HL Deb 21 July 1971 vol 322 cc1049-65

7.9 p.m.


My Lords, I beg to move that this Bill be read a second time. This Bill is brief and, I believe, non-contentious. But it is not only for that reason that I think it will commend itself to your Lordships. The title too is brief, and if"hijacking"is not the most elegant of words everyone knows what it means—what is more formally called"the Unlawful Seizure of Aircraft ".

This evil and pernicious form of banditry is fraught with the gravest danger for passengers and crew, aircraft and property. It knows no boundaries. It has occurred in most parts of the world, and is still occurring. Still fresh in our minds are the terrible events involving a British aircraft on Dawson's Field less than a year ago. This month there was the hijacking of an American aircraft of the Braniff International Airlines over Texas. The aircraft subsequently landed to refuel at Monterey, in Mexico, where the passengers were allowed to leave after the airline had paid 100,000 dollars as ransom to the hijacker. The aircraft then flew to Lima in Peru, where it again refuelled, and then on to Rio de Janeiro in Brazil where troops tried to seize it but failed. From there it flew to Buenos Aires in Argentina. The police there refused to allow the aircraft to refuel and deflated its tyres, while the hijacker threatened to blow up the aircraft and its crew of six. Eventually, after the aircraft had been on the tarmac for 20 hours, the hijacker surrendered. This prolonged incident illustrates how complex a hijacking can be and how many countries may be involved in a single incident. I shall refer to it again later.

It is all too clear that the hijacking of aircraft still goes on. The threat remains, and we must do all we can to bring it to an end. One side of the international campaign against hijacking, and against sabotage and other acts of violence against aircraft, consists of the development of practical preventive measures such as detection devices and improved security arrangements at airports and elsewhere. This work goes on, but I am not concerned with it to-day. What I am concerned with is the other side of the campaign, the creation of a structure of international law, designed to act as a powerful deterrent by ensuring so far as possible that there is no place of refuge for the hijacker.

The Tokyo Convention of 1963 may be said to have been the foundation stone of this structure. That Convention was not specifically concerned with hijacking but dealt generally with crimes committed on board aircraft. The Tokyo Convention Act 1967 was introduced into your Lordships' House by the noble and learned Lord, Lord Wilberforce (I am glad to see him in his place), who had already contributed much to this subject. Its enactment enabled the United Kingdom to be among the first to ratify the Convention, which came into operation in December 1969, and is now in force for 41 countries.

The second instrument is the Convention for the Suppression of Unlawful Seizure of Aircraft, on which this Bill is based. Still to come is a draft convention dealing with what are described as"acts of unlawful interference against international civil aviation ". Here again the noble and learned Lord, Lord Wilberforce, has played a leading part. It is specially aimed at sabotage and similar acts of violence other than hijacking. Its preparation was put in hand largely at the instigation of the United Kingdom at the Extraordinary Assembly of the International Civil Aviation Organisation, which was convened in June 1970 especially to consider the security of civil aviation, and we hope that the convention will be finalised at a diplomatic conference which is to be held in Montreal in September.

The Convention for the Suppression of Unlawful Seizure of Aircraft was concluded at a diplomatic conference at The Hague on December 16, 1970 (for convenience I will refer to it as The Hague Convention). It was signed at the time on behalf of 50 countries, including the United Kingdom, and since then there have been another 20 signatories, making a total of 70. It has been ratified by at least five States, and several other countries are known to be preparing for ratification. It will come into effect between ratifying countries 30 days after the tenth ratification has been deposited. The sooner the Convention enters into operation the better; and the more States that adhere to the Convention, the more effective it will be.

All Conventions are to some extent a compromise and the same applies to this one. Some States wanted to go further than the Convention goes, but to have done so might have discouraged other States from adhering to it. What really mattered was to get agreement on a plan which would as far as possible ensure that any hijacker landing in a country which had ratified the Convention would be brought to justice, either in the country where he landed or in a country which was entitled to request his extradition. What the Convention does, in brief, is to require contracting States to make the hijacking of aircraft an offence punishable by severe penalties. It includes provision for arrest, facilitates the extradition of offenders between contracting States, and requires any contracting State in which the offender is found to take jurisdiction to prosecute him, if it does not extradite him. If it had been in force between the countries concerned, the rights and duties of those involved in the Braniff International Airlines incident, to which I referred earlier, would have been much more clearly defined.

The main purpose of the Hijacking Bill is to enable us to ratify The Hague Convention. Effect can be given to some of the provisions of the Convention administratively; no legislation is needed to implement them, and so they are not reflected in the Bill. Short as it is, however, the Bill does cover two points which are not in the Convention. These are, first, what I may call"domestic hijacking ", taking place on a flight which begins and ends in the territory of the State in which the hijacked aircraft is registered; and secondly, the hijacking of a military, customs or police aircraft. For both provision is needed in our law.

I shall briefly explain the main provisions of the Bill. Clause 1 sets out the ingredients of the offence of hijacking in almost the same words as those used in The Hague Convention—namely, the unlawful seizing or exercising control of an aircraft in flight by means of force or threats."In flight"is defined in subsection (5) to include any period from the moment when the aircraft is on the ground with all its external doors closed until they are re-opened on arrival. In the case of a forced landing, the flight is deemed to continue after landing until the competent authorities take over. Subsection (4) provides that anyone who commits the offence is liable on conviction on indictment to imprisonment for life, and it does not matter what was the nationality of the hijacker, what was the country in which the aircraft was registered or where the aircraft was when the offence was committed on it.

This means that any hijacker who turns up in the United Kingdom, whether his hijacking flight ends in this country or elsewhere, can be brought to justice here, if he is not extradited under the Extradition Acts or returned under the Fugitive Offenders Act. Subsection (2), however, restricts the universality of the provision by excluding domestic hijacking and the hijacking of military, customs or police aircraft, except where the offence is committed by a person who can loosely be described as British, or where the act is committed in the United Kingdom, or where the aircraft is registered in the United Kingdom or used in the service of United Kingdom military, customs or police authorities. This accords with Article 3 of The Hague Convention.

Clause 2 gives effect to the provision of The Hague Convention which requires each contracting State to ensure that its courts have jurisdiction over offences of hijacking and over acts of violence committed against passengers or crew by the hijacker. This means that where another serious offence, such as murder, is committed in the course of the hijacking, a State will be able to deal not only with the hijacking but also with any other serious offences.

Clause 3 amends the law so as to give effect to those provisions of The Hague Convention which relate to the extradition of hijackers between contracting States. First of all, subsection (1) of Clause 3 ensures that hijacking is an extradition crime under the Extradition Act 1870 and a returnable offence under the Fugitive Offenders Act 1967. This does not mean that we are bound in all cases to extradite a hijacker to a contracting State which requests his extradition. Whether in any given case he will be handed over depends, in the case of a Commonwealth country, upon the provisions of the Fugitive Offenders Act and, in the case of a foreign country, upon the terms of the arrangement with that country under which extradition may take place.

In either case, there are traditional safeguards which prohibit the return of a fugitive in certain circumstances. For example, a request cannot be granted if the offence is of a political character. Nor would the fugitive be returned if in the opinion of our courts there was insufficient evidence to justify his committal for trial. Moreover, extradition is not normally granted where criminal proceedings in respect of the offence have already begun in this country. These are some of the matters which have to be taken into account before a decision is taken whether to accede to a request for extradition, and the Bill does not in this respect treat hijacking any differently from any other extraditable offence. When a hijacker is not extradited, our courts will, of course, have wide jurisdition to try hijackers who land here or otherwise make their way here.

So far as foreign countries are concerned, extradition may take place only where the Extradition Act has been applied to the requesting State by an Order in Council under Section 2 of that Act. As that section now stands, such an Order can be made only in respect of a State with which the United Kingdom has a bilateral extradition treaty. In other words, a hijacker could not as things stand be extradited to a country with which the United Kingdom does not have a bilateral extradition treaty. To remedy this, subsection (2) of Clause 3 amends the Extradition Act 1870 by providing that an Order in Council may be made under Section 2 of that Act as if The Hague Convention were an extradition arrangement between the United Kingdom and any State party to The Hague Convention with which no bilateral extradition arrangement is in force. This will permit the extradition of the hijacker to such a State.

I need not detain your Lordships with the remaining provisions. In conclusion, I will only add that both the previous Administration and the present Administration have played a leading part in the development of the Hijacking Convention. I am sure that noble Lords in all parts of the House are anxious that we should carry on the good work and be among the first to ratify it. The Bill will enable us to do so. I commend it to your Lordships. My Lords, I beg to move.

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

7.21 p.m.


My Lords, we are exceptionally indebted to the noble Lord, Lord Drumalbyn, for the way in which he has set out the provisions of this Bill, and for my part I congratulate Her Majesty's Government on bringing in the Bill. The noble Lord went to some extent through recent history, and many of us will have those events very fresh in our minds. I have no wish to go over them now. I shall be content to say that the sooner we get this Bill on the Statute Book, the better. What is needed now is to see throughout the world a uniform and effective law in this field. I hope that we shall do all we possibly can, using our undoubted diplomatic expertise, to get others to follow the lead which Her Majesty's Government have taken.

There is one other point that I wish to put to the noble Lord, Lord Drumalbyn. He may be able to answer it now, or possibly to refer to it at a later stage. I understand that the shipping interests are also concerned with this matter and would have liked to see a provision made covering ships which are in some danger, as they see it, on the high seas. I know that it is quite impossible to extend the Bill to cover shipping if we are to get it on the Statute Book within the time that has been set, but I wonder whether the noble Lord can give any assurance that something will be done in future concerning ships. Meanwhile, I only say that, as I have certain other engagements outside the Chamber, I hope that I may be excused if I attend to them.


My Lords, from these Benches, may I echo everything said by the noble Lord, Lord Beswick?

7.22 p.m.


My Lords, I want, in a very few words, to congratulate the Government on their promptitude in bringing forward this Bill implementing the Convention. As the noble Lord, Lord Drumalbyn, explained, this is one of a series, starting with the Tokyo Convention of 1967, and later this year coming to another Convention on unlawful interference, all of which will make a whole of international legislation dealing with this very difficult problem. Of course, as noble Lords appreciate, one cannot stop hijacking by legislation alone; one has to supplement it not only, as the noble Lord said, by detection devices, but also, as I think all Governments in this country are aware, by attacking the evil at its source; that is, by trying to increase measures of pacification in the trouble spots where hijacking takes place, such as the Middle East and Latin America. All these things go together, but it is important to have a sound legal structure, and the need for it can be seen by the complicated and detailed provisions that we now have in The Hague Convention and in this Bill.

I should like to draw attention to the provisions relating to extradition, which represent a remarkable advance in international law and the law of this country, and would have been inconceivable ten years or so ago. An Article in the Convention contains this provision: Contracting States undertake to include the offence as an extraditable offence in every extradition treaty to be concluded between them. It also states: The offence shall be deemed to be included as an extraditable offence in any extradition treaty existing between Contracting States. That is implemented, concerning this country, in Clause 3. It is a remarkable Convention, and undoubtedly it is the one single legal measure that is going to have practical effect in deterring potential hijackers and ensuring that they will be punished. I can say, since this is one of the few international Conventions in the field of air law with which I have not been concerned, that the Convention, to my mind, is extremely well drafted, thanks to the expertise of those in the Department for which the noble Lord, Lord Drumalbyn, is able to speak; and the Bill is correspondingly effective and practical. With those few words, I am very glad to approve the Bill and to thank the Government, so far as I can, for bringing it forward so quickly.

7.27 p.m.


My Lords, I rise only to ask one question. The points I desired to make have been made already by the noble and learned Lord, Lord Wilberforce, to whose very great role in this field of legislation I am sure the whole House would be glad to pay tribute. I follow what he said by this question which I put to the noble Lord, Lord Drumalbyn. He said that the Order in Council to be made under subsection (2) of Clause 3 would contain the necessary safeguards. I should be grateful if the noble Lord could expand on that a little. As the noble and learned Lord said, the provisions in regard to extradition represent a rather new departure in this field and they are of the very greatest importance.

Clause 1 of the Bill creates an offence which can be committed by a person of any nationality in any part of the world unless it falls within subsection (2). Clause 2 creates a whole series of offences which again may be committed by a person of any nationality in any part of the world provided that the act in question is done in connection with the offence of hijacking. So, my Lords, the effect of the Bill is to give a jurisdiction to the English criminal courts in relation to a series of offences, and those offences can, as I have said, be committed in any part of the world by anybody. That makes it very important to make certain what we are doing in regard to the provisions of the Extradition Act 1870, and in particular to be perfectly clear as to what the impact of the changes which are being introduced will have upon the doctrine of political offences.

I yield to nobody in my detestation of this loathesome offence of hijacking. I do not seek to excuse in the slightest degree those ruffians who engage in it, and I greatly welcome this Bill which obviously is indispensable. But the principle of political asylum in this country and the principle which relates to the doctrine that people should not be extradited if the offence for which it is sought to punish them overseas can really be regarded as a political offence, is a very sacred principle in our constitution. I know that the noble Lord, Lord Drumalbyn, will agree with me about that. I suppose one has to accept that a characteristic of these offences is that they from time to time have what could be regarded as fairly substantial political content, and therefore it is important to know what we are doing with regard to that.

Under the existing law, if I am not mistaken, a murder committed abroad, piracy committed abroad or treason committed abroad can form the subject of a prosecution in this country if the person charged can be apprehended in this country. The Bill greatly enlarges the number of offences of which that is true: that is to say, offences committed abroad which can form the subject of a prosecution in this country. The position before this Bill was introduced was, I suppose, that the offence of murder committed in, say, France could form the subject of a prosecution in this country. Yet if the French Government wished to obtain the extradition of the individual concerned, if it could be said that the offence was a political offence, extradition might be refused. In spite of this the offence would probably form the subject of a prosecution in the courts of this country. I suppose that that is now true of this wider range of offences. I am not saying that that is wrong; I just want to ascertain from the noble Lord whether I have correctly understood the position.

I suppose it may be the case in the future that extradition might be refused in the case of an individual offence within Clause 1 or Clause 2 on the ground that it constituted a political offence. But the offence would nevertheless form the subject of a prosecution in this country, and really there would be little option. If it were clearly shown that it had been committed, there would have to be proceedings. Proceedings in this country under Clause 3 can be taken only at the instance of the Attorney General, but he has not unlimited discretion in these matters. If an offence has clearly been committed, it is normally his duty to see that proceedings are taken unless there is a strong public interest in a contrary sense. I suppose, therefore, he would normally always have to institute proceedings, political offence or no political offence. Those are the questions that I should like to put, and I hinge them on the single question: what are the protective or precautionary provisions which it is the intention of the Government to embody in the Order in Council to be made under subsection (2) of Clause 3?

7.32 p.m.


My Lords, I should like to add my few words of wholehearted support to this Bill, and to congratulate the Government, and particularly my right honourable friend the Minister for Trade, for having moved with some speed to get his own Department and the Home Office to agree on the draft of this Bill. The second reason why I want to intervene is because, following the suggestion of certain interested parties, under the kind support and guidance of the Public Bills Office, I introduced a Private Member's Bill earlier in the Session termed the Aircraft Offences Bill—unlike the terminology of the present Hijacking Bill, which I believe derives its name from the stealing of liquor in the days of prohibition.

I should like to pay my tribute to the noble and learned Lord, Lord Wilberforce, for his work in the Tokyo Convention and his subsequent work in this field. The Tokyo Convention, of course, was only the first step in reaching international agreement, and it dealt, as one understands, only with the offence on board aircraft, and with the prime object of restoring those aircraft safely to their rightful owners. Even so, with a slightly limited power, it did take some six years to ratify this Convention. I therefore feel that the Government's decision in ratifying the Hague Convention is encouraging. One hopes that the ratification of this Convention, with its power of extradition, will go some way to deter the would-be hijackers. I am sure everyone agrees that there is now universal admiration for the fortitude and courage of the pilots and crews involved in the hijacking and for their admirable restraint over the past few years, particularly in regard to the Middle East hijacks, when there must have been a great temptation to force a boycott during this period. But they felt it their duty to keep the aircraft operative.

Those to whom one talks in this specialist field often point to three questions in trying to firm-up the international agreement, and I should like to put them to my noble friend this evening. The first is: why could not more firm action be taken by the United Nations? The second is that, with the ratification of the Tokyo Convention and now The Hague Convention, and possibly the third, the Sabotage Convention, could it not be that sanctions against a non-co-operative State could be referred to and considered by the Security Council? The third question is: why have the Government not, as yet, added (and perhaps I could put in: will they add?) the aerial policy clause to all bilateral air service agreements between States? I believe that this has already been done between Canada and the United States.

I would conclude, my Lords, by welcoming the Bill, and welcoming again the prompt action of Her Majesty's Government. I hope that this ratification of The Hague Convention will be yet a further step to ensure effective international agreement to combat the growing threat which so often endangers the lives of totally innocent air travellers.

7.37 p.m.


My Lords, I do not propose to take up much time on this, although I feel strongly on the question of hijacking. It deals with a situation which is one of the most serious problems that we have to face at the present time. With aircraft moving from country to country, with a vast number of passengers and crews involved, the House will readily understand the anxiety of those who know the kind of hijacking that has been taking place and are anxious to deal with it in a practical way. I do not propose to weary your Lordships with a description of what has been happening up to now. I should like to add my congratulations to the noble and learned Lord, Lord Wilberforce, for the part he has taken in this matter. This Bill is of course an important step at an important time. The timing here differs very much from the kind of timing that has happened in regard to other conventions and the acceptance of them by Statutes in this House.

What concerns me, my Lords, is this. I cannot understand why the position with regard to countries which accept and harbour the hijackers has not been more thoroughly investigated and steps taken to deal with it. I do not know whether the noble Lord can give us any information on that. The Arab States, for instance, have not joined in this Convention; nor have they participated in other Conventions. Does this mean that they are prepared to harbour hijackers in the future? We have had serious examples of it, and the House is aware of the incidents that have occurred. Is there no method by which the organisations dealing with air travel can be encouraged to refuse to travel to those countries which harbour hijackers openly and refuse to participate in international action in preventing this terrible crime which is being perpetrated and which is frightening a considerable number of people? Fortunately, most people are sufficiently brave to travel even to and from those places where hijackers are known to be. I should like to ask the Government, while congratulating them on the steps they are taking in this particular Bill, whether any immediate steps are being taken to deal with this extremely serious position in the near future?

7.41 p.m.


My Lords, I wish to raise one point with great diffidence, surrounded as I am by legal experts. Hijacking is a despicable and cowardly form of crime. It puts innocent humans in great peril. In the event of an attempted hijacking over this country, during which some member of the crew or a passenger takes steps to deal with the hijacker—probably not by means of a gun but by clubbing him on the head—and takes the hijacker's life, what is the position? I gather, as a layman, that he would undoubtedly be charged in the courts with the crime of manslaughter. No doubt the judiciary would acquit him; but it seems to me regrettable that if someone takes the life of a hijacker in saving other lives which might be at risk, he should be submitted to the ordeal of a trial by the judiciary. Would it not be possible to incorporate into this Bill so far as this country is concerned a provision whereby if a hijacker is killed, and rightly killed, for the sake of saving the lives of those in the aircraft, the man who by his action saves the aircraft and its passengers should not be subjected to trial in the courts?

7.42 p.m.


My Lords, I am most grateful to your Lordships for the reception which you have given to this Bill and I would like to say to all noble Lords who have spoken how grateful I am for what they have said. I would now like to reply, as briefly as I can, to the questions which have been raised.

The noble Lord, Lord Stow Hill, asked me about the Order in Council. The safeguards to be included in the Order under Section 2 of the 1870 Act will include all those in extradition treaties and, in addition, all the wider safeguards in the Fugitive Offenders Act 1967, with which I am sure he is extremely familiar. The most important of these are the restrictions under Section 4 of the 1967 Act on the surrender of fugitives who may be prosecuted or punished on account of their political opinions. I think it is important to underline what the noble Lord has said. We are entirely at one with him in our desire to ensure that there are no instances of extradition where political offences are concerned. As the noble Lord said, it is a fundamental principle of our extradition arrangements that the surrender of a fugitive accused of a crime must first of all be subject to certain safeguards. The first is the production of prima facie evidence such as would justify the committal of the fugitive for trial had his offence been committed within English jurisdiction; and the second is prohibition of surrender where the offence for which the fugitive is sought is one of a political character.

Let me just say, that so far as the political safeguard is concerned, it is a generally accepted international rule that extradition laws do not permit the surrender of political refugees; the only general exception there is in respect of persons who have committed crimes of genocide. The United Nations Convention on Genocide, which the United Kingdom has ratified, specified that such crimes shall not be considered as political for the purposes of extradition. The only justification for this exception is the quite unparalleled frightfulness of genocide, and there is no justification for treating hijacking any differently from murder or other crimes of violence committed on land or sea. As to the second point, the noble Lord instanced the possibility of a murder committed by a citizen of the United Kingdom or Colonies in France. As I am sure he is aware, the existing law permits the prosecution of a citizen of the United Kingdom and Colonies in this country for a murder committed abroad.

I should like to congratulate my noble friend Lord Kinnoull for his prescience, earlier in the year, in introducing a Bill which has been a kind of prelude to the present Bill. He said that our ratification was very encouraging; but first of all we must pass the Bill because it is not the custom in this country to ratify before we have the necessary legislation. I hope that will not be very long delayed. I should like to associate myself, as no doubt will all Members of your Lordships' House, with what he said about the courage and fortitude of pilots. For everyone who takes to the air there is some sense of risk, but they have additional responsibility. The way in which they have been carrying this in the light of the threats which the noble Lord, Lord Janner, so aptly described, and which my noble friend Lord Balfour of Inchyre described as"despicable and cowardly ", has indeed attracted universal admiration.

My noble friend went on to ask three questions. The first was, why cannot firmer action be taken by the United Nations? Of course, the International Civil Aviation Organisation works under the auspices of the United Nations, and it is to them in the first place that we owe these Conventions. The second question was, what about sanctions? This was a point upon which the noble Lord, Lord Janner, also touched. These have been considered in I.C.A.O. and may in due course come before the Security Council, which is perhaps the more appropriate body to deal with this sensitive problem. The matter is very much under study at the present time, but I am sure your Lordships' House will not underrate the very complicated legal and other problems involved in the application of sanctions. I would only say to the noble Lord, Lord Janner, that it is at least encouraging that three Arab States have signed, though not yet ratified, the Convention—Iraq, Jordan and Kuwait—and we hope others will do so. Israel was one of the original signatories.

My noble friend's third question was why there was no aerial piracy clause. The inclusion of provisions on this subject in bilateral air traffic agreements has been considered, but it gives rise to serious difficulties. It is probably better to deal with this matter on a multilateral basis, as is provided in the Convention.

I was asked by the noble Lord, Lord Beswick, who has had to leave us, about shipping interests. This point was considered, but there was a balance of advantage here, and we had to balance the desirability of getting this Bill through as quickly as possible with the desirability of including provisions dealing with hijacking of ships. That would have delayed the Bill. The matter is under consideration, however, and I hope that legislation on this matter will not be long delayed.


My Lords, before the noble Lord sits down, I wonder whether I could refer him again to the United Nations. I appreciate that ICAO is a specialised technical Agency of the United Nations. What I was referring to was a draft resolution by the General Assembly of the United Nations. I gathered that certain countries, in particular the Netherlands, moved a draft resolution. I wondered what support Her Majesty's Government were giving to this form of pressure within the United Nations.


My Lords, I cannot answer that question off the cuff. The purpose here is to give a firm, legal basis. The intentions expressed in resolutions are one matter, but we want to have firm, legal ground on which to work and this is what this Bill is designed to provide.

My noble friend Lord Balfour of Inchrye asked about the possibility of incorporating a provision which would exempt any legal consequences of taking action to deal with a hijacker on board a flight. I am not a lawyer, but it seems to me unlikely in the extreme that the Director of Prosecutions would take any kind of action in a case like that which I should have thought was to a large extent covered by the Tokyo Convention. If a member of the crew was acting under the orders of the commander, as I imagine would be the case, I cannot see that there would be any possibility of a prosecution with regard to the use of reasonable force. I am sure that the noble and learned Lord, Lord Wilberforce, will hasten to correct me if I am wrong about that, and he is able to give better guidance in this matter than I can.

My Lords, it only remains for me once again to express my appreciation of the expedition with which your Lordships have dealt with this very useful Bill.

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


My Lords, I beg to move that the House do now adjourn during pleasure until eight o'clock.

[The Sitting was suspended at 7.54 p.m. and resumed at 8 p.m.]