HC Deb 14 March 1963 vol 673 cc1541-56
The Secretary of State for the Home Department (Mr. Henry Brooke)

I should like, with permission, to make a statement about the case of Chief Enahoro.

The facts of this difficult case are that Chief Enahoro, who is accused in Nigeria of treasonable felony and related offences, was arrested in Britain under the Fugitive Offenders Act, 1881, on a warrant issued by a metropolitan magistrate, following an application made on behalf of the Nigerian Federal Government.

The Act requires a magistrate, before committing the fugitive for surrender, to be satisfied that the evidence raises a strong or probable presumption that he committed the offence mentioned in the warrant. The magistrate at Bow Street was so satisfied, and on his order Enahoro was committed to Brixton Prison with a view to being returned to Nigeria to stand his trial.

Enahoro then applied for a writ of habeas corpus. The application was heard by the Divisional Court, presided over by the Lord Chief Justice, who dismissed it. In his judgment, the Lord Chief Justice said that he found it quite impossible to say that the magistrate was wrong in holding that a strong or probable presumption of guilt was made out. The Divisional Court also dismissed an application from Enahoro under Section 10 of the Act for relief on the ground that it would be unjust or oppressive or too severe a punishment to return him.

Enahoro then applied for leave to appeal to the House of Lords, but this was refused by the Appeal Committee of the House of Lords. It now falls to me, in accordance with Section 6 of the Act, to order Enahoro's return, if I think it just.

In considering this question, I feel bound to take into account what took place in the Divisional Court and before the Appeal Committee of the House of Lords. If the Divisional Court had thought that Enahoro's return would be unjust, it would have ordered his release; if the Appeal Committee had thought that it would be unjust, it no doubt would have granted leave to appeal.

On the information before me, I have no reason to think that Enahoro, if he is returned, will not be given a fair trial. There is, however, one matter to which I thought it right to give particular attention. Before the Divisional Court, counsel for the Nigerian Government gave an undertaking that, if Enahoro chose a counsel from England who, according to the law of Nigeria, was entitled to appear in the Nigerian Court, the Government of Nigeria would not refuse that counsel permission to land merely because he was going to represent Enahoro. I should explain that under Nigerian law no barrister who is not a citizen of Nigeria is entitled to appear in a Nigerian court without a certificate from the Chief Justice of Nigeria.

The word "merely" in this undertaking was inserted, I understand, not at the request of the Nigerian Government, but at the suggestion of the Divisional Court. From the discussion which took place before the Divisional Court and before the Appeal Committee the courts clearly took this undertaking to mean and to be intended to mean that, if the Chief Justice of Nigeria gave his certificate for a named English barrister to appear for Enahoro, the Nigerian Government would not refuse that barrister entry to Nigeria merely because he was going to represent Enahoro, and that they would not refuse him entry unless in his particular case there were other and good reasons.

In the light of this undertaking the Lord Chief Justice expressed himself as satisfied that there would be no oppressive action in Chief Enahoro's case to deprive him of the legal representation of his choice.

I thought it essential to ensure that there should be no misunderstanding between Her Majesty's Government in the United Kingdom and the Nigerian Government with regard to the meaning of the undertaking given on that Government's instructions. I have, therefore, been in touch, through our High Commissioner in Lagos, with the Prime Minister of the Federation of Nigeria, and I am assured by the Prime Minister that the undertaking has, and was intended to have, the meaning I have stated.

I have given most careful consideration to all aspects of this difficult case and to all the representations which have been made to me by Chief Enahoro and on his behalf. After weighing everything up I have reached the same conclusion as the courts, and I think it just that I should order his return to Nigeria.

Mr. Strachey

Is the right hon. Gentleman aware that this is a grave decision? Is he also aware that nothing that we on these benches say is intended as a criticism of the quality of Nigerian justice, for I quite agree that it would be wrong to suggest that Chief Enahoro would not get a fair trial if he were returned to Nigeria?

But is the right hon. Gentleman further aware that such decisions as these under the Fugitive Offenders Act mean that, in practice, we are treating Commonwealth citizens in these matters far more severely than we treat foreigners? Surely the Home Secretary would agree that if this had been the case of a foreigner in what is admittedly a political offence, we should not have resorted to deportation.

In those circumstances, is it right to deport—because that is what is, in effect, being done—a citizen of the Commonwealth for a political offence? How can the right hon. Gentleman pretend to the continued use of this procedure under the Fugitive Offenders Act, now that those States of the Commonwealth are wholly independent States and the position has been entirely changed since that Act was passed?

Mr. Brooke

I am obliged to the right hon. Gentleman. I hope that the terms of my statement made clear to the House that I do regard this as a question of great seriousness and gravity which it falls to me personally to decide. I must act under the law as it stands.

I recognise that the Fugitive Offenders Act was passed in the year 1881 and that the evolution of the Commonwealth makes it desirable to re-examine this aspect of the Act. I am proposing to consider it further in consultation with my right hon. Friend the Secretary of State for the Commonwealth and the Secretary of State for the Colonies. Of course, it would not be right for the United Kingdom to act unilaterally in such a matter. If we decided to take any action, it would quite clearly be proper for us first to consult our Commonwealth partners.

Mr. D. Smith

The very real difficulties in this matter are much appreciated. But is my right hon. Friend aware that if this person, who was arrested in my constituency, is returned to Nigeria, I understand that he may well face life imprisonment, or even liquidation? In view of that, would my right hon. Friend, even at this stage, consider granting a further stay of execution while a further examination is made and inquiries made about the treason trial in Nigeria which is proceeding at present? Has he also given consideration to the further evidence submitted on Chief Enahoro's behalf only yesterday?

Mr. Brooke

I have given very careful consideration to everything that has been submitted to me and to all the representations made. Chief Enahoro has been in Brixton Prison now since before Christmas and I do not think that it would be right to detain him there longer. I have given this whole matter my careful consideration.

I am obliged to the right hon. Member for Dundee, West (Mr. Strachey) for stating—I profoundly endorse it—that the courts of Nigeria can be trusted to give an accused person a fair trial. It is not for us to prejudge the case. But I should be guided—I am sure that I should be guided, and the House would wish me to be guided—by what our Lord Chief Justice and the Appeal Committee of the House of Lords said on this matter.

Mr. Grimond

Will the Home Secretary take account of the fact that while there is great sympathy over the administration of this Act, there is also grave anxiety over this matter, not least because, as has been said, it is a most serious matter in offences which have a political content? Is the right hon. Gentleman aware that, among other drawbacks to it, is the fact that this man will now have against him the finding that there is a presumption or probability of guilt which was found in a court here? Can the right hon. Gentleman assure the House that not only has he considered the matter, but that he has not been unduly moved by the finding of the courts, because the ultimate decision is his alone, and has he taken into account what I understand are the new representations which have been made on behalf of this Chief?

Mr. Brooke

Yes, Sir. I have taken everything into account and I entirely agree with the right hon. Gentleman that my view of the matter must range wider than that of the courts. But I think that it would be entirely wrong were any of us to suggest that he will be treated oppressively if he goes to stand his trial in Nigeria. There are certain matters, as the right hon. Gentleman will agree, where must be guided by what has been said in our courts, though, quite clearly, I may have to examine matters which are outside the purview of the courts.

With regard to his point about the matter being prejudiced, the decision of the Bow Street magistrate corresponds to the decision of a magistrate in committing n person for trial in this country, and that certainly is never taken as prejudging the outcome of the trial.

Mr. Russell

My right hon. Friend knows full well that there is great anxiety about this matter among hon. Members on both sides of the House. Can he arrange to have a debate in the House on the matter before Chief Enahoro is sent back? Would he look at the matter again, bearing in mind that it is a political rather than a criminal matter?

Mr. Brooke

My hon. Friend suggests that this is a political matter. But that was argued before our courts—and the courts rejected that argument—that it was for oppressive political reasons that the Nigerians wished to have him back. It is not for me to arrange the business of the House, but I really do not think that it would be right for me to retain Chief Enahoro longer in Brixton Prison, when I have reached my decision.

Mr. H. Wilson

The right hon. Gentleman has already told us that he is having to exercise his discretion under an Act which is 82 years old and which he admits was passed long before the present conception of the Commonwealth. He has not denied my right hon. Friend's point that here he is acting quite differently from the way he would have acted under modern legislation in relation to a foreigner. In view of the fact that the right hon. Gentleman is doing this under the terms of an Act which he has now said requires reconsideration, would not he reconsider the decision which he has announced today, made under the discretion given by that Act, and have another look at the whole matter, particularly in view of the fact that there is such strong feeling among hon. Members on both sides of the House?

Mr. Brooke

What I said was that I thought that the Act, which is now 82 years old, was ripe for reconsideration in view of the drastic changes that have taken place in the nature of the Commonwealth meanwhile. But I and every Minister have to proceed under the law as it stands at present. The law requires me to act as I think just and I have told the House what I believe is the course of justice in this case.

Mr. Wilson

Is it not obvious to the House from what the right hon. Gentleman has said that nobody thought of looking at this Act until this case came up and demonstrated the dilemma in which the Home Secretary and the House are placed? In other words, it is this case which has shown the possible injustice involved in this legislation. Since the right hon. Gentleman is not required under the Act to deport this gentleman back to Nigeria, but is free to use his discretion, and since the right hon. Gentleman thinks that the Act is obviously bad and requires reconsideration, may I ask whether he should not use his discretion in a different way and release the Chief involved and then have his urgent review of the Act?

Mr. Brooke

The House will recollect that I did not say that the Act was a bad Act. I said that I thought that, in view of the changed circumstances of the Commonwealth, it was desirable to reexamine the terms of the Act. But it is not the case that this Act has lain forgotten for years and has only just come to notice. My predecessor had to decide a very difficult case under the Act which was discussed in the House only a year ago.

Sir R. Nugent

Is my right hon. Friend aware that although I fully share the anxieties expressed by the rest of the House about the deportation of Chief Enahoro on these grounds, I should feel even more anxiety if my right hon. Friend unilaterally broke this law which is in relationship with all the other members of the Commonwealth. I feel certain that my right hon. Friend's decision is right and that he had no alternative but to decide as he has decided and look at a review of the law afterwards.

Mr. G. M. Thomson

Is the right hon. Gentleman aware that under the Act as it stands he has an absolute discretion to do what is just? Will not he agree that to do what is just today is bound to be what is just in the light of the Commonwealth as it is? Would the right hon. Gentleman not agree that since the Commonwealth is now a group of sovereign and independent countries it would be just in this case to treat this man exactly as one would treat a citizen from another sovereign and independent country? Is the right hon. Gentleman not aware that there are other cases pending before the Judicial Committee of the Privy Council which are allied to this? In the circumstances, could not a stay of execution be granted until the matter can be discussed?

Mr. Brooke

The question of the relevance of those other cases came before the Divisional Court, and the Lord Chief Justice held that they were not relevant to this case. I have to decide whether I think it just that the Chief should go back to Nigeria to stand his trial. I believe that the courts of Nigeria are fair courts and that if he were convicted and appealed unsuccessfully he would have the right to appeal to the Privy Council. In all the circumstances, which I have described fully to the House, I think it just that he should go back to stand his trial in the Nigerian courts.

Several Hon. Members

rose

Mr. Speaker

We really cannot continue this.

Mr. Strachey

On a point of order. In view of the position reached in this matter, in which this man is apparently to be deported under an Act which the Home Secretary himself has told the House has become an anachronism, I desire to ask leave to move the adjournment of the House under Standing Order No. 9 far the purpose of discussing a definite matter of urgent public importance, namely, the decision of the Home Secretary to exercise the discretion conferred upon him by the Fugitive Offenders Act to order the surrender of Chief Enahoro to the Nigerian authorities.

Mr. Speaker

The right hon. Gentleman the Member for Dundee, West (Mr. Strachey) asks leave to move the adjournment of the House under Standing Order No. 9 for the purpose of discussing a definite matter of urgent public importance, namely, the decision of the Home Secretary to exercise the discretion conferred upon him by the Fugitive Offenders Act to order the surrender of Chief Enahoro,to the Nigerian authorities. The House will understand that in all these circumstances I must have given the most serious consideration to my duty to the House, but as far as I can see I could not possibly allow this to be within the Standing Order consistently with the practice under the Standing Order laid down for similar matters by my predecessors. I have never heard the suggestion that the exercise of discretion under this Act, where the full processes have been gone through, could come under this Standing Order.

Mr. H. Wilson

Further to the point of order, Sir. Is it not a fact that one of the most recent cases of a Standing Order No. 9 adjournment which we have had in the House was a similar case of deportation, where there was no other means of holding up a deportation except by debate in the House? Although it is true that various judicial procedures had to be followed, and were followed, the Home Secretary has in no way sought to disguise from the House that at the end of the day the discretion was his, and his alone, under the Act, and that the announcement he made was in pursuance of the exercise of that discretion.

With great respect, Mr. Speaker, surely the House has the right to challenge, 'whether under the 1881 Act or any other Act, the discretion exercised by the Home Secretary in such a case. Since deportation is now imminent and the House feels that the matter is for that reason urgent, and it is certainly definite and certainly of public importance, may I submit that you might reconsider your Ruling?

Mr. Speaker

I should be a much happier man if my view of my duty coincided with that of the right hon. Gentleman the Leader of the Opposition, to whom, by duty, I must pay close attention in this context. But this matter is very difficult. I understand that I myself have allowed as being within the Standing Order an incident where prisoners were to be taken out of the jurisdiction next day, but the circumstances were utterly different in that type of case. It was a Colonial Prisoners Removal Act case, in which there is no provision for the rights of the matter to be considered by our courts in this country.

Let the House consider for a moment where we go to if we deem this kind of practice to be within the Standing Order and then the House will see how difficult it is. If it were deemed to be within the Standing Order then, when all the processes have been gone through under the statutes, and all that anyone can say has happened is the perfectly normal administration of the law as it stands, the Chair would have no ground whatsoever to refuse an application in any case under the Act. It cannot be right to grant such an application under a Standing Order the basic idea of which was that it should apply where an emergency happened in home or foreign affairs when the only thing that has happened is the normal application of the law.

Mr. Wilson

If I may say so with respect, Mr. Speaker, we know the difficulties in which you are placed when the general practice is not to give reasons for Rulings in these cases. The case to which I was referring was not the case of the Bahraini prisoners, to which I think you have just referred. It was the case of the deportation of a Spaniard, or Portuguese, a little earlier, a case which, I should have thought, would have had more bearing on this case.

The second point that I would make with great respect is that, although as you have said the procedures required under the Act have been followed—the habeas corpus appeal and the rest—the Act, at the end of the day, leaves discretion to the Home Secretary, and it is the use of that discretion that we seek to challenge today.

The Home Secretary made very plain —indeed, his decision was in doubt almost to the end of his statement—that he was perfectly free to rule that way and that under the Act, after exhausting all the judicial procedure, he could equally well have ruled the other way and have refused the order against the Chief concerned. Whatever the judicial procedure, it was, in the end, a matter of Ministerial discretion.

I suggest that it is within the control of the House, and that since deportation is imminent we have no other means, whether by supplementary procedure, or anything else, to debate this matter before the action is carried through which all hon. Members regard as unfortunate and, with respect to the Home Secretary, unjust.

Mr. Speaker

Of course, I share all these anxieties, and I appreciate that my refusal to leave it to the House may deprive hon. Members of any opportunity to debate the matter before the man has gone. That does not let me off my duty as a servant of the House, unfortunately. I only wish that I had the agreement of the right hon. Gentleman about it.

With regard to the other case that he mentioned, the Spanish deportee, I think it was, but it matters not whether Spanish or Portuguese, that was an Aliens Order case, where, once again, there was no chance for the justice or merits of the matter to be investigated as it is under this Statute by our courts in this country.

I never understood the object of this Standing Order to be that we should take some instance of perfectly normal administration of the law making provision for proper judicial processes to be within the class of emergency which the Standing Order is to meet. I am very concerned as to whether or no, as a servant of the House, I have any right to create such a bad precedent, as it would be, were one to include the normal processes of the law in this matter as things coming within the Standing Order. I cannot think that it is right to do it.

Mr. Grimond

On a point of order, Mr. Speaker. While appreciating your own position, if I may say so with respect, Mr. Speaker, and the fact that you are yourself bound by precedents in this matter, I wonder whether you could assist the House. Surely the House should not be the slave of its own procedures in a matter of this sort. It is, to some extent. without precedent so far as the House is concerned in that there is some agreement that the circumstances in which this Act was passed have disappeared and the House wishes to reconsider that Act and might well have done so before this case arose.

At the same time, it is also agreed that there is a discretion in the Home Secretary in this matter, an absolute discretion, which he could exercise on the grounds that this Act now requires reconsideration as the circumstances have changed. Is there any other method, Mr. Speaker, by which we could discuss this matter now—I submit that this is a new and unusual set of circumstances—without necessarily breaking the precedents which you have cited as governing your own Ruling?

Mr. Speaker

These are two different problems. Whether or no the House can discuss it now might be a matter outside my care. What I have to decide is whether this case is one which comes within order under the Standing Order, and that is my responsibility. Of course, we cannot discuss any amendment to the Statute. There is nothing abnormal about the exercise by the Home Secretary of his statutory discretion under the Statute. It is perfectly normal whether he exercises it one way or the other. That is my difficulty here. There is no sudden emergency about this in any way. It is a perfectly normal execution of the law and a normal execution of a statutory discretion.

Sir G. Nicholson

I feel rather uneasy when a Ruling of the Chair is allowed to be open to argument by hon. Members. I do not think that it is good for the dignity either of the Chair or of the House, so may I respectfully suggest to you, Mr. Speaker, that we might proceed with the Orders of the Day?

Mr. Speaker

In due course I will, but I hate to think that my fellow Members are making submissions to the Chair and not having their points clearly answered.

Several Hon. Members

rose

Mr. Speaker

It is much easier to address the House if others remain seated. I agree that there should be some limit to discussion about these matters, but I have some sympathy with hon. Members' anxieties and for that reason I have listened.

Mr. Stonehouse

On a point of order. I wish to move the adjournment of the House on a separate point, Mr. Speaker, the question of granting political asylum, which has been requested by Chief Enahoro and which has not been dealt with this afternoon.

I therefore beg to ask leave to move the adjournment of the House, under Standing Order No. 9, for the purpose of discussing a definite matter of urgent public importance, namely, the refusal of the Home Secretary to grant political asylum to Chief Enahoro, a political refugee from Nigeria. I submit, Mr. Speaker, that the question is urgent because Chief Enahoro is about to be returned to Nigeria, where there is at the moment an oppressive political regime, where the Opposition party has been banned and where the political freedoms of Commonwealth individuals have been removed by the regime in power. I submit that it is very unlikely that in these circumstances Chief Enahoro will, in fact, receive a fair trial when he is returned to Nigeria. I therefore ask you to give consideration to this request, Mr. Speaker.

Mr. Speaker

The hon. Member for Wednesbury (Mr. Stonehouse) asks leave to move the adjournment of the House under Standing Order No. 9 for the purpose of discussing a definite matter of urgent public importance, namely, the refusal of the Home Secretary to grant political asylum to Chief Enahoro, a political refugee from Nigeria. I think that is the same point. It is what had to be considered in the attempt to secure a writ of habeas corpus or relief by the courts under Section 10. I do not recognise that it is a separate point, so the same considerations apply.

Mr. H. Wilson

I am sure that the whole House has some sympathy with the point put by the hon. Member for Farnham (Sir G. Nicholson). We do not want to go on pressing this point indefinitely. On the other hand, since many of us feel that we are in danger of seeing a precedent created this afternoon by your Ruling, Mr. Speaker, under which it is possible for the House, under Standing Order No. 9, to discuss the deportation of a foreigner but it is not possible to discuss the deportation of a Commonwealth citizen, I wonder whether you would be prepared—I put this with very great respect—to consider the matter further and perhaps to receive representations on this matter on the understanding that at the end of the day, after a day or two perhaps, if you were to feel that a different Ruling were possible our rights would not have been exhausted under Standing Order No. 9, and that the Adjournment could be moved later. Meanwhile, perhaps, the Home Secretary could defer any physical action under his discretion while you, Mr. Speaker, were considering whether there were further matters to be taken under advice.

Mr. Speaker

I can give no hope that I can be persuaded that the matter comes under Standing Order No. 9. I would try to invent some ingenious way, if I could, to get out of the difficulty, but the Home Secretary, I understood, has declared his view about it.

Mr. J. Griffiths

On a point of order, Mr. Speaker. Would you permit, at this stage, a question to the Leader of the House, asking whether he would consult the Home Secretary with a view to delaying action until the House has had an opportunity of discussing this matter?

Mr. Speaker

The right hon. Gentleman has the right to ask a question, but I do not know whether he will get an, answer.

Mr. Griffiths

Having regard to what is the feeling of the House, I ask the Leader of the House to consult the Home Secretary and arrange for the House to have an opportunity to discuss this matter before the Home Secretary deports this man.

The Chancellor of the Duchy of Lancaster (Mr. Iain Macleod)

Yes, of course I will give that undertaking.

Mr. G. Brown

To be quite clear about this, may I ask the Leader of the House whether he is, in fact, saying that he has undertaken to arrange with his right hon. Friend that Chief Enahoro is not to be deported until the House has had an opportunity of discussing the matter?

Mr. Macleod

No. I did not say that I gave a specific undertaking, which I thought I was asked to do, that in consultation with my right hon. Friend the Home Secretary—and we will do this at once—we would meet the wishes of the House, not on the question of Standing Order No. 9, which is entirely a matter for the Chair, as the whole House will realise—it is not for me to interpret that as Leader of the House—but to deal with any further representations that may be made to the Chair and the Chair has had an opportunity of considering them; that no action will be taken in that sense.

Mr. Brown

As I understood the point put to the Leader of the House, it was that the Leader has it within his control to arrange that the House has an opportunity to debate this subject. What my right hon. Friend was asking was that the Leader of the House and his right hon. Friend should arrange that the Chief is not deported until the House has had an opportunity for debate. I now put it again to the Leader of the House: will he help to get the House out of a situation about which everyone is very concerned by arranging with his right hon. Friend that no physical steps are taken to deport the Chief while we arrange, in the best way open to us, for a debate to take place in the House?

Mr. Macleod

I do not think that I can go further than I have done. I have tried to meet the point that the right hon. Gentleman has made, but if the Leader of the Opposition and Deputy Leader of the Opposition would like to talk to me at once, in the ordinary way, we can, perhaps, see what can be done.

Mr. H. Wilson

I certainly respond to what the right hon. Gentleman says. I think that the House feels that this matter should be urgently debated. We are prepared to have discussions immediately with the Leader of the House with a view to a possible rearrangement of next week's Business. We ourselves might not be unhelpful if we could find a way round, by arrangement, provided that we can get an understanding that no physical action will be taken in the matter of the deportation of Chief Enahoro until we have discussed the matter, and the House has agreed to any rearrangement that may be proposed in next week's business.

Mr. Macleod

Let us discuss this urgently and at once. We cannot do all these things in this way across the Box, as I am sure the House will understand. We shall discuss this urgently, sympathetically and at once, and I shall find a way of informing the House, if necessary within perhaps a matter of hours, of the conclusions reached, and I hope that they will be satisfactory to the House.

Mr. Wigg

On a point of order, Mr. Speaker—

Mr. Speaker

I think that we really ought to consider how we can get on with the other business. I am greatly obliged to hon. Members on both sides for trying to help me out of my personal difficulty at this stage.

Mr. Wigg

May I say that I profoundly disagree with the statement made by the hon. Member for Farnham (Sir G. Nicholson). The question of the orderliness of business is not the sole prerogative of the Chair, but concerns us all. It is, therefore, the inalienable right of any hon. Member who thinks that the business is tending to become disorderly to submit his views to the Chair. That is not a gift conceded to him, but is his right as a Member of Parliament.

I therefore humbly submit that it would be well for the orderliness of our business if, when a Ruling is given on a Standing Order, such as Standing Order No. 9, due regard were had to the objective situation, because I submit, Mr. Speaker, that in the course of your Ruling, you advanced arguments that were subjective in the extreme.

The matter of moving the Adjournment of the House under Standing Order No. 9 is also a question of the fundamental rights of the House. Would you therefore be good enough to consider the Ruling you have given in the light of the objective consideration of the matter, rather than the subjective argument you have introduced?

Mr. Speaker

I do my best to perform my duty. I should be astonished if I always succeeded to the approval of all hon. Members, but if they want to challenge my methods of reasoning I have to leave them to adopt the appropriate way. Can we now get on?

Mr. Stonehouse

On a point of order. May I take it that my application for the adjournment of the House has been regarded as pending until a statement has been made? May I ask you, Mr. Speaker, to give a Ruling on that request?

Mr. Speaker

No. I said that I thought it rested on exactly that same principles, and was not within the Standing Order for that purpose.