HC Deb 25 June 1959 vol 607 cc1546-56

Motion made, and Question proposed, That this House do now adjourn.—[Mr. Legh.]

10.54 p.m.

Mr. Elwyn Jones (West Ham, South)

The gulf between dehorned calves and human rights may seem very considerable, but I make no apology for raising the latter subject even at this late hour.

In the course of the last year or so I have directed a number of Questions to the Foreign Secretary about the Convention on Human Rights, the Court and Commission of Human Rights. In view of what I have deemed to be the unsatisfactory nature of the replies—to use a well-worn but, in this case, appropriate Parliamentary expression—I am raising the subject tonight.

One of the alarming features of life in this century has been the ease with which, overnight, apparently civilised Governments not only in Asia but in Europe have deprived human beings in their own countries and others of fundamental freedom, liberty and life itself. It was for this reason that, after the last war, the Governments of the nations thought it necessary to reaffirm in the Charter of the United Nations faith in fundamental human rights, in the dignity and worth of the human person, in the equal rights of men and women of all nations, large and small". Similar ideas were expressed in the North Atlantic Treaty of 1949, to which this Government subscribed. Then came the Statute of the Council of Europe, which requires in terms, in Article 3. that every member must accept the principles of the rule of law and the enjoyment by all persons within its jurisdiction of human rights and fundamental freedoms. The Convention on Human Rights and its protocol go into very great detail and define precisely the rights which the members of the Council have undertaken to protect.

As a result of these and other developments in international law, the individual human person now everywhere has acquired a new status and stature, whether he is a man on the Clapham omnibus, a detainee in Nyasaland, a prisoner in the Hola Camp, a political prisoner in Spain or a political prisoner in Hungary. To use the eloquent phrase of Sir Hersch Lauterpacht, the distinguished British member of the International Court of Justice: The individual has been transformed from an object of international compassion into a subject of international right. Not only has the individual international rights now under international law. The Charter and Judgment of Nuremberg established that the individual has international duties. Twelve men were hanged to teach the world that lesson. The present Lord Chancellor played a distinguished part in the endeavour to develop the conception of crimes against humanity, the idea that there are fundamental human rights recognised by international law, and that the individual is now a subject of inter-national law.

Unfortunately, these hopeful developments seem to have passed the Foreign Office by. In March of this year. I asked the Foreign Secretary what consideration has been given by Her Majesty's Government to making a declaration recognising the competence of the European Commission on Human Rights to entertain petitions from individuals. The reply of the Parliamentary Secretary was: Her Majesty's Government have not made the optional declaration provided for in Article 25 of the European Human Rights Convention concerning the competence of the European Human Rights Commission to receive individual petitions. As my right hon. and learned Friend said on 29th July, 1957: The position which Her Majesty's Government have continuously taken up is that they do not recognise the right of individual petition, because they take the view that States are the proper subject of international law and if individuals are given rights under international treaties effect should be given to those rights through the national law of the States concerned."—[OFFICIAL REPORT, 25th March, 1959; Vol. 602, c 124–5.] I submit that that is both bad law and bad politics. If the Government really believe that, why did they take the trouble to ratify the Convention on Human Rights? Was their ratification never meant to be more than a hollow gesture? The whole object of the Convention is to protect the rights of the individual citizen. If it should happen that those rights are infringed, it will probably be done by his own Government. How can that Government be his champion when it is that Government which may be the offender?

It has been said that one cannot be both judge and prosecutor, and one certainly cannot be both accused and accuser. It is, of course, theoretically possible under the arrangements of the Council of Europe that another Government can take up the individual's complaint, as the Greek Government did in respect of certain Cypriots, but few Governments would be willing to undertake so unpleasant a task which might involve running into serious trouble with an Ally.

For that reason, the Assembly of the Council of Europe in 1953, when it welcomed the entry into force of the Convention on Human Rights, urged on Governments to accept the right of individual petition. It pointed out that an individual whose rights were denied should be able: … to submit his complaint to an international organ direct without having to seek the support of a Government whose intervention would have the effect of transforming the complaint of an individual into a dispute between States. By July, 1955, six States had accepted the force of that argument—Sweden, Ireland, Denmark, Iceland, the Federal Republic of Germany and Belgium. Norway followed, and I think there have been some others since. Why have not the British Government followed suit?

The Lord Chancellor, Lord Kilmuir, when he was a member of the Consultative Assembly and Chairman of its Committee on Legal and Administrative Questions, said this on the subject: I come to perhaps the most troublesome of our problems, the question of the right of inidividuals to petition the Commission…. There are obvious dangers in leaving it to a State itself to decide whether or not it will be cited by an individual or group who complain of an infringement of human rights… There are certain rights which even in time of war or national emergency the Committee of Ministers do not suggest should be abrogated. They are the rights of safety of life, freedom from torture, fundamental rights of that sort.… We took that as our guide, and we suggest that with regard to these rights there cannot be serious argument that the individual should not have the right to complain. If these rights are so fundamental that they must exist even in time of war, then surely they are equally fundamental from the point of view of the individual having the right to complain. That was the Lord Chancellor in 1950. Are those observations not equally true today?

Why are the Government dragging their feet? What are their motives? Is it because the Government, having made an express declaration extending the application of the Convention on Human Rights to forty-two British Colonial and Dependent Territories, including Northern Rhodesia, Nyasaland and Kenya, are afraid of the consequences to their reputation which might result if individuals in those territories were to bring their complaints before the Commission?

Article 5 of the Convention, for example, provides that everyone has the right to liberty and security of person. The Convention says: No one shall be deprived of his liberty save in the following cases and in accordance with the procedure prescribed by law—

  1. (a) the lawful detention of a person after conviction by a competent court;
  2. (b) the lawful arrest or detention of a person for non-compliance with the lawful order of a court or in order to secure the fulfilment of any obligation prescribed by law."
Other cases which are not relevant to my present consideration are then set out. The Article, in my submission, does not permit indefinite detention without trial, as has been done, and is being done, in Kenya and Nyasaland.

But there falls for consideration Article 15 of the Convention, and it is about that that I want to ask the Parliamentary Secretary some questions. It provides that: In time of war or other public emergency threatening the life of a nation any High Contracting Party may take measures derogating from its obligations under this Convention to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with its obligations under international law. It says: Any High Contracting Party availing itself of this right of derogation shall keep the Secretary-General of the Council of Europe fully informed of the measures which it has taken and the reasons therefor. A state of emergency has been declared in Nyasaland and I submit that there has been a clear derogation from Article 5 in the action taken in Nyasaland to detain large numbers of men without trial. Has the Secretary-General of the Commission been informed of the Government's derogation?

I asked that Question of the Foreign Secretary in March and I was told: Not yet. But the terms of any notice of derogation which may be required are being considered."—[OFFICIAL REPORT, 25th March, 1959; Vol. 602, c. 124.] What has been done? What are the terms? Have we given notice?

To what extent are the Government honouring the terms of the Convention in Kenya, which is under their jurisdiction? There is a similar derogation of Article 5 there. A number of the men killed in the Hola massacre had never been convicted of any criminal offence, although they had been detained for years. In relation to the Hola men who were illegally maimed and in relation to the widows of the dead of Hola, how do the Government propose to give effect to their commitment under Article 13 of the Convention of Human Rights to give them: … an effective remedy before a national authority … notwithstanding that the violation of rights has been committed by persons acting in an official capacity. Have the Hola widows or the men who were injured a remedy before the Kenya courts?

There is not a state of emergency in Northern Rhodesia. How can a breach of Article 5 of the Convention be justified in that Territory, a Territory to which the Government have expressly made the Convention apply? For there too there are men in detention without trial and many persons have been banished to restricted, inaccessible and virtually uninhabitable areas. Is not that a breach of Article 5? I ask again: have the Government dragged their feet in refusing to recognise the right of individual petition to the Commission of Human Rights because they feel that too many complainants may have an unanswerable case?

Is that also why the Government have refused to accept the jurisdiction of the Court of Human Rights which enables an individual to sue his own Government before a supranational court, the sort of development in the sphere of law and politics which ultimately alone can save the world? It is no use making eloquent speeches, as Ministers opposite do, about world law and world Parliaments and world authority when in the European scene they refuse to support the machinery to apply such ideas.

The attitude of the Government towards this court has been deplorable. We have taken advantage of our right to nominate a British judge and we have nominated a most distinguished and famous international lawyer, Lord McNair, ex-President of the International Court of Justice. But we pay scant regard to his feelings or to the status of the court when we refuse to accept its jurisdiction.

Here again, we seem to be taking the attitude that what may be good enough for the Scandinavians or Belgians or Germans is not good enough for the British. I wish there were time to develop this indictment further. It is a mournful task. I ask the Government, in the few remaining months of their power, to see if they cannot yet make amends.

11.10 p.m.

The Joint Under-Secretary of State for Foreign Affairs (Mr. Robert Allan)

The hon. and learned Member for West Ham, South (Mr. Elwyn Jones), who initiated this Adjournment debate with a restrained speech, was good enough to discuss the question with me earlier. I therefore knew his views and the points that he was likely to make. Many of them are highly legal points and these I will refer to my right hon. and learned Friend the Attorney-General. I hope, however, that in the meantime, I can give an adequate even though it be a lay answer.

In dealing with some of the points made by the hon. and learned Member, I start with Nyasaland. The existence of an emergency is a question of fact. For the purposes of the Convention, there is no need that there should be a formal proclamation of emergency. In Nyasaland, however, a proclamation was made for the purposes of the Emergency Powers Orders in Council, 1939 and 1956, which recited the fact that there was an emergency. As the hon. and learned Member said, I told him in March, in answer to a Question, that we were then considering whether there had been any derogation from the Convention under Article 15. Since then, we have decided that we did derogate and a note was handed to the Secretary-General of the Council of Europe on 28th May giving notice of derogation in respect of emergency measures in Nyasaland.

Mr. Elwyn Jones

Will the hon. Gentleman be good enough to put a copy of that note in the Library at the earliest possible opportunity?

Mr. Allan

I will be glad to do that. It was my intention to do so, otherwise I might have given the hon. and learned Member the terms tonight. It is a fairly lengthy document.

Numbers of Mau Mau have been detained during the emergency conditions in Kenya and notice of derogation there was given as long ago as 1954. It has not been revoked since. I will, of course, see that the hon. and learned Member's questions and remarks about Hola, the widows of those killed and the rights of those injured there, are considered both in the Foreign Office and in the Colonial Office. In view of our debate last week, however, I do not think that the hon. and learned Member would expect me to take that much further tonight.

In answer to the hon. and learned Member's general questions, I am informed that the normal rights of action and remedies are available in Kenya as elsewhere. No notice of derogation has been given in Northern Rhodesia. As far as I am aware, no measures have been taken there which are in derogation from the Convention.

Mr. Elwyn Jones

Is it not the case, however, that in Northern Rhodesia there has been this herding of a large number of people into places which I might describe as oubliettes, where they are kept, not, it is true, in prison conditions, but in inaccessible areas where their liberty is at an end, certainly their freedom of movement?

Mr. Allan

I would not like to answer that question off the cuff, but my information is that we have not been in derogation of the Convention.

The main burden of what the hon. and learned Member said concerned the right of individual petition under the Convention. This is a question that has been raised and considered on many occasions since the Convention was signed. It has been the policy of successive Governments since then to accept the procedure of application by States, but not to accept the right of individual petition. This was a decision made, among others, by the last Labour Government. We signed the Convention because v/e were prepared to accept an application by States, but it has always been clear that the British Government would not accept or concede the right of individual petition; and this decision is in full accordance with the belief that these petitions rest properly with the State.

By virtue of certain treaties it may be, of course, that certain individuals obtain benefits. That would apply in the case of commercial treaties, but it does not follow that the enforcement of the application against a State should be a matter to be placed in the hands of the individual. In principle, the enforcement of international obligations is a matter to be settled between the States on whom they rest.

The hon. and learned Gentleman referred briefly to the Nuremberg trials where, incidentally, he himself played an important part. What one must emphasise about this, however, is that those trials were before a military tribunal. Admittedly, it was set up by international agreement and, in that sense, it was an international body; but its powers were derived from the rights of the Allies as military victors. Its purpose was to punish major war criminals and its status was quite different from the Human Rights Commission and the Human Rights Court or, indeed, the International Court of Justice at The Hague.

There, it was not a case of a court having compulsory jurisdiction over States, but rather the opposite; of States punishing individuals and not individuals punishing States.

Mr. Elwyn Jones

Yes, but my point is that the lesson of Nuremburg was that individuals owe obligations under international law, and not merely States. We spent nearly a year trying to establish that principle, with the present Lord Chancellor as our most distinguished mouthpiece.

Mr. Allan

All I would say is that the individuals were prosecuted under laws promulgated by the victors following unconditional surrender by the German Government; but it is a highly complex legal matter and I would not like to argue it tonight.

We have had practical experience of applications brought by one Government against another; there have been two applications against Her Majesty's Government, and that part of the procedure has worked. Yet we are still not satisfied that the means by which individuals have the right to petition would work. Experience has shown us that there is a great number of unwarranted petitions. A great many of the petitions made to the Commission have been ruled to be inadmissible, but the fact is that there has been a vast number of them and, living as we do in a world of intense political pressures, there is little doubt that many of those petitions were made for political purposes. I believe that the experience so far gained, coupled with the unexpected way in which international politics have developed, may have caused my noble and learned Friend the Lord Chancellor to change his mind from the time when he made the remarks quoted by the hon. and learned Gentleman opposite; after all it was eight years ago.

Last December, my noble and learned Friend said in another place when discussing politically inspired petitions that, although they would no doubt be rejected, they would in the meantime have achieved their primary purpose of mischief-making propaganda and that, on those grounds, we resisted them. The obligations under the Convention rest squarely on the Government and we intend to fulfil our obligations.

If I may say a word or two about the Court, which the hon. and learned Member mentioned, the point here is that procedure by way of the Commission is compulsory. The acceptance of the jurisdiction of the Court is entirely optional, so there is nothing wrong in choosing the Commission rather than the Court. The procedure by way of the Commission, in the absence of a friendly settlement, leads to proceedings in the Committee of Ministers, which may result in a binding decision. If one looks at Articles 8, 9, 10 and 11, one sees that the rights to be enjoyed by individuals are made dependent, for example, on: what is necessary in a democratic society in the interests of national security, public safety or the economic wellbeing of the country. These are not matters to be assessed by a court, at least not in our view. That applies with even greater force to the application of Article 15. As the hon. and learned Member said, that Article provides for derogation from the Convention in time of war or other public emergency threatening the life of the nation, and goes on to say: In these circumstances the parties to the Convention may take measures derogating from their obligations to the extent strictly required by the exigencies of the situation. Those again are political decisions and cannot in our view be decided on purely legal grounds. We are perfectly entitled under the Convention to take this view, but we do not thereby show any disrespect either for the Court or those States which have accepted its compulsory jurisdiction. Indeed, the fact that we nominated such distinguished candidates for election goes to show that we wanted to see the best possible court for those who think it should be the ultimate arbiter.

I should explain—I am sure the hon. and learned Member knows, but others perhaps do not—that while, in accordance with Article 39, Her Majesty's Government nominated three candidates, the actual election was by the Consultative Assembly. The individuals elected are in no sense the representatives of the Governments who nominated them. Of course, they themselves choose their own President and we in this country are proud and delighted that such a distinguished jurist as Lord McNair should have been selected as President.

Throughout his speech the hon. and learned Member rather gave the impression that we had been dragging our feet on this Convention. That is not true because we have not only fully applied the Convention to the United Kingdom itself, but, unlike certain other countries—members of the Council of Europe—we have extended the Convention to practically all our Dependent Territories. Unfortunately, in some of those territories public emergencies have arisen. In these cases the measures taken have been limited to those directly required by the exigencies of the situation and we have done our best to see that the Convention is complied with. We have given notice of derogation as required by Article 15.

It cannot be said in these circumstances that Her Majesty's Government have done other than take the Convention seriously, and I can assure the hon. and learned Member we shall continue to do so.

The Question having been proposed after Ten o'clock and the debate having continued for half an hour, Mr. SPEAKER adjourned the House without Question put, pursuant to the Standing Order.

Adjourned at twenty-four minutes past Eleven o'clock.