§ The Secretary of State may at any time certify under his hand that the return of any person under this Act is essential in the interests or necessary for the security of the Commonwealth or of the United Kingdom or of the country by which the request for his return was made and that it would not cause injustice to that person to stand trial in the requesting country, whereupon section 4 of this Act shall not apply.—[Sir H. Lucas-Tooth.]
§ Brought up, and read the First time.
§ 7.33 p.m.
§ Sir Hugh Lucas-Tooth (Hendon, South)
I beg to move, That the Clause be read a Second time.
This new Clause is designed to deal with the exceptional kind of case; that is to say, crimes committed by Fascists or racists in a Commonwealth country; crimes which, though technically, and, indeed, quite obviously, political, are nevertheless such that none of us would think suitable subjects for the grant of political asylum. When we moved a somewhat similar Amendment in Standing Committee suggesting that in the case of crimes of this kind there should be an exception, and that it should be possible to return the offender notwithstanding the provisions of the Bill relating to political asylum, the hon. and learned Undersecretary of State admitted, in effect, that my right hon. and learned Friend the Member for Warwick and Leamington (Sir J. Hobson) had made out a good case.
The hon. and learned Gentleman put three points in reply. He said, first, that our Amendment was outside the scheme agreed by the Law Ministers who discussed the scheme of the Bill. That may be so. It is a reply that was all too often put up by the Government, and one which we in our turn recognised as having some validity. Nevertheless, I do not believe that it is right or proper that the mere existence of the scheme should be called in aid to justify something that appears to be totally wrong, and which would be generally accepted to be totally wrong—that we should, in effect, insist that political asylum should be given 121 to a person who had committed a perfectly straightforward racist act.
It would horrify our citizens if, for example, there was a conspiracy in one country in South Africa to do something of a terrible kind in a neighbouring country, and we were to say, "No, this is a political act. We cannot ourselves take any action, because it is not an offence in this country. We cannot return you to the country in which you have offended because of the provisions of this Measure."
The Under-Secretary then said that our Amendment would be ineffective because it would require a decision to be taken before it had been possible to inquire into the facts of the case. That was a valid objection, but we have overcome that difficulty by the form of this Clause.
Finally, the hon. and learned Gentleman argued that the matter should be dealt with by special arrangements to be made under Clause 2(3). Clause 2 deals with designated countries—that is to say, the countries to which the Bill is to apply. Under subsection (3) it is possible for the United Kingdom to make arrangements, and to give effect to them by Order, with particular other countries. Those arrangements may be… subject to such exceptions, adaptations or modifications as may be specified in the Order.I should like to have a perfectly clear assurance from the Government on what the effect of the words "exceptions, adaptations or modifications" may be. I believe that, coming in this Clause, they must mean only such exceptions, adaptations and modifications as may be necessary to give effect to the Clause; in other words, as relating to the particular country which it was sought to designate.
It seems most extraordinary that in a subsection of a Clause dealing with designation it should be possible, in effect, to import a wholly different scheme, as would have to be the case if the Under-Secretary's argument were valid. The only variations which could be made under the subsection would be such as were necessary for the general purposes of the Clause, and not for bringing in something totally new.
When I suggested to the Government that they were here really proposing to legislate ad hoc, I received a very swift reply from the Under-Secretary. He said 122 that he very carefully sought to avoid making any such suggestion and it was in no sense the suggestion of the Government. If that is the case, the whole of his proposal is quite otiose.
This kind of case is one which we shall not be able to see until it has actually occurred. I cannot believe that it is the intention of the Government to make general alterations in the law as a result of a treaty between ourselves and some other country in order to deal with a particular case which has already occurred. I should have thought that it was ad hoc in whatever terms the new proposals may be.
If I am not right about that, I hope that the Under-Secretary will say what the intention of the Government is in the case I have supposed where an event has occurred and an individual is here seeking asylum of a technical kind, having done something which everyone in this country would agree is wholly wrong and objectionable and subversive of the interests of this country, of the Commonwealth country concerned, or the Commonwealth as a whole. If that is the position, what do the Government intend should be done? There should be some special provision as proposed in this Clause.
§ The Under-Secretary of State to the Home Department (Mr. Dick Taverne)
First, I shall deal with the worries which the hon. Member for Hendon, South (Sir H. Lucas-Tooth) has about the effect of Clause 2(3). Subsection (3) is very wide. It gives effect to paragraph 16 of the scheme agreed at the Commonwealth Law Ministers Conference. That paragraph said that nothing in the scheme should prevent the making of arrangements between two or more parts of the Commonealth for further or alternative provision for the return of offenders.
There would not be ad hoc arrangements. It would not be a case whereby a particular refugee had arrived here whom it was felt should be returned although he was a political offender and as a result a special arrangement would be made between the Commonwealth country and ourselves. What is envisaged is that two Commonwealth countries, in giving effect to and applying the scheme, would do so on a reciprocal basis and may wish to go rather further than the scheme.
123 It was argued that Australia and New Zealand, having an extremely close relationship, might wish to make provision for many more offences to be returnable than those under the scheme. It was envisaged that India and Pakistan might want to make special provisions for themselves. Under subsection (3) the United Kingdom might wish to make with an individual Commonwealth country a special general arrangement which would include more offences than those specified under the scheme. That is permissible under subsection (3) and it would deal with the position where a special offence existed and it might be desirable to extend the list.
§ Sir John Hobson (Warwick and Leamington)
The Under-Secretary has mentioned the possibility of extending the list. The power also includes power to vary the political offences Clause.
§ Mr. Taverne
Of course, this would be involved; the right hon. and learned Gentleman is absolutely right. If, for example, we wished because of a defence arrangement with a special Commonwealth country to extend the list to include the offence of espionage, which clearly is a political offence, Clause 4 would have to be modified in that particular agreement. Subsection (3) enables that to be done in relation to a special country.
The points made by the hon. Member for Hendon, South were very similar to those which were raised in Committee. He gave the example of the racist, but the new Clause as it stands would cover many more examples. Indeed the Clause goes very much wider than the Amendment moved in Committee. At the basis there lies a difference of approach between the hon. Member and the Government and a difference of approach from that of the Commonwealth Law Ministers.
The hon. Member and one or two of his colleagues have been throughout rather more concerned with national considerations and relations with Commonwealth States and keeping out certain undesirables than with the status of the political refugee. The Commonwealth Law Ministers Conference took the view that on the whole the rights of political refugees should so far as possible be paramount. This is the view which under- 124 lies the extradition Acts and also the provisions of this Bill. The new Clause is a particular example of an attempt to make State considerations override individual considerations.
On questions of security, if the certificate were given as envisaged by the new Clause, the refugee would have no right to prove in the courts that his was a case of political offence and no right to produce evidence to show the motives for which his extradition was sought.
§ Sir H. Lucas-Tooth
On the earlier occasion the hon. Gentleman objected on exactly this point—that this is mistimed—but under the new Clause there would be no need for the certificate to be given until after the hearing in the court, in which case the hon. Gentleman's objection fails.
§ Mr. Taverne
That is not so. The new Clause says "section 4 of this Act shall not apply". All the objections which the person concerned could raise under Clause 4 he could no longer raise if the certificate were given. He would no longer be able to prove that this was a political offence or that he had already been acquitted or convicted of the offence. None of the safeguards under Clause 4 against prosecutions for offences other than the one for which he had been returned would survive. All those safeguards in Clause 4 can be waived by the Secretary of State.
I attach very great importance to the right of access to the courts because we know how political pressures can build up for the return of political offenders. A particularly good speech was made at the Conference by the Attorney-General of Jamaica, which especially stressed that we must retain this access to the courts. It may be that considerations of security or of national interest may cause a Government to override the rights of an individual. I do not see how this would work unless the certificate were granted at an early stage because the certificate can be given at any time. Presumably if the Secretary of State is to give a certificate, he will not allow the whole paraphernalia of procedure in the courts to be gone through but will give it straight away.
The new Clause goes further than the Amendment which was moved in Committee. Under the new Clause it is not 125 only on grounds of security that the Secretary of State can exclude the courts; it is also if it is essential in the interests of the Commonwealth or the United Kingdom or the country by which the request for the person's return is made. So national considerations could override individual considerations. There would be carte blanche in effect to override the individual's rights, the rights of the refugee in favour of the national interests involved.
I am rather surprised that hon. Members opposite, who are very much concerned with individual liberty, should support a Clause of this kind. There was no demand for this at the Commonwealth Law Ministers Conference. It was then thought that this was a political right which refugees should have. I ask the House not to give a Second Reading to the new Clause, for although there are close defence relationships and reciprocal arrangements with Commonwealth countries, no such arrangements as are proposed exist with our partners in N.A.T.O. with whom our defence relationships are also very close.
§ Sir J. Hobson
This raises a difficult problem of the balance of convenience between the liberty of the subject and the interests of the Commonwealth as a whole, of another Commonwealth country, or of this country. The Under-Secretary has overlooked the fact that the Clause requires the Secretary of State to satisfy himself, before giving any certificate under it that those interests make the return of an individual essential,that it would not cause injustice to that person to stand trial in the requesting country".We start upon the basis that an individual has come here against whom there is a prima facie case that he has committed an offence which would normally require his return to trial to the requesting country. We then add the element that it is an offence which is of a political character. The Clause as drafted would enable the Secretary of State to give a certificate at the very earliest stage, but I would have hoped and expected that he would not normally consider giving it until the courts had investigated the matter, until all the facts had come out and were known, and until it was possible to judge the attitude of the prosecution and the attitude of the citizen concerned, 126 his approach to the offence alleged against him, and the evidence laid against him.
The Government are saying that it matters not what are the consequences of the crime; it matters not how important it may be that such a man should be properly tried on the strongest possible evidence against him; if he can only show that he acted from a political motive, he should stay here and have the complete protection of Clause 4. That is a very extreme position. I appreciate the basis for it.
We on this side suggest that there are occasions, and there should be a power in the Government to act on such occasions—they may be rare; they will certainly be exceptional, but they cannot be excluded—when it is plain that the safety of this country or of the Commonwealth requires that a man should stand trial in the country where he has committed an offence of which there is prima facie evidence.
Although I agree that we would expect most Secretaries of State to be very reluctant to exercise that power, and although I agree that the tradition of this country is that we should keep here proper political refugees, nevertheless there are crimes of the nature of espionage, crimes which affect the security of the State, where the Secretary of State ought to have the reserve power.
The odd thing is that the Government admit that the Secretary of State should have the reserve power, because they say that for certain individual countries we will make special arrangements to enable us to do that very thing, but we shall do it only for our best friends; we shall not do it for the Commonwealth as a whole, unless a country is in the category of a Commonwealth country having a special arrangement with us which enables the British Government to do it, it does not matter that the security of the Commonwealth country is severely at risk; such a country will not be able to secure extradition, even though another country with which we have an agreement of a different form will be able to secure the return of a high security risk.
The problem, therefore, is whether we should reserve this power for individual special arrangements between this country and other countries, or whether it ought not to be a reserve power, an 127 exceptional power, but one which can be generally used for any Commonwealth country.
§ Mr. Taverne
In the kind of case envisaged by the right hon. and learned Member for Warwick and Leamington (Sir J. Hobson), the certificate would have to be given before the court came to try the person concerned. There is no power in the Secretary of State to return someone whose case has been decided in his favour by the court. If the Secretary of State does not give the certificate before he is tried by the court, and if the person concerned satisfies the court that he is a political offender, it follows that he would be discharged and, therefore, the certificate would not have any effect. The only way in which the certificate would work would be to give it before the trial and, therefore, to exclude any access to the court.
§ Question put and negatived.