§ Order for Second Reading read.
§ 4.11 p.m.
§ The Secretary of State for the Home Department (Mr. Roy Jenkins)
I beg to move, That the Bill be now read a Second time.
The Bill replaces the Fugitive Offenders Act of 1881. It does so partly upon the basis of the scheme which was formulated at the meeting of Commonwealth Law Ministers in April of last year and presented to Parliament in the form of a White Paper in May. That scheme naturally relates only to extradition arrangements between independent Commonwealth countries who were represented at the conference, but the Bill has to be somewhat wider in its scope. It has to deal also with the return of offenders between the United Kingdom and the remaining dependencies. In doing this, it also relies heavily upon the agreed scheme from the conference, but with certain significant modifications to which I shall refer later.
The history of the proposals is as follows. It was obvious for some considerable time before the meeting of the Commonwealth Law Ministers that the system for the return of offenders within the Commonwealth, as set out in the Act of 1881, had been outmoded by the passage of time. The Act was passed at a time when the different territories of the Commonwealth were all parts of one empire and largely subject to a common rule of law. There were no separate sovereign States, and, apart from the distances involved, the return of offenders from one part of the empire to another gave rise to no materially different problems than did the return of offenders from one part of the United Kingdom to another.
The limitations of the 1881 Act were, I believe, clearly revealed by the Enahoro case of 1963. Very close scrutiny was then given by Parliament to the powers of the courts and of the Secretary of State under the Act. Apart from the consideration whether it would or would not be just to return Chief Enahoro, considerable concern was felt in the House at the 1132 absence of any express statutory power, such as exists in the Extradition Act of 1870 in relation to foreign countries, to refuse the surrender of a political offender to another foreign State if that State was a member of the Commonwealth.
Another matter which also figured prominently in the debates in 1963 was the desirability of a discretion not to return an offender in a case where the offence of which he was accused was punishable by death in the requesting country, but not in the requested country —a discretion which in recent years has customarily been incorporated in extradition treaties between the United Kingdom and foreign sovereign States.
A memorandum was circulated by Her Majesty's Government to the other independent Commonwealth Governments in May 1964 as a basis for consultation. It set out the modifications which, from the point of view of the United Kingdom, it seemed desirable to make to the code for the return of offenders in the Act of 1881. The response to the memorandum suggested that it would be helpful to discuss the matter further, and this was done at a Commonwealth Law Ministers' meeting held in Canberra in September 1965.
There emerged from that meeting a general concensus of opinion as to the desirability of uniform arrangements for the return of offenders within the Commonwealth on a more restrictive basis than that provided by the Act of 1881, although there was a variety of views as to the precise nature of the changes which should be made.
A draft scheme, prepared in the light of these views, was accordingly circulated for consideration at the meeting of Commonwealth Law Ministers held at Marlborough House from 26th April to 3rd May last year. The meeting came to the view that Commonwealth extradition arrangements should be based upon reciprocity and substantially uniform legislation, incorporating certain features commonly found in extradition treaties, such as a list of returnable offences, establishment of a prima facie case before return, and restrictions upon the return of political offenders.
The Marlborough House meeting went on to formulate a scheme setting out the principles which could form the basis of legislation within the Commonwealth, and 1133 recommended that effect should be given to the scheme in each Commonwealth country. That scheme was published, and I presented it to Parliament in May. 1966.
Proceeding upon this basis, the main object of the Bill is to enable the United Kingdom and her dependencies to comply with the requirements of the scheme as it applies to the return of offenders to other independent Commonwealth countries. In doing this, the Bill makes the following major changes in the law governing the return of fugitive offenders to independent Commonwealth countries. First, there will in future be a list of the offences for which an offender can be surrendered. Second, the surrender of political offenders will be prohibited. Third, there will be a discretion not to return a person who would be liable to the death penalty in the requesting country, but not in the requested country. Fourth, the offence for which return is sought will have to be an offence under the law of both countries. Fifth, a "speciality rule" will operate as in the Extradition Act. That is to say, a rule which precludes prosecution, without the consent of the returning country, for any offence committed prior to surrender other than those for which surrender has been granted.
All these changes are based on specific provisions of the scheme. It should, however, be noted that the discretion relating to capital offences is not a general provision of the scheme, but appears in Annex 2 as a supplementary provision. Under paragraph 17 of the Scheme, where a country adopts a supplementary provision, it is open to any other independent Commonwealth country to reserve its position as regards the application of the scheme in relation to the country concerned. This will mean in practice that, as a result of our having taken advantage of the death penalty clause, another Commonwealth country may, quite properly, under the terms of paragraph 17 of the scheme, either impose additional restrictions on the return of offenders to us, or seek to negotiate with us some further or alternative provision for its own offenders.
So far, I have dealt with independent sovereign States within the Commonwealth. The Bill does not, however, deal only with the return of offenders to such independent sovereign Common- 1134 wealth countries. It deals also with the return of offenders from the United Kingdom to the remaining dependencies and, in so far as it may be extended to dependencies as part of their law under Clause 17 of the Bill, with the return of offenders from dependencies to the United Kingdom and, indeed, from one dependency to another.
We did not think it appropriate or desirable that the whole range of safeguards provided in relation to the return of fugitive offenders to independent Commonwealth countries should apply in relation to return to the dependencies. In particular, there will be no list of returnable offences, although to be returnable offences will have to be punishable by a superior court in the receiving country by 12 months' imprisonment or more. Secondly, although there will be a discretion not to return political offenders, their return will not be entirely prohibited because where two countries acknowledge the same sovereignty and one is responsible for the other's defence it may well be right to return a person for, say, an offence of treason or espionage.
So much for the general scope and purpose of the Bill. Before giving an outline of its individual provisions and describing briefly how they implement its purposes, there are two further points of a general nature which might be helpful to the House. First, in so far as the underlying objective of the scheme which the Bill implements is to bring arrangements for the return of offenders between independent Commonwealth countries more closely into line with normal extradition practice, the Bill naturally follows, as far as it is considered appropriate, the terms of the Extradition Act, 1870.
Secondly, I feel that I should endeavour to make clear the position regarding the return of offenders to Rhodesia. It was said in the communiqué issued at the conclusion of the Commonwealth Law Ministers meeting, an extract of which is reproduced in the foreword to the scheme, that it was not the intention that the scheme should apply in present circumstances to Rhodesia. The special restrictions on return to Rhodesia which at present operate under the Southern Rhodesia (Fugitive Offenders Act, 1881) Order 1965, preclude return unless the Home Secretary is satisfied that the 1135 return is expedient despite unconstitutional action taken in that country or circumstances arising therefrom. Similar provision could be made under Clause 2(3) which enables Orders in Council to be made modifying the provisions of the Bill in relation to a particular country.
Perhaps I could take the House briefly through the most important individual provisions of the Bill. Clause 1 authorises the return from the United Kingdom to designated Commonwealth countries or United Kingdom dependencies of persons found in the United Kingdom who are accused in those countries of relevant offences or are unlawfully at large after conviction of such offences there.
Clause 2 provides for the designation of independent Commonwealth countries and defines dependencies, and enables the provisions of the Bill to be modified by Order in Council in relation to any particular country.
Clause 3, and Schedule 1 which goes with it, together prescribe the offences in respect of which offenders may be returned to designated Commonwealth countries. For the purposes of return to United Kindom dependencies, however, the Schedule does not apply, and an offence will be "returnable" if it is punishable by a superior court in the dependency by 12 months' imprisonment or a heavier penalty. In either case, however, the offence must be one which is recognised by the criminal law of this country as well as of the country to which return is requested.
Clause 4 sets out the circumstances in which the return of offenders is absolutely precluded—for example, in the case of an application from an independent Commonwealth country where the case is of a political nature; in the case of any application where the accused person has already been acquitted or convicted of the offence; or where the requesting country does not operate the speciality rule. The restrictions on the return of political offenders are substantially broader in their scope than those contained in the Extradition Act, 1870. They follow closely the wording of the agreed scheme which, in turn, is based upon a provision in the European Convention on Extradition.
§ Mr. A. J. Irvine (Liverpool, Edge Hill)
My right hon. Friend said earlier that the aim was to conform in this Bill as far as possible with the provisions of the Extradition Act. Now he points out, most helpfully, that in Clause 4, and particularly subsection (1,b), there is a substantial departure from, and an expansion of, the language of the Extradition Act. Would he, in a few sentences, be willing to justify what seems to be an interesting and important departure from the provisions of the 1870 Act?
§ Mr. Jenkins
The 1870 Act is, in a sense, no more sacrosanct than the 1881 Act, except that the 1870 Act had more relation to the circumstances of the real world because it dealt with totally independent countries, whereas the 1881 Act dealt with what were then dependent countries which have since become independent. Neither scheme is sacrosanct. We approached the meeting of Commonwealth Law Ministers on the basis of a desire to get a scheme which was acceptable not only to us but to those represented. This broadening of the political provisions commanded the support of the Commonwealth. My hon. and learned Friend the Under-Secretary of State, who was present at the conference, can say a few words about this when he winds up. It was not merely acceptable to the conference, but it was positively asked for by certain members represented at the conference. We also thought it desirable to take into account the provisions of the European Extradition Convention, something which is entirely new since the 1870 Act.
§ Sir John Hobson (Warwick and Leamington)
Would the right hon. Gentleman explain the difference between Clause 4(1,b) which deals with the question of a request for a fugitive's return being made in order to punish him for a different purpose, and Clause 8(3,c) because the accusation against himis not made in good faith in the interests of justice"?Does not Clause 8(3,c) cover any events likely to arise under Clause 4(1,b)?
§ Mr. Jenkins
The two provisions may overlap to some extent, but they are not identical. In drawing up the scheme, it was considered desirable to cover both points. Perhaps I could ask my hon. and learned Friend the Under-Secretary of 1137 State to say something about that when we have had time to consider the hon. and learned Gentleman's point.
§ Mr. Charles Fletcher-Cooke (Darwen)
The right hon. Gentleman did not quite answer the point of the hon. and learned Member for Liverpool, Edge Hill (Mr. A. J. Irvine) about broadening the nature of the political offence. What has been broadened? In what way does the political offence under the Bill differ from that under the Extradition Act?
§ Mr. Jenkins
I think the offence is broadened in that what is stated in Clause 4 is broader than the position under the Extradition Act, 1870. I said to my hon. and learned Friend the Member for Edge Hill that our reason for doing this was twofold: we wished to take into account the European Extradition Convention, and we were concerned at the Conference to secure an agreed scheme. This was the scheme wanted by the others there represented as well as ourselves.
§ Mr. Quintin Hogg (St. Marylebone)
I am sorry to interrupt the right hon. Gentleman or to seek to take bread out of his mouth, but surely his answer is not quite correct, and it is a crucial point in the Bill. Both the Extradition Act, 1870, and the Bill contain the phrase "offences of a political character" with a prohibition against extradition in respect of them. The Bill gives a coordinate jurisdiction to the courts and to the right hon. Gentleman in respect of such offences and adds the provisions of Clause 4(1,b) and Clause 8(3,c) to the category of cases in which extradition is prohibited.
§ Mr. Jenkins
The right hon. and learned Gentleman, as is almost invariably the case, has been both helpful and informative and I am grateful for his intervention. The point put to me, however, by my hon. and learned Friend the Member for Liverpool, Edge Hill (Mr. A. J. Irvine) was not to ask that I explain to him the difference, but to ask the reason for the difference, which I endeavoured to explain in reply to his question.
Apart from prohibiting return where the offence is of a political character, Clause 4 also prohibits return where the request is made for the purpose of prosecuting or punishing the fugitive on account of his lace, religion, nationality 1138 or political opinions, or if it appears that he might, if returned, be prejudiced at his trial or punished, detained or restricted in his personal liberty by reason of his race, religion, nationality or political opinions.
Clause 5 provides that a request for a fugitive's return shall be made to the Home Secretary, shall be accompanied by specified particulars and shall not be proceeded with except in pursuance of the Home Secretary's authority to proceed.
Clause 6 specifies the circumstances in which a warrant may be issued in the United Kingdom for the arrest of a fugitive offender. Clause 7 deals with the committal proceedings in respect of a person who has been arrested. Clause 8 relates to habeas corpus applications and the comparable process in Scotland in the case of persons who have been committed to await return.
Clause 9 sets out the considerations to be taken into account by the Secretary of State in deciding whether to order the return of an offender. In particular, it provides a discretion to withhold return where the offence carries the death penalty in the requesting country but not in Great Britain; and, while enabling the return to a dependency of a political offender, it nevertheless affords the Secretary of State a discretion to withhold return in such a case.
The remaining Clauses are mainly procedural and technical, and I do not think that it would be right to weary the House by going through them in detail.
In general, the content of the legislation has been dictated, as I have said in reply to interventions, by the terms of the agreed scheme. The actual form of the Bill in its implementation of the scheme is, however, also important, since it may well serve as a pattern for legislation elsewhere in the Commonwealth, although we are not, as it happens, the first in the field. The Australian Government has already enacted its Extradition (Commonwealth Countries) Act, 1966, which implements the scheme in Australia. Our Bill is, however, a matter of interest to the other countries of the Commonwealth, and this is a further reason why it is desirable that it should find a place on the statute book as soon as possible.
1139 Before I conclude, I would like to try briefly to set this legislation in perspective. There are not a great number of applications made each year for the return of offenders from this country under the Fugitive Offenders Act. Over the last ten years some 80 applications have been made. There is no consistent pattern: there have been as many as 20 in one year, in 1961, and as few as one in 1965.
Although few in number, there have been cases of complexity and occasionally of extreme political difficulty. As in the case of Chief Enahoro, and the more recent one of Mr. Kwesi Armah, it sometimes happens that a delicate and very difficult decision has to be taken, where our obligations to other countries have to be most carefully weighed in the balance against the rights of the individual. It is, therefore, essential that powers of adequate scope should be available. For that reason, we regard the Bill as a Measure of considerable importance. I believe that it is in accordance with the realities of the modern Commonwealth, that it will commend itself to all sections of opinion in the House and that it will ease, although not obviate, some of the delicate problems in this field with which I and my successors, like my predecessors, may he confronted.
§ 4.34 p.m.
§ Mr. Quintin Hogg (St. Marylebone)
I am sure that the whole House, such as it is at the moment, will thank the Home Secretary for his extremely lucid exposition of this Measure and will agree with him that it is an important Measure. If I do not wholly accept the rest of the encomium with which the right. hon. Gentleman concluded his remarks. I can only say that I hope that my doubts about this are mistaken. I wish the Bill well and I hope that my fears arc wrong, but, for the reason that I shall give, I entertain those fears and I have grave doubts about the wisdom of the Bill.
The voting freedom of action of an Opposition in these circumstances is nil. The right hon. Gentleman, quite correctly and properly, told the House that, except for Clause 17, the provisions of the Bill in general do nothing more than implement the scheme which was the result of 1140 the meetings of Law Officers of the Commonwealth, the latter of the two meetings having taken place at Marlborough House a few months ago.
To my mind—and I hope that hon. Members opposite will understand our position—it would obviously be quite irresponsible of an Opposition either to vote against such a Bill or even to try to amend it in Committee, because in the case of a multilateral agreement changes of detail can render ineffective the whole international agreement. I feel, however, especially as the Home Secretary again very rightly said that what we in this House do will be a pattern for what other Commonwealth countries should seek to do, that whereas our voting freedom of manoeuvre is virtually nil, our freedom of speech should be fairly uninhibited.
I propose to put forward one or two crticisms of the Bill, both from the technical legal point of view and, much more importantly, from the political point of view, because I think that the Bill fails to achieve what it sets out to achieve in the way of easing the difficulties of future Home Secretaries, as the Home Secretary hoped that it world, and that it has certain built-in dangers for future relationships within the Commonwealth which have been perfectly exemplified in the case of Mr. Kwesi Armah. As I shall refer to this in a little more detail, I say to the Home Secretary that I do so not for the purpose of criticising his decision, but because he expressly said that he had taken the criteria of the Bill as among his guidelines in coming to his decision and because, therefore, that particular decision affords an example in practice of how the Bill may work out in detail and shows the kind of difficulty of principle with which the Home Secretary and his successors may be faced.
In passing, although only in passing, may I say that I thought it unfair of the Ghanaian Government to attack the right hon. Gentleman for anticipating the Bill? This they did in a statement which I received from them the other day and which, no doubt, other hon. Members have had. The Ghanaian Government said that the Home Secretary was anticipating legislation, much as we on this side complained that the Government anticipated legislation in the case of the Ombudsman. I regard this 1141 as unjust criticism of the Home Secretary.
The existing Act—the Fugitive Offenders Act, 1881—which was the statutory basis on which the Home Secretary operated in the case of Mr. Kwesi Armah, gave the Home Secretary virtually unlimited discretion. That means that in applying his discretion under the existing legislation, the right hon. Gentleman was fully entitled to apply whatever criteria he chose to apply, provided that they stood up to the test of reasonableness. In applying the criteria of the Bill to the particular case, as he claimed to have done, he was fully entitled to take into account that this was a multilateral arrangement arrived at by the Law Ministers of the Commonwealth which they undertook to recommend to their respective Governments. Therefore, the right hon. Gentleman was correct when he took the Convention into account, and the fact that the Government proposed to legislate upon it. His conduct in that respect at least was wholly beyond criticism. Certainly I would not wish to criticise it.
At the same time, the case of Mr. Kwesi Armah, occurring as it has done when this piece of legislation was pending and published, enables one to see in detail the way in which some of the problems work out between members of the Commonwealth. I propose, for that reason alone, to refer to it.
Everyone has agreed that the Fugitive Offenders Act, 1881, required revision in the light of the changed nature of the Commonwealth. That has been known since the Enahoro case, and if the Law Ministers at their meetings had simply done what the communiqué said they set out to do, the resulting legislation would have been beyond reproach.
Here I quote the communiqué which succeeded the Law Ministers' Meeting. What they set out to do was this:The Meeting considered that Commonwealth extradition arrangements should be based upon reciprocity and substantially uniform legislation incorporating certain features commonly found in extradition treaties, e.g. a list of returnable offences, the establishment of a prima facie case before return, and restrictions on the return of political offenders.All those features are found in the Extradition Act, 1870, which is the existing law upon which bilateral and multi- 1142 lateral extradition treaties are based. Virtually all incorporate those features, and the Act incorporates those features as a limiting statute. If they had gone on to do that in the present scheme and nothing more, everyone would have agreed with it. Unfortunately, they chose instead to publish a scheme which did that and a good deal more and, even when it did that, it did it in terms slightly different from the Extradition Act, 1870.
The basic error which they made was in not going back to first principles. Having decided that, in the light of the changed nature of the Commonwealth, they wanted to move over to an extradition procedure, they ought first to have taken the existing Extradition Act more or less in toto and then asked themselves what special differences the nature of the Commonwealth relationship imposed on the Government, either because of the peculiarly intimate relationships of Commonwealth Governments to one another, or because of the special position here of the Commonwealth citizen amongst United Kingdom citizens. If they had done that, they would have achieved a good piece of work.
Incidentally, it is worth pointing out that the Enahoro case does not exemplify the chief disadvantages of the Fugitive Offenders Act. On the contrary, as I shall try to show as I proceed with my argument, all the difficulties which arose in the Enahoro case were difficulties inherent in the situation between Commonwealth countries, whatever legislation was proposed. As I shall try to show, they are not solved by the proposed legislation. On the contrary, it enhances rather than reduces them.
The principal difficulties about the Fugitive Offenders Act were not those which emerged in the Enahoro case. There was a purely technical difficulty which consisted in the use of the curious phrase "strong or probable presumption" in the committal clause which gave rise to a number of conflicting and highly undesirable judicial decisions about it and led the courts to make a decision which was misunderstood for many years. In addition, there was the absence of a list of returnable offences. To my mind, the present Bill cures both those defects completely. However, it does so by a series of proposals which seem to me to have both legal and political disadvantages.
1143 I do not want to detain the House by dealing with legal disadvantages, except for a very short paragraph. The main legal disadvantage is this. As I ventured to say to the House in a very different context during the debate which we had on immigration, we have to ask ourselves this question. Now that Commonwealth countries are independent sovereign entities, what possible advantage is there, from the legal point of view or from the social or political point of view, in having two codes of law dealing with persons whose citizenship is external to this country so close to each other as the law of immigrants in relation to aliens and the law of Commonwealth immigrants have become, yet differing in detail and in technical jargon at every point?
My general conclusion is that there is no such advantage, and that there should be a general law dealing with external persons, proceeding to particular modifications of it either for or against individual Commonwealth citizens. This would ease to a great extent both the problems of immigration and the problems of extradition.
However, so far as one can judge, the Law Ministers have gone on precisely the opposite tack and have chosen to use a separate legal jargon even when the words mean the same thing. That seems to be a procedure designed to make the law more complicated and less intelligible for the sake of making it so.
In the Extradition Act, the offences are called "extradition crimes". In the Bill, they are "relevant offences". In the scheme, they were "returnable offences". The name of the fugitive offender is one thing in the Extradition Act. It is quite another in the Bill. If one takes the language of the Bill, Clause by Clause, one finds that, for no apparent reason, the Parlimentary draftsman in this country or the Law Ministers at the meetings have deliberately chosen to confuse counsel by calling the same people different names.
The two fundamental rules of legal draftsmanship are, respectively, plagiarism and repetition. Those are not the same—
§ The Under-Secretary of State for the Home Department (Mr. Dick Taverne)
There was difficulty at this conference to 1144 which, in some ways, the right hon. and learned Gentleman is not doing full justice. Provisions which are clear in our law under the Extradition Act are not necessarily clear provisions under the Extradition Acts of Commonwealth countries. What may have been convenient phraseology was not necessarily convenient phraseology for other members of the Commonwealth.
§ Mr. Hogg
I do not think that that answers the point at all. Precisely the same difficulty exists between England and France, for instance. We have no obligation under any convention to use particular words in our Statute. All that we are under an obligation to do is to legislate the thing. We have got over that difficulty in the Extradition Act by having an Act and a series of bilateral treaties. There are half-a-dozen ways in which the difficulty could have been overcome, but it seems to have been deliberately enhanced in the present case by the draftsmanship of the Bill.
As one who seeks to practise the law from time to time in a rather chequered career, I must make my little protest. Over the 34 years since I first obtained a professional qualification, I should think that the complication and unintelligibility of English law has increased by a factor of not less than 100. This is an example of the way it is done unnecessarily, making it more difficult for the ordinary citizen to ascertain what his rights and liabilities may be.
I do not think that this is any longer a point simply for lawyers to discuss. The unintelligibility and irrationality of our law, at a time when the citizen is better educated and therefore more and more anxious to discover what his rights and liabilities are, are becoming a public scandal. This is an example of how it could have been avoided in a particular instance.
I pass from the purely legalistic approach to the political approach, which it infinitely more important. Commonwealth countries are, not unnaturally, proud of the independence and integrity of their judicial systems. They are, quite properly, jealous of the reputation for independence and fairmindedness of their Executives. Whether or not the latter source of pride is as well justified as the former I would not be eager to discuss in 1145 the course of the passage of the Bill. Very largely the judiciary of Commonwealth countries, now that they have become independent, is something of which they may justly be very proud.
The Extradition Act, 1870, provided, first, that the courts would ordinarily decide whether an offence was of a political character. When it had gone through the courts and that issue was determined, the Home Secretary of the day was left with a discretion as to whether to return the offender, having regard to the nature of the regime, which in 1870 included the imperial regime in Russia and other very authoritarian regimes in Europe, and other factors.
The Bill does quite the opposite. It provides, first, that the question of what crimes are of a political character should be one on which both the courts and the Home Secretary should pronounce separately and independently of one another; and, secondly, it gives to both the courts and the Home Secretary, separately from one another but still in tandem with one another, the right to spell out in detail the circumstances in which a wise and liberal Government of this country might refuse to return a putative offender. That seems to me to have the worst of all possible worlds.
Here again, I return to the case of Kwesi Armah. He went through the existing procedure, which for this purpose is not markedly different. He was arrested. He went before a stipendary magistrate in London. He went to the Divisonal court on, I think, a habeas corpus. He applied for leave to appeal, although it was refused by the House of Lords. The courts decided, in effect, that this was not an offence of a political character. Thousands of £s, perhaps tens of thousands of £s, for aught I know, were spent upon this legal argument in the three tiers of our judicial system—presumably spent by Mr. Kwesi Armah and presumably spent by the Ghanaian Government, who were on the other side.
At the end of the day, the world has the impression that, for reasons which he does not disclose and has refused to disclose in both Houses of Parliament, here by his own person and in another place by the noble Lord, Lord Longford, the Home Secretary has come to a different conclusion. He may have been right.
§ Mr. Roy Jenkins
I think that the right hon. and learned Gentleman is wrong in thinking that under the existing legislation the issue before the courts was whether this was a political offence.
§ Mr. Hogg
This may be so, but it is one of the things the courts were discussing. Whether or not it be so, under the legislation which is proposed, this will be the question which the courts will be discussing. It means, in effect, that, after the most elaborate judgments have been given in our three-tiered judicial system, the Home Secretary of the day, whoever he may be, can, at a single stroke of the pen, cancel the decision of the courts on that point and do so without assigning any reason whatever.
I would merely say this to the Home Secretary about the Bill. It may be that the courts are wrong. They are not infallible. But, in that case, why waste time on the judicial process? It cannot be right to build into legislation a system with this potential in it for disagreement between the Executive and the judiciary. It surely would have been right to leave the question of the political character of the offence, as it is under the Extradition Act, to the courts and leave the Home Secretary an unfettered discretion, without spelling it out, to deal with the matters appropriate to his decision.
The difficulty would have been avoided simply by adopting the existing law. Further than that, the political danger that the Home Secretary might be seen to attack the Government of an independent sovereign State would have been avoided. This, if it did not arise in the case of Kwesi Armah, to which I must return again, certainly could arise in some future case and certainly did arise in the case of Enahoro. That seems to be a major defect in the Bill. I do not think that there is anything in the nature of the Commonwealth or the Commonwealth relationship which on that point makes the relationship between our countries different from that, for instance, between Italy and this country and between Western Germany and this country.
Let us take this a little further. Clause 4(1,b) and (1,c)—that is, the danger that the man may be persecuted for his religion, his race, or for other improper reasons—must call in question the integrity of the Government of the State 1147 seeking the return of the fugitive offender. The Home Secretary in the Bill not merely allows that to be argued in court—in public—but also put it upon himself and his successors to decide that ticklish question.
The Home Secretary tried to find himself an alibi in the case of Kwesi Armah by saying that this was a case which could have been prosecuted here. I will discuss that alibi in a moment or two. It was a sprung alibi, so I did not quite castigate the right hon. Gentleman sufficiently for it when he mentioned his decision in the House. Whether that alibi is good or bad, the Home Secretary can never be certain in future cases that it will be applicable.
The right hon. Gentleman has put himself and his successors in the position of having to impugn, even if the courts have not, the good faith of an independent Commonwealth country when there was absolutely no necessity for him to do so. The Extradition Act, which had to deal with precisely similar problems on the Continent of Europe in the 19th century, left the discretion with the Home Secretary discreetly silent, so that he did not have to spell out an insult to independent countries when he suspected the motives of their Governments. He is now compelled to insult them in order to do justice. This is wholly unnecessary.
This is what worries me in a case like the present, where the Bill spells out the criteria which the Home Secretary feels himself obliged to use; and the Home Secretary, out of discretion, is compelled to remain wholly silent as to the real reasons which led him to over-rule the court's decision. It seems to me that this was wholly unnecessary. I agree that it is inherent in the scheme recommended by the Law Ministers, but in this case I differ from them, and I think it my duty to point out the evils which I think will flow from their mistake.
What they ought to have done—and I shall come back to this—is to have applied the general extradition law with modifications. Instead, they tried, without going into first principles, to spell out a new law—not such a good one—between themselves, and I wonder whether the Home Secretary or the Under-Secretary 1148 of State could deal with my doubts about this.
Let us consider a case of murder, to which Clause 9(4) applies. This is the death penalty subsection. The Home Secretary can refuse to extradite for murder in those parts of the Commonwealth where the death penalty still applies. The difference between a foreign and a Commonwealth citizen—and it is this to which the Law Ministers ought to have applied their attention, and must inevitably have done if they had got down to proper legal principles—is that although the extradition of an alien may be refused, he can be asked to leave. He can be deported and made to go. His licence to stay here may be taken away. This cannot be done with a Commonwealth citizen. We have no proper right to deport or to refuse to allow to stay here a Commonwealth citizen whom we do not extradite.
The effect of Clause 9(4) in relation to murder will be that a Home Secretary of the future, and the present Home Secretary, if the Bill becomes law, unless I am wrong—and as I say I hope to be proved wrong because I am raising these things not to hurt but to help—will be faced with a horrible dilemma. A man may be charged with a horrible murder in a country where the death penalty survives, having an appalling record of violence behind him. The Home Secretary will be faced with the dilemma either of allowing him to be extradited and executed if he is convicted, or of allowing a putative murderer, that is to say a man against whom a prima facie case of murder exists, and who may have an appalling record of violence, to be at large in this country without being able to deport him. I may be wrong about this, but did the Law Ministers, who are presumably professionals of one kind or another, think of this? Why did they not legislate for it, if I am wrong?
Let us take this a stage further and apply it to political crimes. In the 19th century, when the extradition law was devised, the political situation in Europe was such that there were a great number of countries against whose Governments, or even against whose sovereigns, there could be conspiracies either to overthrow them by force or to murder individuals—the head of State or the head of Government—and we know in our own 1149 unhappy lifetimes that murders of members of Royal families have led to world wars. The Extradition Act provided for that.
We can cause the criminal to leave without extraditing him under the Extradition Act. In other words, a man who wants to kill General de Gaulle—and the Home Secretary knows that I am not dealing with a hypothetical case because a well-publicised case occurred not long ago—or a man who wants to overthrow a friendly Government by force, can come to this country, and if he is not a member of the Commonwealth the Home Secretary can say, "I will not extradite this man because his offence is of a political character, and I shall be sending him to his death. But I shall ask him to leave because it would be intolerable that a neighbour should harbour a source of conspiracy in Britain so near a friendly country".
But in the case of the Commonwealth a man may conspire against the life of the head of Government of a friendly Commonwealth country, or against the life of a head of State, and the Home Secretary will not only be entitled, but will be bound, under the terms of this Bill, to refuse extradition, because that will almost certainly be a political offence, and even if the Home Secretary does not do it the courts can do it before it reaches him. But if the man is not extradited the Home Secretary will have no alternative but to release him, and when he does so he will have no power of deportation and no power to invite him to go somewhere else and carry on his conspiracies there.
This is not a hypothetical case, because the Home Secretary has rightly referred in this connection to Enahoro. In this case most of the critics stop at the point when Enahoro left these shores, or if they follow him into Nigeria they point out that he was convicted and shut up in prison. But Abu Bakr, who was sworn in at Her Majesty's Privy Council when I was Lord President there, against whose life Enahoro was alleged to have made a conspiracy, is dead, and he was the victim of murder, though not at the hands of Enahoro. If the conspiracy had taken place here, the conspirators would have been allowed to remain at large.
Under the Bill which the Law Ministers in their infinite wisdom have evolved as 1150 a result of two meetings, if a man were accused, or convicted for that matter, in Nigeria of trying to murder the head of State or the head of Government, I cannot see that this could not be an offence of a political character. If so, his return would be prohibited, but the Home Secretary would have no discretion. He would have to let him live here and avail himself of all the freedom of a Commonwealth person to go on with what he is about. Why am I wrong about that?
Let us consider the position of the Queen as Head of the Commonwealth. The Home Secretary knows very well that I am not dealing with a hypothetical case. He will remember the stir in this country during two recent Royal visits. He will remember the occasion involving Ghana, when my right hon. Friend the Member for Streatham (Mr. Sandys) had to carry out a preliminary reconnaissance with Mr. Nkrumah to satisfy public opinion here, and he will remember, too, the Canadian visit, where some foolish Separatists in Quebec issued threats.
Suppose it were the case that a conspiracy was made against the Queen in her capacity as Sovereign of one or other of the Commonwealth States, or against her position as Head of the Commonwealth. Let us suppose that it was to be a political assassination. Under this Bill, if it was a political conspiracy, there would be no extradition. There would be no right to ask the person to leave, and the Queen would be living here. What did the Law Ministers think they were about when they made this kind of convention amongst themselves?
I do not think that I am mistaken about this. I think that there are grave difficulties. There are grave difficulties at the political level between the Governments. There are grave difficulties at the legal level. They could be avoided if the Home Secretary would only do what I have asked him for the second time to do, and that is to see that there is a common code for aliens and Commonwealth citizens, and that movements away from that common code are related to first principles and to the essential nature of the Commonwealth relationship.
I regard the Bill and these meetings of Commonwealth Ministers as a thoroughly botched job. I think that they missed a great opportunity to bring the law into a rational state. I think that they have 1151 achieved worse, instead of achieving better, and although our voting pattern is wholly inhibited by the nature of the Convention, I hope I am wrong, but I believe that I am right in some of the criticisms which I have uttered.
§ 5.10 p.m.
§ Mr. A. J. Irvine (Liverpool, Edge Hill)
When I listen to the right hon. and learned Member for St. Marylebone (Mr. Hogg) it often happens that I agree with much that he has to say: it seldom happens that I agree with all that he has to say. This occasion is true to the rule. With much that he had to say about the dangers in this Bill I feel a good deal of sympathy. Like him, I believe that the greatest interest in the Bill attaches to the restrictions on the return of fugitives in cases where the offences are of a political character—that is, the contents of Clause 4.
I would have thought that in this legislation it was desirable that for this purpose Commonwealth countries should be placed on as nearly the same footing as possible as other countries. On that basic point the right hon. and learned Gentleman is in agreement with me. There should be a common base, and any points of nuance, distinction or difference arising from our special relations with Commonwealth countries, or in the relations among Commonwealth countries, should start from that common base.
I also agree with him when he asks why, in this matter, we should have two separate codes, when one is sufficient. If a desirable object is to place Commonwealth countries and other countries upon the same footing, as far as possible, that is not the effect of the Bill. In the points that I am making I am not at this stage expressing criticism of the Bill; I am drawing attention to matters which I hope the Parliamentary Secretary will be good enough to deal with in his reply.
There may be explanations and justifications for the form of the provisions in Clause 4 but, as I understand it, the restrictions on return spelt out in that Clause are by no means expressed in the same terms—or even in like terms—as those of Section 3 of the Extradition Act, 1870. I ventured to intervene 1152 in the course of my right hon. Friend's speech in order to ask why this was so. It seems a pity that that should be the case. It is true that the wordsoffence of a political characteroccur in both this Bill and the 1870 Act, but in the Bill these terms appear:a person shall not be returned"—that is, at the request of a Commonwealth Government—if it appears … that the request … is made for the purpose of prosecuting or punishing him"—not, as in the case of the 1870 Act, for an offence of a political character buton account of his race, religion, nationality or political opinions …If I am mistaken I hope that I shall be corrected. I do not wish to take up the time of the House if I am wrong. But in the last passage that I have read there seems to be a most significant departure from the language of the 1870 Act. At first sight it seems an unnecessary departure, pregnant with possible difficulties. There may be a satisfactory explanation. If there is I shall be happy to hear it.
A result of what I have just said—if it is accurate—is that the Bill provides for wider grounds for refusing the request when it comes from a Commonwealth country than when it comes from any other country. There are wider grounds than the grounds set out in the Extradition Act. Politically, if "dangerous" is too strong a word, at least there appears to be a possible source of difficulty here. It may be that from some points of view it is good sense to speak, as the Bill does, ofhis race, religion, nationality or political opinions.It may be sensible enough partly because the courts in considering this branch of the law, have seen fit in certain circumstances to put a somewhat narrow construction upon the phrase, "of a political nature" or "a political offence". I have in mind the Zacharia and Castioni cases.
It could be argued that the time had come to widen the ambit of the mischief that it was desirable to overcome in this matter, but it is very odd that the decision to widen the grounds for resisting a request for the return of an offender should be made to apply to a Commonwealth country before it is made to apply to any other country. I do not suggest 1153 that it was anybody's intention, but a possible implication is that Commonwealth countries are regarded as more oppressive than the rest. I have no doubt that that is not the belief of the Government, but that is a possible and undesirable implication of the provision.
I must point out that I put the point by way of inquiry. I welcome the Bill in principle, because it is needed. If we were confronted with a Bill which, at the same time as it quite properly and fairly altered the law existing between Commonwealth countries, altered the language of the 1870 Act—after appropriate international negotiations—I would not have any even incipient criticisms to offer. But I am concerned with a change of the law which has the effect of widening the power of this country to reject a request coming from a Commonwealth country beyond the ambit where it can reject requests of other States. There is a potential political danger there.
The right hon. and learned Gentleman pointed out the possible difficulty arising between the Home Secretary and the judiciary from the spelling out of the responsibilities of each in the Bill. I shall not follow up that point, although there is a good deal of substance in it. But I am particularly concerned and anxious about the failure in the Bill—which, considered by itself, has in other respects many admirable qualities—to bring Commonwealth countries on to the same footing as other States in Clause 4.
§ 5.20 p.m.
§ Sir David Renton (Huntingdonshire)
The hon. and learned Member for Liverpool, Edge Hill (Mr. A. J. Irvine) has made a very interesting speech and some very cogent criticisms of the Bill. In view of the very powerful and very full speech which my right hon. and learned Friend the Member for St. Marylebone (Mr. Hogg) made, I can speak at fairly short length. I must say that, if it were feasible to do so, I should wish to vote against the Bill altogether, but one realises the difficulties of conducting these many-sided negotiations with other countries.
However, I cannot but feel that the United Kingdom Government must have taken a lead in obtaining this agreement from other Commonwealth countries, and 1154 I think that the results are very unhappy and unfortunate—unfortunate from the technical point of view, as my right hon. and learned Friend has shown; unfortunate from the political point of view, which could conceivably lead to discord between different Commonwealth countries; and unfortunate in practice because, although it may not have the same results in other Commonwealth countries, it could have the result of making the United Kingdom a place to which dissident politicians in all parts of the Commonwealth will tend to resort.
The first thing that we have to bear in mind in the context of the Bill—it has not yet been mentioned—is that in each case the Commonwealth citizen concerned will have got here somehow. In the case of Mr. Kwesi Armah, he came here in an official capacity; that capacity ceased, and then he remained here. But in many other cases the person will have come here and will have asked for leave to land under the Commonwealth Immigrants Act, and a junior, but excellent, immigration officer will have taken the decision and have decided to grant him leave to land in accordance with the provisions of that Act and the limited discretion given to the immigration officer.
In other cases—it is these cases which we must bear in mind, and in regard to which I should like to ask a question of the Under-Secretary—there will have been a demand for political asylum. In other words, the very question which will ultimately have to be considered by the courts and finally by the Home Secretary will have been decided at an early stage. The person will, in effect, say, "I am fleeing from my own country because I am afraid of what will happen to me there because I am a politician and am accused of committing offences of a political character".
In passing, I would point out that that is exactly what Guy Fawkes could have said when England and Scotland were separate kingdoms under the same Crown, which was, I believe, the constitutional position at the time when he tried to blow up Parliament. He might have tried to gain admission to Scotland, and he would have hoped to get political asylum there, and the question that the Scots would have had to decide would have been whether he should be allowed to stay there or whether he should face his 1155 trial in England, where, although in those days we had the Star Chamber, the courts for the most part had a reputation for a developing sense of justice. We have reached a position with this Bill before us at which we must make up our minds that, with the help which we have given in the past, the Governments and the courts of the Commonwealth are to be trusted. If we work on any other assumption we shall be making a wrong decision in relation to this Bill.
Having said all that in parenthesis, I come back to the question which arises when somebody comes here and the immigration officer understands that it is a matter of political asylum. That matter, of course, the immigration officer will not decide he will refer it at once to the Home Office. The matter might even go up to a Minister, but it is not likely to be the Home Secretary at first. So a decision will have been made to let the person stay here, he having been granted political asylum.
Then the man's own country, which may be extremely vexed, and rightly so, by the offence which he has committed, will ask for his return under the Bill. Will the Home Secretary really approach the matter with an open mind when it comes to applying the provisions of Clause 4? Are we not making it very much too easy under the provisions of Clause 4 for a person to stay here once he has got here, whether as a person who claims political asylum and was granted it, or who got here in any other legitimate way, or perhaps even by escaping the immigration control, and perhaps even on a forged passport?
I wonder whether I might refer to the case of Kwesi Armah in very much the same way as did my right hon. and learned Friend. The Home Secretary—and like my right hon. and learned Friend, I do not blame the Home Secretary for having done so—said after the Bill had been published but before it had been discussed that he relied not only upon the existing law which gives him a discretion under the Fugitive Offenders Act, but also specifically upon paragraphs (a), (b) and (c) of subsection (1) of Clause 4 of the Bill.
I had two Questions down to the Home Secretary last Thursday asking him, as 1156 lawyers say, for further and better particulars, and I have really had no answer. The Answer that I was given referred to his original statement on Thursday of the week before last in which he merely said that he was exercising his discretion under the Fugitive Offenders Act. It was in answer to a supplementary question by my right hon. and learned Friend the Member for Warwick and Leamington (Sir J. Hobson) that the Home Secretary opened up the position under Clause 4 of the Bill.
I venture to suggest that the courts of Ghana and the Government of Ghana are entitled to be told exactly why it was that the Home Secretary said that he relied upon paragraphs (a), (b) and (c) of Clause 4(1) of the Bill.
§ Sir D. Renton
I am trying to develop a rather technical argument. If the hon. Gentleman will allow me to develop it, I think it might be better. This is not an easy matter to deal with if one is to be interrupted. I tend to give way almost too freely, but perhaps the hon. Gentleman will forgive me on this occasion.
Unless that position is clarified, the Ghana Government will not know where they stand and may feel hesitant about responding to the invitation which the Government have given them to prosecute Kwesi Armah in our courts. Certainly it would appear, bearing in mind the offence alleged against him, that something should happen, that either he should be tried in this country, prosecuted by the Government of Ghana, or prosecuted—I do not see why he should not be—by the authorities in this country, or that he should be returned to Ghana.
When an offence of the kind alleged and on the scale alleged may have been committed, I do not think that it is right, or in the interests of law and order or of justice in this country, for the Government to appear to be allowed to let the matter drift. This must be brought to a conclusion in some way or another, and I am quite confident that if Mr. Kwesi Armah is innocent he will be acquitted in this country. I am also confident that, if the case against him is not established in his own country, the 1157 undertaking given by the Ghana Government to allow him to leave the country within 30 days after his acquittal will be honoured. There is no reason to believe that it would not be.
As I said, the speeches which have been made enable me to address the House very briefly, but I cannot resist suggesting that the Long Title of the Bill, if one works out the implications of the Bill, would more accurately read something like this: "A Bill to make politicians in all parts of the Commonwealth easy victims of murder, violence and other offences; to prevent the trial of politicians against whom such offences are alleged; to open the United Kingdom to dissident politicians from all parts of the Commonwealth; and for purposes connected therewith".
§ 5.32 p.m.
§ Sir Hugh Lucas-Tooth (Hendon, South)
I find myself in a very great measure of agreement with the hon. and learned Member for Liverpool, Edge Hill (Mr. A. J. Irvine). Indeed, I got the impression, almost, that he must have been reading my speech in an earlier debate, because the point which he made was an extension of what I then argued would be an inevitable result of taking the action which the then Opposition would have taken.
This Bill comes before the House only because of the change in the law proposed by Clause 4. The Bill as a whole is an improvement on the law in this connection contained in the Fugitive Offenders Act, 1881, but the Home Secretary forbore to mention that the Extradition Act, 1870, is even older and I think that all hon. Members who have spoken have pointed out that that Act is every bit as much in need of improvement and amendment. Indeed, one of the ludicrous results of the passing of this Bill will be that we shall have a law relating to capital punishment in this connection effective as against Commonwealth countries but not, as I understand it, as against foreign countries. I think that this is a matter which could and should be taken up by the hon. Member for Nelsen and Colne (Mr. Sydney Silverman).
The substance of the Bill is to extend the restrictions on the power to extradite political fugitives from the Commonwealth. That is what the Bill does. I 1158 regret that in principle, and I agree with what everyone has said during the debate—that the machinery in the Bill for doing it is unsatisfactory.
In speaking about the principle I am not sure that I shall find so many friends on either side of the House. The present law, as contained in the Act of 1881, permits extradition to Commonwealth countries even when the offence in question is of a political character, and the basis for doing this in the case of Commonwealth countries and not permitting it in the case of foreign countries rests on the principle of allegiance, the common allegiance which all British subjects, whether in these islands or in any part of Her Majesty's domains, owes to the Sovereign. There are, of course, some aliens who also owe such allegiance, but this is a technical point and I do not think that I need trouble the House with it. Broadly speaking, British subjects owe allegiance and aliens do not.
This is not just a technical, legal matter. It involves very important rights and very important duties. The duties are to respect the established institutions under the Sovereign, and not to seek to undermine them or to overthrow them otherwise than lawfully. The rights which were, until not very long ago, to enter this country and to leave this country freely, are still very extensive by comparison with the rights of aliens. A British subject is no longer, of course, free to enter and leave at will, but he is very much freer to come here than any alien, and he cannot be deported except under very strict rules laid down by the Commonwealth Immigrants Act.
This Bill abolishes the legal recognition of the duty of allegiance outside the United Kingdom. That is a very serious matter. At the same time, it leaves substantial rights to overseas British subjects unaffected. Obligations without rights are detestable, but rights without obligations are equally so. The Bill takes away the one remaining special obligation attaching to a British subject as such, and the obligation having been taken away, I am sure that the rights, and indeed the very status, of British subjects will follow in due course, and I regret that.
There may be an exception to what I have said, and I should like the Government to answer this when they reply 1159 to the debate. I am not certain how the offence of treason fits into the Bill. An alien, of course, cannot commit treason, but is treason an offence of a political character within the meaning of Clause 4?
§ Sir H. Lucas-Tooth
That may be so, but I am not certain how the Bill is intended to apply to treason.
§ Sir J. Hobson
May it not also be the fact that treason against Her Majesty in right of the Crown in the United Kingdom would be triable here, but if committed anywhere in the Commonwealth it is a very difficult question indeed? The question which arises in the case of treason against Her Majesty in the right of the Crown, say, in Canada, and committed in Canada, is whether that would be treason here.
§ Sir H. Lucas-Tooth
These are the very points which have been bothering me. I hope that before we give the Bill a Second Reading the Government will make some comments on this issue. It is of very great importance.
May I say why I do not like the machinery of the Bill? This country claims to be able to exercise a right of asylum for alien political offenders who seek refuge here. But, as my right hon. and learned Friend the Member for Huntingdonshire (Sir D. Renton) pointed out, we retain in the case of alien refugees here the absolute right to deport them at any time for any reason whatever, and without giving any reason. But we can deport a British subject from here only under very strictly defined rules. It seems to me that the result of the Bill becoming law will be to make the country a hotbed of plotters against Commonwealth Governments overseas. It is within the general knowledge of the House that certain members of the Commonwealth are not without their political plotters, and if they can come here and carry on with whatever they are doing without any risk whatever of being extradited or deported, we shall be in a difficult and dangerous position.
1160 There is another aspect of the matter which I also find disturbing. Much reference has been made to the case of Mr. Kwesi Armah. May I refer to what was said by the Lord Privy Seal in another place on 26th January? He quoted as follows from what had been said by the Home Secretary in this House:I thought it right in exercising my discretion under Section 6 of the Fugitive Offenders Act, 1881 in this case to take account of all the relevant circumstances, including the provisions of the Fugitive Offenders Bill now before the House …'Later the Lord Privy Seal said that he had not laid bare all the factors exercising the Home Secretary's mind. Later again, he said:My Lords, I am afraid that, for the reasons given, I am not at liberty—and I am sure that the Home Secretary will take the same line elsewhere—to give more details in public. But, as the noble Lord has given a certain interpretation to the Bill I mentioned, I would just say that I do not necessarily accept his interpretation."—[OFFICIAL REPORT, House of Lords, 26th January, 1967; Vol. 279, c. 689–90.]This leaves me in some doubt and difficulty. The point put to the Lord Privy Seal was to ask whether Mr. Kwesi Armah was accused of committing an ordinary offence. He was asked on what ground the Home Secretary had said that, in spite of the fact that this was an accusation of an ordinary offence, it would be regarded as a political offence if he were, so to speak, using this Bill as his authority for so doing. I feel in very great difficulty, as did my right hon. and learned Friend the Member for St. Marylebone (Mr. Hogg), in this connection. I should like a much clearer statement from the Government on how this part of the Bill will work. Are we to put an obligation on the Home Secretary to say that he regards the offence as a political offence? If so, will he be obliged to say on what grounds? Or is he merely to say that he regards it as political, and are we to accept that?
I am not certain that I like the result of the Bill either way, but of one thing I am certain—there must be some rule and the House must know where it stands, because either the Home Secretary will be pressed to give his reasons, and it may be bad for the country that he should have to do so, or he will refuse to give his reasons, in which case it will be bad for the procedure in this House that we 1161 should be left in the dark. We want a good deal more explanation about that.
It is fashionable to question the value of the Commonwealth these days, and even those who are in favour of the Commonwealth as it is now constituted speak of it as if it were something of a metaphysical affair. Hitherto that has not been the case. There are real rights and real obligations attaching to all of its members. The Bill undermines the obligations, and it very nearly, if not entirely, removes them altogether. This may be an inevitable process. Perhaps it is. If that be so, the Bill is no more than bowing to the inevitable; but no one should rejoice at its becoming law.
§ 5.45 p.m.
§ Mr. Charles Fletcher-Cooke (Darwen)
Clause 4 of the Bill is the nub of the matter. I should like to add to what was said by my right hon. and learned Friend the Member for St. Marylebone (Mr. Hogg) about the political dangers involved in the inquiries which have to be made under subsection 4(1,b) and 4(1,c). He emphasised the difficulties in which the Home Secretary would be involved in inquiring whether the purpose of the request for return was forprosecuting or punishing him on account of his race, religion, nationality or political opinionsor alternativelythat he might, if returned, be prejudiced …or punished, detained or restricted in his personal liberty by reason ofthese matters.
But the Home Secretary's problems are as nothing compared with the problems of the courts. There is in this a curious parallel jurisdiction. It is not only the Home Secretary but the courts, the Court of Committal and the High Court, that have to inquire into these matters. I visualise long elaborate historical evidence being produced for the first time in our judicial system by persons who do not wish to be extradited or repatriated, or whatever the right term under the Bill may be. They are entitled to produce, and indeed they must produce, evidence, in public, in open court, relating to the whole set-up of the courts of the country concerned, all of which will no doubt be highly prejudicial, all reported all over the world and all likely to cause more ructions poitically than anything I can imagine. I cannot understand how the 1162 Government can believe that this will produce a more amenable, a more convenient, comfortable and oiled system of relationship than we have had before.
It has hitherto been the practice of the courts in the matter of the extraditing of foreigners to reject at all costs any such inquiry. In a famous case dealing with the Extradition Acts, Lord Russell of Killowen, at the turn of the century, refused absolutely to enter into such inquiry. He said that the allegation, which was of course by a foreigner, that he would not get a proper trial or that his trial would be prejudiced conveyed a reflection of the gravest possible kind not only upon the motives and the actions of the responsible Government but also impliedly upon the judicial authorities of a neighbouring and friendly Power. He asked:Is it open to us to consider such a suggestion? In my judgment it is not. This question bears upon the political aspect of extradition and it must be borne in mind upon a consideration of matters into which this court is not competent and has no authority to enter.However much we give the courts authority, we cannot give them competence in this matter, because to be competent to judge upon the motives and complexion of not only the Government but of the courts of a friendly country involves an inquiry lasting weeks and months, and, whatever the outcome, it is bound to produce most serious diplomatic repercussions. Hitherto in our law, the courts have always been anxious to avoid that and have accepted the certificate of the relevant Department of the Government as to whether or not in matters of foreign and external relations of this sort such-and-such are the facts. The courts will not, as far as possible, go behind that, and for very good reason.
But now—I do not understand how the Law Officers gathered together in their conference agreed to this—the courts of all the Commonwealth countries are to inquire into those matters. For example, if the Bill be extended to the Republic of Ireland, as there is power to do under a later Clause, and an Ulsterman claimed that he would not have a fair trial in Dublin, then, however much they might disbelieve the Ulsterman, the courts would have to go, day after day, into all the evidence relating to the religious 1163 history of the Irish Republic—[An HON. MEMBER: "And vice versa."]—and vice versa. It is an incredible prospect opened before us.
Moreover, this is to apply all over the Commonwealth. Unfortunately, the Commonwealth, although a great multiracial concept, is riddled with race and religious divisions. In any case in which politics was involved with race and religion, as it is throughout the British Commonwealth, the whole history of the State in question would be opened up before the magistrate at Bow Street or the High Court of Justice. I can see no end to the litigation, and I can see no end to the damage which will be caused to our relations within the Commonwealth.
§ Sir D. Renton
Might there not be occasions in the circumstances which my hon. and learned Friend has described when judges in one country would be deciding upon the competence and impartiality of judges in another country with whom they had studied here in the United Kingdom, where so many were trained?
§ Mr. Fletcher-Cooke
Certainly, and probably eaten dinners together in one of the Inns of Court. It would be a most disagreeable and loathsome jurisdiction to have to exercise, and quite unique.
The truth of the matter is that these functions to be performed under Clause 4(1) should be not co-ordinate and parallel but separate. It is the function of a court, because it is a justiciable issue, to decide whether an offence is a political offence or not. It is a very difficult decision. It needs greater definition both in this law and in the law of extradition between foreign States, and I hope that some day this will be done, because our law of extradition depends upon a lot of nineteenth-century and earlier thought which is no longer applicable. But I think it possible. There is here a justiciable dispute.
But these questions of the exact nature of foreign Governments and Commonwealth Governments in their practice, in their courts and elsewhere do not present justiciable matters at all. Yet they remain in parallel with the Secretary of State's decision competent to the lower court and to the High Court of Justice. 1164 As the hon. and learned Member for Liverpool, Edge Hill (Mr. A. J. Irvine) pointed out, we are opening up unnecessary new ground. Although the general purpose of the Bill is to equate the law of extradition with that of the return of Commonwealth offenders, we are here going much further. I hope that the hon. and learned Gentleman the Under-Secretary of State will explain why, in the conference which he attended, it was necessary to add the jurisdiction of the courts in this way. I do not believe that it is necessary, and I believe that it gravely prejudices the future smooth operation of the Fugitive Offenders Bill.
I have said that we all agree in wishing to equate the law relating to fugitive offenders within the Commonwealth to that of the extradition of foreigners, but that motive and that passion are modified in my case. They are modified because I do not believe that the law of extradition as regards foreign States is a model in twentieth-century conditions. It raises all sorts of anomalies. For example, I wonder what would have happened if Lee Harvey Oswald, instead of being shot by Mr. Ruby, had found refuge in this country. Under our extradition laws, would the offence have been regarded as a political offence and, if so, would not extradition have been refused? If so, would we then have had to keep that gentleman here for the rest of his life? Even if it had not been considered a political offence on the ground that it was a one-man show and not part of a conspiracy—assuming that to be the case—would extradition have been refused because the law of Texas has the death penalty? And then what would have happened to him? There are many anomalies in this matter, and one has to think of such examples if only to see how the law of extradition is by no means the model that it is cracked up to be in many quarters.
Nevertheless, even in its imperfect state, I should have thought that our law of extradition was better than the Bill before us. Under the Bill not only do we have this extraordinary extension of the powers of the courts to inquire into the bona fides of Commonwealth courts, but it is founded on the unexpressed but very serious difference that we cannot deport the Commonwealth 1165 citizen as we can deport the foreigner. Therefore, the rigidity of the rules relating to extradition—if I had time, I could show that they are a nineteenth-century growth having very little relationship to the twentieth century world—can nevertheless be softened or the harshness of the consequences mollified by the fact that, although the offender may not be extradited, we can get rid of him very often—though not always. But this does not apply to the Commonwealth citizen.
I fear that we shall become the dumping ground for political criminals—and not all that political in many cases—from all over the Commonwealth. If a man has either previously or subsequently committed an ordinary crime, it is very easy for him to claim that some crime he has committed is of a political character, and I very much question the strength of the "speciality rules" which the Home Secretary mentioned in opening. I doubt that the Home Secretary himself really believes in them, and I doubt also that he would in many cases extradite Commonwealth citizens to a Commonwealth country on the "speciality" proviso, because it is worth very little.
Whereas I had hoped that we should have a Bill which smoothed the edges of the difficulties which were discovered in the Enahoro case, and I had hoped that the Government would take the opportunity to look at the extradition laws as well as these laws in the same package deal, it seems that we have got a very dusty answer.
My right hon. and learned Friend has told us that we must not do more than voice our criticisms, on the grounds that this was all fixed up by the conference of Law Ministers of the Commonwealth, and that it is our duty only to put the imprimatur of our approval on what is a chose jugée. That is not the sort of legislation I care for. It seems to me that it is the business of the House to judge without prejudice the proposals brought before us, because we are changing the law of England and Scotland. It is our trust to see that that law is in the best possible shape, and nobody can take that trusteeship away from us on the grounds that they have already committed us.
We are not doing the good day's work I had hoped. Although the law needs 1166 change, at least in the respects which I have mentioned, the Bill is not changing it for the right, whereas in the respects where I think that it needs thought and change, namely, on the whole basis of extradition for political offences, there is a glaring omission.
§ 6.2 p.m.
§ Mr. Percy Grieve (Solihull)
I share the doubts of my hon. and learned Friend the Member for Darwen (Mr. Fletcher-Cooke) as to the complete appropriateness of the provisions of the Extradition Act, 1870, to the conditions of the modern world and our place in it. That Act was passed not long after the middle of the 19th century at a time when this country was proud and glad to give refuge to the many people who were fighting for the freedom of their countries and their own personal freedom throughout Europe and the world. One does not have to go back far beyond 1870 to think of the struggle for freedom in Italy and many other parts of the world, which were undoubtedly determining factors in the provisions of that Act with regard to political offences.
The question of how appropriate those provisions are in these days has been underlined by my hon. and learned Friend. We must ask ourselves whether for instance, save in very exceptional circumstances, murder or assassination can any longer be regarded as a legitimate political weapon. Under the provisions of the Extradition Act, there is no doubt that if a man can show that the murder or assassination he committed was for political motives, he comes within that Act. We might indeed have been in a very grave dilemma if Lee Harvey Oswald has sought refuge here. We may in the future be in very grave political dilemmas if other people who have committed assassinations and murders find refuge here and claim the protection of political motives for their deeds.
I say that by way of preface, because I nevertheless share the feelings of my hon. Friend the Member for Hendon, South (Sir H. Lucas-Tooth) and his respect for the speech of the hon. and learned Member for Liverpool, Edge Hill (Mr. A. J. Irvine). For many years I have thought that there was a case for equating the treatment of Commonwealth citizens and aliens, and the treatment of foreign countries and Commonwealth countries in 1167 this respect. I have looked forward to a Bill which would provide that Commonwealth citizens fighting for freedom in their own countries would not necessarily be sent back, as has hitherto been necessary under the prevailing legislation, and that they should have the same protection as aliens. To that extent, along with every speaker this afternoon, I am with the Bill.
But the Bill goes much further. It puts Commonwealth countries, with whom on a priori grounds one might have assumed that our relations of comity are even more friendly and closer than the relations between this country and foreign countries, in a more difficult position in obtaining the return of citizens who have been guilty of offences. That was underlined by my hon. and learned Friend the Member for Darwen in referring to Clause 4. He emphasised not only the political difficulties of applying Clause 4(1,b) but the extraordinary legal dfficulties.
In the ordinary administration of the law, the magistrates' courts of this country already face great difficulties, and they acquit themselves very well. But it is an intolerable burden to face a magistrate, even a learned Metropolitan magistrate, with the problem of deciding whether a request by a foreign power for the return of somebody accused of an ordinary crime—not a political crime—is bona fide. It is difficult to see how that burden could possibly be discharged. It would involve long hearings, historical inquiries, calling numerous witnesses, because presumably the person whose return was sought would be entitled to call witnesses to show that the basest motives were behind the request for his return. As my hon. and learned Friend said, that would run clean contrary to the principles which this country has hitherto applied in its relationships with foreign countries. It would run clean contrary to the passage which my hon. and learned Friend read out from the judgment of Lord Russell of Killowen in the case of Arton.
Who can doubt that the principle was properly enunciated by Lord Russell of Killowen, and that it is a proper principle to apply in this country's relations with others? I am thinking not only of other countries of the world but other countries of the Commonwealth, with 1168 whom I hope we shall continue to have a special relationship, and not just the relationship that there is between foreign powers, however friendly they are with one another. For those reasons, Clause 4(1,b) would be much better left out of the Bill, so far as the courts are concerned.
There are also the political reasons why it should be left out, to which many hon. Members have referred today. It is difficult to imagine a more potent cause of future dissension between the countries of the Commonwealth than to make a provision whereby the courts of this country, or the Secretary of State for the Home Department, are entitled to say, "You say that you want Mr. X for stealing £30,000. We do not accept that. We believe that you want to put him to death because you do not like his religious persuasion, or because you do not like the acts in which he has engaged on behalf of his political party at home."
These provisions in the Bill, it seems to me, far from being a means of cementing the relationships between the countries of the Commonwealth, far from being a means of increasing the comity and the friendship that we all desire, are likely to be a future cause of the gravest possible discord.
I have nearly said all I desire to say about the Bill although I could say a great deal more. I shall only repeat what other hon. Members have said about Clause 9. This concerns a point made by my right hon. and learned Friend the Member for St. Marylebone (Mr. Hogg) in referring to subsection (4), which provides thatThe Secretary of State may decide to make no order under this sectionan order for return—in the case of a person accused or convicted of a relevant offence not punishable with death in Great Britain…if he may be punished with death at home. If the Home Secretary were to act on that ground, we would run into the gravest possible danger of having murderers from all over the world who may be sentenced to death at home taking refuge here.
One must bear in mind in that connection that the death penalty still prevails in many of the most civilised of 1169 what is sometimes called the old Commonwealth—in some Australian States, for instance. For these reasons also, I invite the Government to reconsider the Bill and in particular Clauses 4 and 9.
§ 6.11 p.m.
§ Mr. Emlyn Hooson (Montgomery)
I share some of the disquiet expressed about the Bill, although I have some reservations about some of the criticisms made. Basically I believe that the Government's approach is right in that it is essential to try to get agreement throughout the Commonwealth about the kind of law we need for extradition within the Commonwealth. But I start off from the basic premise that there are no political reasons, although there may be legal reasons, why a Commonwealth citizen should be in any different position from the citizen of another country when he comes here.
I believe that the Extradition Act, 1870, was an extremely fine and civilised Measure. I have heard doubts expressed about it today, but I would need much persuasion before I would see it repealed or see it greatly modified, although some degree of modification may be required in the light of modern conditions.
§ Sir J. Hobson
But surely this concerns not so much the person demanded for return but the identity of the Government demanding his return. A foreign Government could demand the return of a Commonwealth citizen who would then be in the same position as an alien.
§ Mr. Hooson
I accept that. It seems to me that what we want to do is to preserve the essential freedom for a man to come here whom we think should not be returned to another country to his political prejudice, where he will be put on trial, often unfairly, for a political offence. I do not think that the world has reached such a civilised state that we could be happy that a man coming here from a Commonwealth or any other country might, if he is returned to that country, necessarily get justice. He might find himself suffering from a complete injustice in that he does not get a fair crack of the whip at his trial and is not allowed freedom of political expression. That I understand to be the basic aim of the Government in presenting the Bill and it is a perfectly correct 1170 aim retaining a right of political sanctuary.
Secondly, it is also sensible for the legal Ministers of the Commonwealth to get together to try to thrash out a common code. I accept that. Thirdly, there are the wider grounds for refusing extradition, and the 1870 Act might itself be widened in that respect. Where the Government have gone wrong, and it may be possible to put this right if there is an agreement between all the Commonwealth legal Ministers, is under Clause 4 in particular. I perfectly well understand that a competent court here can decide whether the offence of which a person is accused is an offence of a political character, but when we come to Clause 4(1,b), we see that the court has to decidethat the request for his return (though purporting to be made on account of a relevant offence) is in fact made for the purpose of prosecuting or punishing him on account of his race, religion, nationality or political opinion:How can a court decide that? What is the standard of proof which has to be applied? Is it proof beyond reasonable doubt? Is it a suspicion that this might be the case? None of these questions are answered by the Bill. This subsection will put an intolerable burden on the courts. This is not the kind of function which a court can properly fulfil. This requirement is for a political decision and it should properly be taken at the discretion of the Secretary of State. The requirement in Clause 4(1,c) isthat he might, if returned, be prejudiced at his trial or punished, detained or restricted in his personal liberty by reason of his race, religion, nationality, or political opinions.Again this necessitates an inquiry by the court in this country about the way in which people are dealt with of a certain race, religion, nationality or political opinion in a Commonwealth country. This is embarking on a very novel kind of investigation for our courts and is what the judges should not be called upon to decide.
The probable reason for Clause 4 (1,b) and (c) is that it may be said that the opinions of the Home Secretary vary according to the character and political beliefs of the particular Home Secretary and that therefore a person who has sought refuge here should be allowed two cracks of the whip from both the Home 1171 Secretary and the courts. Let us bring it a little nearer home. Chief Enahoro's case, it has been argued, should have depended not only on the Home Secretary of the day. He should have been allowed recourse to the courts on the grounds allowed in this Clause. I understand this to be the purpose of the Clause. I am not at all happy about the solution to this problem, although at the moment I find it difficult to think of an alternative. But I think it is placing the courts in a very difficult position. This matter must be thought out again and I ask whether the views of the Lord Chief Justice have been sought, because it is important that they should be when such a fundamental change in our law is proposed.
The other valid criticism which needs answering was also expressed by the right hon. and learned Member for St. Marylebone when he dealt with the difference which appears to him between the foreigner for whom extradition is refused but who can he requested to leave the country or be deported and that of a Commonwealth citizen whose extradition may be refused and where there is apparently no other means of dealing with him even if he is of highly undesirable character. Presumably—and I am not an authority on this subject—under the Commonwealth Immigrants Act there may be some means of dealing with him, but it is incumbent upon the Government to deal with this point in the reply tonight. It is a valid criticism and should be looked into. Otherwise, I agree entirely with the purpose of the Bill, provided that the provisions I have mentioned are looked at very carefully again before it becomes law.
§ 6.20 p.m.
§ Mr. T. L. Iremonger (Ilford, North)
I was about to interrupt the hon. and learned Member for Montgomery (Mr. Hooson) at an earlier point, but I am glad to follow him now because I wanted to question the point he was making—that there is not really any need for any difference between the extradition law as it relates to Commonwealth countries and as it relates to foreign countries.
§ Mr. Hooson
I made it clear that there were no political reasons. I think there are legal reasons, but there are no political reasons.
§ Mr. Iremonger
I am not quite sure whether there is a clear distinction there on the point that I want to make. I was very impressed by what my hon. Friend the Member for Hendon, South (Sir H. Lucas-Tooth) said in a speech while the hon. and learned Member for Montgomery was not present, when he analysed this difference as consisting of the duty of allegiance existing between subjects of the Crown, whether in Commonwealth countries or this country, and the absence of that duty of allegiance in all foreigners.
The hon. and learned Member may feel that so long as the Commonwealth existed in its old form that was a substantial reason for the difference between the Fugitive Offenders Act and the extradition laws between ourselves and foreign countries. That is a comparatively incidental point, but I would agree with the hon. and learned Member and those who have spoken from this side of the House. Incidentally, it is interesting to see, after all the "brouhaha" about Enahoro by the party opposite and their interest in this attempt to remedy the law, that no hon. Members opposite have come in to justify the Measure which the Government have brought forward, to explain how necessary it was because of the wrong decision made by the Conservative Home Secretary. I do not think that it is a wrong decision, but they have not appeared. They have totally lost interest and left it to their Government to defend this singularly inept and ill-conceived Bill.
Hon. Members have rightly drawn attention to the main nub of the argument, the discretions under Clause 4. What we are concerned about—and it is disgraceful that no one should be concerned about this on the other side of the House, apart from the hon. and learned Gentleman the Member for Liverpool, Edge Hill (Mr. A. J. Irvine)—is that these discretions are to be in the hands of either the courts, the High Court and the magistrates' courts, or the Home Secretary, or both. What strikes me is that this objectionable feature in the Bill is quite unnecessary. We are informed that the Bill is based upon the recommendations made by the conference of Law Ministers of the Commonwealth which met last April. That is all very fine and dandy, but if my information 1173 and recollection are correct what the conference said in Section 9 paragraph 6 of their scheme was:It will be sufficient compliance with any oneof certain paragraphs which discuss the discretions recommended as embodied in Clauses 4 and 8,…if a country decides"—and we are now making that decision—that the competent authority for the purpose of that paragraph is exclusively the judicial authority or the executive authority.What we ought to hear from the Government is why this peculiar decision to confuse the functions of the Executive and the judicial authority was made.
Why have the courts been drawn into this singularly invidious question. It seems that, so far as there should be a discretion on these matters of opinion and judgment, they are matters which are preeminently not matters to be decided in a court of law, which has firstly to decide whether the law of Parliament is to be interpreted this way or that, and secondly, whether the facts before the court are proved under that law. A court is concerned with law and with facts. Clause 4 is concerned with judgment, opinion, rumour, suspicion, accusation and political motive. Those are matters not coming within the jurisdiction of any court, quite properly, in any civilised country, and the extraordinary precedent being created is one which I should have thought would have been regarded with equal horror in every Commonwealth country as well as here.
It is a pretty sad prospect to see that, with the honourable exception of the hon. and learned Member for Edge Hill, no one on that side of the House seems to think that this fundamental principle of the rule of the law ought not to be violated in the Bill. I do not see how the hon. and learned Gentleman the Under-Secretary of State can commend this as a principle which we ought to uphold. He has already breached the rule of law in defending his Order the other day when it was pointed out that the Order was saying "What we say goes, whether or not it is right". I do not see how he, as "one of Her Majesty's counsel learned in the law", can now take this course. How can he 1174 possibly get round the principle laid down in 1896 by Lord Russell of Killowen in the case of Arton, whom it was sought to extradite? Lord Russell said that the motive behind the attempt to extradite Arton was political, and he refused to enter into the whole matter. He said that this in the first place called into question the integrity of the institutions of a friendly state, but in any case it was something which no court of law could possibly decide and that there were matters which must be decided where they belonged, in the political sphere.
It is bad enough for the Government to put this odious onus upon the High Court, but they have also imposed it upon magistrates' courts. We talk deferentially about the Bow Street magistrate and the learned stipendiary, but such a case could go to any magistrate in the remotest corners—I will not say in Scotland or Wales, because I am sure that they would be admirably up to task there—but in the remotest corners of my own county of Essex. I am sure that there would be no one on the bench there who would not deal with it as well as it could be dealt with, but it is an impossibility.
It is surely putting a terrible task upon magistrates in a small English country court to have to decide whether the political parties in Ghana, Tanzania, or Malawi are really secretly applying to commit judicial murder against a political opponent and are thereby accusing him of having embezzled accounts in the country. It is a matter not only beyond the proper jurisdiction of the court but beyond its possible competence to inquire into. I cannot help agreeing with my hon. and learned Friends who say that this Bill will make the country and our courts the cockpit of parties in the emerging Commonwealth where their politics and their law are unfortunately interwoven in a way that they have not been interwoven in this country for almost 500 years.
I cannot understand the political principle behind the Government's introduction of this. Did they have no influence upon the Law Ministers of the Commonwealth when they met to discuss this? Without being patronising, they might have explained the distinction between political action in the courts of law. They ought surely to have explained that the function of extradition was to prevent foreigners from defying the law of their own country and seeking refuge in 1175 another. It had absolutely nothing whatsoever to do with political animosities which might develop and be translated into bogus legal charges.
I thought that the Enahoro decision was absolutely right. I am sure that my right hon. and learned Friend, who took a large measure of responsibility and of the odium for that, will agree that the principle which guided the Conservative Home Secretary at the time was that a Commonwealth country, with properly constituted courts, was competent to try a case which prima facie had no political overtones, and therefore it would have been highly wrong to have looked into the political aspects, if there were any, and to have refused extradition.
Equally, the Home Secretary was wrong not to allow Mr. Kwesi Armah to be extradited. I cannot help reflecting—possibly this is terribly unjust, but it is an unjust world—that it is a curious thing that hon. Gentlemen opposite wanted Enahoro sent back but they did not want Armah sent back. I cannot help feeling that their judicial judgment in that case was somewhat influenced by the fact that they saw Enahoro as a figure basically opposed to a friendly, sound and, one might say, Conservative, African Government in Nigeria, and they see Armah as the friend of the Socialist emperor dethroned, and as one who would then be at the mercy of those who had dethroned him and who are far from the Left-wing Messiahs which the party opposite always like to see emerge.
§ Mr. Hooson
I rise to raise a factual point. It is my understanding that the Labour Party was much opposed to Enahoro being sent back.
§ Mr. Iremonger
Exactly. I think we were right to send him back, and the party opposite were wrong to oppose it. They are wrong to have refused to send Armah back. It seems a funny thing, that hon. Members opposite always protect opponents of African Governments which broadly seem to be in favour of maintaining the British Commonwealth, as opposed to the emergent African organisations.
§ Mr. R. J. Maxwell-Hyslop (Tiverton)
What I understood my hon. Friend to say was that the Opposition were at the 1176 time in favour of Enahoro being sent back, but were opposed to Armah going back. I think it is quite obvious that my hon. Friend did not mean that. I point it out so that he may correct his own record.
§ Mr. Iremonger
I am most obliged to my hon. Friend for giving me the opportunity to correct my record. I leave it to him. I am most grateful to him for having done so. He has obviously taken my point better than I had myself.
We on this side of the House have expressed misgivings about the Bill, which should never have been promoted. The misgivings are entirely due to a lack of judgment on the part of the Government in allowing the Law Ministers' Conference to take the shape that it did. These recommendations should have been strangled at birth. To have introduced them into this legislative monstrosity is a terrible dereliction of their duty.
I hope the House will not allow the Bill to go through. If it does go through, then I hope that the Government will take note in Committee of the misgivings which have been expressed, and that the anomaly in Clause 4 of putting into the jurisdiction of the courts matters which are essentially matters of political judgment, will be corrected, and that we shall not start down the slippery slope of enacting laws based on the ill-conceived prejudice of inexperienced Commonwealth members.
§ 6.34 p.m.
§ Mr. Charles Doughty (Surrey, East)
I regret that I was not in the House to hear the opening speeches on the Bill. I was engaged elsewhere. However, I have come here now to say a few critical things about the Bill.
It is intended at a later date to extend its provisions to the Republic of Ireland. My recollection is that it was not so long ago that we had a Bill providing for the mutual backing of warrants between the Republic of Ireland and this country.
I should like to refer to the first prominent explanatory memorandum in the Bill and to ask why it is necessary to have this extradition procedure between the Republic of Ireland and this country when we already have this mutual backing of warrants already arranged? I say that by way of introduction. My second point is 1177 that I well remember not so long ago when this House was seething with views expressed on the return of Chief Enahoro, views expressed on the rights and wrongs of the case. It would be wrong for me to go into them now, and I do not propose to be out of order by doing so.
The Conservative Home Secretary of the day took, according to the law of the day, the only course that was open to him under all the circumstances, but when the Socialist Opposition of the day sat on these benches the noise was almost deafening. The Speaker of the day had difficulty in maintaining order. Yet as a consequence of that, who from the party opposite is now in the Chamber to express his approval of what the change of Government has brought about? Apart from one hon. Member opposite, who recently entered the Chamber, there is no one on the back benches to express his approval of the change in the law. Therefore, one is tempted to say that perhaps their anger in the Enahoro case was a little feigned.
I wish, like other hon. Members, to refer to Clause 4. I cannot imagine how the Law Ministers could have come to these conclusions. The conference was insufficiently publicised. One does not know who was there. The conference took decisions which were binding on this House, and we are told that it would be wrong for the House to do anything but accept the Bill as it stands and we should let it go through by mutual Commonwealth agreement. That is not exactly what the House always likes.
There are reasons as set out in Clause 4 why Commonwealth citizens cannot be returned to their own country. Those to whom this applies, and to which I shall refer in greater detail in a moment, is a matter which has, firstly, to be decided by the Secretary of State. The Clause does not say in what Order these decisions should be made. I assume, perhaps wrongly, that the Home Secretary makes the decision, and, if the decision is against the person who has been arrested and who is about to be returned, there is a kind of appeal from the Home Secretary to the High Court, although probably the court of committal is, in the meantime, considering the matter. I say that because one knows how this kind of machinery works. There is nothing in the Bill providing for it. During the 1178 proceedings of the court of committal, the Home Secretary could say, "I have decided under Clause 4 that you, the stipendiary magistrate, or bench of magistrates, must now proceed to release this man because I have made a decision under Clause 4." That is bad drafting, because we do not know in what Order the matters will come.
In Clause 4(1,a) there is reference to an offence, for which a person is accused and convicted, "of a political character". It may be that in the last century this country received, either rightly or wrongly—only historians can decide—a number of what used to be called "political refugees". That meant people who were plotting against the Government of their own country. But my hon. Friends and I are plotting every day for the overthrow of the present Government, and one day we hope to be successful—but are we to be extradited from foreign countries because two or three of us were perhaps meeting abroad to plan the next move? This is ridiculous. Suppose that somebody commits one of the offences set out in Schedule 1. Is that the type of person to whom reference is made by the phrase "political offenders "?
If we look at Schedule 1, and remembering that attempts are included in the offences, what offences will be judged to be political offences? Take the offence of maliciously or wilfully wounding or inflicting grievous bodily harm. If that is committed against a politician in a Commonwealth country with whose political views one disagrees so strongly that one resorts to the use of firearms or a knife, can one say, "I did shoot him, I did hit him, but since I disagree with him politically and have been active in my political disagreement with him in my country this is a political offence and therefore I demand the right to remain in this country and to join other political assassins who have found refuge here"?
Suppose that I were to marry the wife of the Prime Minister in another country and that that amounted to bigamy. Would that be a political offence? Under Schedule 1 there are ridiculous cases in which it may be alleged that the offence was political. Suppose someone steals £30,000 in another country and brings it into this country and it is said that it was a political offence because he proposed 1179 to maintain people of his own political beliefs while they are over here and arrange for their sustenance. One sees the ridiculous questions which will be before the Home Secretary which he will have to decide before the matter even gets to the courts.
How will the Home Secretary decide them? He will have before him only the statements of the accused person, although he can ask the country concerned to send as much information as possible. The courts will be in the same position. The judges will be in an impossible position. They will have to hear evidence about the political conditions in every country and about the political activities or inactivities of an accused person and then perhaps decide that the political nature of the offence against the Government concerned was so laudable that the person must not be extradited. I think that the judges would, and must, refuse to decide such matters and will say, "This is a political question and it must be left to the political Home Secretary".
Clause 4(1,b) provides that a person shall not be returnedfor the purpose of prosecuting or punishing him on account of his race, religion, nationality or political opinions.We know that in Nigeria the other day there was serious trouble between the different races. No doubt people took an active part in suppressing or activating those racial troubles. If their side happened to be losing, no doubt they would come to this country on the grounds of safety. In such circumstances, would there be a long hearing in this country with the presentation of evidence about the history and facts of the racial differences and of what happened when the dispute—I use the word in its physical sense—broke out. Would people who came here and who were charged with an offence of violence in that country be able to say that it was to pay off an old personal score and was of a political character?
I ask the Government to look at this and to consider what they are asking to be done not only in this country, but in Commonwealth countries, because the same thing will happen in reverse. If we apply for the extradition of somebody from 1180 the Commonwealth and the accused person says, "My offence is of a political character. I am a well known Conservative in my country and we have a Socialist Government", then that Commonwealth country will be able to inquire into the political situation in this country and decide that the return of the person here would be for the purpose of prosecuting him or punishing him on account of his political opinions.
I do not think that the people of this country will appreciate that very much. They will be told that Parliament passed a law giving power to do this after a conference of law Ministers. It will be asked, "What are you complaining about?"
Clause 4(3) also provides—I am paraphrasing it—that a person, after his return for one offence, shall not be charged with another offence unless it is a lesser offence or the Secretary of State consents to his so being dealt with unless he is offered the chance of returning to this country. Take, not an offence of a political nature, but a big fraud case. Suppose that extradition is requested on a charge of embezzling £5,000, that the evidence is substantial and that extradition is ordered. He may find when he gets back that after the accountants have looked fully into the matter there are ten other charges of embezzlement laid against him. Perhaps the evidence on the other counts may be stronger. The country is prohibited from extraditing him except with the consent of the Secretary of State unless it gives him the opportunity of returning to this country.
These are important matters. Drafted as they are in a Bill like this, or when they form part of a speech by a Minister or a back bench Member—we are remarkably short of them on the benches opposite today—they may seem all right. but when they are worked out in practice the people who have to apply them will be in an almost impossible position. If they decide in favour of the accused person, they will find themselves the cause of very strong feelings in the country applying for extradition. I advise the Government to look very carefully into these matters before they pass the Bill.
§ 6.48 p.m.
§ Mr. Walter Clegg (North Fylde)
I, too, apologise for not being here during 1181 the Front Bench speeches. Unfortunately, I was engaged elsewhere, but I have listened with great interest to what has been said by my right hon. and learned Friends. I agree with them that difficulties are bound to arise in administering the Bill. It may create difficulties such as were encountered in the Enahoro case and other cases.
I am particularly concerned about offences which could fall within "relevant offences" but which were offences of espionage or treason. Among the offences under item No. 18 in Schedule I is stealing. These days many atomic secret plans and such things are stolen. There could well be a political implication behind stealing. A Canadian, for instance, who was motivated politically—because politics cross boundaries these days—may steal State secrets from the Government and then come to this country and extradition may be demanded.
In such a case the Queen of Canada, through her Government, would be demanding from the Queen of the United Kingdom the return of somebody who had, perhaps, committed a treasonable offence, or certainly a political offence, against herself as Queen of Canada. This could cause grave embarrassment to the British Government and the British people. It seems almost inconceivable in the present circumstances that such a man, whose offence may have been political, would not be returned even though it were a political offence. Dangers such as this can arise and difficult decisions will have to be made by future Home Secretaries.
Clause 4 has agitated several of my hon. Friends and I am equally agitated by its provisions, especially in paragraphs (b) and (c) of subsection (1). A solicitor looks on this rather differently from a member of the Bar, because he has to prepare a case; he is the one who has to go out and get the evidence. Solicitors will know that courts act only upon evidence. Solicitors will have an enormous task in producing this evidence to a Court.
As has already been said, when a court has to decide upon that evidence it will be put in the position of criticising courts in the rest of the Commonwealth, which it will fin I most distasteful and on which it will find it almost impossible to reach a true answer. My hon. and learned 1182 Friend the Member for Solihull (Mr. Grieve) said that these cases could last a long time. Indeed, they would have to last a long time if the facts that were necessary to come within the provisions of the Bill were to be established before a judicial body. I see great practical difficulties ahead.
I do not intend to detain the House long on this matter, but one part of Clause 4(1) in paragraphs (b) and (c) slightly worries me. This may be a Committee point, but I may not have another chance of making it. I refer to the colour of a man's skin. Paragraphs (b) and (c) use the wordsrace, religion, nationality or political opinions".Does that include colour? There could be difficulties here. Kenya, for example, like other African States, is trying to build a society in which a man is not a white or a black Kenyan but is a Kenyan. When a man is asked what is his race, he replies, "Kenyan". Equally, in this country there are many people of Pakistani or West Indian origin who were born in this country, and I hope that in future we will look upon their race as British.
This matter might well be examined to see whether the word "colour" should be included, because I am sure that hon. Members in all parts of the House would not want a man to be extradited if because of the colour of his skin he could not get a fair trial; and there might be legal argument about the exact meaning of "race". I am certain that in this country there are many Huguenots, or, indeed, Jewish refugees, who would look upon themselves and their race as British. I therefore ask the Minister when he replies to the debate to help us on this point and, if there is substance in it, to bear it in mind.
I repeat that the Bill is likely to cause as many difficulties as it attempts to settle. If the Home Secretary lets it go through in its present form, before his term of office expires he may well be confronted with some delicate and dangerous situations.
§ 6.54 p.m.
§ Sir Douglas Glover (Ormskirk)
I have the advantage of having heard the Home Secretary present his Bill to the House and my right hon. and learned Friend 1183 the Member for St. Marylebone (Mr. Hogg) in an able and remarkably cogent speech, cast a lot of doubt, even in the Home Secretary's mind, about the wisdom of introducing the Bill. I do not go as far as many of my hon. Friends in saying that we should vote against the Bill because I appreciate, like my right hon. and learned Friend, that after a Commonwealth Conference, politically the Opposition's powers of manoeuvre are strictly limited.
It is, however, a strange change in the Socialist Party that when they were in Opposition they were full of the defence of the rights of the individual, defence of the rights of minorities, and protection against the aggressive Executive for the person who suffered injustice, but that now, when they are in power, they show remarkably little enthusiasm for that task. It is a disgrace that a Bill which is connected with this matter today has drawn so little response from members of the party opposite.
A minor but important aspect of the Bill is its Title. The Bill is called the Fugitive Offenders Bill. In presenting it to the House, the Home Secretary said that the Australian Parliament had already enacted a Bill in similar terms. I thought, however, that the Australian Parliament showed a great deal more sense because, while I cannot remember the exact wording, the Bill in Australia was an Extradition Bill.
There is something rather strange when one considers so-called political fugitives today who very often have a suite at Claridge's but are looked upon as fugitives. The word "fugitive" connotes somebody who is hidden away secretly and in fear of all the population. I therefore ask the Home Secretary whether it is not too late to give the Bill a different Title than that with which he has presented it to the House. Perhaps the right hon. Gentleman could amend it in Committee. The Bill would be much more realistic if it had a different Title and talked much more about extradition.
I accept that the Under-Secretary of State attended the Commonwealth Law Officers' Conference. I hate to say so, but I feel compelled to suggest that he may have fought a very strong losing battle. I hope that when he replies to 1184 the debate tonight, he will tell the House whether that was the case, If, however, he did not fight a strong losing battle, if he accepts all the conclusions of that Commonwealth Conference, I cannot congratulate him on his efforts on behalf of justice. As my right hon. and learned Friend the Member for St. Marylebone pointed out in his very able speech, there are an enormous number of dangers and difficulties in the Bill.
I should like to know from the Under-Secretary why the Commonwealth Conference did not virtually take on the Act of 1870—not of 1881—which, as far as I can make out, has for nearly 100 years worked with very little controversy across the Floor of the House. Commonwealth countries are just as independent of this Parliament and are in no different position from nations like France, Italy or Holland. They are entirely independent. If the 1870 Act, which dealt with equal States, has worked perfectly satisfactorily, why is it necessary, when altering the law to deal with the Commonwealth, to bring in a Bill which has so many disadvantages compared with the 1870 Act?
I hope that we shall get a satisfactory answer tonight to the point put by my right hon. and learned Friend concerning the question of murder. Suppose that there is a prima facie case alleging that someone at present in this country has committed a revolting murder in his own country and has a long history of violence. As I understand it, the Home Secretary will not grant extradition, because in that person's country, the death penalty is still operative whereas in this country we have, wisely or unwisely, done away with it. It may be a strong prima facie case of sexual murder, or it may involve all sorts of horrible crimes. Yet that person will not be extradited but will remain a free person in this country, perhaps able to carry out exactly the same crime or crimes that he is said to have committed in his own country. [Interruption.]
The hon. Member for Nelson and Colne (Mr. Sydney Silverman) intervenes from a sedentary position, but I will answer him. The point is that the person about whom we are talking has, prima facie, committed a murder, and his own country wants him extradited so that he can be tried for murder, which still carries the death penalty in his 1185 country. That is the only reason why the Home Secretary refuses to grant extradition—
§ Mr. Sydney Silverman (Nelson and Colne)
May I, first of all, apologise to the hon. Member for Ormskirk (Sir D. Glover) for making an intervention, not having asked him to give way? I was really making a comment to myself and had not intended it to be overheard. However, since it has been overheard and replied to, may I ask the hon. Gentleman if there is not something unreasonable in the proposition that, if we would not execute a man for an offence committed in this country, we should extradite him to another country in order that something which we would not do ourselves might be done somewhere else?
§ Sir D. Glover
With the greatest respect, the hon. Gentleman has not got the point. If the man was charged and tried in this country, he would probably be sentenced to 30 years' imprisonment. He would not be allowed to go round the highways and byways of the country repeating the crime for which his own country wished him to be extradited. In any case, at the time when the request for extradition is received, no one can say whether he will be found guilty in his own country. It may be that the court which tries him will find him guilty. It may be that it will find him guilty, but of diminished responsibility. We have no surety in our minds that, if we grant extradition, the man will be executed. All we know is that in a Commonwealth country, he would suffer the penalty imposed by a court of law which we consider to be paramount with our own and by a judicial system with all the knowledge of and based on our own long historical development of the law. He would suffer the penalty that the judges in that country thought that he should suffer.
Under the Bill, the Home Secretary would not grant extradition to a Commonwealth country which still had the death penalty. It might be only vestigial. In Australia at the moment there is a case which is causing a great deal of public concern. Australia has the death penalty, but 95 per cent. of people found guilty of murder are sent to prison. The probability is that, if the case which we are citing were tried in an Australian 1186 court, it would result in only a prison sentence. However, because the death penalty is still operative in Australia, as I understand it, the Home Secretary would not grant extradition.
§ Mr. Stanley Orme (Salford, West)
May I remind the hon. Member for Ormskirk (Sir D. Glover) that certain States in Australia do not have the death penalty? The State in which the recent execution has taken place is one where it is still operative. The position might arise of deciding whether to extradite one man to an Australian State where he might be executed and another man to a State where he would not be. That is the dilemma in which the Home Secretary might be placed.
§ Sir D. Glover
That makes the Home Secretary's position even more delicate. If the man comes from a State in Australia where they do not have the death penalty, he will grant extradition. If the man comes from another State where they have retained the death penalty, he will not be extradited and tried. It must not be forgotten that, in the case of Australia, we deal with the Federal Government and not with State Parliaments. How in logic could the Home Secretary justify his decision to the Federal Government in Canberra? Would it not appear as though we were prejudging the issue before it was ever brought to a court of law? My right hon. and learned Friend made an overwhelmingly powerful case that that is not the sort of reason on which we could refuse extradition.
I hesitate to intervene in this debate because I am not a lawyer, and this seems to have been a lawyers' paradise. It must be a long time since so many "silks" have spoken in one debate in such a short time without pay.
Having read the Bill and listened to the speeches, it seems to me there is a great danger of a division of opinion growing up between the Executive and the law, and it is a division which is not necessary. What it comes down to is that it would be far better even now for the Home Secretary to say, having heard few speeches in support of the Bill, that the Committee stage should be delayed. I agree with my right hon. and learned Friend that we should not divide against it, but the Committee stage should be 1187 delayed so that the Commonwealth Conference can be reconvened to reconsider the whole matter. The alternative is to make the law affecting the Commonwealth even more difficult than it is at the moment.
Let us consider Schedule 1. The first of the "relevant offences" is "Murder of any degree". I have referred to that already. Then one sees,An offence against the law relating to abortion.The question which springs to one's mind immediately is which law. At the moment, we are dealing with the Medical Termination of Pregnancy Bill. In reaching a decision, will the Home Secretary consider whether the accused person has committed an offence against our present law, against the law as it may be in three months' time, or against the law of the country concerned? Again, the term "abortion" is a very wide one. What is abortion? The Home Secretary will be obliged to make a political decision.
Another of the relevant offences is,Unlawful sexual intercourse with a female.In this country, it is unlawful to have sexual intercourse with a female who is below a certain age. However, in a lot of Commonwealth countries, people reach physical maturity at a much earlier age, and what would be rape in this country would be normal sexual intercourse there. On which basis will the Home Secretary work—the law of this country or the law of the country requesting extradition?
§ Mr. Speaker
Order. I think that the hon. Gentleman is now coming to points which might best be dealt with in Committee.
§ Sir D. Glover
With great respect, Sir, we are debating the Second Reading of the Bill. The whole basis of these points is whether the whole matter should not be taken back to another Commonwealth Conference before the Bill is proceeded further with. It is from that point of view that I raise these points. I therefore hope that I shall have the support of the Chair.
Take bigamy. Will the Home Secretary reach a decision on the basis of the law as it is here or as it is in the country concerned? Many Common- 1188 wealth countries have a majority of Islamic people, who are entitled to four wives. What is bigamy?
I accept your Ruling, Mr. Speaker, and will not go into any more detail, except to cite the offence of counterfeiting currency. There has been a recent case concerning Rhodesia, which admittedly is a very special case, because at the moment Rhodesia is outwith the law. It has been held by the German courts that the currency in question is perfectly legal.Therefore, what is counterfeiting?
There is a well-tried system which has worked for 97 years and on which we have based our dealings with ordinary sovereign States. Nearly all the Commonwealth countries have now become sovereign States. Surely when we are altering the law we should be altering it so as to bring it into line with the procedure that we have for our dealings with other sovereign States and should not, at this late stage, be bringing in a separate procedure for the Commonwealth. If we were debating a Bill to the effect that the provisions of the 1870 Act were to be applicable in future to the Commonwealth, nearly all the criticism the Home Secretary has heard today would not have been expressed.
The hon. and learned Gentleman the Under-Secretary will have a very sticky time of it in winding up. He will have to try to justify his activities at the Commonwealth Conference which produced this abortion of a Bill, a Bill which will produce more anomalies than it will clear up, a Bill which will make the Home Secretary's job more difficult than it was—it was difficult enough before—and a Bill which will produce far more Enahoro-type and Kwesi Armahtype cases. The Home Secretary will in future be making more political decisions than he has done in the past.
The hon. and learned Gentleman, who attended the Conference, will have to try to justify the Bill, not on the basis that he was out-voted or out-discussed, but on the basis that he thinks that what we are doing will produce an improvement and will be better than anything we have had in the past. Surely all that the Conference needed to discuss was whether the countries concerned would like to bring the Commonwealth into 1189 line with the 1870 Act, which applies to the vast majority of our dealings with the extradition of political offenders and criminal offenders and which works with such smoothness that in my 14 years in the House I do not think that I can remember a debate which aroused any heat when it was a question of an alien being deported either for some criminal offence or even for a political offence, because that is a far more sensible system than that which we are now trying to foist upon ourselves as a result, I am sorry to say, of the weakness of the hon. and learned Gentleman, who represented this country in Canberra last year.
I do not think it is too late. Nobody wants to start a political storm on this. This is a Bill which could be left lying on the Table after its Second Reading whilst the Government called another conference to try to get adopted the system of the 19th century. Then, having achieved that agreement, the Government could put the Bill into Committee and alter it so that it fell in with those requirements. If the Home Secretary were able to do that, he would be doing a very much better job than we shall achieve if the Bill becomes law.
§ 7.15 p.m.
§ Mr. R. J. Maxwell-Hyslop (Tiverton)
There is one point which I do not think has been mentioned. I am sorry if to some extent I have been shuffling between here and another place, where the Torbay Order, which closely affects my constituency is under consideration. I do not notice in Schedule 1 any mention of the offence of espionage. Under Clause 4, this must be the most serious single offence, short of political assassination, which has a political element in it; but it does not appear in Schedule 1.
What is the position of a fugitive in this country from a Commonwealth country who is guilty, or prima facie guilty of espionage in that Commonwealth country? This question has taxed us before now. There was the case of Mr. Sobelivicius—I think that at the time he was calling himself Dr. Soblen—a man who did not have American nationality thrust on him. He sought it as a privilege by naturalisation and took on obligations as well as privileges by so doing. He then came to this country as a fugitive from the justice of the 1190 country whose nationality he had voluntarily sought.
I should very much dislike being party to passing a Measure which made this country a resort for fugitive spies from Commonwealth countries. This is a particular source of worry to me because, having listened to the Home Secretary, I am still not clear how, under Clause 4, the political element will be determined. Nobody could contend that the offence of espionage was innocent of any political content. Unless it is entirely due to blackmail or bribery, it is generally the political element which is, if not dominant, at any rate present to a major degree.
I can foresee the Home Secretary being faced with the very difficult problem, if he is saddled with the Bill as drafted, of what to do with a fugitive spy from a Commonwealth country. All that the fugitive will have to do will be to say, "I was acting from political motives", and then plead that he has the right to remain here as a fugitive from the justice of his own country. This country has had quite enough espionage cases to bring it home to all of us that this is not a theoretical consideration. We must live with it, and we can expect to have to live with it for a long time. Canada has also had major cases of this kind.
I am sorry that the Home Secretary is not numbered among the three supporters of the Government who think it right to be present in the House at this moment to give advice to the Under-Secretary. However, there is one Government supporter on the back benches, so perhaps he could be sent to get advice on this point. I, for one, should be extremely sorry if, as a possibly unintentional result of the Bill, the United Kingdom or, under Clause 16, the Isle of Man—the Isle of Man would be much more attractive because Income Tax rates are much lower there—were to become the resort of people who were being chased by the counter-espionage services of Commonwealth countries. Espionage is, after all, par excellence the offence in respect of which the prosecuting authorities do not immediately pounce. It is not like murder, or burglary, where, as soon as they are reasonably sure that somebody is suspect, they pounce. With espionage there are particularly good reasons for holding back in the hope that the person 1191 who is believed to be guilty will lead the investigating authorities to other persons in the ring. Therefore, it will be easier than would be the case in other offences for the person concerned to avail himself of the opportunity of escaping out of that country as long as he can find somewhere to which he may safely resort. Let the place to which people from Commonwealth countries who are guilty of espionage can safely resort not be the United Kingdom.
§ 7.21 p.m.
§ Sir John Hobson (Warwick and Leamington)
This has been a remarkable debate in many ways. It is plain to the House that the Bill has no friend except the Home Secretary, and no doubt it will have the Under-Secretary of State who is, I think, its putative father. Nobody else has spoken in favour of the Bill. Every speech that we have heard has been critical of it, and a great number of very important issues and difficulties have been raised in the course of our discussions.
It has also been a remarkable debate in that this is a subject which, when in opposition, the Labour Party regarded as of the utmost importance, and yet throughout this debate today we have had on the benches opposite nobody except the Home Secretary, his Under-Secretary, a Parliamentary Secretary, and the Whip on duty. Apart from an occasional look-in by one or two others, the benches opposite have been utterly and totally deserted.
It does not stop there. On a matter of this nature, which affects the interests of this country in so many different ways, during the whole of the debate we have not had, and are not to have, the assistance or advice of either of the Law Officers, nor have we had a representative from the Commonwealth Relations Office, apart from the Secretary of State himself who looked in at 7.10 and left at 7.11. I regret that a matter of this considerable importance and difficulty—because I think that this is a very difficult topic—should have been treated in this way by both the Government themselves, and by their supporters.
I was particularly glad that we have not had a debate exclusively confined to lawyers. I think that when discussing 1192 difficult topics, particularly those of principle, even though they involve largely legal procedural matters, it is of great assistance to the House to have the views of right hon. and hon. Members who are not members of the legal profession. Today my hon. Friends the Members for Ilford, North (Mr. Iremonger), Ormskirk (Sir D. Glover), and Tiverton (Mr. Maxwell-Hyslop) have assisted the House by expressing their views and their anxieties.
I share very much the views of my right hon. and learned Friend the Member for St. Marylebone (Mr. Hogg). I have very considerable doubts about many of the provisions, and indeed the fundamental principles, of the Bill, although I hope that I may be mistaken.
As has been said, it is plain that this Bill has come out of the Commonwealth Law Minister's conference in May of last year. To this extent it places the Opposition in considerable difficulty in voting against a Bill which has apparently received the approval of the Commonwealth Law Ministers, although I hope that it will place no inhibitions on either myself or any of my right hon. Friends in both criticising it today and perhaps trying to improve it in Committee.
I have never understood that countries of the Commonwealth—or other international countries—are bound by a scheme which is recommended for consideration by a conference of law officers. The foreword to the White Paper says:The Meeting accordingly formulated a Scheme setting out principles which could form the basis of legislation within the Commonwealth and recommended that effect should be given to the Scheme in each Commonwealth country.They were only making legislative recommendations. Has there, at Governmental level between the independent countries of the Commonwealth, been any agreement confirming that they intend, each and all of them, to implement the scheme which was formulated in Canberra? Furthermore, what is the position about Commonwealth countries who do not agree to implement the scheme? We were told that only one country so far, Australia, had legislated to implement the scheme. We have not been told that any other of the independent countries of the Commonwealth have approved, or adopted, or intend to adopt, this scheme.
1193 What is the position throughout the Commonwealth? How many countries have signified their intention to adopt the scheme? How many, as the Home Secretary said, are awaiting our example to adopt a Measure which has gone through this House and are, therefore, reserving their position until they see what we do? How many, if any, have expressed distaste for this method of procedure and apparently do not, or seem likely not to, wish to adopt this scheme? I would be grateful if we could be told something about the situation which exists among other Commonwealth countries.
If we do pass this legislation, how do the Government envisage it operating? Presumably under Clause 2 they will designate such Commonwealth countries as have, first, passed legislation, and, secondly, are prepared to put the scheme into operation and make orders similar to our own. But from the moment this Bill becomes law the Fugitive Offenders Act will be repealed. What will happen about the return of prisoners in any transitional period between the passing into law of this Bill and the passage into law within another Commonwealth country of similar legislation?
What will happen if a Commonwealth country does not adopt legislation similar to this Bill? What will happen if it is unhappy with this scheme and either passes other legislation, or does not pass legislation to implement the Law Ministers' scheme? What will happen in the period after the Fugitive Offenders Act has been repealed? How will the Government of this country deal with requests from another country to return its prisoners? How will they endeavour with such countries to obtain the return of our fugitive criminals who have fled to those countries?
Clause 2(3) seems to be in a rather surprising form, in that it gives the Government of the day complete and absolute legislative discretion, by delegated legislation, to make any different scheme which they please in relation to any independent country of the Commonwealth. It may be that this will give the necessary elasticity. It may be that the chances of a general agreement are so remote that it is necessary to pass a general scheme and then give the Executive of this country power to make a different scheme to suit the needs of one or more of the indepen- 1194 dent countries of the Commonwealth. Am I right in thinking that Clause 2(3) gives complete latitude to the Government, subject only to the Parliamentary negative procedure, to amend, alter, or adopt any scheme which they please, however different it may be either from this Bill or from the Extradition Act, 1870?
I think that the Home Secretary indicated something of the way in which he expected the Colonies to be dealt with. There is a double problem as between the Colonies themselves and between the Colonies and this country. Can any indication be given whether there will be two grades of Colony—one, perhaps, self-governing, with a legislature of its own, who will put this scheme into operation almost in its entirety, and the other, which does not have its own legislature, or is run more closely from Whitehall? What will be the difference in the two schemes? What sort of schemes are envisaged for Colonies which do not come within, or to whom there is not be be applied, the provisions of this Bill?
Since we must look at the variety of arrangements which have to be made. I want to raise the question of the Republic of Ireland, which has been referred to by my hon. Friends. As I understand it, the legislation operating between Eire and this country enables us, by the backing of warrants, to exchange prisoners in a way that has operated substantially since 1848, if not earlier.
Do the provisions for the return of prisoners between the Republic of Ireland and this country provide that a criminal who is alleged to have committed a crime of a political character cannot be returned, for instance, to Southern Ireland? Could a person who had committed a criminal offence of a political character in this country find refuge in Dublin and not be extradictable to this country? When considering relationships between this country and the rest of the Commonwealth it is also relevant to consider relationships between this country and a country which is not even a member of the Commonwealth.
As I understand the position, there is a free exchange of prisoners between this country and Southern Ireland, and no inhibitions to be found in Clauses 4 and 8 apply in respect of the exchange of those persons required to stand trial for offences 1195 in this or that country. The provisions of Clause 17, which deals with the Republic of Southern Ireland, concern the relationship between the Colonies and dependencies of this country and the Republic of Ireland, and it was presumably with the agreement of the Republic of Ireland that we put the Colonies into the odd position of being able to have with Southern Ireland arrangements exactly similar to those which they would have with members of the Commonwealth, even though Southern Ireland is not a member of the Commonwealth and even when this country cannot deal with it as a Commonwealth country but must exchange political prisoners with it.
How is the arrangement which is intended to operate between independent countries of the Commonwealth—and, if necessary, our Colonies and dependencies—to be applicable as between those dependencies and Southern Ireland when it is not applicable between this country and the Republic of Ireland? Those are some general background questions which I shall be grateful if the Under-Secretary will consider this evening. I realise his difficulty in replying to questions at the end of a debate when he has many other questions to answer.
I now come to the principles which I feel ought to underlie a Measure of this nature. I find the situation much more difficult than many hon. Members seem to have done today. It is not sufficient to say that this country should treat the other independent countries of the Commonwealth exactly as if they were foreign countries. That is a wrong principle upon which to proceed, and to that extent I am sorry to disagree with several of my right hon. and hon. Friends. In considering the topic of the return of persons for trial in the country where they have committed offences it is necessary to consider the philosophy and the history of this matter—and the way in which it has developed.
It has always been accepted as an important interest of civilised mankind that criminals who have fled from one country to another should be either delivered up for trial in the country of their crime or punished by the receiving State There have occasionally been exceptions, when it was thought sufficient for the receiving State to insist upon such fugitive 1196 criminals quitting its shores. This principle has been generally recognised since the 17th century.
But since the time of the French Revolution, upon that general principle—with which probably nobody would disagree—there has been grafted another principle. France herself, at the time of the Revolution, was anxious to receive support from other opponents of existing authority, from wherever they might come. Since those days there has gradually grown up the principle, which has been applied by most countries, that there should be a right of political asylum for those who would otherwise suffer undeservedly.
The hon. and learned Member for Montgomery (Mr. Hooson) correctly stated the principle, namely, that it is to save people from suffering undeservedly that the right of political asylum has steadily been imported into international relations. For this country in the 19th century it was very easy to give effect to this principle, since England was then one of the most liberal countries in Europe and most of her neighbours were still suffering from despotism and authoritarian régimes. We were on the left of and more advanced than, any other country. It is very simple to say that one will grant political asylum to all refugees when they are pretty certain to be in conformity with one's views and to be attempting the same political objectives. We must also remember that in the 19th century travel was very difficult, and that the number of political refugees and distance they travelled were very small.
Asylum in respect of the commission of crimes of a political character in the modern age creates a very different problem. Travel by air all over the world is much easier, and the capacity to move is very much greater than it ever was before. In addition, England, at any rate, now finds herself—together with most other members of the Commonwealth—not to the left of other countries but in the centre. I hope that the Commonwealth and this country stand between the extremes of Fascism on the one hand and Communism on the other.
The political ethos of the Commonwealth depends upon a rejection of the extremes both of the right and of the left. To this extent, when we approach 1197 the problem of political asylum we find ourselves in a situation very different from that which existed in the middle of the 19th century. It is difficult for us to apply a general right of political asylum to anybody who has committed an offence of a political character in countries which are supposed to be in political harmony and alliance with this country.
I disagree, therefore, with my right hon. and learned Friend the Member for St. Marylebone, the hon. and learned Member for Liverpool, Edge Hill (Mr. A. J. Irvine) and my hon. and learned Friend the Member for Solihull (Mr. Grieve) when they say that the correct solution is to endeavour to assimilate the new law of this country to our extradition laws. That does not seem right to me, because the relationship between this country and the independent countries of the Commonwealth is quite different. We have a political alliance between ourselves and those countries. We owe a special loyalty to the other members of the Commonwealth, and, as my hon. Friend the Member for Hendon, South (Sir H. Lucas-Tooth) pointed out, there is the question of British citizenship and the allegiance which citizens of the independent countries of the Commonwealth owe, in a manner that applies to no alien.
Therefore, one has, on the one hand, the situation of a foreign country to which there is no known allegiance and no political alliance and there is no duty between this country and that, and, on the other hand, the situation that exists between, for example, England, Scotland and Northern Ireland, where there are different criminal laws, different criminal systems and different criminal courts, and yet no one would consider it proper to give asylum in England to a political refugee from Scotland because we have political unity and the furtherance of the political harmony of the parts of the United Kingdom is over-riding.
Further, if I am right in thinking that this principle is applied as between this country and the Republic of Ireland, which is not even a member of the Commonwealth—namely, that our political harmony and interests are so closely tied that it is essential that we should exchange political prisoners—why should we think that it 1198 is proper to refuse it to people who are in the Commonwealth with us and whose Prime Ministers attend the Prime Miniters' Commonwealth Conferences? Why should we treat the Government of such a country, when they want their political prisoners back with them, in a manner exactly similar to countries which are foreign to us, with which we have no particular alliances and no political allegiance and with which we are not endeavouring to carry on any political unity in world politics.
Grotius, the greatest international lawyer who has ever lived, long ago pointed out that one of the principal and most usual features of a close alliance between States was their agreement to return to each other those who had committed crimes which opposed their common purpose or which endangered the stability of one of their own numbers—that is, of course, particularly, and above all, crimes of a political nature. I think that it was this principle which informed the Fugitive Offenders Act, 1881, which is proposed to be repealed, and it is this principle that we are now abandoning.
It may well be that the position of the Commonwealth is now such that it is impossible to recognise that it is other than a loose confederation of states with no sufficient harmony, no sufficient allegiance and no sufficient loyalty to each other that we should come to the help of each other. If that be the position, let the House of Commons recognise it. But I for one deeply regret that it should be necessary to do so at this stage. The stage may come in the end when it is necessary to recognise that, but I certainly do not think that it ought to be recognised now.
There will be many situations in the future when for the political advancement of the Commonwealth it will be highly desirable that a Fascist or a Communist should be properly tried and should not be left at liberty and untried. That, however, may well be the result of this Bill. There will be many occasions, too, when it will be in the interests not only of this country but of the Commonwealth that those who have endeavoured to subvert a loyal ally of this country and a fellow member of the Commonwealth should be properly tried for their dastardly attempt to bring down a particular regime.
Also, is it not possible that by passing this Bill we are not only recognising the 1199 lack of any common loyalty or political alliance existing in the Commonwealth but also exposing ourselves, as has been said in the course of this debate, to a position in which we shall be bound to receive in this country, and will not be able to get rid of, those who have committed crimes of a political character in the Commonwealth? If they are Commonwealth citizens who have lawfully obtained permission to land in this country, will it not then be impossible, if they have committed a crime of a political character, to get rid of them out of this country by deporting them?
That was the course which was followed in the case of Dr. Soblen when he, being required for trial for a crime of a political character in America, arrived in this country. He could not be extradited, but he could at least be deported, and so we did not have to have the odium of keeping him here.
As I understand it, any Fascist, political extremist or agent of a foreign power who has resorted to a crime of a political nature but is a Commonwealth citizen can under the Bill expect to stay in this country if he can reach it. If so, we shall become the dustbin of the Commonwealth. This really is a prospect that I regard with a great deal of trepidation. It was all very well when travel was restricted and most of the political refugees were of a liberal or more Left-wing point of view than the countries from which they fled and their outlook by and large conformed to the outlook and politics of this country. But under this Bill, if we are not careful, we shall have the obligation of keeping in this country people who will be detestable to all parties of this House and to all people in this country.
I should like the Under-Secretary to tell me how it will be possible to get rid of a Commonwealth citizen who has committed a crime of a political character. Once we have decided not to send him back to the demanding country, whatever he subsequently does in this country it will be extraordinarily difficult either to send him back again or to deport him. If he has arrived in this country wanted for a crime of a political character or it is thought that he would be prejudiced if he were returned, and then he commits in this country a series of offences for 1200 which he might normally be deported, it will be wholly impossible for the Home Secretary to deport him back to the country which the Home Secretary has already decided wanted him for a political purpose or where he would be prejudiced in his trial by season of his race, religion, or political outlook.
I agree with my hon. Friend the Member for Tiverton that there really are some particularly anxious cases in the field of espionage. As I understand it, if this Bill had been passed and Canada had passed similar legislation, Mr. Fuchs and Mr. Pontecorvo, having got to Canada, could have stayed there and we could not have got them back because it is not even an extradictable offence under the Bill. If Vassall had got to Australia or if an Australian Vassall had got to this country, it would have been not only not an extradictable offence but an offence of a political character, and to this extent also he would have had permanent asylum in this country or in Australia respectively.
Suppose, again, that a political racist who was a Commonwealth citizen, for purely racist and political reasons, endeavoured to assassinate or succeeded in assassinating Mr. Kenyatta or Mr. Kaunda in his Commonwealth country. Is it right that he should be able to stay here wholly unmolested and that we should not be able to try him here or to return him for trial or to dismiss him from this country? If this is the result of the Bill, it certainly causes me the very deepest anxiety.
I agree with my hon. and learned Friend the Member for Solihull when he says that the idea of political assassination certainly ought not to be recognised by this Bill. I should certainly have liked to see in this legislation, and, as a matter of fact, in the extradition legislation, also a provision that political asylum is never available for the political assassin. I would ask the Under-Secretary whether we also have to keep a person who, by violent political crime, had attempted to subvert, for instance, the colony of Hong Kong and attach it either to Communist China or Formosa? Is it correct that such a person, if a Commonwealth citizen, could stay here with impunity and that we could not get rid of him? If so, that seems to be an utterly ridiculous result of the Bill.
1201 I think that there is a special relationship and a mutual interest between the members of the Commonwealth which itself justifies special provisions which are different from the Extradition Act. We ought to recognise the right of member countries to have the support of their fellow members and the duty of members of the Commonwealth to support each other when they are in danger.
I should have liked to have seen the Bill, if it is to be different from the Extradition Act, proceed upon the basis that it is purely and solely for the courts to decide whether an offence is or is not of a predominantly political character. This is largely a mixed question of law and fact which the courts are well able to decide. It is far better that it should be decided by the courts because it can then at least be known that it has been decided without any political motives by the Executive. It is much easier for the courts to decide it than it is for the Executive to decide it, because the Executive are always politically interested in the decision.
I have altered the test. I have said the test should be a crime of a predominantly political character. That is the test Belgium has always employed from about 1830, because when we get crimes partly political, partly criminal, it is difficult to disentangle which is the more important element. It is rather easier if murder is 90 per cent. sheer criminality and 10 per cent. political only. There ought not to be a ground of political asylum in such circumstances.
I should much prefer that the test should be whether it is of a "predominantly" political character. Once the courts have certified in each case whether the crime was or was not of a political character, then I would have suggested that in all cases the Home Secretary should have a discretion. He should be the judge according to the way in which the courts have certified. If it is certified to be a political crime then the Home Secretary should not grant rendition unless he is satisfied that it is in the interests of the safety and security of the Commonwealth, or in the vital interests of this country, or that it is essential for the stability of the demanding country, that the prisoner should go back.
1202 In other words, the Home Secretary should normally be expected not to return a man for a crime of a political character unless he is expressly satisfied that for overriding political reasons, in the interests of the Commonwealth, or of either of the two countries, the man should be given back. On the other hand, if the court is satisfied it is not a political crime, then I would have thought the Home Secretary should normally always grant rendition and not refuse the rendition unless he is satisfied that it is reasonable that the man should have sanctuary probably for the reasons set out in Clause 8(3).
If the criticisms of the Bill as it stands are correct it is because Clause 4(1) now provides that the Home Secretary should decide whether it is a crime of a political character or not. I am also equally in agreement with all my hon. and right hon. Friends who have said that it is contrary to the comity between the courts that the courts of law should have the duty of deciding under Clause 4(1,b) whether or not a request for the return of the prisoner is made for the purpose of prosecuting or punishing him for an improper reason, that the courts of this country, including magistrates' courts, should be sitting in judgment on the motives of the Government of the independent countries of the Commonwealth. That surely must be wrong.
The Clause 4(1,c) also must be wrong—to expect the courts, including again the magistrates' courts, to form a judgment whether the courts of the Commonwealth country will or will not treat a man fairly if he is returned. We are putting in the Bill a security, namely, that a man, on rendition, shall only be tried for an offence for which he is returned and must be given, if acquitted, the opportunity to return to this country. I should have thought we have got to the stage now where paragraphs 4(1,b) and (c) are not necessary, where we really can take the view that the courts of the Commonwealth are reliable. While there are exceptions—there are, perhaps, exceptions in one or two Commonwealth countries where things are not always done in as satisfactory a manner as might be expected—by and large we have to rely on the courts generally of the Commonwealth to dispense justice, and it is wholly wrong that the courts of this country should be in a 1203 position to form any judgment either about the motives of the Governments of independent countries or about the fairness and impartiality of the courts of the independent Commonwealth countries.
May I just raise some of the points also on the Schedule of the crimes? I see that some crimes have been added which are not extraditable—bigamy, smuggling of precious metals, silver, conspiring to defeat the course of justice. If we are going to have a system of this kind analogous to extradition, why are these particular offences added? I should also ask about the odd provision aboutContravention of import or export prohibitions relating to precious stones, gold and other precious metals.Why not exchange control generally? I should have thought a major interest of all the countries of the Commonwealth. particularly those which are members of the sterling area, was to secure the enforcement throughout the length and breadth of the Commonwealth of exchange control, and yet all we are having as an extraditable offence isContravention of imports or exports prohibitions relating to precious stones, gold and other precious metals.One would have thought that an exchange control system was one for general enforcement throughout the whole Commonwealth.
May I also ask the hon. and learned Gentleman a point about treason? What is the position about treason? Is it the fact that any person arriving in this country, who is a Commonwealth citizen and who has committed treason against Her Majesty in the right of Her Crown of any other country, cannot be extradited at all? As my hon. Friend the Member for Tiverton asked, is the question of espionage clean out? Is the situation that any spy who gets to this country from a Commonwealth country, whatever the political motive on which he has been acting, and whether acting for the West or for the East, whether for a Communist or a Fascist country, will not be returnable for his crime to the Commonwealth country? And is not that a bit odd?
Then a number of sexual offences are not in. We have extradition provisions for offences under Sections 11 to 13 of the Sexual Offences Act, 1956, which are extraditable to or from France or 1204 Germany or other foreign countries, but are not included, as I understand it, in the Schedule to this Bill. They include, amongst other things, sodomy, even with a boy under the age of 21, and if anyone is returnable for that to France, why not to a Commonwealth country? May I ask also whether consideration be given, before Committee, for conspiracy in connection with trade embargoes? Then there are industrial unrest, and the question of racial hatred. I would have thought that crimes connected with racial hatred were the one crime which should have been in the Schedule to the Bill. What about firearms offences and trafficking in arms? Is it right that a person in Africa who is trafficking in arms in a Commonwealth country is not to be returnable? Surely, that should be so.
Finally, I do hope the Government will, in Committee, give careful consideration to the question of political assassination of either the Head of State, or the head of a Government of a Commonwealth country. Surely we ought not in this country to accept without any remedy at all those who employ the weapon of murder for political ends. Nothing could be worse than that a person who has murdered either the head of a State or the Prime Minister of one of the countries in the Commonwealth should be able to come here and say, "You cannot return me to the country to stand trial because this was an offence of a political character". To this extent I hope that the Government in Committee will seriously consider whether that provision ought not to be amended.
I am bound to say that I am not at all happy about the Bill. I do not think that it proceeds on any recognisable principle. It does not adopt the Extradition Act, as it easily could have done; it differs from that Act in many features without any clear principle or upon any clear basis. If the Commonwealth is to have a different code from the ordinary Extradition Act, 1870, why do we not think out what are the implications of having a different code for political offenders?
Would it not be much better if we proceeded upon the basis that political offenders from Commonwealth countries should not normally be returned but that 1205 the Home Secretary should take the responsibility of returning them if it is essential in the interests of the Commonwealth or of either of the two countries that this should be done, whereas on other offences he should normally always return them but should have a quite general discretion not to return them if he deems it just or fair or reasonable not to do so. He would not then get himself into the invidious position in which the Bill will put him of making judgments as he did in the Kwesi Armah case under Clause 4(1,c) that clearly implies that he trusts neither the Government nor the courts of a friendly Commonwealth country.
§ 8.2 p.m.
§ The Under-Secretary of State for the Home Department (Mr. Dick Taverne)
I will start by telling the right hon. and learned Member for St. Marylebone (Mr. Hogg) how grateful we are for his approach to the Bill. It is entirely for the House to decide whether the Bill should be passed, but I am glad that he, at any rate, will take into account the fact that an agreement of a kind was reached at the Commonwealth Law Ministers conference. The House will, I hope, understand that it will be extremely difficult, if that approach is to be followed, to consider in Committee Amendments which are inconsistent with the principles of the scheme. If there is room for Amendments which do not affect the principles of the scheme, they can be considered.
But clearly the fact that this has been an agreed scheme has not inhibited criticism, and I will do my best to answer most of them, although I am grateful that the right hon. and learned Member for Warwick and Leamington (Sir J. Hobson) realises that I cannot answer at short notice every point that he raised. The main criticism of the Bill has probably been that it does not put aliens and Commonwealth citizens on the same footing, particularly under Clause 4. That has not been the criticism of all hon. Members who have spoken because there were some—for example, the right hon. and learned Member for Huntingdonshire (Sir D. Renton) and the hon. Member for Hendon, South (Sir H. Lucas-Tooth)—who felt that the provisions for Commonwealth citizens should be quite different from those of aliens. I was not quite 1206 clear which of these two strands of thought was followed by the right hon. and learned Member for Warwick and Leamington. I understand that he would prefer the provisions to be different but that if they are not to be different, he would like them to be identical.
Of these two schools of thought, I hope that the House will accept that they should be as close as possible. The Commonwealth as a whole has tried to assimilate them. Every member of the Commonwealth agreed that there should be stricter protection than in the past for political refugees from within the Commonwealth, and similarly it seemed to be the view of most people in this country after the Enahoro case that the old position was untenable and that we should try to treat those who were in a position of complete independence within the Commonwealth in the same way, or as nearly as possible, as we treat those who are aliens. Certainly the process of consultation for bringing the two more into line was started under the last Conservative Home Secretary.
I certainly accept that in the ideal system our extradition law should be exactly the same as the rendition of fugitive offenders in the Commonwealth. But I would make two comments. The first concerns the technical, legal point mentioned by the right hon. and learned Member for St. Marylebone. In fact, at present we have two different sets of provisions with two different sets of words, and whatever one may say about the new provisions under the Bill they are closer to the Extradition Act provision than was the case in the past. Secondly, I am not sure that hon. and right hon. Gentlemen opposite, and for that matter my hon. and learned Friend the Member for Liverpool, Edge Hill (Mr. A. J. Irvine), fully appreciated the circumstances of the conference.
There were 22 different nations represented. It was a conference composed of men of very high calibre. Many of them had dissimilar extradition legislation. It was impossible simply to put before them the British Extradition Act and to say, "This will now be the agreement of the Conference". The British delegation were not in the position of bringing forward a Bill and then accepting or not accepting Amendments in Committee. It was an attempt to get an 1207 overall agreement, and there had to be a large amount of give and take.
This is reflected in many of the provisions which were finally agreed. For example, Clause 4 as it finally emerged was not in the form in which it was originally proposed in the United Kingdom draft. A number of points which have been made by right hon. and hon. Members opposite were made at the Conference. The short answer to points made by my hon. and learned Friend the Member for Edge Hill and right hon. and learned Gentlemen opposite is that it was the overwhelming desire of members of the Conference to enact provisions which were broadly those of the European Convention on Extradition. The point was made that in many Commonwealth countries there are Bills of Rights which incorporate the European Convention, and for this reason they were extremely keen—it was the overwhelming opinion of a number of Commonwealth countries—that the political offences Clause should be based on Article 3(2) of the Convention.
The right hon. and learned Member for St. Marylebone and others said that the new Clause 4 goes much wider than the Extradition Act 1870, but I must point out that it does not go by any means as wide as the right hon. and learned Gentleman suggested. It was said that if we refused to return someone, if the courts refused to do so because it was a political offence, we were casting a slur on the Commonwealth courts and impuging the good faith of Commonwealth Governments. In fact, the provision of the Extradition Act—and I can only say that a number of hon. Members have not read it very carefully—are not all that dissimilar from the provisions of Clause 4(1,b). Section 3(1) of the Extradition Act provides:A fugitive criminal shall not be surrendered if the offence…is one of a political character, or if he prove…that the requisition for his surrender has in fact been made with a view to try or punish him for an offence of a political character".What does that do but "cast a slur" on the integrity of foreign Governments and foreign courts? If we are to have our new provisions in line with those of the Extradition Act, the difficulty arises in any event. There is the "slur".
1208 It is true that the Bill goes wider because there is nothing in the Extradition Act corresponding to Clause 4(1,c), but I emphasise again that it does not go anything like so wide as the House previously supposed. In any event, the overwhelming majority of the Commonwealth States themselves wanted these provisions in the Bill.
It was said that the effect of the new Bill was undesirable in that it created a parallel jurisdiction. Again, I can only conclude that those who raised this point and at the same time wanted the new Bill to be in line with the Extradition Act had not looked at Section 3(1) of the Extradition Act. To quote again:A fugitive criminal shall not be surrendered…if he prove to the satisfaction of the police magistrate or the court before whom he is brought on habeas corpus, or to the Secretary of State, that the requisition for his surrender has in fact been made with a view to try or punish him for an offence of a political character.There, too, is the parallel jurisdiction. It is provided that, first, the courts must decide it, and then the Secretary of State must be satisfied that there was no such intention to try or punish him for an offence which was in fact a political offence. Thus, exactly the same embarrassment arises, if such embarrassment there be, under the Extradition Act as under the proposals in the Bill.
I was asked about the order in which the proceedings would take place. First, under Clause 5 the Secretary of State gives authority for the issue of the warrant. Then the court of committal considers the question. I point out to the hon. Member for Ilford, North (Mr. Iremonger)—who is not here now—that he has not read the Bill, and there is no question of every magistrates' court in the country having to decide the question. In so far as the court of committal is a magistrates' court, it is Bow Street if it is in England. Then a higher court has to decide the matter. Normally, the Secretary of State will have to decide the question only if he wants to overrule the decision of the court. Supposing that the court is negative as against the defendant and it says that there is no political offence, normally the Secretary of State would exercise his further discretion only if there were some kind of new evidence. In the overwhelming majority of cases the 1209 Secretary of State will be spared this difficult decision by the courts and he will not come to a conclusion different from that of the courts.
I was asked whether the courts could possibly come to any conclusion under Clause 4. I am sorry that I did not hear the speech of the hon. and learned Member for Montgomery (Mr. Hooson) who, I understand, raised this point, as did the hon. and learned Member for Darwen (Mr. Fletcher-Cooke) and several others. Again, a very similar difficult decision already has to be reached by the court under the Extradition Act. It is a decision which must be taken in European countries also under the Convention on Extradition. Further, I can tell the House that the Lord Chief Justice was consulted about the operability of the Clause, and he told us that he saw no great difficulty in deciding matters under it. The question as to whether or not something is a political offence has often had to be decided in the past, and difficult political considerations of the kind which seem insuperable to hon. Members opposite were, for example, considered fairly recently in the Schtraks case.
Next, the difficulty in relation to the death penalty was strongly put. This was one of the principal arguments advanced at the time of the Enahoro dispute, and it was dim argued not just by the Opposition but quite widely in the House that there should be a discretion not to return if an offence carried the death penalty in the requesting country. Such a provision is found in more and more extradition treaties. I think I am right in saying that there are only three treaties still outstanding in which this matter has not been renegotiated.
If there is to be a discretion, the only way to do it is the way proposed in the Bill. The right hon. and learned Gentleman said that the position is quite different for aliens because they can be deported. But, if the deportation argument were an argument against the provision, we could not have any provision at all. In fact, looking at the position as it would actually arise, it is somewhat doubtful how strong the deportation argument is arid how important the distinction drawn between aliens and Commonwealth citizens is. It is slightly odd to say that we will not return an alien because it is 1210 a political offence, but will not have him in this country either. One only deports if there is another place for him to go, and the circumstances in which this country will say that it will not return to the requesting country but will not have him here either will be very limited.
§ Mr. Hogg
The hon. and learned Gentleman must know perfectly well of an individual I have in mind who wanted to kill General de Gaulle, or so it was thought. I understand that he came to this country for a time and then had to go; obviously the threat would be to deport him. Once he realised that that would be to send him back to France, he was glad to go of his own accord to a third country. That is the point I sought to make.
§ Mr. Taverne
With respect, I do not quite see that that reinforces the right hon. and learned Gentleman's point, because that was not a case where someone had committed a crime. The question is that of somebody accused of having committed a crime and when his deportation is sought one says that one will not return him and will not have him here either. That is not a circumstance that is likely to arise often.
The point that is neglected when considering the difficulties about the death penalty discretion is that it is a case of a discretion. One would consider the nationality of the person whose return is sought. He might be a British national and it might be regarded as extremely invidious to return him, in certain cases, to face a death penalty that he would not face in this country.
Maybe one could try him here. One would consider the background, the circumstances of the offence and any assurances received from the requesting country. Only about a year ago there was a case in which someone was returned for a capital offence—the case of Sehilbach, who was returned to France.
Lastly, I was asked by the right hon. and learned Gentleman how the scheme would be implemented.
§ Sir J. Hobson
Could the hon. and learned Gentleman say how he sees the lack of any power to deport, not in relation to murder but to political offences which are antagonistic to the interests of this country and the Commonwealth?
§ Mr. Taverne
That is the difficulty that arises if one is to have any provision for political offences; deportation is not something with which a Fugitive Offenders Bill can deal. I understand that the right hon. and learned Gentleman does not really like not returning somebody because the offence concerned is political. He said so, and he differs in that, not only from us but from some of his hon. Friends. That is a difficulty inherent in the whole question of non-return of political offenders.
I was asked how the Bill applied to Dependencies.
§ Mr. Hogg
I raised what was, to me, an important question about the position of the Queen as Head of the Commonwealth and an attempt on her life. It seems to me that we should be bound to leave at large a person who made an attempt on the Queen's life and whose extradition was sought by another member of the Commonwealth. I cannot believe that that is what the hon. and learned Gentleman wants.
§ Mr. Taverne
First, that would presumably be a case in which a charge could be brought in this country. Secondly, there is the question of whether or not a case of that kind would be a political offence. There have been one or two rulings in the past on political offences which have suggested that that kind of assassination is not necessarily a political offence. The right hon. and learned Gentleman either wants political offences in or he does not. There may be a special case that can be separately considered in a way which does not go against the scheme. I do not see a special difficulty here. Perhaps the point can be further considered in Committee.
§ Mr. Hogg
One knows of threats against the Queen both in Ghana and Canada, in the latter case by a Quebec Séparatiste. That would be a threat against the Queen in respect of her position as Queen of Canada and would not be triable here. If the person responsible came here, he would not be extraditable under the Bill because the offence would clearly be political. I cannot regard such an important matter as one of the special cases which can be examined in Committee. I think that the House should consider it, and consider it now.
§ Mr. Taverne
This is a question where one is, in fact, giving effect to a scheme. This is a scheme which deals with the question of a political offence, and what the right hon. Gentleman has raised is a point where there may be some doubt as to whether a particular offence is a political offence. That is something which must be considered by the courts. It is not something which goes to the root of the Bill. It is eminently a matter for consideration in Committee and is not a point of principle on the Bill as a whole.
I was asked about the implementation of the Bill and its effect on dependencies. There will be a different position as regards dependencies which are not designated territories. The position for the dependencies which are not designated territories is that there the discretion is entirely a matter for the Secretary of State. It is not a matter for consideration by the courts. As far as Northern Ireland is concerned, the question of political offences is dealt with under Section 2(2) of the Backing of Warrants (Republic of Ireland) Act.
I was also asked about the way in which the Bill would be brought into force. Once the appointed day Order has been made, the Bill's provisions will automatically apply in relation to the return of fugitives from the United Kingdom to the Colonies and associated States but not to independent Commonwealth countries or protected States. So Clause 21, which deals with the transitional provisions, will at first be brought into force only for the limited purposes of repealing the Fugitive Offenders Act, 1881, in respect of the return of fugitive offenders from the United Kingdom to the Colonies and associated States.
An Order in Council will be made under Clause 2(1) designating all other independent members of the Commonwealth for the purposes of the Bill and, as soon as it is made, all essential restrictions and discretions will come into force as part of the law of the United Kingdom as soon as possible. The Commonwealth Governments will be informed in advance of our intention to make this Order in Council, and so each Commonwealth Government will have an opportunity of indicating whether it desires that any Order in Council should be made under Clause 2(3) bringing in all 1213 of the provisions of the Measure in their application to the particular Commonwealth country concerned.
I was asked a number of questions about the matters in the list. This, I think, can be most suitably dealt with in Committee. Stress has been laid in the debate on the provisions relating to espionage and treason. As far as espionage and treason are concerned, one must face the fundamental question as to whether political offences are to be provided for or not. It is hard to imagine cases of espionage which are not political offences. But the scheme provides in Clause 17—and it was mentioned at the conference as something which individual countries might arrange—that individual countries might have bilateral arrangements rather more strict than those provided for under the scheme as a whole.
It might be that, under arrangements the Government arrived at with a country like Canada, for example, espionage cases, too, would be extraditable. As far as dependencies are concerned, where there is one clear Sovereign in fact as well as in form, a much stricter view of returnable offences can be taken.
§ Sir J. Hobson
Is the hon. and learned Gentleman saying that, under special arrangements about treason with, say, Canada, provisions for return or rendition for political offences would also be included or would one be in difficulty because one could not get someone back from Canada for treason because it was a political offence?
§ Mr. Taverne
Individual arrangements might be reached which would be much 1214 stricter and therefore narrow the scope of political offences, so that treason could be extradictable as between the two. In fact, the case of an attack on the Queen which the right hon. and learned Member for St. Marylebone was concerned about would also be dealt with in this way.
One of the main contentions of hon. Gentlemen opposite was that this Bill will create difficulties within the Commonwealth. I take a quite different view. There were 22 representatives of 22 different nations at this conference. They wanted tighter rules and wanted political offences to be included. There were many different attitudes and many different interests. They resolved these differences, achieved general agreement and it is true to say that this general agreement was warmly welcomed at the end.
I have paid tribute to the representatives who attended that conference, for their determination to reach the agreement that they did, and the fact that they did so and wanted to do so shows what a strong link exists in the Commonwealth by virtue of the community and the legal background existing between Commonwealth States. I hope that this Bill will be welcomed and accepted as giving effect to the scheme which was agreed at the Commonwealth Conference.
§ 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).