Mr. Robert Marshall-Andrews (Medway) (Lab): May I say, with enormous sadness and a funereal step, that I shall not be supporting Lords amendment No. 36 this evening? Whether I support the Government will depend very much on what I hear in the wind-up speeches at the end of the debate. I shall not support the amendment because the treaty visits on us something that we lawyers used to call—in the days when we were able to use Latin—injuria sine damno. That means injury without loss. Injured we most certainly have been—as a Parliament and as a nation—by the signing of the treaty. It is manifestly not reciprocal, in any sense of that word. If we were to persuade ourselves that there was any reciprocity in it, we would have to relearn the alphabet, let alone the English language. That distresses me for two reasons.
First, it distresses me to hear a Minister attempt to argue what is manifestly and plainly casuistry. I do not blame her; a completely untenable brief has been served up to her—but it is a great pity that she did not say so at the time. The second reason for my distress is that I dislike treaties that are not reciprocal; in particular, I dislike treaties that are not reciprocal with the United States of America. This is a very bad time to appear to be subservient to the United States of America—on any basis—and the extradition treaty is meat and drink to those who allege that this Government are the lackey and cat’s-paw of the United States, and in particular of the neo-cons of America. Speaking as someone who has frequently made that allegation, I am very sorry indeed that I shall be unable to attempt to inflict a further measure of punishment on the Government for their past misdemeanours by voting against them on amendment No. 36, but in truth I cannot do so.
Mr. Boris Johnson: I am distressed to hear that the hon. and learned Gentleman will not vote on what I thought he agreed earlier was the side of reason and common sense. The provision is not sine damno, because the evidentiary imbalance means that there is a huge absence of reciprocity, parity, equality, symmetry—whatever we choose to call it—between our arrangements and the American arrangements, with the result that 45 of our nationals, or citizens, go to America every year, while only two or three come the other way. When we consider the respective size of our populations it is obvious that the thing is completely asymmetrical and is causing huge disquiet. That is what we should sort out by addressing the forum issue, on which I thought the hon. and learned Gentleman supported us.
Mr. Marshall-Andrews: I could see that you were about to rise to stop the hon. Gentleman, Mr. Deputy Speaker, and I am grateful that you did not, because I was enjoying his intervention enormously.
The problem is communication, as is so often the case with the hon. Gentleman. He was having difficulty in reading the document at the time, but I am sure that when he reflects on my earlier comments he will recall that in fact I said that Lords amendment No. 81 was critical, so I shall most certainly support that and vote against the Government. However, although amendment No. 36 is tempting, as I distinctly remember saying to him, I shall not give way to the temptation, because the truth is that there is no loss.
I shall not reiterate what was said by my right hon. Friend the Member for Southampton, Itchen (Mr. Denham).
Mr. Shepherd: The hon. and learned Gentleman says there is no loss, but another reason for our concern is that if an ordinary citizen is directed by extraordinary rendition—if I may use that term—by the American authorities seeking to take them to the American jurisdiction, an enormous burden is placed on them, of cost, estrangement from their circumstances and so on. There is a cost; it is a real human cost, which is why we are examining the issue.
Mr. Marshall-Andrews: As the hon. Gentleman knows, I have enormous respect for him—and of course there can be loss in individual extradition cases. Indeed, if people are extradited, there is always loss in some way or another. I respect that, and we must ensure that people are not extradited when there is no due process. What has happened to extradition law over the last 10 years is that we have fast-tracked our extradition process with regard to many countries, not just an individual country, so as to keep pace with the fast track in the movement of people. Old extradition laws increasingly could not keep pace with the amount of extradition that was required—not from the United States, but elsewhere.
The fast-track procedure, which I do not particularly enjoy, whereby the prima facie evidence is not exhaustively analysed, is now commonplace, and undoubtedly would have been put into place in respect of the United States of America. There is no doubt about that. As far as the United States was concerned, we would have precisely the same burden as we have in any event; the difficulty lies in reciprocity. The Americans—as may be their right, as they have said—could not, or would not, sign up to a treaty because of their constitutional inhibitions. The answer is that we are no worse off than we would have been, and they, arguably, may be a little better off. In those circumstances, I find it difficult to make myself part of the rewriting—effectively the wrecking—of a treaty, when it appears to me that there is, in truth, no loss, in the macro rather than the micro sense.
Mr. Garnier: Because of the knives and the time constraints that we are under, we do not have time for more than one vote. We therefore cannot be too nice about choosing which vote to cast. I urge the hon. and learned Gentleman to vote on amendment No. 36, because he will not have an opportunity to vote on amendment No. 81.
Mr. Marshall-Andrews: May I assist the hon. and learned Gentleman? I took the trouble to sit by the Chair earlier to discuss the vote; I thought that he might have done so too, given that he is leading for the Opposition. There almost certainly will be a vote on amendment No. 81 as well as amendment No. 36. That is my information. It is a great joy to be able to inform him of these things.
Of course, the water in this whole extradition matter has been muddied by one recent case, which I will not name. The extradition of three people to the United States was sought. If I may say so, those representing them did a wonderful job in enlisting extra-judicial support against their extradition. I can remember newspapers never before seen in the pantheon of civil liberty that were practically singing the Marseillaise, and printing it, because of the pain that they envisaged in those three cases. One newspaper had an entire page showing the prisons in which those people were likely to be incarcerated and describing the type of regime—involving the very worst mediaeval conditions—under which they were to be held. There were pictures of the shackles into which they were to be put. Of course, when the people concerned arrived in America, the first thing they did was to appear in front of a judge, who gave them bail. Secondly, they were told that if they wanted to go home they could certainly do so, as long as they turned up for their trial. That is not unusual in this country, either.
So, with a heavy heart, because I thoroughly dislike this treaty—non-reciprocity is always wrong, and the treaty should not have been negotiated—I cannot bring myself to support amendment No. 36. Amendment No. 81 is completely different. The forum provision is a completely different matter, because there could be real, serious and dangerous consequences if we allow the measure on to the statute book unamended by the Lords amendment.
There is one simple perception of what will happen—not if we decide to prosecute, but if we decide not to prosecute in this country. If we are dealing with a terrorist case or a high-profile case, so much the worse. If the prosecuting authorities here make that decision, which they frequently do, and communicate it to the person they have held, saying, “We have decided that we will not prosecute you on these charges,” and then a fast-track procedure, without a hearing by a judge, is initiated to extradite that person to another country—particularly the United States—the social backwash is likely to be terrible. That will be particularly true if it is a Muslim or a terrorist case. We have to understand that.
If a crime is tried or is said to be committed partly in this country, the judgment as to whether this country extradites to another country must be made on its merits by a tribunal. That is what amendment No. 81 would provide. I hope that enough of my colleagues will join me in the Lobby—with the Opposition—to pass this amendment, which will eradicate those problems.
Mr. Garnier: Just to make it clear, let me explain that I had not anticipated a second vote because of the timing—I do not want to eat into the remainder of the debate—but if there is a vote, we will be with the hon. and learned Gentleman.
Mr. Marshall-Andrews: I am pleased. Elucidation of that kind is always welcome, particularly at this time. I will be with the hon. and learned Gentleman on amendment No. 81. He should have no fear about that.
Mrs. Dunwoody: I hope that I will not frighten my hon. and learned Friend if I say that I might not be with him—but what concerns me a little is the clarity of the situation. For the benefit of those of us who are non-lawyers, is he saying that if, for example, in a terrorism case there was insufficient evidence in this country to prosecute, but nevertheless within the United States there was suitable and convincing evidence that would allow people to prosecute, we should not be prepared to let that person be extradited?
Mr. Marshall-Andrews: No, what I am saying, and what the amendment provides, is that where there are offences that are partly committed in two countries and we decide not to prosecute in this country, there would have to be a hearing. That would not necessarily mean that the person would not be extradited. In the circumstances that my hon. Friend sets out, extradition almost certainly would take place, but there would have to be a hearing. If there was a hearing, it would remove most of the dangers implicit in the Extradition Act as it stands.
