Extradition

Damian Green Excerpts

Thursday 24th November 2011 Westminster Hall

[Chris Bryant]

The Deputy Leader of the House is shaking his head. If he has other statistics, I will be happy to give way to him.

The Government have a problem. The Conservative party and the Liberal Democrats made a series of commitments when they were in opposition to change the treaty to ensure that Gary McKinnon would not be sent to the United States of America. As I understand it, the Government were going to rely on the Baker review, but that review has provided exactly the opposite answer to what they expected.

[The Minister for Immigration (Damian Green)]

indicated dissent.

[Chris Bryant]

The Minister is shaking his head. Perhaps he will correct my impression in a moment.

--- Later in debate ---

[The Minister for Immigration (Damian Green)]

It is a pleasure to sit under your chairmanship for the first time, Mr Leigh. I join everyone else in congratulating my hon. Friend the Member for Esher and Walton (Mr Raab) on gaining this debate. He and I have fought on the same side in many civil liberties battles over the years and will continue to do so. I thank him for the thoughtful tone of his introduction, which infused the debate and continued up to and including the speech made by the hon. Member for Rhondda (Chris Bryant) on behalf of the Opposition. I am happy to assure my hon. Friend the Member for Enfield North (Nick de Bois) that we will indeed take very seriously the points that have been made in the debate. As my right hon. and learned Friend the Attorney-General said in the House last week in respect of the extradition review, the Government are currently considering what action to take on these issues. As he made clear, we welcome these debates and the representations that have been made.

We have seen a number of high-profile extradition cases in recent years. The surrender of a person to another country to face trial is always a challenging and difficult process both for the person concerned and for his or her family. What is vital, and what the Government have said repeatedly in the context of the extradition review, is that we strike the correct balance between seeking redress for victims of crime, while protecting the fundamental rights of suspects brought to justice. That is the underlying principle that lies beneath today’s debate and it is why the debate is so useful. As has been said repeatedly this afternoon, a number of issues linked to our extradition arrangements have been of long-standing concern to Parliament.

Since the Extradition Act 2003 came into force, there have been numerous debates in Committees and on the Floors of both Houses. The issues range from the UK’s extradition arrangements with the United States, the forum bars to extradition and the European arrest warrant and they have all been debated at length. In addition, there have been various public debates and campaigns on specific cases and issues relating to extradition. A lot was said under the previous Government by the then Opposition parties about these issues. On coming into government we recognised that there were long-standing and deeply held concerns that we wanted to address. That is why the coalition’s programme for government document made a clear commitment to

“review the operation of the Extradition Act–and the US/UK extradition treaty–to make sure it is even-handed.”

In September 2010, the Home Secretary announced an independent review of the UK’s extradition arrangements. The review was chaired by Sir Scott Baker, a former Lord Justice of Appeal who presided over the inquests into the deaths of Princess Diana and Dodi al-Fayed. Sir Scott was assisted by two lawyers, David Perry QC and Anand Doobay, who between them have a wealth of experience of extradition from both a prosecutorial and a defence perspective. That independent panel undertook an extensive examination of the issues, including a very thorough and careful consultation process, with a range of parties representing all shades of opinion on the subject.

It is clear from this afternoon’s debate that the conclusions that the panel reached are not attracting universal assent. It has been very interesting to hear the views that have been expressed this afternoon, and I promise the House that those opinions will be given the most careful scrutiny before we reveal to the House the action we propose to take in response to the extradition review.

We have learned this afternoon that my right hon. and learned Friend the Member for North East Fife (Sir Menzies Campbell) and his commission on behalf of the Liberal Democrat party will publish a report on extradition; I think he said that it will be published as soon as possible. We discovered that the Home Affairs Committee is to publish a report in February. Clearly, the debate is not at an end and there will perhaps be a plethora of further responses, all of which will feed into the Government’s own consideration of the Scott Baker recommendations.

Although I am responding to the general part of today’s debate on extradition, it is important that I refer to some individual cases, not least because the case of Babar Ahmad is cited specifically in the context of today’s debate and, as has been said several times, the shadow Justice Secretary has sat here throughout the debate. He is enforcedly silent because of the rules of the House, but I know that he has been playing a most proper and energetic role defending his constituent’s interests in this case.

I appreciate that my hon. Friend the Member for Esher and Walton said that he did not want this to be a dry lawyer’s debate. I have never been accused of being either dry or a lawyer, but I am afraid that I am forced to go into the legal undergrowth in the Babar Ahmad case, and indeed that of Gary McKinnon.

I will start with the background on Mr Ahmad’s case. He was arrested for extradition purposes in August 2004. His case was dealt with under the Extradition Act 2003. Under the normal scheme of that Act, extradition hearings take place before a district judge at the City of Westminster magistrates court. The court found that there were no bars to Mr Ahmad’s surrender, whether on human rights or any of the other grounds that the court considers. Accordingly, the district judge sent the case to the Home Secretary for a decision under the 2003 Act as to Babar Ahmad’s surrender. As part of that process, it was then open to Mr Ahmad and those acting for him to make representations as to why he should not be surrendered. Following due consideration, it was decided to order surrender. At that point, Mr Ahmad had a statutory right of appeal against the decision of the district judge to send the case to the Home Secretary and the decision of the Home Secretary to order surrender. That appeal took place in July 2006 before the High Court and judgment was given in November that year, when the appeal was dismissed. There followed a petition for leave to appeal to the House of Lords, which in June 2007 refused leave. In that way, Mr Ahmad exhausted all the available domestic avenues for contesting the request for his extradition.

Mr Ahmad then applied to the European Court of Human Rights. On 12 June 2007, that Court imposed a stay on his extradition, and on 8 July 2010—three years later—the Court declared his case partially admissible and it remains under consideration by that Court. The e-petition on behalf of Mr Ahmad calls for him to be put on trial in the UK, since the allegations against him in the United States relate to alleged conduct that took place while he was in the United Kingdom. The Government note the concern of petitioners on this issue, but it is not for the Government to decide if and when someone should be prosecuted in the United Kingdom. The decision as to whether to bring a prosecution is a matter for the independent prosecuting authorities—

[Caroline Lucas]

Will the Minister give way?

[Damian Green]

I will give way shortly; let me finish going through the detail.

To date, the prosecuting authorities have decided not to prosecute Mr Ahmad in the UK and in terms of the extradition request the courts in the United Kingdom have held that authorities in the United States have jurisdiction in relation to the offences of which Mr Ahmad is accused, and that they are entitled to seek his extradition. Mr Ahmad’s case has been exhaustively considered by the UK courts and they have concluded that there are no bars to his extradition.

[Caroline Lucas]

I am grateful to the Minister for giving way. Can he say whether he believes that the latest information we have—that the CPS apparently did not see all the evidence before it went to the US—changes the analysis that he is putting forward? How will his Department follow up the matter? It seems pretty shocking to me if the CPS has essentially been saying that there is insufficient evidence to try Mr Ahmad in the UK, yet now we discover that it has not even seen all the evidence.

[Damian Green]

The hon. Lady made an extremely interesting point earlier; when she revealed it a few minutes ago, it was the first I had heard of it. Obviously, all involved will need to look very carefully at the evidence that she is bringing forward.

Mr Ahmad is now challenging extradition before the ECHR. The Court has asked a number of questions in relation to the case and both sides have submitted observations on those points on several occasions. The review panel highlighted in its report cases that awaited a decision by the ECHR and the amount of time that they had been before that Court. It recommended that the matter of the delay is taken up by the Government urgently, and that the Court should be encouraged to give priority to cases where extradition has been stayed. The Government are considering that recommendation along with the others made by the review panel, but the United Kingdom has previously pressed, and will continue to press, for the Court to reach its decision as soon as possible.

Understandably, many concerns have been expressed, both today and over the years, about the length of time that Mr Ahmad has been detained in custody awaiting the outcome of the extradition request. Again, I obviously appreciate the concerns about this issue, but Mr Ahmad has been detained at all times on the order of the court. He may, of course, apply for bail at any time and a decision as to whether to grant any application for bail is also a matter for the court.

As I have said, we continue to press the ECHR to reach its decision on the case as soon as possible, and where the Court seeks observations or clarifications from the Home Office on the representations in the case, they are provided as soon as possible. We are acutely aware of the time that has passed since the extradition request was first made and of the importance of dealing with the matters raised as quickly as is consistent with fairness to all sides.

Concerns have also been raised in respect of the case of Gary McKinnon and I hope that it will be useful if I also update the House on his case. Mr McKinnon’s case is different from Mr Ahmad’s case as it falls to be decided by my right hon. Friend the Home Secretary. I will briefly explain the reasons. Mr McKinnon has exhausted all rights of appeal under the Extradition Act 2003 and in his case the ECHR refused an application to impose a stay on his extradition. However, the Home Secretary is under a duty under the Human Rights Act 1998 not to act in a manner that is incompatible with a person’s rights under the European convention on human rights. Therefore, she must consider whether, as a result of events occurring after the extradition proceedings, it would be contrary to the convention for a person to be extradited. The sole remaining issue, therefore, is whether extradition is compatible with Mr McKinnon’s convention rights. The Home Secretary sought the independent advice of the chief medical officer, who has provided the names of two experts she believes are well placed to provide evidence on the relevant medical issues. Those experts have now been instructed to review the various reports that have been submitted in Mr McKinnon’s case. They will prepare a report that will help the Home Secretary to determine whether or not extradition would contravene Mr McKinnon’s convention rights.

The case is taking time to resolve. Obviously, it would not be appropriate for me to go into the detail, but as Members will appreciate there have been a number of issues relating to the case that have been the subject of lengthy discussions. We hope that the experts will report as soon as possible. However, this is not an easy case and there are a number of issues that will need to be considered in depth. I am conscious of the long and energetic campaign mounted by my hon. Friend the Member for Enfield, Southgate (Mr Burrowes), and I know that he appreciates the frustrations of all involved at the length of the case.

Members on both sides of the House have raised concerns about specific European arrest warrant cases, and although the EAW is dealt with operationally by the Serious Organised Crime Agency and not the Home Office, a number of significant cases have been brought to our attention. The extradition review, although not referring specifically to cases, has dealt with a variety of high-profile issues that the cases have highlighted. I assure Members that we will take those issues, and the circumstances of the individual cases, into account when considering the range of EAW issues, many of which were dealt with in considerable detail by the extradition review panel. In particular, I share the concern of my hon. Friend the Member for Esher and Walton about European arrest warrants being issued for trivial offences. I know that other EU member states and, indeed, the European Commission, share that concern with the British Government. As part of the review process, we are considering what action we should take to address the issue. In the meantime, there are ongoing discussions with our Polish counterparts to encourage their prosecutors and courts to consider whether the issuing of an EAW, in the way it has been done in the past, is a proportionate step to take.

My hon. Friends the Members for South Dorset (Richard Drax) and for Richmond Park (Zac Goldsmith) said that they supported the concept of the EAW but that it had to be properly implemented, and when the Home Secretary announced the extradition review we recognised that there were serious concerns regarding that. The Baker report looked at that area in considerable detail and made recommendations on proportionality, pre-trial detention and, in certain cases, the possibility of people serving sentences in the UK rather than being extradited. In reaching its conclusions, the extradition review panel took evidence from a wide range of parties, and we will be looking at it very carefully.

Many Members raised issues about UK and US extradition figures, including the hon. Member for Bolton South East (Yasmin Qureshi), my right hon. and learned Friend the Member for North East Fife and the hon. Member for Aberavon (Dr Francis) who chairs the Joint Committee on Human Rights. Between 2004 and July 2011, the US made 130 extradition requests to the UK, seven of which have been refused by UK courts, and the UK made 54 requests to the US, none of which has been refused. In the same period, 27 UK citizens were extradited to the US and 18 US citizens to the UK. To clear up a point of confusion, the UK-US treaty covers all types of criminality; it was not agreed simply to ensure that people suspected of terrorist offences could be brought to justice. Indeed, no one has been extradited in either direction for terrorist offences since 2004, because in the case of extraditions to the US, the cases, including Babar Ahmad’s, are being considered by the European Court of Human Rights in Strasbourg, due to the human rights issues they raise.

My right hon. and learned Friend the Member for North East Fife made a point about the Home Secretary’s power to take decisions in this area. It is a matter of lively debate as to what quasi-judicial powers politicians should have, but it is important to make clear what considerations should be taken into account. In a case involving extradition within the EU, there is no role for the Home Secretary; in a case involving extradition to another country, her role under the Extradition Act 2003 is limited to considering the death penalty, speciality—the protection that ensures that someone can be tried only for the offence for which they are extradited—and onward extradition, which deals with whether the state has given consent when someone has previously been extradited or transferred to the UK. There is, however, a duty on the Secretary of State under section 6 of the Human Rights Act 1998 to ensure that extradition does not breach someone’s human rights, as I explained in the context of the Gary McKinnon case. During the statutory extradition process, human rights are considered by the courts, but if a human rights issue arises after the end of that process the Home Secretary must consider these issues.

I wish to leave some time for my hon. Friend the Member for Esher and Walton to respond to the debate, so I will close by reiterating that we will take note of not just the many interesting comments and points made today, but also the various reports of the Joint Committee on Human Rights and the reports we are expecting from my right hon. and learned Friend the Member for North East Fife and from the Home Affairs Committee. It is precisely because so many authoritative reports are being produced that I cannot respond to the question that various people have asked about an exact timeline for when we will come to a decision, but this has been an extremely valuable debate, and will play its own part in allowing the Government to develop the response that we will, as the Home Secretary has said, produce as soon as is practicable.