Extradition

Hywel Francis Excerpts

Thursday 24th November 2011 Westminster Hall

[Dr Hywel Francis (Aberavon) (Lab)]

It is a pleasure to follow the right hon. and learned Member for North East Fife (Sir Menzies Campbell). We both appeared before the Backbench Business Committee in support of the hon. Member for Esher and Walton (Mr Raab), with the full support of my right hon. Friend the Member for Leicester East (Keith Vaz), who is the Chair of the Home Affairs Committee. I congratulate the hon. Member for Esher and Walton on securing this important debate on extradition. I speak as Chair of the Joint Committee on Human Rights and am very pleased to fully support the hon. Gentleman. He is a member of my Committee, and I am delighted that he has strongly supported its unanimous and wise recommendations.

It is almost a year since the Committee announced our inquiry into extradition. The Baker review began a couple of months before our inquiry. My Committee’s intention was not so much directly to influence that separate process, but to set out for Parliament the human rights implications of current extradition policy, so that a more informed discussion could take place when the findings of the Baker review emerged. That has now happened and this debate is, I hope, just one part of that informed discussion. As many hon. Members have said, we hope that discussion will continue and take place somewhere more appropriate. I will say something about that in a moment.

It is disappointing that this debate is taking place in Westminster Hall. It seems to suggest that human rights issues are, somehow or other, not mainstream or important but peripheral, or that extradition is a small matter affecting very few people, most of whom appear to be deserving of whatever treatment they suffer in the countries to which they are extradited. That is not the case. We all know the cases that have attracted, quite rightly, a great deal of public attention: Gary McKinnon in terms of the UK-US extradition treaty, and Julian Assange in terms of the European arrest warrant. I should place on record my gratitude, as Chair of the Joint Committee on Human Rights, for the way in which so many hon. Members today have spoken up in support of their own constituents.

There are many less well-known cases that deserve attention. There are cases that include flagrant injustice, unfair treatment and even mistaken identity, as we have already heard. My Committee was privileged to hear the moving evidence given by many of the people involved, such as Andrew Symeou, Deborah Dark and Edmond Arapi. Nor are we dealing with only a handful of cases. In 2009-10, 699 UK citizens were surrendered to other European Union countries under the European arrest warrant alone.

I must emphasise that human rights are massively important. This is a human rights debate, and debates on human rights should attract the attention of as many hon. Members as possible, and should be a matter for the main Chamber. It is very gratifying, as a number of Members have already said, to see so many Members here today supporting human rights. Extradition engages a number of different human rights: article 3, prohibition of torture, or inhuman or degrading treatment; article 5, right to liberty and security; article 6, right to a fair trial; article 8, right to respect for private and family life; and article 14, prohibition of discrimination. We have heard many examples of what we would consider breaches of those human rights this afternoon.

Extradition agreements are vital, and this country has benefited from agreements that enable us to bring foreign citizens or absconders to justice here in the UK. Citizens of one state must not be immune from the laws of another. If you are accused of a crime, you must face justice, and it may be right to do so in the state where the crime was committed. However, does our shared common legal framework and belief in human rights mean that we can rely on the operation of justice equally across Europe or, indeed, across the world?

We cannot take comparable standards of justice for granted. Our inquiry showed that although the European arrest warrant has brought benefits in terms of a quicker, more streamlined system of justice in Europe, it does not have the right safeguards to guarantee human rights protection; nor does the US-UK bilateral extradition treaty, as we have already heard. It is an important feature of our system that some rights may be qualified, and that there is a just and proportionate balance between the interests of the state and the interests of the individual; for example, in freedom from discrimination, and the right to privacy and family life.

Some rights engaged by extradition are the most fundamental: liberty and security, and the right to a fair trial—both of which are only qualified in times of war or public emergency—and freedom from torture, or inhuman and degrading treatment. That is, of course, an absolute non-derogable right. Our Committee’s report highlighted areas where human rights are at risk, and set out the changes that would provide the robust protection needed. First, we said that Parliament should be asked to commence the “most appropriate forum” safeguard in the Police and Justice Act 2006. That would require the judge to consider whether it is in the interest of justice for the individual to be tried in the requesting country, and to refuse the extradition request if it is not. There should be a requirement to show a prima facie case, or a similarly robust evidential threshold, which would mean that a court could refuse extradition if it was not satisfied that a country had shown that there was a case to answer. A proportionality principle should be added to the EAW, to ensure that the human rights implications of extradition are not disproportionate to the alleged crime.

The Government should ensure that the human rights bar is effective in practice as well as in law. Although the bar requires the judge to consider whether extradition is compatible with the human rights of the individual concerned, the threshold set by case law here is very high indeed, allowing material such as reports of the UN Committee against Torture to be regarded as evidence of possible human rights abuses. That would strengthen protection.

Access to legal representation needs to be reviewed. Present provision is patchy and often woefully inadequate. We need to ensure that other EU member states do not use the EAW for purposes of investigation—or, as some hon. Members have already said, fishing expeditions—rather than trial. Finally, in relation to the notoriously asymmetrical UK-US extradition treaty, the Government should level the playing field. The proof required when extraditing a person to the US must be raised to the same standard as that required when extraditing from the US to the UK.

The Baker review has now reported. It might seem churlish to take issue with a review that seems to be so comprehensive, but many members of my Committee, and I am one of them, are disappointed to note that in many areas the review has not drawn the same conclusions as the Committee’s report. However, we are encouraged that the review supports my Committee’s conclusion about the need for better legal representation for those subject to extradition proceedings. Likewise, the review finds that any future amendment to the framework decision underpinning the EAW should include a proportionality test to be applied in the issuing state. That broadly echoes a recommendation from our report.

The Baker review also came to similar conclusions to my Committee on the issues of excessive pre-trial detention, maintaining current limits at the discretion of the Secretary of State, with sentences served in the UK for those whose custodial sentences are 12 months or less. That gives the Committee some hope that there might be areas where the Government can move more quickly when consensus suggests a clear and simple path. I do not intend to analyse or criticise the review on areas where its conclusions differ from those of my Committee. We may decide to revisit the whole area in the light of the review’s findings.

Unfortunately, the Baker review and my Committee’s report diverge on some of the most important aspects of extradition, such as forum, the requirement for a prima facie case, and the fairness of what seemed clearly to the Committee to be an unbalanced US-UK treaty. It is gratifying to hear so many hon. Members supporting my Committee’s position, rather than the Baker review.

[Penny Mordaunt (Portsmouth North) (Con)]

On the point about the forum bar and the other test that the hon. Gentleman has described, one of the criticisms of that in the panel was that, in addition to adding extra cost, it would delay the process. Does his Committee have a view, where extradition is justified, about whether having those safeguards would in any way impede that process?

[Dr Francis]

I am sure my Committee has a view. I am a bit anxious not to get involved in individual cases, but as I have already indicated, my Committee is strongly in support of the principle of extradition. What we are debating today are the flaws and weaknesses in the processes. The Government have a unique opportunity to address the issue, and I am grateful to the hon. Lady for the points that she has made.

I wish to probe the Government on their intentions, as do many hon. Members here today, and on the timeline for decisions to be made in this area. I have no doubt that the Government may well hurry a little more if we have the opportunity to debate the matter in the Chamber.

When the Baker review reported, my Committee agreed that I should write to the Home Secretary to seek information about when the Government would respond to the review and to my Committee’s report. This week, we received a reply that was broadly unhelpful: a response will be made “as soon as practicable”. Can the Minister give some sense of what that expression means?

The Attorney-General was asked about the review and its findings in the main Chamber last week. When he referred to them as “guidelines”, there was some speculation that he was implying that the Government were distancing themselves a little. That may or may not be the case, but can the Minister spell out whether, when the Government consider the review’s findings, they will also be considering not only my Committee’s report, which comes to different conclusions in some areas, but other important reports, which have been mentioned this afternoon, by such bodies as Justice and Fair Trials International?

It would be good to hear from the Minister that the Government consider the matter urgent, and as far as we are concerned, judging by the strength of unanimous feeling this afternoon, it is urgent. Some changes can be made quickly, even if others might take longer to decide upon and resolve. The rights of our citizens must be protected against the sorts of injustice that have traumatised so many people and their families, many of whom gave evidence to our inquiry.

[Mr Edward Leigh in the Chair]