Police and Justice Bill

I accept what the hon. Gentleman says, and that he and his colleagues acted in good faith; I simply say that they were mistaken. I want to deal first with the lack of ratification on the part of the United States Congress. I find it quite astonishing that this treaty, which we have signed with those who are supposed to be our closest allies, is apparently of so little import in the US legislature. It is far from being a priority for Congress, which has found opportunities to ratify extradition treaties with Lithuania, the Marshall Islands, Micronesia and Peru, but, apparently, cannot find an opportunity to give proper consideration to reciprocal arrangements with the United Kingdom. That says a lot for the supposedly special relationship that we enjoy with our friends in the United States. That would be cause for concern in itself, were it not for the extraordinarily asymmetric position of the treaty that the Government entered into. As I said in the Committee on the statutory instrument, even a Government acting under duress could not have signed a treaty that so badly sold short the interests of the citizens of this country, in comparison with those of another. [Interruption.] The Minister of State, Department of Health, the hon. Member for Leigh (Andy Burnham), says from a sedentary position that my observation is nonsense, but he or his hon. Friends will have to demonstrate why. This is clearly an entirely one-sided treaty. In fact, the then Minister—[Interruption.] If the hon. Gentleman wishes to intervene, he can explain to me, from the Dispatch Box, why my argument is nonsense. He has only just been reshuffled, yet he wants to interfere. In saying ““Nonsense”” from a sedentary position, the hon. Gentleman is asking the House to consider that the Minister then involved, the hon. Member for Don Valley (Caroline Flint), who is now a Health Minister, was mistaken in saying that the treaty was asymmetric. She said:"““In contrast, when we make extradition requests to the United States, we will need to submit sufficient evidence to establish ‘probable cause’. That is a lower test than prima facie but a higher threshold than we ask of the United States, and I make no secret of that. Under the terms of its constitution the USA cannot set its evidential standard any lower than ‘probable cause’.””—[Official Report, Third Standing Committee on Delegated Legislation, 15 December 2003; c. 7.]" So on that day, the hon. Lady made no secret of the fact that there was an imbalance in the treaty, yet the hon. Gentleman says that that view is nonsense. The House will come to its own conclusions. [Interruption.] The hon. Lady has arrived—she no doubt remembers the occasion when we last discussed this issue and what was said then. All manner of changes were implicit in the proposal that was before us. First, the treaty changed the basis on which extradition could take place. A certain level of evidence used to be required, and there was a list of extraditable offences. However, the treaty removed that list and we now have simply a sentence threshold of 12 months. Any offence that attracts a sentence of more than 12 months becomes an extraditable offence. The House will immediately draw from that the conclusion that it is now open to any of the legislatures in the US to make any offence that it deems to require a sentence of more than 12 months an extraditable offence. That is my second point. When we talk about the US, we are not talking about a relationship between our jurisdiction and their jurisdiction. We have two separate jurisdictions, but they have 51, including not only the federal jurisdiction, but the jurisdiction of 50 states, from Alabama to Wyoming, with vastly different concepts of jurisprudence and legal systems. To be frank, we also have vastly different levels of confidence in the ability of those various legislatures to carry out a trial in the way in which we would expect. Not only do we have an asymmetric view, but we have a treaty that applies to 51 different jurisdictions and we have no control over what they might determine to be an extraditable offence. The defence that the Minister gave at the time was that we also have reciprocal extradition arrangements with other countries, and she mentioned other European countries and what could be termed the ““Anglo-Saxon”” jurisdictions of Canada, New Zealand and Australia. But those systems are very much more similar to ours than are the American systems, so those comparisons are of no particular value. The US is a one-off in such terms. The next point is that the provisions were retrospective. Article 22.1 states:"““This Treaty shall apply to offenses committed before as well as after the date it enters into force.””" Not only have we a prospective asymmetric arrangement with the US, but we will allow them to extradite British citizens for offences that took place before the treaty was even signed, let alone ratified—which looks unlikely to happen in the near future. On all those grounds, we have legitimate reasons for concern. However, the hon. Member for Beaconsfield (Mr. Grieve) made another important point about the extraterritorial jurisdiction claimed by the US and by its states. My right hon. and learned Friend the Member for North-East Fife (Sir Menzies Campbell), who attended the Committee, recalled the old joke that if one flies in a plane above the state of New York on one’s way to California, the state of New York assumes a territorial jurisdiction on anything one may do. That is not far from the truth, and as the hon. Gentleman pointed out, it is a real concern when it comes to email traffic. We also have legitimate concerns when we see prospective extraditions for commercial crime against people operating in British companies that have connections with American companies, but whose activities are solely based in this country and who have never been to the great state of Delaware or Idaho, or wherever the American parent company may be based. Those people may be extraditable for matters that are not even offences in this country and were carried out in this country, not the US. They can be extradited and held in custody before trial in the US in a state in which they have never previously set foot. That is an extraordinary position to adopt. Another problem is that the level of evidence required does not go much beyond simple identification. The subject arouses much concern in this country, but the American investigatory bodies are not entirely foolproof in that regard. The House may recall a case that was current when we considered the Bill in Committee. It involved a Mr. Bond, arrested in South Africa at the request of FBI officials on the basis that he was really a Mr. Derek Sykes, who had defrauded many people out of millions of dollars. However, he really was Mr. Bond, a retired charity worker who worked in the Rotary club in Clifton in Bristol. He was nothing to do with the US, but he was imprisoned in South Africa on the basis of an identification by the FBI. Had he been in this country, he could have been extradited to stand trial for an offence and in a country of which he knew nothing, and on the basis that he was someone that he was not. That is not proper protection for people in this country. If we were sensible, we would say to the US Government, ““Look, given that you haven’t ratified the treaty, we must look again at its terms. This time, we shall protect the interests of British citizens and apply the sort of tests that American Congressmen apply as a matter of course, even if they are not part of the provisions of the constitution.”” The minimum American requirement of probable cause is not so very different from our requirement of prima facie evidence, but we have thrown away all that protection for British citizens because it seemed a good idea at the time. The aim was to please an American Administration who have not yet been prepared to put the treaty through the American legislature. The Government are in a shameful position, and we were right to reject the proposal when it first came before us. We are right to support the new clause, which would bring an end to an asymmetric arrangement of no benefit to the UK.