Extradition

Debate between Richard Fuller and Lord Campbell of Pittenweem

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.