§ Order of the Day for the House to be put into Committee read.
§ Moved, That the House do now resolve itself into Committee.—(Lord Stonham.)
§ House in Committee accordingly.
§ [The LORD AILWYN in the Chair.]
§ Clause 1 agreed to.
§ Clause 2 [Designated Commonwealth countries and United Kingdom dependencies]:
§ The JOINT PARLIAMENTARY UNDER-SECRETARY of STATE, HOME OFFICE (LORD STONHAM): This is a drafting Amendment occasioned by the fact that the Bill providing for the West Indian territories of Antigua, Dominica, St. Lucia, St. Kitts-Nevis and Anguilla to be associated States has now received the Royal Assent. I beg to move.1081
§ On Question, Whether Clause 2, as amended, shall stand part of the Bill?
§ 5.57 p.m.
§ LORD BROOKE OF CUMNOR
My Lords, there is one question which perhaps it would be appropriate for me to ask at this stage. I understand that when the Bill becomes law it will be the intention of the Government to make a series of Orders designating all Commonwealth countries. I think it is common ground that we all hope that the work done on the revision of the Fugitive Offenders Act 1881 will result in broadly reciprocal arrangements being made between ourselves and all the countries of the Commonwealth. I should like to ask what the Government have in mind if it becomes clear that some Commonwealth country which we have designated is determined not to pass any reciprocal legislation, or indeed to grant us any reciprocal facilities for returning offenders in this country who are found to be in that country. I appreciate that under Clause 20 there is power to revoke an Order once it has been made, and I should like to know the Government's attitude towards reciprocity and what action they are likely to take if reciprocity in a particular instance turns out to be unobtainable.
§ LORD STONHAM
On Second Reading I told your Lordships that the intention of my right honourable friend was to make orders as soon as possible after the Bill was put on the Statute Book. The position will then be that we shall act in accordance with our own Act of Parliament. We hope that there will be reciprocity, but if the situation envisaged by the noble Lord arises we shall still act in accordance with this Act of Parliament.
§ LORD BROOKE OF CUMNOR
I feel certain that we will continue to act in accordance with what Parliament has decided, but in Clause 20 Parliament is being asked to give power to reject orders made under Clause 2. I trust that the threat of doing that will be used if necessary to bring pressure to bear on any Commonwealth country which stubbornly refuses to return people who have committed crimes in this country and have taken refuge there. I appreciate that this is a hypothetical question, but I should like this view to be on record. I hope that 1082 if such a situation does arise the Government will share it.
§ Clause 2, as amended, agreed to.
§ Clause 3 agreed to.
§ Clause 4:
§ General restrictions on return
§ 4.—(1) A person shall not be returned under this Act to a designated Commonwealth country, or committed to or kept in custody for the purposes of such return, if it appears to the Secretary of State, to the court of committal or to the High Court or High Court of Justiciary on an application for habeas corpus or for review of the order of committal—
- (a) that the offence of which that person is accused or was convicted is an offence of a political character;
§ 6.2 p.m.
§ LORD BROOKE OF CUMNOR moved, in subsection (1), to insert at the beginning: "Subject to the provisions of subsection (3) of section 2 of this Act,": The noble Lord said: I beg to move this Amendment, which refers to a point that was raised by me on Second Reading. Later in that debate the drafting of the Bill in this respect was further criticised by the noble and learned Lords, Lord Reid and Lord Simonds. It is a matter of particular regret that the noble and learned Lord, Lord Simonds, cannot be with us to-day because he is ill. We all greatly hope, as he has taken such a keen interest in this Bill, that he may be able to attend and give us his views at its later stages.
§ My object in moving this Amendment is to ensure that the Bill says what it means. Prima facie, Clause 4 places absolute restrictions on the return of persons in certain circumstances. I believe that Clause 2(3) renders it possible for the United Kingdom to reach agreements and make orders which are not in accordance with Clause 4. Indeed, in winding up the Second Reading debate the noble and learned Lord the Lord Chancellor confirmed that that was his reading of the Bill also. If that is right, it seems to me desirable that words should be introduced into Clause 4 to make it clear that in particular circumstances the restrictions in Clause 4 may be overriden by Orders under Clause 2(3). Surely there should be some warning words somewhere that the "exceptions, adaptations and modifications", mentioned in Clause 2(3), may be 1083 not merely fringe modifications but actual reversals of what Clause 4 says with all appearance of generality and universality.
Page 3, line 31, at beginning insert ("Subject to the provisions of subsection (3) of section 2 of this Act,")—(Lord Brooke of Cumnor.)
§ THE LORD CHANCELLOR (LORD GARDINER)
As the noble Lord, Lord Brooke of Cumnor, reminded us, some difference of opinion was expressed on Second Reading as to whether Clause 2(3) applied to the whole Bill. I expressed the prima facie view that it did and that the noble Lord's reading of the clause was right. I have had the opportunity since of considering this point with the assistance of Parliamentary draftsmen and of referring to the relevant authorities, and I am satisfied that this Amendment is unnecessary, because the whole Act will be subject to the provisions of Clause 2(3) to the extent that exceptions, adaptations and modifications—and they are not qualified in any way—may be made to any part of it by Orders in Council under this subsection.
The Committee will presumably accept that it is possible to make Orders in Council whichsubstantially affect the provisions of an Act of Parliament, whether by altering its language, or increasing or limiting its extent or duration or otherwise".These words were those used by First Parliamentary Counsel in evidence to the Select Committee on Delegated Legislation in 1953, to describe one of the types of Order in Council which ought to have Affirmative Resolutions. Your Lordships will remember that when the Bill was introduced Orders were subject to Negative Resolution procedure and Sir John Hobson again used these words in another place in supporting an Amendment to make the Orders in Council subject to Affirmative Resolution. After consideration, the Government accepted that view.
Where something is unnecessary, it is always possible to argue that we might well put it in because it is not doing any harm, but the difficulty of inserting the words proposed in the Amendment at the beginning of Clause 4 is that they would then suggest to anybody who had to interpret the clause that Clause 2(3) did not apply to Clause 3, Clause 5 and 1084 other clauses, otherwise why did Parliament put at the beginning only of Clause 4 the words:subject to the provisions of subsection (3) of section 20 of this Act "?I feel that I can specifically advise the Committee that Clause 2(3) applies to the whole Bill, and that accordingly the Amendment proposed is unnecessary. I hope that in view of that explanation the noble Lord may be prepared to withdraw the Amendment.
§ LORD BROOKE OF CUMNOR
I have far too great a respect for Parliamentary counsel to wish to pick a quarrel with them on their drafting of a Parliamentary Bill. Perhaps my moving of this Amendment and our short discussion of it may serve to show to later generations that Parliament knew what it was doing when it legislated in this way. In all the circumstances, I beg leave to withdraw the Amendment.
§ Amendment, by leave, withdrawn.
§ 6.8 p.m.
§ LORD BROOKE OF CUMNOR moved, in subsection (1), to leave out paragraph (a). The noble Lord said: I beg leave to move this Amendment, which would remove the prohibition in the Bill against the return of a person accused or convicted of an offence of a political character. Let me say at once that I put it down not with the intention of dividing on it, at any rate not at this stage of the Bill, but because I hope that it will be generally helpful to have the opportunity for a broad debate, without commitment, on this very difficult subject of political offenders and offences of a political character. It was referred to by most of the noble Lords who took part in the Second Reading debate, and I hope that there is a general desire to search for the best and most acceptable solution. I am well aware that the exclusion of political offences was contained in the draft proposals for the new fugitive offenders arrangements, which I was responsible for getting circulated to Commonwealth countries in 1964. But I confess at once that I can now see that it has more serious implications than were perceived at that time.
§ There is a prohibition against the return of political offenders to foreign countries in the Extradition Act of 1870. As regards Commonwealth countries, there 1085 is no such prohibition in the Fugitive Offenders Act 1881, no doubt because there was a great degree of political unity throughout the Empire at that time—a political unity which does not exist to the same extent in the Commonwealth of to-day.
§ If we import into the law relating to Commonwealth countries the ban on the return of people charged with political offences which the Extradition Act contains so far as foreign countries are concerned, what will be the effect of that in this country? A man who comes to this country when he is wanted in a Commonwealth country on a charge of conspiracy against, or organising secession against, or trying to subvert the lawful Government of that country will under this Bill not be returnable there. If he were unlikely to have a fair trial there, I think everybody would agree that he should not be returned. But that case is now going to be covered by paragraph (c) of subsection (1). That paragraph, it seems to me, removes the need for paragraph (a) in the circumstances I have described.
Paragraph (c) was not in the original draft of 1964, and it makes a considerable difference to the situation. Paragraph (c), may I remind your Lordships, vetoes return if a person
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.
This is something new, and it was devised at one of the conferences of Commonwealth Law Ministers.
§ If there has, in fact, been a dastardly plot to overthrow law and order in a Commonwealth country which is being responsibly administered by a Government freely and democratically elected, I am not at all sure that public opinion would be happy about our giving political asylum here to the conspirators. All these are difficult matters of judgment, where justice will depend on an infinite variety of circumstances. Paragraph (a), which I am moving to omit, may prove to be much too blunt an instrument for the securing of justice; and the securing of justice is, surely, our overriding aim. Whatever my feelings about the present Government, I cannot really believe that it would conduce to the public good if a man who tried and failed to murder 1086 the whole of the British Cabinet could then settle down in Ottawa, Canberra, Lagos, or where you will, in complete immunity, so long as he never returned to Britain. Yet that is what this Bill will bring about.
§ It is true that subsection (5) of this clause provides that an offence against the Queen should not be classed as a political offence. But what about other members of the Royal Family? What about Prime Ministers, Foreign Secretaries or other prominent political figures, who, like members of the Royal Family, are far more frequently travelling about in the world than were their predecessors in 1870 or 1881? I abhor to mention dreadful possibilities, but one must face them. Suppose there were an attempt made by some political fanatic on the life of Queen Elizabeth the Queen Mother when she was visiting a Commonwealth country. What would public opinion say of a law that offered political asylum to the would-be murderer if he could reach this country? Yet that is what I believe this Bill will do, if Clause (4) goes through unamended. I cannot see anything in that case that a man could be charged with in this country, except conceivably sedition; and I can hardly believe that a prosecution for sedition would succeed. Under the present law, the Fugitive Offenders Act 1881, he could be sent straight back for trial to the country in which he committed the crime. This Bill would have the extraordinary effect of granting him political asylum here.
§ This country has a proud tradition for granting political asylum to fighters for freedom who might be oppressively treated if they had to go back to their own country. Surely, that is the crucial question which must be asked and answered before a wanted man is returned to his country: Would he get a fair trial, or would he be liable to unjust and oppressive prosecution and punishment because of his political opinions and actions?
§ I am inclined at this moment to think that, both from this Bill and from the Extradition Act 1870, we should now eliminate the blanket prohibition on the return of people charged with an offence of a political character—a prohibition even against their return to a country whose democratic political structure and 1087 whose courts of law attain the same high standards as our own. Instead, I believe we should enact in both measures—for the Commonwealth, that is, and the rest of the world alike—something on the lines of paragraph (c) of this subsection. I can see no other solution for this problem.
§ I have modified my views, I grant, since 1964, partly because at that time no provision on the lines of paragraph (c) had been proposed. I do not think it can be satisfactory to rest on the argument that in the last 80 or 100 years very few cases of alleged political offences have arisen and had to be considered. We must make the law sound: we must not rely on the bare hope that no future case will arise to expose its unsoundness.
I appreciate the Government's difficulty, in that Clause 4 of the Bill is really based on agreements reached with the other Commonwealth countries. I appreciate, also, what is in the European Convention on Extradition. I shall listen to all the views to be expressed on this Amendment with the keenest interest. But my present conviction is that the Government would be well advised to ask Parliament to pass this Bill now without the paragraph (c) that I am seeking to delete. Then the Government would do well to convene another conference of Commonwealth Law Ministers to consider further whether an absolute exclusion of all offences of a political character is needful or desirable, once it is established that no person is to be returned if, in the words at the foot of page 4 of the Bill,
he might…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 beg to move.
§ Amendment moved—
§ Page 3, line 37, leave out paragraph (a).—(Lord Brooke of Cumnor.)
§ 6.20 p.m.
§ VISCOUNT DILHORNE
The phrase in paragraph (a), "offence of a political character", is in one sense a rather curious one, because I think it would be hard ever to say that murder or causing grievous bodily harm are of themselves offences "of a political character". I 1088 think that is the phrase—I have not checked it—which is used in the Extradition Act 1870, and by that it is commonly understood that it is an offence committed for political purposes or with political motives. Nothing can be harder to determine than what are the motives which lie behind the commission of an offence. In some cases it may be clear, in others it is extremely difficult to establish, and there has never been any definition of what is meant by that. The courts, when they have had to consider it, have always been faced with great difficulties.
I think we ought to give careful consideration to the question before this House agrees to the inclusion of paragraph (a). It is true that ever since the Extradition Act of 1870 we have had this exception in relation to extradition; where it is shown to be a political offence we do not return the offender. What were the reasons for that? I do not quite know, and I do not think that any case has been made out for extending that exception to the Commonwealth, to which it has never applied up to now. Indeed, I think the time has come when one should give serious consideration to the retention of that exception in the Extradition Act 1870.
It was only just over a hundred years ago when there was an attempt on the life of the Emperor of France—a bomb outrage—and the conspiracy, was formed in this country. I refer to the Orsini case. Because it was impossible to deal with that case, a Bill was introduced into Parliament to make conspiracy to murder an offence triable in this country wherever it was intended to commit the murder. I looked at the speech made by Lord Palmerston in moving the Second Reading of that Bill on February 8, 1858. He said this in the course of his speech:The natural consequence of the fact that the parties who were immediately concerned in this diabolical attempt issued from this country, has been that foreign nations, ignorant of our peculiar laws and unacquainted with the spirit of our Constitution, have thought that there was an indifference in this country to the commission of crimes of an atrocious nature and that so far from entertaining those feelings which human nature must ever entertain with regard to such projects and such acts, on the contrary the people of England were disposed rather to look upon them with a feeling amounting almost to favour.1089 I cannot help thinking that, should an offence of a political character, of a serious kind, be committed in a part of the Commonwealth, in which somebody may lose his life or is grievously injured, it might cause the greatest ill-feeling between that part of the Commonwealth and us if in fact we refused to return to the Commonwealth territory a person charged with the commission of that offence. I do not believe that public opinion in that Commonwealth territory would be in the least satisfied by our saying that in this year, 1967, we had passed an Act which prohibited us from returning to a Commonwealth territory a person charged with a serious offence if it was of a political character. That is what we are concerned with here.
It is not the question of getting back from a Commonwealth territory someone who has committed a crime in this country of a political character, although, of course, if there is reciprocal legislation that would arise. Under this particular clause is the question of our returning to a territory outside someone charged with the commission of a terrible offence, and our refusing to do so because we said that this was an offence of political character. I cannot think that that is right in these days. Whatever the origin of this exception was, I do not believe it should continue to exist, either in relation to extradition or in relation to sending a fugitive offender back to a Commonwealth territory. Certainly I do not think this exception should be extended to Commonwealth territories.
Surely, the criterion that one must look for, as I think my noble friend indicated, is the question whether or not on his return the accused person will stand a fair trial. As I see it, it will require a very heavy burden of proof, and should require a very heavy burden of proof, to satisfy the courts of this country, or the Home Secretary, that the person returned to a Commonwealth territory to stand his trial would not receive a fair trial. Surely, we ought to proceed upon the assumption that within the Commonwealth trials are fair; and that, I think, should be the only test which should be contained in Clause 4. There should be power to refuse to return, where it is not so. I do not think it would be easy to show it or that it will be shown at all often that the trial, if he was returned, would in certain respects be unfair.
1090 In this Amendment, we are dealing with the enlargement to the Commonwealth of the exception regarding offences of a political character contained in the Extradition Acts. That I am sure is wrong. I do not like—I say frankly—the provisions in paragraphs (b) and (c), because I think it is putting an intolerable burden on the courts to determine whether or not, although the offence for which the return is asked is clearly a criminal offence of a serious character, a request for the return is in fact made to punish the person, not for that offence but on account of his race, religion, nationality or political opinions, or to determine that he might be prejudiced at his trial by reason of his race, religion, nationality or political opinions.
I do not quite see how that is going to be determined with any degree of precision. It seems to me to open a wide door for delaying procedure in the courts of this country, to delay the return of somebody whose return is sought, by allegations being made under one or two of these headings. But that is the position. That would require very careful investigation. It would be very difficult satisfactorily to investigate it, and I think it might well prove stultifying to the operation of this Bill.
One is faced with the fact—and I appreciate it—that this Bill emanates from a conference, I think, which the noble and learned Lord the Lord Chancellor and Law Officers from the Commonwealth attended. I am not sure—I do not know—to what extent they considered this question of any exception for political offenders. Maybe in trying to get our law of extradition in line with our law relating to fugitive offenders, it was just taken from the Extradition Act and put into this draft Bill. I shall listen with the greatest interest to what the noble and learned Lord, the Lord Chancellor, may say about it, but I think myself that this Bill would be very greatly improved if this provision were not in it.
I would not want to delay the Bill becoming an Act if that can be avoided. Perhaps it could be avoided within the light of what the noble and learned Lord the Lord Chancellor said in the earlier debate on this measure. After all, he could except by Order in Council this 1091 particular provision. The noble and learned Lord may say he does not wish to go back to the Commonwealth territories to get an alteration of Clause 4, as it has been agreed with all of them; but if he would say that he intends to seek their agreement to an Order in Council under Clause 2(3) not to apply paragraph (a), that will go a considerable way to meet the difficulties that I see in this case. I hope we can persuade the noble and learned Lord the Lord Chancellor that to retain this category is a retrograde step at the present moment, and indeed to apply it to Commonwealth territories is not really a step forward of any kind. I do not want to pursue the matter now, because I want to hear, with great interest, what the noble and learned Lord can say in support of the retention in operation of this provision.
§ 6.31 p.m.
§ THE LORD CHANCELLOR
The Committee have heard two very interesting speeches, from the noble Lord, Lord Brooke of Cumnor, and the noble and learned Viscount, Lord Dilhorne, on what is an important and not altogether easy subject. I think, in the first place, that there may well be a good deal to be said for the view expressed on Second Reading, that we ought now to have one law applicable both to foreign countries and to the Commonwealth. It is true that at the dates when these Acts were passed in the last century there were, on the one hand, a number of foreign countries which had, from our point of view, tyrannous régimes, and we afforded asylum to good democrats who wished to get away from them and did not wish to return there; whereas, of course, the Empire had the same law—or substantially the same law—in all its constituent parts and substantially the same system of justice, properly conducted. Now that many parts of the Commonwealth are independent countries, it does not follow that they will continue to maintain the same standards of justice which they have had in the past, and there is a good deal to be said for having some day one uniform law in this field which we should apply to all countries, whether foreign or parts of the Commonwealth.
On the question of what the law should be, the object of this Amendment, 1092 after all, is to propose in effect that, certainly for the Commonwealth, and I suppose, if we are to have the same law for foreign countries, in those countries too, we should give up the traditional right of asylum to those who come here claiming, when extradition proceedings are sought, that they are the victims, or may be the victims, of religious or political views. I think I ought to make it plain at once that, in the Government's view, the claim to be a political offender does not afford a blanket protection to persons who represent that criminal offences have a political purpose. As the noble and learned Lord, Lord Reid, said in his judgment in the case of Schtraks:…not every person who commits an offence in the course of a political struggle is entitled to protection…so it appears to me that the motive and purpose of the accused in committing the offence must be relevant and may be decisive".The clear basic purpose of Section 3 of the Extradition Act 1870 is to provide an unequivocal grant of political asylum in appropriate cases.
Prior to the passing of that Act it had not been the practice to include in the extradition treaties in operation before that date—and there were three—a provision precluding the return of political offenders. It appears, however, from the evidence presented to the Select Committee on Extradition in 1868 that, notwithstanding the absence of any such provision, the treaties operated to prevent the return of such offenders. In giving evidence before the Committee, the then Permanent Under-Secretary of State at the Foreign Office said:…it is always understood that persons charged with political offences should not be given up. Under our present treaties we should certainly not give up a person charged with a political crime.It can very properly be said that a century of successful practice does not make this principle sacrosanct, but it is fair to point out that the absence of any provision in Extradition Acts precluding the return of political offenders had long given rise to considerable disquiet. Indeed, two important measures—a Bill designed to bring into operation a new convention with France in 1852, and a Bill introduced in 1864 to provide for extradition arrangements with Prussia—had eventually to be withdrawn because 1093 they failed to satisfy Parliament's fears for the safety of political offenders. Indeed, it became clear that no Extradition Bill could be assured of a safe passage through either House unless it included an express provision forbidding the return of political offenders. Thus it was that the Select Committee of 1868 felt bound to recommend such a provision for inclusion in any new measure, and when they came to prepare their Report they declared that the British Parliament and people would not tolerate any infringement of the traditions of political asylum; that it is the right of all to rebel against their Government, and that in the eyes of other nations such rebellion is not a crime.
And so the Act of 1870 enacted a complete prohibition of the surrender of persons accused or convicted of offences of a political character. What in fact the noble Lord, Lord Brooke of Cumnor, and the noble and learned Viscount, are challenging is whether that philosophy is still viable to-day. First, let me say that I would think it wrong to construe the words of the Committee as an advocacy of bloody revolution against freely elected Governments. They were sitting at a time when countries around us were still attaining true democracy after centuries of despotism, and their words were probably no more than acknowledgement of the fact that this could not always be achieved by constitutional means. My Lords, neither can it to-day. There are all too many countries of the world where political freedom, in the sense in which we know it, is denied, even, in some cases, after it had once been attained. All too frequently we learn of yet another coup d'état, possibly engineered with the highest motives, yet resulting in the suppression of political liberty, perhaps temporarily, perhaps not. And the countries of the Commonwealth have not been immune. There have been five coups d'état in independent Commonwealth countries since January last year—Nigeria, in January and July; Ghana, in February of last year; Uganda, in March; and Sierre Leone, in March of this year.
In the circumstances it is difficult to see that the situation to-day is so very different from that of the late 19th century, or to accept the contention that there is no longer any need to accord the same 1094 rights to political offenders as were accorded then.
I would venture to submit that the needs of 1967 are not manifestly different from those of 1868. One does not, after all, need to have a very long memory to recall the events of the autumn of 1956 in Hungary. I do not think that any Member of your Lordships' House would have been happy if this country had surrendered to the Government of Hungary a person accused of murder in connection with those events. Yet we have an extradition treaty with Hungary—one which had been invoked as recently as 1950—and that treaty extends to murder.
It is not surprising that the Council of Europe should have decided, as recently as 1957, that the time had certainly not come to relinquish the safeguards relating to political offenders when it came to drawing up the European Convention on Extradition. It is true that it was suggested at one stage during the negotiations on the Convention that surrender might be made discretionary, but the great majority of the participating countries, who had traditionally precluded the extradition of political offenders in their treaties, were not disposed to seek any relaxation of this principle, and in any event the Constitutions of France, Italy and the Federal German Republic expressly prohibited the return of political offenders. So they could not possibly agree to anything else.
There was, however, one respect in which Article 3 of the European Convention sought to limit the safeguards provided for political offenders: that was by providing specifically that the murder, or an attempt on the life, of a Head of State or a member of his family was not to be considered a political offence. This is the "attentat" clause, which has figured in much Continental extradition legislation, ever since the Belgians introduced it following a decision of their courts that two Frenchmen, who attempted in 1854 to cause an explosion on a railway line in order to assassinate the Emperor Louis Napoleon, could not be returned to France because their offence was one of a political character.
On at least two occasions recommendations have been made that this provision should be introduced into our own extradition law. The Select Committee 1095 in 1868 thought that a person accused of assassination, or of an attempt to assassinate, should not come within the exemption proposed for political offenders. And, again in 1878, a Royal Commission on Extradition suggested that an exception should be made for grievous political crimes such as assassination. The Governments of the day were not sympathetic, however, and neither recommendation was implemented. On the advice given by the Law Officers of the Crown in 1870 it was decided that it should be left to the courts to determine in every case whether the murder of a Sovereign was or was not, on the facts, a crime of a political character. As it happens, the absence of the "attentat" clause from our Extradition Act has not caused persons accused of attempts on the lives of heads of State to seek asylum here. There is no record of any such case in the 97 years of the operation of the Act. Nor is there any reason to assume that its absence from the Fugitive Offenders Bill will have any different effect.
But should such an offender come here, why should it not be left to the courts to consider whether or not the case is a political one? They have, of course, had to determine this in a number of cases, many of which I have read, and it does not appear to have caused our courts any insuperable difficulty. The murder of a Head of State is not necessarily an offence of a political character. Although such a crime would be deplorable, one can conceive that it might, on the rare occasion, constitute an upsurge of popular emotion against an oppressive régime. Such régimes, alas! still exist. Not long ago, I remember, we had a Head of State called Hitler. New ones may arise. In the Government's view, therefore, it is as difficult to-day as it was in 1870 to accept the view that there will never be an occasion when it would be right not to surrender a political murderer.
It is for these reasons and because we believe that our views still have the backing of public opinion that we urge that paragraph (a) should be retained in the Bill.
§ VISCOUNT DILHORNE
I think that, by mistake, the noble and learned Lord used the word "not" in his penultimate sentence. He said "not to surrender".
§ THE LORD CHANCELLOR
Yes: I did say, "not".
The noble and learned Viscount asked how this came to be put before the Commonwealth countries. This is what our law has always been since 1870. There is exactly the same clause in the European Convention on Extradition, and it came before the Commonwealth because in March, 1964—a period which the noble and learned Viscount will remember—proposals contained in a memorandum circulated by his Government were put before Commonwealth Governments. I give every credit to the noble Lord, Lord Brooke of Cumnor, as being in fact the author. Part of that memorandum read as follows: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 of Extradition, prohibiting rendition for an offence of a political character.When the present Government came into office they took up this good work. The noble Lord, Lord Brooke of Cumnor, had taken the view we have all taken: that whether it is desirable to have one Act referring to all countries or not, it was a matter of some urgency to get appropriate amendments made to the Fugitive Offenders Act so far as the Commonwealth was concerned. That is why it was taken up as to the Commonwealth, and this proposal of the previous Government was put before them.
That having been done, and there having been approval in Sydney, in August, 1965, of the idea that there should be a meeting to try to work out reciprocal arrangements; the document of the noble Lord, Lord Brooke of Cumnor, having been before them and their agreement to it having been obtained; it having been published in the White Paper, and some countries—Australia, at least—having already enacted its own legislation based on the agreement made at the Conference, I very much fear that it is impossible now for the Government to seek to go back on that—and I would emphasise that, for the reasons which I shall venture to give, I think it would be wrong to do so.
If, from a Communist ship, Communist citizens when they arrive in this country want not to go back, and if some extradition proceedings are then started by 1097 the Communist country to get them back, there may well be the same need for protection to-day in certain cases as there has been in the past. I think the noble Lord, Lord Brooke of Cumnor, was particularly concerned about murder, but he will remember that we are now an abolitionist country and it has always been the practice of abolitionist countries to refuse to return somebody so that he may be hanged or guillotined or gas-chambered. And whereas it always used to be the other way round, this did not lead in practice to the abolitionist countries of Europe becoming dumping grounds for murderers, but they always insisted on being able to refuse to return to this country anyone we were going to hang. So there would be an additional reason why, in practice, it would be unlikely to arise.
The noble Lord, Lord Brooke of Cumnor, has already said that he is not proposing to divide the Committee on this Amendment, but I would go further and express the hope that I have convinced him.
§ 6.46 p.m.
§ LORD BROOKE OF CUMNOR
It is quite true that I said I was not proposing to divide the Committee on this Amendment, and I think all of us would like to study with care the speech that the noble and learned Lord has just been good enough to make. It was a closely argued speech, though I am bound to say that it did not carry full conviction to me. I can see, if we keep this clause un-amended, no protection against situations possibly arising which would be absolutely intolerable both to this country and, as likely as not, to the Commonwealth country concerned, unless we were saved by a court of law deciding that what had obviously been a political offence was not in law a political offence.
I do not think that the noble and learned Lord intended this, but certain words he used might be read as suggesting that I was wishing to undermine the traditional right of asylum in this country. That is not so. I feel most strongly that people should be able to count on political asylum in this country if the circumstances are such that they would be liable to be oppressively treated if they were to return to their own country. But I really think the time has come when we must recognise that although that still applies 1098 in some countries of the world, there are fewer such countries than there were in 1870 or 1881. I find it quite impossible to believe that in the case of a political murder committed in the United States of America we should assume that a man would be oppressively treated by the American courts if he were returned there.
My noble and learned friend Lord Dilhorne assisted me in my argument by citing the case of a Commonwealth Head of State or Prime Minister or prominent political figure, whose murderer, or would-be murderer, was afterwards found to be in this country. I think public opinion in this country would find it absolutely intolerable if somebody who had made a murderous attack on, let us say, the Prime Minister of India were found to be in this country and, because it was a political offence, nothing whatever could be done. I think that would be intolerable to the people of this country and even more intolerable to the people of India; and what the Government are proposing does not seem to me to offer any effective safeguard against that possibility.
Everybody realised in 1870, when many peoples were struggling or had successfully struggled to free themselves from oppressive autocracies or oligarchies, that it was more than likely that unsuccessful rebels might come to seek asylum in this country. Whether or not it has happened on a large scale in the hundred years since seems to me to be hardly relevant. The important point is that there should be effective provision in our law to enable them to be granted political asylum. But the reason for their deserving political asylum is not that they have murdered or attempted to murder somebody, but that, if they are returned to their country, the courts or the régime will be prejudiced against them and will see that they do not receive justice.
What, therefore, has been in my mind since I saw the White Paper is that the new provisions, now in paragraphs (b) and (c) of subsection (1) of Clause 4 might provide an effective criterion which would enable us to get out of dangerous situations in the future, while eliminating an overall prohibition against the return of political offenders. I am thinking aloud; I should like to throw out one suggestion. The noble and learned Lord was good enough to say that he saw some virtue in the idea, which I think I mentioned on 1099 Second Reading, of seeking to assimilate the fugitive offenders legislation and the extradition legislation.
As this in no sense arises from a difference of Party philosophy, but is a general problem which involves all Members of both Houses of Parliament, I should like to throw out the suggestion that useful work might be done by a Joint Select Committee on the whole question of rendition, in preparation for a single Bill, which would then replace whatever we are doing here and also what is contained in the 1870 Act. As I say, I am only thinking aloud. That may not be the best solution, but I am quite sure that there is work to be done and that it is Parliamentary work that has to be done. Meanwhile, I should like to consider further what the noble and learned Lord has said. I do not feel at all happy about this; nor do I believe that public opinion would feel happy if the implications were fully understood by the public.
§ VISCOUNT DILHORNE
I should like to say a word in reply to the noble and learned Lord the Lord Chancellor. I would thank him first of all for giving such a carefully considered and detailed reply to questions which he agrees are of importance and difficulty. I, too, want to study carefully what he has said. But I should like to make it clear that certainly I was not seeking to restrict or abolish the right to political asylum. The noble and learned Lord referred to Communists deserting Communist ships and staying here. I do not really think this arises in relation to this question, unless in an endeavour to bring them back some serious charge was preferred against them and then their extradition was sought. But in the ordinary way that would not be the case.
I feel great concern as to the consequences should we be asked to return someone who is wanted for a crime of the gravest nature and we refuse. It is all very well to talk about the situation in the last century, and how there may be dictators in the future as there have been in the past. What worries me—and I hope the noble and learned Lord will give more thought to this—is what would have been, for instance, the effect on Anglo-American relations if after the 1100 death of the late President Kennedy the man wanted for that murder had escaped to this country and we had said, as I think probably we would have been bound to say, that this was an offence of a political character. I do not believe that public opinion would have stood for our not returning him for one moment, or that American public opinion would have understood our not doing so. I give that as one instance; one can multiply it.
I do not believe that this legislation will be satisfactory until we have covered that kind of case and made it possible for a person accused of a crime of that character to be returned to a country where we are satisfied that he will obtain a fair trial. I do not want to press this to-day; indeed, I do not want to pursue it any further. But I hope that, just as I will study what the noble and learned Lord the Lord Chancellor has said, he will also give further thought to this problem, on which there is no Party issue at all, but which may be, if we do not find the right answer, a source of very great friction in the future, which is what I want to avoid.
§ Amendment, by leave, withdrawn.
§ Clause 4 agreed to.
§ Clauses 5 to 13 agreed to.
§ 6.58 p.m.
§ LORD BROOKE OF CUMNOR moved, after Clause 13, to insert the following new clause:
Amendment of s. 3 of British Nationality Act
.In subsection (1) of section 3 of the British Nationality Act 1948 the words 'and (b) in the case of an act or omission in any country mentioned in subsection (3) of section one of this Act or in Eire, it would be an offence if the country in which the act is done or the omission made were a foreign country' are hereby repealed.
§ The noble said: I beg to move the new clause standing in my name on the Marshalled List. Its effect would be to repeal certain words in subsection (1) of Section 3 of the British Nationality Act 1948. Linked with this are two consequential Amendments, Nos. 8 and 9. My purpose in moving this new clause is to invite the Government's attention to 1101 the fact that this provision in the 1948 Act was agreed to by Parliament at the time, I believe, on the assumption that citizens of independent Commonwealth countries would continue to be returnable under the Fugitive Offenders Act 1881 to their own country if they were accused of offences connected with, for example, espionage. This will no longer be possible if persons accused of political offences, such as espionage, or offences against the Official Secrets Acts become, under this Bill, no longer returnable. What I am putting to the Government, therefore, is that certain words in the 1948 Act urgently need to be looked at afresh if the 1881 Act disappears and this Bi11 takes its place.
§ Before the British Nationality Act 1948, anyone who was believed guilty of an offence in an independent Commonwealth country of espionage against the United Kingdom or a breach of the United Kingdom Official Secrets Acts could be put on trial in the United Kingdom, it we could get hold of him. That is under Section 10 of the Official Secrets Act 1911, and it still applies in the case of United Kingdom citizens or foreigners. But these particular words in the British Nationality Act 1948 removed such a man from United Kingdom jurisdiction if he was a citizen of an independent Commonwealth country. No doubt it was considered safe to do that because he was likely also to have committed an offence under the law either of his own country or of the country where the offence took place, and under the Fugitive Offenders Act he could be returned there to stand his trial. But in future he will not be returnable, and therefore he will not be triable anywhere.
§ On Second Reading I cited the imaginary case of two men, one a foreigner and the other an Australian, jointly suspected of having committed an offence in Australia against the United Kingdom Official Secrets Act 1911. Suppose subsequently they were both discovered to be in this country. The foreigner could be put on trial here, but the Australian could not, because he is protected by these particular words in the British Nationality Act 1948 from being tried here, and if this Bill becomes law he will in future be non-returnable to Australia. This is a complex matter which it is hard to explain with clarity, 1102 but I am sure that the provision in the 1948 Act demands early attention if this Bill goes through in its present form. That is the reason why I have tabled these Amendments, the first of which I now beg to move.
§ Amendment moved—
§ After Clause 13, insert the said new clause.—(Lord Brooke of Cumnor.)
§ THE LORD CHANCELLOR
The short answer to this Amendment is that the noble Lord, Lord Brooke of Cumnor, is quite right in the conclusions which he has drawn. He is quite right in saying that the British Nationality Act needs this, apart from any other revision. But the Government view is that the position is even more complex than the noble Lord has indicated, and they propose to undertake an early review of the provisions of the British Nationality Act. They think, however, that it would not be convenient to try to start doing that in the course of this Fugitive Offenders Bill.
The reasons for that are a little involved. The noble Lord and the Committee, I hope, will not mind if I take this fairly fast, because it will all be rather technical and it will be on the Record, and then can be studied, perhaps before the Report stage of the Bill. The Amendments would repeal Section 3(1)(b) of the British Nationality Act. Section 3(1) provides as follows:A British subject or citizen of Eire who is not a citizen of the United Kingdom and Colonies shall not be guilty of an offence against the laws of any part of the United Kingdom and Colonies or of any protectorate or United Kingdom trust territory by reason of anything done or omitted in any country mentioned in subsection (3) of section one of this Act or in Eire or in any foreign country, unless—Subject to the exceptions which I shall presently mention, the broad effect of Section 3(1) of the 1948 Act is, so far as concerns prosecution in this country for offences committed abroad, to assimilate the position of citizens of the Republic of 1103 Ireland and British subjects who are not citizens of the United Kingdom and Colonies to that of aliens. (Citizens of the Republic of Ireland are not aliens; that flows from Section 2 of the Ireland Act 1949). For example, notwithstanding the provisions of Section 9 of the Offences against the Person Act a British subject who is not a citizen of the United Kingdom and Colonies cannot be prosecuted here for a murder committed abroad since an alien could not be prosecuted for such a murder. It should be noted that in relation to murder the proposed repeal of Section 3(1)(b) of the 1948 Act would make no difference to the law, since an alien may not be prosecuted here for a murder committed in either a foreign country or an independent Commonwealth country. It is otherwise in relation to certain security offences. This is where we become rather more complicated.
Provided that nothing in this subsection shall apply to the contravention of any provision of the Merchant Shipping Acts, 1894 to 1948.
- (a) the act or omission would be an offence if he were an alien; and
- (b) in the case of an act or omission in any country mentioned in subsection (3) of section one of this Act or in Eire, it would be an offence if the country in which the act is done or the omission made were a foreign country;
As to this, the law of treason is complicated by its relationship to the doctrine of allegiance. It is nowadays rarely invoked except in regard to acts done in time of war, and for practical purposes we are concerned with the Official Secrets Acts rather than with the law of treason. Ignoring, for the moment, the effect of the 1948 Act, under Section 10 of the Official Secrets Act 1911 an alien may be prosecuted here for an offence committed in any part of Her Majesty's Dominions but not for an offence committed in a foreign country; a British subject (or British officer) may be prosecuted here for an offence committed anywhere, whether within or outside Her Majesty's Dominions.
Because Section 10, rightly or wrongly in present day circumstances, enables an alien to be prosecuted here for an offence against our Official Secrets Acts if it was committed in an independent Commonwealth country but not if it was committed in a foreign country, the effect of Section 3(1)(b) of the 1948 Act is that, unlike the alien, the British subject who is not a citizen of the United Kingdom and Colonies cannot be prosecuted here even if the offence was committed in an independent Commonwealth country. The odd result of it, as the noble Lord pointed out, is that if, for example, a Canadian citizen and a foreigner together committed acts of espionage in Canada, contrary to our Official Secrets Acts, the foreigner but not the Canadian would have committed 1104 an offence against United Kingdom law and, if they both came to this country, only the foreigner could be prosecuted here.
Section 3(1)(b) of the 1948 Act produces similar results in relation to a few other enactments making provision similar to that made by Section 10 of the Official Secrets Act 1911, but these enactments (for example, Section 4 of the Foreign Enlistment Act 1870 and Section 3 of the Explosive Substances Act 1883) may rightly be regarded, in the context of the debate, as of less significance than the 1911 Act. It is, however, noteworthy that the 1911 Act and these other enactments all refer to "Her Majesty's Dominions" and were passed at a time when such a reference was a reference to the old Empire. The noble Lord, Lord Brooke of Cumnor, took the view on Second Reading, and to-day, that the repeal of Section 3(1)(b) was enacted against the background of the Fugitive Offenders Act 1881, and that in the hypothetical Official Secrets Act case just discussed the Canadian might well have committed an offence against Canadian law, in which case he could have been returned to Canada, under the 1881 Act, to face trial. Under the present Bill he would no longer be returnable and the anomaly of his immunity from prosecution here should therefore be cured.
In summary, the Government agree that the matter must be looked at in the light of Commonwealth developments, but consider, for the following reasons, that the repeal of Section 3(1)(b) of the 1948 Act by the present Bill must be resisted, first, because the British Nationality Act 1948 was the result of extensive discussions within the Commonwealth. It has been on the Statute Book for almost twenty years and, notwithstanding the changes in the law relating to extradition within the Commonwealth, it could scarcely be proposed to repeal Section 3(1)(b) without first seeking the agreement of other independent Commonwealth Governments. This might be difficult to secure and would certainly not be secured quickly.
Secondly, section 3(1)(b) relates not only to independent Commonwealth countries but also to the Republic of Ireland. It would be difficult, now, to restore the position to that in which citizens of the Republic would be liable, under United 1105 Kingdom law, for acts done in the Republic of Ireland and (subject to consultations) it would seem arguable that any repeal of Section 3(1)(b) should be restricted to the wordsin any country mentioned in subsection (3) of section 1 of this Act or";And, thirdly, the repeal of Section 3(1)(b) would itself highlight what might, having regard to the development of the Commonwealth, be regarded as another anomaly.
Should a Commonwealth citizen, or for that matter an alien, be liable to be tried here for an offence committed in, say, Canada when he would be immune from prosecution here had he committed precisely the same act in the United States? While this question clearly demands an answer, it is such a fundamental one that, without prejudicing the ultimate answer, a decision could be reached only after extensive consultation and very careful consideration. In short, Section 3(1) of the British Nationality Act 1948 should not be amended without consultation with other interested countries, similar to that which preceded the Act, which would inevitably involve a review of the extra-territorial provisions of the Official Secrets Act. After all, this means our considerably enlarging our own criminal jurisdiction qua other countries.
Therefore, the noble Lord, by the later Amendment which he has put down in relation to the Title, appreciates clearly that the Amendment proposed would be one which was so alien to the present Bill as a whole that the Long Title would have to be altered, and that this would have to be done after the Bill has already passed another place. My right honourable friend would be the first to agree—I know that he does agree—that the British Nationality Act wants overhauling. He has it in train, but for the reasons which I venture to give we do not think that this Fugitive Offenders Bill is the appropriate place in which to start trying to amend some of the present anomalies in the British Nationality Act.
§ LORD BROOKE OF CUMNOR
I hasten to assure the noble and learned Lord that the Government need not brace themselves to resist this Amendment. I never had the slightest intention of pressing it, and I shall shortly beg leave to 1106 withdraw it; but not before expressing my sincere thanks to the noble and learned Lord for the trouble he has taken over the matter. I think that it will be of general value that the facts of the situation, as well as the Government's approach to the problem, are now on the Record. I appreciated when moving the Amendment that the matter was a complicated one. I tried in my speech to reduce the issue to the simple essentials. I am gratified to find that I was on target, but I entirely agree with the noble and learned Lord that, if the British Nationality Act 1948 is to be reviewed by the Government in other respects, it is far better not to seek to make any amendment of it here. Therefore, having established the point that this Bill has some repercussion on that Act, I beg leave to withdraw the Amendment.
§ Amendment, by leave, withdrawn.
§ Clauses 14 to 18 agreed to.
§ Clause 19 [Interpretation]:
§ 7.15 p.m.
LORD MITCHISON moved to add to subsection (1):
'race' includes tribe".
The noble Lord said: This is a small and, I hope, helpful addition to the definitions in the Bill. "Race" is a word that has many meanings, some of them good, some bad; some old, some new. All I want to do is to make sure that "race", where it occurs in Clause 4 of the Bill, does in fact include "tribe". It is obvious that every noble Lord here would not wish a person to be prejudiced or punished on account of his tribe, and that is all this Amendment seeks to meet. I would add that, contrary to all appearances, I am not a Government stooge, but I am a person of original if shallow mind.
Page 14, line 12, at end insert—(" 'race' includes tribe").—(Lord Mitchison.)
§ THE LORD CHANCELLOR
The Government would advise the Committee to accept my noble friend's Amendment. The Bill as drafted was taken from Article 3 of the European Convention on Extradition, and that, of course, was directed at inter-European extradition arrangements, where inter-tribal matters do not normally apply. There is, I think, a 1107 doubt about this. The Oxford English Dictionary defines "race" as including a reference to "a tribe", but it is open to some doubt. I know that the Commonwealth Office take the view that, on the ordinary common-sense view, tribes in certain parts of the Commonwealth could not properly be regarded as "a race". As the matter is open to doubt, it is desirable that it should be beyond doubt, and accordingly we are grateful to my noble friend for his Amendment.
§ Clause 19, as amended, agreed to.
§ Clause 20 agreed to.
§ Clause 21 [Repeals and transitional provisions]:
LORD STONHAM moved to add to the clause:
( ) Without prejudice to subsection (2) of this section, this Act applies to offences committed before as well as after the passing of this Act.
§ The noble Lord said: The purpose of this Amendment is to make it clear that after the new Fugitive Offenders Act has been brought into operation in relation to any country, and the Act of 1881 is thereby repealed, any new application made to this country for the return of a fugitive offender will be dealt with under the provisions of the new Act, notwithstanding that the offence in respect of which the application is made may have been committed at a time when the old Act was still in operation. I beg to move.
§ Amendment moved—
§ Page 14, line 45, at end insert the said subsection.—(Lord Stonham.)
LORD STONHAM moved to add to the clause:
( ) In paragraph 4 of Schedule 3 to the Parliamentary Commissioner Act 1967, the reference to the Fugitive Offenders Act 1881 shall include a reference to this Act.
§ The noble Lord said: The effect of paragraph 4 of Schedule 3 to the Parliamentary Commissioner Act 1967 is to preclude the Commissioner from conducting an investigation into action taken by the Secretary of State under the Extradition Act 1870 or the Fugitive Offenders Act 1881. As was explained when the 1108 Parliamentary Commissioner Bill was before Parliament, it was thought right to exclude these matters since the aggrieved person will already have had access to the courts, and, in confirming a decision of the courts by ordering surrender, the Secretary of State is in any event acting in a quasi-judicial capacity.
§ The purpose of this Amendment is to achieve a similar result in respect of action taken under this Bill. Your Lordships may wonder why the Parliamentary Commissioner Act is being amended to refer to the Bill in addition to the Act of 1881 instead of in place of the Act of 1881. The reason is that the Parliamentary Commissioner Act may be invoked in respect of things done at any time in the past, and it is therefore necessary to continue to exclude action taken under the Act of 1881 from the jurisdiction of the Commissioner. Furthermore, if this Amendment were not made it might be argued that, in consequence of the repeal by the Bill of the Act of 1881, a reference to the Bill had been substituted for the reference to the Act of 1881 in paragraph 4 of Schedule 3 to the Parliamentary Commissioner Act, and that in consequence the prohibition which the Parliamentary Commissioner Act at present imposes on the investigation of action taken under the Act of 1881 had been removed. I beg to move.
§ Amendment moved—
§ Page 14, line 45, at end insert the said subsection.—(Lord Stonham.)
§ Clause 21, as amended, agreed to.
§ Remaining clauses and Schedules agreed to.
§ House resumed.