HL Deb 22 March 1982 vol 428 cc837-42

3.4 p.m.

Read a third time.

Clause 1 [Hostage-taking]:

Lord Rentonmoved Amendment No. 1:

Page 1, line 6, leave out ("without lawful excuse").

The noble Lord said: I beg to move Amendment No. 1 which stands in the names of my noble friend Lord Campbell of Alloway and myself. May I apologise on his behalf first for the fact that he cannot be here and, secondly, for the fact that this amendment is moved at such a late stage in our proceedings. But both my noble friend and I feel that before the Bill goes to another place we need an explanation from the Government as to why the words in line 6 on page 1—"without lawful excuse"—have been inserted. Those words were not included in the convention—that is to say, in the articles which the Bill follows fairly closely on the convention—and would seem to be contrary to the spirit and purpose of the convention.

Those words, when applied in our criminal law, import a special defence of lawful excuse which it would be for the defence to raise and upon whom the burden of proof would be. However, it seems rather strange to have that in juxtaposition to the statement of the offence itself. I would ask your Lordships to bear in mind that it is perfectly clear in Clause 1(1) that the offence contains three elements: First, the detention of somebody. I would mention in passing that the convention uses the expression "seizes or detains", but I agree that "detains" is good enough because you cannot detain without the person either having surrendered or having been seized. That is the first ingredient, detention. The second ingredient is that there should be a threat to kill, injure or continue to detain the hostage. The third ingredient is that that threat should be carried out in order to compel a state, international governmental organisation or person to do, or abstain from doing, any act.

There could be a wide variety of acts which the person trying to detain the hostage might have in mind. It might be a question of forcing the hand of a Government to release prisoners. It might be a question of forcing the hand of a Government to grant asylum. All kinds of things spring to mind from examples which have occurred, of which there is no need to remind your Lordships. The very thought that there could be a lawful excuse if those three things are proved seems, to put it midly, somewhat incongruous. There-for one feels that an explanation is needed as to why those words are put forward. That is the reason why this amendment is moved, and I look forward to hearing such explanation as my friend Lord Trefgarne is able to give.

Lord Bishopston

My Lords, I can see the case made by the noble Lord, Lord Renton, for this amendment regarding lawful excuse. I have studied the convention which this Bill seeks to ratify. It seems to excuse such acts of terrorism by allowing terrorists to plead lawful excuse. That, I think, is not compatible, or it seems to be not compatible, with the convention. If hostage-taking is permitted with lawful excuse, it is difficult to know what case could be made by terrorists who could plead political and other circumstances or that they were acting with the authority of another Government. The convention lays down very clearly the circumstances or acts which constitute the offence. It is hard to see the justification for the claim made by the Minister, when on Second Reading he said at col. 1121: Lawful excuse is a justification in law where the taking of hostages occurs".—[Official Report; 1/3/82.] In seeking this change, the amendment seems to raise a number of facets. First, it is important that the Bill which seeks to ratify the convention should be compatible with it. This may have been the point made by the noble Lord in moving the amendment. Article 1 of the convention allows no excuse for the detention of persons, or the taking of hostages, or the threatening of Governments. Secondly, it is important that all Governments who ratify the same convention should have similar legal procedures and enactments to deal with terrorism and to make it watertight. Thirdly, it is important to have the fullest co-operation with the states which have ratified, and compatibility of legal procedures between countries will help to facilitate the convention's proposals and the common objectives. It would be very helpful to the Committee, and beyond, if the Minister were to clarify the position in relation to the Bill and the convention itself.

Lord Trefgarne

My Lords, I am grateful to my noble friend Lord Renton for explaining this amendment and indeed for the helpful approach taken by his noble friend and mine, Lord Campbell of Alloway, in their earlier discussions on this. It is true, as the noble Lord, Lord Bishopston, has said, that this phrase does not appear in the definition of the offence in Article 1 of the convention. However, the Bill creates a new criminal offence and it was considered necessary to adapt the definition of the offence of the convention but without changing its substance, so as to be consistent with the laws of the United Kingdom and ensure no room for ambiguity. Since a threat to continue to detain a person in order to compel another person to do or abstain from doing any act is one of the elements of the offence, it was necessary to ensure that a situation which fell within those elements but which was not in any ordinary sense the taking of a hostage, was not caught by the Bill.

It is possible to conceive of cases where it would not be appropriate to apply the Bill. For example, there was an episode which was commented on in court in 1959, Regina v Smith, where a company of troops was kept on parade until a soldier involved in some fighting confessed; the court regarded this as an entirely proper way of inquiring into the incident. There is also the more usual case where a group of schoolchildren is kept in school until some petty malefactor owns up. Despite the controversy on educational discipline nowadays, I imagine that none of your Lordships considers that this type of case ought to be caught by the Bill.

It is for the courts to decide, of course, what constitutes lawful excuse, but it is not intended that the addition of this phrase should qualify the scope of the offence so that cases of hostage taking which clearly fall within the scope of the convention would, as a result, escape prosecution. In particular, the phrase would not allow an offender to argue that an act of hostage taking committed on the orders or on the instigation of a Government constituted a "lawful excuse". Nor are the motives of the offender in committing the offence—for example, to force a Government to grant asylum—of relevance in determining whether there was a lawful excuse. In short, the ends do not justify the means. It is certainly not the intention that the inclusion of these words should in any way water down the provisions of the convention. I hope that I have explained the meaning of these words to the satisfaction of my noble friend Lord Renton and the noble Lord, Lord Bishopston, and that my noble friend will feel able not to press his amendment.

Lord Drumalbyn

My Lords, may I ask my noble friend just one question? In the example that he gave it seemed to me that the words "without lawful excuse" were qualifying, detains any other person", in Clause 1(1)(a) but were not relevant in Clause 1(1)(b). If that is so, would it not be reasonable to transfer the wording "without lawful excuse" to Clause 1(1)(a)?

Lord Trefgarne

My Lords, I do not believe that my noble friend Lord Drumalbyn is right in saying that, if I may say so. The provisions of Clause 1(1)(a) and Clause 1(1)(b) are accumulative; that is to say, they both have to be satisfied in order to create the offence.

Lord Renton

My Lords, if I may have leave to reply, I should first like to thank my noble friend Lord Trefgarne for his very interesting explanation. It seems to me to be a very fine and subtle point. Having listened carefully to my noble friend, I believe it is only the presence in line 10 of the words "continue to detain" that really justifies the retention in line 6 of the words "without lawful excuse". I think so. I take that point and therefore thank my noble friend and beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 2 not moved.]

3.14 p.m.

Lord Trefgarne

My Lords, I beg to move that this Bill do now pass.

Moved, that the Bill do now pass.—(Lord Trefgarne.)

Lord Bishopston

My Lords, I raised a number of points on Second Reading which were not pursued at Committee stage and I have given the noble Lord the Minister notice of one or two points on which it would be helpful to have clarification. On Second Reading I raised several matters. One of them was in regard to extradition. Clause 3 refers to extradition procedures and I should like to ask the Minister whether he is satisfied with the procedures and situations where no extradition arrangements exist between the United Kingdom and other countries? The noble Lord the Minister was kind enough to reply to me on a number of points raised in the debate, but I note that in his letter to my noble friend he states: I would like to point out that in the Taking of Hostages Bill there is no obligation to extradite, provided we are willing to submit the case for prosecution". It would be helpful if the Minister will be kind enough to clarify that point. It seems that, where another state is not a party to the convention, the Bill cannot provide for extradition, although I appreciate that extradition could be possible through powers available under other legislation. I am concerned about other countries which are not party to the convention. The noble Lord the Minister was kind enough to detail in his Second Reading speech those other countries which have not ratified, or which have no extradition or offender fugitive arrangements with the United Kingdom. I anticipate that other conventions such as the hijacking convention, which I understand has more than 100 parties backing it, will help.

The other point I made on Second Reading concerned ratification. There is an urgent need for ratification so that the convention's objectives can become realities as soon as possible. The noble Lord the Minister told your Lordships' House that 17 ratifications and accessions have been made so far and that the convention will come into force when 22 countries have ratified or acceded. This is very slow progress in the period of two and a half years since the convention was signed, in December 1979. As I have implied, five more signatures are still required for enforcement. It would he helpful if the Minister could say something about the action taken by Her Majesty's Government and the United Nations to speed up the rate of ratification—especially by the United States, Canada, Italy and New Zealand, among others, who still have to ratify. I am sure there is particular concern that Eastern European countries are not represented at all. Does this mean that they will not be co-operating in the signing of the convention or in the ratification that must follow before the convention can be enforced? It seems vital that every country and every state signs the convention and ratifies it as soon as possible, to ensure world-wide enforcement. Those who do not do so are providing a refuge for terrorists, and such countries are not discouraging such people as terrorists and hijackers on their soil, with all the terrifying problems they bring to their own nationals and to others.

As I mentioned earlier, while it is vital that all countries should back the convention, it is important too that there is the sharing of knowledge. I believe this is covered by Article 3 of the convention, which concerns the techniques that should be operated when terrorists come to a country. Obviously, powers such as those we are discussing today are not enough alone, because what matters also is the manner in which countries deal with hijackers and with emergency situations on their soil, if bloodshed is to be avoided. It has been proved in the past that already Britain can deal with such situations with firmness and fairness, and so it will be helpful if the noble Lord the Minister will assure the House that the Government really are concerned about the delay in ratification by other countries. Until something is done by all countries there is refuge for people who should be apprehended and dealt with as soon as possible.

Lord Trefgarne

My Lords, the noble Lord, Lord Bishopston, may be interested to know that the convention requires ratification by 22 states in order to enter into force. Our ratification would be the 18th and it is likely, therefore, that the convention will enter into force without much further delay. Indeed, I would hope that the fact of our ratification will encourage other states to complete their own domestic legislation. I happen to know, for example, that the United States, Japan, Australia, Austria, Italy and the Netherlands are in the process of preparing legislation. I certainly agree with the noble Lord that it is desirable that this convention should come into force at the earliest possible date, and that as many of the nations of the world as possible should be persuaded to adhere to it. But the convention cannot come into force until 22 nations have signed and ratified the convention. We hope that that will happen before very long.

On the question of extradition, it is the case that the provisions of the Bill are permissive so far as this particular matter is concerned. Thus, it will be open to us to extradite under the terms of the Bill where we think it is appropriate to do so. I am sorry that that was not precisely clear from the letter I sent to the noble Lord, and I hope I have been able to set his mind at rest.

On Question, Bill passed, and sent to the Commons.