§ 4.55 p.m.
§ Order of the Day for the Second Reading read.
§ LORD STONHAM
My Lords, I beg to move that this Bill be read a second time. It is now some four years since the case of Chief Anthony Enahoro heavily underlined the extent to which the Fugitive Offenders Act of 1881 had become outmoded. The Act, originally designed as an instrument to secure the return of offenders between the component parts of a single Empire, is no longer a suitable piece of machinery for regulating extradition arrangements between the separate sovereign States of the Commonwealth as we know it today. The absence of safeguards in the existing legislation had always seemed likely to cause embarrassment as more and more member countries of the Commonwealth achieved complete independence, but it was the Enahoro case which really showed how inadequate the powers conveyed by the old Act could be. For that reason it can properly be regarded as the starting point of the Bill now before your Lordships.
The Enahoro case focused attention on three features of extradition practice on which there were significant differences between the Fugitive Offenders Act of 1881 on the one hand and, on the other hand, the Extradition Act of 1870 and the treaties made under it. They were, 51 first, the absence of a specific list of extradition crimes; secondly, the lack of safeguards relating to political offenders and, thirdly, the absence of any discretion to withhold the surrender of a person liable to the death penalty.
These deficiencies made it clear that the Act of 1881 could no longer be retained as a continuing basis for the return of offenders between the independent countries of the Commonwealth. Therefore, in May, 1964 (while the noble Lord, Lord Brooke of Cumnor, was Secretary of State for Home Affairs), the Government of the day circulated to the governments of the other independent Commonwealth countries a memorandum, as a basis for Commonwealth consultation setting 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 comprised in the Act of 1881. The memorandum was discussed at a meeting of Commonwealth Law Ministers held in Canberra in September, 1965. From that meeting there emerged a general consensus of opinion as to the desirability of uniform arrangements on a more restrictive basis than that provided by the Act of 1881.
Accordingly a draft scheme was circulated for consideration at a meeting of Commonwealth Law Ministers held at Marlborough House almost a year ago. 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, the establishment of a prima facie case before return, and restrictions upon the return of political offenders. The meeting went on to formulate a Scheme setting out the principles on which legislation within the Commonwealth could be based, and recommended that effect should be given to the Scheme in each Commonwealth country.
The Scheme is fundamentally a statement of principles. It does not constitute a binding Agreement or a Convention; it is rather a basis for legislation within the Commonwealth, which the individual Law Ministers who were present at the Conference undertook to 52 recommend to their respective Governments as an acceptable blue-print for their own legislation. It is agreeable to be able to report that, so far as we are aware, their recommendations have not been found unacceptable either here or elsewhere in the Commonwealth.
It would, I [...], be helpful to review the changes which our acceptance of the principles enunciated in the Scheme is intended to bring about in the machinery for the return of offenders to the independent countries of the Commonwealth. They are as follows:
- (1) there will in future be a prescribed list of the offences for which an offender can be surrendered;
- (2) the surrender of political offenders will be prohibited;
- (3) 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;
- (4) the offence for which return is sought will have to be an offence under the law of both countries;
- (5) a "speciality rule" will operate (as in Sections 3(2) and 19 of the Extradition Act 1870) to preclude prosecution, without the consent of the returning country, for any offences committed prior to surrender other than those for which surrender has been granted.
Although the main purpose of these changes is to bring extradition arrangements between independent Commonwealth countries more closely into line with those obtaining generally among independent sovereign States, the Scheme does not seek merely to reproduce the provisions of our Act of 1870 and the treaties made under it. Thus the prohibition of the surrender of political offenders follows Article 3(2) of the European Convention on Extradition, and the restrictions which it imposes are significantly broader than those contained in Section 3(1) of the Extradition Act, and perhaps more in tune with modern requirements.
I referred to the death penalty provision. Although this is found in a number of our extradition treaties and, in particular, those which have been negotiated more recently—the ones with 53 Israel, Sweden and Austria, for example—it does not form part of the Scheme proper, but is a supplementary provision which countries of the Commonwealth may adopt if they wish. This means in practice that, under the terms of Clause 17 of the Scheme, it will be open to another Commonwealth country either to impose additional restrictions on the return of offenders to this country or to ask us to relax our own provisions in some other respect by way of compensation. This we could do, if we thought it right, under the Order in Council powers contained in Clause 2 of the Bill.
As your Lordships will appreciate, however, the Fugitive Offenders Act of 1881 does not regulate the surrender of offenders only to independent Commonwealth countries. It deals also with the return of offenders between the United Kingdom and her dependencies, from the dependencies to independent Commonwealth countries and to the Republic of Ireland and among the dependencies themselves. Any Bill repealing the Act of 1881 must therefore also make new provision for these purposes, and this Bill does so. Thus, it not only seeks to implement the Commonwealth Law Ministers' Scheme as the basis of the law governing the return of offenders to independent Commonwealth countries from the United Kingdom, but it also modifies the existing arrangements for the return of offenders between the United Kingdom and the dependencies and from dependency to dependency—by which I mean the Colonies, the associated States of the West Indies, and the States to which the Government extends protection, such as the Persian Gulf States.
We have not thought 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. Among the differences are, first, that there will be no list of returnable offences, although, to be returnable, offences will have to be punishable by a superior court in the requesting country by twelve months' imprisonment or more; and second, 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 respon 54 sible for the other's defence it may well be right to return a person for, say, an offence of treason or espionage.
These are the bases on which the Bill is founded. A Bill of this nature cannot, however, be confined, as the Commonwealth Ministers' Scheme was confined, to a statement of the principles which will govern the return of offenders. It must also prescribe the procedure to be followed in this country to regulate the submission and consideration of applications for the return of offenders. These questions of internal practice may involve a delicate division of authority between the courts and the Executive, and the Scheme, regarding this as a matter for determination by each individual country, has deliberately not attempted to specify how that division of authority might most conveniently be achieved. In the case of this country, the Government have thought it right that as much authority as possible should be accorded to the courts, so that, where questions of liberty are in issue, the matter should, to the maximum practicable extent, be dealt with in the open and by way of the established machinery for the reception and consideration of evidence.
Under the Extradition Act of 1870 a machinery has existed for a very long time for dealing with cases of this kind. Where a procedure has been tried and tested over the years and has not been found wanting in any major particular, it would be rash to depart from it without good reason. The procedure set out in the Bill for the consideration in the United Kingdom of applications for the return of fugitive offenders is therefore substantially the same as that which is followed under the Extradition Act. This has involved some departures from the practice which obtained under the old Fugitive Offenders Act where that differed from Extradition Act practice.
Thus, as under the Extradition Act, the Bill provides for applications to be routed through the diplomatic channel and to be subject to an order by the Secretary of State to the magistrate to proceed, instead of a warrant being sent straight to the court for backing. Although, as experience under the Extradition Act shows, intervention at this stage is very rare, the Secretary of State, by refusing to issue an order to proceed in a case 55 where it appears to him that he will not, at the end of the day, order the return, can secure that a fugitive is not subjected to unnecessary and unfruitful proceedings.
Another change which has been made, in order to bring our domestic procedure more closely into line with that of the Extradition Act, is to provide that the standard of proof required by the court of committal shall be materially the same as that specified under Section 10 of the Act of 1870. The requirement there is that the evidence produced would justify the person's committal for trial in this country if the offence had been committed here. The old Fugitive Offenders' Act, on the other hand, requires "a strong or probable presumption" of guilt. For many years it was believed that there was no significant difference between the two requirements, but this was shown not to be the case in the judgment of your Lordships' Appellate Committee in the case of Armah v.Government of Ghana (No. 1) 1966. Steps have therefore been taken in this Bill to bring the required standards into line. It has not, as it happens, been found practicable to employ precisely the same wording in Clause 7 of the Bill as is used in Section 10 of the Extradition Act, since the term "committal for trial" is not consistent with procedure followed in Scotland, but, subject to that, we have aimed at a uniform standard.
Mention of Scotland brings me to one of the differences between the procedure under the Fugitive Offenders Act and the Extradition Act which we have thought it right to maintain. Scotland has traditionally exercised a separate jurisdiction under the Act of 1881, and so where it is thought that there is good reason for an application to be heard in Scotland—for instance, if it is the offender's normal place of residence—there is provision for that to be done. These cases will be considered by appropriate courts in Scotland, and the powers of the Secretary of State will be exercised by the Secretary of State for Scotland. All other cases will be dealt with by the courts in this country and by the Home Secretary, and it will be immaterial whether the fugitive is found in England and Wales, or in Northern Ireland, the Channel Islands or the Isle of Man.
56 Another most important difference from the extradition procedure stems from an Amendment made to the Bill in another place, as a result of which it is specifically provided that an offence against the life or person of Her Majesty as Head of the Commonwealth should not be regarded as an offence of a political character for the purpose of proceedings here in respect of an application for the return of the alleged offender to a designated Commonwealth country. It was thought right to make this modification of the Bill, since an offence against the Head of the Commonwealth can be regarded as equally damaging to every member country of the Commonwealth.
May I now describe briefly the individual clauses 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 their application to any individual country.
Clause 3 and Schedule 1 together prescribe the offences in respect of which offenders may be returned to designated Commonwealth countries. For the purposes of return to United Kingdom 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. 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.
Clause 5 provides that a request for a fugitive's return shall be made to the Secretary of State, shall be accompanied by specified particulars, and shall not be 57 proceeded with except in pursuance of the Secretary of State's authority to proceed. Clause 6 specifies the circumstances in which a warrant may be issued in the United Kingdom for the arrest of an offender for whose return a request has been made. Clause 7 deals with the committal proceedings in respect of a person who has been arrested, while 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, nevertheless affords the Secretary of State a discretion to withhold return in such a case. Clause 10 enables an offender to apply to the High Court (or the High Court of Justiciary in Scotland) for his discharge if, without good cause, he has not been returned within the prescribed period.
Clause 11 governs the admission, authentication, et cetera of evidence for the purpose of proceedings in this country. Clause 12 deals with places of committal to custody, re-arrest in the event of escape, removal from one place of custody to another and custody during surrender. Clause 13 enables the form of warrants and orders under the Bill to be prescribed and authorises an Under-Secretary to sign such documents on behalf of the Secretary of State.
Clauses 14 and 15 relate to fugitives returned to this country. They bind the Government to apply a speciality rule to such offenders and empower the Secretary of State, in certain circumstances, to send back a person, so returned, free of expense. Clauses 17 and 18 provide for the extension of the Bill, by Order in Council, with such modifications as may be necessary, as part of the law of any Colony, Protectorate or other dependency, and for alternative arrangements for Colonies and dependencies to be made by Order in Council where it is considered appropriate.
As your Lordships will have noticed, the Act will not automatically come into 58 operation completely on a given date, and I should perhaps, in concluding, give some indications of the Government's proposals for bringing it into being. It is our intention that, very shortly after the Bill receives the Royal Assent, an "appointed day" order should be made bringing the Act into force. That order will have the effect of applying the Act to the return of offenders from the United Kingdom to the Colonies and associated States. Separate Orders in Council will have to be made to designate independent Commonwealth countries under Clause 2(1), and to specify the protected States referred to in Clause 2(2)(c), before the Act can be brought into force to govern the return of offenders to those countries. That will be done as soon as possible after Royal Assent, but the governments of the independent Commonwealth countries will be informed in advance, so as to give each of them an opportunity of indicating whether they would wish that use should also be made of the Order in Council powers under Clause 2(3) to modify any of the provisions of the Act in its application to their country. We hope, however—if your Lordships approve the Bill, as I hope you will—that in all cases the Act will be in operation by the autumn. My Lords, I beg to move that the Bill be read a second time.
§ Moved, That the Bill be now read 2a.—(Lord Stonham.)
§ 5.19 p.m.
§ LORD BROOKE OF CUMNOR
My Lords, the whole House is indebted to the noble Lord, Lord Stonham, for his careful exposition of a complicated Bill. It is indeed, although a short Bill, a complicated subject, with a long history, and it well deserves your Lordships' attention. The whole subject is also one which, in my view, can be more easily grasped by professional lawyers than by those of us who are laymen in the law, and I ask for the indulgence of your Lordships if I slip up in any respect. I have not professional qualifications in this field; neither have I, as the noble Lord, Lord Stonham, now has, access to advice from official quarters.
I have no doubt that legislation of some character is required, but in my judgment this Bill will create problems, as well as solve problems. The first 59 point I want to submit is that anybody will be making a grave mistake if he imagines that once this Bill comes into operation all the heavy clouds which at various times in the past have hung over this subject will be dispersed and that we shall have clear weather for ever after. I think that it is common ground, both in Parliament and throughout the Commonwealth, that the 1881 Fugitive Offenders Act needs revision. That point, as the noble Lord said, was brought to the forefront by the Enahoro case in 1963.
Chief Enahoro was charged with a grave political offence in Nigeria, and the Nigerian Government, under the procedure of the 1881 Act, had a warrant issued for his arrest in London. The British courts before whom he appeared found that there was "a strong or probable presumption" of guilt, and that it would not be "unjust or oppressive, or too severe a punishment", if he were returned to Nigeria to stand his trial there. I am not choosing my own words; I am using the words from the 1881 Act. And those were the issues which came before the courts under that Act.
Finally, under that same Act the Home Secretary had to take a decision, and I have no doubt whatever that my decision in the case of Chief Enahoro was right—indeed, I could not have decided otherwise, in all the circumstances, without casting grave and wholly boundless aspersions on the quality of the justice dispensed in Nigerian courts. But the fact remained that the 1881 Act was passed in the time of the British Empire and not the British Commonwealth. That fact alone, the variety of independent nations now contained within the Commonwealth, called for a new look to be taken at an Act passed in such different circumstances. I noted the three points in which the noble Lord said that the 1881 Act was out-dated. In fact in the case of the death penalty—indeed, in every case—the Home Secretary retained final power, unfettered by the Act; but it led to his having to make some very difficult decisions. It was absolutely right, I am sure, that Parliament and the Commonwealth should take a new look at the 1881 Act.
60 Accordingly, as the noble Lord said, following on the Enahoro case I took the lead in working out within the British Government a new plan for discussion with all the independent Commonwealth countries. It was circulated, as the noble Lord said, in May, 1964, and I am prepared to say that that plan is the basis on which the Bill now before your Lordships is founded, though certain alterations have been made in the original plan as a result of two Conferences of Commonwealth Law Officers. What I had in mind at that time was a two-tier system: a basic layer, as it were, of mutual obligations to return offenders, which might run between all the independent nations of the Commonwealth; and then, on top of that, an additional layer of further obligations which might be mutually accepted by agreement between any two Commonwealth countries with more than usually close ties between their political systems.
Though it is not very apparent on the face of the Bill now before us, I think that subsection (3) of Clause 2 renders it possible to reach and apply these additional bilateral agreements. Perhaps the noble and learned Lord the Lord Chancellor, in winding up, will not only confirm this but will also confirm what I suspect to be the case, that those special arrangements can, in point of fact, override the general restrictions which are laid down in the Bill. For example, though the Bill says that political offenders are not to be returned, it will be possible, under subsection (3) of Clause 2, to reach a special arrangement with a particular Commonwealth country that will provide for the return of political offenders between those two countries.
It seemed to me at the time that if the plan which was circulated to the Commonwealth in 1964 found acceptance, two further consequences would ensue. As it might lead to persons guilty of foul crimes not being returnable to the country where the crime was committed, there to stand their trial, on the ground that their crime had been a political one, those people would be free to remain in this country—perhaps to the utter disgust of British public opinion—unless Parliament gave to the Home Secretary the same power which he holds in the case of aliens, to deport a Commonwealth 61 citizen on the ground that his presence here is not conducive to the public good.
Your Lordships must bear in mind that in the case of an alien the Home Secretary can sign a deportation order either on the recommendation of a court of law or because he considers that an alien's presence is not conducive to the public good, though the person concerned has not in fact committed any crime here. I know that the present Home Secretary signed certain orders of that character recently, and I am sure he was right: I had to do the same from time to time. But with regard to a Commonwealth citizen the law is different. In such a case the Home Secretary can make a deportation order only after the Commonwealth citizen has been convicted of some crime in this country. It is that difference which if it is not ironed out in some way, is going to cause serious difficulty.
I should like now to look hack for a moment. In the course of my speech I shall have to mention some hypothetical situations of a dreadful character, but all the experience we have had in this field teaches us that one should look ahead and provide in advance against situations that might arise, rather than allow them to come along and then find that the law is not wholly as everybody would wish it to he in dealing with them.
Suppose that the murderer of President Kennedy had escaped and got to this country, and had been detected here. It would almost certainly not have been possible to extradite him under the 1870 Act, because it would have been ruled that his offence was a political one. One cannot be certain of that, of course, but there are cases involving the murder of Heads of State which lead to the view that it would undoubtedly be ruled that it was a political offence; and the Extradition Act 1870 does not permit the return of political offenders. What the Home Secretary could have done in such a case was to make a deportation order on the man, taking the view that a man who was suspected of such a dreadful crime should not be in this country and that it was not conducive to the public good that he should remain here.
Let us take another wholly hypothetical situation. Let us suppose that there had been an assassination of some Commonwealth Head of State. Let us suppose, 62 in fact, that by some dreadful disaster Mr. Nehru had been assassinated and the assassin had escaped and been found in this country. Under the Fugitive Offenders Act 1881, even though that were judged to be a political offence he could have been returned for trial in India. Under this Bill it would not be possible to return him, unless, of course, a special arrangement were made under Clause 2 with the country in question. I must warn the Government that they are storing up acute trouble for themselves and their successors if they are not willing now to face this issue.
The second consequence which I had in mind was that as soon as Commonwealth agreement on fugitive offenders was achieved and we revised the 1881 Act accordingly, we ought to lose no time in revising the 1870 Act on broadly similar lines. I welcome the fact that in certain respects the law regarding fugitive offenders is brought into detailed uniformity with the 1870 Act relating to aliens. The 1870 Act, as is common knowledge, absolutely forbids the return of political offenders. There is no escape clause from that, like subsection (3) of Clause 2. This means that we could in no circumstances return for trial a man accused or even convicted of the murder of a Head of State or a leading and perhaps greatly respected statesman of a foreign country. if the murder appeared to he politically motivated.
If it were a country with which we were on particularly friendly terms, I frankly do not think that public opinion either here or there would tolerate this. We could deport the man, we could send him away from this country, but the country of the murder could not ask us to extradite him there to stand his trial. I suggest that it is time to begin to ask ourselves whether murder is so terrible a crime that it should no longer rank as a political offence. I feel fairly strongly that public opinion is not going to accept that murderers of leading statesmen or Heads of States should be able to come to this country and stay here with impunity.
I have pointed out that a political murderer who has committed the offence in a foreign country could be deported, made to go somewhere else; though he could not be extradited, made to go back 63 to the country where the offence was committed, to stand his trial. But a Commonwealth citizen cannot be sent back as a fugitive offender under this Bill—though up till now he could, because the 1881 Act did not apply to political offences—neither can he be deported as an alien can, on the ground that his presence here is not conducive to the public good. I submit that we must think very seriously about the situation which may arise if we have political murderers seeking sanctuary in this country.
The same defect in our law appears in the case of espionage. I trust I shall be forgiven for dealing with the 1870 Act as well as the 1881 Act, because I do not think that the present Bill before us can be properly considered except against the whole background of relations with foreign as well as with Commonwealth countries in this respect. A man may be accused or even convicted of spying against one of our allies in that ally's country. Because spying is a political offence the 1870 Act would not allow our ally to apply for his extradition. This was, in fact, exemplified by the Soblen case in 1962; and it puts an alliance under severe strain if a country's laws debar it from enabling its ally to put a spy on trial.
Having pointed out what more needs to be done, I now wish to come back to the Bill before us. I welcome the listing of returnable offences in a Bill which applies to the Commonwealth. I welcome the inclusion here of the speciality rule which, if I remember rightly, is in the 1870 Act but which, for some reason, was omitted from the 1881 Act. I welcome the proposal that applications should be routed through diplomatic channels and that the Home Secretary should have an opportunity of looking at the matter, because I am very well aware of the embarrassment which it causes to a Home Secretary when a situation which may create grave difficulties for him arises, as it were, behind his back with no official information to him from the other country that action is being taken. I welcome that, and I welcome various other detailed provisions which are based on the valuable experience which we have gained from the 1870 Act.
64 I also welcome very strongly subsection (5) of Clause 4 relating to the Head of the Commonwealth. But this, of course, does not refer to the rest of the Royal Family, nor does it refer to Commonwealth Prime Ministers or leading statesmen. I think your Lordships will want to know what the Government have in mind here. I am sorry to have to refer again to dastardly possibilities, but let us suppose that someone were to make an attempt on the life of Prince Philip or the Queen Mother in a Commonwealth country, and that the would-be assassin escaped to this country. I do not believe public opinion would tolerate his living among us here unpunished, being neither returnable for trial under this Bill nor deportable. Of course, the same situation would arise in reverse if an attempt were made on the life of a member of the Royal Family in this country by a Commonwealth citizen who was then detected in the Commonwealth country to which he had managed to return.
Political asylum is a great and noble concept and Britain has a fine record in offering it. But political asylum is to save people from suffering unjustly or undeservedly. For Britain to grant people who have committed detestable crimes a kind of sanctuary from punishment is a wholly different matter, and I hope the Government will explain how they see themselves able to avoid having to do that if this Bill becomes law.
On a particular and rather complex point, which is so important that it should be raised on Second Reading, I should be glad to know whether the Government have in mind to amend Section 3 of the British Nationality Act 1948—a provision which was obviously drafted in the light of the provisions of the 1881 Act and which, I would say with some confidence, would not have been approved by Parliament in that form had the Bill which is now before us been the law at that time. Perhaps I can best illustrate what I mean by giving an example, rather than by stating it in abstract terms.
Let us suppose that a foreigner and, let us say for the sake of example, an Australian citizen—although it might be a member of any other part of the Commonwealth—took part jointly in giving away British secrets in Australia to a foreign power. The foreigner would 65 commit an offence against United Kingdom law, but the Australian would not. If they both were subsequently detected in Britain, the foreigner could be put on trial, but not the Australian. Under the Fugitive Offenders Act 1881, of course, the Australian Government could demand the return of their citizen to Australia to stand his trial there if he had committed an offence against Australian law, but the Bill now before us would preclude that unless we had a special arrangement with Australia covering the point. As I say, this is a complex matter on which I would not press the Government for a reply at short notice in this debate, but I think your Lordships will recognise its considerable importance.
I have a few specific questions to ask on the Bill. Other noble Lords may have more, but as I was fairly familiar with the original plan which was circulated to the Commonwealth perhaps it is somewhat more self-explanatory to me than it might be to those who had not seen the outline plan before. Can the Government explain why, in Schedule 1, which lists the relevant offences, the contravention of import or export prohibitions relating to precious stones, gold and other precious metals is to be a relevant offence, whereas other forms of currency offence, or indeed smuggling, are not to be included in the list? I know that the brief answer is, "Because the Commonwealth Law Officers so decided", but presumably our representatives at those conferences concurred in this, and there must be a rational explanation.
I am not wholly happy about a clause to which the noble Lord referred, that is, Clause 4. Subsection (1) of that clause sets out the parallel or perhaps concurrent powers of the courts and the Home Secretary. The noble Lord described this as "a delicate division of authority". He said that this part is not covered by the agreed Commonwealth scheme, and that it was the Government's desire that as much as possible of the questions at issue should be threshed out in open court. I have no doubt at all that the question of whether an offence is a political offence is a natural matter for the courts. It is quite true that the 1870 Act gives dual jurisdiction in this case, but it has always seemed to me that it would be natural for the courts to decide, if a question was put to them 66 under the 1870 Act, whether an offence was a political offence or not, and that it would be unlikely that the Home Secretary would take a view different from the court that had heard evidence on it.
I must say that subsection (1)(b) and (1)(c) of Clause 4 seem quite a long way from what I have always regarded as normal justiciable issues. Here I must say again that I am not a lawyer, and certainly I cannot think myself into the position of a judge, but subsection (1)(c) of Clause 4 seems to me to expect British courts to pass judgment on Commonwealth courts. Under this provision, the High Court may be asked to say whether the person might, if returned to the Commonwealth country concerned,… 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 am not saying that it is beyond the powers of a British court to decide that question, but it seems to me that it creates a most unpleasant jurisdiction for them and I find myself wondering whether it would not have been better to demarcate rather more clearly what were the matters which the courts would need to decide in such a case, and what were the matters which the Home Secretary would need to decide.
§ LORD STONHAM
If the noble Lord will allow me to interrupt, it seems that in essence the issues would have to be decided, whether by the court or by the Home Secretary, and it should surely be no more difficult for the court to decide than for the Home Secretary.
§ LORD BROOKE OF CUMNOR
I appreciate that it is taking a very unpleasant responsibility off the shoulders of the Home Secretary, because I can remember circumstances while I was Home Secretary in which a question arose as to the return of an offender to a country, not Nigeria, in which I did not have the same confidence in the impartiality of its courts as I had in the case of Nigeria. That is an extremely unpleasant decision for the Home Secretary to take, but it does not seem to me to make the general situation any easier if the British courts of justice are asked to decide it. I should have thought that it would create very undesirable tensions at judicial level. However, this is not a matter for me to judge. Noble and 67 learned Lords will be able to advise your Lordships much better than I can on matters like that. It simply seemed to me that it was a question that I ought to raise.
The noble Lord was good enough to explain what the Government have in mind as the course of proceedings after the Bill becomes law. He said that the Government would fix an appointed day quickly, which would have a certain effect, and that after that they would proceed to make Orders in Council designating Commonwealth countries under Clause 2. He explained further that before doing that each Commonwealth country would be consulted. May I ask him whether it is the Government's intention to make an Order in Council as quickly as possible designating all independent Commonwealth countries, irrespective of whether they intend to take practical steps to grant us reciprocity in these matters? As a separate question, may I ask him whether the original designating Order in Council will simply do the designating, and then whether the Government contemplate making a further Order in Council for a particular country with which it has been able to make an arrangement under subsection (3) of Clause 2?
Further, will the Fugitive Offenders Act 1881, which is the present law, continue to apply in relation to a particular independent Commonwealth country until a designating Order in Council is made? Then, perhaps most important of all, can the Government tell us what in fact the other independent Commonwealth countries are doing as the outcome of the Law Officers' conferences? Do we intend to go ahead designating countries regardless of reciprocity? Of course, I am not impugning in any way the good faith of the Commonwealth countries which have agreed to the Scheme, but we all know that there is many a slip, and even this Parliament does not always rapidly proceed to legislate in order to bring the law of the land quickly into conformity with some Convention to which we have agreed at a conference. Clearly, reciprocity is important. That was the purpose of having a Commonwealth Conference—to try to obtain as great a measure of reciprocal uniformity as possible throughout the Commonwealth.
68 What happens if it becomes clear that, in the case of some particular Commonwealth country, we are not to get reciprocity? Or, indeed, if after a period reciprocity is withdrawn, and the other Commonwealth country informs us that although they agreed in good faith to the scheme, they now take other views and have in mind different legislation? So far as I can see, there is no provision under the Bill for withdrawal of designation.
I think the fact that the Scheme has been agreed and cannot be altered by us unilaterally makes it the more important to put all these questions to the Government on Second Reading, so that Parliament and the country can know exactly how we shall stand. Of course, I entirely appreciate that the noble and learned Lord the Lord Chancellor may wish to defer his answers to some of these questions until the Committee stage. I have no doubt at all that we should give the Bill a Second Reading; but while accepting fully the case for bringing the 1881 Act into line with modern relationships, I trust that no-one will imagine that this Bill will lessen materially the possibility of tension arising with Commonwealth countries or will save future Home Secretaries from having agonising situations to deal with.
§ 5.51 p.m.
§ LORD STOW HILL
My Lords, I should like to make a short intervention in your Lordships' discussion of this Bill—short because its purposes have been explained with such fullness and clarity by the noble Lord, Lord Stonham, and we have also had the advantage of a most well-informed, careful and valuable analysis of its provisions by the noble Lord, Lord Brooke of Cumnor. My intervention, I hope, will be short for the additional reason that, in view of what has already been said, I wish to concentrate on one clause of the Bill. I refer to Clause 4, which I regard as its focal point.
May I refer back for a moment to the Enahoro case. I thought that the noble Lord, Lord Brooke of Cumnor, was confronted there with a most difficult and agonising decision. It was the kind of decision in which, if you say, "Yes", you are plainly wrong; if you say, "No", you are plainly wrong; and if you say nothing, you are doing something still more unforgivable. When I had some 69 responsibility for this matter I was most glad to know that the noble Lord, Lord Brooke of Cumnor, had instituted the discussions between Commonwealth countries which ultimately led to the Conference of Law Ministers from which the Scheme on which this Bill is based sprang. I thought that the noble Lord's difficulty in the Enahoro case really arose from the fact that in the Fugitive Offenders Act 1881 the discretion given was so widely drawn: there was no sort of indication as to the kind of criteria which a Home Secretary should apply. Under Section 3 of that Act, it was within his jurisdiction to return an offender—and I think I am quoting correctly:if he thinks just".The position is wide open; he must consider absolutely everything.
In Section 10 the court was given an equally wide discretion, somewhat more clearly set out, which for the purpose of the argument that I wish to present to your Lordships is not immediately relevant. In the Enahoro case the noble Lord, Lord Brooke of Cumnor, found himself (I hope I am correctly following his train of thought) confronted with the uneviable task of trying to answer the question whether "it was just", in the circumstances of that case, to order that Chief Enahoro should not he returned to Nigeria. He took the view that if he did so it would be inflicting a grave insult on the courts of Nigeria and that his duty was to give a negative answer. Other persons who considered the same case felt, equally strongly, that his duty was in the other direction.
I always thought, when considering that case, that it was of great importance, for the purpose of avoiding friction between Commonwealth countries and to preserve good feelings, to try in some way, in terms of an Act, to give some guidance to the Home Secretary as to the sort of things he was to have in mind. I thought, further, that surely the right course was this: that since the Extradition Act 1870 it has always been deeply engrained in our tradition that we do not return to other countries persons charged or convicted of political offences. The courts have considered the meaning of the expression, "political offence". There was a decision in 1893; there was a decision in 1894; there was the recent decision of your Lordships' House, in the Schrack 70 case, as to what is really the meaning, judicially construed, of the expression "political offence".
If one looks back at the Extradition Act 1870 one finds that there was, as it were, this guidance: an offender was not to be returned—it was a categoric prohibition—if he was sought for trial for a "political offence"; a political offence as the courts construed the expression "political offence". He was, further, not to be returned if he could prove—I suppose by evidence or by representations, according as the case may be—either to the committing magistrate or to the court of record from which he asked for a Writ of Habeas Corpus or to the Secretary of State— in that order—in the 1870 Act, that, although ostensibly he was sought by the requisitioning country for trial for a non-political offence, the real object was to punish him for a political offence.
If one looked at an Act in that form, one at least could draw a ring round the matters which the court or the Home Secretary, as the case might be, had to consider. The court would determine the matter by application of ordinary judicial principles and decisions and by listening to such evidence as was brought before the court—often not a particularly agreeable task; but, at any rate, a task to which the court could address itself. The Secretary of State was given a kind of co-ordinate jurisdiction under the 1870 Act, notwithstanding the decision of the court that there was no reason not to send the fugitive back, nevertheless to refuse to send him back on the same grounds.
So the Home Secretary, if he exercised his discretion, had to ask himself two questions: first, is the offence for which the offender is sought a political offence? And the second: is he really sought in order to punish him for a political offence? So the whole bent of his mind, the whole attention of his consideration of the case, must be primarily focused on the question: was the offender really to be tried in his own country for something which the courts in our country had said was a political offence? That was difficult discretion in any event; but still one which could be exercised and which had, after all, traditionally over the decades, been exercised by the Home Secretary—and I think that, historically, I am speaking not too inaccurately when I say 71 without major ruptures of good feeling between this country and other countries.
That was the law so far as foreign countries are concerned. If I may speak for myself, when I addressed myself to this problem I thought that in the long run, now that the Commonwealth countries were completely sovereign and independent (as independent as any foreign country, and as entitled as any foreign country to organise their own country's judicial and political system as it seemed to them good), it was at any rate a possible solution to use in one's relations in this context with Commonwealth countries something very close to the machinery provided by the Extradition of Offenders Act 1870.
When one examines the plan which emerged from the Conference of the Law Ministers of the Commonwealth countries, one finds—so I would respectfully submit to your Lordships—there has been a rather difficult compromise. What has been adopted from the 1870 Act is the concept, in the first place, of an offence of a political character. If one looks at Clause 4(1) of this Bill one finds, in the first place, that there is the same bipartite jurisdiction, if I may so describe it, divided between the Home Secretary and the courts. The Secretary of State and the committing court and the superior court are mentioned in inverse order, but I do not think that makes very much difference. The Home Secretary is given a discretion under Clause 4, and the courts are given the duty of coming to a judicial decision under that clause.
If one stopped at Clause 4(1)(a) one would find that what the courts or the Home Secretary, as the case may be, have to decide is whether the offence of which that person is accused, or was convicted, is an offence of a political character. So far, so good. That is something which the courts can decide, and which, as I apprehend it, does not impose an unduly difficult and onerous task as a matter of exercise of discretion by the Secretary of State.
It is when one gets to paragraph (b) and paragraph (c) that I confess I have some apprehensions. The noble Lord, Lord Brooke of Cumnor, touched on this, and I should like to follow him a little further along the line of thought which he adumbrated. Paragraph (b) requires the court 72 or the Home Secretary to consider the question whether the request for a person's 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 opinions.I do not think that any Member of your Lordships' House would in any sense demur to the purpose which stands behind that language. I think everybody would find it utterly deplorable if a person in any Commonwealth country, or in our own country, were ever at a disadvantage because of his race, religion, nationality or political opinions. That we would accept at once. What I am concerned with is precisely how this is to work when the task of making a decision under paragraph (b) devolves either upon the courts or upon the Secretary of State.
I cannot help thinking that when one looks at paragraph (c) the difficulty is even more accentuated. If I may trouble your Lordships by reading the paragraph, it is worded as follows: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.Now if that matter comes before the committing magistrate, or a court from whom the fugitive asked for an order of habeas corpus, what is the evidence to be? If one fastens on the word, "punished", I suppose that means that our courts are to be asked to decide whether because a fugitive belongs to a particular religion, or possibly belongs to a particular tribal group, or has in the past expressed certain political views, or has been identified with a certain political party, experience in those courts shows that it is likely that he will get a heavier punishment, because of the characteristics to which I have referred, than if he were not under the disadvantage of having those characteristics.
Anything more disagreeable I cannot conceive. It may be that that is the only way in which this can be dealt with. As I say, the purpose behind it is obviously laudable; but I cannot say that I envy the task of any court in our country which would have to listen to evidence: that A was sentenced for precisely the same offence to 6 months; that B, of such-and-such a tribal group to 12 months for an 73 offence which was exactly similar; and that C, who was not of that tribe, to 6 months, and so on. One of the objectives is to preserve good feeling between Commonwealth countries. After all, whatever is said about the Commonwealth, it is an agglomeration of 700 million people of different races. It is an immense force for world peace, and it would be almost world suicide to disband it or cast it aside. It is an immensely valuable thing for the progress of mankind.
Let us consider the word, "detained"—not given bail, I suppose, because he belongs to a certain race or because he is of a certain nationality. I do not mention any particular country because it would be highly invidious to do so, but that is the task which would devolve on the courts. I do not care to think of the position of the Secretary of State. What is he to do? The matter comes before him and he has to exercise his discretion. He must do so, of course, courageously and fearlessly, trying to do justice to the individual; but it will be a very distasteful task for him to undertake. When I think of the noble Lord, Lord Brooke of Cumnor, facing the inherent difficulties in the Enahoro case, I cannot help thinking that with this paragraph, the difficulties would have been greatly multiplied.
I am not asking your Lordships to say that this Bill should not be read a Second time; I certainly think that it should. I think that the noble Lord, Lord Brooke of Cumnor, did a great service in starting the discussions from which this Bill ultimately eventuates, and I hope that it will find its way to the Statute Book. I call the attention of your Lordships to that particular aspect of it—which is really rather a vital one—at this early stage in your Lordships' consideration of this Bill in your Lordships' House, because you may wish to give further thought to it.
I think this is extremely difficult. It is equally difficult to refuse to enact it. I gather that Australia is the only country which has yet introduced legislation on the lines of this scheme. The difficulty of reciprocity was pointed out by the noble Lord, Lord Brooke of Cumnor, but it may be that your Lordships will think that some further thought should be given to this: not to frustrate the purpose behind it, because that purpose everyone 74 would say without the least hesitation is an admirable one, but perhaps to try to make it rather more workable and to avoid the difficult, somewhat critical and unenviable situations in which our Government and our courts may find themselves should future Enahoro cases arise.
§ 6.7 p.m.
§ LORD REID
My Lords, I agree with previous speakers that fresh legislation is required on this subject, but I am very sorry to see that the title, "Fugitive Offenders Bill", has been retained, because it inclines people to think that we are dealing only with citizens or residents in some other country who have come here and whom we are returning to their own country. Of course that is not so. This Bill applies—or may apply—to a great many people who are citizens in this country and who are habitually resident here. For example, a man goes abroad, and is accused, when he comes back again from the Commonwealth country (they discover some evidence that he has done something when he was there), and a warrant is sent to this country.
I should like my noble and learned friend the Lord Chancellor to confirm that the Bill may apply to somebody who has never been in the requesting country at all. For example, the counselling or procuring offence is an equally returnable offence with the main one. Suppose that a man in this country writes to his agent in a Commonwealth country and instigates some offence against company law, or against the legislation with regard to the export or import of gold; and then that letter is not forthcoming, but the agent tells some trumped-up story implicating the man, who is perhaps not guilty at all. He will be accused and will have to be sent back—or, rather, not sent back, but sent—to the Commonwealth country, on what may be very inadequate evidence. I will come back to that point, but as the time is late I will come to the points which I wish to make as shortly as possible.
The first is with regard to the words in Clause 2(3), "exceptions, adaptations or modifications". I was rather alarmed to hear the noble Lord, Lord Brooke of Cumnor, asking the Government to use this provision for a purpose for which such words are, I think, never used in 75 fact—that of making substantial alterations in the legislation of this country. "Adaptations, modifications and exceptions" normally mean quite minor things, to adapt a particular transaction to the particular circumstances of the case. But if the Government are overruling the will of Parliament by saying to a certain Commonwealth country that they will exchange political offenders with them, that appears to me to go very far beyond an "exception, adaptation or modification".
If we are to deal with this matter, and I think that we should, because I agree with most of what has been said on the subject of political offences, let us deal with it openly and not covertly by administrative action behind the back of Parliament. I was really rather surprised to hear the noble Lord, Lord Brooke of Cumnor, suggest that deportation ought to be used as a means of getting round the provisions of an Act of Parliament that political offenders are not to be extradited or surrendered under these Bills.
§ LORD BROOKE OF CUMNOR
My Lords, the change in the deportation law which I suggested would need an Act of Parliament in itself. Therefore, before anything of that kind could be done, Parliament would have an opportunity of looking at the full situation very thoroughly.
§ LORD REID
Yes, my Lords, but I thought the noble Lord was founding it on what happens under extradition. I was not aware that it was used in that way, but it may be, and if it is, then I say that that is going behind the back of Parliament. The intention of excluding political offences was to give political asylum in this country; there can be no doubt about that. To defeat that intention by administrative action, by saying that we are not going to give asylum here and sending the man off to any other country that will take him, not his own country, would in effect be surrendering him and would indeed be getting round the Act of Parliament. So it would if we sent him to a country that we know is likely to surrender him to his own country. And who are we going to find to take him, apart from a country 76 of that kind? I do not think that that is the solution.
I am wholly in favour of such an amendment of the law as reduces this exception to the kind of case to which we wish to give political asylum, and cases to which we do not wish to give political asylum ought to be excluded from it altogether. I doubt whether that can be done in this Bill, but I hope that it is not going to be done by adaptation when we come to put the Bill into practical operation. I shall not say anything more on that.
Coming to the next point in order raised by the noble Lord, Lord Stow Hill, I agree with practically every word he said. The next part of Clause 4 is virtually unworkable and I do not think it ought to be there at all. Let us look at it for one moment. I do not want to add to what the noble Lord so eloquently said, but how in the world is a country going to deal with the provision that the accused might, if returned, be…prejudiced at his trial or punished…by reason of his race … or political opinions"?Are we really to have evidence by the accused or by somebody on his behalf that there have been cases in the country in question where people of one race or one political Party have been sentenced to twice as heavy sentences as those of another? And is the consequence to be that the man gets off scot-free and is given asylum in this country, no matter how blameworthy or how disgusting his offence may be? Because that is the consequence. If we say that we will not send him to the requesting country because they may punish him more than somebody else the alternative is to give him asylum here and let him live on public assistance for the rest of his life. Is that really what is intended? I venture to ask. If it is, I should be very much against it, as the noble Lord, Lord Stow Hill, would also be.
I now come to the point on which I would ask the Government whether they will not make an amendment. Clause 7(5)(a) deals with the amount of evidence which is required to justify a committal warrant for sending a man abroad. There has to be sufficient to warrant his trial for the offence if it had been committed in this country. There are several reasons 77 why, in my view, that is an insufficient protection. If we are dealing with a citizen of this country who is going to be sent abroad, it is an extremely serious matter. The magistrate will not see the witnesses, only the written depositions, and he will not know whether the witnesses appear to be telling the truth or not. He has no means of judging. Moreover, as has been pointed out, the Bill overrules a decision of this House of last year which gave much more protection in cases of this kind. I make no objection, but the point is that although provisions for appeal of one kind or another are scattered throughout the Bill, very careful provision is made so that nobody, neither the court nor the Secretary of State, is to be entitled to review a decision of the Bow Street magistrate that an adequate case has been presented to warrant trial.
We have had occasion to go through the authorities on the reported cases on this matter and I am bound to say that in a number of cases—I am not saying to-day, but in the old days, at least—the Bow Street magistrate committed people to be sent abroad on very thin evidence. Why should this be the one element in the whole of this Bill where there is no power of review by anyone? I think I know what will be said. It will be said that there would be a great deal of delay if this sort of thing is allowed. I do not think there would be. We do not allow that to get in our way when we deal with criminal appeals in this country. We ought to adopt the ordinary system of criminal appeal procedure, under which one applies for leave to appeal to a single judge. That does not take much time and it certainly takes no expense. And I should not in the least object to the decision of a single judge being final. Here, for some reason I have not been able to understand, there is an appeal from a single judge to another court. I I should have thought that leave to appeal to a single judge was ample.
I am not asking for any more than that there should be a provision to take a case on appeal to a single judge and that he should be entitled to decide whether to give leave to appeal against a decision that the evidence produced to the magistrate was sufficient to warrant the man's trial in this country. That safeguard has been applied in different ways in different times and places. Some 78 times a very thin case goes forward. It depends largely on discretion, which is another reason why a matter of this seriousness should not depend solely on the discretion of one man, however experienced he may be. I venture to ask the Government whether they will not consider making this alteration. It cannot upset the scheme which has been agreed by the Commonwealth Law Officers or Ministers. It is a purely domestic matter, and I am sure that nobody would object, except perhaps those concerned in the administration, who might think that this would clog up the wheels. But I do not think for one moment that it would.
Perhaps I ought to mention one Scottish point, not because I think anything should be done about it, but because there will perhaps be some criticism in Scotland and I think somebody might mention it. There is a provision in the Bill—and I do not object to it—that the sheriff and the sheriff-substitute shall have to decide whether evidence sufficient to warrant trial exists. As the House knows, no court in Scotland ever has to decide that question. It is always the duty of the Lord Advocate or his deputies who are responsible to him, and for nobody else, to decide whether there is sufficient evidence to warrant a trial. It may be that someone in Scotland will say: "Why this departure?" I quite see the reason, but I think it ought to be made clear that an exception is being made for reasons of convenience, and there is no idea that, as a general rule, any court in Scotland is to be given jurisdiction to decide whether or not a man is to stand his trial. That would be a complete departure from anything which has been known up to date.
There are one or two other short matters that I should like to mention. In the first place, with regard to the death penalty, can my noble and learned friend give any assistance as to how this provision is going to be worked? Let me give a concrete case. Suppose that two people are accused of murder in a country where the death penalty still exists. One man is accused of a peculiarly brutal murder, and if he is convicted there is a strong possibility that he will not be reprieved, but will be executed. The other is a man for whom there are many mitigating circumstances; 79 there is the equal probability that, if he is convicted in that other country, he will be reprieved. Is the intention to keep in this country the brutal murderer, because he risks hanging, and to send back for punishment the man who is very much less guilty, because he is not going to be hanged? How is it going to be worked out. If we have this kind of thing, it makes one begin to think again whether what we think follows from the abolition of the death penalty ought to follow.
The other question which may be of public interest concerns Ireland. Two years ago Parliament passed an Act with regard to Ireland which gave to people in this country much less protection when they were being sent to Ireland than when they were being sent to any other part of the world. Is it intended by Clause 17(2) to go back on that, to some extent, and now to give persons in this country who are asked for by the Irish authorities something more like the protection which they would get if they were to be sent, let us say, to Canada or, for that matter, to Gibraltar? My Lords, I have taken perhaps rather too long, but I think that these matters may cause great difficulty in the future, and it may well be that they should be considered before the Bill becomes an Act.
§ 6.24 p.m.
§ LORD SOPER
My Lords, like the noble Lord, Lord Brooke of Cumnor, I make no profession of legal scholarship, and I am continually amazed and, I hope, edified by the refinements of insight that noble and learned Lords bring to these matters. It would be quite impudent for me to pass any comments on these, I think, peripheral issues, in the sense that the main substance of the Bill would, I imagine, commend itself, in intention at least, to all your Lordships. I am sure that the noble Lord, Lord Brooke of Cumnor, would not want to abandon the house because one or two or the doors will not shut. In my own judgment of these matters—and I have listened to the debate—there has been overall agreement on two general propositions which are contained in and, in fact, are the inspiration of, the Bill. The first is that there should be a regularity and a coincidence of treatment as between the provisions of the Extradition Act 1870 and 80 the Fugitive Offenders Act 1881—that there is need for revision and improvement. The second is that where possible there should be a clear and specific differentiation between a political and a criminal offence, and that where the differentiation is perhaps clouded or is difficult of precise calculation, there should rest discretionary powers to prevent what in other cases would be injustice. With these propositions I am entirely in agreement, as I hope your Lordships are.
I wish this Bill well. I should imagine that many of the matters raised will probably arise in Committee and can there be settled, or that the major substance of them can be, to the satisfaction of your Lordships, and in proper answer to the questions which hitherto have been propounded. But I would venture to delay your Lordships a little, because I believe that, in the somewhat pompous words of Disraeli,the reverberations of this matter go far beyond the range of its immediate audibility".I believe this is an important Bill at this precise time, for reasons which are not immediately apparent as we consider its various clauses.
I was in Nigeria during the relevant period when Enahoro was being extradited, and I remember listening to a number of intelligent and civilised people there, both white and coloured. The comment that I recollect as being the most poignant was: Did I imagine that had Enahoro been a Frenchman he would have been sent home to Paris, as he was sent home to Nigeria? It seems to me that this opens the door to what lies behind a great deal of the troubles in the present situation, not only represented in the reactions to the Fugitive Offenders Act, as hitherto it has been operating, but on the whole question of racial prejudice and racial discrimination. It is my judgment that there is already a breakdown somewhere along the line between Governmental action in general in the West, and its understanding, particularly in places like Africa. I know that this does not specifically apply only to those with dark skins and living on the Continent of Africa; but it will be regarded, and has been regarded hitherto, as yet another example of the way in which treatment of these people in Africa is generally different from and inferior to 81 that accorded to those who do not happen to come from that Continent.
This was made manifest, in my view, by the reaction of the various Immigration Acts. It has been spotlighted recently in the reactions to the extension of fees for overseas students. It is perfectly right to say that this is not in exact definition discriminatory; and neither is the law which I hope is now to be amended, with regard to fugitive offenders. But if I remember Professor MacTaggart and his teaching at Cambridge when I was a student, the great mistake he seemed to make, in the opinion of his colleagues, was that he imagined that reality was very much like the High Table at Trinity College, Cambridge, and he imagined that what he propounded in close and logical terms would be equally understood by students and fellow members at the High Table. You can present the most proper, logical and just of laws, but unless you can commend them without the appearance of evil, those laws will not have the purchase that you expect from them.
I welcome this Bill, because it is one step back along the road towards that appreciation and sense of right and justice which I am bound to say. in my experience, and it may be in the experience of your Lordships, has been lost. I will not delay to assess blame, but will rejoice, as I believe I can, in a sort of Bill such as this which will go far, or can go some distance, at least, to the alleviation of what is a world problem, and an aggravated world problem. Here is an opportunity of being able to say in categorical, simple and understandable terms that we are not discriminating against these people because they happen to belong to a Commonwealth, because they happen to come from Nigeria or, for all I know, from Ghana.
The other matter is much more complicated and it has already been adverted to, and I will not delay the House by talking about it at length, but it is perfectly clear that to make a distinction between a political offence and a criminal offence is necessary. To delineate that distinction, however, is in many cases extremely difficult. One of the reasons for unicameral Government in many of the new and free countries of Africa is that it is impossible to convince the citizens of those countries that those who are in 82 political opposition are not moral scoundrels in being so. This is the more exaggerated when so many of these countries now are under military rule. For if it be argued in civil conditions that to be in opposition is not—as it is to be in Her Majesty's Opposition—honourable but some kind of moral subversion, how much more clear-cut is it to those inoculated or indoctrinated by the military code that any act of opposition to a reigning military junta is rebellion and criminal and of a most nefarious kind?
It is in this kind of environment that I perceive, I hope, the various difficulties already advanced and referred to in previous speeches. Yet I am sure that the differentiation must be made; I am certain that the effort must be made to discriminate; and I would heartily agree with the noble Lord, Lord Brooke of Cumnor, in accepting quite simply the Schedule which says that the first of the relevant offences is murder of any degree. I hope that that may be strengthened in order to include murder by assassination. I personally am rather worried about some of the items in the Schedule. What, for instance, is the difference between the criminal offence of conspiring to defeat the course of justice, and the political offence of setting up, or endeavouring to set up, a different regime? What is extortion by means of threats or by abuse of authority but a measure which could be argued to be the reaction to the refusal of a recalcitrant person to obey an order, and so on? It is not for me at this stage merely to point the difficulties, but it seems to me that this is a gallant effort to face a very complicated business, perhaps much more complicated than was at first envisaged when this Bill was drafted.
Nevertheless, such are the pragmatic demands, I feel, for setting in motion this kind of reverse process, that I welcome it most heartily. Though it may be legally difficult and at the moment incomplete and imperfect, I hope that the moral and political impact of the Bill will be such that it will be calculated to redress some of the wrong balance and to recover something of the prestige which we have lost, and some of the fair-mindedness to which we claim we should be entitled. I venture to hope that the application of the Schedule and various clauses of this Bill, in particular in reference to the question 83 of distinction between political and moral or criminal offences, may at least be adventured upon; and perhaps, solvitur ambulando, it may be—I, for one, cordially invite you to believe it will be—that in the process of trying to work it out we shall derive and discover the added wisdom with which to make the Bill not only right but effective.
§ 6.35 p.m.
§ VISCOUNT SIMONDS
My Lords, I ask for your Lordships' indulgence, and for the indulgence of the Lord Chancellor in particular, whom we are all ready to hear, for a very few minutes. I say "very few minutes" for some reason, as your Lordships will appreciate when I have to admit that I am an exact contemporary of the Fugitive Offenders Act 1881. As your Lordships are aware, this Bill proclaims that Act to be old and obsolescent and fit for the scrap-heap. The inference is obvious. But I want to say something about the interaction of Clause 4, which is an all-important clause in the Bill, and Clause 2(3), to which my noble and learned friend Lord Reid has already made some reference.
I do not wish to be dogmatic, but it seems to me to be clear beyond a peradventure that Clause 2(3) does not enable the authority, whoever it may be, to override the clear categorical imperative of Clause 4. Clause 4 stands as one of the most important clauses in the Bill, and it provides for immunity and sanctuary for an offence of a political character. I wholly dissent from the suggestion made in another place, and adverted to but not, I think, approved by the noble Lord, Lord Brooke of Cumnor, that an arrangement can be made under which immunity would not be given in circumstances beyond those provided by Clause 4(3).
The matter stands, then, in this way—and let me take a concrete example. Suppose that a British citizen or a Commonwealth citizen commits one of those offences which are classified as offences of a political character. Let me assume him to be a Canadian, who on the occasion of the Royal Visit (I hesitate to suggest such a thing, but it is what we have to contemplate), assassinates, or attempts to assassinate, the Queen, and comes to this country and claims, as he no doubt would, that it was a political 84 offence. Under subsection (5) of Clause 4 he may be surrendered. That results from an Amendment made in another place. The Bill as introduced did not even provide that in such a case the offender should be delivered over. The clause was absolute and comprehensive.
Now, for some reason, because I understand the Queen is the Head of the Commonwealth, there is to be no immunity in such a case. But, my Lords, suppose that it were Prince Philip; or suppose it was not one of our Royal Family, but was a Governor General, or the Prime Minister of Canada, who was assassinated. The assassin could come here and say that this was a political offence; indeed, he would say that it was a political offence. I suppose it would be a political offence, and he would live here for ever after, save the mark! under the Queen's peace. Is that what the Government really intend, or are they relying upon that provision of Clause 2 to which I have already referred? It seems to me to be a shocking thing. I ask the Lord Chancellor to say categorically whether that is what the Bill intends. I hardly think so. Yet that is what it provides beyond all peradventure.
I agree most heartily with the noble Lord, Lord Brooke of Cumnor. I do not think the people of this country would tolerate it. I think, further, that if the people of this country gave consideration to the matter they would reject altogether also that piece of Victorian self-righteousness under which it was thought a venial offence in 1870 that a foreign potentate should be assassinated. That Act was passed in 1870, and that was, I think (if my historical recollection is right) the time of Mr. Gladstone's first Government. I think, as I say, that the country would not tolerate such a situation. Still less would they tolerate sanctuary being given to a person who commits that sort of offence. What is to be done about it? I hope that some Amendment may be passed on the Committee stage. But from the speech which has been made by the noble Lord, Lord Stonham—a very clear and admirable speech—it did not seem to me there was any indication of movement in that direction. Perhaps the Lord Chancellor will help us.
There are a good many more things that I might say, but I will say just this. 85 Of course it may be that in such a concrete case as I have put, the assassination, let us say, of the Governor General of Canada, the assassin seeking refuge here would be guilty of a crime which could be tried here at Common law. I think I am right in saying—and if I am not the noble and learned Lord the Lord Chancellor will correct me—that at Common Law our courts have no right to try crimes committed abroad, but a number of Statutes have made exceptions to that general principle, and in such a case it might be possible for the offender to be tried here. However, I do not think that could be offered as an excuse; for, if he is to be tried at all, every consideration which would determine what lawyers call the forum conveniens would point to Canada as the place where he ought to be tried. It is the law of Canada that is violated; it is on Canadian soil that the crime has been committed, and the witnesses will be in Canada. Indeed, even for the man's own sake, his own witnesses may be Canadian, and therefore everything would point to the true forum conveniens being Canada not London. Therefore I think it stands baldly as a piece of naked folly that a man who commits such a crime can come here, claim sanctuary and live in peace for evermore.
There is much more that I could say about this aspect, but it is already late and I have exhausted the time limit which I had allowed myself.
§ 6.44 p.m.
§ LORD MITCHISON
My Lords, I did put my name on the Paper, but as it is late I will not take more than a minute or two. I think the group of subjects we are discussing to-day, not only extradition but also the question of immigration, which must go with it, and with that also the question of deportation, which are closely interconnected, would provide an admirable field for a rather hostile critic of the British Constitution to examine what we had done and what we had been prevented from doing by the limitation of responsibility between the Executive—the Home Office—on the one hand, and the courts, on the other. Yet they are things which profoundly concern a number of people and arouse, quite rightly and naturally, the deepest feeling in this country. There was 86 Enahoro, there was Soblen, and there were others whose names we remember, and no one can say that these are matters which are not worth the most careful examination.
I wonder whether my noble and learned friend the Lord Chancellor feels that the whole field we are considering to-day is something which ought to be examined rather more broadly—the three matters, at least, in conjunction, and by some kind of body which represents both legal opinion and executive opinion. In this connection, I would ask: is there any information about a body which I believe is called the Wilson Committee on Immigration Appeals? I do not know what the Committee's terms of reference are, or how far they are relevant to the kind of thing we are discussing to-day, and I do not know what progress has been made, or is likely to be made.
There are two other small points that I should like to mention. One is the question of what I might call "transit prisoners". This is a matter which was mentioned in the conclusions of the Scheme relating to the rendition of fugitive offenders. "The rendition of fugitive offenders" is a frightful phrase. Fugitive they might be; by why "rendition", and why "offenders", when the whole question is whether or not they are offenders? Admittedly I cannot think of another phrase, but paragraph 15, which deals with the ancillary provisions, says:Each Commonwealth country or territory will take, subject to its constitution, any legislative and other steps which may be necessary or expedient in the circumstances to facilitate and effectuate—(a) the return of a fugitive offender who is in transit in its territory for that purpose.…Let us suppose that someone born in England goes out to Canada, and there commits one of the offences listed in the Schedule. Suppose he then goes to Nigeria, and is returned from Nigeria to Canada through this country. I have never understood, and I do not quite understand now, how anybody manages to keep him legally in custody in this country while he is on his way through. That is a question I should like to have answered, and it is in connection with that question that some legislative and other steps were to be taken by the countries which were parties to this scheme.
87 My second question is a small one, and concerns Clause 4, "General restrictions on return". I notice that the words used areon account of his race, religion, nationality or political opinions".I would not for a moment venture to dissent from the criticism which has been made about this clause as a whole, but there is another small point of some importance. In some parts of the Commonwealth nowadays we see bitter disputes which are not quite of that character at all: they are inter-tribal disputes, and it is rather difficult to fit them exactly into that category. It may be that they are intended to be covered, but I can imagine a fine argument as to whether the differences between a tribe in say, Nigeria or some other country were or were not in fact intended to be included in those words. It would be a simple matter to put right, although I am not so certain about the "transit prisoner": he may be more difficult.
I apologise for taking up your Lordships' time. I can only say that I came here without any idea of how interested I should be in the discussion. I say this with great respect to people who know much more about this than I do. I never expected to listen with such interest to every word that dropped from every speaker's lips, whether on the Opposition or on the Government side of the House, and whether he spoke with judicial or executive experience.
§ 6.49 p.m.
§ THE LORD CHANCELLOR (LORD GARDINER)
My Lords, the Bill was explained by my noble friend Lord Stonham with such lucidity that I do not think I have a great many points to deal with. Indeed, your Lordships will not expect me to reply at length, because although not a large number of noble Lords have taken part in the debate, it has included two former Home Secretaries, a former Lord Chancellor and the noble and learned Lord, Lord Reid. I am sure that, as to some of these points raised, your Lordships will not expect me to say "Yes, the Government will do that", or "No, the Government will not do that", because in view of the quality of the speeches made on a number of these points my right honourable friend 88 the Home Secretary will wish to consider them.
In view of some of the observations which have been made I should perhaps start by respectfully reminding your Lordships that extradition arrangements are always and inevitably a question of agreement. Perhaps I may remind your Lordships that the Extradition Act of 1870 begins:1. This Act may be cited as 'The Extradition Act, 1870'. 2. Where an arrangement has been made with any foreign state with respect to the surrender to such state of any fugitive criminals, Her Majesty may by Order in Council, direct .…After dealing with the contents of the Order in Council the section saysEvery such order shall recite or embody the terms of the arrangement, and shall not remain in force for any longer period than the arrangement.If, therefore, we say to any country, "If we return your criminals will you return ours?", they naturally say, "That depends on the terms and conditions"; and it is a question which has always had to be negotiated.
Secondly, there is the great difference between the Extradition Act and the Fugitive Offenders Act. The noble and learned Lord, Lord Reid, in the Kwasi Armah case, said:The operation of the Extradition Act depends on there being a treaty or arrangement with the foreign State. Normally the person surrendered would be a subject of that State. The Act recognises that there may be conditions, exceptions and qualifications, and there could be, and I believe have been, treaties under which our Government reserve the right not to surrender British subjectsAnd then later he said:But the Fugitive Offenders Act was in 1881 a domestic matter dealing generally with British subjects and enabling them to be sent from one jurisdiction to another within the British Empire where there was then no Dominion status. There could then have been no question of political asylum in one part of Her Majesty's Dominions for an offence committed in another part and no room for such a provision as Section 3(2) of the Extradition ActIn the field of foreign countries we had our treaties with the United States and an extradition treaty with France, but it was not, I think, until 1957 that there was a European Convention on extradition treaties. This made an enormous difference, because it was so much simpler once we could get all the countries of Western Europe to agree 89 upon a common form, even if there should be differences of detail between us. So far as the Empire was concerned, we had one system of law administered up to the same standards in different parts of the world, and whether you were tried in one part of the Empire or another was largely a question of where was the most convenient court. Times have changed, and for some years law reformers have been pointing out that the Fugitive Offenders Act is wholly out of date in circumstances in which we no longer have an Empire. We have a Commonwealth, and for an increasing number of years there have been more and more independent countries, some members of the Commonwealth under Dominion status, others wholly independent countries of the Commonwealth.
Of course, nobody ever pays any attention to law reformers, but the Enahoro case did highlight that this was indeed so. I agree very cordially with my noble friend Lord Soper as to the necessity of passing legislation to undo the unfortunate situation which arose there, and we owe it to the noble Lord, Lord Brooke of Cumnor, that he realised this at once and acted upon it; before the Commonwealth Law Conference in Australia in August, 1965, he had already laid down the bones of what is now this Bill. We discussed this at the Commonwealth Law Conference. After the Conference at Sydney we had a week-end at Canberra where there were two series of meetings, one of Commonwealth Chief Justices to discuss matters of interest to them, and the other meetings of Law Ministers to discuss matters of interest to them. And having discussed matters such as whether or not we should have a legal section of the Commonwealth Secretariat, one of the questions which we discussed was this. I had told them, and they had been advised beforehand, that we felt it necessary and indeed essential at a fairly early date to recast altogether our Fugitive Offenders Act; that we felt that as most of the Commonwealth countries had such Acts much the same as our Fugitive Offenders Act of the last century there was much to be said for seeing whether or not we could all pass a new Fugitive Offenders Act or Extradition Act, whatever we liked to call it, in the same terms. They also thought that was a very good idea, and they then asked 90 us whether we could forward to them a sketch for such legislation; and they asked whether they could all come to London at Easter of last year to see whether we could not all agree to pass the same legislation.
That took place and the meeting lasted, I think, just over a week. Mr. Taverne represented the United Kingdom on behalf of my right honourable friend the Home Secretary, and I took the chair when I could: when I could not, my right honourable friend the Solicitor-General took it. But if I had been asked at the end of four days what I thought were the prospects of getting agreement I should have had to say I did not think there were any prospects of getting agreement about anything at all. I mean no discourtesy to my colleagues who are Law Ministers or Attorney Generals in the Commonwealth, but they are not silent. Everybody had his own very determined view on every question which arose, and it looked as if it would be absolutely impossible to get agreement about anything at all. It was only in the last two days that suddenly things began to fall into place and we were able at the end to get a unanimous agreement, signed by everybody, in the form in which it was published in a White Paper in May, 1966. I say all this only because we must realise that, however many Acts of Parliament we pass, we cannot make people agree in this particular field; and when we have got all the Law Ministers of the Commonwealth to agree that they will recommend legislation to their own Governments in this form there is a great deal to be said for leaving it as it is.
The noble Lord, Lord Brooke of Cumnor, asked for indulgence on the ground that this is a Bill which could be more easily understandable by lawyers, but I am sure that that is not so at all, and he has no need to ask for indulgence, particularly as in substance this is his Bill. I agree with him that it may be that it will not dissipate all the difficulties in what is a notoriously difficult field. He asked about the two-tier system and what Clause 2(3) really came to, but if he will allow me I will leave that for the moment, because the noble and learned Lord, Lord Reid, asked the same question and it might be more convenient to deal with it then.
91 He then raised what is admittedly a difficult question about Commonwealth murderers remaining here, and this difficult question of Heads of State; and the noble and learned Viscount, Lord Simonds, raised exactly the same point. It is not at all an easy question and it is not one to which I think I ought to propound a definitive solution to-night; I have no doubt that my right honourable friend the Home Secretary will wish very carefully to consider everything that has been said. It is possible to take the view—and I quite appreciate this—that murder ought to be taken out of the subject altogether. That is a possible view. To leave murder in and say, "We will except murder of Heads of State", is, I think, very difficult, because I do not know where you draw the line. There is really a conflict between the whole concept of granting sanctuary to a political refugee, on the one hand, and starting to say, "Well, if we do not send you back, anyway we will deport you". Heads of State are not necessarily the most political people or the most powerful people in their own country. One can imagine a state of affairs in a particular country where the head of the Government is acting with such a degree of oppression as to raise very strong feelings indeed in this country whether somebody really ought not to interfere. And if he is then murdered on political grounds the circumstances might be that everybody in this country would say, "Thank goodness for that!".
If you include Heads of State, it is difficult to see why you should not also include Prime Ministers and the really important people. An exception has already been made in the Bill, by an Amendment of the Government on the suggestion of the Opposition in another place, in relation to the Head of the Commonwealth. This is rather different because, after all, the Head of the Commonwealth is the Head of the Commonwealth in every Commonwealth country. Nevertheless, I hope that, although this was not suggested, much less agreed to, at the Marlborough House Conference, in this case the Commonwealth countries would largely agree.
But your Lordships see what happens as soon as you make an exception. Somebody then says, "What about Prince 92 Philip?" Then they say, "What about Heads of other States? If Heads of State, why not Prime Ministers?" As I have said, I think that there is a distinction, which I hope Commonwealth countries will agree is well merited in the case of the Sovereign, who is Head of the Commonwealth in every Commonwealth country. Nevertheless, I am quite sure that my right honourable friend the Home Secretary will wish most carefully to consider everything that has been said.
The noble Lord, Lord Brooke of Cumnor, asked whether the Government had it in mind to amend the British Nationality Act. The answer is, No. We shall certainly consider what the noble Lord has said, though I do not think that this Bill would be an appropriate place in which to alter the criminal law. The noble Lord also asked about smuggling offences. The answer, I think, is that it has not been usual to include smuggling offences in extradition arrangements; but some of our Commonwealth friends to whom diamond smuggling is of exceptional importance have been provided for.
Then there was the question raised by my noble and learned friend Lord Stow Hill, and also to some extent by the noble and learned Lord, Lord Reid, about the difficulties of operating Clause 4(1)(b) and (c). Perhaps I might leave that for the moment until I come to deal with their observations. The noble Lord, Lord Brooke of Cumnor, asked whether it was intended to designate all the Commonwealth countries and make Orders thereafter. The answer is, Yes, that is so; it is intended to designate all the countries to start with, and Orders will be made after any variations have been agreed to.
My noble and learned friend Lord Stow Hill dealt primarily, as did the noble and learned Lord, Lord Reid, with the difficulties of Clause 4(1)(b) and (c). I venture to think that there are a number of answers to this point. In the first place, in Section 10 of the 1881 Act, the courts were already invited to consider, if I may quote:Where it is made to appear to a superior court that by reason of the trivial nature of the case, or by reason of the application for the return of a fugitive not being made in good faith in the interests of justice or otherwise, it would, having regard to the distance, to the 93 facilities for communication, and to all the circumstances of the case, be unjust or oppressive or too severe a punishment…"—and so on.
So the courts have always had to consider whether the request for the return is being made in good faith in the interests of justice; and that must already to some extent reflect either on the Governments or the courts of other countries. But under the Irish Republican Extradition Act 1965, the courts of the Republic may have to decide:If there arc substantial grounds for believing that a request for extradition for an ordinary criminal offence has been made for the purpose of prosecuting or punishing a person on account of his race, religion, nationality or political opinion, or that person's position may be prejudiced for any of these reasonsThe tasks of the court under Clause 4(1)(b) of this Bill appear to be no more than those of the Irish Republican courts under the Irish Act 1965.
Moreover, the European Convention on Extradition provides, in Article 3:Extradition shall not be granted if the offence in respect of which it is requested is regarded by the requested party as a political offence or as an offence connected with a political offence. The same rule should apply if the requested party has substantial grounds for believing that the request for extradition for an ordinary criminal offence has been made for the purpose of prosecuting or punishing a person on account of his race, religion, nationality or political opinion, or that that person's position may be prejudiced for any of these reasonsThere is, I think, considerable merit in trying to get agreement on these points; and, of course, in putting forward the scheme that was put forward at Marlborough House, we bore in mind the provisions of the European Convention.
Further, so far as these matters are to be decided by a court as well as, or alternatively, by the Home Secretary, I understand that the Lord Chief Justice, having seen the Bill, has taken no objection to it. Is there not a great deal to be said for allowing a man, and perhaps the requesting country, too, to call their evidence before a court, where everybody can see what the evidence is? Therefore, I should not have thought that there will be these great difficulties in practice but I will certainly bring everything which my noble and learned friend Lord Stow Hill has said before my right honourable friend.
The noble and learned Lord, Lord Reid, suggested that "Fugitive Offen 94 ders" was not a good name. That may be so. It is because the position is now quite different from what it used to be under the Empire that new legislation is necessary. He and the noble Lord, Lord Brooke of Cumnor, and the noble and learned Viscount, Lord Simonds, expressed somewhat different views about the effect of Clause 2(3). I think I should probably be unwise, in those circumstances, to do other than reserve any view I may express, though my prima facie view is that the noble Lord, Lord Brooke of Cumnor, is right in thinking what its effect is. I hope that the noble and learned Lord, Lord Reid, will bear in mind that if you are to have a departure, so far as this country is concerned that must be in an Order in Council which has to be approved by both Houses of Parliament.
Then the noble and learned Lord, Lord Reid, asked whether if a man had never been in the requesting country he could be extradited from here to the requesting country. I think that the answer is: Yes, if the offence is an extra-territorial offence not only in the requesting country but also in the requested country. The noble and learned Lord then raised the question of the right to obtain leave from a judge to appeal against a magistrate's findings. I will certainly consider the matter. I think that the view taken was that the remedy would be by Habeas Corpus, where there is a prima facie case, though there is no question of law. I entirely agree that this is a purely domestic point: it does not affect others, and I will see that my right honourable friend certainly considers it. As to the Sheriff of Midlothian, the noble and learned Lord is quite right in saying that an exception is being made for good reason. No general change in the law is intended, and much the same exception already exists in Section 5 of the Act of 1881.
Then the noble and learned Lord raised the question of two murders, in one of which it might appear that the person concerned was likely to be reprieved but not the other. I should have thought that the effect would be that if it is a case which is a capital case, whatever sentence might or might not be likely, the person concerned would not be extradited. Here again, one can understand that there might be a number of differing views. 95 At the Marlborough House Conference I think the only two countries which were abolitionist, or partly abolitionist, countries, were Australia and New Zealand. All the rest were absolutely emphatic that nothing would induce them to agree to a clause excepting capital cases. They regarded it as something of an insult that they should be asked at all, and they were insistent that their own murderers should be returned, to be dealt with according to their own law.
I am afraid that I had to point out, as I did at the outset to your Lordships, how much that is done in this field depends on agreement. I said: "I very much sympathise with you about this. We all do, because until only yesterday we were exactly in your shoes. France and Spain being the only two countries on the Continent of Western Europe which still have capital punishment, we have always found, when we have tried to agree extradition treaties with the abolitionist countries, that they have said to us: 'You must put in a clause whereby, although you can return our murderers to us, we are not going to have to return your murderers to you'." We always said that this was quite wrong, but it always ended up with the abolitionist countries saying, "If you do not agree, there is not going to be any extradition agreement between us".
I told the Marlborough House Conference that when people feel strongly about such matters, they insist on them; and we should not have a single extradition agreement with Western Europe if we had not given way on this point. I am sure that our Parliament, we having recently become an abolitionist country, is now going to take the view which abolitionist countries have always taken with us. Eventually they did come round to it. But if we are going to take this view about cases of that character, then we shall have to do it. Being a haven for refugees also means that, in the case of Commonwealth subjects, they will be allowed to stay here and we cannot deport them, unless either we change the law or they commit some criminal offence here. This, I am afraid, is the inescapable logic of the situation.
In regard to the remarks made by my noble friend Lord Mitchison, the answers 96 to his questions are these. First, the Committee to which he referred is a Committee of which Sir Roy Wilson, the Chairman of the Industrial Court, is the Chairman, and it is believed that it will report in some months' time. I hope that it will be before the summer, or during the summer, but whether it will be in July or in August I cannot say. I will ask my right honourable friend to consider the matter of the insertion of the words "inter-tribal", but this is just the sort of point that it would be very difficult to implement without asking all the others first whether they agree.
Lastly, my noble friend raised a point on which I have a very long answer but, having regard to the time, I hope that my noble friend will not mind if I send it to him in writing. It was the question of why, although there are provisions in the printed scheme about transit arrangements, they are not much reflected in the present Bill. The answer, in short, is that, on examination—and there was a good deal of discussion about this, too, at the Conference itself—it was felt that this matter can be more easily dealt with by administrative arrangements than by arrangements to be provided for in a Bill. Of course, we can always refuse to let anybody come here if he is someone whom we have a right in law to exclude. And when one comes to consider the question of handcuffs while he is going through countries B, C, D and E, this is a matter which it is very much easier to deal with by administrative arrangements between Commonwealth countries rather than by trying to provide for it in the Bill.
I should like to say, on behalf of the Government, that I am grateful to all those who have given up their time to take part in this discussion. This is a not unimportant Bill, and I am sure the Government will have profited by the observations which have been made by Members of your Lordships' House, including, as I have said, two former Home Secretaries, a former Lord Chancellor, and the Leader of the Lords of Appeal.
§ On Question, Bill read 2a, and committed to a Committee of the Whole House.