HC Deb 24 February 1965 vol 707 cc540-63

Order for Second Reading read.

10.45 p.m.

The Minister of State, Home Department (Miss Alice Bacon)

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

The purpose of the Bill, which has already gone through all its stages in another place, is to modify the arrangements under which persons in this country who are alleged to have committed criminal offences in the Republic of Ireland can be returned to the Republic to stand trial.

It has two purposes. First, it changes the existing arrangements to make certain that return is restricted to those oases where it is clearly justified. Secondly, it makes possible the return of persons to the Republic from Northern Ireland for the first time since about 1930.

The arrangements which are in force today rest on the Indictable Offences Act, 1848, and the Petty Sessions (Ireland) Act, 1851, which provide that a warrant of arrest issued in Ireland—which, in this context, means both the Republic of Ireland and Northern Ireland—can be executed in this country, and vice versa, provided it has first been endorsed by a justice of the peace in the country to which it is sent.

There is no provision in these Statutes for the magistrate to satisfy himself of a prima facie case for the guilt of the accused, as he does under the Extradition and Fugitive Offenders Acts, nor is any court hearing necessary before the arrested person can be returned.

These Acts were, of course, passed at a time when the whole of Ireland lay under the jurisdiction of the Sovereign, but their effect continued, although the foundation of the Irish Free State and the subsequent departure of the Irish Republic from the Commonwealth led to the establishment of a separate jurisdiction in Ireland. Recently, however, a case arose in which these longstanding arrangements came under scrutiny by the Divisional Court and then by the Appeals Committee of the House of Lords. This was the case of Regina v. Commissioner of Police ex parte Hammond.

The Appeals Committee ruled that, since Irish warrants could no longer be endorsed by a senior officer of the Royal Irish Constabulary—because that force ceased to exist in 1922 and has been replaced by the Garda Siochana—the statutory requirements were no longer being met. It concluded that such warrants could not, therefore, properly be executed in the United Kingdom.

This decision made it, in effect, impossible to return offenders to the Irish Republic, though it did not deal with the question of return to Northern Ireland nor return to this country from the Irish Republic.

To remove this defect, the previous Administration introduced last summer a stop-gap Measure, the Republic of Ireland (Consequential Adaptation of Enactment Order), 1964, which enabled Irish warrants endorsed by a member of the Garcia Siochana to be endorsed and executed in this country, and so restored the status quo. But both the Divisional Court and the Appeals Committee of the House of Lords had been disturbed at the continuance of arrangements which had been made in another era and in very different constitutional circumstances. So the then Home Secretary announced, on 29th July last year, that the wider issues would be studied and that comprehensive legislation would be prepared. It is in consequence of that undertaking that this Bill has been introduced.

The procedure which it is proposed should govern the return of offenders to the Republic of Ireland under the Bill is simpler and more expeditious than that of the Extradition and Fugitive Offenders Acts, which govern return to foreign and Commonwealth countries. These require a magistrates' court to decide that there is a prima facie case of guilt, provide for that decision to be reviewed, on application, by a higher court, and give to the Secretary of State an ultimate statutory discretion whether or not to return the accused person.

These elaborate arrangements are not necessary in this Bill. The two countries are close together, there are a great many cases and the laws of the two countries are very similar. Because it is quick, simple and cheap to get from the Republic to the United Kingdom, particularly across the border into Northern Ireland, there are as many as 100 offenders who have to be returned to the Republic each year, as compared, in 1964, with only two people under the Extradition and Fugitive Offenders Acts, one only under each Act.

It would be clearly unreasonable in these circumstances if, before return could be ordered, the Irish authorities had, on every occasion, first to send over all the documentary evidence necessary before a prima facie case could be made out. The inevitable consequence of such a requirement is that they would do so in only the most serious cases, and this country would then tend to become a haven for petty criminals from Ireland. There is, moreover, the important additional factor that English and Irish law not only flows from a common source but is closely comparable in administration and enforcement.

Nevertheless, the fact that we are dealing with the removal of accused persons from one country to another makes it essential that there should be real safeguards on return, and we have sought to provide these in a number of ways. First, we provide in Clause 1 that Irish warrants for arrest can be endorsed and executed only if the offence charged is indictable or a summary offence punishable with six months' imprisonment.

Secondly, Clause 2 provides that a person who is arrested under a backed Irish warrant must, instead of being returned forthwith, as he might be today, be brought before a magistrates' court, and, although the hearing will not be for the purpose of determining a prima facie case of guilt, the court will not order return if the offence specified in the warrant is a political offence, or an offence under military law, or a fiscal offence.

Thirdly, subsection (2) of the same Clause provides that return cannot be ordered at all if the offence does not correspond to an indictable offence or a returnable summary offence under the law of the United Kingdom. The Government consider that it is right for someone to be returned from this country only if the alleged offence is acknowledged to be a criminal act both here and in the Republic.

Fourthly, Clause 3 provides that an order for a person to be returned to the Republic shall not be carried out for 15 days unless the arrested person chooses to waive the stay of execution, which gives time for the arrested person, if he wishes, to apply to the High Court to set aside the order. These are the safeguards affording a considerable degree of protection for the individual.

On the other hand, Clause 4 seeks to prevent the fugitive from justice escaping his desserts by leaving this country before the Irish warrant can catch up with him. It allows a provisional warrant of arrest to be issued here, in cases of urgency, before the Irish warrant arrives.

I hope that the House will agree with the Government's view that this Bill offers new and very real safeguards against unjustified arrest, detention and removal to the Irish Republic of people in this country, while at the same time providing an efficient and reasonably expeditious system for ensuring that the claims of justice are properly met.

We have every expectation that the operation of this new procedure should do much to prevent the recurrence of such cases as that of Mr. Hammond, to which I referred earlier, who was arrested in this country on an Irish warrant for alleged neglect of his children, although he had never lived in the Irish Republic and had made only one short visit there when he tried to effect a reconciliation with his wife. Indeed, we have the assurance of the Irish authorities, which they have most helpfully agreed should be conveyed publicly to Parliament, that no outgoing warrant in a child-neglect case will in future be sent to the United Kingdom for execution here where the matrimonial home is not in Ireland.

A Bill enacted here can, of course, deal with only one part of what must be a reciprocal arrangement. We must also be able to secure the return to our jurisdiction of persons suspected of committing offences here who have gone to the Irish Republic. By a curious trick of fate, the existing arrangements for this purpose also came under consideration last year in the courts, in the case of a man named Quinn. Just as the Hammond case here led to a temporary suspension and a thorough review of our arrangements the case of Quinn has led to a similar breakdown in the Irish arrangements for returning people to this country, for the Irish Supreme Court ruled that the arrangements were contrary to the Constitution of the Republic.

No temporary measure to restore the power to return offenders has been possible in the Republic. The result is that at present we cannot obtain the surrender of wanted persons who have fled to the Republic. This is a very serious situation. The House, I feel sure, will be pleased to know that it is the intention of the Irish Government to reintroduce in the Dail very shortly an Extradition Bill, Part III of which deals with the execution of British, including Northern Ireland, warrants in the Republic. There has been close consultation between the Irish authorities and ourselves at all stages, and it is expected that their proposed measures will afford a broad measure of reciprocity with our own, and they will no doubt be subject to safeguards of the same order as those contained in this Bill.

10.58 p.m.

Mr. Richard Sharpies (Sutton and Cheam)

I am sure the House will agree that this is not the most controversial of Measures that we shall have before us during this Session. The Bill, as the hon. Lady rightly said, was foreshadowed in a Written Reply by my right hon. Friend the Member for Hampstead (Mr. Brooke) on 29th July last when he was Home Secretary.

The hon. Lady has given a very clear exposition of the Bill and there will not be much need for me to detain the House for very long. What is of interest is the reason for the introduction of the Bill. It is curious to reflect that for about 43 years warrants were executed which were signed on behalf of a police force which never existed during the whole of that period. It is even more curious to reflect that for some 42 years no one managed to find out about this. The House would be interested to know the approximate number of offenders who were returned annually under the terms of the existing legislation. Is it a large number? Perhaps the Solicitor-General will be able to tell us when he replies.

The Solicitor-General (Sir Dingle Foot)

I think that the hon. Gentleman means the preceding legislation.

Mr. Sharples


The hon. Lady referred to the counterpart Irish legislation which is to be introduced into the Dail. Is it intended that the coming into operation of the two Measures should be simultaneous? Have any arrangements been made to this end? Are we clear, also, that the legislation which is to be introduced into the Dail will provide full reciprocal rights for Northern Ireland?

Third, what is the basis of the exemptions in Clause 2 referred to by the hon. Lady? Are they taken from other existing legislation, are they to form the basis of future legislation, or have they been specially worked out for the purpose of this Bill? I know that the House was very glad to have the assurance of the hon. Lady that a case such as the Hammond case could not occur under the terms of the Bill. I am sure that the House would not wish a case of that kind to be dealt with in that way in the future.

As I said at the beginning, we on this side welcome the Bill. It was very largely prepared during the time of the previous Administration, and we certainly do not wish to delay its progress in any way.

11.1 p.m.

Mr. David Weitzman (Stoke Newington and Hackney, North)

I apologise for detaining the House at this late hour. I am very sorry that this important Bill should come on at this time because, in my view, it raises an extremely important principle and an important question with regard to individual liberty. When the decision in the Hammond case was made by the Divisional Court, I put a Question down drawing the attention of the Home Secretary to its implications. I was then told by the Home Secretary that he would await the decision of the House of Lords in the matter. When the decision of the House of Lords was given, I put a further Question down, and I was told that the Home Secretary was studying its implications. We now have this Bill, inherited from the last Government but, I gather, with certain amendments made by the present Government.

Hammond's plea for release, which gave rise to the case on which the Bill is based, was successful, but, apparently, only because of the technical point which has been referred to, that the warrant required the endorsement of the Inspector- General of the Royal Irish Constabulary, and, that office having been abolished in 1922, the endorsement, and, therefore, the warrant, was bad. The case drew attention to a grave injustice. Hammond was arrested on a warrant charging him with wilfully neglecting his two children in souch a manner as to be likely to cause unnecessary suffering or injury to their health. That is a crime in this country for which he might be liable here to a maximum penalty of two years' imprisonment.

Hammond swore an affidavit in which he stated that he had been far from neglecting his children and that his wife had left him and returned to Ireland. He disputed the paternity of one of the children. He stated that he intended to bring divorce proceedings against his wife, that he had visited Ireland to try to effect a reconciliation, that he had sent her money on a number of occasions, that he had never received any letters, complaints or requests from his wife, and that he was entirely unaware of any proceedings in the case.

Those facts may or may not be true, but, as Lord Reid said in his opinion, the law allowed Hammond no opportunity of putting his case to anyone in this country and no opportunity of applying for bail. In other words, the magistrate in this country had no right to make any inquiry or to grant bail, but he must back the warrant sent from the Republic of Ireland by the appropriate officer unless it was plainly bad on the face of it.

Lord Reid added these words: But it is a serious matter if, in a case of this kind, a person can be sent under arrest out of Her Majesty's dominions without any warning or any opportunity of preparing or stating his defence or of applying for bail or of representing the hardship which that will involve for him. These were strong words, which certainly warrant the relief created by the Bill. But I want to ask the Minister of State whether the provisions of this Bill go far enough. I say that because I would have thought that what Lord Reid really contemplated to put matters right was legislation which required a procedure somewhat on the lines of the Extradition Acts or the Fugitive Offenders Act.

The House will forgive me if I read one passage from the judgment of Lord Reid in that case in which he said: Normally persons resident in this country who are accused of an offence in a foreign country are dealt with under the Extradition Act, 1870, which contains elaborate safeguards. And if they are accused of an offence in another part of Her Majesty's Dominions they are dealt with under the Fugitive Offenders Act, 1881, which contains very considerable safeguards. Even under the modified scheme for contiguous groups of British possessions under Part II of the Act of 1881 the accused must be brought before a magistrate in the place where he is arrested, and Section 19 allows the Court to take into account the trivial nature of the case or whether it would be unjust or oppressive to put the warrant into operation immediately or at all. Then the learned judge says: I realise that the Republic of Ireland has always been treated as a special case and it is quite clear that neither the Extradition Act nor the Fugitive Offenders Act can be applied as they stand to cases like the present. So it would seem that if your Lordships agree that the present appeal must be dismissed it will be necessary to give urgent consideration to the whole matter of sending accused persons from this country to the Republic of Ireland, and in particular to the case of British subjects who have never resided in that part of Ireland or caused anything to be done there. I now draw the attention of the House to what the Bill does in Clause 1. Under Clause 1, as my right hon. Friend has said, where a warrant has been issued by a judicial authority in Ireland for the arrest of a person accused or convicted under the laws of the Republic of an indictable offence or an offence punishable on summary conviction with six months' imprisonment, the justices must endorse the warrant in the prescribed form. I appreciate, of course, that there are a number of exceptions in the Act; for example where the person has been summoned for a summary offence punishable with six months' imprisonment, not an indictable offence, he must have failed to appear to the summons. Moreover, the offence must correspond with the offence in his own country, it must not be political, under military law, or under an enactment relating to taxes, duties, or matters of exchange control, and if arrested and sent back to Ireland he must not be prosecuted for another offence.

These provisions are excellent provisions, and, of course, they follow to a considerable extent what is set out in the Extradition Acts and the Fugitive Offenders Act. But offences like larceny, receiving, unlawful wounding, dangerous driving, apart from many other offences may be tried on indictment. Even common assault is a misdemeanour where on indictment a person is liable to a maximum of one year's imprisonment.

Take the offence with which Hammond was charged—neglect of children. That was triable on indictment, the maximum penalty being two years' imprisonment. My right hon. and learned Friend said that an undertaking was given by the Government of the Irish Republic that no warrant would in future be sent to this country in a child neglect case where the matrimonial home was in Ireland. It has only to be stated by the person complaining in Ireland, however, that the matrimonial home is there and it would be difficult for the accused person to do anything with regard to that matter if he were so charged.

The result of what I have said is that in those matters that can be tried on indictment, those that I have instanced, as I read the Bill the procedure still remains the same as in the Hammond case, with the exceptions which I have mentioned of political offences and offences under military law, excise law, and so on. Except for those, the procedure will remain the same under Clause 1. This means that if an accused person is arrested for an indictable offence other than those to which I have referred, and if the warrant is backed in the way provided in the Statute, the person will be returned to Ireland.

That is a serious matter. In other words, it still remains true, if the Bill becomes an Act, that, in Lord Reid's words, a person can be sent under arrest out of Her Majesty's dominions without … any opportunity of … stating his defence". I appreciate the reasons that may be put forward for not applying all the provisions of the Extradition Act and the Fugitive Offenders Act. It is said that Ireland is near and there is a lack of emigration and travel restrictions. My right hon. and learned Friend the Minister of State mentioned that there might be a danger of criminals avoiding justice by travelling from Ireland, which might become a haven for criminals.

Do not let us exaggerate these difficulties. With modern means of travel, many countries are very near us. Emigration and travel restrictions can be avoided by criminals if they desire to do so. Moreover, my right hon. and learned Friend mentioned the difficulty, except in the most serious cases, of the Government of the Irish Republic or the courts of Ireland sending over documents to show a prima facie case. Why should not they do so? The very nearness makes it easier for the Irish authorities to send documents and to establish a prima facie case. It is no more difficult for them to do it than it is for courts in the north of England to send evidence down to the south of England where a person is being tried.

I impress upon the House that the liberty of the subject is one of our most precious possessions that must be safeguarded. It is important that there should be no danger of a case like that of Hammond arising. Every person, particularly in a serious case, triable on indictment should have the right to demand that before he is arrested and sent to Ireland, a prima facie case should be proved by the prosecution against him. He should have the right to state his defence before being committed for trial to another country.

The House will recall that under the Extradition Acts, the prosecution must show prima facie proof of guilt according to English rules of evidence. The defendant may give evidence. He may, for example, prove an alibi. Under the Fugitive Offenders Act, the prosecution must call evidence which raises a strong and probable presumption of guilt. The defendant may be released if a higher court deems his return unjust.

Again, I express my regret that a matter of this importance should be discussed at this late hour. I urge upon hon. Members that it is a matter of the greatest possible importance. It is true that the Government have incorporated many safeguards similar to those provided by the Extradition Act and the Fugitive Offenders Act, but I earnestly ask them to consider this matter again.

I am glad to see my hon. and learned Friend the Solicitor-General here. He has had great experience of cases of this kind under the Fugitive Offenders Act. I recall vividly some of the pleas he has made very much on the lines of the plea I now make. I ask the Government to reconsider this matter and, despite the objections raised, to safeguard the liberty of the individual by making it essential that, before an accused person can be returned on a Warrant, even to Ireland, the prosecution must prove a prima facie case.

11.16 p.m.

Mr. Rafton Pounder (Belfast, South)

Before making some general comments on the Bill, there is just one specific point with which I would like to preface my remarks. It concerns Clause 9. I am glad to note therein that this perpetuates the practice of the Backing of Warrants Procedure under the Indictable Offences Act, 1848, and the Petty Sessions (Ireland) Act, 1851, in so far as these affect Northern Ireland and the remainder of the United Kingdom.

I hope sincerely that the necessary procedure may be brought into operation by the Home Office to bring this legislation up to date when a suitable opportunity arises. Although, of course, I accept that the Bill deals primarily with the Republic of Ireland, nevertheless I hope that a suitable opportunity will be taken to modernise the law in so far as it relates to Northern Ireland and the rest of the United Kingdom.

It is important to realise that it is now nearly 35 years since last there was any reciprocal arrangements between the Irish Free State, as it then was, and the United Kingdom. Nevertheless, for the first eight years after the passing of the Government of Ireland Act, 1920—indeed up until 1928—there were reciprocal arrangements between the Irish Free State and Northern Ireland.

It was in a case with the resplendent name of O'Boyle and Rogers v. the Attorney-General and O'Duffy which came before the Dublin High Court in 1928 that it was found that there was no authority for executing Northern Ireland warrants in the Irish Free State. A practice which had been going on for the previous eight years simply came to an end then. It is also worth recalling that repeated representations have been made during the intervening 35 years to have some arrangement with regard to reciprocity of warrants and that these have, unfortunately, always broken down.

As I understand it, the Bill's main purpose is the quite simple one of adapting the old procedures to reflect the changed status of the Republic. It is no more nor less than that. I think it is fair to say, from a Northern Ireland point of view, that the Bill is most welcome because, for the first time in 35 years, there is to be a reciprocal arrangement between the two parts of Ireland for the backing of warrants, and both countries will therefore cease to be a refuge for criminals seeking to flee across the border. I do not want to get bogged down in statistics, but quite a number of persons have used this escape route as a means of avoiding justice. While I do not agree with the hon. and learned Member for Stoke Newington and Hackney, North (Mr. Weitzman) in much of what he said with regard to the number of people who use this avenue of escape, it is welcome that it is to be closed. As an Ulsterman I would very much like to see the speedy passage of the Bill.

11.20 p.m.

Mr. Maurice Orbach (Stockport, South)

I support my hon. and learned Friend the Member for Stoke Newington and Hackney, North (Mr. Weitzman). Clause 2(2) says that no one can be extradited for a political offence or an offence under military law and adds: nor shall such an order be made if it is shown to the satisfaction of the court … (b) that there are substantial grounds for believing that the person named or described in the warrant will, if taken to the Republic, be prosecuted or detained for another offence. … This is very important. What it means, to the layman at any rate, is that a case has to be proven in the court. I cannot understand why the Bill cannot contain a provision that before a person is transferred from this country to any other counry a prima facie case shall have been established.

My hon. and learned Friend spoke of the liberty of the subject. Our relations with the Republic of Ireland are excellent at the moment, and I hope that they will continue to be so, but there may be a change of Government there to one entirely different from the present democratic constitutional Government, and people might be extradited, or warrants issued for extradition, on grounds which, if a court in this country could determine them, would be found to be illicit. The argument for establishing a prima facie case is self-apparent to every hon. Member, and the Government ought to concede the argument, at least in Committee.

11.22 p.m.

Mr. Forbes Hendry (Aberdeenshire, West)

The hon. Lady gave a very clear account of the necessity for the Bill from the point of view of the law of England. I have been waiting patiently throughout the debate to hear some explanation of the necessity for the Bill as regards the law of Scotland, because the Bill relates equally to the law of Scotland as to the law of England.

The hon. Lady said that the laws of England and Ireland were very similar and that they sprang from a common sources, but the law of Scotland springs from a totally different source and, if the law of Ireland is like that of the law of England, it cannot be anything like the law of Scotland. I would like the Minister of State for Scotland, who has been here throughout the debate, to say what will be the Bill's repercussions on Scottish law. As a Scots lawyer, I do not understand the Bill, although I have studied it carefully; perhaps the Minister of State would be able to help.

How is a justice of the peace in Scotland to make up his mind whether the alleged offence is an offence against the law of Scotland, whether it is an indictable offence, or an offence punishable by a maximum of six months' imprisonment? This is an intolerable duty to place on a justice of the peace in Scotland, especially in the circumstances in which these warrants are normally executed.

My experience of this sort of thing is that a policeman knocks up a justice of the peace at one o'clock in the morning, which is the time the police like to do this sort of thing, or the sheriff, who is a knowledgeable person in these things, and says, "I have a warrant and it is for you to decide whether this is an indictable offence according to the law of Ireland of which you know nothing, or whether this man can be sent to prison for not longer than six months for an offence about which you know nothing, and you must back the warrant, because Clause 1 of the Bill says so."

Then, if we turn to Clause 1(2) we find that the justice of the peace in certain circumstances must not back the warrant. He must not back the warrant in certain circumstances which are there set forth. I do not want to detain the House any longer than is necessary, but this justice of the peace in the middle of the night has to decide whether the warrant falls within these exceptions. One of the exceptions, which I do not understand, is that referred to in paragraph (b), which is about a person against whom the warrant has been issued who has entered into something called a recognizance. I, being a Scots lawyer, have not the faintest idea what that is. Has it something to do with recognising a person? But, whatever it is, it is not known in the law of Scotland. I have taken the trouble of consulting with my hon. and learned Friend the Member for Edinburgh, Pentlands (Mr. Wylie). He does not know what a recognizance is, because that is z thing which does not exist in the law of Scotland. It may be that the Solicitor-General will he able to explain this to us, but certainly I do not know what it is, and neither does my hon. and learned Friend.

Of course, if the Government had a Scottish Law Officer in this House—which they have not—no doubt he would have the very greatest of ease in explaining that to us. Where are these Law Officers?

Mr. Orbach

Where were they before?

Mr. Hendry

Where is the learned Lord Advocate? Presumably in his bed in Edinburgh. Where is the Solicitor-General for Scotland? The hon. Member will tell me?

Mr. William Hamling (Woolwich, West)

At no time in the last Parliament were they elected.

Mr. Hendry

Oh, yes. The hon. Member does not know that in the last Parliament we had no fewer than two learned Solicitors-General for Scotland here, in succession, including my hon. and learned Friend the Member for Pentlands, and they were, of course, able to advise on matters such as these.

But as to the Clause to which I have referred, and which relates to Scotland, neither 1, who am a practising Scottish lawyer, nor my hon. and learned Friend the Member for Pentlands, has the faintest idea of what it means. Perhaps the Minister of State for Scotland will tell me.

The hour is late, and I do not want to keep the House any longer than is necessary, and I understand many hon. Members are waiting for me to finish this speech, but I am greatly concerned, like the hon. and learned Member for Stoke Newington and Hackney, North (Mr. Weitzman), who made a long speech just now, about Clause 2(2), by which the court before which the malefactor, or alleged malefactor, is brought, has to make up its mind about the nature of the offence. A Scottish court, whatever an English court may do, certainly cannot issue a judgment on the law of Ireland. The custom in the Scottish courts, if they were dealing with the law of Ireland, is to produce an expert on oath to tell them what the law is, but this Bill does not provide anything of that sort, or say how a court in Scotland has to make up its mind. The Bill does not say. I should be very glad indeed if the Minister of State would tell me.

Turning to Clause 4, we find subsection (6) says that subsections (4) and (5) shall not apply to Scotland, but I personally cannot understand that subsection (6). It is a most obscure subsection. I do not know who drafted it, whether it was done in the Scottish Office, or the Home Office, or whether it was done in the Republic of Ireland, but I do not understand what it means, and I should be most grateful if the Minister of State, having taken the advice of his Law Officers in the City of Edinburgh, would kindly tell me what it means.

I do not want to go on at great length, but on looking at Clause 10, the Interpretation Clause, I find that subsection (3) says that except in section 6(2), a justice of the peace includes a sheriff. "Sheriff" in Scotland means a multitude of things. It may mean the sheriff of the Sheriffdom, who very often lives in Edinburgh. It may be that the constable will have to go to the sheriff principal in Edinburgh and get his backing for the warrant. Or will he be entitled to go to the sheriff substitute who lives locally and get his backing? If he is entitled to go to the sheriff substitute, the Bill does not say so, and I should like to hear what the Minister of State has to say about this.

I should also like to know whether the term "sheriff" includes an honorary sheriff substitute. These people are responsible magistrates who live locally, and they are very useful people, too. It looks as though the Government have no faith in an honorary sheriff substitute. The views of the Minister of State are well known. He does not approve of sheriffs at all. He has often told us this in the Scottish Grand Committee, and so possibly tonight he will tell us what he means by the term "sheriff", and what he expects the sheriff to do in these circumstances.

The same subsection includes a magistrate under the definition of a justice of the peace. There are many magistrates in Scotland, but many of them are not justices of the peace. The Bill will have a material affect on the law of Scotland, and it may make magistrates in Scotland who are not justices of the peace into justices of the peace, and I should be grateful if the Minister of State would deal with that as well.

The Bill has given a great deal of concern to Scottish lawyers both in this House and in Scotland generally. It is incomprehensible to us, and as the hour is late I shall willingly give way to the Minister of State to enable him to answer the questions which I have posed.

11.32 p.m.

Mr. William Yates (The Wrekin)

This is an important matter, because we are dealing with the liberty of the subject, and I think that my hon. Friend the Member for Aberdeenshire, West (Mr. Hendry) has asked some valid questions.

It seems to me that, if we are to pass this Bill, we should pass it contemporaneously with an exchange Bill passed at the same time in the Dail. I do not think it would be wise for us to give rights to another Parliament, unless that Parliament were prepared to give us identical rights in exchange at the same time.

There is one point which interests me. What happens if the person goes to the Channel Islands, or to the Isle of Man? This is an interesting proposition, as Liverpool is so near to the Isle of Man, and the southern ports are useful for getting to the Channel Islands, and I would be grateful if the Solicitor-General would tell me whether the Bill will apply to, and will be able to be acted on in, the Channel Islands as well as the Isle of Man.

Those are the only two points that I wish to have dealt with before I am asked to agree to pass the Bill.

11.33 p.m.

Mr. Edward M. Taylor (Glasgow, Cathcart)

As a Scottish Member, I attended the debate solely for the purpose of obtaining information. I share the fears expressed by my hon. Friend the Member for Aberdeenshire, West (Mr. Hendry), and I am surprised that the Minister of State has not intervened to make clear what the position will be in Scotland.

So far as I can see, there are two principal questions which have to be answered, and I think that Scottish Members are entitled to those answers. First, what new responsibilities will be placed on justices of the peace in Scotland? As my hon. Friend pointed out, the legal position in Scotland is different from that in England, and a person can be a magistrate for a period of time, or in fact for the whole of his life, without becoming a justice of the peace, This appears to be a fundamental difference between Scotland and England, and we are entitled to know what the position will be.

Our principal objection is that we do not have any clear idea of the effect which the Bill will have on Scotland. The least we are entitled to is a clear statement from the Minister as to what will be the effect of the Bill in Scotland. We have had the feeling, not only since this Bill has been under consideration but since the beginning of this Parliament, that Scottish affairs have not been getting the consideration that they deserve. Many legal problems have arisen on which we have not had the advice of the Scottish Law Officers, and this is a very serious situation. It is true that for a short period in the previous Parliament we had difficulties—not of the nature which the present Government are experiencing—in bringing Law Officers into the House. Those difficulties do not arise now, and we are entitled to an explanation.

We are also entitled to know what it is about the special relationship that exists between Great Britain and the Republic of Ireland which justifies different measures from the normal extradition arrangements. The only argument put forward to justify this was the question of geographical distance. In this age there is no such question. France and other European countries are so near today, and we are able to travel to any part of the world in such a short time that it is difficult to justify this action on the argument of geographical location.

The other important point concerned the transfer of papers dealing with the case in ail its details. It is possibly more difficult to transfer papers and legal documents from this place in London to the north of Scotland than to the Republic of Ireland. We have had difficulties in regard to transport, as we have had difficulties over the difference between the law of England and the law of Scotland. which appear to be greater than the difference between the law of England and the law of Ireland.

We are entitled to an explanation of all these matters. We have had no such explanation, and that is an outrageous situation.

11.37 p.m.

The Solicitor-General (Sir Dingle Foot)

The hon. Member for Sutton and Cheam (Mr. Sharpies) treated this as a wholly non-controversial Measure. In the light of later speeches, however, it is clear that he was a little sanguine. I shared his sense of wonder when I read the speeches and the decision of the House of Lords and realised that for 43 years fugitives had been returned to Ireland by an entirely unlawful procedure. The hon. Member put to me certain specific questions, which I will endeavour to answer. He asked first about the numbers who had been returned either from this country to the Republic or from the Republic to this country. I have not the precise statistics, and I do not suppose he requires them, but I am told that the figure has run for a long time at about 100 each way each year. We are therefore dealing with a problem of considerable dimensions.

This is a very different situation from the kind of situation which we have to consider when the case arises either under the Extradition Acts or the Fugutive Offenders Act. We are dealing with many more persons, and with a problem which arises much more often.

The hon. Member also asked me to give the reasons for the exceptions which have been made, in Clause 2(2). We find there that an order shall not be made if the offence specified in the warrant is an offence of a political character, or an offence under military law which is not also an offence under the general criminal law, or an offence under an enactment relating to taxes, duties or exchange control. The exception relating to offences of a political character is thoroughly familiar, and has been included in our extradition legislation ever since 1870. Indeed, the tradition that we do not return to the country of origin persons who are accused of political offences goes right back to the Napoleonic Wars.

We come to the other offence—an offence under military law, which means an offence which is not also an offence under ordinary civil law, or an offence under an enactment relating to taxes, duties or exchange control". The explanation is this—and I agree that this is novel in our legislation: the Republic of Ireland is a party to a European convention on extradition which was drawn up in 1957. We are not party to that convention. We have always preferred to make a series of extradition treaties with each foreign country in turn. But the Irish are parties to this convention, and this convention includes these provisions relating to military offences and to fiscal offences. The Irish Government were therefore anxious that there should be a provision of this kind in the reciprocal legislation which is being passed.

Here I pass to the hon. Member for The Wrekin (Mr. William Yates). I cannot say that the two Measures will come into force on precisely the same date, but it is the intention of both Governments that it shall be practically simultaneous—that similar legislation to this will be passed through the Dail and will become law at about the same time. That answers the question put to me about reciprocity by the hon. Member for Sutton and Cheam. It is intended that there should be full reciprocity not only as between this island and the Republic but also between the Republic and Northern Ireland.

Mr. Sharples

I should like to be quite clear about this. The legislation being passed by the Dail will be fully reciprocal as regards Northern Ireland?

The Solicitor-General


I come to the points raised by my hon. and learned Friend the Member for Stoke Newington and Hackney, North (Mr. Weitzman) and my hon. Friend the Member for Stockport, South (Mr. Orbach). I naturally share their concern for the liberty of the subject, but I should like to make this point: this Bill goes further to establish safeguards for the individual than any legislation governing Anglo-Irish relations has ever gone before. It is true, as was pointed out by the hon. Member for The Wrekin, that we have a special relationship towards the Irish Republic, even since the Irish Republic ceased to be a member of the Commonwealth. We have special provisions relating to nationality, in the British Nationality Act, 1948, we have special provisions relating to immigration and we have these provisions, because of the geographical proximity and the way in which the two nations in many respects have to work together. The position as regards Ireland has, therefore, always been quite exceptional, both when Ireland was under British sovereignty and since. That exceptional position has been maintained.

We have had this remarkable situation that up to now, as it was understood to be: there were no safeguards at all for the person who was sought to be returned from this country to Ireland. There had to be a warrant issued in Ireland. That warrant had to be endorsed by a justice of the peace in this country, but that was a purely Ministerial act, and it was not even necessary that the person concerned should appear in any court in this country. In this Measure we include a number of safeguards which have never existed before. First of all, we say that there is to be provision by which the person concerned appears in court. Then we have the safeguard to which I have referred about offences of a political character and the other excepted offences.

Mr. Weitzman

One recognises that there are safeguards, and it is true that we have not had these safeguards before, but would my hon. and learned Friend agree that, if the law were enacted in accordance with the Bill, a person who is charged with an indictable offence could suffer in the same way as Hammond did; that he could appear in court, a prima facie case need not be made against him, a magistrate could send him back, and he would have no opportunity of presenting his case?

The Solicitor-General

There is a considerable difference here, even considering Hammond's case. I will explain, if my hon. and learned Friend will allow me. I said that not only are the exceptions included in the Bill, but there is also the provision about 15 days; that 15 days must elapse before the fugitive can be returned. During that time he can, if he wishes, bring habeas corpus proceedings to test the validity of his arrest, and then there is a provision similar to that which is in the Fugitive Offenders Act, 1881. if he is not returned within a certain time he goes free, unless there is some adequate explanation for the delay.

Mr. Weitzman

Naturally, he has 15 days in which habeas corpus proceedings can be brought, but surely my hon. and learned Friend is not suggesting that in those proceedings any question about a prima facie case could be raised. The real question here—and I urge my hon. and learned Friend to deal with it—is whether it is necessary to prove a prima facie case.

The Solicitor-General

I was coming to that because I was seeking to make the point that the Bill includes a series of departures, all of which are in favour of the liberty of the subject. There are here a series of safeguards which have never existed before in relation to persons accused of offences—

Mr. Weitzman


The Solicitor-General

I assure my hon. and learned Friend that I am not seeking to evade the point, nor am I seeking to evade the point raised by other of my hon. Friends. I agree, first, that there is no provision here whereby a prima facie case must be established. Secondly, there is no provision which is comparable with Section 19 of the Fugitive Offenders Act, 1881. The reason for the first omission, if it be one, has already been explained by my hon. Friend the Minister of State. We are here dealing with a very large number of cases. We are dealing also with a jurisdiction in Ireland which is very similar to our own. We do not think that it will be a great hardship that somebody should have to face his accusers in Ireland, which is, after all, only a short distance away. I remind the House that Section 19 of the Fugitive Offenders Act 1881 states: Where the return of a prisoner is sought or ordered under this part of this Act, and it is made to appear to a magistrate or to a superior court that by reason of the trivial nature of the case, or by reason of the application for the return of such prisoner not being made in good faith in the interests of justice or otherwise, it would, having regard to the distance, to the facilities of communication, and to all the circumstances of the case, be unjust or oppressive, or too severe a punishment, to return the prisoner either at all or until the expiration of a certain period, the court or magistrate may discharge the prisoner … I will deal, first, with trivial cases. Section 19 of that Act refers to … the trivial nature of the case … and the magistrate in such circumstances can direct that the fugitive be not returned because it is a trivial case. We are legislating so as to avoid trivial cases because we say in Clause 1 of the Bill that the provision should apply only to … a person accused or convicted of an offence … being an indictable offence or an offence punishable on summary conviction with imprisonment for six months …". Therefore, we exclude altogether the trivial cases contemplated under Section 19 of the 1881 Act. But it is quite clear that when that Section and the earlier corresponding Section, Section 10, were framed one of the chief considerations which Parliament had in mind at that time was the matter of distance. Somebody might be sent a long way—this was, of course, before the days of air travel—and very considerable hardship might be involved. That again is a consideration which does not arise here.

It is for these reasons that we came to the conclusion that it would not be appropriate to seek to obtain a similar provision in this Measure. I repeat that this is a reciprocal Measure, and it is upon these lines that we have been able to obtain agreement with the Government of the Republic of Ireland.

The hon. Member for Aberdeenshire, West (Mr. Hendry) asked me about the position in Scotland. If I may say so, he makes rather a habit of it. As I said to him on an earlier occasion, I naturally feel a certain amount of diffidence about addressing the House on Scots law. I know precisely how he feels, because for 14 years I had the honour in this House of representing the Royal and ancient Borough of Dundee. My recollection is that on occasions I haw called attention to the absence of tilt Lord Advocate.

The hon. Gentleman asked me about the burden which would be put on justices of the peace in Scotland. They will be in no worse position than justices of the peace in England. They will be carrying out precisely the same function and I have no doubt that they are at least equally capable of doing so. They will have to consider, no doubt, whether the offence for which the fugitive is sought to be returned is an offence which corresponds to some provision of Scots law.

It has been suggested that this was an impossible burden, but it is a burden which the courts have been carrying at least since 1870. There is a similar provision in the Extradition Act, and I believe there is a similar provision in the Fugitive Offenders Act. The courts have always had to consider at some stage whether the offence charged is an offence which corresponds to an offence in the country from which the fugitive is sought to be returned. Therefore, I suggest that we are not imposing any undue burden upon the courts, either on justices of the peace or on the sheriff or on any of the other courts of Scotland.

The hon. Member for Glasgow, Cathcart (Mr. Edward M. Taylor) asked about the special relationship. That is a point with which I have already dealt. As I say, we are dealing with a state of affairs which is unique. We are dealing with a relationship for which special provision has always had to be made, running right through our legislation, and therefore there is nothing novel that we should have a special Measure—if you like, a new form of extradition treaty between this country and the Republic of Ireland.

I commend this Bill to the House. It is agreed, I think, between both sides of the House that we have to have legislation of this character, and I repeat to my hon. Friends below the Gangway that this Measure creates safeguards for the liberty of the subject which have never existed before in this field.

Mr. William Yates

May I refer the Solicitor-General to the Orders in Council for the Isle of Man and the Channel Islands and ask him how this matter is to be dealt with?

The Solicitor-General

I am informed that the Channel Islands will be covered by this Bill. Therefore, if it were sought to bring someone from the Channel Islands this Bill would apply. I should like to reserve my answer on the case of the Isle of Man, but I will certainly try to give the hon. Gentleman that information in Committee.

Question put and agreed to.

Bill accordingly read a Second time.

Bill committed to a Standing Committee pursuant to Standing Order No. 40 (Committal of Bills).