Extradition (Provisional Arrest) Bill [Lords]

John Redwood Excerpts

Report stage & Committee stage & Committee: 1st sitting & Committee: 1st sitting: House of Commons & Report stage: House of Commons
Tuesday 8th September 2020 Commons Chamber

[Mr Davis]

My right hon. Friend is right on several counts, and I will elaborate on the unfairness in a second, but he is right also to highlight something else, which is that international rules-based systems work only if everyone sees them treating all countries and their citizens identically. If they do not do that, they fall down. An American exceptionalist approach, therefore, destroys the systems we are trying to uphold. So there is an interesting philosophical point in his intervention, as well as the moral one that I will major on.

[John Redwood (Wokingham) (Con)]

Will my right hon. Friend confirm that when these measures came in quite a number of us on the Opposition Benches were uneasy about the asymmetry and unfairness? It is good to see him reviewing the matter at this late stage.

[Mr Davis]

My right hon. Friend is exactly right, and I was one of those, although at that time I was not allowed to say so. It was not the first time I have been overruled by my boss, and it will not be the last.

Since 2007, the United Kingdom has surrendered 135 UK nationals to the United States, 99 of them for non-violent offences. Over the whole period of the Act, 80% of the offences have been non-violent. So much for terrorism, murder and paedophilia! To put it another way, there have been only three violent offences per year requiring extradition to the United States.

The US deliberately uses its extradition arrangements to cast a wide legal net around the business world, seeking to be judge, jury and executioner for global commercial deals and aims. The Home Affairs Select Committee’s 2012 reported concluded that the United States

“has the power to reach out around the world and—provided there is a very, very tenuous connection with the US—it generally has the power to prosecute.”

Or as the distinguished extradition lawyer, Robert Dougans, puts it:

“The Department of Justice effectively uses criminal extradition as a lever for US interests in commercial matters, which is not what it is for.”

This has been shown in case after case, such as those of Ian Norris, the chairman of Morgan Crucible; the NatWest three; Christopher Tappin; and a number of others, including, most recently, Dr Mike Lynch.

How does it work? Once a person extradited from the UK arrives in the US, they are treated as guilty from the moment they land. They face invasive strip searches—that is exactly how it sounds—and they are electronically tagged. They are kept in appalling conditions completely alien to the British justice system. They are shackled and perp-walked into and out of court in front of television cameras and paparazzi, so that the US Department of Justice can claim a PR victory at the expense of the presumption of innocence.

Some of the people extradited sit in court facing allegations dressed head to toe in orange prison garb. They are then faced with enormous pressure from the US authorities to agree to a plea bargain. They are told that if they plead innocent they will face decades in these appalling conditions but if they plead guilty they will face a much lighter sentence in an open prison, with possibly half of it served back here in the UK. As the case is held in America, very often witnesses from the UK will not appear, because they themselves fear incarceration. That has certainly happened in some current cases. A massive 97% of cases are settled by plea in the United States. For a foreigner, unprotected by the US constitution, that is not a justice system; it is a very effective but not at all fair prosecution system. It is not justice.

Much of this would be better if the accused were tried in Britain, completely sidelining the need to extradite at all. The NatWest three, for example, were British citizens and their alleged crime was in Britain against a British company; at worst, they should have been tried in front of a British court, but the British authorities did not see them as having a case to answer. However, the extradition treaty does not recognise this. Anyone caught in this system faces an asymmetric and unbalanced treaty process. Unlike in the US, a person in the UK has no right to insist on probable cause before being extradited. The 2011 Joint Committee on Human Rights report called this a lack of reciprocity in the treaty, and it has resulted in the US surrendering only 11 individuals to the United Kingdom since 2007, while 135 have gone the other way. Since the United States is roughly five times bigger than the UK, this is an effective disparity of 50 in risk of extradition.

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[Mary Kelly Foy (City of Durham) (Lab)]

This is an important Bill. We need an extradition system that ensures that UK law enforcement agencies are supported in apprehending dangerous criminals in order to keep the public safe, both in Britain and abroad. This Bill helps facilitate the extradition of those who have committed serious crimes abroad, and all of us in this House can support that.

However, it is vital that this Bill includes the necessary safeguards. The amendments, both from the other place and those put before the House today, share common themes of transparency, fairness and support for parliamentary scrutiny; these are values that every Member should hold. It is right that the Bill compels the Government to consult with the devolved Administrations and non-governmental organisations before adding or removing a territory, as well as confirming to Parliament that the territory does not abuse Interpol red notices. That amendment promotes dialogue and discussion among relevant parties, respects the role of the devolved Administrations and ensures a level of transparency that is necessary in Government. It is difficult to see how any reasonable Government could object to that. Moreover, given the trouble that the Government have had with carrying out consultations before making major decisions, it is important that such a measure is included in the Bill. If any Member needs evidence of that, I refer them to the former Department for International Development.

The second amendment carried in the other place, which mandates that territories can only be added to the extradition process individually, is designed to increase both transparency and scrutiny. If we allow territories to be added when grouped together, there is a real risk that a country with a problematic human rights record could be included alongside countries that respect human rights. Considering the Government’s vocal support for a Magnitsky Act to deter human rights abuses, it would be somewhat hypocritical to oppose an amendment that has the same purpose.

Furthermore, by considering whether to add a territory on its own merits, we are not only ensuring that those countries do not abuse Interpol red notices, we are also adding a further layer of parliamentary scrutiny to the process. The House should seek to support additional scrutiny, not limit it. It is therefore disappointing, if not surprising, that the Government seem set on opposing these common-sense safeguards. As well as the amendments passed in the other place, it is important that this House further strengthens the Bill. Given that the legislation includes increased law enforcement powers with the purpose of keeping the public safe, it is right that the House should be able to see the effectiveness of those measures. Compelling the Secretary of State to update the House annually on the number of arrests made would help to achieve that. For the same reason, it is important that the Act is kept under regular review by this House. Again, that would strengthen Parliament’s role while ensuring the measures are working as intended.

Finally, although the Bill rightfully updates our extradition process with territories such as New Zealand and Canada, it is clearly wrong that there is still uncertainty regarding our justice and security arrangements with members of the European Union. Many of those states are some of our closest allies, while a potential lack of access to the real-time European criminal databases will undoubtedly affect the ability of UK law enforcement agencies to protect the public. It is concerning that the Government have yet to adequately address that point.

While the Bill should be supported by the House, it is not perfect and there are gaps and uncertainties that still exist within it. The Opposition amendments seek to fill and strengthen the Bill and ensure that it is fully effective, while also aiming to increase transparency and co-operation. I urge Members to support the Opposition amendments today and to protect the amendments agreed to in the other place.

[John Redwood]

Two very important principles should be in all our thoughts when framing extradition legislation. First, there is the imperative to make sure that where someone has committed a serious and violent crime, such as a terrorist offence or murder or some other such crime, in the United Kingdom and has escaped abroad, we have arrangements so that we can pursue justice against them through co-operation with countries around the world. We should also have very much in our mind the issues that my right hon. Friend the Member for Haltemprice and Howden (Mr Davis) drew to the attention of the House. We should be very concerned about innocent people in our country who may be the object of extradition requests or demands from countries abroad to take them into justice systems that are not up to the standards of our own, or not the kind of thing we would want an innocent person, particularly, to have to approach, only to see justice not done in those countries if we have undertaken such extradition matters. I echo my right hon. Friend’s request that we need to look again at how the US relationship is working. This was sold to the House some years ago on the basis that it would be targeted on those criminals we could all agree about—the terrorists, rapists and murderers who were committing violent crime—and it is of concern for us to discover that that has not been its main use at all.

I hope the Minister will share with the House his thoughts on what arrangements we will move towards with the other European countries now we have left the European Union. There may be a move to put all European Union, or European economic area, countries under these provisions, but we should definitely look at the different standards of justice system in those countries. While many of our European friends have excellent justice systems that we would be very happy with, there are very variable standards throughout the European continent. Given that we are rethinking our foreign policy and our position in the world generally, this is a good opportunity to look at them one by one and to ask whether some of them are below the standards we would expect and whether they have not made good use in the past of the very widespread powers granted to them under the European arrest warrant.

When I was preparing for this debate, one set of figures I saw in a commentary was for the period from 2010 to 2018. It said that over that period, continental countries had used the European arrest warrant eight times as often as we had used it for criminals, or alleged criminals, that we needed to undertake it for in our courts, so it has been asymmetric. In part, that is because there are many more people on the continent than there are in the United Kingdom, but it also tells us something about the seriousness of the offences that they are interested in for extradition.

I am pleased to see that there is some recognition in the legislation that extradition should be reserved for more serious offences. One does not want a complex and expensive system such as this to be used for a lot of minor offences. The Government have chosen to define it as something that is an offence in the United Kingdom and which would command a prison sentence of three years or more in the event of somebody being found guilty. I think that is a good start, because one of the features of the European arrest warrant that many people did not like was that somebody could be extradited under it from the United Kingdom for something that was not actually an offence in the United Kingdom. That did not seem a very fair system or proposal.

I hope the Minister will share with us some of his thoughts on what would be an appropriate list of European countries and whether they should just slot into the proposals that we are debating today. I think I am happy with the list of countries that we are being asked to endorse, with the caveat that we need to look at the American relationship in the way that my right hon. Friend the Member for Haltemprice and Howden suggested. I fully understand that now is not the afternoon to try to make dramatic changes to that and why he has tabled only a probing amendment. We are asking the Government about that, but there are big issues here that we would like them to review.

[Alexander Stafford (Rother Valley) (Con)]

It is a pleasure to speak on a Bill that is so crucial to the security of our country and the safety of our citizens. The extradition Bill plugs the capability gap that currently exists whereby the police become aware of a person who is wanted by a non-EU territory but are unable to arrest them without obtaining a warrant from a court first. Due to the delay, the suspect may abscond to avoid justice or to commit further crimes, this time in the UK. It is not a point of debate that we all want to see those who perpetrate such serious crimes brought to justice, wherever they may be. Furthermore, the people of Rother Valley do not want foreign criminals exploiting loopholes in our system to commit further crime in our communities. This Bill enables British police to quickly and efficiently arrest suspects without warrant for the purpose of extradition. It is similar to the powers that already exist under the European arrest warrant and will apply to a small number of countries with legal systems that are equally as rigorous and robust as ours.

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It is of the utmost importance that we in this House have the opportunity to finesse or refine this legislation in respect of extradition, so that weaknesses in existing systems are not exacerbated by any vague legislation coming from this House. It is important that this is regularly evaluated. As in our new clause 1, it is only through comprehensive access to good information and evidence that we can truly understand the impact and effectiveness of this important legislation.

[John Redwood]

The hon. Gentleman is making a very good point. Has he done any study of the impact of the European arrest warrant and whether that has had adverse consequences in the way that he thinks Interpol does?

[Conor McGinn]

I thank the right hon. Gentleman for his intervention, and I will come to the European arrest warrant and that point very shortly.

I hope the Minister recognises the importance of these new clauses to the effectiveness of the Bill, and responds accordingly.

On Government amendments 12 and 16, which define the designated authority as the National Crime Agency, we recognise that and are pleased to see that the Government have tabled an amendment to that effect. I have no doubt that this will give an important sense of clarity and purpose to those brave men and women working in the National Crime Agency and their operational partners, whose efforts, let us not forget—right at this moment, in fact—do a great deal to keep the public safe and secure. The role of the designated authority is fundamental to the success of the legislation, given that it will be carrying out the functions of certifying requests. However, can I ask the Minister to confirm to the House that powers of redesignation, if ever necessary, will be open to scrutiny by both Houses of Parliament, because I think he will appreciate that that is an important issue for future oversight?

We feel that Government amendment 13 seeks to undo the valuable amendment made in the other place by my hon. Friend the noble Lord Kennedy of Southwark. It received support from all sides in the other place, and it requires certain key conditions to be satisfied before the Secretary of State can add, remove or vary reference to a territory. That amendment was reasonable, proportionate and practical, and it should present no problem for the Government, so I am not quite clear why the Minister is seeking to undo the good work done by the noble Lords in the other place.

Nothing in the Lords amendment stops the Government doing what they want to do; it simply ensures a proper process of consultation and assessment, which any major changes to a framework of this significance should undergo. Where the proposal is to add a territory, it requires a statement confirming that the territory does not abuse the Interpol red notice system. The first part of the amendment places a requirement on the Secretary of State to consult on the merit of the change, and there are two groups in the consultation proposed here: first, the devolved institutions; and secondly, NGOs and civic society. As the Bill currently stands, after consultation an assessment has to be laid before Parliament outlining the risks of the proposed changes and confirming that where the proposal is to add a territory, it does not abuse the Interpol red notice system. It is my contention that that should remain in the Bill.

In a similar vein, we will also be defending the amendment made in the other place by Baroness Hamwee, which the Government are attempting to remove by means of their amendment 14. The Bill as it now stands requires each order to add, vary or remove a territory under new schedule A1 to contain no more than one territory. There is of course nothing to prevent the Government from laying several instruments, each relating to one territory, at the same time, so there should not be any delay to process. Each country will have differing characteristics and varying degrees of compliance, so grouping them could result in the waving through of some territories with questionable human rights records purely because to fail to do so would jeopardise a potentially urgent extradition agreement with another country. Each country will have varying levels of compliance and different approaches to issues of human rights and criminal justice, and this is important because while we agree with legislating on the basis of those currently specified as trusted partners in this Bill, we should not leave the door open. We intend to defend the inclusion of this clause as a safeguard for the effective application of this legislation.

We have tabled amendment 17 to allow all European economic area member states to be inserted in new schedule A1, and we note that the Minister has made a similar proposal in Government amendment 15, but, frankly, the lack of progress on the justice and security talks with the European Union gives us a great deal of concern, and 31 December is approaching with no positive signs of agreement on these hugely important issues. I ask the Minister: is he concerned about our losing access to the capabilities afforded by the European arrest warrant? We on this side of the House are clear that any loss of capability, regardless of whether it is mutual, would have disastrous implications for UK law enforcement’s ability to identify and question suspected criminals and thus keep our country secure.

I refer the Minister to comments made in February 2019 by Deputy Assistant Commissioner Richard Martin, the UK law enforcement lead for Brexit and international criminality, in relation to the loss of the European arrest warrant and the Schengen Information System, and the potential implications for policing of no deal. He said:

“Every fallback we have is more bureaucratic, it is slower”.

He said that while policing was “not going to stop” and would still meet the threat,

“we will be much more limited than we currently are”.

He went on to say:

“If something takes two or three times as long as when you were doing it before, that’s probably another couple of hours maybe you are not back on the streets”

and not being visible doing your core role. Such an outcome would be not only undesirable but unacceptable.

Specifically on extradition, we know that the UK and EU falling back on prior arrangements in the 1957 Council of Europe convention would complicate proceedings and add needless delay. That is not my assessment but that of the previous Conservative Government and their former Prime Minister, the right hon. Member for Maidenhead (Mrs May). We entirely accept that the Bill’s scope relates solely to the powers conferred on UK law enforcement, so I would like to ask the Minister exactly what the Government are doing to ensure adequate levels of reciprocity in future extradition arrangements, particularly if we lose the powers we presently enjoy under the European arrest warrant and other such mechanisms.

I will turn briefly to the amendments tabled in the names of the right hon. Member for Chingford and Woodford Green and other colleagues. I listened carefully to the powerful speech the right hon. Gentleman made today about the admirable work he has been doing on this issue over previous months, which is wholeheartedly supported by those of us on this side of the House. We welcomed the Government’s decision to suspend the extradition treaty with Hong Kong, which will offer much needed assurance to the Hong Kong diaspora and pro-democracy activists. It is important that the UK works with democratic partners around the world to ensure a co-ordinated international response that enables holders of the British national overseas passport, pro-democracy activists and the people of Hong Kong to travel without fear of arrest and extradition. The Government must not waver in their commitment to the people of Hong Kong, and we will support them in their endeavours if that is the case. I look forward to hearing the Minister’s assurances.

I also acknowledge the work of the right hon. Member for Haltemprice and Howden and his amendments. I stressed before that we acknowledge that the Bill’s scope relates predominantly to powers of arrest conferred on UK law enforcement, not the extradition process itself, but we need to do all we can to ensure levels of reciprocity when it comes to our extradition agreements, not least with our most trusted partners. It is not acceptable that we are not able to bring those wanted for serious offences to justice here in the UK because they are elsewhere when the reverse would be perfectly possible. That is all too often the case, because for an extradition agreement to have any value—this goes to the heart of the right hon. Gentleman’s point—British citizens must believe that their Government will support and stand up for them and uphold the integrity and equivalence of any agreement. I hope the Minister will take those arguments seriously.

In conclusion, we have, as always, sought to be a constructive Opposition during the progress of this Bill, and our amendments today serve only to strengthen and improve the legislation, building on the cross-party work done in the other place.

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[John Redwood]

We had a good debate earlier today, but I hope the Minister will come back to this House erelong on a couple of important issues explored in the earlier debate. The first is the protection of British citizens who are the object of one of these extradition requirements once we have entered into these agreements. My right hon. Friend the Member for Haltemprice and Howden (Mr Davis) made a powerful speech about how we need to look carefully at the conditions offered to people when they are taken abroad on charges, particularly as they may be innocent and particularly when the most serious offences that most of us had in mind when these extradition regimes were drawn up may not be involved. We all wish to keep our country safe and we all understand that we need reciprocal agreements to do that. We wish such agreements to be used to pursue those who are violent and commit the most serious crimes, but we need to think about how this can be extended and how in certain jurisdictions where we have extradition agreements people may not be accorded the same decent treatment we would want to accord somebody who has been charged with a crime but who may, in the end, prove to be innocent.

We also need to come back to how we are going to handle our extradition arrangements with other European countries. We are still not sure how that might work out, and we fully understand that it is still the subject of various discussions and negotiations. It is entirely prudent to make some provision today. However, some of us think that if there is to be no European arrest warrant when we have completed our so-called “implementation period”, that could be an opportunity for us to have a better and more suitable system, because the European arrest warrant had features that were not to this country’s liking and there was an element of compromise in it, as there has to be. I hope that we will therefore have some greater guidance on what might materialise.

As two other speakers in this Third Reading debate have referred to a topical issue that goes a bit wider than this Bill, perhaps I may also be permitted briefly to do that. I have not heard or seen anything that implies that this Government wish to break the law or the international treaty. I have seen everything to say that this Government take very seriously section 38 of the European (Withdrawal Agreement) Act 2020, which was the assertion of sovereignty, and it was a fundamental proposition of the political agreement and the withdrawal agreement, which the EU willingly entered into, that British sovereignty was going to be assured and central, just as it was central to that agreement that there would be a free trade agreement. If there can be a free trade agreement, the other legal issues fall away.

One did need to correct that wider point, but, in conclusion, this Bill is a necessary one. There are issues arising from it that could warrant further thought and treatment. I hope this Government will take the advantage of that thought which our leaving the EU can provide to look again at how in the longer term we have a good judicial relationship—a co-operative relationship—with the EU that is fair to both sides and to any innocent people in Britain who may have to stand trial abroad.