HC Deb 21 July 2004 vol 424 cc127-34WH

4 pm

Mr. Alistair Carmichael (Orkney and Shetland) (LD)

Thank you, Dame Marion. You have a distinguished career as a Select Committee Chairman, but I have not before had the pleasure of serving under your chairmanship in Westminster Hall.

I am pleased that the Under-Secretary of State for Foreign and Commonwealth Affairs, the hon. Member for Sunderland, South (Mr. Mullin), is in his place. He has a distinguished past as a campaigner on several causes: my researchers unearthed an early-day motion from 1988 in support of Kenny Richey—I shall refer to his case later—on which the Minister's was the first name to appear. The Minister is now above such things as early-day motions, but it is reassuring to those of us who have not yet ascended to such dizzy heights, and may never do so, that someone of the hon. Gentleman's convictions has managed to get where he is.

The debate should be an opportunity to discuss in broad and general terms the Government's policy and practice in relation to representations made to foreign Governments on behalf of United Kingdom citizens facing the death penalty abroad. My interest in the subject was initially engaged as a result of my involvement in the campaign to save Kenny Richey, a fellow Scot, who is currently on death row in Ohio. In February, courtesy of Amnesty International—the appropriate entries have been made in the Register of Members' Interests—I visited Mr. Richey and met representatives of the consular office in Chicago, who were helpful and supportive. I place on record my gratitude, and that of Amnesty International's representatives, for the assistance that the consular office gave, at the time and subsequently, to Mr. Richey.

Before I went to Ohio, I was instinctively opposed to the death penalty, as many who would call themselves liberals—with a small "1"—are, but without getting too excited about it. I came away feeling very differently: if I am an anti-death penalty zealot now, it is as a result of what I saw and experienced in Ohio, and I make no apology for that. Capital punishment is inhumane and dehumanising for all concerned with it. Even if we in this country tolerate it in other countries, it diminishes us all.

I give credit where it is due and acknowledge that the Government have made significant progress in relation to death penalty cases involving British citizens. It is proper that we should contrast it with the record of their predecessor. In 1995, the then Prime Minister, John Major, flatly rejected appeals to intervene in the case of Nicholas Ingram, who was sentenced to death in Georgia. Clive Stafford-Smith, a lawyer who has substantial involvement in death penalty cases, said subsequently that he believed that had the British Government intervened in that case, Nicholas Ingram would still be alive. That illustrates graphically how important it is for the Government to get the policy right. "Life and death" is a term that is bandied around pretty glibly in this place, but this is one of the few issues we have to deal with whose outcome genuinely is a matter of life and death.

I welcome the fact that in relation to the two British nationals currently on death row in the United States, Government representatives have been increasingly proactive in the past six months. Kenny Richey and Linda Carty have had visits from consular representatives, which contrasts most favourably with the consular support that was made available in the cases of Jackie Elliott and Tracy Housel. I hope that the increased level of consular activity is indicative of a more proactive Government policy. It is as appropriate as it is welcome. The Government have a policy of opposition to the death penalty. We do not extradite people to countries where they might suffer. The level of consular support is entirely appropriate and is a much more practical and direct demonstration of the Government's wider policy.

The Government have intervened to improve the medical treatment that Kenny Richey has received and I hope that consular pressure will be maintained to ensure that promised improvements are delivered. A system that keeps inmates locked in their cells for 23 hours out of every 24 will never be healthy. After 17 years on death row, Kenny Richey's health is suffering. He suffers from diabetes and sleep apnoea. When I visited him, he was using a home-made false tooth that he had fashioned from a plastic teaspoon. The health care offered by the Ohio state authorities to Kenny Richey is an affront to humanity. We would not be slow to object if it were a practice in a developing country and we should not be slow to object to it being practised by our friends in the United States.

While I acknowledge that great strides have been made in the Government's approach, some significant improvements could still be made. That was brought home to me during my discussions with organisations such as Reprieve and Amnesty International about the Kenny Richey case. In the course of my involvement with the Kenny Richey campaign, I have noticed that certain Foreign Office phrases tend to be repeated fairly frequently. It is often stated that the United Kingdom is against the death penalty in all circumstances and will make representations on behalf of British nationals facing the death penalty at whatever stage and level is considered appropriate. The words "considered appropriate" are perhaps the key to unlocking any differences that we may have.

I hope that the Government will consider in more detail what they believe to be the appropriate stage and level at which to become involved in death penalty cases. Obviously, each case stands on its own facts and circumstances and each case is different, but I hope that the Government will take an overarching approach. They have a policy on clemency and involvement in clemency pleas. I am not sure whether that is a matter of record but, if not, I should be interested to know whether the Minister will undertake to publish it.

The people with whom I deal who have been involved in death row cases are consistent about the Government's involvement in one respect. The earlier the British Government's intervention, the better and more effective it will be. The general thrust of what we have heard from the Government in the past is that they are reluctant to become involved in an evidentiary legal process of another country. In the first instance, we can understand that that is a perfectly legitimate worry, but when we are dealing with subsequent and appellate stages the validity of that objection somewhat diminishes. There is a different case to be made for involvement at the later and appellate stages as opposed to when a court is hearing evidence in the first instance when matters of reliability and credibility are at stake.

Human rights campaigners mainly accept that the Government are right not to become involved in the early stages. However, other avenues are open, and one that I have recently been involved with is the submission of amicus curiae briefs. They enable the Government to make it clear to the court that we are opposed to the use of the death penalty. The views of the United Kingdom Government are listened to and respected abroad. We could and should do more to take full advantage of that, and I hope that the Minister will explain the reticence that is sometimes apparent when an opportunity presents itself to register our opposition to and concerns about the death penalty in this way with different courts. I am aware that the Government filed an amicus brief in the case of Krishna Maharaj, but why is that the only case in respect of which they have done so? What criteria do the Government apply when deciding whether to file an amicus brief? Why do the Government never comment on the disquiet they—or, indeed, members of the British public—have about particular judgments? Reiterating our opposition to the death penalty in the abstract is one thing, but the Government have an obligation to draw attention to an unsafe conviction where that is suspected.

As well as getting involved at an early stage, it is vital that the Government's consular representatives act in the most effective way. There is a need to build relations with the correct people as soon as possible; that will depend on who in the state can grant clemency—the governor or the board of pardons and paroles, for example.

I turn briefly to people who hold dual nationality. Tracy Housel and Jackie Elliott were both dual nationals. Kenny Richey is a dual British-American national. There is some concern that the Government are more restrained in cases involving dual nationals. In February, the Prime Minister wrote to me in relation to Kenny Richey that under international law we have no right to demand consular access to dual nationals in the country of their other nationality". That is undoubtedly the case, but can the Minister confirm that dual British nationals will receive the same assistance from our Government as anybody else who has British nationality, and will he accept that a dual British national is as British as anyone else, and as such deserves the same representation?

Capital cases are notoriously protracted. Kenny Richey has been on death row for 17 years. Not only can they be long drawn-out processes; they are also incredibly unpredictable. Decisions can be made in just a few days, or they can take a year. Therefore, can the Minister guarantee that the Foreign Office is always vigilant so that it can act quickly when decisions are made? What monitoring processes are in place? I was pleased to see in a letter from Baroness Symons dated 21 June 2004 that the Foreign Office has drawn up a comprehensive lobbying strategy, taking into account the possible outcomes of Mr Richey's appeal". Will that now be common practice, and does that strategy include the direct intervention of the Prime Minister, should it be necessary? It will surprise no one that I have reservations about the judgment and character of the Prime Minister. However, the fact remains that in the United States in particular he is held in very high regard, and I have no doubt that he would be listened to if he were to make it his practice to lift the phone to speak to a state governor, or whoever else is appropriate, in order to ask for clemency, or to draw attention to any doubts about the safety of a conviction or to make any other representation. I have no doubt that that would be a telling intervention, far beyond anything that the Minister or I would ever be able to achieve.

As cases involving British citizens reach the end of their legal channels and clemency becomes the only possibility, the Government should be prepared to become vocal and visible in defence of British citizens. It is important that consular representatives be present at court hearings and that they are known to be present. The United States authorities, in particular, should be aware that our Government are monitoring cases extremely closely and have an interest in their outcome.

I shall consider briefly the way in which the Foreign Office works with those representing British people on death row. Clearly, the Government's first priority should be to work with the legal representatives of the citizen in question, especially in the country where they face execution. Surely, however, that co-operation need not be exclusive, but can be extended to those representing the inmates in this country.

Such cases inevitably attract press attention and other media involvement, and there is a role for organisations such as Amnesty and Reprieve. They have a wealth of experience and knowledge on which the Government could draw. What steps will the Government take to work constructively with such organisations and to see them as an asset, rather than a threat? I hope that the Government accept that it is in the best interests of British citizens facing the threat of execution that they should work constructively with such organisations and defendants' legal representatives in this country. Is the Minister content that such relationships exist between those organisations and the Foreign Office?

I am anxious to allow the Minister as much time as possible to reply.

4.16 pm
The Parliamentary Under-Secretary of State for Foreign and Commonwealth Affairs (Mr. Chris Mullin)

The hon. Member for Orkney and Shetland (Mr. Carmichael) has raised an important issue, in which, as he kindly acknowledged, I have taken a personal interest over the years. He raised the form of words that we use, and funnily enough the first sentence of my brief says that the UK opposes the death penalty in all circumstances. We consider it a cruel and inhuman punishment, and no credible academic study has demonstrated any deterrent effect. Also, as we have learned over the years, this country has executed a number of innocent people. I recall that, of the 18 people convicted in connection with terrorist offences in the mid-1970s, all of whom turned out to be innocent and in whose release I played a part, 10 would have hanged had we had the death penalty at the time. As Kofi Annan has said:

The forfeiture of life is too absolute, too irreversible, for one human being to inflict it on another, even when backed by legal process. The UK removed the death penalty from its statute books in 1998, although it had not been carried out here for many years. The UK has also ratified protocol 13 of the European convention on human rights, which prevents use of the death penalty in all circumstances, including times of war. The UK is an advocate of worldwide abolition of the death penalty. Indeed, promoting its universal abolition has become one of the most important elements of our human rights policy.

The hon. Gentleman asked that we consider in particular the death penalty as it affects British nationals. I shall outline the general issues first and turn to the case of Kenny Richey later. As my right hon. Friend the Member for Cunninghame, North (Mr. Wilson) announced to the House on 27 February 2001, the Government's policy is to make representations at whatever stage and level is judged appropriate from the moment that imposition of the death penalty on a British national becomes a possibility. That change reflects the fact that, in certain cases, the previous policy of waiting until all legal avenues have been exhausted was perceived as coming into play too late to have an impact. That was especially the case in the United States, where, as we know, the legal process continues up to the person reaching the door of the death chamber. Our policy extends to all categories of British national, including dual nationals in the country of their second nationality—people to whom we are not automatically entitled to provide consular assistance.

Seventy-eight countries retain the death penalty. Our lobbying efforts on behalf of individual British nationals in any of those countries are in addition to the more general lobbying that the Government regularly undertake to abolish capital punishment. Although international law does not prohibit the death penalty per se, it imposes certain limitations on its use. For example, it should not be imposed on juvenile offenders, and all those sentenced to death should have the right to seek commutation of the sentence. I assure the hon. Gentleman that if the death penalty were imposed on a British national in violation of those limitations, we would be active in raising those issues at an early stage. If cases do not raise issues of international law, our lobbying focuses on our abolitionist position.

I have been asked when it is appropriate to make representations. The approach depends on the individual case and the country concerned. The timings and nature of representations are determined by when and how they would be most effective, and we take great care not to do anything that would be counterproductive or prejudice the outcome of legal proceedings. In the US, for example, discretion on whether to seek the death penalty lies with the prosecution. We therefore seek to engage with the prosecution at the earliest possible stage and persuade it not to seek the death penalty in the first place.

In other countries, such as the Philippines, the death penalty is mandatory for certain crimes and the judge has no option but to impose a death sentence. Our representations may focus on the possibility of clemency or commutation of the sentence, once all legal avenues have been exhausted. In all cases, we ensure that our representations are appropriate and that we are not doing something that would be better dealt with by the individual's legal representatives.

We are aware of 11 British nationals currently on death row overseas. A further six face charges that may attract the death penalty. In the last year alone, the Government made a number of representations on behalf of British nationals facing the death penalty. In the United States, for example, the British consul general in Houston wrote to the district attorney supporting a request from a British national's legal team for additional time to prepare a repeal case. In Nigeria, the British high commission has made representations to the attorney general and the state governor of Lagos about a British national sentenced to death for murder. The governor in that case has the power to grant clemency once all appeals have been exhausted. In Malaysia, the Foreign Secretary and the British high commissioner made representations to various members of the Malaysian Government requesting that they commute the death sentence for a British national convicted of drug offences. In all cases, we keep in close touch with the lawyers of the national concerned and our interventions are made in consultation with them.

We have developed other ways to help. First, in the Foreign Office consular directorate, the department responsible for assisting British nationals in distress overseas, we have created the post of human rights adviser, and we have seconded a specialist with a background in international human rights law to the FCO. The adviser takes the lead on all death penalty cases involving British nationals and seeks to ensure that we do everything that we appropriately can to prevent the death penalty from being sought or carried out.

Secondly, in 2002 the Foreign Office established a pro bono lawyers panel. The panel brings together some 60 UK solicitors and barristers who are experts in human rights and/or criminal law, and who are willing to work for free on behalf of British nationals facing trial proceedings overseas where there are human rights concerns, and that includes British nationals facing the death penalty. Obviously, those lawyers cannot themselves represent their clients in court, but they can operate effectively in an advisory capacity, working alongside a local lawyer. We have, for example, appointed a member of the panel to assist the British national sentenced to death in Nigeria.

Mr. Carmichael

While I welcome what the Minister says about local representatives in the country concerned making representations, they are presumably the same people who will be making representations on behalf of British interests in relation to a whole range of matters. If the representation were to come directly from Government in London, it might have a more substantial impact.

Mr. Mullin

I was talking about pro bono lawyers helping the local lawyer, but I also mentioned a case in Malaysia in which the Foreign Secretary and the high commissioner made representations. That sometimes happens, when we judge it appropriate.

We also consider what role the EU might play in helping to prevent a death sentence from being carried out on a British national. The EU is active in lobbying for worldwide abolition of the death penalty, and we work with it.

I welcome this opportunity to set out what we have done for Kenny Richey to date, and what we might do further, depending on the outcome of his appeal. It is worth noting that he became eligible for British nationality only in May last year, owing to an amendment to the Nationality, Immigration and Asylum Act 2002. By that time, he had already been on death row for 16 years as an American national. Mr. Richey is now a dual British-US national and, as the hon. Gentleman said, British consular staff have been successful in requesting the right to see him. Mr. Richey is now able to raise his welfare concerns with us, which we follow up on his behalf.

Members of the British consulate in Chicago keep in regular contact with Mr. Richey's trial lawyers, and co-ordinate with them any representations made on his behalf. They are from a highly respected firm, and we have every reason to believe that they are professional and competent in their handling of the case. The British consul general recently raised our concern and interest in Mr. Richey's case with the Governor of Ohio, Bob Taft, and informed him that if Mr. Richey's appeal for a retrial is successful, we will lobby him further on Mr. Richey's behalf. Under the Ohio judicial system, the governor is empowered to grant clemency in death penalty cases once all proceedings have been exhausted. He has said that he will be open to further representations.

The hon. Gentleman asked about amicus curiae briefs; we are carefully considering the recent request for the Government to submit one in Mr. Richey's case, and we are consulting his trial lawyers about that. The hon. Gentleman also asked about the Government's criteria for deciding whether to submit such a brief. We take into account factors such as whether our intervention would assist and the nature of the legal issues involved. The hon. Gentleman asked whether the Prime Minister would consider intervening personally. We will consider that at the appropriate time, but that is still some way off.

We recognise the important role of non-governmental organisations in promoting worldwide abolition of the death penalty and the campaigns that they run on behalf of individuals facing the death sentence. Their efforts are often instrumental in highlighting irregularities, particularly in those cases that may, in turn, feed into Government or EU co-ordinated representations. We value and respect the work of NGOs and are keen to work with them to co-ordinate efforts wherever possible. However, it is important to note that NGOs and Governments will take different, but often complementary, routes to achieve the same aims.

In conclusion, I reiterate to the hon. Gentleman that the Government are committed to working towards worldwide abolition of the death penalty and will do all that they can to help any British national, including Mr. Richey, who faces the death penalty.

Question put and agreed to.

Adjourned accordingly at twenty-eight minutes past Four o'clock.