Points of Order

David Davis Excerpts

Monday 3rd December 2012 Commons Chamber

[Mr David Davis (Haltemprice and Howden) (Con)]

On a point of order, Mr Speaker. I raise this point of order with you in respect of your duty of defending the interests and rights of Back Benchers and Committees in this House. This morning in an interview in The Sun newspaper, the Home Secretary, who I see is on the Treasury Bench, said the following about the Communications Data Bill:

“Criminals, terrorists and paedophiles will want MPs to vote against this bill. Victims of crime, police and the public will want them to vote for it. It’s a question of whose side you’re on.”

She also said:

“Anybody who is against this bill is putting politics before people’s lives.”

A Joint Committee of this House and the other House is meeting at present to pass comment on this Bill. Therefore, apart from traducing a large number of Members of this House, the Home Secretary is undermining the work of that Committee. Has she asked to come to the House to explain herself, and if not, what can you do to protect us, Mr Speaker?

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

On a point of order, Mr Speaker.

Intercept Evidence

David Davis Excerpts

Thursday 18th October 2012 Commons Chamber

[Mr David Davis (Haltemprice and Howden) (Con)]

It is a privilege to follow the right hon. Member for Tottenham (Mr Lammy), who has done a sterling job of making the basic case, and, perhaps in some ways more importantly, of defending the interests and rights of his constituents, some of whom feel very aggrieved after the events of last year. I shall speak more briefly than he did and try to wrap around his argument, but hon. Members should forgive me if I repeat one or two things he has said.

The primary distinction between the great democracies of modern times and the totalitarian states is how they treat their citizens. We believe we treat our citizens in a civilised way compared with the totalitarian states—they will imprison, torture and, in the final analysis, kill without trail, whether they are Soviet or Nazi states, or any of the other species or flavours of totalitarian state that we have been unfortunate to see in past decades.

Emotionally, we might believe that we do not do those things because we are nicer people than they are, but the reason for the distinction—between totalitarian states and our state and similar ones such as America—is simply the rule of law. If colleagues want to test that, I suggest they consider the operations of the British state when it has operated outside the constraints of the rule of law, such as in Kenya during the Mau Mau rebellion, when well brought up, well educated, and no doubt expensively educated, men—it is always men—acted with a brutality that would have done justice to some of the totalitarian states to which I have referred. The rule of law prevents that by exposing acts of the state to judicial challenge and questioning, and that process is never more important than when a citizen of the state dies at the hands of an agency of the state. Since the 1997 general election, 38 people have been killed in Britain by police forces. In most cases, the inquest gave a verdict of lawful killing. In one that I am aware of, the Jean Charles de Menezes case, there was an open verdict, and some, of course, are still outstanding.

Although I will be critical of agencies of the state, I want to make one point: I am not criticising police officers operating on the front line as parts of the armed response units. Their job is sometimes terrifying. I was critical of what happened in the Jean Charles de Menezes case, but the policemen involved went on to a tube train not knowing whether the man they were seeking to apprehend was carrying a bomb that would have killed everybody on the tube train, including themselves. In other circumstances, the armed response units are deployed when they do not know whether the people they are seeking to apprehend or stop will shoot them or use armed force against them. It is easy in the cold environment of the Chamber not to understand the terror, fear and pressure on people in those circumstances. What I am about to say, therefore, is not a criticism of them.

That is not an excuse, however, for not knowing the full facts after the event or for pulling our legal punches. It is an absolute requirement that the killing of a British citizen by an agency of the state be properly and publicly reviewed, with access to all key data. That is the case for all sorts of reasons, some of which the right hon. Gentleman listed: to ensure that it is never done improperly and that there is never a deliberate killing by the state; to ensure that errors and accidents are never repeated; and to ensure that systemic failures are not repeated—very much an issue in the Jean Charles de Menezes case, and possibly an issue in the two cases to which he referred, the Rodney and Duggan cases.

Also, not equally important but still massively important, it is necessary to ensure that the public, the families and the communities from which the people come have confidence in the system. The mother of a young man who has been shot should never feel that her son has been judicially—or, indeed, extra-judicially—executed. I am afraid that, in at least one case, that appears to be the situation. It is essential, therefore, that we have an open and fully informed inquest after every single fatal operation of the state against an individual, because that is what keeps us a civilised state. As the right hon. Gentleman said, in two cases that is either not possible or likely not to be possible: the Azelle Rodney case, which has already gone to a judicial inquiry, and potentially in the Mark Duggan case.

As outlined, the Regulation of Investigatory Powers Act 2000

“specifically bars any evidence in court, or any question, assertion or disclosure in legal proceedings, which results from warranted interception or would reveal that warranted interception had taken place.”

As the right hon. Gentleman said, that is an incredibly draconian restriction. That quotation came from the Chilcot committee’s summary. As a result, the Azelle Rodney case has gone to judicial inquiry, and, as I said, the Duggan case might well follow suit. This is a massive problem for the families and communities involved, but it is also a massive problem for open justice and a handicap for our national security.

Some years ago, my hon. Friend the Member for Esher and Walton (Mr Raab) and I went to the United States to talk to people about the whole question of the use of intercept. We talked to the National Security Agency, to the FBI—I think—to the Department of Justice and to the National Counterterrorism Centre. I have probably forgotten some of the other organisations, but every one of them said exactly the same thing: in summary, they could not do their jobs without the use of intercept in court. If I can quote him approximately correctly, the Department of Justice representative said, “If we go to a case”—either a major gang case, a major gangsterism or organised crime case, or a terrorism case—“and there is not intercept, the jury wonder what’s happened. They wonder why we have not got the intercept.” The idea that the criminals involved do not know that intercept technology is being used is therefore laughable—I use that word carefully. I will come back to that point.

Incidentally, the Department of Homeland Security is another place we went to. The homeland security gentleman we spoke to—I cannot remember whether he was the deputy director or the head, but he was one or the other—said he could not understand why the British took the stance they took. It was quite clear that, for the Americans, intercept was not just a marginal advantage; it was a massive advantage in the fight against organised crime and terror. Similarly, the Australian evidence—we did not go to Australia—is much the same. There are some categories of case that simply cannot proceed without intercept—in particular, cases involving the importation of drugs. Again, the Australians said that anybody who does not use intercept is not acting seriously—that was the phrase of, I think, the director of public prosecutions federally in Australia.

We are the only major democracy to have such a bar to the use of intercept evidence. The arguments are essentially twofold. First, if criminals knew they were being intercepted, they would cease to use the telephone or whatever medium was being intercepted, and that would lead to the loss of valuable intelligence. The right hon. Member for Tottenham made suitably short work of that viewpoint in his argument. Secondly, criminals might be able to work out the methods by which the intercept evidence had been obtained if it were used in court.

In a minute I shall quote at some length from Lord Lloyd of Berwick; I should remind the House that he was a senior Law Lord and head of the Security Commission for most of the ’90s. He was the man whom the last Conservative Government asked to review the entire sweep of terrorist legislation and to revise it for them, and the last Labour Government implemented everything he recommended. That is how authoritative this man is. He is the man who knows more about this subject than anybody else in Britain—full stop—and he has tabled a Bill in the Lords to try to bring forward the change in the restriction that we are debating.

Lord Lloyd of Berwick said the following about the legal position:

“In common with every other common-law country, we have developed a means of protecting sensitive information that is thought to be at risk in some way. The principle is called public interest immunity; there is nothing new about it. It is well understood in the courts. I do not say that it is used every day but it is used very frequently.”

He then set out where it came from and said:

“It is inconceivable that a judge would order documents to be disclosed, or information to be discovered, that would reveal methods used by GCHQ and other agencies. If the judge went off his head and did so order, the prosecution would at once appeal to the Court of Appeal, which would put the situation right.”—[Official Report, House of Lords, 16 March 2007; Vol. 690, c. 967.]

That is clear and it is clearly correct. In fact, throughout the entire period, over decades, when we faced the Soviet threat, which, I have to say to the House, was much bigger than the al-Qaeda threat—it was more sophisticated, more dangerous and more existential—never once was what Lord Lloyd of Berwick described broken. Never once did a judge release into the public domain the sorts of the things that we are concerning ourselves with in this debate.

Those who support the current ban then say, “But the European Court of Human Rights can overrule us and release this information to the criminals and the terrorists.” Actually, that is not the case. Using British criminal cases alone, we have clear direction and precedent. In Rowe and Davies v. United Kingdom 2000, the ECHR clearly stated that

“as the applicants recognised, the entitlement to disclosure of relevant evidence is not an absolute right. In any criminal proceedings there may be competing interests, such as national security or the need to protect witnesses at risk of reprisals or keep secret police methods of investigation of crime, which must be weighed against the rights of the accused. In some cases it may be necessary to withhold certain evidence from the defence so as to preserve the fundamental rights of another individual or to safeguard an important public interest.”

I have not seen that put any clearer in any British court—that was the Strasbourg Court’s view—and that was not the only case. Almost exactly the same words were repeated in a subsequent case, Botmeh and Alami v. United Kingdom 2007. As Lord Lloyd said,

“there is no absolute right to disclosure: disclosure is always subject to the overriding interest of national security.”

Before I go on to outline the other inconsistencies, I want to point out that I think it highly unlikely that the ECHR would ever instruct us to release information. I know of cases in which it has admonished Governments for the destruction of information, but I know of no case in which it has instructed them to release it. Even if it did so, we demonstrated pretty clearly in a Backbench Business Committee debate on prisoners’ votes some time ago that, if the House so decides, it can defy an ECHR judgment if it thinks that it is against the national interest. At the end of the day, that is our final recourse. I cannot imagine the House doing anything other than voting against disclosure, if we were instructed to release such information. There has been a tendency for the agencies, which are understandably nervous of exposure to the courts, to overstate the risk. That was the one weakness in the otherwise powerful Chilcot report.

It is an astonishing inconsistency, as the right hon. Member for Tottenham pointed out, that we can use foreign intercept evidence but not our own. A stark and, frankly, embarrassing example of that came to light after the Heathrow bomb plot, when the agencies had to obtain from Yahoo in California parallel intercept evidence to the evidence that I suspect they had in their own files. I cannot say that they had it, but I suspect that they did. I cannot think of a more laughable demonstration of the stupidity of the policy than our having to go to a foreign country to get evidence that we almost certainly already had.

A second inconsistency is that we can use bugging, as the right hon. Gentleman also pointed out. If my telephone call to my hon. Friend the Member for Esher and Walton were intercepted, that evidence could not be used, but if there were a bug in my phone, the evidence could be used. Is one more secret than the other, or more dangerous to disclose? I think not. We might want to withhold from criminals the knowledge that we were using a laser microphone and interferometry —a high-tech mechanism—but we could use that evidence in court, whereas we could not use intercept evidence. That strikes me as laughable.

There is a third aspect of the matter that is laughable. The right hon. Gentleman said that GCHQ was a competent and capable organisation, and I agree with him. However, in this type of work, which is complex but not incomprehensible, our sophistication, capability, skills, innovations and edge are all a function of the amount of money that is spent. That is why we spend more money on GCHQ than on the other two agencies put together, but that is as nothing—a drop in the ocean—compared with what the American agencies use. They have no problem at all with placing their information in the public domain.

Furthermore, we have the internet. Any terrorist or criminal operating in the UK can look on the internet and find examples of the things that we are supposed to be concealing. Let me provide a topical example. The other day we were told about a particular technique that one of the agencies wanted to protect. For obvious reasons, I cannot talk about it, but just out of curiosity I googled it. Guess what? There is an article about it on an American site, outlining exactly how it happens and how it is used. If our criminals and terrorists want to know about this technique, they need only reach for that fierce weapon of a Google search. This is simply ridiculous; we are hiding things that everywhere else in the world are in open sight, and I do not believe that we have skills so much greater than those of our allies and contemporaries to justify protecting ours above and beyond theirs.

In my opinion we can safely allow intercept evidence in court without jeopardising our intelligence-gathering techniques above and beyond where they are now. However, my opinion is as nothing in comparison with the learned judgments of the most eminent security commission in modern times, for a start, and of at least two previous Directors of Public Prosecution, not to mention past Attorneys-General—I was corrected on the language by my hon. and learned Friend the Member for Sleaford and North Hykeham (Stephen Phillips)—previous heads of the Met, previous incumbents of Her Majesty’s inspectorate of constabulary and a whole series of people who have been up close and personal with these issues. All of them want to use such information in court. I take their opinion with at least as much seriousness as I take the opinion of currently operating agencies which might be embarrassed about coming out into the public domain.

These experts, moreover, point to fact that every major country uses such evidence without risk. It allows serious terrorists and criminals to be apprehended and convicted and, as has been intimated, the head of every single one of five mafia families in New York is now in prison. That would not be true without intercept. There are terrorists in prison today who would not be in prison without intercept. That is true in every country from America to Australia.

The previous Government saw this problem as a serious handicap to our system—I give them that credit; I think they were open-minded about this—and set up the Chilcot Privy Council review of intercept evidence, which recommended careful reform of the law to allow the use of such evidence in court. I have some quibbles with it, but I think it is a pretty good report generally. That decision was then derailed by the Government’s and agencies’ over-interpretation of a case, Natunen v. Finland, in which the European Court on Human Rights rebuked the Finnish Government for destroying exculpatory intercept evidence.

The ECHR was right to rebuke the Finnish Government on that. Evidence was not forced into the public domain, because it had already been destroyed. The Finnish Government took it on the chin and changed the basis for treatment pretty much straight away by introducing a judge to decide the process. That is fine. That Government have continued to use intercept. Since then, nothing has happened in Britain. As a result, the inquest over Azelle Rodney has been disallowed, and we now have a judicial inquiry. To remind Members of what happened to Azelle Rodney, he was shot with an assault rifle from a range of only 15 metres about half a dozen times. He died. Guns were found in the car he was in, so there might well have been good reason for the action taken, but we will never know because of this foolish and unwise restriction. As a result, his family is in a permanent state of grief, which will never be allayed by a judicial inquiry. If we do not put this right, the family of Mark Duggan and his community will be in the same position.

It is time to put this matter right, and time we allowed these communities, families and people to know the truth, whatever the truth may be. It is also time that we gave the wider national community the enhanced security that would arise from a reform of the law, and the added protection that intercept evidence gives them—the ability to prosecute and convict serious criminals and terrorists. Finally, it is time we stopped asking our judicial authorities to act with one hand tied behind their back, and gave them the right to operate the law as it should be operated—with full knowledge of, and full insight into, the issues they have to resolve for us.

--- Later in debate ---

[Mr Raab]

I think it is the only way I will get promotion these days.

It is an anomaly that we have so many other sources of sensitive information that can be used in UK courts. What is so special about intercept evidence? The objections to its use—certainly those from Chilcot and other reviews—cluster around three or four issues. We have heard about article 6, the threat of disclosure of sensitive sources and the inadequacy of public interest immunity, but the truth is that every other jurisdiction that uses intercept evidence has a killer back-stop: if they fear disclosure, they drop the charges. There is zero risk of disclosure because the option of dropping charges and dropping a prosecution is always available.

Another argument that has been made ad tedium is that a disproportionate part of the resources of the intelligence agencies, particularly GCHQ, would be absorbed, but that argument, which relates to transcription of the evidence, has been made almost totally redundant by modern information and communications technology and the ability to use it to store data and subsequently search it. That argument has therefore fallen by the wayside, but even so, the senior prosecutors I mentioned have made the point that the costs, to the extent that there are costs involved, are more than offset by the increasing number of people who plead guilty as a result of the use of intercept evidence.

I will refer briefly to the Natunen case, because there has been a huge amount of misreporting of its impact and what it really means for the use of intercept evidence. The 2009 Home Office report, and other GCHQ sources, point to the Natunen case and claim that it requires

“full retention of all intercepted material”

just in case it might include something that shows a suspect is innocent. That is simply an inaccurate reflection of the Strasbourg case law. In the Natunen case, which concerned a drug dealer who was convicted in Finland using intercept evidence, the Strasbourg Court emphasises that

“disclosure of relevant evidence is not an absolute right”,

acknowledging

“competing interests, such as national security or the need to protect witnesses”.

The Court stated that it was not its role

“to decide whether or not such non-disclosure was strictly necessary since, as a general rule, it is for the national courts to assess the evidence before them.”

Far from requiring “full retention”—this is the key point—the Strasbourg Court required that defence requests for disclosure of sensitive evidence be backed up by “specific and acceptable reasons”. The intelligence agencies would need to retain some relevant material. However, the Court made it clear that that necessitated neither defence access to that evidence nor the wholesale retention of all intercept material. In the Finnish case, it merely required that a judicial body approve the destruction by the intelligence agencies of relevant intercept material, collected over a limited three-week period. Frankly, I think that the Natunen case has been blown out of all proportion.

The real issue—I do not think that the agencies are making this up—is not the Aunt Sally or the false reasons that have been put up and are rebutted by the empirical evidence. The real reason is that GCHQ, which was originally an intercept organisation confined to the military zone, has had its functions broadened to include counter-terrorism and other serious crimes. Its role has increased exponentially. I can see why it worries about lack of focus and the huge competing obligations being placed on it with finite resources, notwithstanding the increases in its budget. I understand that, but that is a strategic issue of tasking intelligence, not a technical issue of viability.

Likewise, the fact is that we face a cultural shift with regard to law enforcement and the division between intelligence and prosecution. It is a shift that has taken place in other countries but that our authorities have not yet to bridge and overcome. There is a cultural aversion in this country to combining intelligence with prosecution, and I think that we have to overcome it.

[Mr David Davis]

I have long thought, partly as a result of the Northern Ireland experience, that our intelligence agencies are predisposed to go for disruption rather than prosecution. The whole nexus of the things my hon. Friend describes, their attitude to the use of intercept evidence and the problems addressing the exponential increase in GCHQ reinforce that. Does that not support the argument that a step change is needed from a disruptive approach to a prosecutorial approach, which is clearly what the Americans do, and with more success than us?

[Mr Raab]

I thank my right hon. Friend for his intervention and agree entirely. The other point to make is that the disruption model that has previously been used was shown to fail because of the huge increase in the number of terrorism suspects that successive heads of MI5 made clear in the public annual reports.

I am conscious of the time and want to make two points in closing. First, I think that the use of intercept evidence is not just confined to inquests, as important as the points made by the right hon. Member for Tottenham are, and not even just to counter-terrorism. We have seen in relation to the LIBOR scandal an incredible situation in which rate rigging, according to the Government’s proposals, now requires a separate criminal legislative proposal. I find it astonishing that it is not an evidential issue, rather than the lack of a criminal base.

Again, if we probe a little further into the work of the Serious Fraud Office and the Crown Prosecution Service, we find a very sleepy prosecutorial approach. Conviction for fraud by company directors fell by 48% between 2004 and 2010. Convictions for fraudulent accounting, which seem to me to be exactly what the rate rigging scandal was all about, fell by 77%. We need to wake up and stop having this interminable debate, which feels like a legislative version of “Groundhog Day”, about intercept evidence, to get on with lifting the ban and to use that evidence. The justice system is a weapon for, not an impediment to, law enforcement, and intercept evidence in prosecution must lie at its heart.

--- Later in debate ---

[Diana Johnson (Kingston upon Hull North) (Lab)]

I congratulate my right hon. Friend the Member for Tottenham (Mr Lammy) on an excellent speech. He was, as usual, a very powerful advocate for his constituents and his constituency, and for open justice, which is very important. The right hon. Member for Haltemprice and Howden (Mr Davis), a near neighbour of mine, made his usual compelling case for open justice and cogently set out the key issues in this case.

The debate overall has been of an extremely high quality, with excellent contributions from across the House. My right hon. Friend the Member for Torfaen (Paul Murphy) made a very good speech based on his own practical experience and knowledge in a number of roles. It was telling that he said that this is not an easy matter and that we need to keep on looking very hard at the use of intercept evidence. The hon. Member for Esher and Walton (Mr Raab) set out a strong case for the motion and drew on his experience in the US. My hon. Friend the Member for Poplar and Limehouse (Jim Fitzpatrick) asked exactly the right questions, drawn from his practical experience with the police, about why we are not doing this and how we can move it forward. The hon. and learned Member for Sleaford and North Hykeham (Stephen Phillips) spoke briefly about civil liberties and, in particular, control orders. I want to return to his comments later.

Over recent years, successive Governments, and particularly Home Secretaries, have grappled with the problems of trying to get intercept evidence into courts, and it has also been considered by the Privy Council review, so it is absolutely right that Parliament is debating the matter. We have heard at length about the benefits that might reasonably be expected to result from the use of intercept evidence in courts and inquests as regards, for example, increases in the number of successful prosecutions in serious organised crime and terrorism cases. However, the debate must cover not only the benefits but the difficulties involved, including the risks, such as exposure of interception capabilities and techniques, the resource implications of any changes in the law, and the implications of new communications technology. While the United Kingdom continues to struggle to find a way of accommodating intercept evidence in court, other countries, as we heard from my right hon. Friend the Member for Tottenham and the right hon. Member for Haltemprice and Howden, allow such evidence, and it is important for us to see what we can learn from those jurisdictions.

This is a very unusual issue. Successive Governments, the Privy Council and leading lawyers have long supported the principle of allowing intercept evidence, but none has been able to come up with a satisfactory model for the admission of such evidence without compromising national security. Labour has long supported the principle of allowing intercept evidence into courts. Indeed, the current push to find a way of doing this was started by my former right hon. Friend and Home Secretary, John Reid, the then Member for Airdrie and Shotts, in 2007, and that commitment was reiterated by my right hon. Friend the Member for Kingston upon Hull West and Hessle (Alan Johnson) when he was Home Secretary. In opposition, my right hon. Friends the Members for Morley and Outwood (Ed Balls) and for Normanton, Pontefract and Castleford (Yvette Cooper) have reiterated Labour’s desire to see intercept evidence in court and to work with the Government in a constructive manner to achieve that. I restate that commitment.

It is clear that there would be significant benefits in allowing intercept evidence to be admissible in a wider range of courts than is the case at present. In particular, it would be desirable to allow the use of intercept evidence in criminal proceedings and inquests.

I am sure that we all sympathise with the Duggan family, who, as my right hon. Friend the Member for Tottenham has said, have unanswered questions. Understandably, they and the community in Tottenham want answers as to how Mr Duggan died, but without an inquest those answers cannot be provided. The Government have proposed secret inquests in which intercept evidence would be admissible, but that would not solve the problem—not only do we need justice to be done, but we need it to be seen to be done. I hope that the Minister will update us on the progress that he has made on this particular issue and I look forward to hearing his comments.

Allowing intercept evidence would seem to support two fundamental principles of British justice. The first is that courts should always have the best evidence available to them, and the second is that all crimes should be dealt with by the same legal system and guided by the same principles. We should, wherever possible, ensure that our legal system is able to protect national security and uphold standards of justice.

We would also like the use of intercept evidence to lead to practical outcomes, such as more prosecutions, particularly for serious crimes and terrorism. It is generally accepted that allowing intercept evidence would have a significant impact on some trials, facilitating some prosecutions and making others more likely. Indeed, the Crown Prosecution Service thinks that allowing intercept evidence would result in more prosecutions and more convictions, and it foresees time and money being saved as a result of more guilty pleas. We would particularly like to see the prosecution of cases that could not otherwise be tried, including those in which intercept evidence has led to a prosecution, but not necessarily for the most serious crime committed. It is often cited that allowing intercept evidence would reduce the need for other measures aimed at countering terrorism, namely pre-charge detention and terrorism prevention and investigation measures, or control orders as they were formerly known.

We should not, however, overstate the practical benefits of allowing intercept evidence. I now want to turn to the point that the hon. and learned Member for Sleaford and North Hykeham made about control orders, or TPIMs as they are now known. The noble Lord Carlile, the independent reviewer of terrorism legislation, was unequivocal in saying that he felt that intercept evidence would not have made control orders obsolete. That was backed up by a report by an independent counsel commissioned by the Home Office. It concluded that allowing the use of intercept evidence would not be enough to facilitate trials in any of the cases of the nine people who were subject to control orders at the time. Indeed, the Privy Council concluded:

“We have not seen any evidence that the introduction of intercept as evidence would enable prosecutions in cases currently dealt with through Control Orders.”

[Mr David Davis]

I will put to one side one of the weaknesses of the Privy Council report, namely its assessment of the effectiveness of intercept in prosecutions, and take up the issue of control orders. When we eventually allowed the use of control orders, our presumption when in opposition was that they would allow the control of people who could not be prosecuted in the courts because the available evidence—in other words, intercept evidence—could not be used there. Now we are being told that such people are having their freedom removed on the basis of, in essence, suspicion, because there is nothing beyond intercept other than suspicion. Members on both Front Benches are in a Catch-22 situation: either intercept is effective in dealing with control orders, or control orders are being imposed on the basis of suspicion alone.

[Diana Johnson]

The right hon. Gentleman raises an issue that could be debated for many hours. I think that his first point—that evidence was available—is the correct one. However, a review has taken place and the view of the independent counsel, who was commissioned by the Home Office, is that what the right hon. Gentleman has said is not correct. I have only limited time left, so I will move on. We will have to differ on that.

The number of criminal cases in which intercept evidence might be used is limited. An independent survey conducted in 2004 concluded that allowing intercept evidence would secure no more than 20 to 30 additional convictions a year.

Under the current arrangements, intercept evidence is of significant use for the protection of national security and the detection of serious crime. The Privy Council’s report into intercept evidence gives an excellent summary of the importance of wiretapping to UK law enforcement agencies. Under the current arrangements, the UK is able to benefit from intelligence gleaned from wiretapping, without compromising intelligence capabilities. Wiretapping often facilitates the collection of other admissible forms of evidence.

The Serious Organised Crime Agency has stated that

“interception, together with communications data, is the single most powerful tool for responding to serious and organised crime.”

It is because the current regime is so successful that the Metropolitan police currently secure a conviction in 88% of cases where they have employed intercept evidence. It estimates that that would rise only to 92% if intercept evidence were to become admissible. The more sophisticated criminals become, the greater the need for more advanced detection techniques and the greater the need to protect those intelligence techniques.

Of course, we cannot discuss individual cases or the evidence involved in them in Parliament, but it is clear from independent studies that law enforcement and Security Service agencies have provided numerous examples of intercept evidence having been used to apprehend wanted criminals, seize drugs or stolen property, or alert law enforcement agencies of planned criminal activities, enabling them to gather the admissible evidence that they require. We must recognise the important role that wiretapping already plays in the fight against crime and terrorism, and the importance of not jeopardising that success. The Privy Council stressed its belief that:

“The overriding objective should be to promote national security.”

That has been the position of successive Governments, and is the position of the Opposition.

If there was an easy solution to this problem, it would have been produced, but there is not. I will touch on a few of the issues that have prevented previous Governments from allowing wire-tap evidence in court. I hope that the Minister will update the House on what progress has been made on each issue. How can we allow the use of intercept evidence in courts, while protecting the most sensitive information which, if made public, would reveal a particular intelligence technique or source, and while upholding the principle of the equality of arms, under which the defence must have access to and be able to present all the relevant information?

The central desire is to protect the work of the security services and the techniques that they use. Proponents of the use of intercept evidence often counter that by saying that criminals are already aware of the intelligence services’ ability to intercept calls. However, the Privy Council rejected that point and said that criminals’ knowledge is currently conjecture based on rumour and that, while a few of their presumptions may be right, the evidence is that most of them are wrong.

Partnership is important. Earlier, I set out some of the successes of the current regime. Those are based on partnership between law enforcement agencies and the security services, between the UK and our international allies, and between state agencies and communication service providers. There is concern that any attempt to allow intercept evidence in court would jeopardise those successful partnerships. Indeed, some communication service providers have indicated that it would make them much less willing to co-operate. I hope that the Minister will respond to those points.

Much has been said about other jurisdictions. I would appreciate it if the Minister again set out clearly the unique position of the United Kingdom’s legal system, which is very different from that of some of the other countries that have been cited, such as France and Spain.

In conclusion, we all want to have intercept evidence in court. We want answers for the families of those who have died in controversial circumstances, where an inquest cannot take place. However, we have to acknowledge that this is a complex process and that at stake is a system that has delivered a lot towards the protection of our national security and in tackling international crime. It is not clear that any other country uses intercept-gained evidence as effectively as the United Kingdom.

The Opposition will of course work with the Government to get intercept evidence into courts without compromising national security, and international examples, particularly from Canada and the US, give us some indication of how that might be achieved. I hope the Minister will be able to update the House on the progress that the Government have made towards that end, and particularly on what plans he has to allow inquests such as Mark Duggan’s to take place; what processes are currently under way to evaluate the practicalities involved in allowing intercept evidence; what processes are in place for the Government to take expert advice from lawyers, law enforcement agencies and the intelligence services to that end; and whether he has any plans to bring forward a Green Paper.

Extradition

David Davis Excerpts

Tuesday 16th October 2012 Commons Chamber

[Mr Speaker]

I call Mr David Davis.

[Mr David Davis (Haltemprice and Howden) (Con)]

rose—

[David T. C. Davies (Monmouth) (Con)]

rose—

[Mr Speaker]

Order. We will hear from Top Cat in a moment, not just yet. I should have explained. Mr David Davis—he with the slightly greyer hair and the longer service in the House.

[Mr Davis]

I, for one, congratulate the Home Secretary wholeheartedly on her decision on Gary McKinnon today, but I also share some of the concerns of my right hon. and learned Friend the Member for North East Fife (Sir Menzies Campbell). There are a number of cases where there are concerns over justice being done, with respect to both Europe and the USA—in particular, in respect of the USA, there are fears that the intimidatory use of the plea bargaining arrangements force possibly innocent people to make guilty pleas, and similar problems in the justice systems of other European countries. Will the Home Secretary give the House an undertaking that what she proposes to bring about today will give protection to UK citizens equal to that which American citizens get from their constitution?

[Mrs May]

As I said in response to my right hon. and learned Friend the Member for North East Fife (Sir Menzies Campbell), I understand that a number of Members, including my right hon. Friend the Member for Haltemprice and Howden (Mr Davis), still have concerns about the perception of the imbalance between the probable cause and reasonable suspicion tests. As I say, Sir Scott Baker looked at this and found that there was no significant difference between them—that in practice the application of those two tests was not significantly different as between the US requests and the UK requests. I can assure my right hon. Friend that Sir Scott Baker’s decision was relevant to those from the UK whose extradition to the United States was requested, and vice versa.

Oral Answers to Questions

David Davis Excerpts

Monday 21st May 2012 Commons Chamber

[Mrs May]

The right hon. Gentleman will see the Government’s proposals when the relevant Bill is published, but I am sure that with his wealth of knowledge and experience he will know that, on a number of issues such as control orders in the past and terrorism prevention and investigation measures now, the decision to hear such matters in closed proceedings, and the decision on whether they should go ahead, is initially taken by the Secretary of State and then put to the court for the court to agree.

[Mr David Davis (Haltemprice and Howden) (Con)]

In recent times there have been a number of controversial applications to extradite British citizens to the United States, including that of Mr Christopher Tappin. Some appear to have been based on American police sting operations on British soil. How are they approved, and how many have been approved in recent times?

[Nick Herbert]

I appreciate my right hon. Friend’s concern about the matter. Operational activities such as covert investigative action would have to be approved in this country by the relevant law enforcement agency. As to the types of investigation, the approval processes and the numbers, I am about to write to my right hon. Friend, and I will set them out in detail for him.

UK Extradition Arrangements

David Davis Excerpts

Monday 5th December 2011 Commons Chamber

[Mr Raab]

I thank the hon. Gentleman for his intervention. I will take his word on that data, but the key distinction that I am making is between the paper legal test and how it actually works. We are not going to be ivory tower academic lawyers about this. Let us understand the impact on the people affected.

[Mr David Davis (Haltemprice and Howden) (Con)]

Let me correct the record. The Americans may not have refused any British applications for extradition, but they have refused to provide witnesses in other countries’ cases, which has led to broken trials.

[Mr Raab]

I thank the right hon. Gentleman for that clarification.

In practical terms the arrangements are unbalanced too. On the latest data available—I thank the Immigration Minister for his letter correcting earlier replies to parliamentary questions—29 UK nationals or dual nationals were extradited from Britain to the US since 2004. Five Americans were extradited from the US to Britain.

Obviously, states extradite their own nationals and third parties as well, but we in the House are rightly concerned about the treatment of those removed from the home country. In front of the Foreign Affairs Committee, the US ambassador disputed some of the earlier data that I spoke to in the Westminster Hall debate, complaining about untrue accusations being made by MPs and adding:

“The constant use of skewed arguments and wilful distortion of the facts by some to advance their own agendas remains of great concern to the United States”.

If there is any dispute about the facts it is not with me or any Member of this House, but with Ministers from the previous Government who failed to record consistently data on the issue between 2004 and 2007. I emphasise that all the figures cited today and in the previous debate were from Government replies to parliamentary questions. Neither the ambassador nor the US embassy, when I later followed up, were able to correct the figures with data based on their own records, so I find it regrettable that the charge of

“wilful distortion of the facts”

is being bandied around without His Excellency being in command of a few of his own.

--- Later in debate ---

[Mr David Davis (Haltemprice and Howden) (Con)]

It is a particular pleasure to follow the right hon. Member for Sheffield, Brightside and Hillsborough (Mr Blunkett). He and I crossed swords many times when he was Home Secretary. I am not remotely surprised to hear his reasonable tone in this debate or to hear of his compassionate action on Gary McKinnon, as both are entirely in line with his character. What is more, I can understand only too clearly why he took the stance that he did in the early 2000s, because at that time the extradition situation around Europe and elsewhere was a mess, and it was sometimes very difficult to get people extradited from other countries. It is therefore wholly unsurprising that after 9/11 he took the action that he did. That does not mean that I agree with him about that action, but it is entirely understandable that it was taken. The House will not be surprised that I think it went too far because of, in my view, the pre-eminence of justice in this matter. There is a balance between justice and security, but security without justice is a very fragile security. It is our job to defend our lives and way of life, and in this respect I do not think that we have done so.

Unlike my hon. Friend the Member for Esher and Walton (Mr Raab), I do not speak as a criminal lawyer. What I am about to say is no doubt obvious to all criminal lawyers, but not necessarily so to the rest of us who are laymen. Let me make a simple point. In this country, we presume innocence. That has all sorts of implications that we do not think about most of the time. For example, it means that unless there is a threat to a jury, an ongoing threat to the public, or a risk of absconding, we generally give bail—we do not imprison people who are awaiting trial if we can avoid it. If we do imprison someone, we put them on remand, where they are treated as innocent. They wear their own clothes; they are not made to work; they are called “Sir”: all sorts of things apply to prisoners on remand that do not apply to other prisoners, either in this country or, indeed, abroad. The presumption of innocence has a distinct effect on how we treat people.

Let us compare that with people who are extradited. They feel as though they have been deported. They are in a foreign prison, often with lower standards; my hon. Friend referred to that in terms of Greece. They are not only in a different culture, but often surrounded by people speaking a different language. They are, in effect, in psychological isolation; one might think of it as psychological solitary. They are often thousands of miles away from their family. They are viewed as an alien in the institution in which they are held. That, of itself, is a very serious punishment of people we are presuming innocent at this stage of the process.

In addition, such people face a different justice system; I will describe it only as lightly as that. As was alluded to in the context of the NatWest three, this is a justice system that is not above saying, “Here is a plea bargain. Either you plead guilty or you’re going to stay in this nasty Texan jail for the next two years while we think up the case against you.” That is different from what they face here—and, frankly, I do not think that it is justice. At worst, it is a justice system that is actually corrupt, as we have seen in Greece. Although I understand the ex-Home Secretary’s point of view, this was not new to us even when the EAW was created. I had a constituent who was one of the plane spotters and who was locked up, in effect, for political reasons and not given what I would judge to be anything like a fair trial—and, of course, he was tried for doing something that was not illegal in this country. That is, at this stage, how we treat people who are presumed innocent under our system.

[John Hemming]

I very much agree with my right hon. Friend. Does he agree that that supports a strong argument that, where possible, any prosecutions where there are alternative forums should be in the home forum?

[Mr Davis]

I entirely agree. That is very much the thrust of what I will say in the next few minutes.

Let me come back to the thought process behind this—the intent behind what the then Home Secretary was trying to achieve, with which, as I said, I sympathise. The EAW, the extradition treaty and the 2003 Act were all aimed at dealing with terrorism. What has been the consequence of that? A parliamentary answer told us that between 2003 and 2009 there were 63 extraditions to the USA, of which precisely one involved a terrorist. A number of the others involved serious crimes—although I have to wonder about the two people who were extradited for “satellite signal theft”; Rupert Murdoch’s reach is obviously longer than I thought—but there was only one terrorist extradition. When I looked at it the other way around—extraditions from the Americans to us—I was unable to find any record of terrorists being extradited here. I asked people in the Library to look at it for me. They searched through all the available records and could not find any examples. We should keep in mind that the rather draconian process that we have, which was put in place to defend us against terrorism, does not appear to have had much impact in that respect. In practice, the outcome is much more mundane. The truth of the matter is that we will have far more Gary McKinnons extradited than Osama bin Ladens.

Because of the terrorist problem, the international crime problem, and the pressure for a fast agreement, we have left out some proper protections in the agreements that we have made, particularly with America. Debating this when he was in opposition, the current Attorney-General said that

“we chose in the 2003 Act, bizarrely, to get rid of the protection that existed in article 7(1) of the 1957 convention on extradition, which allowed an extradition to be prevented if the person was being sent to an inappropriate forum for the trial…Every other country has that safeguard. The Irish, who regard themselves as close partners and friends of the United States, and who have an extradition arrangement, have a forum clause in their treaty, which enables the question of the appropriate forum to be considered.”—[Official Report, 12 July 2006; Vol. 448, c. 1419.]

He is right. Not only the Irish, but Norway, Switzerland, Holland, France and Germany all have such provision. In fact, the Germans’ law will not allow the extradition of any of their citizens outside their country. Similarly, two Commonwealth countries—Australia and New Zealand, two of America’s closest allies in the war on terror—have total discretion over who among their own nationals they allow to be extradited. The idea that we are somehow at odds with the accepted—and, indeed, acceptable—approach among the western nations in their battle with terrorism is nonsense.

[Mr Blunkett]

On 16 December 2004, the idea of treating one’s nationals, as opposed to overseas citizens, differently in this country was ruled out by the House of Lords. I should know, because section 4 of the Anti-terrorism, Crime and Security Act 2001 was at stake.

[Mr Davis]

I am sure that the right hon. Gentleman is right. My point is that we are dealing with the situation as it is now and what is acceptable among the anti-terrorist community, if I might put it in those terms, and I am afraid that what is acceptable is something far tougher than we have been claiming.

Let me look at the other side—American reciprocity. Much of this is about reciprocity, so how have the Americans behaved? My hon. Friend the Member for Croydon South (Richard Ottaway), who is the Chairman of the Foreign Affairs Committee, asked how many cases have been refused. I have worked in the murky world of international relations in the Foreign Office, and I know that the number of requests refused is zero—but of course it does not work like that. If one wants to turn something down, one rings up one’s ally and says, “Would you mind withdrawing it?” The US subsequently withdrew 5% of its applications, whereas we withdrew 20% of ours. I wonder why. I do not think that the Americans can claim a very great moral high ground in terms of reciprocity. Indeed, the attitude taken to that by many countries, including Canada, Spain, France, Germany and Italy, has traditionally been much more robust than ours.

So what should we do? My hon. Friend the Member for Esher and Walton has made this point in some detail, so I will be quick. We should change the forum arrangements. They should pay proper attention to not accidentally punishing the innocent or over-punishing those guilty of minor crimes. I do not know why the Americans should think it better for Gary McKinnon to spend two years in an American prison than for two American witnesses to spend two weeks in a hotel in Britain while the case is tried. We should have prima facie evidence requirements so that we do not repeat the Symeou experience of somebody spending a year in a foreign prison before eventually being proven innocent. Finally, we should introduce a filter for cases that are acceptable using dual criminality, seriousness and timeliness, so that justice does not become so heavy handed that it tips over into being injustice.

--- Later in debate ---

[Conor Burns (Bournemouth West) (Con)]

I congratulate my hon. Friend the Member for Esher and Walton (Mr Raab) on securing this debate. He has shown his usual tenacity and principle, which are becoming his hallmark.

It is a bit of a relief, on this one-line Whip, to escape the burdens of PPS-dom and speak out on something about which I have felt passionately for some time. I have recently written a pamphlet entitled “The case against the European arrest warrant”, which will be published shortly.

I will not trespass on my time by speaking a lot about the United States, except to place on the record my support and sympathy for Gary McKinnon and his family, who in my judgment have been badly treated. The public share that view strongly.

I will concentrate on the European arrest warrant. My hon. Friend’s motion is moderate in calling on the Government

“to reform the UK’s extradition arrangements to strengthen the protection of British citizens”.

As the hon. Member for Aberavon (Dr Francis) said, there is an emerging consensus in this House that that is something the Government should do.

The political and emotional context in which the European arrest warrant emerged after the desperate events in New York on 11 September has been alluded to. In evidence to the Joint Committee on Human Rights at that time, the Liberal Democrat MEP Sir Graham Watson, who was chairman of the European Parliament’s justice and home affairs committee, said that

“the proposal would still be on a shelf gathering dust if it hadn’t been for the events in New York… Mr. Bin Laden helped make it a reality”.

There is a great deal of truth to that.

The workability of the European arrest warrant hinges on the principle of reciprocity between our courts and the courts of other countries. I will not dwell on this point because my right hon. Friend the Member for Haltemprice and Howden (Mr Davis) and my hon. Friend the Member for Esher and Walton spoke passionately about why that is not a reality.

Another element that is central to making the European arrest warrant work is proportionality in its application. On 9 January 2007, the presidency of the European Council delivered a communiqué to the body’s working party on co-operation in criminal matters, examining the application of the proportionality principle in matters relating to the European arrest warrant. Article 5 of the pre-Lisbon treaty on the functioning of the European Union stated that the proportionality principle is applied in respect of the four freedoms of the European Union, chiefly the free movement of goods, services, persons and capital. The treaty stated, however, that

“any action by the Community shall not go beyond what is necessary to achieve the objectives of the Treaty.”

It is surely clear that in its application, the European arrest warrant has gone well beyond proportional use.

Let us look at some of the examples of warrants being issued. They have been issued in respect of offences such as the possession of 0.4 grams of cannabis, 1.5 grams of marijuana or three ecstasy tablets, the theft of two car tyres and even the theft of a piglet. There was also the case of a person arrested while driving a car with a blood alcohol level of 0.81 mg, compared with a UK limit of 0.80 mg. The problem has been recognised even by the European Commissioner with responsibility for justice, fundamental rights and citizenship. She stated last November that

“European arrest warrants should not be issued mechanically, or automatically, for crimes that are not very serious such as bicycle theft.”

Then there is the question of the number of European arrest warrants issued, which is also central to the application of the system. In 2009, the total number of arrest warrants issued was 14,789. My hon. Friend the Member for Esher and Walton will doubtless be aware that Bulgaria, Hungary and Italy were unable to provide figures for the number of arrest warrants issued in their countries. That backs up his point about the differences between systems. Poland issued 4,844, and France, a similar-sized country to the United Kingdom, issued 1,240. In the United Kingdom, we issued a mere 220.

We can also examine where those citizens were living when the warrants were issued. Despite the United Kingdom being in the bottom quarter of issuers of warrants, those issued against people in the UK represented 38.8% of all the warrants issued across the whole European Union.

[Mr David Davis]

Top of the league.

[Conor Burns]

Indeed.

There is a fundamental question whether the European arrest warrant is compatible with habeas corpus as we understand it in this country. The excellent Lord Vinson of Roddam Dene challenged the Home Office Minister then responsible in the other place, saying:

“The fact remains that hundreds of UK citizens are being compelled to appear before any EU court without the merit of the often frivolous charges being first assessed. They can be locked up without pre-trial. Is she not concerned that this totally overrides the ancient liberties of the British citizen enshrined in Magna Carta and habeas corpus? Will she assure the House that this will be resolved?”

The then Minister, Baroness Neville-Jones, responded:

“My Lords, the Government are concerned…with the disproportionate use of the European arrest warrant for trivial purposes.”—[Official Report, House of Lords, 26 January 2011; Vol. 724, c. 955-56.]

That is another example of the consensus that is emerging across Parliament.

Then there is the question of the principle of dual criminality. Under the European arrest warrant, British citizens or those living in the United Kingdom can be extradited to another European country for crimes that may not necessarily even be offences under United Kingdom law. That concern was raised by the Home Affairs Committee in its report on the application of the European arrest warrant of November 2002. The Committee stated that it had

“grave concerns about the abolition of the dual criminality safeguard. The variety of criminal justice systems and of legislative provisions within the member states of the EU makes it difficult for us to be…confident…that it will be acceptable in all circumstances for a person to be extradited from the UK to face proceedings for conduct that does not constitute”

a crime in the UK. The fact that the European arrest warrant could necessitate a British court extraditing a British citizen for something that would not be illegal in the UK represents an entirely unacceptable incursion into our British criminal justice system.

I am not a lawyer. I think my constituents regard being a politician as crime enough without being a lawyer as well, but to be a law-maker one does not have to be a lawyer. Most of my constituents are not lawyers either, but they smell that something is not right in the exercise of the European arrest warrant. They want the British Government to stand up for British citizens, and they want the freedoms and protections under the law that we have cherished for years.

--- Later in debate ---

[Michael Ellis]

The systems provided by the United States are accepted by the international community as being perfectly amenable to the interests of democracy and the rights of the individual within the state of Texas and other states of the American union.

Approximately a year ago, Her Majesty’s Government commissioned a report—the Baker report—to which several colleagues have referred and which I am holding. It is 500 pages long, it took one year to complete and it was conducted by three eminent jurists: Sir Scott Baker, who was called to the Bar some 50 years ago, and two eminent lawyers, both of whom have acted for Governments and for requested persons and have therefore dealt with this issue on many occasions and from both sides of the fence. They came to the conclusion that there was no significant difference or imbalance between the extradition arrangements in the United States and the United Kingdom. That is the crux of this matter. Many of the previous speakers seemed to assume that there were imbalances, which they criticised, but they did not address those alleged imbalances.

I have heard no evidence, and the Baker report came up with no evidence, pinpointing where there is imbalance. There is different terminology, with “reasonable suspicion” being used often in the UK arrangements in relation to the evidential burden that is required, whereas “probable cause” is used by the United States. Those two terms may be slightly different in phraseology but they mean very much the same thing, and those who have analysed the position in some detail, either in the Baker report or elsewhere, have come to that clear conclusion.

[Mr David Davis]

My hon. Friend has asked for an example. How does he see the circumstances of someone facing trial in Texas who is thousands of miles from their nearest and dearest, isolated from their community and has no financial support? Does not the plea-bargaining system in America become a predatory process that threatens them with long-term loss of liberty or the prospect of giving in and admitting guilt?

[Michael Ellis]

There have been extradition arrangements between our two peoples since the later part of the 18th century. As for plea-bargain arrangements, there are also pressures on defendants in the British system. We do not refer to them as plea-bargaining, but defendants know that if they plead guilty, they are likely to receive a lesser sentence, so although we have no plea-bargaining arrangement, it is not correct to assume that the two systems are completely different.

The conclusion reached by the Baker report is that there is no significant difference between the tests that either country applies. In all extradition requests that have been submitted to the United Kingdom since 1 January 2004, the United States and many other states have not had to provide prima facie evidence, instead having to provide only the information sufficient to satisfy the extradition legislation. There are many countries, including Australia, Canada and New Zealand, from which we do not require prima facie evidence before extraditing to them. We should not therefore require the United States to jump over that hurdle when the other allied nations whose legal systems are based on ours do not have to do so. I understand that countries that have signed the European convention on extradition orders do not have to jump through that hoop. Those countries include Turkey and Russia. Those who call for a prima facie standard, as I understand the Joint Committee on Human Rights has done, must explain why Russia should be required to have a lesser standard than America, if America were put under the pressure of proving to a prima facie standard.

--- Later in debate ---

[Chris Bryant (Rhondda) (Lab)]

I must confess that I was looking forward to more of that. I have on occasion referred to the hon. Member for North East Somerset (Jacob Rees-Mogg) as the hon. Member for the 13th century, but I think that that was far too radical a century for his liking.

I congratulate the hon. Member for Esher and Walton (Mr Raab) on securing this debate. He is quite greedy about getting debates. I think he has probably had his fair share for the rest of this Parliament, but he introduced an important matter that is of interest to many.

I also congratulate the many Members who have spoken on behalf of constituents who have had particular problems. I know, from when I was responsible for consular support in the Foreign Office, how often British embassies around the world deal with complicated situations in relation to extradition. In some circumstances, British people did not have to be extradited and were caught up in the criminal justice system in another country, where they did not speak the language, did not understand the system and were a long way from their loved ones, as many hon. Members have said. Some people were languishing in pretty hideous jails. I visited a couple of them in Thailand and Peru and cannot recommend the process to anybody. I therefore commend hon. Members for their comments.

In relation to Andrew Symeou, I tried to ensure, as far as possible, that our embassy in Athens was doing as much as possible to ensure that the family and Mr Symeou had the support that they needed. Of course, we were also trying to provide support to the family who were the victims of the crime in question.

I also congratulate the lawyers who have taken part in the debate. I notice that they keep calling themselves “jurists”. They are not going to get away with that. We know who they are. Unfortunately, I mostly agreed with their contributions, so I will not be rude to them this evening.

It is a fundamental principle that nobody should be arbitrarily arrested without due cause. It inevitably follows that no extradition, no surrender of a person and no arrest under an international warrant should, in the words of the Book of Common Prayer,

“be entered into unadvisedly or lightly; but reverently, discreetly, advisedly, soberly”.

Extradition is a vital part of a modern criminal justice system, as many Members have said. It means that nobody can evade justice simply by fleeing the country. In our case, 581 people have been brought back to the UK to face justice as a result of the European arrest warrant since 2004, including the failed 21 July bomber, Hussain Osman, who was extradited from Italy. Indeed, he was removed from Italy fast enough for his interrogation to inform the decisions on charges that had been placed against others, which was an important part of securing justice in that case.

We need at all times to keep our extradition arrangements, both multilateral and bilateral, under review so that nobody’s freedom is unjustly deprived by them. It seems to me that there are five key issues: the operation of the European arrest warrant, the question of whether a prima facie case should be made in all situations, the issue of double or dual criminality, the implementation of a forum bar and the purported imbalance of the US-UK treaty.

I will first make a few simple points. The first is that the motion refers to the protection of British citizens, as have many hon. Members. However, many UK extraditions are of course not of UK nationals. Many EAW requests are from countries that want their own nationals to face criminal proceedings back home. The report of the Joint Committee on Human Rights seeks a special threshold of proof for British citizens. Leaving aside the matter of Northern Ireland, I believe that the idea of special arrangements for our nationals, as opposed to anybody else, in the UK courts smacks more of the Russian system of extradition, which prevents the extradition of any Russian national, than the historic British position that the law should be blind to nationality.

[Mr David Davis]

On that point, the hon. Gentleman could have said that it smacked more of New Zealand, Australia, Germany or France. Why did he pick Russia?

[Chris Bryant]

It was partly because Russia has made a large number of extradition requests to this country to which we have said no because Timothy Workman, the judge in charge, has decided on each occasion that they were being advanced merely for political reasons, whereas when we make extradition requests, such as for Mr Lugovoy, who is sought for the murder of Alexander Litvinenko, the Russian state simply says that no Russian national will be extradited. I do not think that there should be a distinction between different nationalities.

My second minor point is that I suspect that statistics throw far less light on the matter than one might think. It is true, for instance, as the hon. Member for Esher and Walton mentioned, that the number of extraditions from the UK has risen dramatically since 1975, but then so has international travel. Moreover, although there was just one extradition to Spain in the decade up to 1973 compared with 61 in the past seven years, I suspect that that had more to do with the relations with Franco’s regime than with anything to do with the extradition system.

The same is true, I believe, of the US-UK extraditions to which the hon. Gentleman referred. Since 2004 there have been 73 extraditions to the United States from this country, and just 38 to the UK from the US, yet 70% of UK requests for extradition have been successful compared with just 54% of US requests to the UK. In other words, a US request is less likely to succeed than a UK one. Moreover, far more British nationals go to the US every year than the other way around. I know that that seems counter-intuitive, but the Library’s figures suggest that roughly 4.5 million British people go to the US every year, and fewer than 2 million come from the US to the UK.

Thirdly, cybercrime almost inevitably crosses borders, whether we are talking about conspiracy to fund terrorism, illegal file sharing or industrial espionage. Consequently, I agree with hon. Members who have said today that we have to ensure that we have a better way of dealing with the question of where individual matters may be resolved.

--- Later in debate ---

[Chris Bryant]

That kind of casual British superiority sometimes does not carry the day when it comes to making decisions about our legal systems—[Interruption.] It was a joke. I am sorry. I clearly missed that.

[Mr David Davis]

Will the hon. Gentleman give way?

[Chris Bryant]

I am being more generous than I should be, but of course I will give way.

[Mr Davis]

I rise to get the hon. Gentleman off the hook. He has accepted that judicial and prison systems in other European countries are less than desirable. He says that he does not want a prima facie test. Does he accept that he is therefore proposing, or what exists, will punish innocent people who are sent to those countries and suffer those problems?

[Chris Bryant]

No I do not accept that. The return question to the right hon. Gentleman would be this: why did he expressly support in 1991 the ratification of the ECE? If Britain had wanted to, it could have insisted on a prima facie case—that was when many member states had even less advanced criminal justice systems than they have today. The honest truth is that Britain came to the decision that it was more important to close down the costa del crime and the many different ways in which people could evade justice around Europe. I agree with his position at that time.

[Mr Davis]

Will the hon. Gentleman give way?

[Chris Bryant]

If the right hon. Gentleman does not mind, I am conscious that the Minister’s contribution is far more important than mine and I want to move on to a couple of other issues.

I fully understand the concern that many have with the abolition of double criminality from the framework decision. I understand those who believe that that could mean that one could be extradited for holocaust denial or other matters that are not criminal offences in this country. However, I ask hon. Members to remember that sections 64(2) and 65(2) of the Extradition Act 2003 make it absolutely clear that the conduct must have happened in the member state where it is a crime, not in this country. When people travel abroad, surely people subject themselves to the laws of those other countries.

Under the forum bar, extradition would not be allowed if, in the words of section 42 of the Criminal Justice Act 2006, which is now section 19B of the 2003 Act,

“a significant part of the conduct alleged…is conduct in the United Kingdom”

and if, in the opinion of the court, it is not

“in the interests of justice for the person to be tried for the offence in the requesting”

country. Many have pointed to some of the problems inherent in such a forum conveniens test—it could further delay complex proceedings, several of the terms are imprecise, and there could be extensive litigation around them—but the Opposition are not opposed to such a test per se, and merely note that the Government have not thus far introduced the relevant motion in this House or the other place.

Let me turn to the imbalance in the US-UK treaty. Members will know that the US constitution requires that nobody can be arrested without a prosecuting authority proving probable cause. That applies equally for a US arrest for US prosecution, for an international arrest warrant or, under the 2003 treaty, for extradition. The requirement for a UK extradition to the US is that information must be provided that satisfies the reasonable suspicion test. Both tests are based on reasonableness and require similar paperwork and evidence to be submitted. In the case of someone to be extradited from the UK, the US authorities first have to secure a warrant or grand jury indictment, both of which require that the probable cause test is met in the United States of America. The argument that the treaty is imbalanced is simply not made.

Let me briefly turn to the cases of Gary McKinnon and Babar Ahmad, which are much in Members’ thoughts today. It is not for this House to decide the guilt or innocence of anyone, nor do I believe that this motion can legally affect either of the two cases, notwithstanding the points that have been made by others. The length of time that these two cases have taken makes it difficult to see how justice is being done in either of them. Whatever changes the Government bring forward will not directly affect them. None the less, I urge the Secretary of State to make a final decision on Gary McKinnon as soon as possible, and the European Court on Human Rights to do the same by Babar Ahmad. Nothing we do tonight will free either of them, but we can ensure that in future others do not suffer in the same way.

--- Later in debate ---

[Damian Green]

The record will tell us which of us recollects correctly.

Moving rapidly to the 21st century—

[Mr David Davis]

rose—

[Damian Green]

Oh dear, I should not have done this.

[Mr Davis]

For the first time in my life, I am ashamed of my hon. Friend the Minister—actually the record goes back to the Kings of Kent in the eighth century.

[Damian Green]

I can feel a fascinating and wholly irrelevant debate coming upon us, Mr Speaker.

UK Border Force

David Davis Excerpts

Monday 7th November 2011 Commons Chamber

[Mr Speaker]

Order. A great many colleagues wish to participate in the debate on this statement. I know that a fine example of the brevity required will now be provided by the right hon. Member for Haltemprice and Howden (Mr Davis).

[Mr David Davis (Haltemprice and Howden) (Con)]

The shadow Home Secretary used the phrase “deeply out of touch” and “complicit in a loss of control at our borders”, which is, of course, a perfect description of Labour policy for the last decade. The Home Secretary made a decision on 22 July this year which only she could make, simply because she is the only person with advice from the security agencies. Can she tell us in broad terms what that advice was?

[Mrs May]

I am happy to tell my right hon. Friend that security officials were asked about the proposals being put forward and they indicated that they were entirely satisfied with them.

Protection of Freedoms Bill

David Davis Excerpts

Monday 10th October 2011 Commons Chamber

[James Brokenshire]

As a proportion of total detections, DNA detections have remained pretty static. If the right hon. Gentleman is right that the figures I gave were all down to there being less crime—I think that is his argument—what he said about DNA detections would not be the case. Some 2 million extra people have been put on to the database and if hon. Members are suggesting that that change has been positive and would generate many more detections, I am afraid to say that that is not borne out by the evidence.

[Mr David Davis (Haltemprice and Howden) (Con)]

I think this is quite a good indicator of how much the Labour party played with the politics of this issue when they were in government rather than dealing with the reality. The biggest handicap to the use of DNA in evidence is collection at the crime site, which is very poor. Our police have been poor at that for a long time but Labour did nothing about that throughout the entire period being discussed.

[James Brokenshire]

My right hon. Friend makes a very important and powerful case about the effective use of DNA and the fact that crime scene issues can be very important in the detection of crimes and in ensuring that perpetrators are brought to justice.

Terrorism Prevention and Investigation Measures Bill

David Davis Excerpts

Monday 5th September 2011 Commons Chamber

[Shabana Mahmood]

I am surprised that the hon. Gentleman would describe parliamentary debate and holding the Government to account as a fiction. I do not think that having an annual debate is a fiction. It is important that we give right hon. and hon. Members the chance to hold the Government to account, to review how the powers have been used throughout a particular year, and to take a view on whether the risk is such that we still need an exceptional system of rules outside the criminal justice system. I do not believe that those debates are a fiction.

[Mr David Davis (Haltemprice and Howden) (Con)]

Does the hon. Lady accept that using intelligence-based evidence, such as evidence obtained under torture, evidence from foreign countries or unchecked intercept evidence, leads to a greater chance of a miscarriage of justice? The reason I raise that point now is that we did not once, in the course of all the so-called reviews of the control order legislation, hear about any miscarriages of justice. Of course, there were several, as was demonstrated by the courts.

[Shabana Mahmood]

I am grateful for the right hon. Gentleman’s intervention. In the end, we must accept that there is an irreducible minimum number of cases in which the intelligence tells us that a serious risk is posed by an individual and they have to be dealt with, but they cannot be brought within the criminal justice system. We must accept that we need a system for mitigating that risk and for bringing those individuals under some form of control to prevent them from attack planning, which might lead to the loss of innocent lives.

--- Later in debate ---

[Shabana Mahmood]

I agree with my hon. Friend on the starting point for debate. When Parliament considers such matters, it must consider the balance of risk and ask serious questions about how that risk is managed. That should always be the starting point of hon. Members as responsible parliamentarians when we consider exceptional powers that do not exist in other parts of our legal framework. We are also committed to saying that in an ideal world, we would not need such powers, but unfortunately, we are not in an ideal world—[Interruption.] Does the right hon. Member for Haltemprice and Howden (Mr Davis) want to intervene?

[Mr David Davis]

indicated dissent.

--- Later in debate ---

[Dr Huppert]

It is tempting to spend a while talking about risk, as that is a theme that lies behind this debate. Opposition Members have not mentioned the risk we create by treating people who have not been convicted of an offence as though they have been so convicted. In some cases, people who have been found not guilty in a court of law have immediately had a control order slapped on them. There is a risk involved in such cases. We have also heard the slightly lazy assumption that all the people who are suspects in these circumstances are dangerous. We know that some people have been completely exonerated. For example, Cerrie Bullivant, to whom I spoke earlier today, was not a risk, yet he was punished as though he was, for a very long time. Instead, however, I will talk about the purpose of sunset clauses.

[Mr David Davis]

Before my hon. Friend leaves the issue of risk, may I suggest that we need to tackle this matter head-on? During the course of the control order regime, the number of people of interest to the security services started at 1,600 and grew by 25% per annum, until the numbers rose above 4,000 and the agencies got too embarrassed to announce them. Does my hon. Friend accept that the control order regime and everything that went with it were so heavy-handed that they actually increased radicalisation rather than reducing it?

[Dr Huppert]

My right hon. Friend is absolutely right. That speaks volumes about how ineffective control orders and the whole panoply of tools used by the previous Government were. It also highlights why the points about the extra resources needed by the police do not really matter. If there are 1,600 or 2,000 or 3,000 people of great interest to the security services, I hope that the services are occasionally looking at them; otherwise, their interest cannot be very great. If those people are actually dangerous, resources should be available, as the extra resources to deal with a relatively small handful of people are a drop in the ocean.

--- Later in debate ---

[Dr Huppert]

The hon. Gentleman is right. I have always been uncomfortable when someone says, “I know better, so just do exactly what I say.” I am never comfortable with that as a form of argument, partly because it is very hard to rebut. In many ways, it is the central argument behind control orders—when the state tells someone, “I know what you’ve done, but I’m not going to tell you what it is or how I know; we’re just going to assume that you have done this.”

[Mr David Davis]

rose—

[Dr Huppert]

I will take one more intervention, but then I would like to make some progress.

[Mr Davis]

I hope that the hon. Gentleman will forgive me for intervening a second time, but on this point of “We know better than you”, the real problem with reviews has not been the timing so much as the quality of the information provided. We know that there have been miscarriages of justice, as the hon. Gentleman has mentioned, but these are never mentioned in any reviews. We also know from the evidence of the last few days that the control orders were used in effect to immobilise Libyan dissidents to suit our foreign policy in dealing with Colonel Gaddafi. This is the sort of thing we in the House should know about; the failure is not about time, but about the quality of the information provided to us.

[Dr Huppert]

Indeed. I thank the right hon. Gentleman for his comments. He pre-empts something I was planning to say later about the Libyan issue, which is a very serious one, as it seems that the Government might have acted perhaps using some of these tools on behalf of another power. I hope that the Minister will be able to assure us that that has never happened, and also assure us later than none of the evidence under which people have been subject to control orders has come as a result of torture in Libya. We have heard some astonishing stories; I look forward to hearing the Minister’s comments about this either now or later, if he has time to check the facts.

The other purpose of a sunset clause is to flag up the fact that something is exceptional and should not be a regular part of our law. We do not have a sunset clause on theft and we do not have one on the vast majority of things because they are standard. This is an exceptional measure and we need to flag it up. That is why I am so pleased that the Government have accepted the argument. We should be very concerned when we step outside the normal bounds.

I disagree entirely with the comments made by the hon. Member for Bradford South (Mr Sutcliffe), who I believed to be a shadow Minister but who appears to be sitting on the very Back Benches. I do not know what that says about his position and standing. [Interruption.] I hope he will move towards the front rather than withdraw to the back. I withdraw any aspersions I may have cast on the hon. Gentleman in what I said; I was merely surprised by his location. In Committee, he said:

“Unfortunately, there are times when people have to be outside the legal framework.”––[Official Report, Terrorism Prevention and Investigation Measures Public Bill Committee, 23 June 2011; c. 57.]

I disagree with him completely and utterly on that. I think we have a legal framework for a reason, and once we start saying that people should be outside it, we are on very dangerous grounds.

--- Later in debate ---

[James Brokenshire]

In some ways, this relates to the package of the measures before us. This is about not only this Bill, but the capabilities and resources being made available to the police and security services to allow them to monitor people and seek to bring them to justice. I absolutely agree with the hon. Lady, and it is our preferred option, that people who commit acts related to terrorism should be prosecuted and brought to justice in the normal way. However, the Government need to assess risk and seek to protect the public, and we judge that, for a number of reasons, it is not possible to achieve that aim in all circumstances. That is why preventive measures of the type contemplated in this Bill are required and will continue to be needed for the foreseeable future. We therefore argue that it is for Parliament to consider, on a per-Parliament basis, the necessity of these types of measures. I am aware that the hon. Lady has raised the issue of bail in this context, and we considered it in the counter-terrorism review. However, we had clear guidance from the police who recommended against bail being available for terrorist suspects because of the risk to public safety that might be involved.

[Mr David Davis]

If I may, I will pursue the point raised by the hon. Lady. Will the Minister tell us why he thinks that the number of convictions in this country is so low? In the 10 years or so since 9/11 there have been about 230 convictions relating to terrorism offences, which is less than 10% of the number in the United States during the same period, and similar comparisons can be drawn with other countries. Why does this country have such a low conviction rate compared with everybody else?

[James Brokenshire]

My right hon. Friend has taken a very consistent line on ensuring that those suspected of terrorism offences are brought to justice and that the courts are used appropriately. We need to do all we can to ensure that that happens, which is why we are taking forward measures such as post-charge questioning, which he has advocated clearly, and why we are continuing to examine the way in which intercept evidence might be usable in the courts and how the Privy Council review continues in relation to that. I agree with him that we need to be looking at a package of measures, that this is not about one instrument in itself and that it might be appropriate to take a range of steps. I would not want to suggest in this evening’s debate that this is about one issue. The Government are taking forward a range of measures as part of their counter-terrorism review and this Bill is just one part of that.

--- Later in debate ---

[James Brokenshire]

I am saying that because this legislation remains and resides on the statute book, subject to the new clauses that we have rightly put in place following the previous debate with the five-year renewal. The powers that are available under the enhanced measures are such that they require a further considered approach by Parliament before they are introduced. That is why we have rationally and reasonably, as reflected in the counter-terrorism review, sought to adopt the approach that we have.

[Mr David Davis]

I have no wish to add to my hon. Friend’s difficulties, but he knows I have concerns about this issue. The simple truth is that had the 90-day measure been put before the House in July 2005, when the atrocity occurred, the House would have taken a much more emotional, rather than rational, decision. I have a general concern—I know that he is thinking through the legislation—that the House does not make its best decisions in the immediate aftermath of atrocities. There is a risk, in going down this route, that we will get not rational, but irrational, decisions.

[James Brokenshire]

I hear that argument, which is why we have sought to produce the draft Bill—to ensure that it can be considered rationally, calmly and coldly by the Joint Committee. Approaching it in that way means that in circumstances similar to those that have, sadly, arisen in the past, there is a defined mechanism and method that has been subject to scrutiny in advance. In many ways, we are seeking to recognise some of the challenges to which my right hon. Friend the Member for Haltemprice and Howden (Mr Davis) has alluded and to address them by having the draft Bill available now for consideration.

Prevent Strategy

David Davis Excerpts

Tuesday 7th June 2011 Commons Chamber

[Mrs May]

I am rather disappointed in the tone that the right hon. Lady has taken in her response. On the one hand she said that she recognised that the Prevent strategy needed review, but on the other hand she has completely rejected the review that has taken place. She claims that no change is taking place, but clearly there is. On Hizb ut-Tahrir, the Government are concerned about that group’s actions and keep it under constant review. She asked me to confirm that that is a very difficult area in which to work, which I am happy to do. It is difficult to make the proper judgments in this area.

When we came into office we looked at the previous Government’s approach and found that they had not looked at the issue of extremism but focused instead on violent extremism. We believe that it is important to look at extremism, because people involved in it can be led on to violent extremism and terrorist acts. We believe that it is also important to look at extremism because it can create an atmosphere in which people can more easily be radicalised towards terrorism. That is a key change that we are bringing about. We are looking at all forms of terrorism and have made that clear in what we are doing.

I have identified a number of areas where I think not enough has been done to look at radicalisation. The right hon. Lady said that Universities UK had rejected the review’s statements relating to universities, but I have to say to her and to Universities UK that I consider one of the problems to have been a degree of complacency in universities and their unwillingness to recognise the radicalisation that can take place on their campuses and do anything about it. We aim to work with universities to ensure that in future, with regard to their pastoral duty of care to students, they take radicalisation seriously and act accordingly.

There will be real differences in the approach we are taking. It has been a problem in the past that, because Prevent covered both integration and the counter-terrorism aspects of the strategy, it was perceived to be the securitisation of integration, so it is right that the Department for Communities and Local Government will take on the integration aspect of our policy and work on aspects of community cohesion.

Finally, I think that it is absolutely right that the Government should look very carefully at the groups that are being funded, analyse and evaluate them properly and carefully monitor how money is spent. The previous Government did not do that.

[Mr David Davis (Haltemprice and Howden) (Con)]

I welcome wholeheartedly my right hon. Friend’s statement and comments, not least because a couple of weeks ago I received a letter from a Muslim inmate of one of our high-security prisons, in which he said:

‘Last week our prison service imam told us ‘not to believe western media’ in relation to the death of Usama bin Laden. The week prior to that the imam celebrated the escape of hundreds of Taliban prisoners from the Kabul jail.’

He went on to list equally inappropriate teachings by prison imams in a total of five prisons. The Home Secretary is right to draw attention to the previous Government’s complacency over the issue. Will she give an undertaking that this will be put right and that we will not be able to say those things next year?

[Mrs May]

I thank my right hon. Friend for bringing that letter to the attention of the House and, in doing so, raising a very important aspect of the work on which we wish to focus. There is a great deal more to be done in prisons, and a number of steps that we intend to take are set out in the Prevent strategy today. I should be very happy to receive a copy of that letter, if he feels able to share it with me, so that we can look at the specific allegations that have been made, but we intend to work more carefully with prisons, prison staff, the National Offender Management Service and those going into prisons to deal with individual prisoners in order to try to ensure that we do not see the sort of activity taking place that he has identified.

Oral Answers to Questions

David Davis Excerpts

Monday 9th May 2011 Commons Chamber

[Mrs May]

The right hon. Gentleman makes a very important point. It is, of course, essential that the various agencies involved work together. I can assure him that they will be working together, as they have been. One of the developments of recent years, which is very welcome, is the way in which the Security Service and the police have worked together on counter-terrorism matters. They will continue to do so and are very conscious of the issues relating to the release of offenders who have completed their prison sentences.

[Mr David Davis (Haltemprice and Howden) (Con)]

A year ago, I was approached by a whistleblower with an allegation that there had been criminal misuse of CCTV and automatic number plate recognition information by the Home Office and a part of the Metropolitan police. I established that the individual knew the insides of the organisations concerned and ongoing operations and that he had no obvious reason for malice or deceit. I sent the information to the Home Secretary. Since then, despite a number of reminders, I have had no response from the Home Office. Will she now tell me when that investigation will conclude?

[Mrs May]

I will go back and ensure that the matter is brought to my attention and that I am able to give my right hon. Friend a response as soon as possible.