At today’s delegation which I took together with David Davies and Chris Huhne to see Alan Johnson about the McKinnon extradition issue, the Home Secretary for the first time revealed his thinking about his refusal, in the statements he’s made so far, to stop the extradition going ahead. I made clear he had the power to intervene, and he confirmed – contrary to some reports – that it would not be illegal for him to block the extradition. But he made clear that in his view, after a string of court decisions at all levels over the last 7 years, it would be very difficult for him to do so since the measure of discretion for his intervention was, he said, extremely narrow. Under Article 3 of the Human Rights Convention he insisted he could only do so if there was evidence that the defendant could be subject to capital punishment, or that he might be transferred to a third country, or that he might be tried on a different charge from that being alleged. Obviously the latter two do not apply in this case, but I pointed out that on the first point he was under a duty to intervene if there was a real risk, not only of execution, but of torture or inhuman and degrading treatment, and the Home Office lawyers agreed. There is indeed a real risk that Gary McKinnon could be subject to inhuman or degrading treatment when initially the Americans threatened him with a lengthy sentence in harsh conditions if he fought extradition, as opposed to a much shorter sentence in more pleasant conditions is he co-operated with them.
It was also quite clear that Alan Johnson was concerned about the precedent that would be set in regard to other current cases, notably that of the alleged terrorist Abu Hamza, if he were to intervene in the McKinnon case. We pointed out that this showed how poorly drafted the Extradition Act 2003 had been when not only was it gave rights to the us that were denied to the UK, but it bizarrely applied the same rules to a misguided but innocuous young man as to a serious alleged terrorist. A more common-sense and proportional approach was needed. The Act also omitted, what the Dutch and other governments had insisted on in their case, that any citizen extradited to the US and found guilty should then be immediately repatriated to serve the sentence in his or her own country.
We also asked the Home Secretary to consider intervening behind the scenes with his US counterparts in the US DOJ and Homeland Security to try to find a practical and sensible means to resolve the public outrage which had been unleashed in this country. Alan Johnson declined to do so at this time, but there is still a long way to go over this case when it could be appealed further in the Supreme Court and under the ECHR, and these may still give him cause to pursue this course in future. Certainly neither I nor David Davis nor Chris Huhne intend to push this matter further, and our next move is to seek a meeting with the new US Ambassador.