UK Extradition Arrangements

Lord Blunkett Excerpts

Monday 5th December 2011 Commons Chamber

[Mr David Blunkett (Sheffield, Brightside and Hillsborough) (Lab)]

I congratulate the hon. Member for Esher and Walton (Mr Raab) on obtaining the debate. I shall try to respond briefly in the spirit of accord that we have created over the past few days, including on the broadcast media.

I had the unenviable task of agreeing the framework agreement on the European arrest warrant and the renewed treaty with the United States. When someone has Baroness Helena Kennedy and the Daily Mail on their back, they really do need to be on the ball, so I have re-read a lot of material, including Justice Scott Baker’s review, and it is worth those who follow parliamentary debates getting on the website and taking a good look at it.

The review may have flaws, but it is an extraordinarily good examination of precisely what was agreed, what has happened and, therefore, the reality of decisions taken and how they compare, for instance, with the Extradition Act 1989 and European convention rights, which are currently being tested by Babar Ahmad, because his case has gone to Strasbourg. In the case of Gary McKinnon, a review of the medical evidence is taking place for a report back to the Home Secretary, so high-profile cases are being dealt with almost outside, and in addition to, the procedure that we are debating tonight. In other words, the process is being exhausted and carried further, as it should be in cases of controversy and in extenuating circumstances.

[Mr David Burrowes (Enfield, Southgate) (Con)]

The right hon. Gentleman raises the issue of Gary McKinnon, my constituent, and makes a new point, because I understand that he made representations for Mr McKinnon to stand trial via a TV link from this country and, if convicted, to serve his sentence here. Does that not make the case for a forum bar, which would enable such considerations to be transparent, rather than conducted perhaps privately, as the previous Home Secretary did?

[Mr Blunkett]

The forum bar carries forward convention rights and changes the balance, as Scott Baker’s review indicates. Although I do not disagree with a great deal of the report by the Joint Committee on Human Rights, I note that elements of it would not only prolong the process—it has been mentioned already that some people have been awaiting extradition for a very long time—but alter the balance that we are trying to achieve.

If I were negotiating the 2003 treaty and the accompanying Extradition Act 2003 again, I would want a codicil, detailing alongside the treaty the nature of the process in order to assure people that there was a clear balance between the processes adopted in the United States and here.

In 2009 and 2010, I had the opportunity, which I took up privately, to visit the US Department of Justice. I kept it private for two years, because, in reporting back to the Home and Justice Secretaries under the previous and current Governments, I felt that there was some progress to be made by stating the views of the Department of Justice, as indicated to me, on the possibility of taking decisions about any trial, the nature of any sentence and whether, if applied, it might be served in this country.

Those are difficult issues, because we should not presume that somebody would be found guilty. The hon. Member for Enfield, Southgate (Mr Burrowes) is close to Mr McKinnon’s case, so he will be familiar with Lord Justice Stanley Burnton’s commentary on it, and there is undoubtedly the major issue of medical evidence, which is under examination.

Let me deal briefly with where we should be going. We should return to the issues relating to the European arrest warrant, because, as we have just heard spelt out, extradition arrangements have been distorted in cases from eastern Europe to Greece, partly because there has not been a de minimis rule on sentences and, therefore, whether it applies; because people have been returned to—rather than dealt with originally—years after the case arose; and because EAWs have been presented to people outside the United Kingdom when no attempt has been made to serve a warrant inside. All those matters need reviewing for the sake of the sensible application of justice, because once people feel that justice is not being applied, as we have seen from campaigns and in tonight’s debate, justice is questioned.

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) (LD)]

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.

[Mr Blunkett]

That is often undertaken—albeit not to the degree that has just been described—in our court system to ensure that people can enter a plea bargain, so it is not unfamiliar to any of us.

[Charlie Elphicke (Dover) (Con)]

Will the right hon. Gentleman give way?

[Mr Blunkett]

I will not give way any more, because I will lose time.

On the American treaty, there is therefore room for negotiation on the side to take account of my central point: we live in an entirely different world with cyber- attacks. Cyber-attacks from our country on installations in our country can easily be dealt with, but cyber-attacks from a country on the installations or businesses of another country, such as the Pentagon, raise all sorts of issues about how we go forward.

There are rogue and emerging states in terms of cyber-attack and cyber-terrorism to which we would certainly not want to say, “Please would you try the individual in the state from which the attack took place,” and, as such attacks are trans-border and affect installations throughout the world, we need to sit down and work out how we deal with that entirely new eventuality, which affects people across the globe. If we do not, we will rue the day.

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.

I am aware that there will not be a vote this evening. I know that the Government will take this seriously, but I also know that they will have to govern and they will have to do business with a friendly state where the judicial system is free, open and based on rights, and we should respect it as such.

--- Later in debate ---

[Mr Davis]

I entirely agree. That is very much the thrust of what I will say in the next few minutes.

Let me come back to the thought process behind this—the intent behind what the then Home Secretary was trying to achieve, with which, as I said, I sympathise. The EAW, the extradition treaty and the 2003 Act were all aimed at dealing with terrorism. What has been the consequence of that? A parliamentary answer told us that between 2003 and 2009 there were 63 extraditions to the USA, of which precisely one involved a terrorist. A number of the others involved serious crimes—although I have to wonder about the two people who were extradited for “satellite signal theft”; Rupert Murdoch’s reach is obviously longer than I thought—but there was only one terrorist extradition. When I looked at it the other way around—extraditions from the Americans to us—I was unable to find any record of terrorists being extradited here. I asked people in the Library to look at it for me. They searched through all the available records and could not find any examples. We should keep in mind that the rather draconian process that we have, which was put in place to defend us against terrorism, does not appear to have had much impact in that respect. In practice, the outcome is much more mundane. The truth of the matter is that we will have far more Gary McKinnons extradited than Osama bin Ladens.

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.”—[Official Report, 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.

[Mr Blunkett]

On 16 December 2004, the idea of treating one’s nationals, as opposed to overseas citizens, differently in this country was ruled out by the House of Lords. I should know, because section 4 of the Anti-terrorism, Crime and Security Act 2001 was at stake.

[Mr Davis]

I am sure that the right hon. Gentleman is right. My point is that we are dealing with the situation as it is now and what is acceptable among the anti-terrorist community, if I might put it in those terms, and I am afraid that what is acceptable is something far tougher than we have been claiming.

Let me look at the other side—American reciprocity. Much of this is about reciprocity, so how have the Americans behaved? My hon. Friend the Member for Croydon South (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.

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[Damian Green]

I can feel a fascinating and wholly irrelevant debate coming upon us, Mr Speaker.

[Mr Blunkett]

rose—

[Damian Green]

This will be the last intervention on mediaeval history.

[Mr Blunkett]

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]

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.

As I made clear during the debate in Westminster Hall, that panel undertook an extensive examination of the issues and carefully examined evidence from a range of parties representing all shades of opinion. Contrary to suggestions by some, the panel assessed representations from those who had experienced extradition first hand and the evidence of their families. It has also been suggested that the panel did not take evidence from solicitors representing the subjects of extradition requests. In fact, one of the panel members was himself an experienced legal representative of those subject to extradition proceedings and brought first-hand insight into the realities of extradition from the UK.

As the right hon. Member for Sheffield, Brightside and Hillsborough (Mr Blunkett) said, the review has evidently reached controversial conclusions, but I hope that we would all acknowledge that it is a serious piece of work, as pointed out by my hon. Friend the Member for Northampton North (Michael Ellis). I have been interested to hear the further points made this evening, and I am happy to assure the House that these opinions will be given the most careful scrutiny before we publish what action we propose to take in response to the review. There is a significant body of opinion from all sides that we need to assess seriously before reaching a decision.

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.