HC Deb 16 December 1966 vol 738 cc884-97

Order for Second Reading read.

12.34 p.m.

Mr. Robert Maclennan (Caithness and Sutherland)

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

It is the purpose of international law to provide a stable framework where-under international co-operation is organised. If the guide lines of international law are to be recognised and respected by the community of nations it is vital that the law of nations be de-developed not merely to take account of changed social attitudes and economic relationships, but also to embrace the growing range of activities in which nation States come into contact with each other.

The first sputnik challenged not merely the boast of Puck to put a girdle round the earth in 40 minutes; it created a host of new legal problems. The international regulation of air transport is already well developed, however, despite the cumbersome and rather rudimentary procedures of international legislation. In the interest of safety in the air, nation States have resorted to the technique of the multilateral convention to promote the growth of international air law.

The Bill—the latest in quite a long series—is designed to enable the United Kingdom to ratify one of those conventions, namely, the Tokyo Convention, 1963, relating to offences committed on board aircraft.

The need for an extension to aircraft of the criminal law is apparent when the conditions of modern flying are considered. It is now possible to herd together up to 200 people and enclose them in a confined space, in a cabin, for upwards of 12 hours at a stretch. Some air passengers are only too ready to avail themselves of the ever-flowing refreshment; others are intent on the illicit transfer of valuable commodities from one country to another, and yet others seek to take advantage of a situation where society's normal restraints might be thought to be inoperative.

The International Federation of Airline Pilots had long considered that the powers of the aircraft commander to deal with offenders and trouble-makers on board aircraft required clarification, and it was at least partially in response to this pressure that the Legal Committee of the International Civil Aviation Organisation began a study of the status of the aircraft commander in law.

It became clear at the annual meetings of the Legal Committee that it would be appropriate for that Committee also to consider another question which had vexed international lawyers for many years. This was the right of States to exercise jurisdiction over crimes and other offences on board aircraft. The United Kingdom delegation to the meetings of this Legal Committee was led for many years—up to the conclusion of the Convention—by the noble Lord, Lord Wilberforce, some of whose wisdom and knowledge of these matters is apparent in the Convention as finally agreed.

Sixty-one States were represented at Tokyo, and 26 have now signed the Treaty. At this date only three have ratified the Convention—Portugal, the Philippine Republic and the Republic of China as represented by the Nationalist authorities in Formosa. The Convention will enter into force 90 days after 12 of the signatory States have deposited their instruments of ratification with the International Civil Aviation Organisation in Montreal.

The small number of States who have ratified the Convention is no reflection on its merits; it is merely a reflection upon the cumbersome procedures necessary in the domestic law of signatory States in order to ratify international conventions. The success of the Convention will depend chiefly upon the extent to which nations with important aviation interests ratify it. It is greatly to be hoped that if the House sees fit to approve the Bill, ratification by the United Kingdom will be followed by that of other major Powers.

The Convention does not seek to resolve the conflicts of jurisdiction that may arise when an offence is committed on board an aircraft; the debates in the Legal Committee of the International Civil Aviation Organisation made it clear that there were many conflicting views on this topic and that it was impossible to reconcile all the possible alternatives. However, broadly speaking the Convention seeks to ensure that there shall be no lack of jurisdiction. Article 3 declares that the State of registration of an aircraft is competent to exercise jurisdiction over offences and acts committed on board. It also requires each contracting State to take such measures as may be necessary to establish its jurisdiction as the State of registration over such offences.

For the United Kingdom this raised a number of problems, for in many cases before the English courts doubt had arisen whether or not the courts had jurisdiction over acts committed on board an aircraft registered in the United Kingdom, where-ever that aircraft might be. The primary basis of criminal jurisdiction in England being territorial, in the case of R v. Martin it was held by Mr. Justice Devlin, as he then was, that the possession of certain drugs in a United Kingdom registered aircraft outside the United Kingdom did not constitute an offence against the Dangerous Drugs Act and regulations. He held that the enactment in question created an offence only if committed in England.

On the other hand, in the later case of R v. Naylor, the noble Lord, Lord Parker, held that the theft of rings over the high seas in an aircraft registered in the United Kingdom is an offence against the Larceny Act, 1916. In the later case of Cox v. Army Council, the line of distinction that Lord Parker had been able to draw was doubted, the learned judge in that case considering that the whole body of our criminal law is domestic, in that it is made for the good order and good government of this country, and is applicable only to acts done on English soil.

Mr. John Rankin (Glasgow, Govan)

What about Scotland?

Mr. Maclennan

Presumably, similar considerations would influence Scottish Judges but, to my knowledge, a case has not yet arisen in Scotland.

Clause 1(1) attempts to resolve this difficulty, and to fulfil the obligation imposed by the Convention on the State of registration to establish its jurisdiction by legislation. It follows the principle adopted in earlier Canadian and Australian legislation, and provides that any act or omision in "British-controlled aircraft" as defined in Clause 7(1) committed while the aircraft is in flight elsewhere than in over the United Kingdom, which would constitute an offence against the law of any part of the United Kingdom if committed in that part, shall be treated as an offence committed in that part.

Subsection (3) should be sufficient to prevent the unfortunate situation arising whereby a Scotsman in Scotland might be removed to England to be tried for an offence committed in an aircraft in flight which is contrary to English law, but not to Scots law.

Subsection (2) is a restriction, not directly consequent upon the Convention, to deal with hardship cases. It provides that prosecutions must be brought by the Director of Public Prosecutions. Where, for example, a foreign doctor carries dangerous drugs in a British aircraft abroad, and there is little reason why he should be prosecuted in this country for so doing.

The effect of Section 62(1) of the Civil Aviation Act, 1949, which the Bill would repeal, is apparently to enable our courts to deal with offences committed even when the aircraft is on the ground in a foreign country rather than in flight as defined by Article 1(3) of the Tokyo Convention. To that extent, the 1949 Act exceeded the jurisdiction allowed by the Tokyo Convention itself. This was a point on which a number of foreign delegations at the Tokyo meeting expressed concern. It is thought that the Bill, by its more precise definition of British-controlled aircraft, is an improvement on the earlier Measure.

Clause 2(1) gives effect to Article 16 of the Tokyo Convention, providing that offences committed on aircraft registered in a contracting State shall be treated for the purpose of extradition as if they had been committed, not only in the place in which they have occurred but also in the territory of the State of registraiton of the aircraft. It is thought that this may fill in a lacuna which it is important should be filled. Hitherto, it has seemed; practically certain that neither extradition treaties nor the Extradition Act, 1870, can apply to aircraft in flight. The Act, and many of the treaties, came into force even before the early days of flying.

The gap in enforcement procedures which the Clause seeks to fill is only operative in respect of aircraft registered in States parties to the Tokyo Convention, since Article 16, which is, in effect, a blanket amendment of existing extradition treaties, can only have effect in respect of those States party to the Convention. It is possible under Article 16 that more than one State might claim extradition—the State where the offence occurred and the State of registration. The Bill does not tackle this conflict, but it is thought that it can be dealt with under the relevant provisions of the extradition treaties with the countries concerned, and in accordance with normal Home Office practice.

The powers of an aircraft commander under Chapter 3 of the Tokyo Convention are broadly those of restraint, disembarkation and delivery to the competent authorities at the point of disembarkation. It is thought that there is probably little need to define these powers in the Bill, as they are so defined in Clause 3, because the provisions of Chapter 3 of the Convention itself are thought merely to be declaratory of the existing position at common law. The advantage of incorporating these conditions in the Convention, however, is that they will apply in the law of all contracting States, and to include them in this Bill would remove any possible confusion.

It has already been held that aboard ship the master of the ship may, quite apart from the powers conferred on him by Statute, take action even extending to arrest or confinement to preserve order and discipline for the safety of the vessel or persons and property on board if he believes the action to be necessary. Clause 3(2,a) seeks to remove any doubt that may obtain as to the position of an aircraft commander in similar circumstances, and so give effect to Article 6 of the Tokyo Convention.

In one respect, Clause 3 goes further than the Convention, in that it does not limit the commander's exercise of the powers described to flights that commenced or terminated outside the State of registration.

Subsection (2,b) empowers the commander to take such measures as may be necessary, including the restaint of a person on board, when he believes that that person has committed a serious offence under the law in force in the country of registration, where the restraint is necessary for safety, good order, or to enable the commander to disembark and deliver the person to the competent authorities. It might be said in passing, that the United Kingdom delegation to the Toyko conference expressed some doubt whether the notion of a serious offence was capable of precise understanding in law, but it was thought that, in practice, it should not give rise to serious difficulties.

The provisions of Clause 3, which parallels Artice 6(2) of the Tokyo Convention, obliges members of the crew and other persons on board to assist the commander at his request. It was to this Article, and, in particular, to the later part of it, empowering any person on board, even without the authority of the commander, to take reasonable preventive measures, that the Soviet dele- gation, and the delegations of other Eastern European countries, took particular exception, holding that under their constitutional provisions, private citizens should never be permitted to take action for law enforcement without official authorisation.

Clause 3(4) puts a term to the continuation of the restraint and requires the commander to give notification of the situation to the authorities of the country in which the aircraft intends to land. No penalty is imposed by the subsection for failing to give notice, which is, after all, a somewhat technical offence, but it is provided that the restraint shall cease unless notice is given.

Clause 3(5) deals with the powers of the aircraft commander to disembark and to deliver to the competent authorities persons whom he reasonably believes to have committed a serious offence against the law of the State of registration of the aircraft, if necessary, in the interests of safety or of persons and property on board. This gives effect to Articles 8 and 9 of the Convention. It is to be observed that, although the offender may be disembarked in any country, he can only be delivered to the appropriate authorities of a contracting country party to the Convention.

Clause 3(6), which gives effect to Articles 8(2) and 9(2) of the Convention, requires the aircraft commander to give the authorities on the ground a report of his reasons for disembarking or delivering the person.

Clause 4, somewhat apart from the main purposes of the Bill, takes the opportunity of putting beyond doubt that in cases of piracy jure gentium the courts of the United Kingdom will treat as part of international law the three provisions of the Geneva Conference on the High Seas of 1958, which are set out in the Schedule to the Bill. As the law of piracy developed long before aircraft existed, there might otherwise have been some doubt in the minds of the courts, in the absence of legislation, as to whether or not piracy could in any circumstances be committed by aircraft. The conference at which the Geneva Convention was drawn up did not accept the view of the International Law Commission that piracy could not be committed by one aircraft against another.

In the absence of this legislation it might, therefore, be possible, despite the ratification by the United Kingdom of the Geneva Convention, for a court in this country to take the view that its provisions were not in all respects an accurate statement of international law. The Bill provides the opportunity to ensure that the interpretations that the United Kingdom accepted by becoming a party to the Geneva Convention will be applied in our courts.

Clauses 5 and 6, while not strictly required by the Tokyo Convention, provide for the use in evidence in connection with offences committed on board aircraft of depositions taken abroad by Commonwealth magistrates and British consuls.

Clause 6(1) is, likewise, not required by the Convention, but it makes provision for the admission of certain documentary evidence which would otherwise be excluded in criminal cases. The purpose of this provision is to avoid the necessity for the attendance in court of officials of the bodies named in the Bill, who might otherwise be required to testify to the authenticity of the documents. It is believed that, in practice, the authenticity of such documents has never been contested so far as it is known, and the official's attendance at court is time-wasting. The kind of document most frequently required by the court is the entry in the registry of aircraft to prove that an aircraft is registered in the United Kingdom.

The Tokyo Convention, in Article 1, limits the scope of the Treaty by excluding from its ambit aircraft used in military, customs or police services. Clause 7 is not so limited in its effect in that it does not exclude police and customs aircraft. The failure of the Tokyo Convention to deal with police and customs aircraft does not preclude this Parliament from doing so if it chooses.

Clause 7(2) defines the period during which an aircraft is in flight for the purposes of the Act. Broadly speaking, for the purposes of those provisions of the Bill relating to the powers of the commander, the aircraft is in flight when the external doors of the aircraft are closed, and for all other purposes, when power has been applied to the aircraft.

Clause 7(4) enables the United Kingdom to give effect to Article 18 of the Tokyo Convention which provides that if contracting States establish joint air transport operating organisations or international operating agencies which operate aircraft not registered in any one State, those States shall designate the State among them which for the purposes of the Tokyo Convention is to be considered the State of registration and shall notify the International Civil Aviation Organisation to that effect. For example, prior to the registration by Air Afrique of its aircraft in the Ivory Coast, it might have been thought a useful provision. Under the Yaoundé Convention, 1961, 11 African States constituted a joint air transport organisation known as Air Afrique.

Under Clause 7(5) of the Bill the costs of any prosecutions under the Act will be treated in the same way as the costs of prosecutions within the Admiralty jurisdiction.

In fine, it is thought that the provisions of the Bill, particularly those relating to jurisdiction, will commend themselves to the House. The problems raised by creating extra-territorial criminal jurisdiction are not new. As early as 1536 in the Offences at Sea Act of Henry VIII provision was made restricting criminal jurisdiction to such places as rivers and creeks where the great ships go. It is thought that the present provisions are at least less uncertain in their effect.

Few, if any, multilateral international conventions will constitute the ideal formulation of the law from the point of view of any one State. The Tokyo Convention, 1963, is no exception. But it is believed that it has usefully resolved a number of important issues, and is in no way inimical to the legal policy of the United Kingdom.

The purpose of any multilateral convention is to secure worldwide acceptance of a uniform international law. In this high purpose the United Kingdom has played an honourable historic rôle. I commend the Bill to the House as a small but useful contribution to the establishment of a world order based on the stable framework of the law.

12.59 p.m.

Mr. John Rankin (Glasgow, Govan)

I want, briefly, to congratulate my hon. Friend the Member for Caithness and Sutherland (Mr. Maclennan) not only on his Bill but on the clarity which enshrined his description of it to the House.

I have had a great deal of experience of travelling by air. I imagine that I have covered about 250,000 miles to almost all the continents of the world. The outstanding feature of my experience of air travel has been the regularity of the aircraft, the security of the travel and the infrequency of incidents. But the trouble is that incidents do sometimes happen, and twice during my plane journeys they have occurred. One of those incidents could have been fraught with great danger to the passengers on board the aircraft, of whom I was one.

They arose principally because the commander of the plane, to whom I spoke about the matter before the incident happened, told me, "It is all very well to describe the state of those passengers on the journey to the airport, but they have tickets, and they are just as valid as yours is. I am not sure that I can keep them off at your word. But I shall watch them." He did. On the way out to the airport, they had been drinking freely, but they were still capable of climbing the steps into the plane without trouble. However, they were under the control of liquor more than they were under the control of the pilot. He was not sure of his powers.

The Bill fortifies the pilot in his authority and secures it to him. Because of that, the International Federation of Airline Pilots is highly satisfied with the Bill, as, I believe, is our own British Airline Pilots' Association.

On the occasion to which I have referred, those three passengers became disorderly in their behaviour inside the plane. I had spoken to the pilot already, and I went to him again. He was in difficulty about manhandling these people. However, they had to be manhandled, and, eventually, one was locked in the lavatory. That is the sort of situation which one does not want to face in the course of transit by air.

The infrequency of such incidents is quite remarkable, but there are other happenings on aircraft nowadays. I have no proof, but I have every reason to believe that the illicit trafficking in drugs on planes today, particularly in the Far East, is becoming a very serious problem. In such cases, the pilot should be fortified in any search that he may have to undertake or thinks that he ought to undertake of any prospective passenger on his plane. I say again that we must welcome the Bill, and I wish it a speedy passage into law.

1.4 p.m.

The Minister of State, Board of Trade (Mr. Roy Mason)

It was my intention to assist my hon. Friend the Member for Caithness and Sutherland (Mr. Maclennan), but it is apparent that he is not encountering much opposition. This is a highly technical subject and very much a legal matter.

I congratulate my hon. Friend warmly on his good fortune in the ballot and on the way that he has used it to introduce this very useful piece of legislation. The Government welcome the Bill. But for my hon. Friend's initiative, we might have had to wait some time longer before we could ratify the Tokyo Convention.

This is not the first time that the legislation to give effect to international conventions on aviation subjects has been introduced by a private Member. Private Members have to their credit, and aviation is indebted to them for, the Carriage by Air Act, 1961, introduced by the hon. and learned Member for Buckinghamshire, South (Mr. Ronald Bell) which gave effect to the Warsaw Convention as amended by the Hague Protocol, and the Carriage by Air (Supplementary Provisions) Act, 1962, introduced by the hon. Member for Abingdon (Mr. Airey Neave), which gave effect to the Guadalajara Convention. My hon. Friend has left us in no doubt of his keen interest in the subject matter of his Bill, and he has presented a by no means easy subject in a very commendable manner.

The Tokyo Convention was concluded at a Diplomatic Conference in Tokyo in 1963. It is the latest of a series of international air law conventions prepared under the aegis of the International Civil Aviation Organisation, a specialised agency of the United Nations with over 100 member countries. I.C.A.O. has estalished a Legal Committee composed of delegates from the Member States which meets annually to study how to improve the law relating to civil aviation. In due course, the Legal Committee's drafts are submitted to diplomatic conferences, and a series of conventions has resulted.

Civil aviation legislation is at a comparatively early stage of development, and it is most important that, in such an essentially international activity as aviation, the various national laws should conform to each other to the maximum possible degree. But this is a practical and not a theoretical point. The establishment of uniform rules means that airline operators, crew and passengers, all know how they stand whatever airline they are concerned with and in whatever part of the world they may be. We hope that the Tokyo Convention will do its share in establishing such a régime of law.

The Convention began as a study of the legal status of the aircraft commander. There was pressure for this, particularly from the International Federation of Airline Pilots which was concerned at the doubt and the lack of international agreement about the commander's powers to deal with offenders and unruly persons on board. The International Federation of Airline Pilots, and indeed the British Airline Pilots Association, will gain some satisfaction from seeing this measure going through the House. The growing size of aircraft has brought home in recent years how difficult a problem this might be. The commander needs to have power to act immediately and effectively at any time while the passengers in the aircraft form a closed community to secure the safety of both his aircraft and his passengers. He has the right to be fully protected against any claims which may be laid against him for interfering with passengers' liberty in the reasonable use of this power. He needs clear instructions on how to deliver to the competent authorities on the ground any person who he believes has committed a serious offence on board and how to disembark for a suitable cooling-off period—but not necessarily deliver to the authorities—a person who, as my hon. Friend the Member for Glasgow, Govan (Mr. Rankin) mentioned, through drunkenness is causing danger to the aircraft and those around him. The Convention and the Bill have paid full regard to his problems and interests.

An important achievement of the Convention is to make it impossible for an offender to escape being brought to justice merely because his offence is committed on board a civil aircraft. Hon. Members who have read Mr. Donald Fish's fascinating book, "Airline Detective"—this is the two-minute plug—may recall the example which he gave to show that a man known to have committed a murder on board an aircraft might go scot-free because there was no legal system to deal with him. He imagines the murder taking place over mid-Atlantic on an Indian aircraft flying from the U.S.A. to Delhi. The murderer is a Frenchman, the victim a German, and the only witnesses are an Italian and a Japanese. The pilot makes for the nearest airport, which is Shannon. Mr. Fish shows that authority to deal with the crime may be lacking or uncertain. None of the countries which one might consider to be involved—India, whose aircraft it is; Ireland, where the plane lands; the U.S.A., where the murderer embarks; and France, the murderer's country—might be able or willing to get the case presented for trial. That is an example of the difficulty prior to this Bill becoming law.

Under the Convention, each Contracting State must take any measures necessary to establish jurisdiction over offences committed in its own registered aircraft, and other States must recognise that jurisdiction. It means that if, for instance, an English courts proceeds to try under English law an offence committed by a Frenchman in a United Kingdom-registered aircraft, France will not be entitled to complain that the exercise of that jurisdiction is contrary to international law, even if the British aircraft was in the air over France when the offence was committed. Offences committed on board aircraft are to be treated for extradition purposes as if they were committed not only in the place where they actually occur but also in the State of registration of the aircraft.

This fills in gaps in extradition procedures which hitherto have not applied to aircraft. Careful regard has been paid to the liberty of the subject, both of the offender and of his fellow passengers and to the need to detain the aircraft and passengers no longer than absolutely necessary for the authorities on the ground to be able to act. As my hon. Friend said, a start has been made internationally in the process of bringing the convention into force. Twelve ratifications are needed for this purpose and so far it has attracted 26 signatures and three ratifications.

This apparent slowness does not, I believe, indicate dissatisfaction but simply that ratification involves legislation in most States, as it does here. I am sure that there will be many points of general and legal interest which hon. Members will wish to discuss in Committee. I hope that the main principles of the Measure commend themselves to the House and that it will give it a Second Reading. I commend it and I congratulate my hon. Friend on the way in which he presented it.

1.11 p.m.

Mr. Richard Body (Holland with Boston)

Lest it be thought that no one on this side has any interest in the Bill, I add a word of welcome to it because I know that it has the support of lawyers generally and of others who have been anxious that the Tokyo Convention should be ratified. It is, however, a commentary on the congestion of work in this House that it has taken some three years for this Bill to reach the Floor of the House.

When the Committee stage comes I hope a closer look will be given to Clauses 5 and 6 to ensure that no injustice is done to any individual by the inclusion of that kind of evidence.

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).