§ The Minister of State, Home Office (Mr. David Mellor)
I beg to move,That the draft Suppression of Terrorism 1978 (Application of Provisions) (United States of America) Order 1986, which was laid before this House on 20th November, be approved.As the House will be aware, the purpose of the order is to enable the United Kingdom to ratify the supplementary extradition treaty with the United States. The text of the supplementary treaty, as amended, is set out in schedule 1 to the draft order. Its principal effect will be to prevent those accused or convicted of certain serious crimes of violence from avoiding extradition by claiming that their offences are political. The background to the supplementary treaty is, of course, events in Northern Ireland, and the fact that people accused of serious crime associated with the situation there have fled to the United States to seek haven and have been able to avoid extradition.
The present extradition treaty with the United States will remain in effect in conjunction with the supplementary treaty. The treaty sets out in the normal way a list of crimes for which extradition may take place. This is a requirement of our Extradition Act 1870. The treaty incorporates a further requirement of that Act, which is the political offence exception. This requirement is a standard feature of extradition treaties. Thus, the United States treaty prevents extraditionif the offence for which extradition is requested is regarded by the requested party as one of a political character.This concept is not defined in either the 1870 Act or in the treaty. In the United States a body of case law has arisen concerning the interpretation of this exception. The effect of this has been that the United Kingdom has failed to extradite people accused or even convicted of serious offences on the ground that the United States court had to accept that their political motives prevented extradition.
I believe that all civilised people regard this situation as intolerable. It is deeply offensive to any law-abiding person to see people accused of vicious offences find haven in another country, especially one with which we have such close and friendly relations. It was clear both to the United States Administration and to the United Kingdom that what we had seen was not a proper use of the political offence exception.
The proper purpose of this safeguard must surely relate to asylum. It is to cover the situation in which the requesting state is after the fugitive for reasons other than the enforcement of the ordinary criminal law. This position does not and cannot arise between two liberal democracies, such as the United States and the United Kingdom. In our two countries a person may be sought only in relation to criminal conduct. The courts and the prosecution authorities do not act on the whim of Government, and the Government stand apart from the case. In our country the fugitive, when returned, is tried in the ordinary way according to rigorous standards of justice.
Both Governments considered that it was invidious for terrorist fugitives to escape jurisdiction and to have their conduct dignified by the word "political". In a democracy, the gun and the bomb are the tools of the crook, the thug 368 and the enemy of law-abiding society. They cannot in any circumstances be regarded as the tools of political activity. Neither is it legitimate to draw a distinction between what goes on in Northern Ireland and the rest of the United Kingdom. The assertions by lobbyists in the United States about standards of justice and democracy in Northern Ireland have little or no relationship to reality, and no one knows that better than my hon. Friend the Minister of State, Northern Ireland Office, who I am glad to see in his place this evening. The truth is that the character and courage shown by the people of Northern Ireland has meant that democracy and justice have survived the onslaught of terrorist horror, and will continue to do so.
The draft order before the House is intended to deliver our side of the bargain. The supplementary treaty, like any extradition arrangement, is reciprocal. The draft order, therefore, applies to extradition requests made by the United States to the United Kingdom. As I have indicated, the draft order delivers, in effect, the United Kingdom's side of the treaty. Before ratification can take place, it is necessary for our statutory provisions to be applied in respect of the supplementary treaty. The House is asked, therefore, to approve the draft order, the effect of which will be to apply to the United States certain provisions of the Suppression of Terrorism Act 1978. That Act was the means by which the United Kingdom ratified the European convention on the supression of terrorism. The Act is applied by order to other states which have ratified that convention. It has been applied over the years to all the European countries which have ratified the convention.
The United States is the first country outside the Council of Europe to be designated. The draft order, in schedule 2, identifies the various provisions in the 1978 Act which give effect to the provisions of the supplementary treaty which is before us. In particular, paragraph 5 of schedule 2 sets out the list of offences which are not to be regarded as offences of a political character in relation to a request for the extradition of a person to the United States. This is not the only order which must be made before the supplementary treaty may be ratified. An Order in Council has been made which applies the Extradition Act 1870. A further negative resolution order under the Suppression of Terrorism Act will be laid, the effect of which will be to apply these arrangements to the dependencies.
I hope that the House will agree that the supplementary treaty is a most welcome development. It will send a clear message to terrorists: that neither the United Kingdom nor the United States will provide a haven for those who use violence to further their political ambitions. On that basis, I commend this draft order to the House.
§ Mr. Clive Soley (Hammersmith)
It is right that the House should respond to the threat of terrorism that has grown in the last couple of decades, particularly in view of the easier transport around the world, which enables terrorist activity to be carried out at short notice and in different parts of the globe. It is also important that we recognise that there is an underlying cause to terrorism, whether it is in the middle east or Northern Ireland. We have to face those political problems and sooner or later we have to resolve them. We must recognise and have a 369 concern for the underlying basic rights—the democratic and judicial rights which, over the years, liberal democracies have defended.
It is also right that we should be aware of the danger of what has been called victors' justice—the idea that a person should he returned to a state in order to face the victorious people of the time. We must bear in mind that the United Kingdom has an impressive history on this. In the last century we gave succour to people who may now be described as terrorists. They certainly were terrorists at the time. They included Garibaldi, French aristocrats, and, following that, some of those who escaped from Napoleon, Mr. Bolivar, who escaped from Venezuela and Spanish justice, and many others.
I read article 1(d) as perhaps excluding certain offences which do not involve a direct risk to life, but might involve the use of explosives. The article refers to bombs, grenades, rockets, firearms, and so on, and says:if this use endangers any person".What is the situation if the person who has fled to the United States, or elsewhere for that matter, has blown up an electricity pylon, perhaps in an isolated spot and perhaps with no arguable immediate risk to life? Will we be able to apply to the United States for that person's extradition or does this article apply only to loss of life or threat to life?
§ Mr. Mellor
This is a supplementary treaty. Certain offences are being put into the supplementary treaty. They are already in the original treaty. It is said within that supplementary treaty that they shall not be subject to the political exception. All other offences that are common criminal offences between the United Kingdom and the United States, such as the offence that the hon. Gentleman mentioned, will continue to be covered by the existing treaty. It was our wish that all offences involving the application of bombs and similar terrorist equipment should be covered within the supplementary treaty. Alas, that wish did not survive the proper scrutiny which, under the American constitution, it was given by the Senate Foreign Relations Committee. That is why the article is as it is.
§ Mr. Soley
I am grateful for that explanation. I shall have to look again at the original treaty. Perhaps the House will refer to it again on another occasion.
It may be useful if I explore some of the other thoughts mentioned by a number of us who have discussed this matter. I recognise the force of the argument about victors' justice and the importance of the sections in the earlier Acts. I also hear in mind some of the recent debates about race, religion, nationality or political opinion being exclusions for a treaty of this type. I have always had some anxiety about the use of the definition of "political". All offences are political, inasmuch as laws are made and enforced by the state. Taken to its logical conclusion, the anarchist will say, "All these laws are imposed on me as I am in a minority. They are political laws and I do not wish to to respond to them."
I have come across some specific cases. A young black, who had been subjected to several attacks to which the police had not responded immediately, was charged with carrying an offensive weapon. He said, "Well, what else can I do to defend myself?" In a way he was making a political statement, although he was not arguing that it was one. Then there is the rather devious, opportunistic behaviour, often of middle class young people, who, after 370 being caught shoplifting, claim that all property is theft, therefore their action is political. Usually such people end up in the Conservative party or in business. They make good managers because they are so good at changing the argument as they go along.
That alerted me to the danger of having actions defined as political for extradition or imprisonment. I took a strong line against political status for people in Northern Ireland and elsewhere precisely because of that definition. If one states that a person who has been locked up should be treated differently, one must ask why. Whether the treatment is better or worse makes no difference.
Under the Geneva convention an exception is made for acts of war. That makes a real difference, but political effects as such can be defined in any country. The Soviet Union would argue that it has no political offences, simply criminal offences, and it would define them in its way. We would say that we had no political offences and define them in our way.
Many of those in Northern Ireland prisons are there because of their political belief, which has led them to carry out certain actions which we, rightly define as criminal, but both Unionists and Republicans believe strongly that they committed those acts for political reasons. A reason why I was strongly opposed to political status was that people in breach of the law should not be treated differently in prison.
In recent years I have looked at possible alternatives, and tonight I want only to float them as such. I do not pretend to have an answer to this profoundly difficult problem. First, we should consider the prima facie case being made in an extradition treaty. I am worried that the Secretary of State intends, in certain circumstances, to drop the prima facie rule in the Criminal Justice Bill, which will be debated on Second Reading tomorrow. I cannot think of any good reason for that, especially if one has any doubts about the political clauses in existing treaties.
There is a strong case for saying that the criteria that we use should be a combination of the prima facie case—that is, the country seeking an extradition must make out a case in the criminal law for a person to be extradited; the offence being an offence in the host country where the person is living as well as in the country seeking the extradition; a reasonable expectation of a fair trial; and consideration of whether it would be an unacceptable punishment in the other country. If we decide that the death penalty is unacceptable, for example, I am not sure that we should return a person to face it.
For some time I considered the possibility of arguing the basis of the democratic system. We come under criticism in Northern Ireland about the fair trial, arid 1 shall return to that shortly.
§ Mr. Mellor
I do not mean to keep interrupting the hon. Gentleman, who is making a most interesting speech, but it may help him if I comment on one of his points. The removal of the prima facie case requirement, which was called for in an editorial in The Guardian, so it is not a narrowly based argument, is in respect of countries which for the most part have civil law systems and find it invidious to bring their procedures, which are different from ours, but not necessarily worse because of that, into line with ours by having a prima facie case. The prima facie case requirement will, of course, remain for those countries covered by the Commonwealth extradition arrangements in the separate Act of Parliament that governs those. The 371 prima facie case requirement is not invidious there because it relates to a jurisdiction with a common legal background where the prima facie case is commonly understood.
I take no issue with the points that the hon. Gentleman has raised about conditions. That is why we are asserting that the Home Secretary retains a total discretion and will withold his discretion, whatever the courts may have determined about the legal appropriateness, in cases where he has any doubt about the quality of justice. In the past few months we have done that in relation to an African country and would not hesitate to do it again.
§ Mr. Soley
I am grateful for that explanation. I promise that we shall look at it carefully. I was aware that there were other arguments, but I had not looked at them in detail.
One of the other criticisms is about how democratic the system is. This is an important point. We might well think before returning a person to the Soviet Union or South Africa that the democratic system in those countries does not function in a way that we would consider acceptable. The South African example is sometimes compared, outside and inside the House, to Northern Ireland. It is not comparable to Northern Ireland, for the very good reason that blacks do not have the vote in South Africa, but they do in Northern Ireland.
We know that Sinn Fein at its maximum received 14.8 per cent. of the vote in Northern Ireland, and rose to a maximum of a mere 3 per cent. in the South of Ireland. I am talking about the post-war period. One can see clearly that the people of Ireland, North and South, do not give voting support to Sinn Fein. That is an important part of the argument. One cannot say that about South Africa. There is no way in which black people can measure their opposition to the Government through the democratic process by voting or publishing their own paper. As the Minister of State will know, Sinn Fein publishes a newspaper in Northern Ireland which gets far wider circulation on a weekly basis than any other paper in Northern Ireland. There is a real difference.
Northern Ireland is the problem that has brought this statutory instrument before us tonight. The Government have to face the fact that we are vulnerable overseas on the arguments of the lack of a jury trial, the relaxed rules of evidence required in Northern Ireland, the length of remand in Northern Ireland and the wide powers of arrest. We are also vulnerable on the fact that emergency legislation has been practised in Northern Ireland since 1922. That must signal to the outside world that there is something odd about the way in which Northern Ireland is being governed. That is something that I argued on many occasions when I was a spokesman on Northern Ireland. The other issue, on which the Government must act quickly, is supergrass trials—convictions on the uncorroborated evidence of one person.
Those things make countries overseas, whether Holland or the United States, very worried about returning a person to Britain to face charges arising out of the Northern Ireland system. Whether we finally change the system and go for the political system as it is now, with some changes, or whether we go over to the alternative, which I have suggested is one possibility—I would not put it any higher than that at the moment—we have to recognise that there is serious concern overseas and in this 372 country about the system of justice in Northern Ireland. In my view, that concern is justified. If we do not change that, we will always lose that part of the propaganda battle and that, to my mind, is extremely serious.
Obviously we will not be opposing the legislation tonight. It is appropriate, right and proper. However, it is time that we exercised those arguments a little further and recognised that the nature of terrorism in the modern world is different from what it used to be. Perhaps it is time we took a long hard look at what sort of situations we want extradition to relate to. Do we want to do it on a political basis, or on a more judicial basis, or is there some other model to which we could turn? I do not pretend to have any argument. I have not laid down any hard and fast party policy tonight, and I do not wish to. I simply wish to express considerable anxiety about the way in which we have allowed some of our judicial and democratic safeguards to slip in recent years to the extent that we have been found guilty before the European Court of Human Rights more often than has any other country in western Europe. In previous centuries we led the world; we now, sadly, follow. That is profoundly sad and something to which we should look very carefully, in order to try to right the situation.
§ Sir Eldon Griffiths (Bury St. Edmunds)
I do not intend to take up the interesting discourse of the hon. Member for Hammersmith (Mr. Soley). However, I must put two points very directly to him. First, I do not accept, nor will many hon. Members, his proposition that whereas once we led the world in our concern for liberty, now we follow. That is a wholly offensive and inaccurate statement. This country can still hold its head very high in the defence of liberty. Secondly, his endorsement of the order would be a little more convincing if the Labour party, with his enthusiastic support, had not consistently voted, on three-line Whips, against the Prevention of Terrorism (Temporary Provisions) Act 1976. That Act is essential if we are to hope to contain terrorism in this country and, indeed, in Northern Ireland.
I want to make two propositions at the outset. First, it is a matter of the highest priority that terrorism shall be more effectively contained and, if possible, suppressed. Secondly, the only way to do that is by international collaboration.
A series of meetings in Europe and elsewhere have proclaimed the intention of Governments to collaborate more effectively. I acknowledge freely that during the past 18 months to two years there has been some evidence of improved international working together to contain this scourge. However, the practical co-operation that is required—and the order brings us directly to it—is, first, that there should be a much more effective exchange of intelligence between the security services of the various countries concerned; secondly, that there must be more effective working together of the police and security services and the provision to those services—if possible in a standardised form—of the most modern technology that is available to counter terrorism; thirdly, that each country must provide a body of law that makes it possible for its security services not merely to respond to terrorist actions but to pre-empt them. It is because the Prevention of Terrorism (Temporary Provisions) Act to some extent assists in pre-emption that I have always found it so surprising that the Labour party opposes it. The fourth 373 practical aspect must, of course, be a more effective way of achieving extradition. For that last reason, I welcome the order.
The order, and its effect, is limited and overdue. We should be unwise to expect too much of it. It contains far too many let-outs, to which I shall turn in a moment. For all that, it is an important and welcome step forward and I am sure that the House will accept it.
I want to make three points only about the order. Before doing so, will my hon. Friend the Minister of State tell the House what "plagium" is? I refer him to schedule 2, article 3. In paragraph 5(4) there is the phrase "kidnapping, abduction or plagium." My hon. Friend the Member for Epping Forest (Sir J. Biggs-Davison) asked me what "plagium" was and I said that I would find out. Perhaps my hon. Friend would care to enlighten us.
§ Mr. Mellor
I do not know, but I have had thrust into my hot little hand a piece of paper that has on it the words "Scottish kidnapping."
§ Sir Eldon Griffiths
One lives and learns. The origin of that noun must be extraordinary.
My first point is that it took far too long to get this arrangement through the United States Congress. I recognise the sterling work carried out in the United States by my right hon. Friend the Secretary of State for Northern Ireland and others, including hon. Members in all parts of the House. However, it took too long for Congress to agree to the changes that we required.
In the end we got the changes for two almost adventitious reasons. The first was the support by the President for the request by our Government. At a time when it is fashionable to knock President Reagan, it is right to record that his consistent support for the British position was of enormous help in Congress. I am quite sure that the measures would not have gone through Congress if it had not been for the raid on Libya. That raid remains a contentious matter, but I am quite sure that overall it was the most effective step against international terrorism that has yet been taken. I am sure that we would have found it difficult to achieve the amendment to American law if Congress had not been impressed by the Prime Minister's support for the United States when it launched the raid against terrorism in Libya.
My second point concerns the various let-outs, about which the Minister has fairly spoken. In article 3, in order to counterbalance the removal of the political offence exception, the Senate has put in what is described as the humanitarian safeguard. Extradition will, therefore, be prevented where the request is made for the purpose of trying or punishing a personon account of his race, religion, nationality, or political opinions, or that he would, if surrendered, be prejudiced at his trial or punished, detained or restricted in his personal liberty by reason of his race, religion, nationality or political opinions.I have no doubt that between two liberal democracies like the United States and Britain it is perfectly proper that these matters should be safeguarded. No one who comes to this country need fear that he would be prejudiced on grounds of race, religion, nationality or political opinion. What matters is not the objective fact of the situation in the United Kingdom, but how an American court might perceive it.
Perhaps when the Minister replies to the debate he will say how he hopes to get over the possibility of American 374 courts—perhaps I should speak delicately—in those parts of the United States where the pressure of the Irish is greatest, making use of the political opinion let-out to prevent terrorists being returned to justice in the United Kingdom?
I recognise that the burden of proof is placed on the defendant who has to show that he would be at risk because of his political opinions. My hon. Friend will know that there is a good deal of case history in the United States to show that some courts are more inclined than others—if I may put it that way—to bend over in the direction of those who allege that people would not get a fair trial if they were returned to the United Kingdom. The hon. Member for Hammersmith has helped people who hold that view.
§ Mr. Mellor
It may be of assistance if I reply now so that my hon. Friend may have a chance to comment. It was not our original intention that the humanitarian safeguard should be in the supplementary treaty. It was placed there during its passage through the Senate. Having said that, I must add that it is found in the Suppression of Terrorism Act 1978 which my hon. Friend has rightly commended. It applies automatically to countries which are signatories to the European convention on the suppression of terrorism and it is also found in the Fugitive Offenders Act 1967 which governs all our extradition arrangements with Commonwealth countries. As my hon. knows, it is very different from the political safeguards as was, because it relates to a fair trial, and, as he says, the burden of proof is on the defendant. I personally would take comfort from the case of Doherty—one of the notorious cases where we failed to get an IRA offender extradited in 1984—when the judge, refusing our extradition request under the political safeguard, specifically said that the 1981 trial of Doherty was a fair trial, suggesting that had these arrangements been in force the result would have been different. However, who can say?
§ Sir Eldon Griffiths
I do not wish to detain the House by going into detail about the Doherty case. I am aware of that judgment and the weight that British Ministers have put upon it in their discussions with the United States. I very much hope that my anxieties will not be realised.
I just want to leave one thought with my hon. Friend. Accepting the force of the Doherty point, perhaps some means ought to be found of ensuring that a certificate be produced in some circumstances—for example, by the United States Attorney-General—to any court in the United States so that, if the United States Government were willing, he could certify that in all respects he was satisfied that a fair trial could and would be achieved. I mention that simply because there was only one point on which I had some measure of agreement with what the hon. Member for Hammersmith said.
I have a connection with Northern Ireland through the RUC. I am a supporter of the Diplock courts. In the circumstances of Northern Ireland, I do not think it is possible at present to have juries. Equally, given all the safeguards that our judiciary has insisted upon, I think it is necessary to continue to use supergrasses in certain limited cases. But I am bound to accept that, as perceived from the United States, the combination of single judge courts and supergrasses may from time to time lead to difficulties.
375 Along with some of my hon. Friends, I had the pleasure the other day of hearing the Solicitor-General make a most admirable statement about the difficulties of changing the present arrangements in Northern Ireland. I well understand what he said, but it is right to leave the thought with the House that we have achieved an important step forward. It does not go anywhere near as far as I would have liked or, to be fair, as the Government would have liked. My view, having lived and worked in the United States for many years, is that there will continue to be some difficulty in this area. The prime difficulty may turn on the matter of the Diplock courts and the use of supergrasses. Therefore, it may be important to reinforce the Doherty safeguard with some further arrangements that British Ministers might wish to suggest to the United States in the months to come.
That opportunity could well arise when, after the passage of the new Criminal Justice Bill, which deals with the additional arrangements for extradition in this country, it will probably be necessary to add to this arrangement with the United States. When that comes about, I hope that my hon. Friend and the Foreign Secretary will seek ways and means of reinforcing the Doherty arrangement in order to avoid the anxieties which, frankly, I still have about this matter.
§ Mr. J. Enoch Powell (South Down)
Like the hon. Member for Bury St. Edmunds (Sir E. Griffiths), I do not intend to follow the hon. Member for Hammersmith (Mr. Soley) in his ruminations, many of which could properly be dealt with only in a debate specifically devoted to considering circumstances in Northern Ireland.
This order deals with extradition from the United Kingdom, but, in so far as it is necessary to enable the supplementary treaty to be ratified, it is to be welcomed, even though much of the examination that we give to it is related to the reverse process of extradition from the United States to the United Kingdom.
There are a number of points upon which I should be grateful if the Minister would give further elucidation to the House. He might begin by confirming that there is a mistake in the order as laid before the House in schedule 2, in that the reference in paragraph 1 of schedule 2 to "paragraph 3" is clearly a misprint for "paragraph 5". No doubt, if the Minister is in need of assistance, he will be able to have that confirmed from the proper quarter in time.
More substantially, I should be grateful if the Minister would say something about the status of schedule to the order. Schedule 1 is not enacted by the terms of the order but is simply referred to in the preamble to the order. I take it therefore that, whereas schedule 2 becomes part of the law of the land, schedule 1, strictly speaking, does not. That may have a practical consequence when we read articles 3 and 4 of the treaty provisions set out in schedule 1.
It may be that article 3(b) is intended to apply wholly and exclusively to the United States, although in terms it does not. However, there is no such limitation in article 4. Article 4 provides:A person arrested…shall be set at liberty upon the expiration of sixty days.376 I take it that, that being part of the reciprocal conditions in the supplementary treaty, it is incumbent on us in this country to implement it. Perhaps the Minister will say exactly how it will be implemented if the first schedule is not being enacted by the order. Is it to be implemented merely administratively? In that case, it may be argued that, in the United States, they are making legislative provision to which no legislative provision will correspond on this side of the Atlantic.
It would be helpful in this connection if the Minister would confirm that the reciprocity established between the two countries as a result of the order and the supplementary treaty is complete and entire reciprocity—that is, that there is no respect in which obligations have been undertaken in one direction to which no obligations in the opposite direction correspond.
With regard to the contents of schedule 2, I was somewhat puzzled not only, like the hon. Member for Bury St. Edmunds, by the word "plagium"—though I admit that the Oxford English dictionary did not enable me to recognise it as a Scotticism—but also by the omission of items 3 and 6. Item 3 is "rape". I do not know of any reason why, when we were about the business, we should not have included the offence of rape among those to which the provisions of the order apply. There may be some reason for that, but I am not clear what it can be. [Interruption.] The Minister has been good enough to conduct a running tutorial, but I shall understand if he does not wish to intervene at this stage.
The other offence that has been omitted isassault causing actual bodily harm or injury".I find that difficult to construe in connection with article 1 of the treaty provisions and the remainder of paragraph 5 of schedule 2. Article 1(d), to which the hon. Member for Bury St. Edmunds specifically referred, rehearses a whole series of offences involving the use of various explosive and other devices which appear to go well beyond firearms offences.
Comparing that article with the provisions of paragraph 5 of schedule 2, there appears to be a gap—for instance, as to whether offences committed by means of a weapon other than an explosive or firearm are fully covered. If they are—and I suspect that it is intended that they should be—what was the point of article 1(d) specifically listing various forms of explosive and other offensive materials and weapons? It is difficult for the layman to construe that article in a way that brings out its importance and intention. I hope that the Minister will clarify those points when he replies to the debate.
§ 11.5 pm
§ Mr. Ivor Stanbrook (Orpington)
I, too, welcome the order, as far as it goes. However, I believe that it increases the complexity of the whole subject of extradition law. For that reason, it is understandable that the hon. Member for Hammersmith (Mr. Soley) showed a somewhat incomplete grasp of it. After all, under the Extradition Act 1870 there are some 44 treaties, each containing separate provisions directed to the countries concerned. That Act is about to he amended by the Criminal Justice Bill. It is a great pity that we did not have a separate extradition Act for that purpose and that we have now to lose that name in the Criminal Justice Bill.
There are 49 Commonwealth states that arrange extradition with us through reciprocal legislation. We do not need a treaty with any individual country in the 377 Commonwealth, but simply apply our own Fugitive Offenders Act 1967. There is also the Backing of Warrants (Republic of Ireland) Act 1965 applying to the Republic of Ireland alone. In addition, there are six multilateral treaties in which several countries have joined together—The Hague convention, the Tokyo convention, the Ottawa convention and one or two others, including the genocide convention—which have their own provisions regarding political offences. There is also the suppression of terrorism convention of the Council of Europe, which is strictly limited to its members and cannot therefore be applied to the United States of America.
This provision is an extension of the existing treaty of extradition between us and the United States. It was necessary to have schedule 2 in the order simply because the provisions of the supplementary treaty do not correspond, on all fours, with the provisions of the suppression of terrorism convention itself. When I first saw the heading of this Order in Council, I thought it inappropriate to link it to the legislation and treaty that we have signed with other members of the Council of Europe. However, I note that the power for applying some of these provisions lies in the Act that we passed to enforce the convention. That leads to a certain amount of difficulty in understanding the whole matter.
This order raises a number of questions. Assuming that the Criminal Justice Bill reaches the statute book, presumably it will be necessary to amend the principal treaty with the United States and all the other 43 treaties that we have concluded with foreign states.
A small point—why do we spell "offense" with an "s" in the order? It is not spelt that way in any other of our legislation, treaty or even in the principal treaty. Can a spelling correction be made? I hope that we do not adopt American spelling when dealing with matters that apply to British courts.
One notable omission from the supplementary treaty is conspiracy. In the context of Northern Ireland and the need for us to get at the godfathers of violence in Northern Ireland, that may prove to be a fatal omission in the effectiveness of the treaty itself because, very often, the people whom we really want are the godfathers, the instigators, the inciters and the conspirators—not necessarily those who are direct participants in the offences. That is a notable weakness of the supplementary treaty. I accept what has been said about the omission of certain offences that are contained in other treaties. Rape is not a terrorist offence as far as one knows, although it is always possible that it will be so treated——
§ Mr. Stanbrook
Indeed, it is in the Act, as the right hon. Gentleman says, but I understand that the explanation, in this case, is that when applied to the United States in a separate series of bilateral negotiations it has been omitted at the instances of the other party. That is another example of why the order is not on all fours with the original Act.
There is the possibility of reservations being made. Has the supplementary treaty been ratified by the United States of America yet? If not, is there not a possibility that there will be reservations of some substance before it is ratified? Let us hope not. But we know that the council of Europe convention on the suppression of terrorism has been ratified with reservations in many cases by European states, which are of fundamental importance and which, 378 in effect, make the provisions of the convention nugatory because they exclude offences of a political character. So I hope that we shall not have to suffer such an exception in any reservation that may be imposed by the United States.
§ Sir John Biggs-Davison (Epping Forest)
I also recall that a certain member of the Council of Europe, the Irish Republic, has still not ratified the European convention itself, despite all the fine words in the communique attached to the Anglo-Irish agreement.
§ Mr. Stanbrook
Indeed. Now we know why that promise is included in the communiqué, and not in the Anglo-Irish agreement itself, because it seems that we are not able to enforce it against the Republic of Ireland, although it has had 12 months in which to ratify it. It is supposed to be subject to legislation before the Irish Parliament, and even that has not yet been introduced. So that that calls into question the good faith of the Government of the Irish Republic.
With regard to the reservations in the supplementary treaty, I accept that the reservations about race, religion, nationality, political opinions and so on are now a fairly standard phrase, which applies to other such treaties. One cannot raise any objection about that.
The main reason why one should not be too critical is that in the end all these things are political, whether they are the reason for the decisions by some politically motivated judges, not just in the Republic of Ireland, but in the Netherlands recently, for example, and certainly in the United States, or whether it is that the extradition process, however judicial it is supposed to be in form, is ultimately a political decision by the Executive. In all our extradition law, we make the Executive ultimately responsible for extradition, and no one may be extradited against the will of the Minister concerned. I suppose that in the end that is a great safeguard and meets many of the points raised by the hon. Member for Hammersmith. After all, when the whole thing is subject to political decision and to the discretion of the Minister concerned, all the political points that he raised may be applied to act as safeguards.
However, as the Minister said, as between democracies, it is disgraceful that we should insist upon all these provisions and safeguards for accused criminals when we know that they provide fair trial and are themselves democracies. It is just another survival of the old chauvinistic nationalism of European countries which, in spite of their economic integration, and to some extent their political integration, are still not able to trust each other to try persons extradited from one country to the other without a whole series of safeguards when, if we were honest and willing to put the public interest of the whole of Europe to the test, we should not apply any restrictions whatsoever.
We should all have arrangements of the kind that we have with the Republic of Ireland with the backing of a warrants system whereby a warrant validly issued in one European Community country simply needs to be endorsed on the back by the country in which it is received and in which the criminal is thought to be hiding. That would be an example of trust in our European partners and one that is long overdue.
§ Mr. A. J. Beith (Berwick-upon-Tweed)
The alliance welcomes the order and shares the determination expressed in many parts of the House that people who commit terrorist crimes should be brought to justice and that arrangements between countries should make that possible.
The fact that Congress has eventually enabled these reciprocal arrangements, of which the order is but half, to be brought into effect is the result of a changed and more realistic climate of opinion in the United States and the recognition, even among those with emotional and historical links with Ireland, that terrorism is an evil wherever it is practised and that political motives provide no excuse for murderous acts and no basis for the avoidance of justice.
A number of people have helped in that process. British Ministers have worked hard to explain the Government's postion. Politicians from the Irish Republic have done the same and have faced hostile demonstrations in Boston and other North American cities. There has been a determined attempt by a number of people to make clear the real dangers of armchair republicanism when it condones or gives succour to murderous terrorism which is costing innocent lives on both sides of the community in Northern Ireland. We must all welcome the success of those efforts, to which many other people have contributed. Our diplomats in the United States have also worked hard at this task and their efforts, too, must be appreciated.
I have long since rejected the old concept of the "political offence" as a cover for all kinds of violence and terrorism. Adducing a political motive is not sufficient to protect someone from a court of justice. Other protections must therefore be provided, and it is perfectly reasonable that the order should contain a definition of the defence that a person should not be extradited if he can prove that there is reason to fear that his trial might be prejudiced or that he might be punished, detained or restricted merely on account of his race, religion, nationality or political opinions.
That may be thought unnecessary when both countries are democracies subject to the rule of law and with fair systems of justice, but there is no harm in reiterating that commitment and asserting that it is the basis of our extradition arrangements with any country in the world. We should not wish to make extradition arrangements other than on the basis of ensuring that no one was extradited and brought to trial merely on the basis of the opinions that he held or the group from which he came. Because the offence itself must be the basis of the trial, it must also be an offence in the country from which extradition is sought, and not peculiar to the country seeking extradition.
In any extradition treaty, each side must also be satisfied that the person extradited will have a fair trial. We know that the system operated within the constraints of Northern Ireland still provides a fair trial, but it is understandable that, sensing our concern that we still have in Northern Ireland a system different from that prevailing in England, Scotland and Wales, some people in the United States may argue that there is thus no basis for extradition. I wonder how confident the Minister is that United States courts will interpret this legislation on a 380 basis that will ensure that a person who has committed an offence in Northern Ireland is extradited for trial in Northern Ireland.
Clearly we must continue to strive to restore in Northern Ireland the patterns of judicial operation with which we are familiar in England, Scotland and Wales. I hope that that is an objective on both sides of the House and that we can move as quickly as possible in that direction. Anything which might even give a pretext for full-scale extradition not to operate is clearly something we would want to remove, quite apart from the other arguments which would lead us to want the system of justice in all parts of the United Kingdom to be on the same footing.
That is only part of the battle against terrorism. All the other measures that we have to take—security of airports, attempts to trace and track down and have advance warning of the activities of terrorists, denying to terrorists the means to carry out their terrorism, including arms—are vital to this.
We are bound to be concerned in this context if a country with which we have satisfactorily secured this agreement should find that its Administration, contrary to their own policy, are capable of supplying arms to a country which is supporting terrorism, only to see the proceeds of those deals used to support another group of people carrying out a guerilla war in yet a third country. As has been pointed out, the achievement of this vote in Congress may have owed something to our Prime Minister's support of President Reagan in his bombing of Libya. I think that our Prime Minister will find that she does not enjoy the same support of Congress in her backing of President Reagan over the whole Iranian arms issue. Indeed, many of the same Congress men who supported us on this issue in the crucial vote on this treaty are now voicing criticisms of their own Administration for taking actions which are not consistent with maintaining the battle against terrorism. Americans recognise that the integrity of the Government in the battle against terrorism must be maintained. Extradition treaties are only part of the process by which we can defeat terrorism—one of the worst evils that confronts our generation.
§ Mr. Mellor
I am grateful to the House for the warm welcome that it has given to these arrangements and the tributes that have been paid to the very hard work that went into negotiating them. The obvious care and attention that hon. Members who have contributed to the debate have paid to the supplementary treaty has been evidenced by the quality of the contributions that have been made and the detailed points that have been raised.
The hon. Member for Hammersmith (Mr. Soley) ranged fairly widely over the extradition territory, and we shall return to that on the Criminal Justice Bill. I hope that I was of assistance to him during the course of his speech with a number of points. Apropos the prima facie case requirement, I hope very much that before giving notice that the Opposition might oppose that particular part of the arrangement he will consider the points that have been raised, particularly the widespread recognition evidenced by The Guardian leader, that we have to deal with the very real problems posed by the feelings of a number of friendly countries whose criminal justice system is different from ours. They are asked to perform the unwieldy contortions, as they see it, of having to bring a case, perfectly acceptable 381 in their courts, into a quite different form from our system. If we make it too difficult for them to extradite people from our country, they will lose interest in helping us. That is why we lost the Spanish extradition arrangements in 1977 and why it took us 10 years to get them back again, Marbella now being the largest open prison that we have.
Crime is now such an international phenomenon, as my hon. Friend the Member for Bury St. Edmunds (Sir E. Griffiths) is constantly reminding us, that we cannot afford to allow these things to get rusty, but where we are dealing with common law jurisdictions within the Commonwealth a prima facie case remains under the 1967 Act.
I appreciate the points made by my hon. Friend the Member for Bury St. Edmunds. Of course, all of us would have preferred it if the treaty that I am commending to the House tonight was the one originally initialled by the two Governments, not the one that came from the Senate. But, that having been said, this supplementary treaty from the Senate is still a worth while document, although it is not ideal.
I place some reliance—this is relevant to the interesting speech of the hon. Member for Berwick-upon-Tweed (Mr. Beith)—on the thought processes of the judge in the Doherty case, who drew a distinction between the political safeguard that he applied against us and the requirenents of a fair trial—the humanitarian safeguard—by saying tht he was satisfied that Doherty's trial in 1981 in Northern Ireland, under the arrangements that prevail there, was fair.
But who can give guarantees—I am sure that no one is seeking a guarantee from the Dispatch Box—about what a judge in a foreign jurisdiction will think in any case which he considers? The scope for a perverse decision is much more limited than it was when the political safeguard, as broadly and consistently defined by the American courts, was in operation. At least we have dealt with that.
It is always a pleasure to participate in a debate with the right hon. Member for South Down (Mr. Powell), who referred to my attempts to assist other hon. Members. I assure him that I would never try to give a master class in his presence, but I shall try—inadequately—to answer some of his points, I hope to his satisfaction. Those points reflect an intricate and detailed consideration of the measure I am grateful to the right hon. Gentleman for spotting the error. I am sorry that my well-paid staff, who will be deducted a month's wages, failed to do so. As I understand it, schedule 1 is incorporated into our extradition law by a combination of the Suppression of Terrorism Act 1978 and the extradition orders which will be laid by the Foreign Secretary.
The right hon. Gentleman mentioned items 3 and 6 in the suppression of terrorism list. Item 3—rape—was left out because of our wish to cleave as closely as possible to the treaty, which omits rape, and because no English court would consider rape as being subject to political 382 considerations. As for assault, grievous bodily harm and upwards are included, but the Americans took the view that assaults below that were potentially too trivial to be included in the arrangements.
The firearms and explosives listed in article 1(d), led to difficulty, because the American attitude to firearms is different from ours, and their rules about the possession of firearms are markedly different from ours. The result is that article 1(d) reflected the wide range of weaponry which our laws agreed were unlawful. We cannot push the United States further than the list in 1(d), although it is fair to say—the right hon. Gentleman pertinently asked whether there was complete mutuality of obligation—that we are probably giving the Americans, although since the law is not in precisely the same form the parameters cannot be rigidly defined, more than they are gibing us, because some of our firearms offences are more widely drawn than theirs. We have very different cultural attitudes to the possession of firearms, but that is the only material difference in the points of mutuality that I would wish to draw to the attention of the House.
In reply to the interesting speech of my hon. Friend the Member for Orpington (Mr. Stanbrook), I should say that the Americans have done their part to ensure that the arrangements are carried into force. I can cast the blame for the word "offense" on to another Department. We queried this before it was queried in the I-louse, and were informed by the Foreign and Commonwealth office, whose word is its bond and which we always accept, that the authentic text is the exchange of Notes and that the exchange of Notes was cast in American rather than English. So there we are. The impact of these arrangements on the Criminal Justice Bill is something that we would be able to take up with the United States, but we are under no obligation to do so. We could do so when the time comes.
The offence of conspiracy is absent because it falls foul of some of the mutuality provisions, and not only in the context of the United States. For that and other reasons, that offence is not generally extraditable, as we have found to our cost in a number of cases.
I am advised that the Irish Government have introduced legislation to ratify the European convention on the suppression of terrorism. It is still proceeding through the Dail. My hon. Friend the Minister of State, Northern Ireland Office indicates that that is the position.
I hope that I have done justice to the careful debate that we have had by responding with equal care to the detailed matters that have been raised. I am grateful to the House for the warm welcome that it has given to these treaty arrangements, which I hope can now speedily complete their passage through Parliament.
§ Question put and agreed to.