HL Deb 05 July 1967 vol 284 cc702-10

6.22 p.m.

Order of the Day for the Third Reading read.

THE LORD CHANCELLOR (LORD GARDINER)

My Lords, I beg to move that this Bill be read a third time. As has been made clear throughout the proceedings on the Bill in both Houses of Parliament, its primary purpose is to implement the agreement reached at the Commonwealth Law Ministers Meeting at Marlborough House a year ago as to the arrangements which should in future govern the surrender of offenders between the independent countries of the Commonwealth. In arriving at that agreement, which was completely unanimous, the Law Ministers of the Commonwealth naturally gave considerable thought to the problem of political offenders, because in the Fugitive Offenders Act 1881, which has hitherto governed the return of offenders within what used to be the Empire, there are no safeguards whatsoever for political offenders as is customary in normal extradition law.

This is understandable in the circumstances of 1881, when the Act was passed, and when the countries of what is now the Commonwealth were all parts of one empire, with even less autonomy and independent authority than most of our remaining dependencies have to-day. And the Government, of course, recognise that where two countries acknowledge the same sovereignty and one is responsible for the other's defence, they stand in a special relationship to each other, and different considerations arise in relation to offences such as treason and espionage than in the case of two entirely independent countries. It is for that reason that the Bill provides, in relation to the dependencies, that Clause 4(1) shall not operate in its entirety, and the Secretary of State is accordingly free to surrender persons to dependencies in respect of offences of a political character, although, by reason of subsection (3) of Clause 9, he does not have to do so.

But the position as regards the independent countries of the Commonwealth is quite different. These countries, which were once part of one empire, now form a loosely-knit brotherhood of separate sovereign States, admittedly with a great deal in common, including, for the most part, a mutual heritage of law, but with the right to negotiate among themselves whatever arrangements for the return of offenders, including political offenders, they may consider appropriate. What they decided they wanted were the provisions set out in the Scheme, published at the conclusion of the Commonwealth Law Ministers' Meeting as Command Paper No. 3008, which we are now introducing into our law in this Bill. And, as regard political offenders, the provisions in Clause 4(1) of the Bill reproduce exactly the agreement contained in paragraphs (1) and (2) of Clause 9 of the Scheme.

It has been contended, in particular by the noble Lord, Lord Brooke of Cumnor, that the Commonwealth Law Ministers were mistaken in reaching an agreement in these terms and that the whole matter should be renegotiated, and it is therefore important to consider how it came about that this agreement was arrived at and why it is unlikely that further negotiation would achieve any different conclusion. In the first place the original memorandum which Lord Brooke of Cumnor caused to be circulated to the Commonwealth when he was Home Secretary in March, 1964, and which gave rise to the Commonwealth Law Ministers' discussions, put forward the following proposal in paragraph 10: It is therefore proposed that, subject to what is suggested below, the Agreement should contain a provision, comparable with those in the Extradition Act 1870 and in the European Convention on Extradition, prohibiting rendition for an offence of a political character. The attention of the Commonwealth was specifically directed therefore to the safeguards for political offenders contained in Section 3(1) of the Extradition Act 1870, where it says: A fugitive criminal shall not be surrendered if the offence in respect of which his surrender is demanded is one of a political character …". And also to Article 3(1) of the European Convention on Extradition, which is in roughly the same terms. And that was the foundation of Clause 9(1) of the Scheme, which has become Clause 4(1)(a) of the Bill. It is Article 3(2) of the European Convention on Extradition which goes on to deal with the possibility of a person's being prosecuted, punished or prejudiced on account of his race, religion, nationality or political opinions, and it was that provision, rather than the more limited provision in our own Extradition Act that the Commonwealth Law Ministers unanimously thought it right to include in Clause 9(2) of the Scheme, and which now appears as paragraphs (b) and (c) of Clause 4(1) of the Bill.

The reason why the independent countries of the Commonwealth wanted this is not far to seek. We were informed at the Commonwealth Law Ministers Meeting that a number of countries of the Commonwealth had already introduced, or were in process of introducing, legislation which had the effect of specifically precluding the surrender of political offenders, even to other Commonwealth countries. And, in the case of Malta, Section 44(2) of their Constitution itself provides that no person shall be extradited for an offence of a political character. The guiding principles were thus laid down for many member States. In addition to the countries which had already enacted safeguards before the Conference, which included Ghana, India, Sierra Leone, Uganda, Tanzania and Kenya, two other countries, Australia and Nigeria, have recently passed legislation in conformity with the Scheme. I see no hope of persuading these countries that they were, each and every one of them, wrong in having these safeguards, which we invited them to introduce, and that they should now change their minds. Indeed, the Government would regard it as most unfortunate if this country were to take the lead in suggesting departures from the Scheme having the effect of whittling away traditional safeguards of individual liberty which the Commonwealth has agreed to preserve. It is wrong I suggest to assume that provisions of this kind, which have formed the basis of extradition law for a long time past, act as a blanket protection for all persons who commit dastardly crimes and plead a political motive. As the decisions of the courts in the cases of Meunier and Schtraks, to mention only two, make quite clear, this is not the case. There must be a genuine political motive for a fugitive offender to be able to secure the protection which the safeguards provide.

Finally, if two countries have a close political or defence relationship which causes them to consider that their mutual interests could be harmed if Clause 4(1) were to operate between them without modification there is in Clause 16 of the Scheme, and again in Clause 2(3) of the Bill, power to modify those provisions by way of bilateral agreements. The sort of case I have in mind is that of Australia and New Zealand. Whether we shall think it right to exercise that power in agreement with certain of our Commonwealth partners remains to be seen. But it is there if we do.

Adequate powers to protect the legitimate interests of the States of the Commonwealth exist, therefore, alongside the safeguards for political offenders. Even so, those safeguards follow a pattern which other countries have already thought it right to make the basis of their law without their becoming places of refuge for assassins and other types of political gangster, and I feel sure that the fears that have been expressed about this happening are greatly exaggerated. There can be no doubt that this Bill, which recognises the changing needs of a changing Commonwealth, is a very necessary measure. The agreement, which it is designed to implement, constitutes a milestone in inter-Commonwealth co-operation in that field of criminal law, and I trust that the House will recognise just how much has been achieved here and give this balanced but laudably liberal measure an unopposed Third Reading. My Lords, I beg to move that the Bill be now read a third time.

Moved, That the Bill be now read 3a.—(The Lord Chancellor.)

6.32 p.m.

LORD BROOKE OF CUMNOR

My Lords, we are all grateful to the noble and learned Lord the Lord Chancellor, for his summary of the Bill and of its history. I shall take up but a few minutes. It is certainly not my intention to oppose the Bill. Indeed, as the noble and learned Lord indicated, in a sense this Bill is my god-child, because it is based on a memorandum which was sent out at my direction in 1964 to all the countries of the Commonwealth and which formed the basis of discussion at the Commonwealth Law Ministers' conference that followed. I do not think that there is any dissension anywhere about the need for, and the importance of, modernising the old 1881 Fugitive Offenders Act. The only substantial difficulty arises over political offences and political offenders. With respect, it is not quite correct for the Lord Chancellor to say that the 1881 Act contained no safeguard whatever for political offenders, because undoubtedly the Home Secretary would have decided that it was not just to send back to be tried in his own country a political offender who was charged with seeking to get rid of an undesirable régime which had been established, perhaps by force of arms, in his own country, and who certainly would not have received a fair trial had he gone there.

What happened to change the situation during the Commonwealth Law Ministers' conference was that these two new provisions, paragraphs (b) and (c) of Clause 4(1), were introduced into the Scheme. They were not in my original Scheme, and if the courts are willing to operate them I think that they are a considerable improvement: that is to say, a person is not to be returned if the request for his return (though purporting to be made on account of a relevant offence) is in fact made for the purpose of prosecuting or punishing him on account of his race, religion, nationality or political opinions; or (c) 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". I am inclined to think that that is the effective protection which political offenders need and should have. We have never before had anything like that in our law, and I find it difficult to think of anybody deserving of political asylum in this country who would not be safeguarded by those two paragraphs. That is why I have changed my mind since 1964 and have come to the conclusion that it is not desirable to exclude from all possibility of return every person who is accused of an offence of a political character, and I take the view that the Extradition Act 1870 ought to be revised in this respect.

I cannot help thinking that the Government are somewhat complacent about the situation they are creating here. I can illustrate it best by using the example I used on Second Reading: that if the murderer of President Kennedy—undoubtedly that was a political murder—had escaped and had later been identified in this country, he could not, under the 1870 Act, have been extradited to the United States to stand his trial. We should have had to live with him, and he could have enjoyed political asylum here. I believe it would have horrified the British public, and it would have cast the most intense strain on Anglo-American relations. That would have been the result of the 1870 Act, and I think it is an undesirable result.

What the Government are doing in the Bill now before us is to reproduce for the Commonwealth that same undesirable, and I believe thoroughly dangerous, situation that exists for foreign countries under the 1870 Act. My best hope is that further thought will be given, as the noble and learned Lord suggested during the earlier proceedings of the Bill, to unifying the two codes for the Commonwealth and for foreign countries, because, as I think both he and I agree, there is no substantial reason now why there should be different codes in this respect for foreign countries and for Commonwealth countries. In that review, further thought can be given to this question of exclusion of political offences.

Every one of us is desirous that political asylum should be available in this country to those who have been seeking to restore proper democratic rights in another country, whether foreign or Commonwealth, by the overthrow of a tyrannical régime. But I believe that nobody in this House or elsewhere is anxious that political asylum should be given in this country to someone who has murdered, let us say, the President of India. That is the dilemma we are in; and I believe that some more precise definition of "political offence" is required so that we shall have the right demarcation line drawn.

I moved an Amendment in Committee to omit the paragraph relating to offences of a political character. I withdrew it after a debate and I did not move it again on Report, largely because I assured the noble and learned Lord the Lord Chancellor that I fully appreciate the difficulty of the Government in this matter. I only hope that they, for their part, will appreciate the potential danger in the situation now created. Had an Amendment to alter the Bill in this respect been carried, it would have been very difficult to go back to the Commonwealth Law Ministers and seek quickly to arrive at a new agreement. The Government were inevitably bound, for the time being at any rate, by the outcome of those Commonwealth Law Ministers' conferences. I am prepared to take my share of the responsibility for the organisation and eventual calling together of those conferences. I hope that the area of risk will be reduced by the British Government reaching agreements with some Commonwealth countries, under subsection (3) of Clause 2 of the Bill, of a character that may make the exclusion of political offences not an absolute exclusion. I trust that, whatever is done, it will safeguard the right of political asylum for those who genuinely might suffer in a way that would appal the British public were they returned to stand their trial in a country whose standards of justice were not the same as ours, or whose Government was not as democratic as ours.

When the noble and learned Lord speaks of political asylum as the traditional safeguard of personal liberty, I am absolutely with him, if he is speaking of the normal case of political asylum. But I am sure that he and others will recognise that the phrase "political offence" is very wide and that there are cases where it would be extremely hard for a court of law not to rule that a murder had been a political offence, though everybody in this country and in the other country would regard it as having been a dastardly murder. We are all in this difficulty together. My fear is that a situation may arise, when this Bill becomes law, that will create the most terrible tension between ourselves and some other Commonwealth country, arising out of the absolute exclusion from this Bill of offences of a political character.

However, I accept the Government's difficulty as something which cannot quickly be remedied. I welcome the steps which have been taken to revise the 1881 Act, and I venture to think that we can all join in hoping that the view of the Government, that the risk of a situation such as this arising is a slender one, will prove to be justified. It is a slender one, but should it arise the repercussions of it and the emotions aroused by the event might be terrible. It is for this reason that I have thought it right at each stage of the Bill to call attention to the difficulty, and I believe that I have been only doing my duty in so acting.

6.44 p.m.

LORD ROWLEY

My Lords, I find myself substantially in agreement with what the noble Lord has just said, but I was astonished when he said that undoubtedly most people consider that the assassination of President Kennedy was a political crime. I should not have thought that was the view of most of the American lawyers to whom I have spoken; nor is it my own view. Does the noble Lord suggest that if a person in a high political position is assassinated that is, ipso facto, a political crime? It may be that the person who committed the assassination is a lunatic. Surely the noble Lord is not suggesting that it has been established that President Kennedy's assassination was a political crime.

LORD BROOKE OF CUMNOR

My Lords, if I may reply to the noble Lord, it is certainly not for me to pronounce on that, and under this legislation it would be for a court of law to pronounce upon it. But I am quite sure that the noble Lord will appreciate not only that there are a good many people who believe that it was a political crime, but also that a similar tragedy might occur in which there was no doubt whatever that the crime was of a political nature. That establishes my point.

6.46 p.m.

THE LORD CHANCELLOR

My Lords, I have been most interested in what noble Lords have said. Of course, the difficulty of the noble Lord, Lord Brooke of Cumnor, is that when he was Home Secretary his reputation was such that when he said to the Commonwealth, "This is what you ought to do," they all said, "If he says this is what we ought to do, we had better do it." Now, unfortunately, that everybody has acted on it, the noble Lord has changed his mind. This makes things in a sense a little difficult.

I feel that the noble Lord is being unduly pessimistic. It would be difficult to find a definition of "political offence". We have never had one. The law has worked all right without it. Circumstances change and are so variable that I should have thought this was just the sort of thing that was best left to the courts. And the noble and learned Lord, the Lord Chief Justice, has said that he does not anticipate any more difficulty in the future than he has had in the past.

I know that all through the noble Lord has been oppressed with the thought that somebody like the President of India might be murdered and that his murderer might come here. I am not at all clear why such a man should come here. There are many countries with the same sort of laws as the European Convention. There are many countries which have abolished capital punishment and which are much nearer to India than we are. There does not seem to be any particular reason why he should come here. It is clear from the cases which have already been decided that the court does not asume that because the person murdered is an eminent politician, therefore it is a political offence. On the contrary, the decisions show that the courts take some satisfying that a violent crime of that kind is a political offence.

Where the noble Lord and I have throughout been agreed is in thinking that there is a great deal to be said to-day, having regard to the changed nature of the Commonwealth, for having one law which applies to all countries. It may be that one day this Bill, when it is an Act, and the Extradition Act may be married together; but extradition is so much a matter of agreement that I should have thought the time it would take to negotiate everything with all the countries concerned would be very considerable. I do not forget the points which the noble Lord raised during our discussions on this Bill as to respects in which he considers that the British Nationality Act needs an overhaul, and I know that is very much in the mind of my right honourable friend the Home Secretary. We have had a very interesting time during our discussions on this Bill, and if the noble Lord, Lord Brooke of Cumnor, has enjoyed it as much as I have, then I shall be happy about it.

On Question, Bill read 3a, with the Amendments, and passed, and returned to the Commons.