HC Deb 28 June 1988 vol 136 cc262-70

Amendments made; No. 61, in page 10, line 14, after `as', insert— `(a) in England and Wales,'.

No. 62, in page 10, line 15, after '1981', insert `or (b) in Scotland, the High Court of Justiciary by Act of Adjournal'.—[Mr. John Patten.]

Mr. Worthington

I beg to move amendment No. 203, in page 11, line 1, leave out `may decide not to' and insert `shall not'.

The intention of the amendment is to withdraw from the Home Secretary the discretion whether someone should be extradited to a country where the death penalty is still in force. We seek to say that, instead of the Home Secretary having a discretion to decide not to extradite to a country where the death penalty is still in force, he shall not extradite to such a country.

Since dealing with this issue in Committee we have had a further debate on capital punishment in the House. The views of the House on capital punishment have become even firmer and go further along the line of saying that there will not be capital punishment in Britain again. That is a statement of morality, and it seems that that theme has evoked a Pavlovian response from Conservative Members, with which we have become familiar. [Interruption.] If the hon. Lady has a contribution to make, I hope that she will stand up and make it.

Dame Elaine Kellett-Bowman

May I point out that whenever a survey is done, the British people show that they infinitely prefer the restoration of capital punishment for their own safety. The death penalty is never abolished. One takes it out of the calm consideration of the courthouse and puts it in the hands of the police, who must go armed because criminals go armed. No criminal went armed 20 years ago. Today, arms are a standard item of criminal equipment.

Mr. Worthington

I shall not be enticed into restaging the capital punishment debate. I seek to reflect the firm view of the House that there should not be capital punishment in this country. The arguments that have convinced the House should also apply in considering whether it is appropriate to extradite somebody to a country where capital punishment is practised. The House has decided that there is a uniqueness and repulsiveness about the death penalty and that we do not wish to see it in a civilised country.

We recognise that mistakes can be made, even in a country with good standards of justice. It is even more perilous to extradite people to countries which do not have the same standards of justice. We must not take a Pontius Pilate attitude to that and say that it is not for us to decide whether someone should receive the death penalty in another country. We have to take the stance that it is not acceptable for a citizen of our country to be extradited to another that maintains the death penalty.

Article 11 of the European convention on extradition is quite interesting in this respect. It states: If the offence for which extradition is requested is punishable by death … and if in respect of such offence the death penalty is not provided for by the law of the requested Party … extradition may be refused unless the requesting Party gives such assurance as the requested Party considers sufficient that the death penalty will not be carried out. Certainly, it is within our power to make that statement, and countries such as Austria assert that they will not extradite to countries where the death penalty is carried out, so there is no difficulty about that.

When extradition has been debated in Committee and in the other place, the issue that has constantly come up has been the problem of the United States of America. Justice in the United States is carried out by the state authorities, whereas decisions about extradition are made by sovereign bodies—the Government of the United Kingdom and the Federal Government of the United States. That is the difficulty about the arrangement. Those hon. Members who were on the Committee had hoped that by this stage the Minister would have tabled a Government amendment to confirm that those difficulties —if they are real difficulties—no longer exist.

I should like to quote the view on that issue of Professor Henkin of Columbia university in the city of New York. He makes it clear that there is no real problem. He states that article 4 of the extradition treaty of 1972 between the United States and the United Kingdom provides: If the offence for which extradition is requested is punishable by death under the relevant law of the requesting Party, but the relevant law of the requested Party does not provide for the death penalty in a similar case, extradition may be refused unless the requesting Party gives assurances satisfactory to the requested Party that the death penalty will not be carried out. Professor Henkin believes that a treaty of the United States is the supreme law of the land and is binding on the states. If a death penalty were imposed on the extradited person by a state court and not commuted by the governor of the state, the execution would be enjoined by the Federal Government on the ground that the execution would violate a treaty of the United States, which is the supreme law of the land. That is the view of Professor Henkin. It seems that the problems concerning the federal nature of the United States could be overcome. I hope that the Minister will indicate that he will accept our amendment in view of the problems which have been raised at various stages.

8.15 pm
Mr. Nicholas Bennett (Pembroke)

I have listened carefully to the hon. Gentleman, although I do not share his view on capital punishment.

Will he explain the dilemma that might occur if the amendment were passed? It could result in fugitives from justice from other states—who had committed a murder, for example—going scot-free in this country if they were not sent back to the country that had jurisdiction for them.

Mr. Worthington

I am sure that a form of words could be arrived at, such as an undertaking by that state that the death penalty would not be carried out on that citizen. We are not making it a condition that all countries should adapt their law so that it is identical to ours. We are saying simply that no citizen should be extradited to a country where he is in danger of losing his life through judicial execution. Until now, the Government have not been willing to accept that condition, although they have much sympathy for our position. It is beyond our comprehension why the Government cannot come forward and state that the gist of what we are saying can be dealt with either through the European convention on extradition or by arriving at suitable treaty arrangements with particular states. We do not think that it is a difficult issue and we hope that the Government will confirm how easy it is.

Mr. John Patten

There is an awkwardness to the issue because of the federal nature of the United States. I have listened carefully to the views of the hon. Member for Clydebank and Milngavie (Mr. Worthington). I was also interested to learn of the views of Professor Henkin from Columbia university in New York, in his legal opinion, which I have not seen before.

In the United States murder is a state offence, not a federal offence, and is punishable in some states by death, but not in other states. That is the dilemma with different punishments in different states. The United States has a federal system and there can be collisions between the federal Government and state Governments. It has been possible for the United States to undertake that if a fugitive should be convicted representations will be made in the name of the United Kingdom, to the judge at the time of sentencing, that it is the wish of the United Kingdom that the death penalty should not be imposed or carried out.

I must tell the House that in all cases under our existing treaty with the United States, when people have been accused of an offence that attracts the death penalty and have been extradited to the United States, the wishes of the United Kingdom have been respected. There have been four occasions when that procedure has been followed.

Mr. Peter Archer (Warley, West)

I apologise for the fact that I was not here when my hon. Friend the Member for Clydebank and Milngavie (Mr. Worthington) moved the amendment.

What is the problem about a federation? A federal Government and a state Government are perfectly capable of speaking to each other. There is no difficulty about a state Government authorising a federal Government to give an undertaking.

Mr. Patten

I shall come to that point. I am extremely glad that the right hon. and learned Gentleman is here. We have missed him thus far.

The present practice has always had the desired outcome, and we welcome that. However, I understand the views and concerns expressed by the hon. Member for Clydebank and Milngavie. We have discussed with the United States Government—the discussions have been going on until recently—what more could be done on a bilateral basis within the framework of the existing treaties.

The United States Government have confirmed that when extradition is sought for a capital offence against the laws of one state, only the state authority can decide whether assurances about the death penalty can be given. I hope that that answers the right hon. and learned Member for Warley, West (Mr. Archer).

I cannot debate that point because I am not learned in the laws of the United States, but that is what we are informed. I know that it runs counter to the opinion of Professor Henkin of Columbia university, to whom the hon. Member for Clydebank and Milngavie referred. Through the usual channels, I am advised by the Justice Department that, under United States federal law, the federal Government have no power to require any state to give an assurance or itself to give a binding assurance on behalf of the state without that state's consent. That answers the right hon. and learned Gentleman's question.

Mr. Archer

At the risk of being tiresome, that is the very point that I was making. It is in no way counter to what Professor Henkin said. It is exactly what he said. That being so, what is the problem? If a state can give authority to the federal Government to give such an undertaking, what is the difficulty?

Mr. Patten

An individual governor of an individual state, for reasons of the independence of that state, sitting in the governor's mansion, whatever state it is, may choose to say, "No. We reserve unto ourselves this state power that it is in our hands—within our state Government's competence—to preserve." That is the reality of the situation. It may not look logical from this side of the Atlantic, but that is the nature of the federal relationship in the United States.

I should like the hon. Member for Clydebank and Milngavie, the right hon. and learned Member for Warley, West and the hon. Member for Dewsbury (Mrs. Taylor) to consider the fact that the United States Government have assured us that if a state gives an assurance that the death penalty will not be imposed or carried out, the federal Government can and will give the United Kingdom a formal and binding undertaking to that effect. This is the first time that we have had such an undertaking from the United States Government. It is an advance. That does not cover all the points raised by the hon. Member for Clydebank and Milngavie, but, if such assurances are not given, we could not say that extradition could never be justified in such circumstances.

My hon. Friend the Member for Pembroke (Mr. Bennett) put his finger on the point when he intervened during the speech of the hon. Member for Clydebank and Milngavie. He said that, in certain circumstances—they would be rare; probably as rare as the number of extraditions that we have thus far had to the United States—an otherwise convicted criminal could go free in this country. I do not believe that the people of the United Kingdom would wish that to be the case. The public would find it difficult to understand if a dangerous offender were given refuge here.

I hope that, with the Bill, we are putting in place legislation that will survive the test of time. I hope also that the right hon. and learned Member for Warley, West and the hon. Members for Clydebank and Milngavie and For Dewsbury will accept that, throughout, we have used our best endeavours with the United States Government to reach a satisfactory accommodation. We have produced one step forward. I am not attempting to pull the wool over the eyes of the hon. Member for Clydebank and Milngavie—I would not dare to try to do such a thing. It does not cover all his points, but we have made a substantial advance. Thus far, the treaty has worked extremely well. I cannot commend amendment No. 203 to my hon. Friends.

Mr. Archer

I shall have one more go at the Minister on this matter—not in respect of his merits, but of his logic. All through the debates here and in another place it has been suggested that the problem lies in the federal nature of the United States constitution. It does no such thing. It is true that individual states must decide whether they have the death penalty and whether they can give an undertaking, but that has nothing to do with the federal nature of the United States constitution. As the Minister properly said, the federal Government can give any undertaking that lies within the power of a state Government, if that state Government authorises them to give that undertaking. If the state Government do not wish to authorise it, that is a different matter. That is precisely the same as if we were dealing with—[Interruption]. Perhaps the Minister could be allowed to concentrate. I know that he is trying to concentrate on the debate.

It is exactly the same as if we were dealing with any other Government, federal or otherwise. If the French Government, the West German Government, or any other Government hon. Members care to name decide to execute some people for whom extradition were requested and they would not give an undertaking not do so so, we would be in exactly the same position. If we were to make an exception for the United States, that exception could not be based on the federal nature of the United States constitution.

Surely, we either have a general rule that we do not extradite to any state where someone is liable to the death penalty, or we extradite to any state. To argue that, somehow or other, the federal constitution of the United States has something to do with it is simply to cast a smokescreen. If we were dealing with a state of the American union that was not prepared to give that undertaking, I should wish to deal with the matter as if we were dealing with any country that was not prepared to give such an undertaking. That is the way in which we have traditionally dealt with the matter, and it is the way in which this country has earned its reputation as a haven for people who are in danger of suffering the death penalty. We simply say, "If we do not get the undertaking, we do not carry out the extradition."

Mr. Worthington

Opposition Members are not happy about the matter. We are still puzzled about why the Government cannot go the extra yard. We are simply asking for the Bill to be changed from "may" to "shall not". We do not see a problem about people going free. I am certain that if there is no problem about extradition in such cases——

Mr. Patten

There has not been a problem.

Mr. Worthington

The Minister says, "There has not been a problem." Then the receiving state—the country that wants to deal with an alleged offender—will soon give the undertaking that we seek.

Professor Henkin's view, which was not lightly given to Amnesty International, was that of an authority on United States constitutional law. He seems to be quite clearly of the view that there is no problem. According to our present treaty with the United States, extradition may be refused unless the requesting party gives satisfactory assurances to the requested party that the death penalty will not be carried out. That is a safeguard. Again, according to Professor Henkin, a treaty between this country and the United States is the supreme law, and a state cannot go against that law, or the federal agency would have to take account of it.

With considerable regret, and because we want to make progress on the Bill, but regard it as an important statement of this country's stance on execution policy, Opposition Members must divide the House. We regret that the Government did not deal with the matter more satisfactorily.

Question put, That the Amendment be made.

The House divided: Ayes 128, Noes 256.

Division No. 387] [8.28 pm
Adams, Allen (Paisley N) Clwyd, Mrs Ann
Allen, Graham Cook, Robin (Livingston)
Archer, Rt Hon Peter Corbett, Robin
Armstrong, Hilary Cryer, Bob
Ashley, Rt Hon Jack Cunliffe, Lawrence
Ashton, Joe Dalyell, Tam
Beckett, Margaret Davies, Ron (Caerphilly)
Bell, Stuart Dixon, Don
Bennett, A. F. (D'nt'n & R'dish) Doran, Frank
Bermingham, Gerald Douglas, Dick
Bidwell, Sydney Dunnachie, Jimmy
Blunkett, David Dunwoody, Hon Mrs Gwyneth
Boateng, Paul Eastham, Ken
Boyes, Roland Fatchett, Derek
Bradley, Keith Fields, Terry (L'pool B G'n)
Bray, Dr Jeremy Flannery, Martin
Brown, Nicholas (Newcastle E) Foster, Derek
Bruce, Malcolm (Gordon) Foulkes, George
Buchan, Norman Fyfe, Maria
Caborn, Richard Galloway, George
Callaghan, Jim George, Bruce
Campbell, Menzies (Fife NE) Godman, Dr Norman A.
Campbell-Savours, D. N. Golding, Mrs Llin
Carlile, Alex (Mont'g) Gordon, Mildred
Clark, Dr David (S Shields) Graham, Thomas
Clarke, Tom (Monklands W) Griffiths, Nigel (Edinburgh S)
Clelland, David Griffiths, Win (Bridgend)
Grocott, Bruce Nellist, Dave
Heffer, Eric S. Oakes, Rt Hon Gordon
Henderson, Doug O'Neill, Martin
Hinchliffe, David Patchett, Terry
Hogg, N. (C'nauld & Kilsyth) Pike, Peter L.
Hood, Jimmy Primarolo, Dawn
Howarth, George (Knowsley N) Quin, Ms Joyce
Howell, Rt Hon D. (S'heath) Randall, Stuart
Howells, Geraint Rees, Rt Hon Merlyn
Hughes, John (Coventry NE) Richardson, Jo
Hughes, Sean (Knowsley S) Roberts, Allan (Bootle)
Hughes, Simon (Southwark) Rogers, Allan
John, Brynmor Rooker, Jeff
Jones, Ieuan (Ynys Môn) Ross, Ernie (Dundee W)
Leadbitter, Ted Short, Clare
Leighton, Ron Skinner, Dennis
Lloyd, Tony (Stretford) Smith, Andrew (Oxford E)
Lofthouse, Geoffrey Smith, C. (Isl'ton & F'bury)
Loyden, Eddie Smith, Rt Hon J. (Monk'ds E)
McAllion, John Spearing, Nigel
McAvoy, Thomas Steinberg, Gerry
Macdonald, Calum A. Taylor, Mrs Ann (Dewsbury)
McFall, John Taylor, Matthew (Truro)
McKelvey, William Turner, Dennis
McLeish, Henry Vaz, Keith
McTaggart, Bob Wall, Pat
McWilliam, John Wallace, James
Madden, Max Wardell, Gareth (Gower)
Mahon, Mrs Alice Wigley, Dafydd
Meale, Alan Williams, Alan W. (Carm'then)
Michael, Alun Wilson, Brian
Michie, Bill (Sheffield Heeley) Winnick, David
Michie, Mrs Ray (Arg'l & Bute) Wise, Mrs Audrey
Millan, Rt Hon Bruce Worthington, Tony
Moonie, Dr Lewis Wray, Jimmy
Morgan, Rhodri
Morley, Elliott Tellers for the Ayes:
Mullin, Chris Mr. Frank Haynes and
Murphy, Paul Mr. Frank Cook.
Alexander, Richard Carttiss, Michael
Allason, Rupert Clark, Hon Alan (Plym'th S'n)
Amess, David Clark, Dr Michael (Rochford)
Arbuthnot, James Clark, Sir W. (Croydon S)
Arnold, Jacques (Gravesham) Colvin, Michael
Arnold, Tom (Hazel Grove) Conway, Derek
Ashby, David Coombs, Anthony (Wyre F'rest)
Aspinwall, Jack Cope, Rt Hon John
Baker, Nicholas (Dorset N) Couchman, James
Baldry, Tony Cran, James
Batiste, Spencer Critchley, Julian
Beggs, Roy Currie, Mrs Edwina
Bendall, Vivian Curry, David
Bennett, Nicholas (Pembroke) Davies, Q. (Stamf'd & Spald'g)
Biffen, Rt Hon John Davis, David (Boothferry)
Biggs-Davison, Sir John Day, Stephen
Blaker, Rt Hon Sir Peter Devlin, Tim
Boswell, Tim Dorrell, Stephen
Bottomley, Peter Douglas-Hamilton, Lord James
Bottomley, Mrs Virginia Dover, Den
Bowden, Gerald (Dulwich) Dunn, Bob
Bowis, John Durant, Tony
Braine, Rt Hon Sir Bernard Dykes, Hugh
Brandon-Bravo, Martin Emery, Sir Peter
Brazier, Julian Evans, David (Welwyn Hatf'd)
Brittan, Rt Hon Leon Evennett, David
Brooke, Rt Hon Peter Fallon, Michael
Brown, Michael (Brigg & Cl't's) Favell, Tony
Browne, John (Winchester) Field, Barry (Isle of Wight)
Bruce, Ian (Dorset South) Fookes, Miss Janet
Buchanan-Smith, Rt Hon Alick Forsyth, Michael (Stirling)
Buck, Sir Antony Forth, Eric
Budgen, Nicholas Franks, Cecil
Burns, Simon Freeman, Roger
Burt, Alistair French, Douglas
Butcher, John Gardiner, George
Butler, Chris Garel-Jones, Tristan
Butterfill, John Gill, Christopher
Carlisle, Kenneth (Lincoln) Gilmour, Rt Hon Sir Ian
Goodson-Wickes, Dr Charles Maxwell-Hyslop, Robin
Gorman, Mrs Teresa Meyer, Sir Anthony
Gow, Ian Miller, Sir Hal
Grant, Sir Anthony (CambsSW) Mills, Iain
Greenway, Harry (Ealing N) Miscampbell, Norman
Greenway, John (Ryedale) Mitchell, Andrew (Gedling)
Griffiths, Sir Eldon (Bury St E') Mitchell, David (Hants NW)
Griffiths, Peter (Portsmouth N) Moate, Roger
Grist, Ian Molyneaux, Rt Hon James
Ground, Patrick Monro, Sir Hector
Grylls, Michael Montgomery, Sir Fergus
Gummer, Rt Hon John Selwyn Moore, Rt Hon John
Hamilton, Hon Archie (Epsom) Morrison, Sir Charles
Hamilton, Neil (Tatton) Moss, Malcolm
Hanley, Jeremy Neale, Gerrard
Hannam, John Nelson, Anthony
Hargreaves, A. (B'ham H'll Gr') Neubert, Michael
Hargreaves, Ken (Hyndburn) Newton, Rt Hon Tony
Harris, David Nicholls, Patrick
Haselhurst, Alan Nicholson, David (Taunton)
Hawkins, Christopher Nicholson, Emma (Devon West)
Hayes, Jerry Onslow, Rt Hon Cranley
Hayward, Robert Oppenheim, Phillip
Heathcoat-Amory, David Page, Richard
Heddle, John Paice, James
Hicks, Mrs Maureen (Wolv' NE) Patnick, Irvine
Hicks, Robert (Cornwall SE) Patten, John (Oxford W)
Hind, Kenneth Pattie, Rt Hon Sir Geoffrey
Hogg, Hon Douglas (Gr'th'm) Pawsey, James
Holt, Richard Peacock, Mrs Elizabeth
Howe, Rt Hon Sir Geoffrey Porter, Barry (Wirral S)
Hughes, Robert G. (Harrow W) Porter, David (Waveney)
Hunt, David (Wirral W) Portillo, Michael
Hunter, Andrew Powell, William (Corby)
Hurd, Rt Hon Douglas Price, Sir David
Irvine, Michael Raffan, Keith
Irving, Charles Redwood, John
Jack, Michael Rhodes James, Robert
Janman, Tim Riddick, Graham
Jones, Gwilym (Cardiff N) Roberts, Wyn (Conwy)
Jones, Robert B (Herts W) Roe, Mrs Marion
Kellett-Bowman, Dame Elaine Rowe, Andrew
Key, Robert Rumbold, Mrs Angela
Kilfedder, James Ryder, Richard
King, Roger (B'ham N'thfield) Sackville, Hon Tom
Kirkhope, Timothy Sayeed, Jonathan
Knapman, Roger Scott, Nicholas
Knight, Greg (Derby North) Shaw, David (Dover)
Knight, Dame Jill (Edgbaston) Shaw, Sir Giles (Pudsey)
Knowles, Michael Shaw, Sir Michael (Scarb')
Knox, David Shephard, Mrs G. (Norfolk SW)
Lamont, Rt Hon Norman Shepherd, Colin (Heretord)
Lang, Ian Shepherd, Richard (Aldridge)
Lawrence, Ivan Shersby, Michael
Leigh, Edward (Gainsbor'gh) Sims, Roger
Lennox-Boyd, Hon Mark Skeet, Sir Trevor
Lightbown, David Smith, Tim (Beaconsfield)
Lilley. Peter Soames, Hon Nicholas
Lloyd, Sir Ian (Havant) Speller, Tony
Lloyd, Peter (Fareham) Spicer, Michael (S Worcs)
Luce, Rt Hon Richard Squire, Robin
McCrindle, Robert Stanley, Rt Hon John
Macfarlane, Sir Neil Steen, Anthony
MacKay, Andrew (E Berkshire) Stern, Michael
Maclean, David Stevens, Lewis
McLoughlin, Patrick Stewart, Andy (Sherwood)
McNair-Wilson, Sir Michael Stokes, Sir John
McNair-Wilson, P. (New Forest) Stradling Thomas, Sir John
Madel, David Sumberg, David
Major, Rt Hon John Summerson, Hugo
Malins, Humfrey Tapsell, Sir Peter
Mans, Keith Taylor, Ian (Esher)
Maples, John Taylor, John M (Solihull)
Marland, Paul Temple-Morris, Peter
Marlow, Tony Thompson, D. (Calder Valley)
Marshall, John (Hendon S) Thompson, Patrick (Norwich N)
Marshall, Michael (Arundel) Thorne, Neil
Martin, David (Portsmouth S) Thornton, Malcolm
Maude, Hon Francis Thurnham, Peter
Mawhinney, Dr Brian Townend, John (Bridlington)
Tracey, Richard Wiggin, Jerry
Walden, George Wilkinson, John
Walker, Bill (T'side North) Wilshire, David
Waller, Gary Wolfson, Mark
Walters, Sir Dennis Wood, Timothy
Wardle, Charles (Bexhill) Woodcock, Mike
Warren, Kenneth Young, Sir George (Acton)
Watts, John
Wheeler, John Tellers for the Noes:
Whitney, Ray Mr. Robert Boscawen and
Widdecombe, Ann Mr. Alan Howarth.

Question accordingly negatived.

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