HL Deb 27 June 1967 vol 284 cc113-23

4.22 p.m.

Order of the Day for the Second Reading read.

LORD WILBERFORCE

My Lords, I have taken very much to heart what has been said earlier—that your Lordships have a great deal of business to get through to-day—and I believe I should be in accord with the spirit of the House in feeling that your Lordships would not want to spend an undue amount of time on this modest and uncontroversial measure. As I think noble Lords know, it was introduced in another place by a Private Member with Government support, and passed there without opposition and with only one or two minor Amendments. I hope it may be treated in a similar way by this House. As it is perhaps somewhat technical and concentrated, I think I ought to give a short explanation of what it sets out to do, and I shall do so as briefly as possible.

It is entitled the "Tokyo Convention Bill" in its Short Title, and its purpose is to enable the United Kingdom to ratify the Tokyo Convention, the full description of which is set out in the Long Title to the Bill. This is not a piece of legislation which schedules an International Convention to the Bill and brings it into English law; instead, it sets out simply to change English law, domestic law, to the extent necessary to enable it to be applied here. That explains the form the Bill has taken.

The Tokyo Convention was signed in 1963 by the United Kingdom and by 25 other States and it has been ratified by six countries up to the present time. It deals briefly with three main purposes. First, it sets out to clarify the legal position as regards crimes committed on aircraft, and also in relation to acts taking place in an aircraft which are liable to jeopardise the safety of the aircraft and of those on board. Secondly, it deals with the position of the commander and crew of an aircraft. They, of course, are not lawyers; they may have to deal with difficult and tricky situations and their position is quite different from that of the captain of a ship who has plenty of time in which to consider what he is to do and also has good, practical facilities for holding under restraint people who have committed crimes or who are a danger to the ship. That is not so in relation to aircraft.

Thirdly, the Bill sets out to deal with what is to happen on the ground when an aircraft lands with somebody on board who has committed an offence. Then it is necessary to reconcile a number of conflicting requirements, of traffic and airline operation. One does not wish to hold up an aircraft longer than is necessary; one wants to deal with the enforcement of the law so that crime may not go unpunished; one has to deal with immigration control; and, most of all, one has to take care that the rights of individuals are safeguarded and that they are not kept under restraint for longer than is necessary. Further, your Lordships will bear in mind that the legislation has to deal, first, with British aircraft outside the United Kingdom and, second, with the counterpart, foreign aircraft in the United Kingdom, whether they are flying over the United Kingdom air-space or whether they have landed on United Kingdom territory.

That is the general scheme of the Bill. If I now may briefly go through the clauses your Lordships will, I hope, see how it carries out its objectives. Clause 1 is the clause which deals with the application of the criminal law to persons committing crimes. It follows the Canadian and Australian legislation in applying United Kingdom criminal law to British aircraft. The expression used is "British-controlled aircraft"; which your Lordships will find defined later and which I will explain. That gets over a difficulty which was experienced several years ago when it was found impossible to convict of an offence under the Dangerous Drugs Act of this country a person who was carrying drugs in a United Kingdom aircraft but outside the territorial limits of the United Kingdom. In such a case now, British law would be applied and it would be dealt with as a crime under British law.

Your Lordships will see in subsection (2) of Clause 1 that the consent of the Director of Public Prosecutions in England and Wales is required to any prosecution. The reason for that is that without some such safeguard there might be a danger of foreigners flying in British aircraft being liable to prosecution for some minor offence under British law of which the foreigner in question was entirely ignorant. Therefore, it was thought better to give an overriding right to the Director of Public Prosecutions to decide whether it is appropriate to prosecute in such a case.

Clause 2 deals with the subject of extradition. As your Lordships are no doubt aware, the existing Statute as to extradition is the Extradition Act 1870 which dates from a time when flight was in a very experimental stage or else was confined to balloons. Therefore, at that time those who drafted the extradition legislation were not thinking of what would happen if a crime were committed in an aircraft. What this clause does is to apply Article 16 of the Tokyo Convention; that is to say, for the purpose of extradition a crime is treated as having been committed in the State of registry of the aircraft as well as in the State over which the aircraft is flying. For example, a crime committed on a Norwegian aircraft which is flying over France is treated as having been committed both in Norway and in France, and therefore, according to what the extradition Treaty says, both Norway and France (or either Norway or France) are entitled to put into operation the extradition machinery if the offender ends up in the United Kingdom.

Clause 3 is perhaps the central clause in the Bill. It should be a very useful and practical clause in relation to pilots and crews of aircraft, in that it gives them protection, tells them what they can do and defines their duties and responsibilities in what it is hoped is a practical manner. It begins by dealing with the commander of the aircraft, which again is defined later on. The powers it gives him are probably, as regards our law, mainly coincident with the Common Law. Your Lordships will see in subsection (2) that his powers arise when the aircraft is in flight—and there is a special definition of what is "in flight" later on in Clause 7. It means from the time when the doors have been shut until the time the doors are open again. In that period when the doors are shut on everybody and until they are opened again the commander is responsible for what goes on on board. But once the doors are opened or before they are shut the responsibility is that of the police authorities on the ground. Your Lordships will notice also that this subsection, and indeed the provisions relating to commanders, apply to the commanders of any aircraft and not only British aircraft, because it is obviously right that commanders of foreign aircraft in British territory should have their powers defined in the same way.

Subsection (2) of the clause contains one expression which may strike your Lordships as a little odd. In the first line of page 3 it uses the expression, "a serious offence." That expression is taken from the Convention itself. When it was under discussion we in the United Kingdom delegation, of which I formed part, objected to it as vague and uncertain, but it was agreed to. Would your Lordships look at the context in which it appears: …in the opinion of the commander is a serious offence…". Since there is a subjective test, it is thought that it will not create difficulty in practice, although it does lead to difficulty of definition.

Subsection (3) deals with the rights and duties of the crew of an aircraft, and also the passengers on board, in the way of the Common Law; that is to say, it treats them as ordinary citizens who are obliged to lend their assistance, and entitled to lend their assistance, to deal with an offender or a criminal. One may perhaps remark there that this did not find favour with the Eastern bloc, which is not in favour of ordinary citizens having rights in relation to crime, and it may be that that will be an obstacle to the countries of the Eastern bloc when they consider whether they should ratify the Convention or not.

Subsection (4) deals with the period during which restraint may be continued over a person subject to restraint. Subsection (5) says what the commander of an aircraft may do with a person who has either committed a crime or a dangerous act on board. Broadly, under paragraph (a), if it is a case of a threat to safety, ne simply disembarks the person and leaves him to continue his journey in some other way. Under paragraph (b), if the person is an offender, the commander delivers him, or may deliver him, to the appropriate authorities to deal with under the criminal laws.

Then, under subsection (6), a duty is imposed on the commander of an aircraft to report the intention to deliver a person, and also the disembarkation of a person, to appropriate authorities, under a penalty (which appears in lines 6 to 7 on page 5) of £100. The amount of that penalty has been approved by the Home Office in this country. The subparagraphs (ii) in each case, under paragraphs (a) and (b), were added in another place, and it may be appropriate to consider whether in line 32 on page 4 the letter "r" should not be added to the end of the word "office". That is some improvement which we might make at a later stage. So far as the duty to report is concerned, in practice it will be dealt with, I understand, in this way: that if this Bill becomes law, an instruction in general terms will be issued to commanders of aircraft to give notice by radio as soon as possible to air traffic control that they intend to deliver a suspected offender. That will introduce a routine applicable to anybody who flies and will give a means by which the presence of the suspected offender, and the intention to deliver him, may be established.

Clause 4 deals with piracy. This is outside the Tokyo Convention and, as your Lordships will see, brings in the Geneva Convention on the High Seas of 1958. The position about piracy is that it is an international crime to which International Law applies, but the content of it is not absolutely certain. For that reason the Geneva Convention on the High Seas of 1958, to which this country is a party, provided an internationally agreed definition of piracy, the relevant Articles of which your Lordships will find set out in the Schedule. Of course, piracy was in existence long before flight was known, but these Articles deal, as may be seen, with piracy by aircraft against ships and also by aircraft against aircraft, about which, apart from that Convention, there might be some uncertainty as to the law. So what Clause 4 does is make the three Articles of the Geneva Convention part of the English law and so put the position of these mixed piracies, sea-air and air-air, beyond any doubt.

Clauses 5 and 6 deal with certain ancillary matters in a way which I do not think calls for detailed comment. Clause 5 deals with the provision of the evidence in the case of crimes committed in relation to aircraft in the ordinary way, and Clause 6 deals with the proof of certain matters. In Clause 6(1)(a) what is dealt with is a kind of document which, apart from this provision, would require the unnecessary attendance of an official; for example, the Registrar of Aircraft in order to prove that an aircraft is registered in the United Kingdom, or a certificate of airworthiness which is validated by the Air Registration Board. It avoids the necessity of officials from the relevant authorities having to attend in court each time to prove the content of the necessary document. Under paragraph (b) what is dealt with is the Stationery Office publication known as the United Kingdom Air Pilot, which deals with a number of technical matters such as radio wavelengths. Subsection (2) relates mainly to such matters as the tape recordings of radio conversations which are taken in connection with air traffic control. I suggest that those are technical matters which do not raise any issue of principle.

Clause 7 introduces a number of definitions, and perhaps I may briefly refer to one or two of them. First of all, British-controlled aircraft, which, as I told your Lordships, is a matter dealt with in Clause 1, includes both British registered aircraft and what are known as inter-changed aircraft—that is to say, foreign registered aircraft chartered on demise charter to British operators. As those would be operated by British commanders with British crews, it is obviously appropriate that British law—British criminal law, if the occasion arose—should apply. Clause 7(4) deals with the possibility that a number of small States with no very great resources may establish joint air transport operations. Perhaps six or seven African States might think it a good idea to pool their operations and acquire one large Boeing between them, and operate it as what is called a joint air transport organisation. If that took place, some machinery would obviously be necessary to bring such aircraft within the Convention, and what is said is that it is to be treated as registered in one specified Convention country. Lastly, subsection (5) says that the costs of any prosecution under this Bill will be met out of Exchequer funds rather than fall on local funds. This is what happens in Admiralty cases; it applies the same procedure.

My Lords, I have one other remark. I can claim no responsibility for the drafting of this Bill—it is much too good for me. As your Lordships will have appreciated, it has received expert drafting. Though no doubt we may find small matters to improve as we proceed to a detailed consideration, your Lordships may be assured that it has been given expert attention and is technically in accordance with the usual standard of legislation presented to this House. My Lords, I beg to move that the Bill be read a second time.

Moved, That the Bill be now read 2a.—(Lord Wilberforce.)

4.39 p.m.

THE EARL OF BESSBOROUGH

My Lords, we must be greatly beholden to the noble and learned Lord, Lord Wilberforce, for introducing this very useful Bill into your Lordships' House, and I am sure we should all like to congratulate him on the lucid way in which he has explained it. In supporting the noble and learned Lord I might perhaps declare an indirect interest, in that for the past 15 years I have averaged some 25,000 miles of flying every year and am, consequently, most anxious, to put it mildly, that crime and offences on board aircraft—or piracy in the air—should be kept to a minimum or, preferably, prevented altogether.

Many of us have probably been aboard an aircraft when certain of the passengers have been disorderly as a result of drink. I have thought that if only alcohol had made them pass out altogether, or at least go to sleep, the situation would not have been so fraught with tenseness and even danger. Drink affects people differently. Some become argumentative, some unruly, and some even go berserk, making the position of the steward or air hostess quite intolerable. It is difficult to know what to do with them other than lock them up in the lavatory of the aircraft. I am not quite clear how this could be done, since most lavatories in aircraft lock only on the inside, but I suppose that the door could be secured in some other manner. Certainly there are cases where the aircraft commander needs power to act immediately to deal with unruly passengers, and I am sure that it is right that every contracting State should be able to establish jurisdiction over offences committed in its own aircraft, even if the offender is of another nationality and the aircraft is flying from one country to another, neither of which is its country of registration or, as the noble and learned Lord said, its country of operation. The Bill certainly meets these points and also arranges for the furnishing of evidence in writing, if necessary, by the nationals of other countries. All this seems reasonably satisfactory.

There is one point I should like to make about the delay in ratifying this Convention. We signed it in Tokyo in 1963, and I wonder why it has taken three to four years to draft this Bill and bring it before Parliament. I am told that so far only six countries have ratified. I think that we should set a good example on these matters and ratify this Convention as soon as we can. I am told that there is a number of international conventions concluded since the war which we have signed but not yet ratified. I wonder how many there are? I am not asking the noble Lord, Lord Walston, to give me an answer this afternoon. I propose to put down a Question for Written Answer, and I should be grateful if the Government would let us have a list of the conventions concluded since the War, with perhaps an asterisk against those which we have signed but not yet ratified.

There is one final point I should like to make. Would there not be some advantage in a Bill of this kind coming before your Lordships' House first? Would not this speed it up and make for less congestion of business in your Lordships' House towards the end of the Session? This is a point which my noble Leader has made on more than one occasion. One reason why such a procedure would be appropriate on this occasion is that we have with us the noble and learned Lord, Lord Wilberforce, who actually led our delegation in Tokyo. I know how distinguished and able a leader he was. Ably as the Bill was introduced in another place by the honourable Member who was fortunate in the ballot, might it not have been an advantage for Members there to have been able to read what the noble and learned Lord had said about the Bill in your Lordships' House before it came before them? Apart from that, and subject to any Amendments which may be proposed in Committee, I hope that this excellent Bill has a speedy passage through your Lordships' House.

4.45 p.m.

THE PARLIAMENTARY SECRETARY, BOARD OF TRADE (LORD WALSTON)

My Lords, I should like to join my congratulations to those of the noble Earl, and also express my thanks to the noble and learned Lord, Lord Wilberforce, for his lucid presentation of this Bill to your Lordships. I think that he was too modest about it, because it is a Bill of great value and considerable importance. Her Majesty's Government welcome it wholeheartedly.

There is no need for me to attempt to go into the details of the Bill, because the noble and learned Lord has put them so clearly. I am sure that the House agrees that we have been extremely lucky to have had such a fine exposition of this Bill. The noble and learned Lord has made it appear simple and straightforward, but those who have taken the trouble to look at it in advance realise that it is of considerable complexity. We should be grateful to the noble and learned Lord not only for having presented the Bill in such an admirable way, but also for the work he has done in the wide field of aviation law and, above all, for his work as leader of the British delegation to the Legal Committee of ICAO in the deliberations which led up to the calling of the Diplomatic Conference in Tokyo in 1963. It was largely due to his efforts and his wisdom that the Tokyo Convention was signed, and very fittingly signed, by the noble and learned Lord himself on behalf of the United Kingdom.

I should like to take this opportunity of going a little further than the Bill itself, and pay a sincere tribute on behalf of Her Majesty's Government to the work of the noble and learned Lord in the whole field of international air law during the years since the end of the last war. He has been the leader of our delegation to the Legal Committee of ICAO for many years. All those who have had anything to do with civil aviation have come to appreciate his many and great qualities, his zeal and wisdom, and his tenacity of purpose, an asset of great value in negotiations of this kind. He has made an enormous contribution to the body of international air law, which has resulted in the conclusion of so many of these international conventions. There is still plenty of need for work of this sort, and I sincerely hope that for a long time we may continue to enjoy the benefit of his advice and his services.

If, without running the risk of being discourteous, I may make one minor suggestion to the noble and learned Lord, I would say this. He referred to the African countries that might decide to join together to form an air line—an admirable suggestion which I hope many countries, not only African, will take up—and he went on to suggest that they might decide to buy a Boeing. I hope that they will buy a VC 10 instead.

Your Lordships will appreciate that this Convention does not come into operation until 90 days after 12 ratifications have been deposited. The noble Earl referred to the delay that has taken place. He understands well the reasons why there has been some delay before it has been possible to get round to this. But, as he himself said, at present only six countries have ratified. So we are well up on the list. The noble and learned Lord mentioned that there were 25 countries other than ourselves who had signed. According to the list that I have here, there are in all 27 countries other than ourselves, making a total of 28. So out of the 28, we, I hope, shall be the seventh, six being ahead of us. Therefore our record is not too bad. But I agree with the noble Earl that the sooner we can do these things the better. If this Bill becomes law, as I hope it will do very speedily, the Government will be able to ratify this Convention, though there may be some slight delay after that because of the need to apply the Convention to overseas territories. I can assure your Lordships that the Government intend to ratify the Convention as soon as possible.

But the usefulness of this Bill does not depend solely on the Convention itself being in operation. We intend to bring the parts of the Bill into effect as soon as practicable after it becomes law. An order will be made bringing most of the Bill into force immediately, but some of the provisions, in particular subsections (5) and (6) of Clause 3, relating to the delivery and disembarkation of offenders and others, will not be brought into force until the necessary arrangements have been made by those responsible for police and immigration matters. I do not think there should be any substantial delay because of this.

Finally, let me repeat my sincere thanks to the noble and learned Lord, not only for his great work over this whole field, but also, in particular at this stage, for introducing this Bill in such an admirable manner.

4.53 p.m.

LORD WILBERFORCE

My Lords, happily there is nothing to reply to. I should only like to express my deep gratitude for the support which has been given to this Bill, and particularly for the way in which the noble Lord on the Government Front Bench has defined the attitude of the Government and of himself. If one is thinking of the preparatory work which has been done on this Convention and other matters, one should certainly not omit to recognise the magnificent work done by the lawyers in the noble Lord's own Department, now the Board of Trade, and formerly the Ministry of Aviation, who have supplied all the sinews of war and really done all the technical work without which it would have been quite impossible for either the Convention to be signed or for this Bill to be presented. There is nothing more for me to say, except to thank both sides for the support they have given.

On Question, Bill read 2a, and committed to a Committee of the Whole House.