TOKYO CONVENTION BILL (Hansard, 4 July 1967)

THE EARL OF BESSBOROUGH
I will not detain your Lordships for more than a moment, but it seemed to me that it was worth raising a point on Clause 4, because on Second Reading we did not discuss in any detail exactly what constituted piracy. I should like to ask the noble and learned Lord, Lord Wilberforce, or the Government, what they consider would have been the position regarding the "hi-jacking" of the British aircraft to Algeria if the countries concerned had ratified the Tokyo Convention. This, of course, relates to the Private Notice Question which the noble Lord, Lord Rowley, asked yesterday. I understand that under this clause, and in particular under Article 11 of the Convention—

§ LORD SHEPHERD
Would the noble Earl permit me to interrupt him? Has the noble Earl given us any indication that he was raising this extremely interesting but perhaps legal point? I do not know whether he has given notice, but I have no knowledge of it and perhaps he could help me and the Committee.

THE EARL OF BESSBOROUGH
No. I apologise to the Government, if they have not had prior notice of this, but I did inform the noble and learned Lord, Lord Wilberforce, and also the noble Lord, Lord Rowley. Is there no member of the Government who can speak on this matter to-day?

§ LORD SHEPHERD
This is obviously a matter for the Foreign Office, and as 510 the noble Earl will know my noble friend Lord Chalfont, who is the Minister specifically in charge, is at present out of the country on urgent business. We were not anticipating anything arising on this Committee stage. Certainly, if we had had notice from the noble Earl, we would have seen that a Minister was here properly briefed. I apologise to the noble Earl that we are not in that position, and I hope that he will acquit us in that matter.

THE EARL OF BESSBOROUGH
I apologise to the noble Lord, but I think that possibly the noble and learned Lord, Lord Wilberforce, who is very familiar with this Bill, might be able to enlighten us on it. As I say, I think this particular clause and Article 11 of the Convention specifically apply to this kind of piracy, and I hope that the noble Lord, Lord Wilberforce, if not a member of the Government, may be able to enlighten us on this point. My noble friend Lord Jellicoe, spoke yesterday about the safety of the pilots, and this is another issue, but it seemed to me that it was worth inquiring what the position would have been if this Convention had been in force.

§ LORD ROWLEY
I should like to associate myself with what the noble Earl has just said. If it is not possible to have the point explained to-day, could that be done on, say, Third Reading? Would that be within the Rules of the House? That would satisfy me. But there is this practical point as to responsibility for the "hi-jacking" of a British aircraft, even though it may have been over Spanish territory. If Algeria had been a Convention country, then, of course, it might be that the Extradition Act 1870 would apply; but I think that perhaps it would be of assistance to your Lordships if we knew the answer to that question.

§ LORD SHEPHERD
This is a Private Member's Bill, of which, of course, the noble and learned Lord, Lord Wilberforce, is in charge. The Government are naturally here to answer questions, although a question of this nature is clearly one in respect of which I think it quite reasonable to expect notice. If the noble Earl wishes to have a specific answer from the Government and is content to wait until, shall we say, Third Reading (and we could arrange for those 511 proceedings to be on a date convenient to the noble and learned Lord, Lord Wilberforce, and the noble Earl, Lord Bessborough), I should be very happy to arrange for a Minister to be here to answer this very specific point.

§ LORD OAKSHOTT
Before the noble and learned Lord answers my noble friend Lord Bessborough, may I just say that I fully appreciate the difficulties of the noble Lord, Lord Shepherd, but I wonder whether he might perhaps convey to his colleagues the concern of noble Lords in regard, particularly, to Article 11 of this Convention, under which, I think, a duty lies on the signatories to the Convention to return aircraft and passengers from the place where they have landed, in the case of piracy or "hi-jacking" like this, to where they came from. Perhaps the noble Lord would convey this concern to his colleagues and ask them to try to clear it up for the benefit of the House at some early date. Perhaps they would also consider the suggestion made by his noble friend Lord Rowley yesterday, that as the General Assembly of the United Nations is meeting now, this might provide a good opportunity for the matter to be drawn to their attention as well.

§ LORD WILBERFORCE
I do not know whether I can give a little information of a purely clarificatory nature. Then perhaps the noble Earl can consider whether, in the light of it, he wishes to ask Her Majesty's Government to take any action. Simply as a matter of fact on this Bill, there are two provisions which may be relevant to the situation which has recently occurred. The first is Clause 4 of the Bill, which as a matter of law makes the provisions in the Schedule to the Geneva Convention part of the law of the land. The relevant provision there appears to be that which says: Piracy consists of…any illegal acts of violence, detention…committed for private ends by the crew or the passengers of…a private aircraft, and directed:…against…aircraft… and so on. I have picked out the relevant words. It is obviously a matter for consideration whether, on the facts of this case, an act of piracy has taken place in relation to the British aircraft which was diverted.
512 Apart from that, there is an Article in the Convention which would appear to be more directly relevant, because it was drafted, I can say, with a specific eye on this sort of situation. It is in the Convention, and not made part of the Bill, the reason being that no legislation in this country was necessary. The Article is headed, Unlawful seizure of aircraft", and it says in the first paragraph: When a person on board has unlawfully committed by force or threat thereof", which seems to cover what has happened, an act of interference, seizure or wrongful exercise of control of an aircraft in flight, contracting States shall take all appropriate measures to restore control of the aircraft to its lawful commander or to preserve his control of the aircraft. Paragraph 2 of that Article says: …the contracting State in which the aircraft lands"— in this case Algeria— shall permit its passengers and crew to continue their journey as soon as practicable, and shall return the aircraft and its cargo to the persons lawfully entitled to possession. It is obvious that there are a number of obligations which touch the present circumstances. If Algeria were a party to this Convention, and if this country were also a party to it, the international obligations laid down by that Article would be applicable as a matter of treaty between the two States. At this stage I do not think I need do more than draw your Lordships' attention to those provisions. At least this incident underlines the fact that this Convention is a useful one and the sooner it is ratified by us, and by other States, the better. But exactly what consequences should flow from it in relation to a particular incident your Lordships will appreciate is not a matter that I can pursue. It is perhaps more a matter for the Government at another stage.

§ LORD ROWLEY
Before the noble and learned Lord resumes his seat may I ask this question? Assuming that a crime was committed on this British aircraft, wherever it then was, would Her Majesty's Government (assuming that both Her Majesty's Government and the Government of Algeria were parties to the Convention at the time of the commission of the crime) have the right to 513 exercise or operate the provisions of the Extradition Act so that the person or persons responsible for this piracy could be extradited for trial in this country?

§ LORD WILBERFORCE
The provisions relating to that matter are in Clause 2 of the Bill, which deals precisely with the conditions under which extradition can be obtained. Under that clause the crime, if it was one, is to be taken as having been committed in the United Kingdom. Therefore, if the relevant Extradition Treaty applies to such a crime, and if the Treaty is applicable as between the relevant countries, extradition may be asked for. Here again is a clause which appears possibly to be applicable to an act such as this.

THE EARL OF BESSBOROUGH
I am sure we are all grateful to the noble and learned Lord, Lord Wilberforce, for having enlightened us on this point. I hope that a member of the Government responsible for this Bill may be present on Third Reading.

§ LORD SHEPHERD
Do I take that to indicate that the noble Earl wishes this matter to be raised for discussion on Third Reading?

THE EARL OF BESSBOROUGH
I feel it a little unfortunate that neither Minister is present at the moment. I recall that in our time a Minister was always present, even if he did not necessarily expect any particular matter to be raised. I know that this point arose only at short notice. I knew of it only a few minutes before it came before your Lordships, and I am sorry that I could not warn the noble Lord, Lord Shepherd. But I should have thought that a Minister who knew about this Bill should be here—even if it was expected to have a smooth passage in Committee.

§ LORD SHEPHERD
I certainly apologise to the Committee; but the noble Earl, when in office, was perhaps provided with an Opposition who were always courteous in the matter of giving notice of questions that it was intended to raise. I will see that this matter is dealt with at Third Reading.