§ 7.4 p.m.
§ The Minister of State, Home Office (Earl Ferrers) rose to move, That the draft order laid before the House on 9th July be approved [37th Report from the Joint Committee].
§ The noble Earl said: My Lords, the order which is before your Lordships will enable the United Kingdom to ratify the extradition treaty which we concluded with India just over a year ago—in September 1992. The United Kingdom has had extradition arrangements with India for more than a century. Under a Commonwealth scheme we are able to extradite suspected or convicted offenders both between the United Kingdom and India, and to and from almost all other Commonwealth countries.
§ This new extradition treaty will prevent suspected or convicted terrorists from trying to avoid extradition by 326 arguing that their offences, if they appear on the list which is contained in the treaty, were political and therefore that they were outside the scope of extradition.
§ That "political defence" has been a traditional feature of many extradition arrangements but, in recent years, there has been a growing recognition that it is not always appropriate to retain it. This will now bring our arrangements with India into line with those with almost all Western European states and with the United States of America.
§ The offences which are listed in the treaty are serious offences and they are those which are most likely to be terrorist related. They include crimes such as the hijacking of aircraft, hostage taking, causing explosions, murder and manslaughter. The treaty does not affect any other safeguard for the fugitive. It applies to suspected or convicted offenders regardless of their nationality. It is not directed at any particular group of people but at individuals who conspire, attempt or undertake terrorist crimes.
§ It may be helpful to your Lordships if I explain briefly the procedures and the principles which govern—and which will continue to govern—decisions about extradition to India. Every request is considered on its merits and in strict accordance with the provisions of the Extradition Act 1989. Offences under military law will continue to be outside the scope of extradition unless they are also offences under the general criminal law of both countries. Following the return of a suspected or convicted offender, the Indian authorities will continue to be unable to add on any new charges for offences which were not disclosed by the same set of facts as the extradition offence, unless the Secretary of State has given his consent.
§ All requests to this country will be scrutinised, twice by Ministers and at least once by the courts. The Secretary of State has ultimate discretion over a decision to extradite a fugitive. He will continue to be obliged by the Extradition Act 1989 to refuse to extradite anyone whose return appears to have been sought for the purpose of prosecution or punishment on account of race, religion, nationality or political opinions, or whose treatment on their return might be prejudiced by any of those reasons.
§ The Secretary of State must also refuse to return a fugitive if it would be unjust or oppressive to return the person because the offence is trivial; if the offence was committed a long time ago; where there is reason to believe that the accusation has not been made in good faith in the interests of justice; or if, for any other reason, it would be unjust or oppressive to return that person. No one will be surrendered unless the Indian authorities have satisfied both the courts and the Secretary of State that there is a proper crime to be dealt with. The innocent, and genuine political refugees, have nothing to fear.
§ I know that there is concern about returning terrorists—or anyone else—to India because of anxiety about the human rights situation in that country. The Indian Government are, though, in no doubt about the importance which we attach to human rights. We have been encouraged by the establishment of an independent human rights commission by presidential ordinance on 327 29th September, although it will need retrospective approval by the Indian Parliament. The Indian Government also announced recently that certain international human rights organisations will be permitted to visit India. They are in discussion with Amnesty International and with the International Committee of the Red Cross regarding their visits to India.
§ The second new feature of the treaty, and this order, is the extension of United Kingdom jurisdiction over certain of the more serious offences, which are listed in Schedule 1 to the 1978 Suppression of Terrorism Act, when they have been committed, or have been attempted, in India so that they can now be prosecuted in this country.
§ This would be an alternative to extradition. It would, for example, enable the prosecution in the United Kingdom of someone who is alleged to have caused an explosion in India with intent to endanger life if, for some reason, extradition were not possible and if all the requirements of evidence of our system could be met. This new jurisdiction will also enable us, in due course, to ensure that our courts are able to enforce the orders of the Indian courts which confiscate terrorists' funds.
§ It will also become an offence in the United Kingdom to conspire or to incite in this country to commit such serious crimes of violence in India. Just as it is unacceptable that those who commit serious crimes of this nature in India should be allowed to avoid being tried in that country, so we should not allow those who are in this country to organise from here the commission of those crimes in India. We must ensure that they face justice here. Any such charge would, of course, have to be substantiated by sufficient evidence for our courts.
§ This treaty, in many respects, represents nothing more than an endorsement of the current state of affairs. It shows, though, that we will, together with the Indian Government, take the steps which are necessary to fight terrorism.
§ The Indian Government have recently completed their own procedures for making the necessary legislative arrangements to enable ratification of the treaty. This order will come into force on the day on which we exchange instruments of ratification. I commend the order to your Lordships. I beg to move.
§ Moved, That the draft order laid before the House on 9th July be approved [37th Report from the Joint Committee].—(Earl Ferrers.)
§ Lord Rea
My Lords, as we have come to expect, the noble Earl has given us a crisp and clear account of the order before the House and the Government's reasons for making it. While none of us could disagree with the need to discourage and punish terrorists and to counter terrorism and its effects wherever we can and would back measures to prevent it, there are reasons why some of us fear that this order may lead not to less but perhaps to more human suffering.
I feel somewhat diffident in the pole position, as it were, in the debate after the noble Earl's introduction. I rather hoped to come further down the batting order, particularly since we have such very distinguished speakers with deep personal knowledge of India and of 328 the law. Here I include the noble and learned Lord, Lord Howe, with his vast experience in the Foreign Office coupled with his legal expertise.
This order was debated in the House of Commons on 21st July for one-and-a-half-hours. During that time there were nine speeches and 17 interjections. Apart from the two government Ministers, all but one of the speeches and all but one of the interjections opposed the order. Opposition came from all sides of the House. Conservative speakers were against the order eight to four, and those from other parties all opposed it. Nevertheless, as so often happens in both Houses, the order was approved. Those against the order won the argument but lost the vote. There are government supporters in the woodwork in both Houses.
I do not deny that there are violent and destructive acts going on in India today, particularly in Jammu and Kashmir and in the Punjab. Here I should perhaps qualify my inclusion of Kashmir as being in India or a part of India. India is there de facto rather than de jure. Many Kashmiris would reject Indian jurisdiction. Historically, the Indian army was called into Kashmir by the Maharaja in 1947 to help restore order and repel incursions and its future was to be subject to a United Nations supervised plebiscite as proposed by a United Nations commission for India and Pakistan in 1948 and agreed by both India and Pakistan. That plebiscite has never been held. The Simla agreement in 1972 between India and Pakistan in no way supersedes the United Nations agreement which proposed that the future of Kashmir should be settled by plebiscite.
Of course there is no time here to give full details of the current human rights violations in Kashmir and Jammu. Suffice it to say that there is now virtually a state of civil war in that country with up to 500,000 Indian troops involved, sometimes over-reacting brutally if they are attacked. There are plenty of eye witness accounts of extra-judicial killings, rape and torture. As has been said before—the noble Earl, Lord Ferrers, referred to it—Amnesty International has not yet been allowed to make an impartial report on the human rights situation in India, particularly in Kashmir and Jammu. Of course excesses have occurred on both sides but the balance tips heavily, the evidence suggests, against the Indian army, which is effectively an army of occupation. Many independence activists have fled the country. It is they more than any others who fear the operation of this order.
The exemption from the political character of an offence plea, which the order contains, includes not only murder and other normal terrorist offences but also rather vaguer offences such as conspiracy to commit an offence—a charge which might allow anyone active in an independence movement to be arrested. While I have the highest regard for the Indian democratic constitution and its judicial system, which is much the best in Asia, my fear and that of many exiled Kashmiris and others is that they might be held for an indefinite period without trial, as many are now in Kashmir, and that because of the tensions and bitterness in many parts of India they might be found guilty on perhaps fabricated evidence. After all, that has happened here.
329 My hope is that the Government will withdraw the order until they are satisfied that the human rights situation in India has been rectified and the civil conflict in Kashmir is over, preferably after the plebiscite which that country was promised in 1948.
§ Lord Meston
My Lords, I too wish to thank the noble Earl for his explanation of the order. I wish to speak only briefly in the absence of noble friends far more knowledgeable than I about the current problems in India and terrorism in that country.
First, I would wish to question the necessity for the order. As with any measure it is sensible to ask how would matters proceed without it. Having read and reread the debates in another place as well as briefing material and the statutory provisions now in place, it is by no means clear to me what the order will add to the existing arrangements under which there has been a minimal number of extraditions to India in the past 25 years or so.
Secondly, I wish to question how the Government propose to ensure that those extradited are treated properly on their return. The basic principles of the 1978 Act and the treaty underlying it should ensure, as the noble Earl explained, that we respond only to a bona fide request to extradite. There are rigorous safeguards in this country and the merits of individual cases can be tested in the courts, but safeguards in this country cannot dictate that safeguards are in place in the country to which the person is to be dispatched.
The reality is that people are at risk of extradition into the unknown and, at worst, into the long-running turmoil of Kashmir, to which reference has been made. Frankly, there is little or no comfort to be derived from the fact that the Indian legal system—and particularly that in Kashmir—is based on our own. If only some of the reports from Kashmir are true, there is a wide gap between the theory and practice of human and constitutional rights. Therefore, I ask whether the Government propose to monitor the treatment of individuals who are extradited.
The fact is that from this distance most of us have no real means of knowing whether the reports of repression, torture and detention without trial are true or exaggerated, and it is precisely because we do not know that the Government should be cautious. It is not only a question of monitoring individual cases. It is also necessary to have hard evidence of the human rights situation in general. It is, frankly, little use for the Indian Government to suggest that Amnesty International and other organisations exaggerate or are misinformed if those organisations (and others, such as the Red Cross) do not have access to areas such as Kashmir.
I know that the Government have recognised that problem because, in the debate in another place on 21st July, the Minister said in his concluding remarks:I hope, and I shall certainly press, that it will not be too long before Amnesty International and other human rights organisations may be able to visit Kashmir and all parts of India to carry out investigations that they may legitimately seek to follow".—[Official Report, Commons, 21/7/93; col. 469.]
330 I ask the noble Earl how that has progressed and, if it has not progressed, whether the Government will continue to press for it as was suggested in that debate in July.
The whole question of approving an order such as this turns on the message that is sent out. Of course, we send out the message that we deplore terrorism and no one, least of all the Indian Government, should think otherwise, but we must be careful not to send out a message that we condone any abuse of human rights. It is because of the relative ignorance of what is going on in certain parts of India that I would suggest that the balance comes down against approval of this order. However, it is probably idle to think that we can this evening prevent the order being approved. Therefore, I hope that the Government will make it clear that they reserve the right to revoke the order if they are not satisfied about the treatment of individuals or about human rights in general.
§ 7.24 p.m.
§ Lord Templeman
My Lords, my qualification for participating in this debate is that I have considerable experience of India in general and the administration of justice in particular. As an officer in the Indian army between 1941 and 1946, I travelled extensively throughout India and what is now Pakistan and learned much about the difficulties of maintaining law and order in the face of organised provocation and intimidation and the wildest rumours spread by terrorists about the conduct of the police and the army.
During the past 10 years, I have travelled widely in India and have been welcomed by its statesmen and politicians and by its judges from the Chief Justice downwards. I have discussed with them the main problems of law in modern society—both in India and in the United Kingdom.
Human rights have always been upheld by judicial decisions in India. The judges are fiercely independent. The Chief Justice and the other justices in the Supreme Court have protected human rights with a series of outstanding judgments which have secured worldwide recognition and respect. I repudiate the suggestion of the noble Lord, Lord Meston, that the safeguards built into the order that we are now discussing will not be honoured and obeyed by the Indian judicial system just as their safeguards will be obeyed by us when terrorists are returned to this country.
All over the world democratic societies are threatened by violence which is practiced and exploited by secessionists, terrorists, fundamentalists and criminals, particularly drug traffickers. India has paid sorely for upholding democracy and the rule of law. Mahatma Gandhi was cut down by a Hindu extremist. Indira Gandhi was shot down by her own bodyguard, inflamed by Sikh extremists. Rajiv Gandhi was shot by a fanatic from Tamil Nadu. During the past 10 years in the Punjab, 12,000 civilians and 1,700 police have been murdered by terrorists. In Kashmir over the past four years, 5,500 people have been killed by terrorists. There have been 1,500 cases of arson and 2,500 bomb attacks. It is those figures which should be remembered when 331 noble Lords plead the cause of Kashmir. In Kashmir, human rights are threatened but they are threatened by terrorists, not by the Indian army or the Indian police.
The excuse of this order has been used to raise again the political questions concerning Kashmir. Kashmir is a difficult political problem. It has been a source of dispute between Pakistan and India for many years. The difficulties have largely been caused because of the fundamentalist regime in Pakistan. Now that that regime has changed, I hope that relations between the two countries will enable the Kashmir problem to be solved. It does not help in discussing this order to harp upon the alleged misdeeds of the army and the police in the face of the known facts about the civil war which is being waged by terrorists in Kashmir itself.
In the face of that onslaught the Indian authorities have succeeded in maintaining democracy and the rule of law. There are persons awaiting trial and there are detainees. They are all subject to the safeguards which are embodied in Article 22 of the constitution of the Republic of India. Under that article, a detainee must be informed of the grounds for his detention. The detention must not exceed three months without a report from an advisory board consisting of three High Court judges or persons qualified to be High Court judges. Fundamental rights are guaranteed and entrenched in the constitution. The writ of hàbeas corpus cannot be suspended. There is complete freedom of the press throughout India. Indian democracy, almost alone among the large and poor nations, is durable and mature despite all the economic and social difficulties which have been encountered.
The attack on fundamental rights and freedoms comes not from the government or the police or security forces of India, but from terrorists, fundamentalists, secessionists and criminals who attack democracy and seek to achieve their aims by murder, intimidation and by propaganda attacks on the conduct of the armed forces and the police.
The determined actions of the Government of India against terrorism in the Punjab have met with success. Elections have been held to the State Legislative Assembly and, despite the efforts of terrorists to murder people who were willing to go to the polls, there was a turnout of about 70 per cent. Even in Kashmir, the government have been successful in initiating and sustaining a dialogue with a number of groups in the state and hope that, in the not too distant future, elections can safely be held.
Over the past two years, India has launched an ambitious programme of economic liberalisation which not only brings India into the global and economic mainstream, but provides opportunities for more intensive economic collaboration between India and the developed countries of the West, particularly the United Kingdom.
As a developing country with urgent problems and socio-economic disparities within the country to address, India is keen to wipe out the scourge of terrorism as early as possible so that it can divert its scarce resources to the more important problems of 332 development. Britain's old and close relationship with India enables us to assist in that process by passing this order.
The extradition treaty and the accompanying agreement which led to the order, which have been placed before the House, provide a joint Indo-British strategy to deal with terrorism and with those who smuggle narcotics who are a menace to both countries. The achievement of that strategy owes much to the efforts of Mr. Hurd in the other place and of the High Commissioner for India, Dr. L.M. Singhvi. Both he and the present President of India, who was over here last year, have impeccable records in upholding the rule of law and human rights. They have both worked for those objects and written about them. They have both obtained international recognition. It is fitting that this order should be passed while they are both in office. I hope that it will be passed without any dissent.
§ 7.30 p.m.
§ Lord Howe of Aberavon
My Lords, perhaps I may join in thanking my noble friend for his lucid and compact exposition of the substance of our debate tonight, and apologise for the fact that I may have to leave before the debate is concluded because of a long-standing prior engagement.
Perhaps I may thank the noble Lord, Lord Rea, for his unjustified tribute to my own double-barrelled wisdom in this matter, because it pales into insignificance compared with the experience of which the noble and learned Lord, Lord Templeman, has just spoken. I join him in extending a warm welcome to the treaty. I look forward to its early ratification. I believe that it tackles sensibly and successfully a topic to which I devoted a good deal of time during most of my years at the Foreign Office in close partnership with my opposite numbers from India.
The treaty, when ratified, will carry two clear messages. First, it will be a clear demonstration of the importance which both the Indian and British Governments attach to the fight against international terrorism: alas, both countries have far too many reasons for that! Secondly, it will underline the message to terrorists that there is no safe haven for them in either of our two countries. I know that for some time it was argued, as did the noble Lord, Lord Meston, this evening, that there might strictly be no need for such a treaty, at least in terms of national law. I have to confess that for some time that argument commended itself to me. But having looked at it as the argument has developed, one must conclude that there are solid, sensible reasons for the treaty. I was struck by an ambiguity in what the noble Lord was saying when he said that the treaty adds nothing to the present state of affairs, but then went on to ask the question: "But how can Her Majesty's Government be assured as to the safety of those who are extradited?" That question arises ex hypothesi if his first point is answered as he wishes. I believe that his argument falters a little—but that is a rather disrespectful comment to make en passant.
The good reasons for the treaty are that it is desirable to make the position clear beyond doubt in international 333 law. Secondly, it is valuable to have it made so clear that suspect terrorists cannot seek to avoid extradition merely by arguing that their offences are political. It makes it quite clear that there is nothing defensibly "political" about the key list of serious offences that are characteristic of terrorists which my noble friend rehearsed. Thirdly, there is the broader message that both our countries stand shoulder to shoulder in our determination not to be overcome by men or women who seek to use violence as a political weapon.
I am glad also to welcome the parallel agreement on the confiscation of criminal funds and assets, including those relating to terrorist organisations and crimes.
Let me say a word about the important question of human rights. It is an inevitable and legitimate question for societies such as our own that are struggling with the uneven balance between, on the one hand, the forces and agencies of government charged with the uncomfortable duty of upholding the rule of law—all of whose decisions are open to challenge, open to appeal, open to debate—and, on the other hand, terrorists who are subject to no such constraints: they act as self-appointed prosecutors, self-appointed judges, self-appointed jury and self-appointed executioners. There is no court of appeal from their verdict, no reprieve from their sentences, and nowhere has that grisly truth been more brutally underlined than in India, as the noble and learned Lord, Lord Templeman, pointed out.
Even so—or perhaps all the more so—of course it is right for us to be continually concerned about human rights in both our countries. We in this country, quite apart from our own legal system, are subject to the healthy surveillance of the European Commission and the European Court of Human Rights. I say "healthy", but I go on to say that it is sometimes tiresome, because legal surveillance can be, and is inescapably sometimes, tiresome for administrators. I join with those who welcome the Indian Government's actions to establish an independent human rights commission. I agree with the noble Lords, Lord Rea and Lord Meston, that we shall want to study its working with close and anxious attention, interest and sympathy.
I endorse the tribute paid by the noble and learned Lord, Lord Templeman, to the integrity and vigilance of the Indian judicial system. I remember—if I may be anecdotal for a second—on a visit to India some years ago becoming engaged in a discussion with a distinguished Indian lawyer/politician who was about to assume responsibility for the administration of direct rule in a part of India. I do not want to be more personal than that. He was a lawyer and politician of great distinction. The topic upon which he immediately embarked upon discussion with me was Lord Atkin's dissenting judgment in Liversedge v. Anderson.
I thought what a miracle it is that we have here a marriage and an interchange of legal systems so that this man who is about to embark upon the exercise of authoritarian powers is drawn instinctively to begin discussing one of the world's leading cases about the rights and obligations of the judiciary to oversee the 334 executive. That for me is a spontaneous insight into what the noble and learned Lord, Lord Templeman, was speaking about.
In establishing the right balance here, we should pay great attention to the words of General Richard Clutterbuck in his book Future of Political Violence—a rather unalluring title when one comes to think about it. He said;The ultimate civil right, however, is the right to live. A violent minority, whatever its politics, has no right to kill, and no claim to such a right must ever be allowed to override the right of the majority to live in peace. One of the arts of governing a liberal society is to ensure that the public understands and approves of the measures which are necessary to preserve this principle. A basis for that approval is to establish clearly that the government stands for stability, and the rule of law, while the terrorists stand for disruption and the rule of fear".Perhaps I may add just one more general word prompted by my impressions on a brief visit to Bombay and Delhi earlier this year when I had the pleasure of seeing again two old friends. The first was the present governor of Maharashtra, Dr. Alexander, the previous high commissioner, and the second my former opposite number, once Foreign Minister and now Prime Minister, Narasimha Rao, both of them bearing with courage and calm authority the responsibility of their present high offices. I should like to take the opportunity of extending to both of them on behalf, I hope, of the whole House, and to the people of India, our profound sympathy for the consequences of the recent hideous earthquake around Latur.
From that visit I gained two impressions. The first echoed a point made by the noble and learned Lord, Lord Templeman, of the real determination, spread very widely throughout society, to press ahead with the important liberalisation of the Indian economy. That is nothing but good not just for the people of India but for the economy of the wider world. I was glad to hear from all sides the word "irreversible" being applied to those changes. I was also glad to see those changes being strongly supported by India's Prime Minister as well as by our own Prime Minister in the Indian-British partnership initiative. It has their joint blessing.
Finally and more widely, I was delighted to find that relations between our two countries, where there are already so many family and personal links, are probably better, healthier and stronger today than at any time in the near half century since independence. I rejoice in that and I am confident that the treaty will consolidate that most desirable relationship.
§ 7.40 p.m.
§ Lord Desai
My Lords, distinguished speakers, including the noble and learned Lords, Lord Templeman and Lord Howe, have spoken on this issue. I rise to speak not as a lawyer and nor shall I speak on the economic reform on which I could speak. I wish to speak merely on the order before us.
It is important to say, first, that like this country India obeys the rule of law. No society is perfect. In every society one can find several shortcomings in respect of the guarantee of human rights and so forth. However, I still say that on balance if I were to be tried in any country in the world I would rather be tried in this country or in India. The law's delays are well known, 335 but one can he pretty sure that if a person is brought before a court of law it will act independently and free of any political pressure.
I am aware that a number of criticisms have been made. Normally I am more critical than laudatory of societies. I welcome the appointment of the independent Human Rights Commission and the invitation to Amnesty International and the Red Cross to go to India. I agree with the noble Lord, Lord Meston, and my noble friend Lord Rea that we should keep an eye on these issues. But it is not difficult to keep an eye on what is happening in India. One can read magazines and newspapers if one wants to find out what is happening in India. It is not a great secret. One can read Indian magazines and newspapers, which are critical of India, and our newspapers. Therefore, one is not talking about a society which is dark and unbeknown to us believing that something might happen without our finding out. I bet almost anything that in India the press is even more unruly than it is here. It is hardly likely to be muzzled.
I was heartened by some of the safeguards which the noble Earl mentioned in his opening remarks as regards extradition cases and I am pleased about that. I say to my noble friend Lord Rea that I do not want to become involved in the question of Kashmir because one could be here all night. It is a kind of Schleswig-Holstein question of the 20th century on which one could speak for a long time. However, it is not simple analogy in the Indian context to talk about the national liberation movement in individual Indian provinces. The sub-continent has been divided twice with tragic consequences; once between India and Pakistan and then between Pakistan and Bangladesh. There is a strong belief among people in India and in Pakistan that what they have now as an entity and as a nation they would rather fight hard to preserve than to see disappear or dissolve.
One has only to think about Yugoslavia to know that not all nationalisms are equally good or just. Some nationalisms are quite evil. While I do not wish to comment on particular nationalisms I say only that the example of Punjab is interesting because by resilience against what is clearly a fundamentalist terrorist movement the Indian Government have been able to turn the tide around and restart the democratic process in Punjab. I make the same comment about Kashmir. There have been many elections in Kashmir and I have no doubt that elections there will resume as soon as the situation is back under control. While no society is perfect. I am on balance more for this treaty than against it.
§ 7.45 p.m.
§ Lord Slynn of Hadley
My Lords, some years ago a Justice of the Supreme Court of India gave me a copy of a book which he had written. He wrote my name in it and added the words, "whose country has given India its most precious possession; the rule of law". After the intervening years, arid after much contact with Indian judges and barristers here and in India and at international conferences, I know that the judiciary and the Bar of India are dedicated in a remarkable way to the maintenance of the rule of law and to the protection of 336 human rights. I have no doubt that in the present context the Bar and the Bench will be resolute in the conditions prevailing in India to ensure that the fundamental rights guaranteed by the Indian constitution, to which my noble and learned friend Lord Templeman has referred, will be respected. Equally, I have no doubt that they will ensure that the provisions of the extradition treaty are complied with and that in due course the Protection of Human Rights Ordinance of 1993 will be given full effect.
When considering whether the order should be adopted, it is important to remember that the high standards maintained by the Supreme Court of India and other judges are well known throughout the world. The judgments are frequently cited and referred to in our own courts. Only in July of this year the Judicial Committee of the Privy Council in a vitally important appeal was referred to a number of judgments of the Indian courts which were of great assistance and, if I may be allowed to say so, of the very highest judicial and jurisprudential quality.
The courts of India have contributed greatly to the development of the jurisprudence of the common law and not least in the sphere of human rights. But extradition for the trial of an extraditable offence is a two-way process with safeguards on both sides. The House can and no doubt will be no less confident that the British courts will ensure that the strict terms of the treaty are complied with on an application for extradition and that the grounds for the refusal of extradition will be scrupulously examined. The Appellate Committee of your Lordships' House recently made it plain that improper methods adopted outside the United Kingdom for bringing a person before our own courts other than by extradition procedures will not be tolerated. They will be no less astute to ensure that persons are not improperly extradited.
The noble Lords, Lord Meston and Lord Rea, referred us to the situation on the ground. Nobody underestimates the problems. But we are not dealing with action on the ground in a state of armed or violent conflict. We are concerned to consider arrangements for a serious trial by a responsible judiciary for an extraditable offence.
I accept that it may be necessary to keep under review the operation of this treaty. But that is true of all extradition arrangements in both directions. It seems to me that the protection of human rights, which is so important, is not undermined by support for the order moved by the noble Earl.
In the light of the appalling acts of terrorism perpetrated in India and of the importance for all governments of the fight against international terrorism, I believe that the Government are fully justified in applying the 1978 Act to India.
§ Baroness Flather
My Lords, I too would like to say a few words in support of this extremely important draft order. I believe that it is another manifestation of the fact that the relationship between India and the United Kingdom has never been better. That was admirably demonstrated by the fact that the Prime Minister was a guest at the Republic Day celebrations this year.
337 I was disappointed to hear the noble Lord, Lord Rea, give such credence to India's record on human rights as put forward by Kashmiri sympathisers and dissidents. He did not say whether he had looked at the other side of the coin. I feel that it is important to inform oneself about the actions of the terrorists as well to inform oneself about the actions of the Indian Government. I hope that noble Lords will follow their own independent judgments rather than the views expressed in the debate in another place.
In the UK we are no strangers to terrorism. Every terrorist claims persecution for political conviction and every terrorist alleges atrocities and human rights abuses by the police forces concerned. We are seeing a re-run of all that in the IRA extradition case in the US courts at this very moment.
India is the only developing country which has, over the past four decades, established and consistently maintained a democratic structure on the Westminster model and a legal and constitutional tradition inherited directly from this country which upholds the rule of law and personal freedoms. It is worth remembering those basic facts.
In response to the allegations of violation of human rights, the Indian Government have announced that they will permit delegations from foreign human rights organisations, including Amnesty, to visit India. A delegation from the International Commission of Jurists, led by a British QC, recently visited Kashmir. Also, the Indian Government have established an independent national human rights commission incorporating suggestions from both home and abroad. I believe that we should welcome all those efforts to strengthen the legal safeguards.
As we have heard, the extradition treaty has every legal safeguard already built into it to ensure that individuals whose extradition is sought receive a fair hearing in a court of law in this country before they are extradited. There would be further opportunity for a proper trial in a court of law in India. Eminent and noble and learned Lords have said that they intend to keep the treaty under review.
The United Kingdom-India extradition treaty is a most important demonstration of the political will to co-operate between India and the UK. I hope that it will receive your Lordships' fullest support.
§ Lord Plant of Highfield
My Lords, I approach consideration of the order with four general principles in mind. The first is complete rejection of terrorism in pursuit of political ends and a recognition that terrorism must be discouraged by practical, international co-operation. Secondly, I recognise the vital role which extradition agreements can play in deterring international terrorism. As the noble and learned Lord, Lord Howe of Aberavon, said, if the terrorist knows that the number of havens safe from the reach of the judicial process is diminishing he may be deterred from such activities.
The third principle is no less important. Many of those who may be extradited under a treaty, whether it is the one to be brought into force under this order or any other, may only be suspected of terrorist activities. 338 Therefore, it is vitally important that, before concluding an extradition arrangement with another state or, as in the present case, extending the provisions of an Act to another country, the Government should be convinced that there are reasonable grounds for believing that in general the suspect, on being extradited, will receive a fair trial according to the due process of law and will not be subject to an abuse of human rights or racial or religious discrimination in that judicial process.
Finally, I believe that the case for the extension of the provisions of the 1978 Act to India should be made out so that it is clear why those provisions are needed and why the current arrangements which apply to India and other Commonwealth countries are thought no longer to be satisfactory.
My worries about the order arise in respect of those last two considerations: due process of law and the protection of the rights of extradited subjects on the one hand; and the extent to which there has been a clearly demonstrated need for the extension of the provisions of the Act on the other.
I take that last point first. In the debate on the order in another place on 21st July, two general arguments were advanced by the Government to justify the extension of the Act to India. First, they said that ratification of the treaty signed in 1992 embodying the general principles of the 1978 Act was necessary because it would tighten the definition of a political offence. The 1978 Act and the 1992 treaty exclude specifically hijacking, hostage taking, murder, manslaughter and serious physical assault from the category of political offences. I am certain, and I am sure my noble friends concur, that in that respect the Government are on very strong ground. I am sure that my noble friends agree also that the actions of the kind mentioned, which are excluded from the category of political offences by the Act, should indeed be excluded. Therefore, there is a strong case on that ground for extending the Act to India.
However, the point was made in another place that the extension of the provisions to India seems unnecessary in practice given that the Home Office Minister in the debate in another place conceded that there had been no complaints from the Government of India about the operation of the existing arrangements which would be changed by the order. Secondly, since 1978, as the noble Lord, Lord Meston, pointed out, very few applications for extradition have been received from the Indian Government.
Therefore, critics of the order will argue that whatever its theoretical advantages in excluding certain kinds of abhorrent action from the category of political offences, there is no clearly demonstrated practical need for the order. I am unconvinced by that criticism. Since 1978 the terrorist situation in India has deteriorated and also the links between terrorism and drug trafficking have become more obvious generally in the international community. Also, of course, there is the emergence of a concerted international action to tackle problems of terrorism. Therefore, I believe there is a good case for saying that the order is needed. I am sympathetic to the idea of extending the provisions of the 1978 Act to India.
339 My main misgivings about the extension of the provisions of the 1978 Act rest entirely upon the third of my general principles; namely, that since extradited persons are likely in many cases to be only suspects, the Government should be assured of the physical security and protection of the rights of those individuals and the right to a fair trial. That principle should apply not only to India but to any other state to which we extend the provisions of the 1978 Act.
I am sure that many noble Lords who have long admired the achievements and durability of the secular democracy in India, as I have, will have been troubled by some of the events to which noble Lords have drawn attention. They were the subject of some impassioned, if not rather hysterical, debate in another place.
I shall not rehearse the points made in tonight's debate. Claims have been made about specific incidents. As the noble Lord, Lord Meston, pointed out, it is very difficult from such a distance to come to a judgment about the evidence. Indeed, there is a conflict of evidence. It would be most difficult, given our resources, to take the advice of the noble Baroness, Lady Flather, and undertake our own investigation.
It is the situation in Jammu and Kashmir which gives the most cause for concern, as several noble Lords mentioned. The special laws in force in those areas limit, it is argued by critics of the Indian Government, the legal safeguards of suspects and those charged with offences and give the security forces too much leeway and discretion in pursuing their duties. Indeed, the Prime Minister of India himself seemed to concede at least part of that case when he said, addressing the Indian police on 17th February, as cited in a speech in another place, that,excesses are not to be committed, especially in custody".It is greatly to the credit of Mr. Rao and the quality of Indian democracy that he should be so forthright. The fact remains that the special legislation is there, and such excesses and potential violations of rights may be thought—at least, by some people—to be happening. As I said, it is difficult to make judgments from this distance.
The establishment of an autonomous and statutory human rights commission is a welcome development. But doubts remain. In the debate in another place the Minister made the point that the Government of India have decided to allow certain human rights groups to visit India to see for themselves how the safeguards operate in various areas of the country. I wonder whether the noble Earl can say whether such visits have now been arranged; secondly, whether they will cover the areas of Jammu, Kashmir and the Punjab; and, thirdly, when such visits might take place. If such visits are imminent and the independence of the investigations has been guaranteed, that would, I believe, go a long way towards alleviating the misgivings which have been expressed in both Houses of Parliament and which must be taken seriously as the order embodies a very serious step on behalf of the Government.
Overall, I feel inclined to support the order, but I need a considerable degree of reassurance. I say that because I feel troubled by the claims that have been made. I am in no real position to adjudicate upon them. I wish to 340 raise a final point. It concerns the relationship between the order and financial support in this country within communities from the sub-continent to finance activities which the Government of India regard as subversive. Obviously, the idea of raising money in this country to finance terrorism in India is wholly unacceptable and should fall within the Act. I find the activities of Noraid in the USA equally deplorable. Nevertheless, there is a line to be drawn between raising money to support terrorism and raising money to support political ideas and aspirations that the Indian Government may find subversive. In a free society, we should rightly proscribe the former but allow the latter.
Is the Minister confident that the order and its effects are compatible with that difference between financing terrorism and financing political activity—a difference which is quite difficult to define but one which, in my view, is fundamental? Subject to the expression of those worries and those qualifications, I am prepared to support the order laid before the House.
My Lords, I am grateful to your Lordships for the views which have been expressed this evening. I believe it is right to say that there is, in general, agreement on the fact that the order is necessary. Indeed, some noble Lords expressed concerns and anxieties in that respect. I believe that the noble Lord, Lord Rea, expressed the greatest disquiet. I shall try to put his mind relatively at rest. All the order does is to prevent suspected or convicted terrorists from trying to avoid extradition by saying that the offences were political. The noble Lord, Lord Rea, pointed out that, after all, conspiracy to commit an offence is caught. Well, yes, it is. Furthermore, if I may say so, so it should be.
We are talking about terrorism and the disasters which it can bring. If a person is suspected of causing terrorism, then it is right that he should not be able to shelter behind that provision (which some people have been able to do until now) and say, "Don't send me home, because what I have done is political".
The noble Lord, Lord Plant, was also worried about that aspect. He said that if suspects were sent back, the Home Secretary must be satisfied that they would receive a fair trial. Of course, my right honourable friend must satisfy himself in that regard; indeed, he would satisfy himself over any extradition that a person would not be sent back unless he was to receive a fair trial. That is also the case with anyone who is suspected of terrorism. However, the real point is that a person should not be able to shelter behind such a provision and say, "It was an act of terrorism; you must not send me back because it had political connotations".
I thought that the speech of the noble and learned Lord, Lord Templeman, really justified the order in its entirety. He referred to his own experiences and vast knowledge of India. He explained and reminded us of how many Indians and officials have been killed by terrorists. Despite that, and the awful "onslaught" as he put it, the Indian Government have maintained law and order. I believe that that is a considerable achievement on their part. I should like to add my commendation to that of the noble and learned Lord for the way in which 341 they conducted themselves in very difficult times and against very difficult odds. That is the reason why I feel—and here I agree with the noble and learned Lord—that we ought to support the order.
Similarly, the noble and learned Lord, Lord Slynn of Hadley, was so right to refer to the fact that India as a whole has always held the highest standards of justice and jurisprudence. That has been upheld by the judges and by the courts—again, under very difficult circumstances. It is right that my right honourable friend the Home Secretary should be satisfied that, if he is to send anyone back to India, the same high standards of justice and jurisprudence should obtain.
Several noble Lords referred to civil rights. They are, of course, of enormous importance. If I may say so, I thought that the quotation used by my noble friend Lord Howe from General Clutterbuck—when he said that the ultimate civil right was the right to live—was very apt. We do get worked up, and rightly so, about civil rights. It is correct that, throughout the world, we should do our best to ensure the right to live. One of the greatest deterrents to that is the effect of terrorism.
The noble Lord, Lord Plant, asked what was wrong with the present system and why the order was necessary. It is not a question of there being anything wrong with the present system, other than the fact that it is important to bring arrangements up to the proper modern anti-terrorist standards that are applied to much of Western Europe and to the USA. It is right that they should also be applied to India.
The noble Lord, Lord Rea, was concerned about the inclusion of conspiracy offences. As I explained to him, my right honourable friend will satisfy himself as regards the right to a fair trial for anyone who is extradited. The noble Lords, Lord Meston and Lord Plant, asked how the Government can ensure proper treatment of those returned to India.
The treaty and the order in no way change the obligation on the Secretary of State to refuse extradition if it appears that a person might be prejudiced because of his race, religion or his political opinions. The Indian Government are in no doubt about the seriousness with which we take this obligation. The noble Lord, Lord Meston, asked whether we would monitor the treatment of those returned. I believe my noble friend Lord Howe of Aberavon said this matter should be constantly looked at. I can assure both noble Lords that the Government will continue to take a close interest in what happens to those people.
The noble Lords, Lord Meston and Lord Plant, asked why there has been a treaty when there have been so few extraditions to India so far. The fact that there have not been many extraditions so far is no argument for not making sure that the arrangements which we have are fully in place to deal with any circumstances which may arise. It is correct that the arrangements should be fully in place.
The noble Lords, Lord Meston and Lord Plant, asked about human rights. I was grateful to the noble Lord, Lord Plant, for giving me notice that he wished to refer to this matter. The noble Lord, Lord Meston, mentioned specifically Amnesty International. We welcomed the 342 Indian Government's announcement in July that certain international human rights organisations will be permitted to visit India. The recent visit of a delegation from the International Commission of Jurists to Kashmir in mid-August this year is an important indication that this policy is being put into effect. I understand the Indian Government are now in discussion with Amnesty International regarding visits. We should continue to encourage the Indian Government to allow access for Amnesty International and other independent human rights organisations to Kashmir and to other areas of India. As I have said, the International Commission of Jurists has visited Kashmir and the Indian Government are discussing further visits.
The noble Lord, Lord Plant, also mentioned the difference between financing terrorism and financing political activity. I can assure the noble Lord that there is nothing in this treaty and order which is directed at genuine, non-violent political activity. I am grateful for the support that noble Lords have given. That is important support not just in terms of the order but also for the British Government and for the Indian Government. We can feel that both Britain and India are working together against the dire effects of terrorism. I beg to move.
§ On Question, Motion agreed to.