Extradition

Lord Campbell of Pittenweem Excerpts

Thursday 24th November 2011 Westminster Hall

[Sir Menzies Campbell (North East Fife) (LD)]

It is a pleasure to have the opportunity to speak in this debate. I congratulate my hon. Friend the Member for Esher and Walton (Mr Raab) on securing it. Like others, I believe that this debate should be held in the main Chamber. We are discussing fundamental constitutional rights. There is only one forum where those rights should be discussed, and that is the Floor of the House of Commons. The Leader of the House was with us a little while ago, and I have no doubt that he heard what many Members said, but I shall make a point of going to see him after this debate to reinforce the view that the Chamber is the place for such issues.

I first took an interest in these matters in July 2006, when at Prime Minister’s questions in two consecutive weeks, I sought to interrogate Tony Blair. I said then what I say now: the extradition treaty with the United States puts United Kingdom citizens in a position of disadvantage compared with their US counterparts. It is implied that the United States embraced the treaty, but that is not true. The Senate waited until autumn 2006 before ratifying it. The purported reason was that the strength of the Irish lobby in the United States was such that senators were concerned that the treaty, if ratified, might cause alleged terrorists from Ireland in the United States to be extradited to the United Kingdom. The treaty did not have an immaculate conception.

The treaty is wrong in principle. Extradition is based on the principle of reciprocity. For a state to give up one of its citizens to another jurisdiction can be justified only by the confident knowledge that citizens of both states have equal rights. I know that, here in the United Kingdom, the representatives of the United States have some reservations about what I and others are saying today. They need have no anxieties. I wish not for a levelling down but a levelling up. I seek equivalence, not exceptionalism.

I have sought to test the integrity of my position by asking myself what a United States member of Congress would do if the positions were reversed. We all know that such is the strength of feeling on Capitol hill about such issues that, if United Kingdom citizens were in a better constitutional position than Americans, there is no member of Congress who would not seek, as we do, to protect their own citizens. One thinks, for example, of Robert Byrd, the longest serving senator in the history of the United States and a constitutional expert to his fingertips. Faced with the situation that we face, I have absolutely no doubt how vehement and articulate his opposition would be.

[Richard Fuller (Bedford) (Con)]

Does my right hon. and learned Friend agree that it is precisely because of the traditions of jurisprudence and respect for habeas corpus in both the United Kingdom and the United States that it is extremely important that we work together to level up the rules on extradition, as he says, so that we can send a message to other countries that are trying to achieve the same level of justice to which we have aspired and that we are achieving?

[Sir Menzies Campbell]

I agree entirely. I can say this as a Scots lawyer, because we have a civil law rather than a common law system: one important export, even as long ago as our colonisation of the United States, was the common law. Habeas corpus is a fundamental principle of the law in the United States. Not only in federal law but in the laws of each state, habeas corpus occupies exactly the same important position, as my hon. Friend suggests.

I fancy that there is not much patience in the Chamber for an analytical exercise in the interpretation of the Baker report, but in order to provide some further reading to Members who have not yet had the opportunity to do so, I refer them to part 7, pages 231 to 243, paragraphs 728, 729, 735, 739 and 742, the burden of which is that the Baker report concluded that there was no significant difference between “reasonable suspicion,” which is the standard applicable in the United Kingdom under the treaty, and “probable cause,” which is the standard necessary in the United States and which is enshrined in the fourth amendment to the United States constitution.

I have the misfortune to disagree with the conclusions of the Baker report. I believe that probable cause is a requirement that has to be met before any United Kingdom citizen should be extradited to the United States. Why do I believe that? Because before surrendering a British citizen to a foreign jurisdiction, the state—our state—should reasonably require to ensure that there is a case requiring to be answered, not a suspicion. To borrow an illustration from my own experience as a prosecutor and from domestic law on both sides of the border, suspicion justifies arrest, but suspicion does not justify charge or prosecution. Probable cause, in my view, is necessary before prosecution can be justified.

I think that my argument is underpinned by the conclusions of the Joint Committee on Human Rights, to which reference has already been made. It concluded, rather as I have suggested, that it is necessary that the standard of proof on both sides of the Atlantic should be the same. Those arguments are properly set out on page 4 of the report. That the issue might require adjustment of the treaty was recognised by the Committee, whose Chair, the hon. Member for Aberavon (Dr Francis), is present, and by Baroness Neville-Jones, who gave evidence on behalf of the Government and who appeared to be optimistic that adjustment could be achieved.

I am persuaded by one other element of the consideration of these matters. There is a considerable predisposition on the part of the courts of the United States to invoke extraterritorial jurisdiction to an extent that we simply do not apply in this country. We have, therefore, in practice, no reciprocity in the application of extraterritorial jurisdiction. It is my view, however, that if the significant difference in the approach in the United States is, as we know, common, that is all the more reason that the standards of proof should be equivalent.

Let me deal quickly with three further issues. First, on the matter of forum, it is surely correct in principle that there should be an effective statutory presumption that a case be tried in the country where the crime is committed, and that only in the most special circumstances should there be a departure from that principle. Secondly, on legal representation—this is also recognised by the JCHR—someone who is being sought to be extradited needs good representation not just in this country, but in the country to which they are extradited. We know that the availability of public funds, or indeed of public defenders, is to different standards in different states of the United States.

Finally, on the application of the Human Rights Act 1998, which is, of course, a statutory requirement for the Home Secretary, I do not believe that there is any justification for the Baker committee’s recommendation that the Home Secretary’s authority on that should be transferred to the legal system. Baker says that there should be a removal because of delay being caused if it is invoked and because determination of extradition should be exclusively a judicial process. That, I think, fails to understand the nature of extradition, notwithstanding the detailed historical analysis that the Baker report contains. Extradition is diplomatic in the first instance. It becomes judicial and ultimately it is political.

In exercising that power, the Home Secretary is not acting ultra vires; she is exercising the power conferred on her by Parliament—the same sovereign Parliament that resolved that other parts of the procedure should be exercised by the courts. I see nothing wrong in principle with the Home Secretary exercising a power conferred on her by Parliament additional to the powers of the court. Parliament has chosen not to grant exclusive jurisdiction in matters of extradition to the courts, as Parliament is entitled to do. The truth is that the Home Secretary is exercising an administrative function in furtherance of the duties incumbent on her by the Human Rights Act.

It has been suggested that it would perhaps be helpful if the considerations that the Home Secretary is obliged to take into account were more fully described in legislation, such as the health of the person being considered for extradition, which is relevant to the speech we heard a moment ago by my hon. Friend the Member for Enfield, Southgate (Mr Burrowes), the impact on family life, the quality of treatment that a person might receive in the penal system, and, of course, the proportionality of the likely sentence that might be imposed.

[Charlotte Leslie (Bristol North West) (Con)]

I thank my right hon. and learned Friend for giving way and my hon. Friend the Member for Esher and Walton (Mr Raab) for securing this debate. We have talked a lot about extradition treaties between the USA and the UK, and the European arrest warrant. Does my right hon. and learned Friend agree that there is a case for looking at extradition treaties with countries in category 2 territories, such as South Africa, where my constituent, Shrien Dewani, may face trial, and at considerations such as the health of the person and whether they will face a fair trial, given, in the case of my constituent, the high media coverage that his case has received in the country to which he may be extradited?

[Sir Menzies Campbell]

My hon. Friend underlines the need for the Home Secretary to have the jurisdiction and the discretion that the law presently allows. It is a powerful argument in support of the view that that discretion should remain.

I have not sought to deal with any particular case or set of circumstances, but my interest in this matter was first aroused by the case of the NatWest three, one of whom, Mr Gary Mulgrew, was a constituent of mine. I think that one has to be careful about changing the law in response to particular cases—there is an old legal dictum that hard cases make hard law—but today this is an opportunity to define principle, and I for one am delighted that so many Members have chosen to be present for that purpose. I look forward to the occasion when we have a resolution on the Floor of the House to which we can give effect.

--- Later in debate ---

[Tom Brake]

I thank the right hon. Gentleman for his intervention. My right hon. and learned Friend may want to intervene to provide clarity on when the panel will report.

[Sir Menzies Campbell]

As soon as possible.

[Tom Brake]

I thank my right hon. and learned Friend, who has responded in true ministerial mode. The panel will respond as soon as possible.

Sir Scott Baker’s conclusions do not take into account the emotional strain that is put on individuals and families involved in extradition cases. His findings draw conclusions about, for example, whether a forum bar would have been used in historic cases, which are difficult to substantiate. He also suggests a periodic review of arrangements with certain countries, such as Russia or Azerbaijan, with which I feel very uncomfortable. I welcome the fact that my right hon. Friend the Deputy Prime Minister, the leader of the Liberal Democrats, has asked my right hon. and learned Friend to set up a panel, which will report as soon as possible.

I will not refer to the Joint Committee on Human Rights, because many other hon. Members have done so. I shall simply conclude by thanking Sir Scott Baker for his review, although I do not accept his findings. I therefore welcome and endorse the panel that is being established under the leadership of my right hon. and learned Friend. I hope that that panel will make recommendations to address the imbalances that we identified in opposition and which, because we have taken no action so far, remain and must be rectified.

[Keith Vaz (Leicester East) (Lab)]

It is a pleasure, Mr Leigh, to follow the right hon. Member for Carshalton and Wallington (Tom Brake) on this important subject. I join others in congratulating the hon. Member for Esher and Walton (Mr Raab) on securing this debate. I agree that it would have been better to have this debate on the Floor of the House. These important matters have been of concern to many Members, hence the large number of right hon. and hon. Members who have attended the debate.

I want to re-emphasise the decisions taken so far by the Home Affairs Committee. Before I do so, I want to commend the excellent report of the Joint Committee on Human Rights. It was fair and balanced. It provided Members with an insight into the struggles faced not only by individuals, but by members of families who support those individuals not only in the normal legal process, but against Governments of other countries. It certainly will help my Committee in the work that we do.

I have an apology to make. We started our inquiry into extradition a year ago, but unfortunately events in the Home Affairs Committee tend to gather pace and different issues occupy us. We were therefore not able to conclude our report, partly because of the Committee’s heavy workload, but also because we were waiting for the outcome of Sir Scott Baker’s review. I am pleased to tell the House that Sir Scott Baker will be appearing before the Committee on 20 December. We have been trying to get him before us for a while, but we thought it best that he should report first before we questioned him on his conclusions. This debate will provide us with a great deal of information about individual cases, which I hope will assist the Committee and Parliament once we publish our report in February.

I am delighted that the Liberal Democrats will be having their own review. Judging by what the chairman of the panel has told the House today, I have a fair idea what the conclusions will be even before the review has begun. It would be very odd if we had conclusions from a review chaired by the right hon. and learned Member for North East Fife (Sir Menzies Campbell) that were different from what he has said today and different from the principled stand that he took on the Gary McKinnon case. It would certainly be a shock to us all if they were different from the words of the right hon. Member for Carshalton and Wallington, and the words of the Deputy Prime Minister when in opposition, when he was clear that in his view Gary McKinnon should not be allowed to go to America to face trial.

[Sir Menzies Campbell]

I am loth to cause a shock to the right hon. Gentleman. He can assume that my views have been formed for a long time and are unlikely to be changed. However, there is an important element, to which I made reference earlier, about how one would effect the changes in the treaty arrangements between this country and the United States to ensure that a system that we find acceptable was put in place.

[Keith Vaz]

The right hon. and learned Gentleman is absolutely right. That is the fundamental basis for what should happen next. There is consensus across the House about what is wrong with the treaty. I have spoken to previous Home Secretaries under the previous Government, one of whom expressed regret about the way in which the original treaty was negotiated. The next step, therefore, must be to look again at the treaty and see what changes can be made.

We have heard some extraordinary stories—I should say case histories, not stories—from the hon. Members for South Dorset (Richard Drax) and for Richmond Park (Zac Goldsmith). We have heard about the excellent work by my right hon. Friend the Member for Tooting (Sadiq Khan). The Home Affairs Committee listened carefully to the evidence given by the father of Babar Ahmad when he appeared. He spoke with great dignity. If someone’s son has been in custody for as long as Babar Ahmad, I would expect anger and outrage, but the way in which he gave evidence to the Committee was absolutely commendable.

The hon. Member for Enfield, Southgate (Mr Burrowes), who is not in his place at the moment, has done an outstanding job in protecting his constituent and in advancing the cause of Gary McKinnon. I do not think that we would have been discussing these issues had it not been for the case studies that we have had in Tooting and Southgate.

The Home Affairs Committee has unanimously written to the Minister. We wrote to the previous Minister with responsibility for immigration and the previous Home Secretary under the previous Government to urge them to write to the United States to express a view and conclude this matter. That is my plea to the Minister. We are told that politics is not included in such matters because of their legal nature, but we know that the Prime Minister spoke to President Obama about these matters when the President came to the United Kingdom, so there is politics in this. I cannot see why it has taken 18 months for the Home Secretary to make a decision about this case. I have written to her regularly on behalf of the Committee. Each time she has replied to tell me that the medical evidence cannot be agreed, but the medical evidence, as we have heard from the hon. Member for Enfield, Southgate, has not changed over the past 18 months. I hope that we can reach a conclusion on this. Once we conclude on Gary McKinnon, and then when we hear the views of the Deputy Prime Minister, we will know the coalition Government’s position on the Act and the treaty. That is why the McKinnon case is so important.

I hope that we will have closure on this matter. I hope that right hon. and hon. Members who have other cases will be able to get satisfaction. I do not know whether our report will be as brilliant as the report of the Joint Committee on Human Rights, but I hope that, when we report in February, after we have taken evidence from Sir Scott Baker, we will be able to assist the House in deciding what the next steps will be.