be considered.

One reason why so much public disquiet has been expressed about the case of Mr. Mulgrew,Mr. Bermingham and Mr. Darby is that they are in this country, the victim, NatWest, is in thiscountry, and a trial could properly take place in this country without the onerous burden ofextradition. However, they have been deprived of that opportunityit has only been taken asa Human Rights Act point, which is inadequate. I have yet to hear from the Solicitor-Generalwhy the Government have not adopted that protection, which, in my understanding, appliesacross virtually every other European country. That makes a considerable difference. Werewe to introduce that protection, along with reciprocity with the United States, the Solicitor-

General would find that the public disquiet that has arisen, which, as I said, is genuine, wouldbe allayed.

The Government have a responsibility for good governance. One of the features of goodgovernancepicking up the point made by my right hon. Friend the Member for Wokingham(Mr. Redwood)is the paternal relationship between the state and its citizens. That is not tosay that the state should not give up its citizens for trial elsewhere when there is clearevidence that they should be tried and it is in the public interest. But the state should notappear to be cavalier with their rights. One of the things about the Government that makes meanxious, which is a wider issue than the UK-US extradition treaty and runs through a host ofpieces of legislation that have an authoritarian tinge that undermines civil liberties in thiscountry, is that they combine an extraordinary internationalism and an attitude that state

boundaries and borders are rather archaic with a reluctance to stand up for their own. That is


22/50

troubling, as it undermines public confidence in the state, and will ultimately, and corrosively,undermine public confidence in the criminal justice system.

The Solicitor-General:I want to clarify the nature of the hon. Gentlemans argument. Heseems almost to be suggesting that we should make it the responsibility of

12 July 2006 : Column 1420a judge at a hearing to determine whether it is appropriate for the Serious Fraud Office in thiscase, but in other cases the Crown Prosecution Service, to take a view about whether aprosecution should occur, and that we abrogate that responsibility, which is for prosecutors.Perhaps I have misunderstood him. Alternatively, he is suggesting that the judge would obligethe SFO to investigate a case when the SFO decided that the best place to try it is elsewhere,as in the case of the three individuals under discussion. We should also remember that thedistrict judge said that he had real concerns that, were there an obligation on the SFO toundertake a complete investigation, when it had already been done in the US, there could beissues around abuse of process, which would be serious. Is it the hon. Gentlemans view thatwe should return to a situation in which we must have a mini-trial in each case to examine allthe evidencesome such cases have lasted 30 months and one lasted 10 yearsand that that

would also apply in terrorist cases?

Mr. Grieve: I am afraid that the Solicitor-General again does himself less than justice. Othercourts, such as the Irish jurisdiction, are perfectly capable of resolving the issue of the forumtest. He has once again moved from the general points that I want to make to the particularpoints about the case involving Messrs Bermingham, Mulgrew and Darby, which is preciselywhat I want to avoid. I have no idea whether, after consideration of forum points, thoseindividuals might still be extradited to the United States. The fact is, however, that no suchconsideration has taken place, and that should be possible under the Extradition Act 2003 forevery country to which we are carrying out extradition. That is a serious flaw in thelegislation. The fact that that is provided for specifically in the 1957 extradition conventionmakes it all the odder that, when the Government move to try to streamline and simplify the

extradition system, with which I do not disagree, they do not include such an essentialsafeguard. The lack of that safeguard is one of the major reasons for the Governmentspresent problem.

The Solicitor-General: The provisions of the European convention on extradition wereincorporated in the Extradition Act 1989 by the Conservative Government, but the naturalforum protection provisions were not. Why did the Conservative Government not includethose provisions?

Mr. Grieve: The Solicitor-General makes a good point. The answer to his question is that Ido not know, but I would hazard a guess. At that time, we were still operating on the basis of

having to show a prima facie case. The removal of that essential safeguard makes it all themore important to read the 1957 convention to establish whether there are other safeguardsthat ought to be included. All I can say to the Solicitor-General is that, in my view, the forumsafeguard ought to be incorporated in the existing legislation.

Mr. Hogg: Perhaps another reason was that the Home Secretary retained residual discretionnot to extradite.

12 July 2006 : Column 1421

Mr. Grieve: My right hon. and learned Friend is of course right. That is one of the issues that

have arisen over the past two weeks. When people have written to me saying that the Home


23/50

Secretary should exercise his discretion not to extradite, I have had to write back pointing outthat no such discretion exists any longer. It has gone.

Let me return to the point that I was making to the Solicitor-General. That residualpaternalism, which was there to protect the citizen through the mechanisms and operation of

the state, has been removed. Something else must be put in its place, so that people considerthat the outcome is fair.

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

2.1 pm

Mr. David Winnick (Walsall, North) (Lab): I have reservations and concerns about whatwe are debating, but I will say this: if the position were different and either of the Oppositionparties were in office, the same procedure would be taking place. I know that the Oppositionparties do not agree. My hon. and learned Friend the Solicitor-General made a telling point tothe hon. Member for Beaconsfield (Mr. Grieve) a few moments ago, and although the LiberalDemocrats are hardly likely to agree, I believe that the same position would arise if they werein government. I must add that if my party were in opposition, we would be strenuouslyopposing what is intended. That is the nature of party politics in the House of Commons. Imake no complaints about it, as long as we are not hypocritical and have no illusions.

If there were a free vote on the treaty, which will not happen, I doubt that many Memberswould vote for it. I would be surprised if more than 25 or 30 did so. As I have said, however,this is the House of Commons. Party politics dominate here, and I certainly have nocomplaints about that.

Bankers are not a group whom I would normally defend. They do not fall within the categoryof causes for which I have campaigned for 40 years and more, involving people who havebeen caught up in various cases and whom I have wished to defend. When, on past occasions,we have talked of the four, the five or the six, they have not been bankers. Perhaps this is afirst.

I should also make it as clear as possible that if there have been dishonest dealings, as there

may well have been, I am the last person to try to defend them. White-collar crime shouldcertainly be taken seriously. It may well be that these three are guilty. They may have beenseriously involved in all the dishonesty of Enron. If that is the case, obviously they should paythe penalty.

12 July 2006 : Column 1422

It has been suggested by one or two peoplenot in todays debatethat there has been aclever PR exercise in which the three have made themselves out to be heroes. If that is thecase, to a large extent the Government have played into their hands. What is happening is aresult of the treaty, and I do not think that that should be overlooked.


24/50

This is not a matter of bankers. It is the principle that concerns me: the principle of an unfairarrangement between the United States and ourselves. I know that some Membersperhaps Imay cite my hon. Friend the Member for Sunderland, South (Mr. Mullin)have concernsabout the United States criminal justice system. That is not necessarily my concern. I do notwork on the basis that the American legal system is so inferior, or indeed inferior in any way,to the British criminal justice system. I am not a lawyer, but for some time all the evidencehas suggested to medespite Guantanamo, and despite what has happened more recently inthe United Statesthat the United States is a country based on law, and that its criminal

justice system is exercised no less than is ours in this country.

Mr. Hogg: When the hon. Gentleman reflects on the American system, perhaps he shouldkeep in mind Guantanamo Bay, and also the extraordinarily long prison sentences that arebeing imposed in respect of matters that would attract very modest sentences in this country.

Mr. Winnick: At the cost of arguing against myself, I did mention Guantanamo. I do notthink there is any evidence that the three people involved in this case will be given uniformslike those who are detained there. We should also bear in mind what the United States

Supreme Court has decided on Guantanamoa decision of which I am sure the right hon. andlearned Gentleman is aware. By and large, on the basis of what I have read and seen infilmsalthough it may not reflect realityI am by no means persuaded that the United Statescriminal justice system is inferior to ours. That is not part of my argument today, although itmay be part of the arguments of others.

Let me return to the reason why I am concerned enough to speak in the debate. The treatybetween the United States and ourselves is one-sided. As has been emphasised enough timesbefore, and will be emphasised again, it is not reciprocal. We will not be able to extraditefrom the United States people living there, as US nationals or otherwise, on the same basisthat enables the United States to extradite people from Britain.

All that I would ask the Governmentnot, I repeat, as a lawyeris why the same level ofevidence is not required on both sides. That, surely, is the issue: that is the principle that weare debating. It is simply not good enough to argue that the earlier treaty tended to be moreone-sided in Britains favouralthough that may be so. In fact, the consensus is that it wasslightly more one-sided in Britains favour. But surely the remedy is not to reverse that.Surely the remedy is obvious, even, as I say, to a non-lawyer. There should be a balance: thesame level of evidence should be the requirement. That is not the position now, and despitewhat has been12 July 2006 : Column 1423argued by my hon. and learned Friend the Solicitor-General and others, I simply cannot bepersuaded that what is being done is the remedy.

The Solicitor-General: I have listened carefully to my hon. Friends argument, and it is animportant argumentbut, with the greatest respect to my hon. Friend, he is making a legalpoint. He is claiming that there is not a broad similarity between the two tests. As far as I cansee, this is not a one-sided treaty, and, more particularly, the Act is not a one-sided Act. Exactreciprocity between two different legal systems is not possible, but what we have is broadlysimilarsufficiently similar to be as good as anything that we are ever likely to get in termsof equality between the tests in the two countries. That is the legal position.

Mr. Winnick: I have listened to what has just been said. I have also read the report of thedebate in the other place, and it appears to me that the position is not as my hon. and learnedFriend has described it. That balance does not exist; if it did, the present controversy would

not have arisen. The level of evidence required for this country to secure the extradition of a


25/50

United States national, or someone living in the United States, to Britain is not the same as thelevel of evidence that is required for the opposite procedure.

Susan Kramer (Richmond Park) (LD): Does the hon. Gentleman agree that there are twoimbalances? One is the imbalance inherent in the treatyeven if it were signed by both

partiesbut the more acute imbalance is the fact that the treaty is not even signed by theother party. Does he agree that when signing a treaty with the US, we have to be consciousthat it involves a relationship with the Senate, not just the Administration? The AmericanCivil Liberties Union and the Irish lobby campaigned strenuously from day one to ensure thatthe treaty was not ratified, so is it not obvious that the British Government must have knownthat obtaining that signature was near impossible?

Mr. Winnick: The hon. Lady makes just the point that I was about to make. First, the treatyhas not been ratified. Indeed, it could well be argued on the American side that there is noneed for any hurry. If it is being implemented on the British side, why should there be anyhurry on the part of the American Senate to ratify it? There is no incentive to do so. The hon.Lady rightly made that first point, and her second one, too, remains relevant. Even if it is

ratified the imbalance remains, so it is not just a question of the Senate acting in due course.Apparently, great efforts are being made on the British side to get ratification, but even if thathappens, the imbalance and the controversy will continue. As has been said already, no othercountry in Europenot even countries that are no less favourable allies than ourselveshasthe same sort of arrangement that we have negotiated with the United States.

I conclude my brief remarks by saying that I am far from being anti-American, and I haveshown that over recent events. Like the Prime Minister, though perhaps12 July 2006 : Column 1424not to the same extent, I believe that it is in the interests of Britain to have a close, friendlyworking relationship with the US. It may come as a surprise to one or two people on theOpposition side to hear me say that, but that has nevertheless been my position. I do not

believe that since 1945 it would have been to this countrys advantage not to have such aclose working relationship with the US. We have already lived through the cold war and nowface acute terrorist threat and danger, as we saw only yesterday in India and in what happenedon 7/7.

Obviously, I do not work on the basis that we are necessarily countries of equal size orinfluence; it would be nonsense to believe that. I am concerned, however, that there is agrowing feeling in Britain, even among people who would not view themselves as anti-American, that in our relationship with the US we are not getting the balance and equality thatwe should. People feel that what the US wants, we concede without too much difficulty, andwithout going properly through all the ramifications. There is a real danger that such feeling

could turn into real antagonism towards the US, which, as I said, would certainly not be inBritains interest.

I ask the Solicitor-General to reflect on the fact that we are talking about three individualsnow, but who knows what will happen next year or the year after? It may not necessarily bebankers next time. If that happens, there will be far more of an outcry on the Labour Benchesthan we have seen today. The principle is the important thing, and I hope that even at this latestage, my right hon. Friend will give further consideration to this matter. There is a great dealof anxiety in the country. He may think otherwise, but for all the reasons advanced in thedebate, I believe that the anxiety is very considerable.

2.14 pm


26/50

Mr. Michael Howard (Folkestone and Hythe) (Con): I congratulate the hon. Member

extradition of nat west 3: commons debate 12 jul 2006 annotated

Documents