§ 3.51 p.m.
§ Mr. George Brown (Belper)
We are taking this occasion today to raise a case which has caused much concern not only in the House, on both sides of the House, but outside, among all sections of the community. It is the case of Mr. Enahoro, a Nigerian, an ex-Minister in the Western Region of Nigeria, who is now in this country, who has been in Brixton Prison since November, and who is under threat of being deported back to Nigeria by order of the Home Secretary.
To many people this seems to be a grave matter. I should like to make it clear that from my point of view the gravity does not lie in the interests of Mr. Enahoro, or in Nigeria's natural and understandable pride and concern for her own standing in the world. I do not speak today as a spokesman for Mr. Enahoro, and do not in any sense stand as a contender against Nigeria. The gravity of this case arises because of our own British tradition, our treasured heritage, and the harm which the Home Secretary seems to be in danger of doing to traditions of which we are justifiably very proud.
We must say from the outset to Nigeria, and to any other member of the British Commonwealth of free and independent sovereign nations, that they must understand that this nation, too, has its traditions and its heritage of which we are tremendously proud. They must try to understand us and the things we care about, just as much as we try to understand them and the new rôle which they are trying to play.
I have seen nothing which has disturbed me quite so much about this case as the leading article which appeared in the Daily Mirror this morning and which supports some earlier references to the attitude of the Commonwealth Relations Office. The attitude of this lead- 582 ing article, an attitude which other people have taken, is that because Nigeria is an independent member of the Commonwealth: and because she has demanded the return of Mr. Enahoro and would be hurt and upset if he were not returned, it is our business to return him.
That is a case which could be made against anybody accused of a political offence, anybody from Spain, or Russia, or Portugal, or France, or anywhere else. There is no difference in that case from all those which we have always resisted for hundreds of years. Merely to argue that someone will misunderstand us if we do not send him back is to argue that we should end the tradition of political asylum which we have always been willing to concede. That we cannot do. We cannot decide this case on the basis of whether we will be misunderstood in Nigeria, and I have a suspicion that if we explained it very carefully to the Nigerians we would not be misunderstood.
I welcome, as most of us do, I imagine, the transition of our Commonwealth to an association of free, sovereign Powers. Having accepted that, let us drop that habit into which some people are falling, that of paying lip-service to the idea that we are an association of free, sovereign and equal Powers but are, at the same time, trying to apply a special set of values to some members.
I do not believe that any of the newer African States, or any of the other new States of the Commonwealth, want to be treated differently from the rest of us. I do not think that they want us to apply to them judgments which we would not apply to others. They resent criticism which implies that they are undemocratic, that they are tyrannical, or that they do not have free or fair courts. It is not part of my case that any of those things are true of Nigeria, and I well understand that the Nigerians resent allegations of the sort which are so easily made.
But I do not believe that they should seek to decide our attitude to political asylum in this country. I think that they understand our traditions. Most of their leaders have been educated in them and I believe that so long as we make it plain to them that what we are talking about is no reflection on the 583 courts in Nigeria, or elsewhere, is not a reflection on the democratic processes in Nigeria or elsewhere, but is part of our British tradition, the Nigerians will perfectly well understand any decision which we take in this matter.
Let me make it perfectly plain that it is not necessary to our case to impute any unworthy conduct or unworthy motives to the Nigerian judiciary or court processes. There is no reason to think that Nigeria's judges are anything other than sturdily independent, or that they do not operate in the best traditions. So far as I know anything of the country, the courts are perfectly good and have a perfectly good procedure and their judges are wholly independent.
But is has never been necessary, in defending a case for political asylum, to prove the contrary. That has nothing whatever to do with it. That must be said in the House, and, through the House, to the Nigerians. The whole case is being muddled with irrelevant allegations, none of which can be proved and none of which may be true. We do not take a decision about extradition on those grounds. Our great heritage is that we accord asylum when a man is accused of an offence which is political. That is all. When it is an issue of a political offence, we do not automatically permit extradition.
There is no valid reason why, in 1963, we should apply a different test in the case of Commonwealth citizens from that which we apply in the case of citizens from elsewhere. Summed up in one sentence, that is the case. Why should we argue a totally different case if it happens to be member of the Commonwealth from that which we argue about a French, or Spanish, or Russian, or any other citizen?
It is that with which the Home Secretary has to deal, because that is what he is doing. He is saying that if, by ill-fortune—and I choose my words carefully and deliberately—someone within the Commonwealth is accused of a political offence he will not be entitled to the protection in Great Britain which for centuries men who were citizens of other countries have been entitled to in similar circumstances. The right hon. Gentleman has to defend the reason why all Commonwealth citizens should have second-class status in the world.
§ Mr. John Eden (Bournemouth, West)
In this argument does the right hon. Gentleman make any difference at all between republican members of the Commonwealth and those members of the Commonwealth who in some way recognise the Crown as the Head of the State?
§ Mr. Brown
No. Every member of the Commonwealth recognises the Crown as the Head of the Commonwealth and the symbol of the association. I do not think that there is any difference between one member and another.
The Home Secretary must have a basis for this extraordinary decision, and he tries to find it in the Fugitive Offenders Act, 1881. Clearly, this Act is at odds with the Extradition Act, and it is under this latter Act that we give force to our normal traditions and feelings. There is a good reason why one Act is at odds with the other. The 1881 Act deals with a time long since passed when there was one Queen, one set of courts, one law, and one ultimate Executive, and all that it was necessary to arrange was that an offender, or an apprehended offender, was dealt with in the most convenient court. That was the only consideration, that the offender was brought before the most convenient court for the purpose of being tried in the quickest and speediest way.
But at that time we were dealing with the Queen's realms, and everything was the same. With great respect, what is the use of our pretending that that is the situation today? We make absolute nonsense of the whole situation by making that pretence today, and, with great respect, what is the use of the Home Secretary behaving like a bureaucrat and saying that we have not amended the Act? Time has amended it. Events have amended it. That Act has no relevance to the situation today, and if we have not brought it into accord with the situation today, the sooner we do so the better.
Nor is it true that the right hon. Gentleman has to follow the courts. Phrases are being used by other Ministers which imply that the courts have considered Mr. Enahoro's case and that the natural thing is for the Home Secretary to follow the courts. This is not true. Even under that Act the Home Secretary has greater discretion than the courts. The Home Secretary has unlimited discretion, and our 585 case is that he should use the discretion which the law allows him in respect of Mr. Enahoro while the Executive consults other Commonwealth Governments and then presents to this House an amendment of the law to bring it into line with reality. In the meantime, by exercising his administrative discretion, he could make sure that we did not do something under this law which we clearly would not do the moment we amended it.
§ Mr. Sydney Silverman (Nelson and Colne)
Is it not the case that that part of the Fugitive Offenders Act which reserves an unfettered discretion to the Home Secretary presupposes that the courts have already decided the other way?
§ Mr. Brown
That is what I was trying to say, in less well-chosen words. It reserves to the Home Secretary a wide discretion so that he may decide, if he so chooses, contrary to the way in which the courts decide. What I am saying is that he does not have to follow the courts. He can use his discretion, and if, as he said, he believes that the law ought now to be amended, he ought to use his discretion to make sure that there does not occur in the case of Mr. Enahoro something which could not occur once the law was amended. It would be nonsense for him to do to Mr. Enahoro today what he would not be able to do once the law were amended in the way that he thinks it should be.
I am sure that the House is aware that the law has been amended. This law was passed in this House to apply to the whole of what is now the Commonwealth. At that time, there was only one lawmaking institution for the Commonwealth, but now there are a number of law-making bodies in the Commonwealth. Ghana, Cyprus, and some others of whom I am not immediately informed, have amended the law, and a fugitive offender for an alleged political offence could not be extradited from those countries, yet we still retain this out-of-date law. Clearly, therefore, this practice is already eroding in the other legislatures of the Commonwealth. Why, therefore, should the Home Secretary insist on doing in Britain what other members of the Commonwealth have already said they will not do in respect of a political offender from this country?
586 For all I know, in due course Nigeria may amend the law. We would then have the absurd position that somebody accused of treason in Nigeria would be extradited from here to Nigeria, but somebody accused of treason in Britain would not be extradited from Nigeria here. This is becoming absolute nonsense, and I suggest to the Home Secretary that on that ground, too, we ought to bring ourselves into line. We do not have to lean over backwards all the time, and I do not believe that the Commonwealth countries would expect us to do so.
This is not the first occasion on which this matter has arisen. Last year, we had the case of the two Cypriots whom the Cyprus Government wanted back, not for the sort of offence with which Mr. Enahoro is accused, but for much more serious offences. This meets the point made by my hon. Friend the Member for Nelson and Colne (Mr. S. Silverman). In that case the courts had found them guilty, and had also rejected their appeals.
The Home Secretary—but, of course, it was a different Home Secretary—was in the same position with regard to the Cypriots as the present Home Secretary is with regard to Mr. Enahoro. The courts decided that there was a reasonable probability that they were guilty of the offences for which they were to be tried, and recommended that they should go back. What did the Home Secretary do? He decided that they should not be sent back. He granted them asylum.
I propose to say something which some hon. Members might find hard to take, but I must say it, because I think that we had better face the position in the worst possible light. Those two Cypriots were British informers. They could be said to be the modern equivalent of the Black and Tans. We decided to keep them here. Does the House really want it to go out that we shall grant asylum to a man who has been acting for the British against his local compatriots and is accused of a political offence, but that we shall refuse it if he is accused of a political offence while working for his compatriots?
§ Mr. John Hall (Wycombe)
I am sure that the right hon. Gentleman wants to be fair about this. In general, I support what he says, but in that case surely 587 one of the reasons that guided the Home Secretary was the fear that these men would lose their lives when they got back to Cyprus, not through any act of law on the part of the Cyprus Government, but by others who might feel that they would have to carry out reprisals against them?
§ Mr. Brown
I cannot say that Mr. Enahoro will not lose his life—nor can anyone else—if we are considering what may happen outside the courts. We are talking about what might happen to a man as a result of local political passions. How can we say that it will not happen to anyone? In a sense, that is the whole basis for our granting political asylum. It has nothing to do with what might happen in the courts; it is concerned with what might happen outside them.
But we require to understand what will be said outside this country if we make a precedent in the case of people whose political offence was that they supported us when we were a colonial Power while not applying the same test in the case of a person whose offence was that he was in political conflict with his own local Government. We shall make terrible trouble for ourselves, in the terms of the comparison that will be made between the action which the previous Home Secretary took in the case of the Cypriots and the action which the present Home Secretary now proposes to take. There is no difference between the cases, except on political merits.
The Secretary of State for Commonwealth Relations laughs, but this is a real danger. Apparently he is deciding the relative political merits of the two cases. I urge on him the argument that this oculd be a terribly dangerous thing to do. We must not seem to pick and choose which are the political cases in respect of which we grant asylum. We never have done so, and we must not do so in the future.
Our forebears stood up for all kinds of bad cases, merely on a question of principle. I urge the Secretary of State for Commonwealth Relations to be careful about this.
§ The Secretary of State for Commonwealth Relations and Secretary of State for the Colonies (Mr. Duncan Sandys)
I was laughing not about that, but be- 588 cause the right hon. Gentleman is mixing up all his facts.
§ Mr. Sandys
I am not going to waste time doing that.
§ Mr. Brown
If the right hon. Gentleman first laughs and then accuses me of getting things mixed up, and is not then prepared to say what facts I have got mixed up, he has already wasted the time of the House. If he thinks that I am getting mixed up perhaps he would like to explain how.
§ Mr. Sandys
The case of the men from Cyprus was not a political one; there was an accusation of murder. The Home Secretary feared that on their return they might be threatened by an enemy gang inside Cyprus. There is no connection between that case and the case of Mr. Enahoro.
§ Mr. Brown
That is exactly what I said. The Secretary of State ought not to laugh. I said that those men were accused of a far more serious crime than Mr. Enahoro is accused of, and the right hon. Gentleman is confirming that fact.
Since the Secretary of State has made this point, I may as well deal with it. What he has said emphasises the fact that we gave asylum to men who were not accused of political offences, while we are now denying it to a man who is accused of political offences—and yet the only matters in respect of which the Act says we can provide asylum are political offences. I did not make the point, but I am now prepared to make it. With respect, the Secretary of State was ill-advised to bring that point up, because it illustrates a difference that makes it very difficult for his right hon. Friend to stand by the point that he is apparently seeking to make.
In any case, let us suppose that the argument is being put forward—as I gather is the case—that the reason that we do not need to accord asylum in this case is that the Nigerian courts are fair and just. What conclusion will be drawn in the future if we ever grant asylum again to anybody from the Commonwealth? Let us suppose that a person from Ghana requested asylum, and the Executive thought that we ought to grant 589 it. The immediate conclusion would be that we had decided that the courts in Ghana were not fair.
If we do not establish this principle today, in a case where we are not attacking the courts, it is very difficult to think of any future case where we dare establish it. If we do, it will come about our ears in no uncertain way. I tell the Home Secretary, who is not a Commonwealth Relations Office agent but a protector of our traditions. that he had better consider very carefully what the future consequences will be if he persists in what I understand to be his present attitude.
I now want to put forward one or two points that seem to be absolutely essential if we are to make up our minds properly on this issue. First, we can leave the situation of the courts in Nigeria entirely out of the question, but we cannot leave out of consideration the general political situation in any of the new African States. These are early days for democracy in those countries. Those countries will have to live through terrific strains and pressures before they finally establish democracy.
§ Sir Kenneth Pickthorn (Carlton)
§ Mr. Brown
I hope that we have finally established it here. The hon. Member can declare his own beliefs, but it is established here now, despite anything which the hon. Gentleman seeks to do about it.
§ Sir K. Pickthorn
I do not declare any beliefs or hopes. I merely question the assumption that any political development is final, so far as human judgment can assert.
§ Mr. Brown
That is all right. I am all in favour of the hon. Member going on with his questions. If it is any comfort to him, I can tell him that I shall always stand up for political asylum for him anywhere he likes to claim it.
Until these countries have worked their way to a more settled condition they will have to go through great stresses and strains, as once we did. Therefore, by sending this man back we may be sending him back to a very troubled political situation. We have only to consider the witnesses involved. The witnesses who will be called against him were themselves subject to the very same charges, and we 590 have only to consider the kind of pressures that may be put upon them, and the offers that might be held out to them, to realise that this man has many reasons for fearing the kind of atmosphere in which his trial would be held. Emergency regulations have only just ceased in that country, and there is no assurance that they will not be reimposed.
Nobody can assert that even if Mr. Enahoro is acquitted in the courts he will ever be free to leave the country again. After all, his children are here. I received a telegram today from the staff of the school which his boys attend. I read it out not because it is a powerful argument, but because it is a human addition to our discussion. It says:The staff of Yateley Manor Preparatory School appeal on behalf of Kenneth and Eugene to give Their father, Chief Enahoro, political asylum. They will have no protection without him.The telegram is signed by the principal, the headmaster and the chaplain of the school. This man's children are here, and nobody can be sure that he will be able to get back here if once he is sent home, no matter how fair his trial may be. There could not be a better example of the kind of case that caused us to grant political asylum.
There is an additional point, which I do not want to make too much of. There has been what the Secretary of State calls a genuine misunderstanding on the part of those who inquired on behalf of Mr. Enahoro, when he was in Dublin, as to whether he would be safe from arrest if he came here. When he was in Dublin he asked some of his friends who were over here to ask the Home Office whether, if he came here, he would be safe from arrest and deportation. I gather that there is some debate about exactly what was said, but a very senior official at the Home Office was understood by Mr. Enahoro's friends to say, "Certainly he will be free from arrest." Yet, within hours of his arrival here, he was arrested, and he has been kept in prison ever since.
This casts a very bad reflection upon us. The Home Secretary may say that this was a genuine misunderstanding. Perhaps it was. But there it is; the man came here with what he thought was that assurance, and he is now in prison as a result, and is now subject to deportation. It is an awful thing to deport a 591 man who had reasonable grounds for assuming that we should not do so. He came here at the request of his colleagues who belong to the Action Group Party in the Western Region of Nigeria. He is quite willing to give an undertaking covering the amount of political activity that he could carry out while he is here.
I took steps myself to see him yesterday morning and discussed this very fully with him, by courtesy of the Governor and the Home Secretary, to make sure that he had no misunderstanding about what political asylum meant. So that there should be no misunderstanding, I took steps to see the acting High Commissioner immediately afterwards to make quite sure that he understood the basis on which we were approaching this matter. There is, therefore, no ground for thinking that the man misunderstands what the consequences of political asylum will be.
There are other considerations that should move us in this matter. We have kept Chief Enahoro in prison without bail all these months. I find this a bit surprising. The case which was made, I understand, was that not enough was known about him. Here is a man who had been here many times, as a businessman, an ordinary citizen, and also as a Minister. I understand that the last time he visited Brixton Prison before he was incarcerated was as Minister of Home Security. This is the man of whom we said that we did not know enough to grant him bail, and we kept him in prison from November to March.
This is a terrible reflection upon the administration of these Acts under the present Home Secretary's régime. I do not suggest that he ought to make a decision on that basis, but he ought to take it into account. It certainly makes me feel—as I felt over the previous case of the Jamaican girl—that the present Home Secretary gives far less than enough consideration to what it means when we put people in prison and keep them there for months and far less than enough consideration of the consequences of the Act that he is having to put into effect.
Having said all that, I repeat that the real argument must be the harm we will do to our own British traditions if we refuse asylum in this case. We 592 shall make a breach in something of which we are tremendously and justifiably proud, for no reason at all except that the Commonwealth Relations Office is arguing, as the Daily Mirror does, that it may be misunderstood in Nigeria. I repeat that that case can always be made against giving political asylum to anybody from any friendly country. We have never been willing to accept it, and I see no reason why we should accept it now.
I ask the Home Secretary, seriously, not to act as the agent for the Commonwealth Relations Office in this matter. With great respect, this is what I fear he is doing. He must never act as the agent for the Foreign Office. He has, in this respect, a job that sets him as much apart from other Ministers as a Law Officer's job is supposed to set him apart from other Ministers.
The Home Secretary has to consider matters that are of no concern to the Secretary of State of the Commonwealth Relations Office or the Foreign Secretary. I can well understand that for reasons of convenience, or even of devotion to the Commonwealth, the Commonwealth Relations Office might well put up these arguments to the Home Secretary. I can see that if one were in his office one would have to receive them and think about them.
I should like to think that, had I the responsibility, I would say to my right hon. Friend, "Yes, I see your point; I see the case and I should hate it if anything that I am going to do would make it more difficult for you to operate within the Commonwealth, but I am bound to say to you that my business, as Home Secretary, is not keeping the Commonwealth together, much as I want to do that. My business, as Home Secretary, is to stay within the traditions of Magna Carta and the ideals of British libertarian outlook".
One may be faced with such a situation, but here I am not sure that one is. I talked to the Nigerian authorities myself and I am not at all sure that they take quite as strong a view about this as the Commonwealth Relations Office is taking. When I was last a member of a Government, I always found that, whether it is the Foreign Office or the Commonwealth Relations Office, they tend to be much more royalist than the 593 king. We tend to get from our Ambassadors and High Commissioners cases much stronger than the politicians of other countries would make themselves. I would say to the Secretary of State for Commonwealth Relations, "No, I am sorry, but it is British tradition that I have to uphold. That must take precedence here. Our centuries-old tradition of giving asylum to a man charged with a political offence, if he asks for it, must hold here, and for those reasons I shall give asylum to Chief Enahoro and I rely upon you, as Secretary of State, to explain it in the best possible way to our Nigerian friends. I am sure that if you do that, they will understand it".
If the Home Secretary did that, I am sure that it would be much more in keeping with the traditions of his office than if he obstinately stands by an indefensible decision and sends this man back to Nigeria.
§ 4.27 p.m.
§ The Secretary of State for the Home Department (Mr. Henry Brooke)
I agree with the first and last passages in the speech of the right hon. Member for Belper (Mr. G. Brown). This is a grave matter. It deserves the most thorough and responsible thought that I am capable of giving to it. I agree with what he said at the end, that this is a case where the Home Secretary must not act as the agent of any of his right hon. Friends or anyone else. The law, which we cannot argue out of existence, puts squarely on the Home Secretary the responsibility of deciding what he thinks just; and he must act in accordance with what he thinks just and he must damn the consequences.
I must invite the attention of the House to some mistakes and misconceptions in the right hon. Gentleman's speech. For example, it may be a minor point, but it seemed to me that he was colouring the case against me by insinuating that a better or more broad-minded Home Secretary would have granted Chief Enahoro bail. I have no power to grant bail to a prisoner. That is entirely and exclusively a matter for the courts. I have no knowledge of any case at any time arising either under the Extradition Act or the Fugitive Offenders Act where bail has been granted, but let me say, once again, that it is for the courts and not for me to decide whether, in the circumstances, a prisoner is let out on bail.
§ Mr. Brooke
No, I cannot give way— Mr. S. Silverman: On a point of order, Mr. Deputy-Speaker. I think that we all appreciate what the right hon. Gentleman is saying, that the granting of bail is not a matter for him, but for the courts and, of course, he is perfectly right. But can he say whether anybody in the court opposed the application when bail was applied for, and, if the answer is "Yes", on whose instructions was it opposed?
§ Mr. Brooke
I do not recollect any application having been made for bail. But I am sure that my hon. and learned Friend the Attorney-General will deal with the point later in the debate, if he is pressed to do so.
The further and more serious matter where the right hon. Member for Belper was labouring under a misapprehension was when he suggested that it has been the tradition in this country for years, and maybe for centuries, to grant political asylum to anyone who sought it by saying that he wished to stay here because he thought that he might be oppressed in his own country. The tradition of this country is that a person is granted political asylum if, in his own country, he appears to us to be in danger of life or liberty on political grounds, or on grounds of religion or race.
That is a very different matter from what was said by the right hon. Member for Belper. It imposes on all of us the duty to examine and consider the situation in Nigeria, as it would impose on us all, particularly the Home Secretary, in any other case under this Act, the duty of forming a judgment on the situation, and the fairness and justice of the country to which the individual belongs.
In this case, which, as the House will fully realise I am sure, is a hateful and distasteful matter for any Minister to have to pronounce upon—but the duty is placed upon him—Chief Enahoro has been charged in Nigeria with offences of conspiracy and treason; conspiracy to overthrow by unconstitutional means the lawfully constituted Federal Government of Nigeria. He came to this country—and I will deal later in my speech with the point raised by the right hon. Member for Belper about the impression under which he may have been when 595 he came here—and the Nigerian Government took the initiative—the Home Secretary does not come into the matter at all at this stage—and called on the British authorities to apply the provisions of the Fugitive Offenders Act.
This Act, as the House will recognise, affects not ourselves alone, but all the other countries of the Commonwealth, so that we could not disregard it or set it aside without reference to them. Nor, if I may most respectfully say so, can we dismiss it and get it out of the way by saying that time has amended the Act.
The Nigerian Government set the machinery in motion. All that was nothing to do with us. The question does not come to the Home Secretary until it has been before the courts. When we were first discussing this matter, a week ago, it was suggested that the Fugitive Offenders Act was an obscure Statute which was very seldom used, a Statute which had been brought to light only by this case. That is far from the truth. I have taken the trouble to look back over the last ten years, and in that time the British Government have applied to other countries and territories within the Commonwealth under the provisions of the Act for the return of 16 people on various occasions who were charged with various offences in Britain—
§ Mr. G. Brown
With political offences?
§ Mr. Brooke
I am dealing with whether this is an unknown Act which has suddenly been brought out of its cobwebs.
During those ten years other Commonwealth Governments have applied to the United Kingdom for the return of no fewer than 76 people accused of offences. It is very important that there should be some established procedure for bringing to justice people charged with crimes who have taken refuge outside the country where the crime has been committed. That can hardly be challenged. The essence of the Fugitive Offenders Act and of the Extradition Act, which is older still, is that there must be both a judicial process and a ministerial decision.
Indeed, under the Fugitive Offenders Act, as I have said, the matter does not come before the Home Secretary at all until after all the judicial procedures have been completed. But the Act places the 596 final responsibility wholly on the Home Secretary and on him alone, exactly as the right hon. Member for Belper said. That is one of the very heavy personal responsibilities—I am sure that the House can think of another one—which every Home Secretary has to carry and has to approach in a judicial spirit.
The words of Section 6 of the Fugitive Offenders Act are perfectly clear. The Home Secretary has to decide whether he "thinks it just"—those are the words —that the person concerned should be sent to the country in which he has been accused to stand his trial there. The Home Secretary is absolutely free, under the Act, to say, "Yes" or "No".
§ Mr. Eric Fletcher (Islington, East)
Will the right hon. Gentleman say whether, in the 76 cases, to which he has referred, where application was made under the Fugitive Offenders Act, there were charges of treason or of political offences?
§ Mr. Brooke
I do not know of any for treason. I could not say whether any have been for political offences. But that is entirely irrelevant to the point which I was making. I was rebutting the arguments used by the right hon. Gentleman the Leader of the Opposition, a week ago, that this was a little-known Act which had been brought out of its pigeon-hole only for use on this occasion. On the contrary, it is a frequently used Act, and one without which, or without some substitute for which, Commonwealth relations could not be maintained.
Let me continue my argument. The duty of the Home Secretary under the Act is, simply and solely, to do what he thinks just. He is in no way compelled to follow what the courts have said, as the right hon. Gentleman seemed to imply. I have never used any phrase to suggest that. Obviously, the Home Secretary must take into consideration the findings of the court. Indeed, that is the point from which he starts. Unless the courts have reached certain findings there is nothing before the Home Secretary for him to consider.
§ Mr. Leslie Hale (Oldham, West)
§ Mr. Brooke
I cannot give way. I have a long speech to make.
§ Mr. Hale
The right hon. Gentleman should not point to the clock when we are debating the Consolidated Fund (No. 2) Bill. There is no end to this debate, except by the consent of the House.
The right hon. Gentleman has said that he locked up the figures of the cases in which the Fugitive Offenders Act has been applied and then I understood him to say to my hon. Friend the Member for Islington, East (Mr. Fletcher) that, having looked at the figures to find an argument, he did not look at the merits of the figures at all, or find out what they were about. That is precisely what the right hon. Gentleman said. He told my hon. Friend that he did not know how many political cases there were in respect of the British figures. Was that true, or was it a slip of the tongue? Has he looked at the figures to find out whether there were any political cases—
Mr. Deputy-Speaker (Sir William Austrother-Gray)
Order. I hope that the House will remember that the Home Secretary is in the process of making his speech.
§ Mr. Brooke
I have explained the course of my argument twice. I am not going to do so again even if the hon. Member for Oldham, West (Mr. Hale) failed to understand it.
The Home Secretary's duty under the Act is simply and solely to do what he thinks just. He must take into consideration the findings of the courts, because otherwise the case would not come before him at all. If the courts have not founda strong or probable presumptionof guilt—those are the important words in the Act—the case does not reach him.
If the courts have so found, then it is surely obvious that the Home Secretary would need substantial and well-grounded reasons if he were to decide that the fugitive should not be returned, as he is perfectly free to do. But he must cast the net of his thoughts far wider than anything said by magistrates or judges. He must be ready to take into account everything that may have a bearing on the matter, whether it was before the courts or not, and then he must reach his final decision on what is just and say yes or no.
§ Sir Peter Agnew (Worcestershire, South)
Will my right hon. Friend allow 598 me to interrupt him, because he is very good in allowing interruptions? Will he put the process of the magistrates' court into perspective and say whether the magistrate holds a kind of preliminary trial of the same kind as would be held in this country in the case of a man tried for murder, when he examines the evidence to see whether there is guilt and calls for witnesses, in this case front Nigeria—apart, of course, from a purely official witness furnished perhaps from the Attorney-General's Department in Nigeria?
§ Mr. Brooke
Let me try to explain, because there is, in fact, a close similarity between the proceedings before the magistrates' courts in cases under the Fugitive Offenders Act, and proceedings before the magistrates when it is a question whether someone in this country should be committed for trial on indictment. The decision of the Bow Street magistrate, that there was "a strong or probable presumption", is not in any way a finding that the charges against the person being sought under the Act have been proved.
In Enahoro's case that is a matter with which only a court in Nigeria can deal. The magistrate's function under Section 5 of the Act is, as I say, very like the function of a magistrate in this country who has to decide whether to commit a person for trial, but to commit a person for trial has never been regarded as pre-judging the outcome of the trial.
All that the magistrate says in such cases is that there is evidence on which, if it is uncontradicted, a reasonable jury could convict. The accused person may be confident that he has a complete answer to the charges against him. If it is a case in this country the man who is committed for trial will have an opportunity at his trial to rebut the evidence against him. In exactly the same way, if Chief Enahoro says that he has a complete answer to all the charges, as I believe he does claim, that is a matter for the courts in Nigeria. It is not the duty of the court here to try the case, still less is it the duty of the Home Secretary to try the case. It would be wholly wrong for me, as Home Secretary, to pronounce either on Chief Enahoro's guilt or innocence. I am not called upon to do that and I have not the slightest intention of doing so.
§ Mr. R. T. Paget (Northampton)
§ Mr. Paget
On a point of order. We are considering the Consolidated Fund (No. 2) Bill. There is no time limit upon our discussions. This is a matter in which personal liberty is involved. Important questions are being raised on that, and the right hon. Gentleman has made a mistake.
Order. I hope that the hon. and learned Member will recollect what is, in fact, a point of order far the Chair to deal with. What the Chair was faced with was the simple matter that two hon. Members may not be on their feet at once. The Chair has to decide which of the two should be allowed to speak and the Chair decided that the right hon. Gentleman who had the Floor was entitled to continue his speech.
§ Mr. Brooke
In the quarter of an hour in which I have been speaking I have already given way four or five times. I am quite ready to give way again to the hon. and learned Member for Northampton (Mr. Paget) in a moment, but perhaps he will do me the courtesy of allowing me to come to the end of this part of my argument. When I have developed that, I shall gladly give way to him.
What I was seeking to say was that in a case such as that of Chief Enahoro, the court here having found that there is a case to answer, my function is not to try to decide whether he is guilty or not, but simply and solely to decide whether I think it is just that he should stand his trial and face the charges against him and seek to rebut them in a court in Nigeria.
§ Mr. Paget
I am most grateful to the right hon. Gentleman for giving way. The point I wanted to raise was that he seemed to be telling us that a magistrate, either proceeding to decide whether a man should face an indictment in our own courts, or that a man 600 should be sent to face an indictment under the Fugitive Offenders Act, could not consider the man's answer to that case. In both cases the magistrate can, and must, consider anything which the defendant has to say and decide, in the light of that, whether there is a reasonable and probable case against him. It certainly is not a matter of simply looking at the prosecution's affidavits and nothing else. It is simply a question of fact. I wished to correct the right hon. Gentleman, because he seemed to be under a delusion.
§ Mr. Brooke
I think that we can agree that it is on all the evidence before the magistrates. I did not seek to use words to mask that as undoubtedly the principle. Maybe the whole thing will become clearer if I proceed with the course of events. I was diverted temporarily by my hon. Friend the Member for Worcestershire, South (Sir P. Agnew), who asked me a particular question.
I have been dealing with what happened before the magistrates' court. Chief Enahoro then made application for habeas corpus. That came before the Divisional Court, presided over by the Lord Chief Justice. The Lord Chief Justice concluded that it was impossible to say that the magistrate was wrong in holding that a strong or probably presumption of guilt was made out. The Divisional Court also examined—this is a separate point—an application by Chief Enahoro under a separate Section of the 1881 Act for relief on the ground that it would beunjust or oppressive or too severe punishment—again I am quoting from the Act—to send Chief Enahoro back to Nigeria.
The Divisional Court reached the conclusion that it would be not unjust, not oppressive and not too severe a punishment. The transcript of the Lord Chief Justice's judgment made it quite clear that the court, in reaching that decision, had taken account of whether Chief Enahoro would receive a fair trial in Nigeria, and concluded that he would.
Then Chief Enahoro sought to appeal to the House of Lords. The Appeal Committee of the House of Lords evidently took the same view, because it refused leave to appeal to the House of Lords. It would surely have granted 601 leave had it thought that there was risk of injustice or oppression if he were sent to stand his trial in Nigeria. Let me add, because there have been misconceptions and misstatements about this, that there is no question of Chief Enahoro being sent back to stand trial for his life. The offences for which he is charged under Nigerian law do not carry the death penalty.
Up to now I have been simply reciting what happened before the courts. Up to this point the question was not before me at all. When leave to appeal to the House of Lords had been refused, it then came to me. I had, naturally, had nothing to do with any of the courts' proceedings. I say quite bluntly and emphatically to the House that if any case under the Fugitive Offenders Act came to me and I was not satisfied that the person concerned would get a fair trial if I sent him to the country where he was accused, I would refuse to send him there.
The Act imposes no compulsion on me except in that one respect, to do what I think just. I have power to decide either way. To my mind, one of the most important questions a Home Secretary must answer at that stage of events is whether the person will or will not receive a fair trial if he goes. I have no hesitation whatever in believing that the Nigerian courts are fair and unbiased and that a high standard of impartial justice is administered in them. Anyone who attempts to deny that is taking on himself a very grave responsibility. I am aware that the right hon. Member for Belper certainly was not one to deny it.
If it is suggested that the Nigerian courts are under tight political control, how does it come about that four out of those who were accused along with Enahoro of participation in this treason plot, including three members of the Action Group, have just been acquitted in the Nigerian courts? The judge held that there was no case for them to answer.
§ Mr. G. Brown
Do not let us make too much of that. Is it not the case that the prosecution did not offer any evidence in their case, which does not really help the points made by the Minister?
§ Mr. Brooke
No. The prosecution, I understand, offered evidence, and the 602 court held that there was no case to answer.
§ Sir John Vaughan-Morgan (Reigate)
I understand that it was the Crown counsel who offered no evidence. It is worth noting that the Crown counsel is, in fact, a political appointment of the Federal Government. Therefore, it reinforces my right hon. Friend's argument.
§ Mr. Brooke
However it came about, I seem to have won that round. At any rate, I think that it is common knowledge that the reputation and integrity of Nigerian justice has been testified to by Chief Awolowo, who is Chief Enahoro's Parliamentary leader.
If it is suggested that the whole collection of charges against all the accused is some sort of trumped-up political expedient to discredit or get rid of the Opposition—I have heard that alleged —how does it come about that our own Lord Chief Justice has found, in the case of Enahoro, that there is a presumption of guilt?
Considering that the Chief Justice of Nigeria has himself recently been sworn a member of the Privy Council and is thereby entitled to sit in the Judicial Committee of the Privy Council here in London, it cannot be seriously maintained that the judicial system in his own country, for which he is directly responsible, is unjust, biased or corrupt. I have no ground whatever for doubting that, if Enahoro is sent back to Nigeria, he will receive a fair trial in the Nigerian courts. On that count, I cannot see how it could be held unjust to return him.
I am aware that it has been argued against sending him back that some of those who are accused along with him in this treason trial have had statements extracted from them by improper means. That argument has been used in their defence in the Nigerian courts. Provided that the Nigerian courts themselves are competent and just, as I believe them to be, it is in court that these allegations should be tested and sifted, in exactly the same way as any similar allegations, if made in a British court of law, are tested and sifted by the court.
It has also been represented to me that I should delay my decision because of two other cases which are pending and not yet decided in Nigeria. I have considered this, but I find that the Divisional 603 Court, under the Lord Chief Justice, considered that also and found that neither of these undecided cases is relevant to the case of Chief Enahoro, and this is so essentially a judicial matter that I must be guided by that.
Then there is the question of legal representation. On this, I explained to the House at some length last week the further inquiries I had made to ensure that there was no possibility of misunderstanding. The law in Nigeria says that a barrister from outside Nigeria cannot appear in a Nigerian court without a certificate from the Chief Justice of Nigeria authorising him to do so. I have already spoken of the high reputation of the holder of that post, but what the Lord Chief Justice and the Appeal Committee of the House of Lords here in London wanted to satisfy themselves on was that, if the Chief Justice granted a certificate for a barrister from England to defend Enahoro, the Government in Nigeria would not prevent that man from appearing.
An undertaking was given to the Divisional Court and repeated to the Appeal Committee that, if the Chief Justice gave his certificate for a named English barrister to appear for Enahoro, the Nigerian Government would not refuse that barrister entry into Nigeria merely because he was going to represent Enahoro. They would not refuse him entry, unless in his particular case there were other and good reasons. That was how the Divisional Court and the Appeal Committee interpreted the undertaking. I took particular trouble when the matter came to me, because it seemed to me of great importance, to check with the Nigerian Government whether this undertaking had been correctly interpreted. I have been assured by the Prime Minister of the Federation of Nigeria that the undertaking has the meaning and was intended to have the meaning which I have stated.
There have been suggestions in the Press here in London that the present Nigerian Federal Government is a tyrannical regime and that Enahoro, if returned to Nigeria, will be liquidated. I have already explained that the charges he faces do not involve the death penalty. By "liquidation" I suppose that some political action is hinted at. 604 It has been alleged in the newspapers and elsewhere that the Federal Government are bent on suppressing the Action Group Party to which he belongs and that that party and its newspapers are the victims of a campaign of oppression. It is argued on those grounds that there can be no hope of Enahoro receiving a fair trial.
Everybody will recognise that those are grievous charges to make against any member-Government of the Commonwealth, and I hope that everybody concerned, both in the House and outside, will consider carefully what substance there is in accusations of that sort. If I were convinced that there were real substance in those accusations, I should, of course, have been driven to conclude that it would not be just for me to return Enahoro to stand trial, but the facts do not bear it out.
The Federal Government of Nigeria are the democratically elected Government of the country. No one can deny that. As such, I know that they have taken certain steps—the promulgation of emergency regulations, the detention of certain Opposition politicians, the suspension for a time of parliamentary government in the Western Region, steps which it is perfectly legitimate for their opponents or other people to criticise. However, all these measures have, as I understand, been carried out in strict accordance with the Constitution. The Nigerian Government have not attempted to prevent their opponents from challenging the legality of their actions, not only in the Nigerian courts, but by appeal to the Judicial Committee of the Privy Council. The emergency regulations were brought to an end, as it was announced that they would be brought to an end, on 31st December.
§ Mr. J. Grimond (Orkney and Shetland)
I did not know that the Home Secretary had passed from the question of the possibility of Chief Enahoro being represented by a British barrister. This is a matter which puzzled me, because the Home Secretary tells us that he has complete faith in the Nigerian courts. I take his word for that. I am puzzled, though, why he attaches such importance to the fact that a barrister from this country should be able to represent Chief Enahoro. Supposing that this undertaking had not been given, would this have altered the right hon. Gentleman's decision in the matter?
§ Mr. Brooke
It would certainly have altered my decision if I had had the slightest reason to suspect that, as has happened in certain totalitarian countries, a person who is standing his trial on a serious charge has a tame counsel assigned to him and has no choice in the counsel who shall represent him. That is the reason why I felt it was desirable to clear the matter up, not because I had any knowledge whether Chief Enahoro would desire to have a Nigerian or a British counsel; but, as an undertaking had been given to our courts, and as it appeared from the judgment of the Lord Chief Justice that he attached a good deal of importance to the terms of the undertaking, it seemed incumbent on me to make sure that the undertaking was being correctly interpreted, because it would have been unfortunate had any misunderstanding come to light later.
I had passed on, however, to the situation in Nigeria. The facts there are—I say this in rebuttal of all those who would allege that Nigeria has a tyrannical régime—that no political parties have been suppressed in Nigeria and no newspapers have been closed down. The Action Group Party is certainly very much alive. It continues to form the main opposition in the Federal Parliament.
The Action Group's leading party newspaper which strangely enough bears the name of the Daily Express, is, to put it mildly, vigorous in its criticisms of the Federal Government. Even after the present treason trial involving leading members of the Action Group had opened in Lagos, the Action Group Party won control in the Lagos Town Council elections, and nothing has been done to upset that.
All this seems most unlike a police or tyrannical State. I am sure that we should trust the Nigerian Federal Government to do what is right. Certainly, if I thought that Chief Enahoro would be subjected to oppressive treatment in Nigeria, even if be had been acquitted, I would not think it right to return him.
The right hon. Member for Belper suggested that Chief Enahoro had been given an assurance that if be came to this country he would not be arrested, but could come in and come and go as he pleased. I made it my business to inquire most thoroughly into this matter. I have personally inquired into this and as a 606 result of my inquiries I have no doubt at all of what happened. No such assurance was given to him.
What happened was this. Chief Enahoro, before he came to this country, rang up a friend of his in this country and asked whether it would be safe for him to come to Britain. This friend rang up the Home Office and spoke to an official in the immigration department. It became evident, in the course of that telephone conversation that Chief Enahoro, if he came here, would not have a passport. There was a question, therefore, of whether he would get in. The official went into the matter and assured the person who had telephoned to him that provided Chief Enahoro brought with him some evidence of his identity there was little likelihood of his being refused leave to land.
The friend also asked about freedom from arrest. The official in the department said that to the best of his knowledge the only power under which Nigeria could seek to get him arrested was the Fugitive Offenders Act Everything to do with that Act, he explained over the telephone, could be dealt with not by him—the official—but by someone in a different department of the Home Office; the criminal department. He actually gave to the man on the telephone the name of the official in the criminal department who would be able to give him full information about the Fugitive Offenders Act.
As things turned out, Chief Enahoro's friend did not follow up that suggestion, nor apparently did he seek any legal advice in England. He seems to have thought that he had all the information he required without making further inquiries into the possible implications of the Fugitive Offenders Act. I want to tell the House, because I was determined to satisfy myself on this point, that I have personally seen the friend of Chief Enahoro who rang up the Home Office and the Home Office official with whom he spoke. I am in no doubt that what I have said is what actually happened.
I turn, finally, to the question which I know is in the minds of a number of hon. Members on both sides of the House. It was referred to by the right hon. Member for Belper and it is the question whether the Fugitive Offenders Act is not an outdated Statute, a Statute no longer appropriate to be applied in our dealings 607 with independent Commonwealth countries. It has been suggested in particular that fugitives from independent countries of the Commonwealth should be entitled to political asylum here equally with fugitives from foreign countries and that I should, therefore, act as if political offences excluded from the Extradition Act were equally excluded from the Fugitive Offenders Act.
For any Minister to say that he will disregard an Act of Parliament takes us into very deep waters. Treason, of which Chief Enahoro is accused, is in the very forefront of the offences specifically set out in the Fugitive Offenders Act. I cannot disregard the plain words in that Act in the course of reaching my decision. I have entire discretion, as the right hon. Member for Belper said, and he and I are at one about that. But I cannot read the Act to say anything other than what it does say. I must abide by the law as it stands and not as some others think it should be. I cannot accept the argument that I can do otherwise, nor do I believe that the right hon. Member for Belper would accept that in any other context—or that time has amended the Act and that, therefore, Ministers can disregard its terms.
§ Mr. Paget
That is just where time has amended the Fugitive Offenders Act. In 1881, treason meant quite simply treason against the Queen and, therefore, we certainly included it. Now that these countries have become entirely independent, many of them having become Republics, it is no longer treason against the Queen but treason against a foreign country, just in the same way as it might be treason against France. Treason has come to mean, because of time and events, something quite different from what it meant in 1881.
§ Mr. Brooke
Even if that were true, Nigeria has not become a Republic and the charge against Chief Enahoro is set out as treason against Her Majesty the Queen. But, really, we cannot put—and this is the essential point—our unilateral interpretation on an Act which vitally affects all the countries of the Commonwealth. The Fugitive Offenders Act is one of which it would be strange to say that a British Minister could disregard it or interpret it just as he pleased. 608 It is an Act that does not affect ourselves alone, but the whole of the Commonwealth. It is not an Act that is defunct or moribund, but one which is in frequent use between the Commonwealth countries and we in this country cannot presume to decide the present or future of the Act unilaterally by ourselves.
As I say, the interests of the whole of the Commonwealth are involved. Commonwealth countries as well as ourselves have both rights and obligations under it and we could certainly not lightly scrap all the machinery for ensuring that a criminal does not escape by taking refuge in another part of the Commonwealth without having new or better machinery to put in its place. As I said in the House last week, it may be that the future of the Act should be considered in relation to the future pattern of the Commonwealth and changes that have taken place in its structure in recent years.
That cannot be done without consultation with the Commonwealth. We will have to consider carefully with our partners in the Commonwealth what changes are needed. I am not sure that the solution is as easy as some hon. Members, whose sincerity I fully respect, would consider and I ask the House not to take as axiomatic that there is anything inherently unjust in the surrender by one Commonwealth country to another of a person charged with an offence of a political character, always providing that he will be given a fair and just trial after the surrender.
What has troubled a number of people outside and inside the House is a feeling that the Fugitive Offenders Act and the Extradition Act put alongside one another may be less fair to Commonwealth citizens than to foreigners. I suspect that that feeling has resulted in a Motion which I have seen on the Order Paper. I respect that view, but the true difference is this. Both of those Acts ignore the nationality of the person whose return is sought. Whether or not the person is a British subject, a Nigerian, an American, a Canadian, a United Kingdom citizen or whatever else he might be, under both those Acts that is irrelevant. What is relevant is the country in which he is alleged to have committed the offence. If it is a foreign country the Extradition Act applies. If 609 it is a Commonwealth country the Fugitive Offenders Act applies and that Act covers a wider range of offences than the Extradition Act. [HON. MEMBERS: "Why?"] I have no doubt why that is so. It is because the countries of what used to he the British Empire, now the British Commonwealth, are thought—and, I hope, are rightly thought—to have closer links of association, community of purpose and, indeed, community of law than exist outside the Commonwealth.
One may argue whether the wording of the Fugitive Offenders Act is exactly right in relation to the present and future. One may argue, indeed, whether the wording of the Extradition Act is exactly right. Very likely we should look at both of them to see whether either or both of them need amendment for the future, but I would think that, whatever we do, we should always accept that Commonwealth countries should always be specially prepared to help one another to bring to trial people charged with offences—as long as there is always a built-in safeguard against oppression and injustice; that is, as long as the ultimate decision is taken by someone whose duty is not simply to endorse legal findings on, perhaps, a narrow range of facts, but to take all the facts from everywhere into consideration before reaching a final decision on what is just.
This is what I sincerely sought to do in the case of Chief Enahoro. I am intensely proud of the fact that Britain provides—and, I hope, always will provide—political asylum for those who, if they return to their own country, might be brought before unjust or prejudiced courts, or might be subject to political oppression for their beliefs or actions. That does not arise in this case. Nigeria is not a country like that. If I had thought that it was, I would have reached a different decision in the case of Chief Enahoro, and there is nothing whatever in the Fugitive Offenders Act that would have prevented my doing so.
I do not believe that the decision I have reached is challengeable except by those who allege, quite falsely, that Nigeria is a tyrannical State whose justice cannot be trusted or, alternatively, by those who ask the Home Secretary to tear a page out of the Statute Book in 610 the name of justice. I cannot think that that is how we shall uphold our worldwide reputation for law and order and responsible parliamentary government. It is not something that I am prepared to do.
I stand by my decision—a decision for which I have to take full responsibility. That is what the Act requires of me. I am not beholden to anybody—indeed, I am not guided by anybody. I have to do what in all the circumstances I believe to be just, whatever the consequences may be. I can see what has happened in the courts, but that does not determine my action. I have to look at everything that appears to be relevant: to the justice of the courts in the other countries, the state of democracy in the other country. I have satisfied myself on all these points. It is, as I say, a hateful and a distasteful responsibility that is placed on the Home Secretary's shoulders, but I have discharged it to the best of my ability.
§ 5.13 p.m.
§ Mr. John Stonehouse (Wednesbury)
The last Parliamentary Question that my late colleague, John Dugdale, put down, on the night he collapsed in this House, was to ask for a statement on the case of Chief Enahoro. John Dugdale took a great and personal interest in this case, and if he were alive today he would be here to fight for this man to be allowed to stay in the country. As a friend and close Parliamentary colleague of John Dugdale, I should like to pay tribute to his lifetime of political work in fighting against injustice, and I can only hope that in this debate we shall achieve what he himself set out to achieve, namely, the right of Chief Enahoro to be allowed to stay here—or, at least, to go to another country—rather than that he should be returned to Nigeria to face charges of a political character.
I am glad that we have escaped from the inhibitions of the 1881 Act. The Home Secretary has himself admitted this afternoon something that was not quite clear a week ago—that he had the absolute discretion to make a decision on this case, and that he was not bound to return this man. The right hon. Gentleman's argument rested considerably on whether or not Chief Enahoro will have a fair trial if he is returned to Nigeria. I want to take up that argument, but first we 611 must appreciate that this man has not yet been tried. Some Press comment has given the impression that Chief Enahoro has already been on trial in this country, has been found guilty, and must therefore be sent back to Nigeria. That is not the case. The courts in this country could not consider all the political aspects of the case. They were not advised that, to some extent, there is political oppression. The Home Secretary may dispute the extent of it, but to some extent there is political oppression in Nigeria.
Our courts here have had to judge on a point of law—the application of the Fugitive Offenders Act, 1881. They were not judging whether or not this man was guilty of the offences of which he is charged, but the application of that Act. The Fugitive Offenders Act was devised at a time when all the far-flung countries of the Empire were under Her Majesty, but Her Majesty advised by the United Kingdom Ministers and not by Ministers in Nigeria or anywhere else. That meant that if a man were returned to a court in one of the Colonial Territories it was possible for the Queen's pardon to be granted on the advice of Ministers in the United Kingdom. In this case, that is not possible. The case will be out of the jurisdiction of the United Kingdom Ministers if Chief Enahoro is sent back.
The extraordinary thing is that probably we should have given political asylum to Georges Bidault if he had applied for it—we could certainly do no less than the Federal Republic has done. We would certainly have considered the application of Georges Bidault for political asylum if it had been made, but apparently we cannot consider political asylum being given to a man who was a very responsible Minister in Nigeria, who was an official guest here in the United Kingdom, and against whom charges were made more than two months after he had left Nigeria. This is an aspect of the case that has not yet been brought out. I want to refer to it at some length, and to go back, not to the date when Chief Enahoro was arrested, but several weeks further back to the date when he was active in Nigeria, and when he left, and what happened after he left, because these facts are significant.
Chief Enahoro was subject to restriction when the purge against the Action 612 Group began. He was subsequently released, and slipped out of Nigeria during September of last year. He went to Ghana, a Commonwealth country, which granted him political asylum and gave him documents to enable him to travel to Britain to see his two sons. He came to England for 48 hours. It is not quite correct to say, as the Home Secretary said, that before coming to England Chief Enahoro first phoned a friend to get permission to come here. He came to England for 48 hours before going on to Eire, from where he phoned a friend mentioned by the Home Secretary. Therefore, in the knowledge of the Home Secretary, he was actually in England for 48 hours before going to Eire.
The main point is that he left Nigeria in September. He was in Accra for some months, and came here in November. During the whole of that time the Nigerian authorities took no steps to issue a warrant for his arrest, nor did they make any allegations about his activities, political or criminal, in Nigeria. They allowed this man to go scot-free because he was in Accra and beyond their reach.
It is interesting that it is only when he is safely in Britain that the Nigerian authorities feel that they can act. He actually arrived in Britain on 22nd November, went on to Ireland on the following evening, and returned the following day after he had had assurances from his friend and contact, who had telephoned the Home Secretary, that he would not be subject to arrest.
§ Mr. Humphry Berkeley (Lancaster)
It would be of interest if the hon. Member could tell us when the charges were laid against Chief Awolowo and the 30 others who were arrested at the same time.
§ Mr. Stonehouse
I am not aware of the exact dates of these proceedings, but I am quite certain that the warrant against Chief Enahoro was issued in Lagos at 10 o'clock on the morning of 27th November and that that very afternoon, between 4.30 and 5 p.m., Chief Enahoro was arrested here. That leads to the very strong suspicion that there was some collusion between the Nigerian authorities and the United Kingdom authorities, and if there is any doubt about this it is a very serious matter indeed. I am 613 not accusing the Home Secretary personally of any abuse of his powers, but I believe that the activities of the Secretary of State for Commonwealth Relations in all this business are to be deplored. Then the man is arrested and his case comes before the court and he is refused bail. As my right hon. Friend the Member for Belper (Mr. G. Brown) said, it is a very sorry state of affairs that this man, who is a political leader of some standing in Nigeria, should have been refused bail for all that time.
If Chief Enahoro is returned to Nigeria it is most unlikely that he will have a fair trial. I say this because all the leading politicians of the Action Group have been arrested in what amounts to a purge of the Opposition, and some of the charges laid against them have the appearance of being—and I use the Home Secretary's words here without apology—trumped up. Therefore, it would be most regrettable to send this man back. Although the judiciary itself may be fair, the evidence brought before the court may be loaded by the Executive. There is strong reason to feel that that may be the case.
I hold in my hand statements made by witnesses and the accused who are involved in the trial which is going on now in Nigeria. Eleven of them make allegations of improper interrogation procedures, threats, prolonged hardships, starvation and violence, all designed to extract confessions or statements from them which are not correct. I believe that these statements mist be considered by the Home Secretary before he makes his final decision to send this man back. I should like to know from the Attorney-General whether these allegations have been subject to full investigation. I should also like to ask whether there has been borne in mind the allegation that one of the judges involved in the case is a political appointee who was closely connected with the N.C.N.C., the political party which is the strongest rival of the Action Group—a certain Judge Sowemimo.
I ask whether these things have been considered, because I believe that the Home Secretary has not had all these points brought to his attention. I think that the right hon. Gentleman has accepted the say-so of the Secretary of 614 State for Commonwealth Relations to the extent of accepting that there will be a fair trial in Nigeria. I believe that it is the Home Secretary's duty—since he laid so much emphasis on the importance of a fair trial—to weigh all these questions before Chief Enahoro goes back.
It may please Nigeria, or some people in Nigeria, if Chief Enahoro is sent back, but we should not necessarily accept in the House that it is a good service to the Commonwealth to send him back automatically, because this ruling party in Nigeria is involved in this vendetta, as it is, against the leaders of the Action Group. A great many people in Nigeria would be very concerned if Chief Enahoro is sent back in these circumstances. I submit that it would make not only Ghanaians but a number of others very concerned indeed if he is sent hack to Nigeria, particularly bearing in mind that Ghana itself gave him political asylum and is probably prepared to have him back even today.
I therefore ask the Home Secretary and the Attorney-General to consider before the end of the debate the uncertainties about this case—to put it no higher—the doubt whether there will be a fair trial, and the question whether or not there was an understanding that Chief Enahoro would not be subject to arrest. I understand from Chief Enahoro's friends that the course of events which the Home Secretary described was not quite on the lines on which he described it to the House and that there was a greater degree of understanding that he would not be subject to arrest than the Home Secretary has given us to believe.
Bearing in mind all the doubts about this case, do not we usually in the House and in this country, with all our traditions of fair play, give the prisoner, and particularly a political prisoner, the benefit of the doubt? I believe that that is what we should do on this occasion. If the Home Secretary is not prepared to allow Chief Enahoro to have political asylum in this country, may we ask the right hon. Gentleman to allow him to go to a third country of his choice where he will have that political asylum?
§ 5.27 p.m.
§ Mr. R. H. Turton (Thirsk and Malton)
I am sure that, whatever our view of this case, all of us have great 615 sympathy with the Home Secretary in the very difficult nature of the steps which he has had to take. If I approach the matter rather differently from the hon. Member for Wednesbury (Mr. Stonehouse) it is because it raises for me matters of great principle.
Where I slightly differ from my right hon. Friend is in his approach to the problem of Section 6 of the Fugitive Offenders Act. Last Thursday, and again today, my right hon. Friend rested his decision on many of these matters on what the Divisional Court had decided. I will quote from what has already appeared in HANSARD rather than from my own notes of what my right hon. Friend said today. If he spoke differently today I hope that he will correct me.
On Thursday my right hon. Friend said: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 Enaharo, if he is returned, will not be given a fair trial."—[OFFICIAL REPORT, 14th March, 1963; Vol. 673, c. 1542.]My right hon. Friend, therefore, is regarding himself as a court of appeal from the Divisional Court and the appeal committee. Surely this is not my right hon. Friend's function.
I should like to refer to the case of Zacharia versus the Republic of Cyprus where Lord Devlin made quite clear what is the function of the Secretary of State under Section 6 when he said:Section 6 of the Act provides that within fifteen days after the court has decided, if it does, not to release the fugitive, the Secretary of State may, if he thinks it just, order the return of the fugitive. I have put these words in italics because they make it plain that the discretion given to the Scretary of State is as wide as that given to the court under section 10.…There is a concurrent jurisdiction conferred on the Secretary of State. I cannot suppose that it is intended that he should act as a second tribunal to consider only those matters which a superior court has already pronounced upon. It is plain to me that one reason at least why the provision is there is because there may be considerations of a political or administrative character which go to the justice of the fugitive's return and are better inquired into by the executive.I listened with close attention to every word used by my right hon. Friend this 616 afternoon in justification of his action. However, having listened to his very cogent arguments, I could not really say that his approach was different from that of the Divisional Court. That. I believe, is the purpose of the Fugitive Offenders Act. Do not let us say that it is old and out of date. It gives the Home Secretary a very wise discretion in these cases.
As I see the problem concerning the return of Chief Enahoro, there are three questions to which this House and the Home Secretary must apply their minds. First, is it just that the right of political asylum which an alien would get should be denied to a Commonwealth citizen? Secondly, is it just that, having entered this country with an assurance of freedom from arrest, he should be sent back in custody? Thirdly, is it just that we should send him back to be subjected to police inquisitorial methods contrary to the methods of police administration in this country?
I want to deal shortly with those three questions. Perhaps here I may be allowed to correct my right hon. Friend. I understand that Chief Enahoro is not charged with treason. He is, in fact, charged with treasonable felony and conspiracy to commit treason. Suppose that Chief Enahoro was not a Nigerian subject but was a citizen of France charged with those offences. Would we or would we not grant him political asylum? As I understand it, the purpose of political asylum is not merely to save someone from oppressive judicial procedure, as my right hon. Friend suggested.
When the subject of the action against an accused, person is of a political character, this country, throughout its history, has always afforded that person asylum. One reason for that is that it is very invidious to go into the question of whether an allied country has right on its side in a political charge. I should have thought that an even greater reason was that when a new Commonwealth country was concerned the last thing we would want to do would be to inquire into the nature of its political charges.
I am satisfied from my knowledge of Nigeria that the accused would receive a perfectly fair trial under the Lord Chief Justice. I have the greatest regard for the judicial procedure there. But that is not the point. Equally, I feel sure that 617 someone charged in France in this way would have a proper and fair trial in France. But, as Chief Enahoro is being charged with a political offence, one difficulty is that any knowledge we have of the evidence against him comes from the political party which is trying to secure his conviction. It is therefore by its nature difficult for us to challenge the nature of that evidence.
What are the facts in this case? The background is that Chief Enahoro occupied in the Regional Government the office which my right hon. Friend the Home Secretary occupies in the Government here. The Prime Minister in the Government with him was displaced and. because the Regional Government objected to that party holding—
§ Sir P. Agnew
The Federal Government objected.
§ Mr. Turton
Yes. The Federal Government put other politicians in the place of the Prime Minister and of the Home Secretary. It is, therefore, hard to imagine a clearer background of a political character to charges of conspiracy. May I give an analogy from this House? Suppose we were in some form of European federation and Professor Hallstein in Brussels turned oust the present Prime Minister and Home Secretary and put in their place the right hon. Member for Orkney and Shetland (Mr. Grimond) and the hon. Member for Huddersfield, West (Mr. Wade). Suppose there had been a certain amount of shooting and some of the supporters of my right hon. Friend the Prime Minister in Orkney and Shetland had been shot—as they were in Northern Nigeria. Surely one could not escape the conclusion that, in view of that background, there would be much of a political character in a charge of treasonable felony and conspiracy to commit treason arising out of those circumstances?
The situation is even more confused than that. Again, I challenge my right hon. Friend. There are two appeals pending before the Judicial Committee of the Privy Council arising from the background to these charges. It is alleged in one appeal that the emergency powers under which Chief Enahoro was arrested were null and void. In the other the issue is whether the Prime Minister whom he supports is in fact the Prime Minister, or whether the 618 Prime Minister put in by the Federal Government is in fact the Prime Minister. Surely these must be material facts. It is true that, for the limited purposes of Section 10 of the Fugitive Offenders Act, the Divisional Court has ruled that this was not material to their judgment. But under Section 6 my right hon. Friend should surely allow these two appeals pending in the House of Lords to be decided first before making a judgment in this case. That is why I believe that Chief Enahoro should not be denied the right of political asylum. Throughout our history in this country we have always granted political asylum—
§ Sir K. Pickthorn
I have checked my memory on this, and, although I do not claim learning on it, I may say that our law about the right to grant asylum—but not the right of anyone to demand it—dates only from the time of the French Revolution. All this that we have had about ancestral rights being centuries old is really stuff.
§ Mr. Turton
Then let me say that the rights which we have enjoyed for the last 150 years should not be denied to Chief Enahoro. I think that that makes my case strong enough.
I turn to the rather difficult question about the assurances which were given to Chief Enahoro before he arrived in this country. I assure the House that I am quoting from a statement which has been in the possession of my right hon. Friend, who, therefore, must have full knowledge of it.
There has been talk about a friend whose aid was invoked. The fact of the matter was that Chief Enahoro, before he came to this country, asked one of the best known firms of public relations consultants to find out whether it would be safe for him to come and whether he would be free from arrest. He made his first statement, as the hon. Member for Wednesbury rightly said, when he was enjoying political asylum in Ghana and it was followed up later when he was enjoying political asylum in the Republic of Ireland. Both countries were giving him political asylum, which he is in process of being denied here.
There can be little doubt that the firm of public relations consultants was anxious to find the facts. There is no doubt that this ex-Home Secretary for 619 the Western Region was determined not to come here if he would face the risk of arrest. Therefore, the inquiry was made of the gentleman in the Home Office, who has been mentioned, to ask whether he would be free from arrest if he came.
The letter states:Obviously I was concerned not to give wrong advice and not to put Enahoro's freedom in jeopardy. I talked with Mr. H…,who seemed to me most helpful, and from this conversation I understood that Enahoro would not be arrested. If there had been any doubt about this I would have strongly recommended that Enahoro not come here.He goes on to say:I would like to reiterate the simple but compelling fact that the reason why I talked to the Home Office, at the request of Chief Enahoro, was to determine whether he would or would not be safe from arrest if he came to this country. After I talked with Mr. H.……I was certain in my mind that he would be safe from arrest and I so informed Chief Enahoro, and it is on this basis that he came to this country.I am quite sure that the officer of the Home Office did what he thought right, but, undoubtedly, the public relations consultant received the impression that Chief Enahoro would be safe from arrest if he came here. This misunderstanding should be taken into account by my right hon. Friend when deciding this matter, especially since it is an officer of his own Department who is involved. He undoubtedly gave, not merely a friend, but a public relations consultant, who is well known in this country and has innumerable contacts with people in Africa, the impression that this Chief would not be arrested when he came here, yet within two or three days he suffered arrest.
§ Mr. Brooke
My right hon. Friend says that my officials gave that impression. It may have been that the person concerned obtained that impression, but it was certainly not given. Since the date of the letter from which my right hon. Friend has read extracts, I have had both the people concerned together in my room and have discussed the full facts with them. It is not in dispute that the official said that he was not the expert on the Fugitive Offenders Act and that he gave the other person the name of the official from whom he could obtain full information about it. Unfortunately, it was not followed up.
§ Mr. Turton
I accept everything that my right hon. Friend has said, there is, however, no issue on this. The impression was definitely given. The public relations consultant would not have put his client in jeopardly if he had not himself received that impression. I at once accept from my right hon. Friend that Mr. H. did not intend that impression to be given. I feel sure, in view of what has happened later, that he would not have given that purposely and then had him arrested two or three days later. I must say, this is a very unfortunate background to the case.
§ Mr. S. Silverman
I am a little puzzled about the course of events. First, the chief might have been better advised to consult a firm of solicitors rather than a firm of public relations consultants. Apart from that, if the Home Office official was being asked the plain question, "Is he safe from arrest or not?" and if the Home Office official was answering that the only ground on which he could be arrested might be for an offence under the Fugitive Offenders Act, did there not lie upon that Home Office official to whom the plain question had been asked the obligation, if he did not know it himself, to ascertain whether any such proceedings under the Fugitive Offenders Act were contemplated? Might it not have been in this way that the false impression was given?
§ Mr. Turton
I will leave that matter. But it requires further consideration since I think it is a very unfortunate circumstance in this case. This is a man who has been a Minister for Home Affairs in the Western Region of Nigeria who, whether he took the advice of a public relations consultant or a solicitor, thought he was doing the right and proper thing in seeking the ruling from the Home Office. The man to whom he went for advice has a high reputation in Nigeria and he asked for the ruling, not once but twice. That, again, is a point which has not been brought out. The first inquiry was made from Ghana and the second from Dublin. That is an unfortunate circumstance over which I hope my right hon. Friend will ponder.
Thirdly, on the question of police inquisitorial methods, I have sent my right hon. Friend extracts from the transcript of evidence of the procedings in Nigeria. I have also sent extracts from 621 statements made by the accused persons to their solicitors in Nigeria. Whilst nothing takes away from one's confidence in the courts in Nigeria, the extracts show that the police methods in Nigeria are not what we normally would like to see, either in Britain or in any other country.
Let me quote from a statement by one of the accused to show the type of treatment that Enahoro will receive if and when he is sent back by my right hon. Friend. Mr. Sunday Ebietoma, one of the accused, states:I was packed away half-naked to the Force Headquarters. And by the time we were descending the steps of the Superintendent of Police Office, this man started his nonsense by pulling a gun from his pocket and saying that if I run he will shoot me….He then stood up from his chair and pretended to be mad by starting to pour abuses on the Action Group leaders Awolowo, Rewane, Enahoro and others who are now at the enquiry. 'The are all rogues. If you tell me that they sent you to Ghana you are going home tomorrow and if you refuse to tell me I will shoot you and say you were trying to escape'….Then he said, 'Do you not remember Awolowo, Jakande and Anthony Enahoro'. I replied I had nothing of that kind with them; I do not meet them anywhere.Then his boss came in…And he told him that I refused to tell him all he wanted me to. There and then the boss replied that I would be dealt with more seriously than now if I refused to say something, and he left. The man with the gun had got another power to deal with me. He gave me a good slap on the left side of my car with all sorts of rough handling, turned round the side of the table and kicked me on my left leg.That kind of thing makes one feel that there is something very wrong with the methods of police administration in Nigeria. I regard that as a factor which the Home Secretary should take into account. I beg him to reconsider his decision in this case. I know that there has been a great deal of pressure from Nigeria. I do not want this case decided on that issue. I think that the fairest approach is to say, "Is it not right that a man who is a Commonwealth citizen and who is accused of a political offence should be granted asylum here, just as he would be if he were an alien?"
§ 5.51 p.m.
§ Mr. Donald Wade (Huddersfield, West)
I am not persuaded by the explanation given by the Home Secretary, but I agree with his opening remarks that this is a grave matter. I hope that it is clear that the debate is about 622 the very important legal principles involved and their application to this case. We are not considering, or questioning, the impartiality of the Nigerian judiciary. Surely this country holds the general principle—and has done for 150 years or longer—that no one should be extradited for a political offence. Surely there should not be an exception—again I state this as a general principle—in the case of a Commonwealth citizen.
There appears to be general agreement that the Fugitive Offenders Act, 1881, was put on the Statute Book at a time when circumstances were very different. The Home Secretary himself on 14th March said:What I said was that I thought that the Act, which is now 82 years old, was right for reconsideration in view of the drastic changes that have taken place in the nature of the Commonwealth meanwhile.I think that it is generally agreed that there is need for a change in the law in the light of the altered circumstances. If the right hon. Gentleman is to consider what course to follow, pending this change, great care should be exercised in setting a precedent. Although the right hon. Gentleman is exercising his discretion, in fact each time he does so he is inevitably setting a precedent.
The problem in the situation as it exists today, rather than as it existed in 1881, can be illustrated by considering the law in another Commonwealth country—Southern Rhodesia. Let us get away for a moment from Nigeria. I am most anxious not to display any prejudice one way or another in so far as Nigeria is concerned. But let us consider what might happen with some of the offences which might now be committed under the laws of Southern Rhodesia—for example, the Law and Order Maintenance Act, 1960. I will quote only one part of that Act. Section 26 (3) reads:Any person who without lawful excuse, the proof whereof lies on him, makes any statement indicating or implying that it would be incumbent or desirable—623 In other words, anyone who says anything against the Southern Rhodesian Government is liable for an offence and might be committed to prison for seven years. Under new legislation which is being introduced, this kind of offence could be committed by a resident either inside or outside Southern Rhodesia. Surely it would be monstrous if a Southern Rhodesian who committed an offence under that legislation while in this country, and who was charged under it, were to be sent back because of the somewhat ancient provisions of the Fugitive Offenders Act.
shall be guilty of an offence and liable to imprisonment for a period not exceeding seven years.
- (a) to do any act or acts likely to lead to the destruction of any property;
- (b) to do any act or acts or to omit to do any act or acts with the object or which has the effect of defeating the purpose or intention of any law in force in the Colony or in any part thereof;
The Act was never intended to apply to this kind of situation, where the law is so different as between one part of the Commonwealth and another. That is the point. It was not anticipated in 1881 that there would be these divergencies in the law between one part of the Commonwealth and another. The right hon. Gentleman told us that we must observe the law as it stands. Again I quote from HANSARD. He said: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 House."—[OFFICIAL REPORT, 14th March, 1963; Vol. 673, c. 1546.]Surely the point is that the right hon. Gentleman has an absolute discretion. That is generally agreed. In addition to the factors he has mentioned there are three more—first, that there must be some recognition of the need for change in the law; secondly, that there must be care not to put Commonwealth citizens in a less favourable position than aliens; and, thirdly, if a person, whether a Commonwealth citizen or an alien, is genuinely seeking political asylum, and the Home Secretary is satisfied that he is, then there is surely a duty on the Home Secretary to exercise discretion in that person's favour.
All this is not a reflection on the Nigerian Government or on the Nigerian judiciary. Despite the precedents, the position is far from clear. We have been told that there have been a considerable number of cases, but the right hon. Gentleman was not able to tell us whether these cases involved charges of a political content and whether the issue of political refuge was involved. I hope that that aspect at least will be clarified.
624 The final consideration is the nature of the assurances that were given. The Home Secretary will be aware of the petition of 14th February, 1963. He has already told us of the conversations he has had since then. But, even putting it at its lowest, it seems that as a result of those conversations with officials of the Home Office there was a misunderstanding. It seems clear that this chief came here having been advised that he would be free from arrest. It may well be that there has been some mistake and I do not know where the fault for the misunderstanding lies. Whatever took place in the two conversations—and I agree with the hon. Member for Nelson and Colne (Mr. S. Silverman) that if solicitors had acted the outcome might have been different—it is clear that there was a misunderstanding and that the chief came here believing that he would be free, in the words of the petition:free to enter and depart without risk of arrestThat lays some obligation on the Home Secretary if that is what has happened, for it would amount almost to breaking our word if we allowed him to come here and gave the impression that he would be free from arrest.
§ Mr. Brooke
Nobody in the Home Office gave that impression, or gave that assurance. I want to make that absolutely clear.
§ Mr. Wade
I heard what the Home Secretary said and I do not want to misinterpret what he said, but I will merely repeat my remarks that somehow or other a misunderstanding arose as a result of two conversations which took place with an official of the Home Office.
§ Miss Jennie Lee (Cannock)
Does the hon. Member think that any man in his senses would deliberately come into a country where he was in danger of arrest if he already had the right of asylum in several other countries?
§ Mr. Wade
That follows from what I have been saying. There may have been a misunderstanding, but the facts are that he was arrested two days after he came here. For our own good name, the Home Secretary must take that into account.
625 I should like to develop the subject of consultation with the Commonwealth and my views of what should happen. There should be consultation with apposition parties as well as with Governments, but that is for the future. Here is a situation to be dealt with now and speedily. For the reasons put forward, I believe that we should not be upholding the principles of British justice if this man were sent back.
§ 6.2 p.m.
§ Sir John Vaughan-Morgan (Reigate)
My remarks will be brief, because I have duties elsewhere, and also because I am very conscious of some of the comments made in the debate last Friday and will therefore limit what I have to say. As I have another engagement, I hope that whoever follows me will forgive me if I do not stay throughout his speech.
Debates of this kind tend to be a lawyers' bean feast. I cannot claim to be a lawyer, but I wish to speak as one who has been in Nigeria fairly recently and who, as a friend of that country, resents some of the remarks made in the last few days about the course of conduct and justice in that country.
In his opening speech today, the right hon. Member for Belper (Mr. G. Brown) set a very different tone. Had that tone been set during some of the exchanges at Question Time last week, the task of my right hon. Friend would have been made very much easier. I happen to agree entirely with my right hon. Friend in this matter, but I should like to place it on record that I was moved by the right hon. Gentleman's speech, which was extremely creditable. I hope that whoever winds up from the Opposition Front Bench will repeat his opinion of the quality of Nigerian justice and dissociate himself from some of the remarks of the hon. Member for Wednesbury (Mr. Stonehouse) which were made in an effervescent mood last week and repeated today.
I feel very strongly that one of the important issues must be the standard of justice in Nigeria. When I was there last year, I was not making my first visit. I accept that in that country there are things to deplore, but there are in any country. 'There is a measure of venality and corruption which extends wider than it should, but I have never heard anyone 626 impugning the High Courts or the Federal Courts or alleging that they were anything but impartial and free from corruption and political bias.
Although it may seem rather odd to quote this in support of my case, I found that even expatriate opinion, which was not entirely reconciled to some of the changes which had taken place in that country, was absolutely assured of that fact. It is not always true of the district courts and, I understand, of some of the native administration courts. There are cases where political bias prevails. It is of some interest to note that during the emergency in the Western Region the Administrator introduced some extremely important reforms which may eliminate that danger in one part of Nigeria in future.
It is extremely easy to denigrate another country in this respect. It is extremely difficult to prove the integrity of the courts, but there has been special evidence in Nigeria. There has been the fact that in 1961 the Supreme Court ruled an action of the Federal Government to be unconstitutional, and that was completely and absolutely accepted by the Federal Government. There has been the quite obvious fact that four of the accused have been discharged.
Although I hesitate to put this forward, in a country where tribalism is still regrettably a dominant factor, it is perhaps most important that the judge trying the case is a Yoruba and also that the Chief Justice is a Yoruba. I am not saying that those are factors which should come into play, but they are marginal notes, so to speak, which might be observed.
I accept that the ruling about a British barrister was a foolish action by the Nigerian Government. I think that it is regrettable. If I can risk being a little flippant I think that it almost came under the heading of empire-building, since so many Nigerians are engaged in the law and are anxious not to lose briefs to people in this country. I think that the assurance my right hon. Friend has obtained is of the greatest importance. I resent the irresponsible impugning of Nigeria, which is so easy and facile, and which has taken place in so many quarters.
I fully admire the zeal of my hon. Friend the Member for Brentford and 627 Chiswick (Mr. D. Smith) in defending the interests of a temporary or transient constituent, if that is the right description, but not his use of the word "liquidation". I hope that he will amplify his reasons for using that word. I happen to have had the privilege of seeing my two hon. Friends on television the other night and I thought that my hon. Friend was not so enthusiastic about the word "liquidation", which carries with it the connotation of countries on the other side of the Iron Curtain and does not apply to Nigeria.
§ Mr. Dudley Smith (Brentford and Chiswick)
I deliberately used the word "liquidation" rather than "execution", and the Home Secretary confirmed that there is no ultimate penalty of execution. Chief Enahoro himself has said that he fears liquidation eventually in his own country if he is acquitted of the charges made against him.
§ Sir J. Vaughan-Morgan
This is rather a different approach from that which my hon. Friend originally emphasised. As he has interested himself in this case, I would have thought that he would have known from the start that this was not a capital charge and, therefore, that liquidation could carry only one connotation, and that is brutal elimination by some other forces. If he is now saying that Chief Enahoro, after his trial, runs the risk of losing his life if he is acquitted, I say to my hon. Friend that surely he will then be free to leave the country.
§ Mr. D. Smith
I only have Chief Enahoro's word for it, but he sincerely believes that restrictions will be placed on him and that his passport may be taken away.
§ Sir J. Vaughan-Morgan
His passport may be taken away, but I submit that Nigeria is somewhat conscious of its position in the world, and I cannot believe that my hon. Friend is seriously going to allege that if Chief Enahoro is acquitted the Nigerian Government will remove his passport with the object of having him murdered. I hope that whoever speaks from either Front Bench will make it quite clear that he does not think that Nigeria is that kind of country.
§ Mr. Stonehouse
Is the right hon. Gentleman aware that Chief Enahoro's 628 passport was withdrawn from him some months ago, and that when he left the country in September he had to slip away without a passport? Is the right hon. Gentleman further aware that in one constituency alone 150 Action Group supporters were killed, and in another constituency 13 were killed, in political attacks, and that this lends substance to the allegation that the situation in Nigeria is not as cosy as the right hon. Gentleman would have the House believe?
Order. We are reaching the position of an intervention on an intervention, and that is not good for order.
§ Sir J. Vaughan-Morgan
I must repeat that I do not think Chief Enahoro is in any danger of liquidation from any responsible authorities in Nigeria.
§ Mr. John Hall
There are irresponsible authorities.
§ Sir J. Vaughan-Morgan
There are, and there are some in this country.
The hon. Member for Wednesbury is carrying on his campaign of slander, but I must, as one who was there fairly recently, say that it bears no relation to the country I saw, or the people I met, including many people in the Action Group. The hon. Gentleman talked about an oppressive political régime in which the opposition party has been banned. Since independence, no political party has been banned or proscribed. I was there when the Lagos Town Council elections were on, when the Action Group had a sensational victory, on which was politically most embarrassing for the party in power. It was a sort of "super-Orpington". The Federal politicians were very embarrassed, but there was no sign of the Action Group being suppressed.
In the Western Region we met some of the opposition politicians. They were free in their criticisms and comments. They were not suppressed. No newspaper had been suppressed or banned in Nigeria, and, as my right hon. Friend said, the Daily Express in Nigeria flourishes. As to free speech, I cannot imagine any country in which free speech goes further. They are all absolute past-masters of vituperation.
§ Sir P. Agnew
Is it true that there is one place, at any rate, where it is not possible to exercise free speech, and that is in the Western Region Parliament, because it has been suspended?
§ Sir J. Vaughan-Morgan
My hon. Friend is out of date. The emergency is over in the Western Region. When the Federal Government suspended the Constitution in the Region, it promised to restore it by December. It has done so, and I think that some credit might be given to Nigeria for the fact that it is able to carry on its politics in an orderly and constitutional manner. Nobody would pretend that it was right or ideal to have to suspend a Government, but India did it. Will anybody say that India has not a democratic Government because they suspended a Provincial Parliament?
I found it difficult to follow the account of events given by my right hon. Friend the Member for Thirsk and Malton (Mr. Turton). The best thing I can say is that it differs very considerably from all that I have read in fairly reliable sources. The reason for this suspension arose entirely from the split in the Action Group Party, and that has now been restored.
I agree that democracy, and perhaps justice, are rather frail plants in Africa, but I do not think that there is any country in Africa in which there is a better chance of their surviving than in Nigeria. This debate will be very widely studied. Some of the opinions will, understandably, be construed as a censure, but I hope that most hon. Members will let it go forth that we do not believe that the standards of justice in that country are not sufficiently high for my right hon. Friend to exercise his duty as he has.
§ 6.17 p.m.
§ Mr. Sydney Silverman (Nelson and Colne)
In view of the statement of the right hon. Member for Reigate (Sir J. Vaughan-Morgan) that his obligations elsewhere permit him to make a speech in this important debate, but not to wait for the answer, I hope that he will not think it discourteous of me if I do not attempt to answer it.
§ Sir J. Vaughan-Morgan
§ Mr. S. Silverman
I am not criticising the right hon. Gentleman; I am only apologising for not answering his speech.
If I had been the Home Secretary—which, I admit, is not very likely—and if 630 I had wanted assurances from the Government of Nigeria which would influence me in the exercise of my discretion whether to agree with the courts that Chief Enahoro should be sent back, or to disagree, I would have been much more interested in obtaining an assurance from the Nigerian Government that if this man were returned to them, were tried and acquitted, he would be allowed to leave Nigeria without let or hindrance on the part of the Nigerian Government.
If the right hon. Member for Reigate is right, there would have been no difficulty in obtaining such an assurance, and I am at a loss to understand why the request was never made, particularly in view of the fact that, as my hon. Friend the Member for Wednesbury (Mr. Stonehouse) reminded the House, Chief Enahoro has no passport, so it cannot be withdrawn.
§ Mr. Paget
There is another interesting inquiry which might be made. This gentleman who is to return to Nigeria has two children here. He is not on a capital charge. Would Lloyd's or any other insurance company issue him a life insurance policy?
§ Mr. Silverman
As a solicitor, I am no more competent to judge of the policies and practice of insurance companies than was the firm of publicity experts to advise the chief about his legal rights.
§ Mr. John Hall
As questions of that kind are being asked, perhaps I could ask another. If Chief Enahoro is found guilty, presumably he will have the right to appeal to the Privy Council. Will there be any change of legislation in Nigeria in the meantime which will prevent that?
§ Mr. Silverman
These are realms into which I am not competent to enter, or, at any rate, to express an opinion of any more value than the hon. Member's own. I will not attempt to answer the question, especially since, to my mind, most of these inquiries are irrelevant in any case.
I concede this to the hon. Member: we are in no way concerned with the state of affairs in Nigeria. That is not our business. We are concerned with the proper exercise of our own laws, and with nothing else. If I could convince myself, as the Home Secretary has 631 convinced himself, that what he proposes to do is in accordance with our own laws and that he has a duty imposed upon him from which he has no escape under our own laws, I would not be making this speech. But I do not believe that. I do not believe that that is a maintainable proposition.
This is one of those occasions in which small matters of party political differences in the House of Commons have no real bearing. We are all custodians of our own conception of freedom, and what we have to consider is whether we are acting faithfully in accordance with that custodianship or trusteeship, or are betraying it. In my opinion, we are betraying it if we accept the Home Secretary's views. I hope to persuade the House on that point.
I have had my differences with the Home Secretary in the past, and I will no doubt have my differences with him in the future, but I concede at once his courage and integrity. I have never doubted them, and I do not doubt them now. I am sure that he has conscientiously convinced himself that he is right. But it is because he has been able, in these circumstances, to convince himself that he is right that he has given us one more instance—I am sorry to say this, but I must—of the fact that he is not, by temperament or personality, fitted to discharge this kind of obligation or to exercise this kind of discretion.
In a sense, the right hon. Gentleman is the victim of his own integrity and honesty. Having made up his own mind, he thinks that he is entitled to act on his own judgment. He talked about his absolute discretion. If by that he meant that he had a discretion entirely independent of the judgment of the court, I agree with him wholeheartedly. But if he meant that what the Statute imposed upon him was to make up his own mind and be responsible only to himself for what he decided, he is wholly and completely mistaken. The Statute reserves discretion to him because it wants to reserve a discretion to the House of Commons, and this was the only way that this could be done.
This is not the case of a man who is entitled, because he is Home Secretary, to sit in solemn judgment, and to rely 632 on his own judgment, ignoring any other consideration or opinion. In the exercise of his discretion he is responsible to the House of Commons. He is not in the position of being able to say, "Verily, I am the people, and wisdom will die with me". In the last resort it is this House of Commons, and not the Home Secretary, which is entitled to judge these matters on behalf of the people. I hope that the right hon. Gentleman will bear that fact in mind if he reconsiders the matter, as I hope he will.
I want to deal with his argument that he would be tearing a page out of the Statute Book if he exercised his discretion in a way otherwise than according to his announced intention. I appreciate what he means. He is saying—and It is a quite comprehensible notion—that if this man's extradition were demanded by a foreign country, under the Extradition Act, it would not get it. It is conceded that whatever this man has done or has not done, and whether he be guilty or not guilty, the offence charged has a political character and background. In those circumstances, it is common ground that if the only procedure open to Nigeria had been a procedure under the Extradition Act the courts would have been precluded by that Act itself from acceding to Nigeria's request.
The Home Secretary correctly pointed out that there is no such provision in the Fugitive Offenders Act. He conceded that the Act ought to be amended in this respect, but he said that he had not amended it and that, therefore, he must apply it. He said that for him to introduce into the exercise of his discretion a principle of political asylum which is not included in the Act would be to amend the law on his own authority—and that he is not entitled to do that. I hope that the right hon. Gentleman accepts that as a reasonably fair statement of his reasons for feeling that he is powerless in the matter.
But he is not powerless in the matter—for that very reason. He said that these matters do not come before him until the courts have dealt with them. That is only part of the truth. They do not come before him until the courts have dealt with them adversely to the applicants—that is to say, adversely to the men whose extradition is being 633 sought. If the courts decide in an applicant's favour the Home Secretary has no power at all. Both the Fugitive Offenders Act and the Extradition Act provide that if and when the courts have decided—and they have very wide grounds—not to grant the application for extradition or removal, that is an end of the matter. It is only if, having heard the arguments within their powers, they decide against an applicant that the discretion of the Home Secretary comes into play.
Will the Home Secretary bear with me if I point out to him in one sentence the fallacy of his argument? The powers of the courts under the Extradition Act are one thing; their powers under the Fugitive Offenders Act are another. In particular, the courts to which the Home Secretary has repeatedly referred for support never had the power, at any stage, to consider any political aspect of this case, as they would have had under the other Act.
All that the right hon. Gentleman said on the question of the important bearing which the decision of the courts must have upon the exercise of his own discretion is completely distorted when we remember that the only ground on which it can fairly be said that this man ought not to be sent to Nigeria—namely, the political character of the offence—is the one which the courts have no power to consider at all. If the Home Secretary is right, then it would mean that in any case under the Fugitive Offenders Act all political considerations must be excluded, even whether the man is to be represented by a British counsel.
I cannot understand why so much importance was attached to this point in the courts, or by the Home Sccretary. If he is quite confident about the supreme fairness and justice of Nigerian procedure, why should not he be content for this man to have a Nigerian counsel? What is the point of insisting. The only point of insisting is if one believes that he has a better chance in Nigeria of being properly defended if he is represented by counsel from this country than if he relies on counsel selected by him in Nigeria under Nigerian law.
I have been practising the law in this country for only thirty-four years, but it seems to me that that proposition is the exact opposite of the truth. If I were a 634 judge in Nigeria I would think it an offence to my office to give a man a fairer trial because he is represented by foreign counsel than if he were represented by one of my own countrymen. Unless we are saying that he must have a British counsel, otherwise he will not get a fair trial, why say it at all?
Coming back to the proposition which must follow inevitably and irrefutably from the Home Secretary's explanation, that neither the court nor he in the case of a Commonwealth citizen has the right in these matters to take into consideration any political aspect of the case—being the only one which is material in this case—then he is enunciating a proposition which, I venture to say, will be virtually unanimously rejected by the whole of the adult population of this country and which is in itself contrary to natural justice. If we say that if Nigeria declared its independence tomorrow, or next week, or next month we would then not send Chief Enahoro back because it would not be right to do so, why is it right to say that because Nigeria is in every other respect, with our free approval and support, an independent country, we will send him back?
The right hon. Gentleman, I think, misled himself about the use of the word "treason" in one Clause of the Fugitive Offenders Act. In any case, it has been pointed out that this man was never charged with treason, but with treasonable felony, which is a different thing. But suppose that it were treason—it was treason in 1881—and that means some offence which would have been regarded as treason against the Queen if it had been committed in Great Britain. Does the right hon. Gentleman say that? Is he saying that the offence with which this man has been charged in Nigeria, the offence of treasonable felony, would be equally indictable in this country, that it is an offence against our laws? I am sure that he is not.
The whole point of the concept introduced into the Extradition Act of not sending a man back for political offences to another country was precisely that the offence charged was not an offence which, as it were, is commonly accepted by mankind as such. Where there is a political element, a political background, a political motive, then it is taken outside the category of the 635 ordinary criminal law and extradition does not apply to it. The only reason why it was not in the Fugitive Offenders Act, 1881, was because at that time no British subject could be in the position of doing something in one country that was an offence but not an offence at home The whole concept of the thing was different.
If the right hon. Gentleman concedes, as he most eloquently and movingly did concede, that his duty in the exercise of discretion is to see that justice is done, I challenge him to say on what definition of justice it would be right to send this man back to Nigeria for political offences. If what is truth is a relevant question, what is justice would have been an equally relevant question then. It is a relevant question now, and the right hon. Gentleman must answer it in terms acceptable to the House of Commons, to whom he is responsible for the discretionary and the arbitrary powers he exercises in respect of this and other acts.
The right hon. Gentleman, for all his virtues and his accepted intelligence, has the unique knack of misleading himself to wrong-headed conclusions whenever an important issue of liberty is at stake. He does not mean to, he does his best according to his lights to avoid doing that. I concede that at once. But his lights are, I would not say dim, but out of focus. He does not come to the right conclusions; he does not see the right things; he does not see them in the right relation to one another.
The essential point in this matter is that the right hon. Gentleman has absolute discretion subject to his responsibility to the House of Commons. It is a discretion imposed upon him by Statute to do justice and he is proposing to do a manifestly unjust thing against the will of the majority of the House of Commons if it were left to decide for itself. He gets out of this dilemma by saying, injustice be my justice. There is no other way of explaining the right hon. Gentleman's conduct. If he really cannot educate himself into a proper attitude to these matters, I suggest to him in all sincerity and humility that he should go straight to the Prime Minister and ask to be given some other appointment.
§ 6.40 p.m.
§ Mr. Dudley Smith (Brentford and Chiswick)
I feel that the House should have an explanation of how I became involved in this matter. Chief Anthony Enahoro was arrested last November in my constituency and he appealed to me, as a British Member of Parliament, for help through constituents of mine who were friends of his.
As the House knows, I have been fairly active in this matter over the last week or two and at the same time I have incurred a certain amount of unpopularity. But I deemed it my duty, having had this appeal from the chief, to take action on his behalf and go into the matter very thoroughly. This I have done.
At the outset, I must say that I began with complete impartiality. I had no brief for the chief and I have no particular brief for him now. But as I investigated the case, I sifted through the evidence, I came more and more to the conclusion that it would be wrong to send this man back to Nigeria to stand trial. All-party interest has been shown in this matter, as has been admitted in this debate. I think that the points which have been made were made with sincerity.
I was fortunate enough to be able to take an all-party deputation to see my right hon. Friend and I should like publicly to thank him for the courtesy he showed and, if I may say so with respect, the judicial interpretation he revealed when we lobbied him. My right hon. Friend gave us over an hour of his time and I honestly think that he has considered the matter extremely carefully. I come down against him because I think his decision is wrong. But I am quite convinced that his decision has been made sincerely and impartially without prejudice or pressure from anyone.
I submit that there is still time for my right hon. Friend to change his mind and that there is a case for allowing the chief to remain in this country. It may be made under three main headings. First, the Fugitive Offenders Act of 1881 is well out-of-date, as has been shown this afternoon, and anyway the Home Secretary himself has absolute discretion under it, as he admits. It would seem certain that the Act will be changed and, if so, in such a case as this, Chief Enahoro 637 would be allowed to remain. Secondly, if he is sent back to Nigeria, he will receive less fair treatment than would a foreigner in similar circumstances in this country. That point has been underlined several times and I do not need to labour it. Comparable cases have been pointed out, where foreigners would have been allowed to remain in this country.
Despite all the things said by my right hon. Friend the Member for Reigate (Sir J. Vaughan-Morgan), in his effective and short speech, there are, thirdly, definite doubts as to whether this man would get a fair trial in Nigeria. I wish to examine the case argued by those who oppose the granting of political asylum to Chief Enahoro—not necessarily that of my right hon. Friend, who put the view of the Government. Some of my hon. Friends believe that this man should be sent back to Nigeria. As I understand it, their argument is that if we believe in the Commonwealth—I am sure we all do—we must support all the systems of justice of the Commonwealth countries whatever private doubts we may have about the way those systems are administered.
I agree that this is a strong argument. But however grave our doubts, should we, in effect, sacrifice someone who is really a political refugee on the altar of expediency, rather than offend the Government of a country which is a member of the Commonwealth? I say that we should not. Should we have sent Chief Enahoro back had he come from Ghana? I doubt that very much. Ought not we to treat an individual case on its merits and not just express the opinion of a Commonwealth Government?
In this case, I should have thought, in view of the external circumstances attending it, that we could well take the line that we should allow this man to remain, and take the risk—not a very severe risk, I suggest, in the long run—of offending the Nigerian Government. It is also said by the opponents of political asylum for Chief Enahoro that as the chief has appeared in our courts, and a strong presumption of guilt has been found against him, he should be sent back.
I am not a lawyer, as many of my hon. Friends know. But the phrase "strong presumption of guilt" seems particularly unfortunate. Was not the court hearing the equivalent of a lower court 638 hearing? In such cases people are taken before British courts and the evidence tested, but that evidence must be taken on its face value. It is obvious that the evidence that has been submitted from Nigeria has not been open to cross-examination or rebuttal and, consequently, I think that our courts—the magistrate at Bow Street and subsequently the Court of Appeal and the Appeals Committee of the House of Lords—had an extremely difficult job not to accept the evidence on its face value, and to give the opinion that was given.
I should have thought that, were the evidence tainted—there are suspicions that it may be—it is absolutely worthless, and the courts could well have ruled the other way and allowed Chief Enahoro to remain in this country.
§ Mr. Niall MacDermot (Derby, North)
In support of what the hon. Gentleman is saying, may I ask whether he is aware that there is a decision of the House of Lords that the test to be applied is exactly the same as the test in all courts in this country? The magistrate has to decide whether there is a case to answer, that and no more, and the words "strong presumption of guilt" are, in consequence, misleading.
§ Mr. Smith
I am obliged to the hon. Member. I am glad that he is able to support the point.
Those who advocate that Chief Enahoro should go back to Nigeria also say that the Home Secretary must interpret the law as it stands, whatever he may feel personally about the case. But the Home Secretary admits that the Act is out of date and that he has absolute discretion. Surely, in some ways, this is a parallel with the death sentence. A man may commit a foul murder, for example, and be properly tried and defended in the courts, but is convicted and sentenced to death. He appeals and his appeal goes to the High Court, and is dismissed. It goes to the House of Lords, and is dismissed again. There may be strong public feeling, and almost an outcry, if the public think that the man will not hang. But nevertheless, the Home Secretary has absolute discretion in the exercise of the Royal prerogative of mercy.
This has been done, perhaps not in the time of my right hon. Friend's period of 639 office, but certainly by some of his predecessors, of both political parties. I should have thought this case an example of "without fear or favour", and that my right hon. Friend should exercise his discretion as he would, if he thought the case merited it, in respect of a death sentence on a British subject.
Opponents of the granting of political asylum to Chief Enahoro say that the Nigerian judiciary is sound, of high quality and full of integrity. This may well be so. I am not qualified to speak about the Nigerian judiciary. I am not necessarily criticising the Nigerian judges, nor have I ever sought to do so. But one must bear in mind that it is all a question of dealing with the evidence, and that however efficient and worth while, and however full of integrity the judiciary of a country may be, it cannot possibly operate effectively if the evidence placed before it is not of the standard and quality required in this country. As we have heard from my right hon. Friend the Member for Thirsk and Malton (Mr. Turton), there may be grave doubts about the methods used to obtain some of the prosecution evidence in the treason trial going on in Nigeria at present.
We also know that countries which virtually become totalitarian—this is no criticism of Nigeria—keep the judiciary in power so that in some ways it may be used as a cloak in order that people may operate beneath the surface while presenting an appearance of respectability to the outside world. I consider that the question of an appeal to the Privy Council, in the last resort, if Chief Enahoro is convicted, is something of a "red herring". If I am wrong, my legal friends will correct me. But I understand that there is sometimes a delay of two years before an appeal comes before the Privy Council and that it has to be decided on points of law and evidence submitted at the trial. It is conceivable that were Chief Enahoro wrongly convicted in his own country, the Privy Council would he so bound as not to be able to dismiss the conviction.
All these points, made against Enahoro, although perfectly relevant and fair to make, do not stand up to close examination. Like the right hon. Member for Belper (Mr. G. Brown), I was appalled to see the leading article in the 640 Daily Mirror today, saying that the Home Secretary was right. It is almost the first time in my experience that the Daily Mirror has ever supported the Government, and were I a member of the Government I should be very suspicious about it.
I must say that I am surprised at the lack of integrity which has been shown by the Daily Mirror in not declaring its interest, because I believe that it has newspaper and business interests in Nigeria at present. I submit that, on examination, the case it puts forward largely falls to the ground. I should have thought that the majority of people outside this House would have thought it was a case of common justice that Chief Enahoro should be allowed to remain and that if a foreigner were received in this country under similar circumstances he would almost certainly and automatically be given political asylum.
That is why some hon. Friends and myself last night tabled the Motion:
That this House is of opinion that Chief Anthony Enahoro should, as a Commonwealth citizen, be accorded rights and liberties not less favourable than those granted to an alien seeking political asylum. Chief Enahoro, as a Commonwealth citizen, should at least be granted treatment on a parity with those from other countries who come here with a political past hanging over them. I think that, on the whole, this has been made out to be a political trial which is going on in Nigeria at present. If anyone is a political refugee, surely it is so in his case.
I agree that the Fugitive Offenders Act must operate in respect of people accused of criminal offences and that they should be sent back to face the music, but politics is in an entirely different category, as all agree, irrespective of the political sides we may take in this House. In this case, there has been enough doubt cast on this treason trial to make us realise that perhaps there is a chance that Enahoro may not have a fair trial. It is not for me to make allegations against anyone connected with Nigeria, because I am not an expert on the Commonwealth. As I explained, I came into this matter only because I felt that common justice should be done to a man who is in trouble. Apart from the fact that I have little 641 Commonwealth knowledge, however, as a Member of Parliament, like all my colleagues on this side and hon. Members opposite, I have had experience of sifting through evidence presented to me to find out if there is a germ of truth in it, or if it is incorrect.
Here I found that there have been a number of prosecutions of the Press for sedition and making adverse comments against the régime in Nigeria. It has been stated that the hon. and learned Member for Ipswich (Mr. D. Foot), who is a distinguished member of the Bar, was turned out of Nigeria in a case in which he was engaged. It is true that another British Q.C. who was to defend a person taking part in this trial was also refused admittance.
In this particular matter the undertaking which has been given by the Nigerian Government, sincere as it may be, is open to doubt from the point of view of Chief Enahoro, because he has seen this happen before. It is quite possible chat the immigration authorities could refuse permission to a member of the British Bar to go there and take part in the trial. The Leader of the Opposition in Nigeria, Chief Awolowo, was refused counsel of his own choice and he has been defending himself. I understand that there is no jury in this case and that the hearing is being undertaken by a judge sitting on his own. There have been serious and grave allegations—I say this with deference to my right hon. Friend the Member for Reigate —of brutality, intimidation and coercion.
I do not accept all this evidence as being true, although I have sifted through great piles of transcripts of the trial, but, if only a quarter of it were true, it throws very great doubt indeed on whether Chief Enahoro would get a fair deal. Illustrations have been given by my right hon. Friend the Member for Thirsk and Malton and I could quote three or four cases, but time does not allow of that as other hon. Members want to take part in this debate.
§ Mr. Brooke
I could say a good deal about certain matters which my right hon. Friend the Member for Thirsk and Malton (Mr. Turton) read out, but those matters are sub judice in Nigeria and we must be careful what we say. I think that all of us must be careful in reaching judgments on matters which are now 642 before the Nigerian courts for judgment there.
§ Mr. Smith
I appreciate the point made by my right hon. Friend. In view of what he has said, I shall not pursue the matter of the evidence. This evidence has been submitted to my right hon. Friend and I believe that he has seen all the documents.
Yesterday, I went to Brixton Prison and had an hour's interview with Chief Enahoro in the Governor's office. I had not previously been to see him. Deliberately, I had kept away because I did not want to become involved with him on a personal basis, for I wanted to sort out the facts in a judicial way. I was very impressed by this man, by his bearing and the arguments he put to me. That he had held high office in his country was made obvious by the clear thinking he brought to bear on the subject.
§ Mr. Anthony Fell (Yarmouth)
I am following with great interest and almost complete agreement what my hon. Friend is saying, but I wish to refer to an intervention a few moments ago. Would it not be sensible, if it is true that certain matters affecting this matter should not be discussed in this House because something is sub judice, to wait until it is not sub judice?
§ Mr. Smith
Without commenting on the intervention made by my hon. Friend, I say that in this interview I found Chief Enahoro obviously very depressed, as anyone who had been in prison for four months and who was fairly certain that the Home Secretary had come down against him would be. He told me about the matter quite fairly, even allowing for the fact that I was having an interview with him and be would put the best face on his own story, as anyone would in the circumstances.
I was confident that he was telling me a great deal of truth. He told me that he appreciated, with great respect, the difficulties with which the Home Secretary had been presented, at this long range, in deciding whether he would get a fair trial if he were sent home to Nigeria. He pointed out, however—and. this was very relevant—that fair trials do not begin and end in court and that so much depends on how evidence is obtained.
643 The fact that no evidence was offered against the four who have been mentioned may, if the trial were not fair, have been a very clever move on the part of those running the prosecution. This is a matter of opinion, but I think that due attention should be paid to the statements he made and also to the story that he gave me yesterday. He told me of two principal witnesses in the case who had had charges made against them of possessing firearms and that those charges had been outstanding against them since September. Both had been promised that they would be treated very well in return for their evidence.
Chief Enahoro feels that ways of obtaining objection to his counsel will be found once he has gone back. I think that the most important thing of all is that no assurance will be given to him that if he is acquitted he will be allowed to leave Nigeria to pursue either his personal or business interests. Four leading members of the Action Group not on trial at present have had their passports withdrawn, and they are virtually political prisoners.
§ Mr. Eden
I think that I am right in saying that if Chief Enahoro is acquitted, Section 8 of the Fugitive Offenders Act gives him the right to request from Her Majesty's Government here that he should return to this this country.
§ Mr. Smith
He may do that, but it is another question as to whether he will be able to get out of the country.
On the "liquidation" question, which I make no apology for raising and would not raise if I did not think that there was a germ of truth in it, Chief Enahoro confirms my view. I thought that the penalty for the treasonable offence with which he was charged was life imprisonment or death, but I have been corrected by the Home Secretary and I accept that correction. I thought the penalty would be hanging. I used the word "liquidation" deliberately because Chief Enahoro thinks that in the state of political turmoil there may well be at the time when he is acquitted—if he is acquitted—he could meet with an "accident," or be shot "while trying to escape", or that in a hundred and one other ways something could befall him. In this political 644 situation he told me that he fears for his life.
It is a fair point to make, and shows his sincerity, that he says that as a result of pressure exercised in this Parliament and the country at large there has been so much publicity about the case that he now believes he has a better chance of having a fair trial than he originally had and that if he is convicted he will not get an extreme sentence. He may well get off more lightly, but that is not the principal thing to consider.
Chief Enahoro pointed out—I say this in support of my right hon. Friend the Member for Thirsk and Malton, who was attacked on the question, as, also, was the hon. Member for Wednesbury (Mr. Stonehouse)—that there have been riots in Nigeria. He alleges—I put it no stronger than that—that they have been staged by the Government party and as a result hundreds of pounds worth of damage has been done to houses owned by members of the Action Group and a number of its supporters have been killed, he says, deliberately.
At one stage he himself, before there was any talk that he was to be arrested, had to have a police guard and was not allowed to visit his own constituency. He says that the emergency regulations, which have been taken off now, could well be reimposed and he could well then be kept in detention without trial, irrespective of the outcome of this issue.
I think that this man is sincere. He told me yesterday that he is throwing himself on the mercy of the Home Secretary and on the British Parliament, and that he believes in British justice. I have no brief at all for his own political views, or his own political party. I am quite certain that he is in no way a Communist. I believe that his political party approximates to a Left-wing party, something perhaps between the Liberal Party and the Labour Party, but this is impossible to judge, because these people are different people from ourselves.
This is no light matter. I am certain that my right hon. Friend has approached this in his usual impartial and sincere way. As he said today, it is a distasteful task, and I think that we would all concur with him about that. Nevertheless, very important principles are involved in this case, principles of common justice, of humanity, and of integrity; 645 the integrity of the British Parliament and the integrity of this country. One day this man, if the political régime changes in his country—it could well change—might return here as its Foreign Secretary. This is something we must contend with in making our decision.
The Home Secretary may well fear that if he changes his mind now he will be criticised. I reject utterly much of the unfair criticism which has been levelled against my right hon. Friend by some members of the Opposition and also in the British Press. I reject it because I think that it is unfair. I think that the Home Secretary is a very able and sincere man. Nevertheless, he may feel that, if he does change his mind, he will be criticised. I say, on the contrary, that if he does change his mind he will not be criticised but applauded. He will be applauded not only by many Members of the House, but in the country outside, because he will have made, I submit, a courageous, a very wise and a very humane decision.
§ 7.2 p.m.
§ Mr. R. T. Paget (Northampton)
We have heard a most remarkable speech from an hon. Member whose sincerity and ability impressed us all. May I make this one point on it? It is perhaps curious that the hon. Member for Brentford and Chiswick (Mr. D. Smith) should be supporting the case for this chief under the impression that he belongs to a Left-wing party, whereas I from the Left find myself supporting the chief under the impression that he belongs to an extreme Right-wing party.
I had not intended to speak in the debate and do so only because the Home Secretary impressed me so strongly that he had misunderstood his function. It is for that reason that I wish to try to talk, perhaps a little drily, as a lawyer on this problem. The right hon. Gentleman has to interpret this Act as it is. "As it is" are the important words, not as it was in 1881. As my right hon. Friend the Member for Belper (Mr. G. Brown) put it, time amends Acts in so far as the words used in Acts change with time. The word "treason" as used in 1881 means something quite different from the word "treason" or the words "treason felony" as used in Nigeria today. Treasury in 1881 was quite simply treason according to our law, a 646 conspiracy against the Queen here, a conspiracy against the Queen as Queen of the United Kingdom, the colonial Power. When treason was included in the Act in 1881, nobody here remotely contemplated treason against the Government of Nigeria as at present constituted, free and independent, or treason against the Government of Ghana, or indeed treason as amended by the Government of Southern Rhodesia.
After all, in 1881 we alone within the Commonwealth, or the Empire, as it then was, had the power to change the word "treason" and give it a different meaning. Canada is a possible exception, but even Canada in 1881 could do so only with the consent of a Governor-General responsible to the Government here. "Treason" as included in 1881 means something quite different from the "treason" which we are now considering in Nigeria.
It is for the courts to decide under the Fugitive Offenders Act, first whether there is a prima facie case, and, secondly, under Section 10 whether it would be oppressive to return the applicant, or whoever it may be—the person charged—because, amongst other reasons, he would have an unfair trial. These two matters were decided by the courts. It is quite clear to my mind that, when the Home Secretary came to consider this matter under Section 6, he thought that what he was deciding was precisely what the courts had already decided. When he made his statement to the House, he made that quite plain. He said: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."—[OFFICIAL.REPORT, 14th March, 1963; Vol. 673, c. 1542.]It is quite clear from the statement as a whole that at the time he made it the Home Secretary was applying his mind to that and substantially to nothing else. True, under cross-examination later he conceded that there were wider matters, but it is quite clear that in the initial stage when he came to this decision first he came to the decision on wrong grounds.
When a decision has been reached on wrong grounds in the first place, it somewhat disqualifies one from considering 647 the matter impartially again upon different grounds. It is only today that the Home Secretary has admitted and had it pointed out to him that in fact what he has to consider are quite different grounds. He does not have to act as a court of appeal on the question whether there is a prima facie case or whether there is the probability of a fair trial in the homeland. All that has been decided by the courts, and he is perfectly entitled to take their decision. He has to decide on quite other matters, and those other matters he did not consider at all when he first made his decision.
§ Mr. S. Silverman
And believed that he could not.
§ Mr. Paget
And believed that he could not. Now I come to what those other matters are. It is only when the courts have come to the decision on the two matters to which I have referred that the right hon. Gentleman's discretion arises under Section 6. It is only then that he begins to decide, and he then begins to decide quite different matters. Amongst those matters which he could consider—I put them in the reverse order of importance as I see them—first is the question of misunderstanding which was brought out in a very effective and powerful speech by the right hon. Member for Thirsk and Malton (Mr. Turton).
We are considering what is just. When a man under a misunderstanding—and I am not going to apportion the blame for that misunderstanding—comes here and believes that he has been assured of his safety, is there not something to be said for the proposition of telling him, "In that case you must go back to where you came from?" Is it not just, in that case, to say—since there has been a misunderstanding, "Back to Ireland you go?" That seems to be the matter to be considered by the Home Secretary, although he obviously has not considered it.
The next question must concern the political situation in Nigeria. I want to distinguish very clearly between the state of the courts and the state of the country, because that can be a vastly different matter. What we are not concerned with—because the courts have decided this—is whether Chief Enahoro will get a fair trial. We are not even concerned with the question of whether or not he will 648 get an acquittal. We are concerned solely with how likely he is to survive an acquittal.
Perhaps I can put it this way, for this is the sort of matter I am putting to the right hon. Gentleman for his serious consideration. I recall that on one occasion I was invited by an hon. Member opposite to fly to Africa as a pair on a private 'plane. It seemed an attractive invitation and before I accepted I telephoned Lloyds to inquire about insurance rates. When I was told that they were the normal rates I was delighted to accept the invitation, and I enjoyed the journey very much. Bearing that in mind, let us consider the case of Enahoro. The experts on risks are insurance companies. The experts on risks of all sorts are perhaps Lloyds underwriters. If one sent Enahoro back to Africa—and let us remember that he is not on a capital charge—I wonder what the premium would be to insure his life. Chief Enahoro has two little boys in school here and insurance on his life might be extremely important to him. This is the sort of thing that the Home Secretary should consider, for what kind of risk is one sending this man back to?
Another consideration arises from an intervention made a short while ago by the Home Secretary when one of his hon. Friends was speaking. The right hon. Gentleman said that there were various matters affecting this man's safety in the political situation which he could not refer to because they were being decided in the courts of Nigeria and were, therefore, sub judice. When one considers the question of discretion one finds another reason for not returning this man, at least until those relevant things are decided; things which the right hon. Gentleman says he cannot discuss because they have not yet been decided. Surely that is a reason why the right hon. Gentleman should consider waiting until those relevant things have been decided?
Basically, far and away the most important of all the considerations—and we are still dealing with considerations which, on the right hon. Gentleman's own submission, he has not considered—is the fact that the Home Secretary is entrusted with the Queen's mercy and honour. It is on that that the principle of political asylum is based. One hon. Member opposite stated that this was something that had happened only since the French 649 Revolution. "It is contrary to the Queen's honour to send away those who crave her protection for life, limb or liberty." Those were the words of the first Elizabeth. They were the words used when the King of Spain demanded the surrender of the sea beggars from Holland.
We have granted political asylum from the early days. We granted it to the Princes Maurice and Rupert, from the German Emperor, and to the Huguenots who fled from Cardinal Richelieu. I have never heard such nonsense as the remark that it all arose from the French Revolution. It arose from far earlier times and from a conception of the Queen's mercy and honour. The idea was this—and it had nothing at all to do with the question of whether or not anyone would get a fair trial; it was contrary to the honour of a prince, as conceived by Queen Elizabeth I and followed through, to surrender those who craved her protection for political, religious or racial offences. We have always felt that way and it has become part of our extradition laws.
The fact that there may be danger to life, limb or liberty for political reasons is no reflection on any country. There is danger to the liberty of Maclean and Burgess in this country. It is a danger which arises from their political activities, and any country which has our conception would have to refuse to hand those men over to us. In the same way there was reason why General Benedict Arnold, for instance, should have feared for his life, limb and liberty had he been returned to America; and, therefore, we granted him asylum. One can quote many examples, including M. Bidault. As I say, it is not reflection on any country seeking the person and it is equally no reflection on the other country.
We have reached the point when, unlike 1881, we are not dealing with political offences against us here at home, against the Queen and Parliament in this country, as we know it, or against a colonial Power as we conceived and controlled it at that time. This is not a political offence described in the Act of 1881 and it does not refer to such on any true interpretation of the situation.
Treason against Ghana is not treason as referred to in the Act of 1881, any more 650 than treason against de Gaulle or Franco is treason as referred to in that Act. It was treason against our colonial Power Government—not against new independent nations—and, therefore, the old principle of justice as it being contrary to the Queen's honour to surrender those who ask her protection applies just as effectively to Nigeria or India or any of these great independent nations which have arisen as it does to France or America or any of those great nations bound with us in our great alliance. The position is the same, and that is the justice which the right hon. Gentleman must consider. When he came to the House he had plainly not considered that.
Much has been said about the Home Secretary. I have often felt that, amongst other things, he is a very stubborn man. None the less, when he is entrusted with justice, when he is probably entrusted with another's life, when his interpretation of what is just is at variance with that of every hon. Member who has so far spoken—and I do not even exclude the right hon. Member for Reigate (Sir J. Vaughan-Morgan), because he was not talking about justice but about not offending Nigeria; not about the honour of the Queen, about justice as it appears to every hon. Member who has spoken—and when the right hon. Gentleman is the condemner, surely it is not right for him to prefer his definition of justice to that of every hon. Member who has pleaded with him today.
§ 7.21 p.m.
§ Mr. Humphry Berkeley (Lancaster)
I must congratulate the hon. and learned Member for Northampton (Mr. Paget) on a most remarkable and sincere speech. In one sense, he anticipated me because I care I hope as much as anybody in this House about justice, and I support and defend the Home Secretary's decision on that ground.
The hon. and learned Member made out a most convincing case for changing, or at least reviewing, the Fugitive Offenders Act. He pointed out, as is perfectly true, that the nature of the offence of treason as first defined in that Measure has changed as a result of the granting of independence to a number of different Commonwealth countries. That, in itself, could quite properly lead to our 651 inviting the other countries of the Commonwealth to review this Act with us to see whether Amendments were justified and required—
§ Mr. Paget
Cyprus, Ghana and India have already amended it independently. All I ask is that it should be interpreted as I believe they do.
§ Mr. Berkeley
I was well aware that Cyprus and Ghana had done so, but I was not aware that India had done so. It seems to me that this is something on which we should not act unilaterally. But, whether or not this Measure requires reviewing, to proceed from there and say that time has amended the Act seems to invoke wholly unconstitutional principles. The only thing that can amend an Act passed by this Parliament is another Act passed by this Parliament. I cannot for one second concede that any other alteration is constitutionally possible. The fact that this is the law as it stands must be taken into account.
The Home Secretary's discretion has been referred to continually throughout the debate. My hon. Friend the Member for Brentford and Chiswick (Mr. D. Smith) referred to his discretion in cases like this, and compared it with his discretion in the matter of the death penalty. There is some comparison between the two. In the case of the death penalty, as in the case of the Fugitive Offenders Act, I do not believe that the Home Secretary would be making a proper use of his discretion if he made a decision merely because he did not happen to like the law as it stood—
§ Mr. Fletcher
Justice is something which transcends the law. If it is the consensus of opinion that the law is out of date and should be changed, and is likely to be changed, those are certainly relevant circumstances for the Home Secretary to take into account in considering what is just.
§ Mr. Berkeley
But he must also quite clearly pay due regard to the law as it stands. Suppose, for example, that as a result of a Gallup poll it was discovered that 60 per cent, of the people of this country favoured the total abolition of the death penalty. It would be quite wrong if, merely as a result of public opinion, the Home Secretary were to 652 ignore the law and reprieve every murderer just because he did not happen to like the law—
§ Mr. Berkeley
Let me finish what I am saying, and then I will give way at once. When the Home Secretary uses his discretion, he must take into account the special factors relating to a particular case. It would be wrong for him to override the law as it stands.
§ Mr. Silverman
I am much obliged to the hon. Gentleman. My intervention is on the actual point of fact in which, by analogy, he was interested; namely, what the Home Secretary should do in certain circumstances. The circumstances that happened were not quite those of which the hon. Gentleman spoke, but they were near enough to point the moral. In 1948, on a free vote of the House, the House of Commons added to the Criminal Justice Bill a Clause suspending for five years the operation of the death penalty. It was some time before the House of Lords reinserted the Clause—the debate went on for some months—and my right hon. Friend the Home Secretary at that time got himself into a good deal of trouble in some quarters by making a declaration of intention in the House of Commons. I express no opinion about that, but he never got into any trouble about what he actually did, which was to reprieve every convicted murderer from that date until the date when the Clause was reinserted in the Bill.
§ Mr. Berkeley
I am very grateful to the hon. Gentleman for that little piece of history. I was not wholly unfamiliar with it, because I have long been a supporter of the campaign for the abolition of capital punishment. However, what happened in 1948 plainly has no very great relevance to this case because if a new Fugitive Offenders Bill had gone through this House and was now being considered in the Lords, and if one of its Clauses repealed the offending Section in this Act, and had been passed, the Home Secretary would clearly have to take into account the legislative processes that would follow. We have not even considered possible Amendments to the Fugitive Offenders Act. That being the case, we must consider the Act as it stands.
653 The whole point of my submission is that the Home Secretary in using his discretion must take into account any special circumstances in a particular case, but he must not be allowed, as a deliberate act of policy, to frustrate the law as it stands just because he does not happen to like the law. That is why I believe that the only relevant consideration now before us is whether, if Chief Enahoro is sent back to Nigeria, he will get a fair trial. It does not seem to me that any other consideration has any relevance whatever.
I quite agree, and I think that we all agree, that the Act as it stands places an unfair burden upon the Home Secretary. What an appalling position to be in, for example, if the Government of Ghana were to ask us to send back Mr. Gbedemah if he had been in this country, not back to trial but back to preventive detention without trial. I have no doubt whatever that it would be perfectly proper that the Home Secretary in those circumstances, despite the fact that he would doubtless incur the displeasure of the Ghana Government, would be quite right to refuse to do so. Quite properly he would say that the only relevant consideration was whether the treatment would be fair. I have great admiration for Ghana, but nobody who is in touch with Ghana could fail to have certain doubts about the fairness of any judicial proceedings which were entered into there on political charges.
§ Mr. Paget
The Home Secretary would never have to decide that. The courts would have to decide it under Section 10. The question of fair trial is decided by the court and it never gets to the Home Secretary.
§ Mr. Berkeley
My impression after reading the Section with some care is that an offender can be sent back without any mention of a trial at all.
§ Mr. Berkeley
If I had a copy of the Act with me I would look at it. Unfortunately, I have not. Anyway, this does not remove my main point which is that the only relevant question we have to ask ourselves is whether the trial will be fair.
§ Mr. Eden
Section 10 of the Fugitive Offences Act, 1881, refers to the justice 654 of the application for the return and states that it is up to the superior court to discharge the fugitive or the order made for his return if it considers that the application is…not being made in good faith in the interests of justice or otherwise.…
§ Mr. Berkeley
This still does not vitiate the main argument that the only question in the circumstances of the Act as it stands is whether he would have a fair trial.
We have heard a great deal earlier in the debate about the extraordinarily anomalous position that a Commonwealth citizen is being much less favourably treated than an alien. It seems to me wholly wrong and inaccurate to seize upon one aspect of Commonwealth citizenship or one aspect of regulations governing aliens and then attempt to evaluate who gets off the better.
Commonwealth citizens are British subjects. They have all manner of rights and privileges which are denied to aliens. They have the right to vote in this country, to stand for Parliament, to be members of the Cabinet, to be judges, and to hold commissions in the Armed Forces. Indeed, before the passage of the Commonwealth Immigrants Act, which was not my favourite piece of legislation last year, their rights in this country were indistinguishable from those of citizens of the United Kingdom. Nothing at present can put them in the position of being aliens. This is something which we ought to recognise.
When we talk about citizens of the Commonwealth coming out badly on this, I would regard Commonwealth cooperation as being co-operation between Commonwealth Governments. It would not seem to me to be particularly in the interest of Commonwealth co-operation if we use as one yardstick what happens Ito somebody who has been accused of engaging in conspiratorial activities in his own country. The yardstick all the time must be whether or not if he goes back, as is normally the case under the present law, he will be fairly treated when he gets there.
Various hon. Members have cast some serious aspersions against the Nigerian courts and also against the Nigerian Government and people. I cannot help thinking that the use of the word "liquidated" by my hon. Friend the 655 Member for Brentford and Chiswick was most extraordinarily offensive and unjustified. There is not the slightest shred of evidence that if he were to go back to Nigeria Chief Enahoro would face liquidiation. "Liquidation" does not even mean the judicial death penalty, which, as we all know, is anyway not the penalty for this crime. My hon. Friend was trying to imply that the conditions in Nigeria were such that Chief Enahoro would be the victim of assassination. I do not think that there is the slightest evidence to show that this is likely.
The right hon. Gentleman the Deputy Leader of the Opposition said that he would like to leave the courts out of it, but he had some reservations about the political situation in Nigeria. I hope that the right hon. Gentleman meant that he had no complaints against the quality of the Nigerian courts. Certainly in my experience they have proved themselves in the two and a half years of Nigerian independence to be strikingly independent in character, and on many occasions to have caused considerable irritation to the Government. I think it is relevant, however—if I may expand on the point made by the Home Secretary—to consider who these four people are who have now been discharged from the case. First, there is Mr. Rewane, political secretary to Chief Awolowo, a principal figure in Action Group politics. I should have thought that if this trial had assumed the political character which some hon Members have given it, Mr. Rewane would be the last person who would have been discharged.
Equally, one would assume that if being an Action Group politician was really so dangerous an occupation that a released politician would be assassinated, Mr. Rewane would be undergoing a certain amount of personal danger at present, but there is no evidence to show that that is so. There is the case of Mr. Adegbenro, who was for a short time the Action Group Premier in the Western Region. He is at the moment in the middle of an appeal to the Privy Council to establish the fact, as he hopes, that he was wrongly dismissed from the Premiership. As far as we know, he is not under any threat of assassination. It would not be wise for hon. Members to build up a picture of lurid danger of a 656 thoroughly unreal kind. I do not believe that conditions are like this, and I do not think that any of us help the situation if we try to make a political set-up appear to be more hazardous than it is.
§ Mr. Antony Buck (Colchester)
There is the case of Dr. Chike Obi who was in the car at the time when Chief Enahoro made his escape through the back regions into Ghana. Dr. Chike Obi gave himself up at that stage. He returned and was tried and he was dismissed from the case. He was the leader of the Dynamic Party.
§ Mr. Berkeley
Yes, Dr. Chike Obi has also been discharged from the case though he is the leader of a small but, as he no doubt hopes, a growing party, and not a member of the Action Group. Therefore, this creates a totally different picture from the one which the hon. Member for Wednesbury (Mr, Stone-house) has been building up. He and I have so frequently agreed on African matters that I find it distressing that we should be so out of touch with each other on Nigeria. However, anyone who followed the enquiry into the National Bank and the subsequent very stern strictures which the court passed on the Federal Prime Minister and other members of the Government for wholly unconstitutional action could be in no doubt whatever that the Nigerian judiciary was markedly independent of the Government.
As the hon. and learned Member for Ipswich (Mr. D. Foot) is here, and as he was mentioned in his absence, I should like to say that here was one passage in the speech of the hon. Member for Nelson and Colne (Mr. S. Silverman) with which I agreed. Those of us who believe, as I do, that the quality of Nigerian justice is of a very high level will not be too worried about getting a British counsel out to Lagos to defend Chief Enahoro. Certainly the barristers and members of the judiciary in Lagos whom I have met are people of the highest quality who would be perfectly capable of putting up a very good defence for the chief.
I cannot help feeling—I hope that this will not be resented—that certain British members of the Nigerian bar have, from time to time, behaved with a certain lack of sensitivity and understanding about Nigerian susceptibilities. One 657 cannot remove the British Governor-General and all the governors, chief secretaries, district commissioners, and so on, and suddenly see a gaggle of British Q.C.s turning up in the courts of Nigeria. That looks like neocolonialism at its worst. If one stacks the defence with British Q.C.s in a treason trial of all things, nothing is more likely to raise the hostility of the Nigerian public. I personally would not pursue that particular guarantee because I do not honestly believe it to be tremendously important.
The main point which I have tried to make is that, if we are satisfied that the trial will be fair, I believe that the Home Secretary had no alternative but to take the action which he has taken.
§ Mr. Berkeley
The hon. Gentleman has not heard me develop my argument because he was out of the Chamber for most of the time.
§ Mr. Silverman
I have heard it.
§ Mr. Berkeley
The hon. Gentleman was outside for a great deal of the time and therefore may have missed the more convincing passages in my speech.
§ Mr. Silverman
I have been out for only about 40 seconds.
§ Mr. Berkeley
Then I am sure that in that 40 seconds he must have missed most of the convincing passages, because the hon. Gentleman was shaking his head most firmly.
It seems to me that it is extremely difficult for an African territory to do the right thing in British eyes. Four years ago, a great many people in this country, and particularly the Daily Express and the Daily Telegraph—and no newspaper has done more to destroy the whole concept of the Commonwealth than the Daily Express—were saying, when Dr. Nkrumah locked up certain members of the Opposition in Ghana, that what Dr. Nkrumah ought to do was to hold a public trial of these people. Many leaders appeared in both the Daily Express and the Daily Telegraph, and many speeches were made in this House, saying that if there were offences against the State they should be brought out into the open and that there should be a public trial.
658 The Government of Nigeria are trying to do just that in this case. As far as I know, there is not a single person in Nigeria who is in preventive detention without having had a trial. Everyone in gaol has either been sentenced or is there without bail, having been charged, awaiting trial. They have appointed, as my right hon. Friend the Member for Reigate (Sir J. Vaughan-Morgan) said, a distinguished Yoruba judge to be the judge in this treason trial, thus avoiding, as they hope, tribal complications. The trial has been fully publicised in all the Nigerian newspapers.
§ Mr. Hale
I do not disagree with much of what the hon. Gentleman has fairly said. I went to Nigeria as the guest of Dr. Azikwe, a former client, and as an old friend. I am a little shocked to hear the argument that the nomination by the Government of the judge who is to try a political case can be done with a desire to ensure justice. I should have thought that every example in our history of a nominee judge appointed by the Government was a specific example of something to be deplored.
§ Mr. Berkeley
I should have made myself clearer. The judge was nominated by the Chief Justice, and I have no doubt that he was chosen because he is a Yoruba and it was felt to be of great importance that tribal complications should not arise. It seems to me that this is a wholly sensible and reasonable point of view.
§ Mr. Berkeley
The hon. Gentleman earlier pronounced the name so much better than I could do. Perhaps he would like to give it again.
§ Mr. Stonehouse
We are agreed on the name. Is it not the case that this man was very active in the N.C.N.C.? Chief Enahoro told us yesterday that he would be judging this case on political and not judicial grounds. Is it not the case that there is very strong objection to this judge?
§ Mr. Berkeley
I was not aware that he ever played a very active part in politics. Certainly I think that his conduct of the case so far has betrayed no political bias. I referred earlier to the release of Mr. Rewane, which, I should 659 have thought, was not the sort of action which would have been taken by someone who was going to judge a case on its political merits only.
§ Dr. Alan Glyn (Clapham)
Is my hon. Friend aware of the transcript of the Lagos trial, which puts an entirely different complexion on the evidence given by the witnesses? Also may I ask my hon. Friend whether he has any interest, financial or otherwise, in Nigeria?
§ Mr. Berkeley
I am very thankful to say that I have no financial interest in Nigeria at all. I am rather surprised that my hon. Friend should have thought fit to ask that question. It is a most unusual question to ask. I can assure him that I have no financial interest there whatever.
I believe in Nigeria. The Government there are attempting to maintain Parliamentary democracy and the rule of law. It does not make it any easier for this to be done if hon. Members in this House make wild criticisms, many of which cannot be substantiated and all of which are resented. I personally—I can only speak for myself—have faith in Nigerian justice. I have faith in the Nigerian people, and I therefore support the decision of my right hon. Friend the Home Secretary.
§ 7.49 p.m.
§ Mr. John Strachey (Dundee, West)
We have had a most interesting and heartening debate. My hon. Friend the Member for Leeds, West (Mr. C. Pannell), who was so keen last week that this House should remain the great forum of the nation, should be heartened by today's debate.
We are debating, it seems to me, two issues. One is the Fugitive Offenders Act and whether it is still appropriate to present-day conditions, and the other is the case of Chief Enahoro. These two issues cannot be separated, they are intertwined at every point, yet must be considered to some extent separately, because both of them raise matters of the gravest importance for the House to decide.
I should like to say a word or two, first, about the question of the Fugitive Offenders Act. It is easier to consider that Act by comparing and contrasting it 660 with the Extradition Act. It is not really a question, as the Home Secretary suggested, whether the Fugitive Offenders Act is an obscure Act, whether it is often used, or whether it is not used quite properly and fairly frequently to deport criminals who are accused of ordinary criminal offences without any political question.
Nobody is worrying about that and nobody questions it. What we are questioning here—and this is the whole issue on this part of the case—is the tremendous difference between the Fugitive Offenders Act and the Extradition Act in that the former includes within its scope political offences and the Extradition Act excludes them. This is the simple point at issue. It is brought out and illustrated graphically by the present case, because there is the simple fact, which no one can doubt, that if Chief Enahoro had been an alien he would not be being deported now. There would be no question that he would be receiving political asylum in this country.
That is why I could not follow the Home Secretary's argument which he went on to use that we ought to treat Commonwealth citizens better than aliens. We all feel that there is great force in that argument. In many cases, there should be special treatment for Commonwealth citizens. That is not, however, an argument for treating Commonwealth citizens worse than aliens, which is what we are doing today. The Commonwealth citizen will not thank us if the special treatment which we give him turns out to be much more severe than he would get as as alien. That is the preposterous position which we have reached today and which the Enahoro case has highlighted for us. Because of the Act becoming an anachronism, we have got to the position that we treat these Commonwealth citizens far more severely than we would ever treat an alien.
That is why all the talk—and there has been a good deal ofit—of offending the Nigerian Government is utterly irrelevant and unworthy of this House. We have to do the right thing in these cases. We can illustrate that when we see what happens, not only in this country, but in all the highly-developed countries, in the case of political offenders.
The case of M. Bidault has been referred to. It throws a good deal of light 661 on these matters. Nobody could have been accused of a more serious offence than M. Bidault. He is, in effect, accused by the French Government of levying war against them. I do not know whether the word "treason" is used, but it certainly is the most serious political offence that one can imagine. When he goes to Germany, however, and is discovered there, the German Government, quite properly in my opinion, unhesitatingly refuse to extradite him and to send him back to France.
What is more striking still, the French Government make no complaint against this. They take it as a matter of course that the German Government would not extradite him. I am sure that they would have done exactly the same had the case lain before the British Government to make the same decision. Therefore, far too little stress has been laid on tile profound difference between ordinary criminal offences and political offences. Everything turns on that. If, however, one depends upon that argument, one must establish that it is a political offence with which Chief Enahoro is charged.
I am, perhaps, in a position to say a word or two about that and about the issue which has been brought into the debate—I think wrongly—of the character of Nigerian justice, because it so happens that I had the opportunity at the end of last year to attend in Lagos some part of the Awolowo trial. I say at once that my impression of it was a good one. I was impressed with Nigerian justice and with the procedure. During the time I was there, the defence was dominating the court. There was no question of the defence not being given an effective showing and there was no question of the defence lawyers not being able and effective counsel. Chief Davis was taking an active part that day. He was a most effective counsel. Chief Awolowo was defending himself and he took no mean part in the proceedings. My impression was that that great treason trial in Lagos was being conducted very well indeed.
That, however, is totally irrelevant to the case that we are considering today. It is not for me either to praise or to criticise Nigerian justice. It would be out of place for me to do so and I deplore the criticisms which have been made of Nigerian justice, from both sides of the 662 House, in this debate, because they are at best irrelevant.
I say to the hon. Member for Lancaster (Mr. Berkeley), with whom I very often agree in African matters, that the point is exactly the opposite one. The hon. Member said that the whole question was whether we had confidence in Nigerian justice. That is not the question at all. It has nothing to do with it. The point is whether this was a political charge or trial, however well conducted. I do not think that five minutes in the Lagos court could fail to convince every Member of this House that it was a political trial. How can a treason trial ever be anything else than a political trial? It was an eminently political trial.
The accused realised that, the court realised it and the prosecution realised it. A treason trial must be that. A treason trial is a very terrible thing. If the Government have occasion to accuse some of their citizens—some of their most prominent citizens—of planning a coup d'etat, one cannot imagine a more serious charge or a more political charge.
To illustrate the point, all this may be tested if one makes the assumption that Chiefs Awolowo and Enahoro and all the rest of them were guilty as charged. Let us make that assumption for the sake of argument. In my submission, that should make not the slightest difference to the question of whether Chief Enahoro is deported, because this turns on the issue of whether we ought to deport Commonwealth citizens on political charges when, since the French Revolution at least—so we were instructed by the professional historian—we have never deported aliens on these charges.
The remedy here is, as many hon. Members have suggested, to amend the Fugitive Offenders Act. The right hon. Gentleman said that we could not do that on our own and I believe that he is right. If we are to amend, repeal or revise the Act, it can only be done in consultation with the other Commonwealth Governments. No one doubts that. But there was not very much substance in that point. Of course consultations would be undertaken.
I put it strongly to him and to the Secretary of State for Commonwealth Relations that the sooner those consultations are begun the better, because this case ought to have shown us, if it has 663 shown nothing else, the quite impossible situation which we shall get into if we leave the Act as it is now that the Commonwealth has developed into an entirely different stage from what it was in 1881.
I re-echo the phrase used by my right hon. Friend the Member for Belper (Mr. G. Brown)—that time has amended the Act. Of course, he did not mean that an amending Statute has been passed—that is what we complain of. He meant that time has rendered the Act an anachronism and a most dangerous one today.
One can quote two cases of Commonwealth countries which might lead this House and the Government into an intolerable position if the Act is unamended. I have here a Bill—I think that it became an Act within the last few days—introduced by the Southern Rhodesian Government. It is called thePreservation of Constitutional Government Act, 1963".It puts in peril of twenty years' imprisonment anyone, whether inside Southern Rhodesia or outside it—in this country, for instance—who is… employed by, or is or has been or holds himself out as a member of a political organisation which exists or has existed in Southern Rhodesia, or promotes the objects or propagates the opinions of such an organisation …if the Southern Rhodesian Government holds that that organisation is, amongst other things,… attempting to coerce the Government.That is a very widely drawn phrase.
Many people might be in trouble over that and be in peril of twenty years' imprisonment. We might at any moment, under the Fugitive Offenders Act, be asked to send back any man or woman charged under this Southern Rhodesian Act. But that is not the only Act of its nature in Southern Rhodesia. There is another which makes the death penalty mandatory on someone who may have burned a haystack.
Supposing that someone is accused of an act of arson of that sort in Southern Rhodesia, but escapes and comes here. Under the Fugitive Offenders Act, and under the Home Secretary's interpretation of it, it would be mandatory on the authorities to send the man back to 664 Southern Rhodesia, where he would, no doubt, receive a fair trial under that Act but under which he would, if found guilty, have to be executed. The court would have no discretion.
These illustrations emphasise the urgency of the question. Of course, Southern Rhodesia is not the only Commonwealth Government which has—shall we say?—very different laws from ours. Ghana, as has been pointed out several time, has different laws and different usages from ours. It is not for us to judge on them, but it is our right to regard the right of asylum which we have given to citizens of foreign countries as being applicable in these cases.
It is not a question of suggesting that these Commonwealth Governments are inferior in their systems of justice to foreign Governments, but it is surely carrying things too far to suggest that M every case the legal systems, usages and practices of all Commonwealth countries are innately superior to those of all foreign countries. But that is what the Fugitive Offenders Act makes us do.
I am not a legal authority and cannot suggest exactly how the Act should be amended. But I think that probably the simplest proposition would be to make it similar to the Extradition Act in that it would exclude political offences. If that were done, the whole operation of extradition and deportation would be immensely improved and the Home Secretary would be taken out of an intolerable situation.
Now I turn to the case itself. I do not want to say much about the question of the assurances which Chief Enahoro may or may not have been given. I think that we were all very impressed—I certainly was—by the speech of the right hon. Member for Thirsk and Malton (Mr. Turton) on this question. But there can be no doubt that there was the most tragic misunderstanding between Chief Enahoro and the Home Office. There can be no doubt about the fact that he believed that if he came to this country he would not be put into peril of deportation to Nigeria. We can be sure of that because he would not have come otherwise. It might not alter the legal situation—I do not think that it does—but to my layman's mind it makes the situation far more tragic.
665 The Home Secretary suggested that we were asking him to treat this man as if the Act had already been amended as I suggest that most hon. Members by now are convinced that it must be amended, although the right hon. Gentleman has given no assurance that it will be so amended. But, taking the Act as it is, we are not asking him to contravene it.
With an unusual departure from his somewhat pedestrian style, he told us that we were asking him to tear a page from the Statute Book. We are asking nothing of the sort, and it is nonsense to talk like that. Again and again he said that he had complete discretion not to send this man back. The right hon. Gentleman simply has to say that he has come to the conclusion that it would not be a just act to deport Chief Enahoro. There is nothing more which prevents him doing that. If Parliament had not intended to give him that power, these words would not have been included in Section 6 of the Act.
We cannot see any reason, in law or in equity, why the right hon. Gentleman should not exercise that discretion. We are, therefore, bound to say that we are profoundly dissatisfied with the answer of the Government so far. We realise, of course, that the House cannot come to a decision tonight for procedural reasons, but in view of the attitude of the Home Secretary we certainly feel that it is our duty to give the House an opportunity to come to a decision on this matter at the earliest possible date. This is not a party matter and we trust that hon. Members who have spoken so strongly on this will see to it that they back their words with their actions when we come to this decision, because we cannot let the matter rest as it is today.
What we demand tonight, and demand very strongly, of the Attorney-General is a stay of execution until the House has had an opportunity to come to a decision. That is the very least we can demand, and we trust that the Attorney-General will give it unequivocally.
§ 8.10 p.m.
§ The Attorney-General (Sir John Hobson)
The debate today has ranged widely over deep issues of policy, over the Extradition of Offenders Act and rendition of offenders within the Com- 666 monwealth, and also over the personal problems and case of Chief Enahoro.
I have bean asked many questions during the course of the debate and I will endeavour to do my best to assist the House. The Home Secretary himself would have liked to reply to the debate, because it is a matter which is entirely within his personal responsibility. It is only because the next matter to be discussed requires a reply from him that he felt that he could scarcely ask the leave of the House to speak three times on the Consolidated Fund Bill, and it is for that reason alone that he has not assumed responsibility for replying to all the matters which have been raised during the course of the debate.
I entirely agree with the right hon. Member for Dundee, West (Mr. Strachey) and the hon. Member for Huddersfield, West (Mr. Wade) that there are two quite separate questions which have been discussed. The first is what ought my right hon. Friend the Home Secretary to do in the circumstances of today in the case of the application by the Government of Nigeria for the return of Chief Enahoro under the Fugitive Offenders Act. The second and much wider question is whether the Fugitive Offenders Act is satisfactory and whether, in future, it ought to be reviewed and discussed and perhaps amended.
Unlike the extradition treaties, which are bilateral, the Fugitive Offenders Act is a multilateral system for the exchange of fugitives from justice throughout the whole of what was the Empire and is now the Commonwealth. Everyone will agree that before that system is interfered with there must be discussions with other members of the Commonwealth and that there must be some other arrangement for the exchange of fugitives if justice is to be carried out.
At the moment the Act imposes mutual rights and mutual duties between all the countries of the Commonwealth, not only between this country and other members of the Commonwealth, but also between members of the Commonwealth inter se. Therefore, any interference with it requires considerable cogitation and cannot be lightly undertaken.
§ Mr. Fletcher
Surely the Attorney-General cannot seriously suggest that Nigeria was ever a party to the Fugitive Offenders Act.
§ The Attorney-General
It was the law of Nigeria on independence. It became the law of Nigeria upon its independence. While all the independent countries of the Commonwealth have the power to change the Fugitive Offenders Act, only two have directly altered it, Ghana and India. Cyprus has altered it by the amendment of its Constitution, not for all persons within Cyprus, but only for citizens of Cyprus. The Fugitive Offenders Act still applies to Cyprus for persons who are not citizens of Cyprus.
Two main questions have arisen. The right hon. Member for Belper (Mr. G. Brown) and the right hon. Member for Dundee, West both raised the substantial issue that in dealing with the exchange of fugitives from justice within the Commonwealth, the same rule ought to be applied as in cases of extradition with foreign countries. It is not correct to say that this is a question which affects Commonwealth citizens. If Nigeria required the return of a French, or Belgian, or German citizen, it could obtain it under the Fugitive Offenders Act. Equally, it is true that if Germany, or France, or the United States of America, or any other country, required the return of a Commonwealth citizen or British subject from this country, that would be controlled by the Extradition Act.
Therefore, it is not a question of the treatment of Commonwealth citizens, on the one hand, and aliens, on the other. It is a question of the mutual rights and duties between this country, on the one hand, with foreign States, and, on the other, with members of the Commonwealth and Colonies
§ Mr. Strachey
The hon. and learned Gentleman said that it did not affect Commonwealth citizens. Surely he would not hold to that. It affects the position of every Commonwealth citizen in this country and, as we submit, affects it profoundly for the worse.
§ The Attorney-General
It might affect an alien, or a British subject, or a subject of the Colonies, or a Commonwealth citizen, who happened to be in this country and who had committed an offence elsewhere. Such a person would be equally at risk under the Extradition Act if he had committed an offence in a foreign country which was seeking his extradition under the Extradition Act.
668 Therefore, one has to ask oneself whether the right hon. Member for Belper and the right hon. Member for Dundee. West were right to say that within the Commonwealth one ought to apply as between the countries of the Commonwealth—not the citizens—the same standards when one is dealing with fugitives from justice. Most civilised countries would regard it as right and correct that one should return citizens, any citizens, who are fugitives from justice in order that they may stand their trial, provided that we are not returning persons in such circumstances that it would be oppressive so to do.
It is true that under the Extradition Act we reserve the absolute right against a foreign country when an offender has committed an offence of a political character to say how he shall be dealt with, because the country concerned does not have an absolute right to the return of such an offender. But that does not mean that the individual himself has a right of asylum in this country.
§ Mr. S. Silverman
I am sure that the hon. and learned Gentleman does not want to mislead the House. He is arguing as though the right of a person against whom extradition proceedings have been started in this country not to be handed back if the offence had a political import was a discretionary right, that we could decide whether to send him back or let him stay in this country. That is not right. If a man is able to satisfy a court that the offence for which the foreign country wants him back was political, he has an absolute right to be set at liberty then and there by the court. We are saying that the same principle should apply to all countries, including members of the British Commonwealth.
§ The Attorney-General
If the hon. Member had allowed me, I would have completed what I was trying to explain.
I was trying to make the point that the origin of the right and duty of our courts to set free a person who is sought under the Extradition Act and who has committed an offence of a political character is to retain within the hands of this country the decision whether to give that person asylum. It does not follow that a person in respect of whom another country has been refused extradition because the offence was of a 669 political character is entitled to asylum in this country.
There are two separate stages. The first is the right of the foreign country to seek for extradition, and the hon. Member for Nelson and Colne (Mr. S. Silverman) rightly said that it cannot insist on that right if it is an offence of a political character. But, even assuming that it has been held to be such an offence, the next question is whether the Home Secretary will, or will not, grant asylum within this country to such a foreigner.
There are many cases where it is decided that the person who has come here, and who would not be extraditable, is, nevertheless not granted asylum in this country. It has for a long time been the policy of Her Majesty's Government that an alien is not allowed to remain here permanently unless he is granted political asylum; and political asylum is only granted to someone whose life or liberty would be in danger on account of race, religion, nationality, or political opinion, if asylum were refused. It is, therefore, not correct to say that the Extradition Act is dealing with questions of asylum in this country. They are quite separate and different questions.
If a Commonwealth citizen is in this country, if he is not returned under rendition proceedings to a foreign country, or to a country of the Commonwealth, he is entitled, so long as he commits no offence in this country, to remain here because there is no power to decide whether to grant him asylum or not. The position, and I submit to the House that it is right and proper, as between this country and the countries of the Commonwealth, and Empire in the past, is that, as a civilised country, one normally enforces the rule of law in the hope that fellow members are both allies and are following democratic processes.
One returns to them persons who are fugitives from justice, but one reserves to the Home Secretary what is plainly right that he should have, namely, a discretion not to return those for whom it would be oppressive if he were to return them. I submit to the House that the Home Secretary ought in this case to apply the same principles as he does when deciding whether a person should have political asylum—is the fugitive a person whose life or liberty would be in danger 670 on account of race, religion, nationality, or political opinion, if he were refused asylum?
The Home Secretary has, I think, made it clear, and he repeated it today, that in exercising his discretion he is not concerned with the narrow question whether there is a case against him, or simply with the circumstances which are the concern of the courts alone. I can only repeat my right hon. Friend's words earlier today, that he must cast the net of his thoughts wider than anything said by any magistrate or judge. He must be ready to take into account everything that may have a bearing on the matter, whether it was before the court or not, and then must reach his final decision on what is just, yes or no.
One of the first considerations he must always bear in mind is whether it would be oppressive in the circumstances of the case, and all the circumstances of the case, to return this person to a country which is a fellow-member of the Commonwealth.
The right hon. Member for Dundee, West, and. I think, also the hon. Member for Huddersfield, West drew the attention of the House to legislation in Southern Rhodesia. There are as well countries—I think Ghana was mentioned—in which there is a right of detention without trial. I cannot speak on behalf of the Home Secretary, and it would be fatal to try to argue hypothetical cases, but those are, are they not, exactly the sort of considerations which the Home Secretary ought to bear in mind when he is considering whether he should exercise the power to return a person who is a fugitive from justice?
The fundamental question is: Is he not only a fugitive from justice, but also a fugitive from oppression? This country has always believed that it ought to grant sanctuary from oppression, and it is that principle which my right hon. Friend has endeavoured to apply in this case, and will endeavour to apply in all other cases under the Fugitive Offenders Act. But if there is no oppression, if there will be a fair trial, if the person is not at risk outside the courts of justice, in those circumstances I respectfully submit that in would be right, because of the comity that exists between the countries of the Commonwealth, to return him to stand his trial.
671 Consider it the other way round. Suppose Vassall, charged with espionage, a non-extraditable offence, had escaped to Australia or Canada. Would it be right in those circumstances that the country concerned should say, "We are very sorry. We are not returning him to you. This is an offence of a political character, and you ought not to have him back."
§ Mr. G. Brown
The Government would have been very pleased to have heard that.
§ The Attorney-General
Perhaps we can wait for the Report of the Tribunal to see how pleased they would or would not have been. I think that that was an irrelevancy.
Those are the sort of problems that exist between the countries who have a comity between themselves in maintaining as far as possible the rule of law and a system of law which is similar to, and based on, British justice. This is the greatest blessing that this country has brought to all the other countries who were originally part of the Empire.
§ Mr. Brown
As a layman, I have tried to follow the Attorney-General's lucid and interesting legal exposition. I thought I understood him to say that as regards foreigners there were two possibilities. We did not extradite a foreigner for a political offence, but we did not necessarily give him asylum here, and that many of them left these shores for other places. Would the Attorney-General be willing to apply the same principle in respect of Chief Enahoro? Could we have two possibilities there? If, for reasons which the Attorney-General has given, we do not want to give him asylum here, could he be allowed to return to the country from which he came, which is willing to take him?
§ The Attorney-General
This is the distinction between the Commonwealth and other countries.
§ The Attorney-General
There may be exceptions, but I am saying that, in general, the right way as between friends who are members together of the Commonwealth is to leave in the hands of the Ministers of each of those countries, 672 and of the Home Secretary in this country, a discretion to see that those who are fugitives from justice should return to stand their trial, subject only to this, that if there is oppression, or risk of oppression, that person should be protected and given sanctuary. With Commonwealth citizens, whether they are given asylum or not, if they are not returned to their own countries, they have a right to stay in this country. There is no question—as there is in the case of a foreign country—of sending a man back to a country other than that which is demanding him.
§ Mr. Fletcher
The Attorney-General has referred to the comity of nations, but is not the doctrine of asylum—which is based upon the Commonwealth, and antedates both the Extradition Act and the Fugitive Offenders Act—based on the principle that in respect of political offences, even in civilised countries where the comity of nations applies, we cannot be sure that there will be a fair trial? Ought not that same doctrine to be applied to Commonwealth countries? How does the question of comity enter into the matter?
§ The Attorney-General
With great respect, that is not so. From earliest times all international lawyers have taken the view that there was a duty upon all countries either to punish a fugitive from justice or to return him, without any regard to whether or not a political offence had been committed.
My hon. Friend the Member for Carlton (Sir K. Pickthorn) was right in saying that only since 1842—the date of the treaty with America—has there been any provision under which a political offender can be treated separately. I am saying that when we are in such close association with the other countries of the Commonwealth it is reasonable to apply a different principle, which we would expect to be applied by those other countries of the Commonwealth in a case like that of Vassall or any other treasonable person who had endeavoured to compass the Queen's death or subvert the realm by force.
We would surely find it unacceptable that one of the other Commonwealth nations should give such a person sanctuary merely because he had committed a political offence in this country, although we would not expect them to 673 return a person—or at any rate, we could not complain if it did not return him—if they took the view that it would be oppressive to do so.
§ Mr. Paget
A short time ago the Attorney-General said that one condition should be that the person concerned should not be in danger from anybody other than the courts. In view of the evidence that we have heard, especially from the right hon. Member for Thirsk and Malton (Mr. Turton), can the hon. and learned Gentleman seriously suggest that this man is not in danger from anybody other than the courts?
§ The Attorney-General
That is the second part of my argument, and I shall come to it in due course.
I want to emphasise that it was just that circumstance which persuaded my right hon. Friend's predecessor not to send back to Cyprus Mr. Zacharia, in the case that occurred last year. In that case it would have been oppressive to return him, because he would have been at risk. I will come to the facts of this case when I have dealt with the next stage of my argument.
§ Mr. S. Silverman
Apart from the Statutes—and I ask the hon. and learned Gentleman to forget the difference between the two Statutes to which we have referred and assume that he is not inhibited by the fact that the Extradition Act provides for exemption in the case of political offences whereas the other Act does not—will he explain to the House on what ground he can argue that it is a good principle in the case of a foreign country, but not a good principle in the case of a fellow member of the Commonwealth, to refrain from returning the person concerned to the place of trial on a political charge?
§ The Attorney-General
The only principle contained in the Extradition Act is that the other country concerned cannot ask for extradition as of right. This country reserves its right to decide how it will deal with a fugitive offender, and whether it will or will not grant him asylum. In the case of either Act the Home Secretary is exercising a discretion in deciding whether it is proper or right to grant asylum, upon the principles that I have read out.
674 The first argument put forward by the Opposition Front Bench was that the Fugitive Offenders Act ought to be amended in order to make it exactly equivalent to the Extradition Act, and that in any event the Home Secretary ought now to apply the Fugitive Offenders Act as though it read the same as the Extradition Act, and should never grant rendition to a Commonwealth country in the case of a political offence.
§ Mr. Silverman
What is wrong with that?
§ The Attorney-General
All I am saying is that it is not in accordance with the law. It is quite plain that the Fugitive Offenders Act deals with political offenders, such as treason—which is expressly mentioned in it. In my submission, the Home Secretary was entirely correct in saying that if he acted in the way suggested by the hon. Member he would be tearing up the Act, and would be applying instead the Extradition Act, which does not apply to the case.
§ Mr. MacDermot
This is a very important point. Have we not a precedent, in the practice adopted by the Government when this House passed a Resolution in favour of the abolition of capital punishment? The law remained as it was before—that murderers were liable to capital punishment—but after the passing of the Resolution our practice was based on the will of this House, as evidenced by that Resolution, until the matter had been put to the test by my hon. Friend's Bill, which so nearly succeeded.
Are not we now in a comparable position? There has been a very clear expression of feeling by hon. Members on both sides of the House that the Act is out of date, and ought to be changed. Is not that a matter which, very properly, and in accordance with that precedent, ought to be taken into account by the Government and the Home Secretary, in terms of an alteration in practice pending a clear decision of the House whether or not to amend the Act?
§ The Attorney-General
I take the point, but when we were considering the Homicide Act we were concerned only with the citizens, the Parliament and the Government of this country. The Fugitive Offenders Act concerns mutual rights and duties of Commonwealth 675 countries, and if we did as the hon. Member suggests we would be putting a unilateral interpretation upon the operation of that Act without having had any discussions about it with the other countries of the Commonwealth. Whatever may be the situation in respect of three Commonwealth countries, it is binding as between all the others.
§ Mr. S. Silverman
May I ask one more question on this point. I promise that it will be the last? Can we illustrate the difficulties that many of us feel on this part of the hon. and learned Gentleman's argument in this way? If the court's concern with a case arising out of the Fugitive Offenders Act were on the ground that that Act was obsolete or obsolescent to apply a political test to a particular case, that, no doubt, would be unlawful. That might fairly be described as tearing a page out of the Statute Book. But is it so clear thus that is equally true if the Home Secretary does it in the exercise of what is by Statute an absolute discretion?
§ The Attorney-General
The basis upon which my right hon. Friend is now being asked to follow the practice of exercising his discretion is that he should not render back to other Commonwealth countries any political offenders, even somebody charged with treason, although treason is one of the offences for which he can be returned under the Act.
All that I am submitting is that he can, of course, it is perfectly within his discretion, but the question that has to be asked is, is it right that he should make this change in practice, at this stage, without the consultation and agreement of the rest of the Commonwealth, or is not it right that, at any rate at the moment, Her Majesty's Government should continue to apply this Act and the discretion of the Home Secretary in precisely the same way that it always has been, and is it not sufficient for the principles of liberty, which everyone in this House and this country is anxious to preserve, that the Home Secretary should conceive it as his duty that the test that he has to apply is whether there would be oppression in returning a person to one or other of the countries of the Commonwealth?
§ The Attorney-General
Because the courts have to consider, first, whether there is sufficient evidence. Then there must always be, to a certain extent, a political decision. There must be somebody who can look at the whole of the circumstances, including the political circumstances, the actual circumstances overseas, and all the other matters, the whole of the matters that have to be considered—I use the word "political" in the widest possible sense—the risk of sending him back, every single circumstance; and it is right that that decision should be taken by a Minister and that is why the Act imposes it upon him.
The only subject of dispute on this aspect of the matter is on what principle should he exercise that discretion. Should he do it upon the basis which he has done and has told the House, "I considered whether this would be a precedent. I applied the principles that I would apply to the asylum of a person from another country and if I thought that these were oppressive I would not order a return"? Or ought he to take the rigid test applicable in the courts under the Extradition Act to prevent another country claiming a man and say, "Because this is a political offence, whatever its implications, whatever might be the consequences to us of not returning him to another country or of another country not returning him to us, nevertheless I will never return a person who has ever committed a political offence of any nature, although it might bring down the Commonwealth and lead to the triumph of Communism"? [HON. MEMBERS: "Oh."] This is, of course, an extreme case, I concede that. But these are some of the matters which have to be considered.
I turn, then, to the second point. I respectfully agree that if one is not to exercise one's discretion, which is not a discretion at all, and say, "Is this a political offence or not? If it is I will not return the man"—that is what is suggested but, as I have submitted, the Home Secretary ought not to do that, and is right in not having done it in this case—the second question does arise. On that I agree with my hon. Friend 677 the Member for Lancaster (Mr. Berkeley) that the only question then is: will there be any risk of unfairness in the trial of this chief if he is returned to Nigeria?
I know that the right hon. Member for Belper does not regard this as relevant. On the other hand, there have been opinions from both sides of the House on this aspect. I submit that this is a matter on which the House has to be satisfied that it is fair and would not be oppressive of this chief were returned to Nigeria. The first matter one has to consider is whether there would be any unfairness in the courts. The House, I think, is almost universal in the opinion that the Nigerian courts are to be trusted; that they are independent; that they are not under the thumb of the Executive; that the Chief Justice is a person of great stature and of great independence, and that one could not in any way suggest that the chief, if he is returned, would not have a fair trial.
The question was raised whether it was right that the judge at present trying the treason trial now proceeding should try the other case. I have no information and nobody knows whether, in fact, that judge will be assigned to the trial of the chief. It must be the responsibility of the Chief Justice of Nigeria to decide who should he the person to undertake the trial of the chief on his return.
We know that the Federal Supreme Court of Nigeria has always shown its independence. There is a British member of the court still there. But the members of the Federal Supreme Court have the highest status.
There is a right of appeal from Nigeria to the Privy Council and while it is perfectly true that before one can get leave to appeal, one has to show that there has been a serious miscarriage of justice—it is not an automatic appeal—nevertheless the Privy Council frequently interferes in criminal matters where it is clear that the course of justice has been perverted. It is being said in this House that a trial in Nigeria will be wholly and absolutely unsatisfactory. One hon. Gentleman suggested that an appeal to the Privy Council would take about two years. But I can assure him that in criminal matters that is not so.
The other matter that was raised is, that apart from and outside the courts of justice, there will be interference with 678 the preparation of the prosecution and in the way in which the witnesses are dealt with and I must deal with those matters separately. The prosecution is, of course, under the control and under the authority of the Attorney-General of Nigeria. Anyone who has known him must know of his stature. He is a lecturer on law at Manchester University, a Fellow and lecturer of the Institute of Commonwealth Studies at Oxford; a visiting Professor at Delhi University; a Research Fellow at U.N.E.S.C.O. and, in November, 1961, he was elected a member of the International Law Commission. That is the type of person who is the Law Officer who is responsible for the conduct of this prosecution.
I am sure that he would greatly resent some of the suggestions which have been made in this House about the way in which the prosecution is being conducted. The Solicitor-General is Chief Omolulu, whom some hon. Members may have had the advantage of meeting when he was in this country recently. He is a graduate of Dublin and has wide experience of many parts of the world. I am sure that everyone would regard him as an honourable and an honest man.
A point was raised about whether it is a good or a bad thing that the Chief should be represented by a British Q.C. at his trial. The only interest of Her Majesty's Government in that was not in securing that a British Q.C. should represent him, but that they should be assured that he should have the counsel of his choice from all those qualified to appear. It was thought necessary to secure that to see that he would have the counsel of his choice. Her Majesty's Government had no interest at all in seeing whether he had a Nigerian or a British Q.C. It is entirely a matter for him to choose by whom he prefers to be represented. For that reason alone, the Home Secretary thought it necessary to clarify that matter with the Nigerian Government.
Allegations have been made about the way in which the investigations have been made, that they have been improper and that persons have been forced to give evidence and to make admissions by force, by improper methods and pressure. It is not unusual in the experience of those who deal with criminal cases to find such allegations made when defendants have made admissions which they find 679 embarrassing at a later stage and the consequences of which they wish to avoid. I think that everyone must concede that it would be impossible for the Home Secretary to try that issue. He has of course considered it, but he cannot determine it finally. Such information as he has had from our representatives in Nigeria is that the allegations of brutality are untrue, but even that cannot be an assurance which gives any guarantee.
The only way in which that matter can be left is that it must be a matter which can be determined by the courts of Nigeria. This is exactly the sort of issue which arises in the courts of this country when a person alleges that he has been beaten up and that that was the only reason why he made a statement. This is linked with the question of the capacity of the Nigerian courts to deal with a matter of this sort.
§ Mr. Turton
Is it not a material factor for the Home Secretary to take into consideration that the police witness against whom the allegations are made is not available to give evidence in the courts and that he has disappeared?
§ The Attorney-General
No one can say whether that would be the position when Chief Enahoro returned. No one can know whether he is available at the moment because the chief's trial has not yet begun.
§ Mr. D. Smith
I apologise for interrupting. Is my right hon. and learned Friend aware that in the evidence which has been submitted in connection with the allegations about ill-treatment the person to whom my right hon. Friend the Member for Thirsk and Malton referred, the interrogator in chief, is mentioned by most of the people and most of the allegations are made against him personally?
§ The Attorney-General
Of course, that must cause the Home Secretary anxiety and it is one of the matters he must consider, but we have to take a broad view of the whole of the aspects. As far as I know, there is no reason to suppose that any allegations of brutality which Chief Enahoro wishes to make will not be fully and properly investigated by the courts and that the court itself, if it finds that a material witness is missing, would not take the ordinary step in the trial and draw the attention of 680 those who have to decide the facts to the absence of a material witness on an issue of this sort.
§ Mr. Cyril Bence (Dunbartonshire, East)
You lost a witness.
§ The Attorney-General
If we lose a witness here we still get a conviction. This witness is alleged to be material to the defence, whereas in the other case the witness was material to the prosecution, which decided to go on without the witness.
Another allegation with which I must deal is the question of the misunderstanding between the chief's representative and the Home Office official. The hon. and learned Member fog Northampton (Mr. Paget) brushed this aside by saying, "I am not prepared to apportion blame one way or the other". That is exactly what one must do. If there had been the slightest blame attaching to the official of the Home Office, if there had been the slightest reason to consider that anything that he said had in any way misled the Chief or his advisers, there would have been a very different aspect indeed upon the matter.
As the House has been told, my right hon. Friend was careful to interview both the persons who took part in that telephone conversation and to see exactly what was said. There is no dispute on the facts that unhappily a mistake was made, but it was not either made by or attributable to anything said by the official at the Home Office.
§ Mr. G. Brown
That is going very far. I did not want to raise this. I heard what the Home Secretary said. I was quite prepared to leave the matter where it was. In view of what the hon. and learned Gentleman has now said, which puts an additional gloss on the Home Secretary's words, may I ask him whether it is not true that at the meeting the Home Secretary had with Mr. Hyde, I think it is, of his office—he is the official concerned—and the solicitor for Mr. Enahoro, at which was present the friend who made the inquiry, the Home Secretary said that clearly a genuine misunderstanding had arisen? If the Home Secretary at that meeting used the words "a genuine misunderstanding", is not that quite different from the words the Attorney-General has now used?
§ The Attorney-General
I will certainly deal with this point. The Home Secretary takes the view that it was a genuine misunderstanding, but that it was on the part of the friend. All I was saying was that it would be very different indeed if the position were that the Home Office had contributed in any way, shape or form to such a misunderstanding. It may be very unfortunate that that mistake was made, but the Home Office certainly cannot bear any part of the blame for it.
I am sorry if I have detained the House for too long. These are important issues. The principal and first issue must be whether it is right that one should apply the same principles precisely under the Fugitive Offenders Act for the rendition of fugitive offenders within the Commonwealth, or whether it is right that the Home Secretary should have his discretion and should see that no return was oppressive. That is the principle which he has applied, and I respectively submit to the House that he has, in all the circumstances of this case, rightly applied that principle and that it is correct to return the Chief.
§ Mr. G. Brown
There is one question which the Attorney-General has left open. My right hon. Friend the Member for Dundee, West (Mr. Strachey) intimated that, if the Attorney-General's reply was not markedly more in accordance with the feeling exhibited on both sides of the House than that of the Home Secretary, we would feel that we would have to table a Motion which would bring the House to a Division on this matter so that, because of its gravity, the House should express a view. That Motion will now clearly have to go down, because the Attorney-General's speech, if anything, was below the standard of the Home Secretary's.
My right hon. Friend then asked him for an assurance that there will be a stay of execution—that is, of sending Mr. Enahoro away—pending the decision by the House on the Motion we shall table later tonight. I understand that there may be a short delay, because of Government business, before it can be dealt with. That is a matter which the Government will decide. As the Government have this in their control, may I now press the Attorney-General to give us the assurance that there will be no execution of the deportation warrant until the 682 House has been able to express its will in a Division?
§ Mr. H. Brooke
If I may have leave to speak again, this is my responsibility. I unhesitatingly give that assurance, provided that the matter can be brought to an early decision.