HC Deb 15 June 1971 vol 819 cc397-404

RIGHT OF APPEAL AGAINST PROHIBITION ON EMBARKATION

Where any person has been prohibited from embarking upon a ship or aircraft by virtue of the provisions of subsection ( ) of section 3 above and where, any person having been so prohibited, leave has been given to such person to embark at a specified place or time or otherwise subject to conditions, such person may appeal to a Judge in Chambers of the High Court in England or in the High Court of Justiciary in Scotland and any part of the proceedings upon such appeal may, with the leave of the judge, be heard in the absence of the aggrieved person and his representatives, and upon such appeal the judge may make such order subject to such conditions as he may consider just.—[Mr. Peter Archer.]

Brought up, and read the First time.

Mr. Speaker

It would be for the convenience of the House to discuss at the same time Amendment No. 22, in Clause 3, page 4, line 33, leave out subsection (7) and insert: (7) Where any immigration officer, constable or other person authorised by the Secretary of State reasonably believes it to be necessary so to do for the purpose of ensuring the safety of any ship or aircraft or the passengers therein or crew thereof he may prohibit any person from embarking thereon and may further prohibit him from embarking upon any other ship or aircraft of any specified class and the Secretary of State may at any time cancel such prohibition or give such person leave to embark either at a specified place and time or otherwise subject to conditions.

Mr. Peter Archer (Rowley Regis and Tipton)

I beg to move, That the Clause be read a Second time.

Hon. and right hon. Members who have compared the Order Paper with the Bill will not be surprised to learn that this Amendment relates to Clause 3(7). The subsection, for some curious reason which has still not been explained, is concerned with two entirely unrelated matters. First, it contains what in Committee the Under-Secretary called the "tit for tat" principle. More accurately, it should be called the "hostage" principle, and Amendment No. 22 seeks to delete this provision.

The principle contained in the former part of the subsection is that where a foreign power restricts the rights of United Kingdom citizens to leave its territory, the Government may prohibit nationals of that country from leaving the United Kingdom. That is not "tit for tat". It entails that citizens who may be innocent of any offence must be visited with the sins of their Government. It is a distasteful principle, and the peoples of the world may establish that Governments are not entitled to use one another's citizens as pawns in an impersonal, soulless game of chess.

If the Government pay us the compliment of insisting that they are merely imitating us, and have no better answer than that for indulging in the old game of tu quoque, in fairness it is true to say that the principle applies already to aliens and that the previous Government in the special circumstances of 1967 restricted Chinese citizens from leaving this country. The Bill seeks to extend the principle to Commonealth citizens, and this may be a suitable opportunity to consider whether it is a principle that is so distasteful that we do not wish to retain it upon the Statute Book.

Even if we accept the principle, the draftsmanship presents curious aspects. First, it applies only to non-patrials. Of course, there may be citizens of an offending country who are none the less patrials under the Bill. That is one of the curiosities of the whole scheme of the Bill. They are free to leave as they please.

11.45 p.m.

But non-patrials are unhappy, indeed, because the Government introduced the Bill expressly to prevent them from entering this country as they please or from staying as long as they please. Yet when they are here the Government want power to tell them that they cannot go away. That is a curious principle. The logic of my hon. and learned Friend the Member for Dulwich (Mr. S. C. Silkin) in pointing this out in Committee was not refuted: rather, it fell on deaf ears.

Secondly, the Government seem to seek power to tell non-patrials that they cannot embark elsewhere than at a port of exit. If they are to be held as hostages, what is the magic about a port of exit? My hon. and learned Friend asked for an explanation of this in Committee, but none came. But the Under-Secretary of State undertook, in col. 712, to take advice on the point. No doubt he has now taken that advice, and the House will be interested to hear his conclusions. This is half of the suggestion. In Amendment No. 22, we are simply seeking to delete that half.

Then, in the same subsection, comes a quite unrelated matter, which gives the Government power to prohibit embarkation on a ship or aircraft in the interests of safety. We were told in Committee that that was all to do with hijacking. Quite sensibly, the Government want power to prevent suspected hijackers from embarking, but again it is enshrined in some curious draftsmanship. Again it applies only to non-patrials. So a passenger may embark on a plane with a ticking parcel and with a sub-machine gun protruding from his pocket: if he produces his certificate of patriality he may be welcomed aboard by the company's prettiest hostess.

If the Government object to hijacking, what has patriality to do with it? Again, my hon. and learned Friend sought an explanation of this in Committee, and again the explanation never came. Amendment No. 22 seeks to redraft this part of the Clause. As drafted, it obviously gives a power much wider than the power to control hijacking. The Under-Secretary undertook to consider this point, and we should be interested to hear what emerged from his consideration.

New Clause 4 seeks to provide that anyone so prohibited may have the right of appeal, and this is the least that we can offer. The Government may very properly prevent him from boarding if they suspect that he is potentially a hijacker. It is right that someone should decide whether he really is, particularly since I understand that hijacking as such is still not a criminal offence, although we may one day bring our criminal law up to date on this.

An appeal in the normal sense does not arise here. It is too late to say that someone should have been permitted to board a plane if the plane has already gone, and we do not complain that the authorities should keep a suspected person on the ground while there is any reasonable doubt about his intentions. The new Clause provides that a judge in those circumstances would be able to make such order as seemed just. That was the most liberal way in which we felt we could draft it. If the Government have any specific objection to that form of words, we are more than prepared to listen to them.

It is right to reiterate that new Clause 4 is concerned only with the latter half of the subsection. It has nothing to do with the hostage provision, nor has it anything to do with the unnecessarily broad powers which the Government are seeking in the subsection. These are matters which the House will have in mind when we reach Amendment No. 22.

New Clause 4 seeks only to provide the elementary safeguard of a right of appeal. If all the consideration which we were promised in Committee has materialised, it may be that it has borne fruit and that the Government will propose some alternative method of dealing with these problems.

Mr. Sharpies

As the hon. and learned Member for Rowley Regis and Tipton (Mr. Peter Archer) has said, we gave some consideration to this matter in Committee, and he will be the first to acknowledge that the restrictions imposed by the Clause are intended to apply in a limited number of cases only. They are intended to apply, first, to a person who may be seeking to endanger an aircraft or a ship and may need to be prevented from embarking for that reason, and, secondly, in the exceptional case where restrictions might have to be put on a non-patrial leaving this country because of restrictions placed upon British citizens overseas.

The Labour Government had to use these powers in this latter connection. Because representatives of the British Mission in Peking were prevented from leaving China, the previous Administration introduced an order under the Aliens legislation preventing members of the Chinese Mission here from leaving this country. Only in exceptional cases will these powers be used. The Labour Government had to use them in that way, and, in the opinion of the House, they were rightly used in those exceptional circumstances.

It is not possible for anyone to say that a similar situation will not arise in future when the lives of British nationals may be in peril in a foreign country. Therefore, I believe that these powers, which would be removed by acceptance of the Amendment, should be retained.

On the hijacking of aircraft, I admit that there is a lacuna in the Bill, insofar as the power to restrict the departure of a person does not apply to a patrial who is here now. This matter has been carefully considered. I do not believe that it would be right to use the Bill to take powers to restrict citizens of this country from leaving at any time. As my hon. Friend the Under-Secretary of State for Foreign and Commonwealth Affairs told the Committee when we were considering this matter, the Department of Trade and Industry is preparing legislation to give effect to the Convention on the Suppression of Unlawful Seizure of Aircraft, signed at The Hague on 16th December, 1970. This legislation will be introduced as soon as parliamentary time is available. This would cover the lacuna in respect of this group of people.

The other main matter referred to by the hon. and learned Gentleman concerned the question of appeal. He did not suggest an appeal in the case of reciprocal restrictions because he wished the power of restriction to be entirely removed in such cases. As for the other form of restriction which might be imposed—where an immigration officer imposed a restriction because of a possible danger to the ship or aircraft—there was no question, when the Wilson Committee considered the question of appeal, of an appeals machinery being introduced.

We have carefully considered whether an appeals machinery should be set up in such cases. We have concluded that it would not be necessary. The number of cases involved will be very small indeed. There is no restriction, other than against embarkation, and if a person feels that he has been unlawfully restrained from embarking on a ship or aircraft, he has the normal right of appeal in the courts.

Mr. S. C. Silkin

Is the legislation which the hon. Gentleman said is projected and which is designed to deal with the case of patrials in this context intended to provide a right of appeal?

Mr. Sharpies

The Convention has been signed and the legislation is in the process of drafting. I cannot, therefore, answer that question.

No evidence was put forward by the Wilson Committee to suggest that any form of appeal was necessary to deal with the very limited number of cases that might arise under this provision. I would not advise the House, therefore, to accept the Opposition proposal.

Mr. J. Enoch Powell (Wolverhampton, South-West)

The hon. and learned Member for Rowley Regis and Tipton (Mr. Peter Archer) reminded the House that an undertaking was given in Committee to consider the precision of the drafting of that part of Clause 3(7) which is intended to refer to hijacking.

Since there is a further stage through which the Measure must pass, I put it to my hon. Friend that it is not satisfactory that so broad an expression as in the interests of safety". should be used when a very narrow set of circumstances is all that is contemplated. I intervene only to ask that this matter be considered from that point of view at a later stage of the Bill.

Mr. S. C. Silkin

The right hon. Member for Wolverhampton, South-West (Mr. Powell) will have noticed that in our proposal we have sought to give effect to the point he made and to take out of the Bill the vagueness which at present is implicit in the expression to which he referred. Instead of simply referring to in the interests of safety we have expressed the point in terms which show what it is clearly intended to mean, and we use the expression ensuring the safety of any ship or aircraft or the passengers therein or crew thereof", and that is, I think, what the right hon. Gentleman has in mind.

I hope that the Minister will at least tell us before we decide what to do about the Amendment that some such wording as that will be used to make it clear exactly what is intended by the Clause.

Mr. Sharples

I assure my right hon. Friend the Member for Wolverhampton, South-West (Mr. Powell) that we considered this point carefully at the conclusion of the Committee stage. The restrictions are, of course, to be introduced by Order, and it is considered that it is wise to give the maximum discretion in the drafting of Orders of this kind. I remind the House that Clause 3 later points out that Any Order in Council under this subjection shall be subject to annulment in pursuance of a resolution of either House of Parliament". This is not a power taken lightly, but it would be difficult if there were restrictions upon the drafting of the Order.

We have considered very carefully the point raised by my right hon. Friend in Committee and have come to the conclusion that it would be right to stick to the Clause as worded at present.

12 midnight

Mr. Peter Archer

When I introduced the Amendment I paid the hon. Gentleman the compliment of supposing that he would not indulge in the tu quoque game. As I said then, it is true that we used the power in 1967 in relation to Chinese citizens. That was a very unusual situation. It happened at a time when the Chinese Government were not susceptible to normal diplomatic represent- tations, and it is the kind of situation which is unlikely normally to be repeated. If it is, it is right that so unusual a situation should be considered by the House. We are no more enamoured of this principle as part of our legislation after the hon. Gentleman spoke than we were before.

On hijacking we appreciate the point made by the hon. Gentleman that it is odd to use an immigration Bill to deal with precautions against it. In that case, why use it? Why not leave it to the legislation which is projected? If someone is suspected of being an intending hijacker, what does it matter whether he is pa trial or not? We have still not had an explanation of that point, nor are we satisfied with the explanation of the very curiously worded power which is taken to deal with a point relating specifically to hijacking. As the right hon. Member for Wolverhampton, South-West (Mr. Powell) said, it is a very wide power. Looking at the Bill as originally drafted, none of us realised that it was intended to relate only to hijacking. We were told that for the first time in Committee, and we are still very much less than happy about it.

On the appeal machinery, there is a legal redress for those who are unlawfully prevented from embarking on a ship or aircraft. But that is not what we are dealing with. We are dealing with those who have been lawfully prevented from embarking, because the Bill gives the Government power to prevent them from embarking. It is that power which is in question and for which still no appeal is provided. We are no happier about this than we were at the outset of the discussion. I suspect that there are many unhappy non-patrials who may be rendered more unhappy about it in the course of time. We are not convinced by what the hon. Gentleman said, and we do not propose to withdraw the Amendment.

Question put and negatived.

Mr. Maudling

I beg to move, That further consideration of the Bill, as amended, be adjourned.

Question put and agreed to.

Bill, as amended (in the Standing Committee), to be further considered this day.