HC Deb 19 July 1957 vol 573 cc1605-11

Motion made, and Question proposed, That the Clause stand part of the Bill.

3.7 p.m.

Sir Frank Soskice (Newport)

This is the cardinal Clause, and it is appropriate that I should make one or two short comments upon it. It has the effect of requiring the British judiciary to undertake a task of great difficulty and extreme importance, a task which will go towards building up the international co-operation that we must have if we are to cement relationships among places all over the world.

The Clause requires them to interpret language of the greatest difficulty in Article 50 of the first Convention and the equivalent articles of the succeeding Conventions. In drafting our own statutes we are accustomed to choose, through the help and skill of the Parliamentary draftsmen, language which, so far as this is possible to achieve, expresses with extreme nicety and accuracy the legal conceptions which it is desired to embody in our statutes. The language which judges will be called upon to interpret under Clause 1 is of necessity somewhat vaguer, wider and more indefinite in scope, and is used in the Articles of the various Conventions which are in the Schedules to the Bill.

That task may impose considerable difficulty upon the interpretation. For example, judges will be called upon to decide the meaning of expressions such as "extensive destruction," and "appropriation of property not justified by military necessity." By what canons they will seek to interpret the just effect of the words "not justified by military necessity" it is not easy to foresee. No doubt, should these Clauses unhappily be called into use, a body of case law may be built up, perhaps over decades and even over centuries which will provide some meaning to these words of very indefinite import.

I simply rise to point to the importance of the Clause and the very considerable difficulty which its interpretation will involve, but I should not wish to be taken as in any way seeking to deter the Government from asking the Committee to approve this Clause. The Bill implements undertakings which Her Majesty's Government have entered into, undertakings of great importance and solemnity by which this country has bound itself in international relationships. It seeks to make the necessary changes in our domestic law to enable us to give effect to those international obligations we have undertaken.

I think it right to point that out. The question being, "That the Clause stand part of the Bill," I do not ask the Minister in any sense to alter the Clause. Having studied it very carefully, I do not see how it can be altered. It seems to achieve the purpose for which it is designed.

Mr. Elwyn Jones (West Ham, South)

Like my right hon. and learned Friend the Member for Newport (Sir F. Soskice), I do not seek to delay proceedings on the Bill. I have been complaining for the past eight years about the failure of the British Government to ratify the Conventions and it would indeed be a deplorable thing if lawyers' talk were to stand in the way now, but there are two matters on which I should be grateful to have the observations of the hon. and learned Gentleman who is to reply to the debate.

The first is as to the nature of the penalties provided for in Clause 1. There are penalties of two kinds in regard to the graver class of offences. Persons guilty shall be sentenced to imprisonment for life; and in the case of any other such grave breach … shall be liable to imprisonment for a term not exceeding fourteen years. Do those penalties presage the abandonment by the Government of the death penalty? They are very grave crimes, the crimes of wilful killing, crimes of torture and crimes of human experiments. Does the fact that this Bill contemplates a sentence of imprisonment for life as the maximum penalty mean the abandonment of capital punishment? I am not sure that it does, because I observe that in Clause 4 of the Bill there is a reference to the death penalty in these terms: Where a protected prisoner of war or a protected internee has been sentenced to death … What are the crimes which carry the death penalty, as it would seem from that Clause there appear to be such crimes? Perhaps the Joint Under-Secretary can give the Committee some guidance in regard to that. As an opponent of the death penalty, I must not be taken as agitating for its introduction in Clause 1, but, putting it at its lowest, I am curious to know in what circumstances the death penalty is to be retained. If it is to be retained at all, I should have thought it would be fitting to retain it for the horrible crimes with which Clause 1 deals.

The second matter on which I should like some enlightenment is whether the Under-Secretary is satisfied that Clause 1 is adequate to carry out our obligations under the Conventions. The provisions of Clause 1 are very limited. It does not pretend to deal with every infringement of the Conventions. It does not pretend to cover all the offences described in the Conventions. There is, for instance, Article 33 of the Convention set out in the Fourth Schedule relative to the protection of civilian persons in time of war, which I have read with some interest. It is in these terms: No protected person may be punished for an offence he or she has not personally committed. That is a splendid statement. There follows: Collective penalties … are prohibited". 3.15 p.m.

It would seem that the events unhappily taking place in Cyprus today are covered by these Conventions. According to Article 3 of the Civilian Convention, the Convention applies In the case of armed conflict not of an international character occurring in the territory of one of the High Contracting Parties … It therefore seems that it applies to the conditions unhappily prevailing in Cyprus.

Does Clause 1 provide for the abandonment of collective penalties, particularly in the context of Cyprus? If it does, the consequences will be somewhat remarkable. If my memory does not fail me, have not the Government themselves been imposing collective penalties in Cyprus? I seem to recollect a fine of £35,000 imposed upon the citizens of Limasol and a collective fine imposed upon the citizens of Famagusta. Where do we stand in relation to these matters?

It seems that as far as the duty to enact legislation is concerned, what the Government have already done is, perhaps, adequate. Article 146 seems to be the relevant Article of the Fourth Convention, providing that, The High Contracting Parties undertake to enact any legislation necessary to provide effective penal sanctions for persons committing … any of the grave breaches referred to in the Convention. I therefore take it that the Government have fulfilled their responsibility in that respect by the terms of Clause 1. What I wonder is, what may be the extent of the duty of the contracting parties, including the Government, under the third paragraph of Article 146, which states: Each High Contracting Party shall take measures necessary for the suppression of all acts contrary to the provisions of the present Convention other than the grave breaches defined in the following Article. Is the Joint Under-Secretary of State satisfied that the law of England as it is now, is adequate to enable the Government to take all the necessary measures for the suppression of all acts contrary to the Civilian Convention and, indeed, all the other conventions?

Subject to a satisfactory answer to those questions, and especially bearing in mind the eminent legal authority which has been expressed in favour of the Clause in another place, I am satisfied that Clause I probably fulfils our obligations.

The Joint Under-Secretary of State for the Home Department (Mr. J. E. S. Simon)

I am grateful to the right hon. and learned Member for Newport (Sir F. Soskice) for the way in which he received the Clause and the Bill. I understand very well the circumstances which have compelled him to leave, and which he very courteously explained to me.

The right hon. and learned Member is quite right when he says that the Bill creates criminal offences which are not drafted with the precision with which we have heretofore expected criminal offences to be drawn. Certainly, if a Parliamentary draftsman had undertaken the drawing of the Conventions, they would be in very different terms from those in which they stand at the moment. On the other hand, it is inherent in an international Convention that a number of legal systems and of approaches to law have to be reconciled.

By signing the Conventions, we undertook that obligation and it is incumbent on us to translate as best we may into our own legal systems the obligations which they impose. It was thought that the convenient way of doing so was not to attempt to translate their language into our forensic and statutory language, but to annex the Conventions to a Bill, in pursuance of our obligations under the Article to which the hon. and learned Member for West Ham, South (Mr. Elwyn Jones) referred—Article 146 of the Fourth Schedule—and similar Articles in other Conventions, and to enforce them by Clause 1 of the Bill.

What that does is to say that breaches of the other Articles which involve wilful killing, serious ill-treatment or various other kinds of misconduct in relation to the persons protected by the Conventions, and, in the case of protected property— extensive destruction and appropriation … not justified by military necessity and carried out unlawfully and wantonly, shall be criminal offences under our code. The language may not be easy of construction, but the hon. and learned Gentleman, from his own experience of the War Crimes Tribunals, will bear me out that it is such language as that with which they had to cope, and I do not myself think that the task that is laid on our judges by this Bill is any more onerous than rested on the various war tribunals.

Mr. Elwyn Jones

My right hon. and learned Friend said that a body of case law would develop in the future by way of interpretation of these words, but a body of case law already exists.

Mr. Simon

I am very much obliged to the hon. and learned Gentleman; I entirely agree with him.

The hon. and learned Gentleman asked two specific questions. The first related to the nature of the penalties where in the case of a grave breach of the Conventions involving a wilful killing, the penalty is life imprisonment, according to the Conventions, and, in the case of any other grave breach, a term of imprisonment not exceeding fourteen years. The hon. and learned Gentleman asked: does this presage the abandonment of the death penalty? Is it consistent with the retention of the death penalty? Quite rightly, he referred to Clause 4, where there is a reference to a protected internee or prisoner of war who has been sentenced to death.

The reason for it is that this code of law established by the Conventions and by this Bill overlaps our ordinary criminal code. By this Bill, we have translated into our own domestic code the obligations imposed by the Conventions, but that does not prevent our own domestic code from continuing to function. The sort of case which Clause 4 envisages, if it is not out of order to refer to it, and I think it does come in here, is, for example, where a protected prisoner of war murders a fellow prisoner. I do not doubt that the hon. and learned Gentleman may have had to deal with precisely such a problem during or shortly after the war.

In that sort of case, quite clearly, one would proceed under our own domestic code. The person would be indicted for murder, and if it were a capital murder within the terms of the Homicide Act he would be sentenced to death. On the other hand, if the crime he had committed was a crime which was a breach of any of the Articles of the Conventions, and in such circumstances it had amounted to a grave breach, then equally he could be proceeded against under Clause 1 of the Bill.

There may, therefore, be quite a large area of overlap there. Quite obviously, torturing a man in this country without lawful excuse—indeed, torturing him at all—would be an offence under our own criminal law. I think that that is the explanation for the reference in Clause 4 to the sentence of death, whereas the maximum penalty under Clause 1 is imprisonment for life.

The hon. and learned Gentleman then asked if Clause 1 is adequate. I ought to point out that the Government which signed the Conventions signed them subject to one minor reservation, into which I do not think it is necessary to go. We entirely agree with that. Subject to that, the Government are satisfied that the terms of the Bill enable us to fulfil all the obligations under the Conventions and thus enable us to ratify them.

By far the biggest majority of the Articles can be implemented administratively. All that this Bill does is to make such legislative changes as are necessary to enable us to ratify the Conventions, and, in particular, Clause 1, which is the implementation of Article 146, set out in the Fourth Schedule, and similar Articles in the others.

The hon. and learned Gentleman asked particularly about collective punishments and Cyprus. The answer is that the Fourth Convention applies only to war. Even if it were right that there is civil war in Cyprus—which I do not think is correct in the sight of international law—only Article 3 of the Fourth Convention would apply, and not Article 33 and the others to which he referred. I hope that with that explanation the Committee will pass Clause 1.

Question put and agreed to.

Clause ordered to stand part of the Bill.

Clause 2 ordered to stand part of the Bill.