'No international arrangements providing for the transfer between the United Kingdom and a country or territory outside the British Isles, of persons who would otherwise be covered by the provisions of this Act, shall be made in connection with any such person concerning whom the Secretary of State is satisfied that he had acted on behalf of a terrorist organisation or had committed an act of terrorism in the United Kingdom.'. —[Mr. Lawrence.]
With this we shall discuss the following amendments: No. 1, in clause 2, page 4, line 13, at end insert—
'Provided that no such direction shall be given in any case in which the Secretary of State is satisfied that the prisoner had been acting on behalf of a terrorist organisation or had committed an act of terrorism in the United Kingdom.'.
No 2, in clause 2, page 5, line 31, at end insert—
'(8) The Secretary of State shall not issue a warrant under this Act providing for the transfer of any person out of the United Kingdom unless he is satisfied that the prisoner had not been acting on behalf of a terrorist organisation or had committed an act of terrorism in the United Kingdom.'.
The two amendments are consequential upon the new clause, which states:
'No international arrangements providing for the transfer between the United Kingdom and a country or territory outside the British Isles, of persons who would otherwise be covered by the provisions of this Act, shall be made in connection with any such person concerning whom the Secretary of State is satisfied that he had acted on behalf of a terrorist organisation or had committed an act of terrorism in the United Kingdom.'.
The amendments deal with the direction that must be made by the Secretary of State and the issue of a warrant under clause 2. The amendments take account of the new clause.
I have no desire to divide the House, but, in return for that magnanimous concession, I hope that my hon. Friend the Minister will improve upon the rather feeble assurances that he and the Home Secretary have hitherto given on this matter. I say feeble not because I have any wish to impugn the intentions of my hon. Friend or my right hon. and learned Friend, but because assurances so far given will be taken as feeble by foreign powers that have an interest in springing convicted terrorists from our prisons.
Under the Bill as it stands, a convicted terrorist—convicted by a British court and sentenced by a British judge—may be transferred back to his native country, where he may be released to commit further acts of terrorism. If ever a convicted terrorist were to show his face in Britain and kill or maim for a second time, the people would not easily forgive the Government who had permitted that terrorist to be returned, nor would our allies in Europe, the United States or elsewhere. It would be disastrous.
I first raised this matter with my hon. Friend the Parliamentary Under-Secretary of State for the Home Department in August 1983. In his reply to me, he said:
I can, I hope reassure you that we are very much aware of the specific problem to which you refer.
The Council of Europe convention allows transfer to take place only if the prisoner and both countries concerned consent and this proviso is likely to form a central part of any other repatriation agreement we negotiate.
Thus we would retain an absolute discretion to refuse to transfer any prisoner. That absolute discretion obtains providing the prisoner consents. A terrorist who has been sentenced to life imprisonment will consent to return to his country of origin. Therefore, that reason for reassurance is not sufficiently substantial.
My hon. Friend continued:
I have no doubt that Parliament will expect us to make very clear our policy on the exercise of this discretion. I do not want to anticipate any announcement we might make during the passage of this legislation. It was however a conclusion of the Inter-departmental working party which considered the subject in 1980 that the discretion to refuse would not normally be used except for compelling reasons of public policy.
The then Minister of State Mr. Mayhew indicated in his reply that in circumstances relating to terrorism such compelling reasons for public policy might well exist. I cavil at the words "might well exist". The words "would exist" would have provided reassurance, but the words "might well exist" do not.
When the matter was raised again in the other place and Lord Elton was asked for reassurance, he said:
Considerations of public policy might lead to a decision to refuse the transfer of any prisoner who had been convicted of particularly horrific crimes and who might be regarded as undeserving of any degree of public sympathy; for instance, in the case of a murderer, a particularly ruthless and unprincipled drug trafficker, or someone who had killed or maimed in the name of some political cause or committed other acts of a terrorist nature. Each case would be dealt with on its merits taking due account of all relevant factors, including the considerations I have mentioned."—[Official Report, House of Lords, 21 December 1983; Vol. 446, c. 758.]
Once again, the door is left open ever so slightly for a Home Secretary of the future to allow a terrorist offender to be repatriated.
Again, when the matter came before the Second Reading Committee, my hon. Friend dealt with it. My hon. Friend said:
one assurance that will, I hope, bring comfort to my hon. Friend the Member for Beckenham is that almost inevitably public policy considerations would prevent a transfer in the sort of cases that he has suggested.
They were terrorist offences.
for precisely those reasons the Secretary of State has sought the public policy grounds for withholding his consent that we have included in the Bill. Each case will have to be treated on its merits". — [Official Report, Second Reading Committee, 16 May 1984; c. 26]
Once again, the door is left open. Why is it so important to have something more substantial than those assurances given by honourable men? The answer is, because of the danger of blackmail. I believe that we hold five Libyans; the Libyans hold two innocent Britons. The temptation for Libya, Syria, Iran, Iraq or any of those countries that have had some history of terrorism which has spread to this country to put pressure upon us to release their terrorists by arresting innocent Britons is great.
Under existing law we can say, "No." My right hon. and learned Friend can say, "I am sorry, there is no law that can permit me to release someone whom we have sentenced. It is not possible." After the Bill is passed, we shall not be able to say no, because there will be a law that will permit the Home Secretary to do just what we are most fearful that a future Home Secretary might be under pressure to do. It will, therefore, be inherently easier for a Government to be blackmailed. That unsatisfactory aspect of the Bill does not drive me to say, "It is a wholly bad Bill. Let us reject it in its entirety." Obviosly there are desirable elements of the Bill that I support, in particular, conforming to the international convention.
The advantage of having something in the Bill of the kind for which I and a number of right hon. and hon. Members of the House and peers in the other place have asked is that it would stiffen the backbone of a Government. They would be able to say, "We are a parliamentary democracy. We have our laws. It is simply not possible to do what you want us to do. There is no point in arresting innocent Britons."
The question comes down to this: is there any real reason why we should not exclude terrorist offences from the provisions of the Bill? Three points have been made by the Ministers before today. One is, "We do not define terrorist offences, therefore we cannot define them here." I do not understand that argument. We have Northern Ireland legislation which turns on terrorist offences. We all know what a terrorist offence is. When a person, for political reasons, blows up innocent people in bars, in vehicles, in public or private buildings, or tries to assassinate political leaders, those are acts of terrorism and the persons responsible are terrorists. Why are the Government so coy? Do they not cut much less of a convincing figure when they persist in sheltering behind what is, in realistic political terms, a legalistic myth?
Of course, my hon. Friend will find some formula that will allow him to say no to terrorist offences. I do not believe that that argument is valid.
I have already said that, and I am most grateful to my hon. Friend for underlining the point that I have made. An objection on that basis no longer holds sway.
The second objection that we have heard from Ministers was set out by my hon. Friend in Second Reading Committee on 16 May 1984. He said:
We must reserve the right to consider each case on its merits because there are no absolute categories. When we talk of categories we always think of those cases that fit clearly in them, but there are some on the margin and it is right that they should be given individual consideration."—[Official Report, Second Reading Committee, 16 May 1984; c. 26.]
That may be the same as the first point. If it is, I need not repeat the argument. If it varies in the sense that it is possible to have some scope for distinguishing between people who commit offences that are not immediately obviously terrorist offences, they would not be covered by new clause 1.
The third reason also emerges from the Second Reading Committee and from my hon. Friend. He said:
the Secretary of State will not normally withhold consent to a particular transfer, unless he considers that there are compelling reasons of public policy for so doing." —[Official Report, Second Reading Committee, 16 May 1984; c. 6.]
Public policy—the unruly horse. That is what many of us who support new clause 1 are most fearful of —
leaving the door open. It has happened before and will doubtless happen again. I am merely suggesting that future Secretaries of State should have less reason for responding to the demands of so-called public policy to return terrorists. True public policy requires that the guilty are convicted and sentenced. It requires that our innocent people abroad are not arrested for the purpose of blackmail. That is a form of public policy that is supported by everyone in the country.
I do not fear that my right hon. and learned Friend will not use his discretion properly. I am apprehensive about what might come after him. Most essentially, I am apprehensive that, as long as a discretion remains, that discretion will be exploited by the very Governments who are responsible for sending terrorists to Britain to cause bloodshed, mayhem and fear on the streets of Britain.
I believe that the hon. and learned Member for Burton (Mr. Lawrence) has done a service by tabling new clause 1. The Bill and this proceeding upon consideration is a classic example of the unwisdom of the method of taking a Second Reading in Committee. There was great sense in the standard procedure of the House whereby it is on the Floor of the Chamber that the principles of legislation have to be explained and considered before they are sent, if that is the pleasure of the House, to Committee.
It may be said, and it has been argued in favour of Second Reading in Committee, that when a Bill is uncontroversial and plain sailing it saves the time of the House for the Second Reading to be taken in Committee. I do not think that anyone who has perused the proceedings on this Bill in another place could possibly say that the contents of the Bill were not such as required the utmost attention of the House at all stages of its passage. It is therefore unsatisfactory that the Committee stage took place, and the principal opportunities for amending the Bill took place, before a proper debate had occurred on the Floor of the House upon the principles to which we are committing ourselves by this legislation.
The Bill provides the framework to enable Britain to ratify an international convention. In accordance with what is now fashionable and frequently brought about by international convention, it represents an invasion upon the field of territorial sovereignty. Territorial sovereignty is a principle with which one toys at one's risk and sure enough we shall, if this legislation goes forward, live to regret the fact that we were so ready to tear up the principle of territorial sovereignty to accomplish an international convention.
I do not dispute the humanitarian intentions behind the convention and so behind the legislation, but I suggest that the implications of what we are doing with the Bill as it stands, unrestricted as it is, could be, and probably will in future be, very serious.
At present, we deal with those who are convicted of offences in our own territory, and we exercise our territorial sovereignty if a sentence of imprisonment is passed by keeping people imprisoned within the jurisdiction. That principle is fundamentally breached, and is intended to be breached, by these arrangements for the exchange of prisoners, which in effect entrust to another sovereign power, when an exchange takes place, the duty of carrying out the orders of a British court, and, of course, vice versa. It is a deliberate affront to the principle of territorial sovereignty, now so scorned as obsolete or obsolescent. But there is great life and sense yet in that principle, as we may find if we are not careful in our construction and administration of this legislation.
I appreciate that so far the convention has been signed only by fewer than a score of countries. Those that have signed it are not those to which the fears expressed by the hon. and learned Member for Burton would most naturally attach. But we are also engaged in making bilateral arrangements that are quite outside the scope of the convention. In Committee in the other place, it transpired, I think, that we are engaged in negotiations with Thailand for that purpose. So even if a country such as the Irish Republic or Libya is not among the signatories to the convention that the Bill would enable us to ratify, we may still find ourselves one day using the Bill's provisions to implement a bilateral agreement that we made for what seemed, at the time, to be a good reason, with a country that does not adhere to the Council of Europe or belong to the North American mainland. It therefore behoves us to take great care of the framework within which we expect future Home Secretaries and Governments to operate.
That had occurred to me. Indeed, it had occurred to me that there might be an anxiety in some quarters, which we might find it diplomatic not to set aside, to secure bilateral arrangements. Indeed, in those circumstances, there might be some attraction from the United Kingdom's point of view too in making such arrangements.
There are two distinct dangers that arise in the context of terrorists offences, and that are incurred by the Bill as it stands, and by the incomplete assurances that the Government have given as to the manner in which it will be operated. The first involves the question of blackmail, which was cogently argued in Committee by the hon. Member for Beckenham (Sir. P. Goodhart), whom I am glad to see in his place, and which formed the staple of the argument put forward by the hon. and learned Member for Burton. It is a real and substantial possibility. The Government say that there would not be any connection between any blackmailing threat and the case-by-case consideration of prisoners held in this country for the purposes of transfer. It is all very well to say that when one is talking in the abstract but under the pressure of agitated and excited public opinion things are different.
Some of us remember in 1970 the case of Leila Khaled, a case in which, as one of the Law Officers of the Crown a few months afterwards candidly admitted, we prejudiced the principles of the rule of law in Britain in order to facilitate Leila Khaled's departure from this country because it was thought that that would be to the advantage of British subjects who found themselves in disagreeable circumstances elsewhere. So there is precedent for the notion of blackmail and there is precedent for the assertion that Governments are perfectly capable of bending to the wind if the law can even be twisted so as to allow them to bend to the wind. The great safeguard, as the hon. and learned Member for Burton said, is an absolute non-possumus—the absolute impossibility under the law of surrendering a prisoner who is lawfully held in durance in this country. Only that could be a protection for a British Government against the pressures of blackmail.
But there is another consideration altogether in which blackmail is not involved but which is just as realistic. Perhaps I might describe it as public scandal — the possibility that a foreigner who had been guilty of an atrocious terrorist offence in Britain might, under the Bill, be returned to his home country and there, in effect, whether by escaping or otherwise, be seen to have evaded the punishment which was his due. I cannot but believe that that would be a cause of grave public scandal and we of this generation in this Parliament who pass the legislation would be held to blame for having made such a thing possible.
It is that consideration in connection with the adjacent Irish Republic, where I do not think the question of the blackmailing motive is likely to arise, which has made my right hon. and hon. Friends and myself so anxious about the provisions of the Bill. It is true that certain assurances have been given. For example, in another place on Second Reading the Government's spokesman said:
We do not intend to put ourselves in a position where we can be browbeaten into the exchange of prisoners on any grounds, whether terrorists or not.
I am prepared to accept the Government's assurance that they do not intend to put themselves in that position, but that is precisely what they are doing by the unrestricted terms of the legislation. The Government spokesman continued:
We intend that the public interest shall always be the basis of our decisions". — [Official Report, House of Lords, 21 December 1983; Vol. 446, c. 778.]
I compared that with the assurance which was given by the Under-Secretary of State for the Home Department in Committee where he said:
We want to face the terrorist problem head on and compelling public policy reasons would make it impossible and wholly undesirable for us to transfer such people."—[Official Report, Second Reading Committee, 16 May 1984; c. 26.]
Those two statements are in themselves about as strong as ministerial statements could be. I have deliberately, unlike the hon. and learned Member for Burton, chosen rather stronger assertions in the mouth of Government spokesmen than he did. What makes me anxious is that I may have been defective in my study of the Bill, but I have found no wording behind which or under the shelter of which those assertions of public policy could be made good. As far as I can see, no clause makes it a duty on the Secretary of State, in the case of a transfer out of the kingdom, to have regard to any considerations, which might be specified, such as public safety or otherwise.
Unfortunately, we rest wholly on ministerial assurances given during the passage of the Bill and we are leaving the legislation in a form whereby, on the face of it, any other country, pressure group or section of public opinion can argue, "There is nothing in the legislation. Since the legislation is innocent of any qualification, the presumption must be that wherever there is a convention of this sort in force the Secretary of State should obey it." One can imagine the pressure under which a Government would find themselves at those times.
My right hon. and hon. Friends and I hope that, even if the Government are not able to accept the new clause, we shall get much more secure reasons, for which a future Home Secretary will, I am sure, be grateful, for supposing that the risks of blackmail and public scandal, which appear to be implicit in the legislation, will not in fact exist and that we are adequately defended against them.
I support the new clause. The right hon. Member for Down, South (Mr. Powell) said that the Bill required the utmost attention at all stages and that it involved an abridgement of territorial sovereignty.
When my noble Friend Lord Elton moved the Second Reading in another place, he described the Bill as
a new departure in the administration of criminal law
and as being actuated by "humanitarian arguments." My noble Friend gave the assurance that
the Secretary of State will not normally withhold consent to a particular transfer unless he considers that there are compelling reasons of public policy for doing so." —[Official Report, House of Lords, 21 December 1983; Vol. 446, c. 751–531.]
Like my hon. and learned Friend the Member for Burton (Mr. Lawrence), I require a different assurance. Blackmail was mentioned by my hon. and learned Friend and by the right hon. Member for Down, South, but I want an assurance that the legislation will guarantee that there will be no transfer of terrorist prisoners unless they are to be safely held for the term of their sentence.
Suppose that the Republic of Ireland adheres to the convention and that a dangerous terrorist from the Republic is imprisoned within the British islands — I think that the Minister will agree with the definition of British islands spelt out in amendment No. 4. Suppose also that that terrorist is sent to the Republic to serve his sentence. I am not sure about the humanitarian arguments; I am not sure whether he would be more comfortable in Mountjoy or Portlaoise than in a prison on this side of the water.
The Republic is a precarious state, governed by unstable coalitions—the fruit of proportional representation—and some Irish Governments are always pandering to and looking for the support of small extreme factions close to the men of the bullet and the bomb.
I am saying that Irish politicians have to be extremely careful what they do if they are to remain in office. I am not speaking of the present Irish Government, but there has been deference to extreme groups close to terrorism to perpetuate Governments' periods of office. That fact is well known to all those who study these matters.
It is not disgraceful to say what is true. It is disgraceful for an hon. Gentleman to put words into my mouth which I did not utter. I said that Irish Governments must consider, because they operate on a small electoral margin, various small groups in the country. Perhaps the hon. Gentleman recalls the connection of the present Leader of the Opposition and former Taoiseach with certain curious operations in connection with the provision and importation of arms.
I am saying that the Irish Republic is a precarious state. I therefore wonder what would happen if, in some future circumstances — I am not speaking of the present meritorious Irish Government — a dangerous terrorist who was sent from one of Her Majesty's prisons within the jurisdiction to serve his sentence in the Irish Republic was released, or was enabled to escape, before the time of his sentence had expired. That, in the words of the right hon. Member for Down, South would be a grave public scandal. It would also be a grave public danger.
Clause 1(2) says:
The Secretary of State shall not issue a warrant under this Act, and, if he has issued one, shall revoke it, in any case where after the duty under subsection (1) above has arisen and before the transfer in question takes place circumstances arise, or are brought to the Secretary of State's attention, which in his opinion make it inappropriate that the transfer should take place.
The question of terrorism has been canvassed on more than one occasion, as hon. Members who served on the Standing Committee will be aware. What Home Secretary, hon. Members asked, would ever issue a warrant for a terrorist to be transferred?
Reference has been made to the Republic of Ireland. I make no secret of the fact that I was born there, and many members of my family, going back generations, have been born there. I am the first to condemn anyone, of whatever race or nationality, who commits a terrorist offence. I have said time and again — I said it regularly when we debated what became the Prevention of Terrorism (Temporary Provisions) Act 1984—that there is nothing special about a terrorist. He is a criminal and he commits criminal offences, and the sooner we get back to appreciating that we are talking about crime — albeit crime of a moat heinous nature — the better. The terrorist's crime is in no way justified by it having been committed in pursuit of some spurious cause.
People can bring pressure on the Home Secretary in respect of any criminal's detention. It has been known for people to make spurious claims of innocence, and goodness knows what else, and to have built up a terrific head of steam in support of a man who has been rightly convicted of crime, just as a head of steam has been built up in support of somebody who has been wrongly convicted of crime.
We come to the crucial test; what is the position of the Home Secretary? What is his status within our system? He is a servant of the Crown who is answerable to the House. That is where our protection lies. Let us use as an example a man from the mythical country of Transylvania who has committed an offence of bombing in pursuit of a national cause in his own country and seeks to bomb his way to victory by using Britain for his bombing. This is not a spurious example because there have been numerous instances of that sort involving people from the middle east.
If such a person is convicted and sentenced in this country, how many Home Secretaries, past and present, would consent to the transfer of that criminal back to his own country, where he may face an immediate amnesty and release? Public opinion in this country would not permit a Home Secretary to take such a step. That is the reality. That same public opinion would be directed to someone who emerged from the Republic or Northern Ireland and came over here to commit terrorist offences.
To argue the case that has been adopted by some hon. Members is to cast a slur on the Republic for it suggests that it would seek the return of its citizen and grant him amnesty. The Republic does not grant amnesties to terrorists. It has as great a loathing of terrorism as the United Kingdom. It accepts, as we do, that it is criminality of the worst and most bestial sort. A slur is cast also on Home Secretaries present and future. It suggests that in some way they would seek to give way to a third country which said, "We want this chap back because we want to let him go" while knowing full well that the full weight of public opinion in Britain would be adverse to that happening.
I recognise and understand the emotion that lies behind the word "terrorism" but let us try once again to return the terrorist to what he is, nothing more than a common criminal who is dealt with by our legal system as a common criminal. When considering the amendments and new clauses let us take on board the arguments advanced on Second Reading, in Committee and in another place, when it was said repeatedly by Ministers that no Home Secretary, bearing in mind the provisions of clause 1(2), would give way to the argument that a man should be repatriated, knowing full well that he would be going home to an amnesty. None of us would be party to such a decision and I ask the House to reject the new clause and the amendments.
I support the new clause. The Bill in its present form will be of concern to everyone in Northern Ireland who believes in British justice. We should be aware of the attitude of the Eire judiciary and some members of the Eire Government to their sons who go abroad in the guise of patriots and commit the most diabolical acts in the name of Irish nationalism.
At this moment there is in custody in this country a citizen of Dublin who is suspected of the most heinous crime perpetrated upon the innocent people of the capital, a crime which, although commonplace in Northern Ireland, has caused great consternation and shock to the community on this side of the United Kingdom. We shared the grief, which was expressed by the representatives of my party in the House and others, for the victims of the atrocity, who are also our fellow citizens.
We can imagine the reaction if an Irish individual were convicted and sent to Dublin to serve his sentence. He or she would be treated almost as a hero. Such punishment as was administered would not be rigorous.
We have heard many times in the past the clamourings from the southern Irish religious leaders and from the Republican Government for the return of prisoners serving their sentences in British prisons. It is a matter of great concern to me—and I am sure it is shared by many of my fellow countrymen — that once again we are witnessing an appeasement by the Government. They are attempting to placate the vociferous minority and to show a magnanimous attitude to a foreign Government who have never reciprocated the concessions that, over the past 50 years, the Government have given to them in the interests of peace and harmony.
I shall illustrate the sympathy of the Irish judiciary to terrorism. I draw the attention of the House to the recent case of Philip James McMahon who escaped from Newry courthouse in 1975 and fled to the Republic. The Supreme Court in Dublin, in a unanimous reserved judgment, upheld the appeal against extradition on the ground that the escape was connected with a political offence.
Let us be clear about this offence, which was admitted by the subject of this incident. He said that he was a labourer in Dublin and that he lived there. He was tried before the Crown court in Belfast for armed robbery and was convicted and sentenced to eight years' imprisonment. He said that the robbery was carried out by order of the IRA, of which he is a member, to raise funds for the campaign for the liberation of Northern Ireland from British rule. This individual now walks free in the Irish Republic and presumably he will continue his efforts on behalf of the organisation that spawned him. The House must be aware that, by applying this section of the Bill to the Republic of Ireland, it is giving credence and encouragement to the IRA and its fellow travellers in their pursuance, by whatever means, of their insufferable objectives.
Such weakness as is suggested by the Bill only spurs these terrorist organisations into even more vicious and sustained action against innocent men, women and children in any part of the United Kingdom. In our recent debate on the New Ireland Forum it was said by many right hon. and hon. Members that the rights of Ulster Unionists are not up for negotiation. There are 1 million people in Northern Ireland who are determined that they will never surrender those rights which, in our part of the United Kingdom, are offered to everyone who lives there. Sending murderers, arsonists and common criminals to what is considered a haven will be seen as an erosion of these rights, and that is why I support the new clause.
I support the new clause because it refers to the specific problem of terrorists. In the United Kingdom we have suffered for many years from terrorism by the PLO, the Libyans and by people from the Irish Republic. In particular, those of us from Northern Ireland constituencies know only too well the suffering of British people at the hands of Irish Republican terrorists.
The Bill has been presented to the House by a somewhat unusual procedure in that tonight, with only 20 hon. Members present, we have the first chance to consider the contents of the legislation. It has been discussed in the other place and in Committee, but this is the first time that it has been brought before all hon. Members.
In the Bill the Government are asking for a blank cheque to deal with the transfer of sentenced terrorists from this country to others. The Government are asking that they, and they alone, should have discretion in deciding who shall go and who shall not. They ask that this House shall not place any limitations on the free hand of the Home Secretary to decide which warrants he should sign.
In the United Kingdom we have seen the refusal of the Home Secretary, under considerable pressure from time to time—perhaps even blackmail, as some hon. Members have suggested—to transfer sentenced terrorist prisoners from one part of the United Kingdom to another part of the United Kingdom. He has used very firm and clear arguments showing why such transfers should not take place. Here we find a contradiction, in that he is now prepared to support the transfer of sentenced terrorists outside the United Kingdom to other jurisdictions and to other sovereign nations, yet he will reject and oppose the transfer within the United Kingdom of sentenced terrorists.
It is clear that in considering the legislation the Government did not take into consideration the problem of the transfer of sentenced IRA terrorists. They did not take into consideration the question whether the legislation affected the transfer of IRA terrorists from the United Kingdom to the Republic of Ireland. We have only to look at the presentation of the Bill in another place when the Minister, in introducing the legislation, was questioned by Lord Kilbracken, who said:
My Lords, before the noble Lord sits down"——
I will not quote the question, but I will quote the Minister's reply. He said:
My Lords, the noble Lord has asked me a question to which the answer must be phrased with great care and I shall give it to him when I reply at the end of the debate."—[Official Report, House of Lords, 21 December 1983; Vol. 446, c. 758.
In other words, the noble Lord did not know whether the legislation affected the Republic of Ireland, and it was only at the end of the debate, having consulted his officials, that he then discovered that Irish terrorists could be transferred under the legislation from the United Kingdom to the Republic of Ireland. That was the first time it came to his attention.
The Under-Secretary of State for the Home Department made it clear in Committee that article 12 of the Council of Europe convention provides that
'each party may grant pardon, amnesty or commutation of sentence in accordance with its constitution or other laws.'"
Those of us in the United Kingdom dealing with the problem of Irish Republican terrorism, and knowing what a running sore it has been over the past 15 years—there has been no extradition of wanted terrorists from the Republic of Ireland to the United Kingdom—recognise immediately that it is the constitution of the Republic of Ireland that is used time and again in the Supreme Court of the Republic of Ireland as the basis for refusing extradition of wanted terrorists. If the constitution is used by the southern Irish authorities as a pretext to refuse the extradition of terrorists, we can easily assume that the constitution will yet again be used as a pretext for going soft on those Irish terrorist transferred back from the United Kingdom to the Republic of Ireland.
The possibility is underlined by the Under-Secretary of State, because in further debate in Committee on the same date he said:
Where, under the terms of an agreement, a prisoner who has been transferred from the United Kingdom is discharged in the other country earlier than he would have been if the had stayed here, a procedure is needed to ensure that, should he return here, he would not be subject to arrest and detention under the original order of the court." — [Official Report, Second Reading Committee, 16 May 1984; c. 17 and 7.]
The Under-Secretary of State is accepting that if an IRA terrorist is transferred from the United Kingdom to the Republic of Ireland, he can released earlier there than he would have been released in accordance with the wishes
of the courts of the United Kingdom; and, secondly, if he is released, he can return here and know that nothing will happen to him and that he will not be lifted again by the authorities in the United Kingdom. That suggests that the legislation will provide a possibility for people who have been found guilty in our courts of terrorist acts to go to another country—not only the Republic of Ireland—to be released earlier than intended by the United Kingdom courts and to return to the United Kingdom to continue to kill, damage and harm people in this community.
This is dangerous legislation. The Government are asking for a blank cheque. The legislation should be strongly opposed by those who uphold the safety of the citizens of the United Kingdom, and therefore I support the new clause.
I recognise the strong feeling on this issue. I am in no sense surprised or even dismayed by it. I have sought throughout the Bill's stages to deal with this matter as clearly and forthrightly as I can. It is perfectly right that, although the overwhelming majority of prisoners who will be affected by these provisions will have nothing to do with terrorism and none of the matters that have been canvassed this evening will apply, grave concern will attach to any suggestion that some people held in our prisons will be sent back to their country of origin.
When the matter was raised on Second Reading, I sought to state the Home Office position as forthrightly as I could. I said:
almost inevitably public policy considerations would prevent a transfer in the sort of cases that he has suggested.
I was referring to what my hon. Friend the Member for Beckenham (Sir P. Goodhart) had said about terrorist offences. His point was mirrored by what was said in the House tonight by my hon. and learned Friend the Member for Burton (Mr. Lawrence) and other hon. Members. I continued:
For precisely those reasons the Secretary of State has sought the public policy grounds for withholding his consent that we have included in the Bill. Each case will have to be treated on its merits, but it is profoundly unlikely that any of the cases that he has in mind would ever be the subject of an agreement to transfer.
I went on to say:
We want to face the terrorist problem head on and compelling public policy reasons would make it imposssible and wholly undesirable for us to transfer such people."—[Official Report, Second Reading Committee, 16 May 1984; c. 26.]
The right hon. Member for Down, South (Mr. Powell), who is always fair in his judgments on these matters, said that that was about as strong as a ministerial statement can be. I was grateful to him for saying that, because I believed that to be so when I uttered it. I intended it to be received as such. It goes right to the edge of what can be permitted to fall from the mouth of any Minister when defending a request from the House to give him a discretion which he cannot in any circumstances entirely fetter. In no sense —I say this to my hon. and learned Friend the Member for Burton—can that be called a feeble assurance. I do not believe that the right hon. Member for Down, South thought that it was a feeble assurance.
The question at issue is whether it is right that the Home Office should have any discretion in this matter. I should have thought that it must be accepted that if we are to retain a discretion we cannot state any more clearly than was said on Second Reading how we propose to exercise that discretion in relation to terrorist offences.
The right hon. Member for Strangford (Mr. Taylor) was wrong to say that when framing the Bill we had not taken into account the possibility of transferring terrorists. It was predominantly for that reason that we believed that it was integral to the Bill that the Secretary of State should have absolute discretion, whatever the views of the other state or the prisoner, to refuse a request for transfer if he thought that it was right so to do.
I say to the right hon. Member for Down, South and other hon. Members who have raised this point that there is nothing sinister in not including in the legislation a requirement for the Secretary of State to have regard to certain issues before exercising his discretion, because no Secretary of State could properly exercise his discretion without taking account of those matters. It would be superfluous to put those requirements in the legislation, because the essence of the exercise of the discretion of the Secretary of State on these matters is that he would have regard to the consequences of his act.
In relation to terrorism, as we all understand, the consequences of the act would be gravely damaging for a variety of reasons. First, it might be thought to encourage terrorism. Secondly, it would not have proper regard to the utter abhorrence of the public for terrorist acts so that even if, as the legislation intends, the person concerned were to be incarcerated in his own country for the full period that he would serve here the public would still take grave offence. Moreover, it is for the very reason that the right hon. Member for Strangford (Mr. Taylor) mentioned—that a state might be tempted to release somebody prematurely on the basis of article 12 of the convention —that no Home Secretary worth his salt would wish to run that risk if he felt that there would be any pressure on the Government of the receiving state to take that cause.
For all those reasons, the discretion of the Secretary of State to refuse under clause 1(1)(b) is absolute and those would be the grounds on which he would choose to do so.
Perhaps the Minister will clear up a difficulty that many of us have found in relation to clause 1(2), to which attention was drawn by the hon. Member for St. Helens, South (Mr. Bermingham). Under that subsection, only where the duty has already arisen is the Secretary of State forbidden to issue his warrant if
circumstances arise or are brought to the Secretary of State's attention, which in his opinion make it inappropriate that the transfer should take place.
It seems curious deliberately to leave the general issue of discretion quite unqualified but in the special case, where something arises after the duty comes into existence, to provide specifically that the warrant shall not be made if it is inappropriate.
I am glad that the right hon. Gentleman has raised that as I intended to point out that the absolute discretion to withhold rests in subsection (1)(b), not in subsection (2), as I believe that that may cause some confusion. It is only when the Secretary of State and the other two parties have consented that the duty arises and can be discharged, but if circumstances then arose that made it inappropriate to do so the Secretary of State would, as it were, abrogate his previous consent by exercising his power under subsection (2), but the duty would not arise if from the outset the Secretary of State had reached the conclusion that for compelling reasons of public policy it would not be appropriate to contemplate a transfer.
As it is often said that no Parliament can bind another, does my hon. Friend agree that in the same way no Secretary of State can bind another? If the occupant of the great position of Secretary of State changed or if his attitude changed, would it not be helpful to have the new clause so as to make the view of the House clear to any future Secretary of State?
I appreciate that point and I am about to deal with it, if my hon. Friend will be patient.
We have described as clearly as we can—consistent with leaving a discretion to treat each case as an individual case—the way in which we propose to exercise the discretion in relation to terrorist offences. The question then arises whether we should have any discretion at all in those cases. First, the discretion is wholly in line with the discretion of all Home Secretaries always to be unfettered in relation to matters such as immigration control, release of prisoners on parole and life sentence prisoners. There are different requirements in respect of each, but the basis of the exercise of Home Office discretion is that there is individual consideration of each case.
In my respectful submission, that does not prevent a Home Secretary from reaching the conclusion that to safeguard the public interest he must make general declarations of his intention, although he always leaves himself room to have regard to a special case. The alternative to doing that, if we were prepared —[Interruption.] I ask my hon. Friends to bear with me. It is difficult for me to answer an important debate when there is such a noisy conversation going on.
I want to tackle the question whether we should introduce the concept of terrorist offences more widely into our law. They are there to a limited degree at the moment and are part of the law of Northern Ireland, for obvious and apparent reasons on which I do not need to dilate. They are in the laws of Great Britain and Northern Ireland in relation to our rights to exclude people from this country.
When invited to restore capital punishment for terrorist offences, the House resisted the invitation and several speeches suggested that it would be inappropriate and, indeed, confusing in our law to have to determine, as well as the issue whether a person was guilty of a criminal offence, whether it was motivated by terrorism or arose from pure criminality.
The point was also made forcefully and vigorously—I found it compelling—that we play into the hands of a terrorist if we give him status over and above that of a common criminal, because we put him into a category that he wants to be put into, as someone who is different from a murderer or other criminal. That is such a major departure from the way in which we have customarily done things in our law that it should be entered into only after great thought. I do not think that it would be helpful. That does not lessen our resolve that no one should think after this measure, any more than after anything else that we might do in the Home Office, that our determination to resist terrorists and to ensure that they are punished for the crimes that they commit is any the less.
Blackmail is a serious issue, but it does not arise effectively in relation to the measure.
Can the Minister tell us if the Government do not want to elevate terrorists in legislation, why public opinion should change them from being criminals into terrorists and therefore super people, so that pressure would be brought against the Government if they were to release them?
Perhaps that is the problem that I have in understanding the Minister's reply. He has said that it is not the intention of the Government to elevate terrorists above the rank of ordinary criminals. But behind the answers up to this moment there was a suggestion that the Minister could not do certain things because there would be a public reaction and a scandal. Why, if that is the mind of the Government, should the public treat it as a scandal if a person is a terrorist rather than a criminal?
I do not believe that that quite meets the point. As my noble Friend Lord Elton made clear in another place, not only terrorist offenders will fall at the hurdle of the public policy objection. The crime in question might be an especially despicable murder, which has nothing to do with terrorism. The hon. and learned Member for Montgomery (Mr. Carlile) mentioned sex offences. I agree with him that the public policy objection to transferring prisoners is in no sense restricted to terrorists, although terrorists are the most obvious part of that restricted group.
On the question of blackmail, I am totally convinced that none of the powers in the Bill make it more or less likely that we shall be subjected to blackmail of the sort that has been suggested. There are a number of reasons for that. First, the Bill does not envisage a position in which someone says, "We have one of yours, so why not give us back one of ours who we want?" This is done on an individual basis, on the assumption that there is a prisoner of one nationality in the prison of another country, and that arrangements can be made, either through the treaty or bilaterally, for a transfer to take place. There is no requirement that there should be any exchange of prisoners.
If a Secretary of State was minded to agree to blackmail, he would have plenty of powers to do so. We know the decision that was taken on the Leila Khaled case. Other exchanges arose as a result not of blackmail, but of negotiation. For example, Lonsdale was transferred to behind the iron curtain by the use of prerogative powers.
If a Secretary of State is minded, for perfectly valid reasons, such as an exchange making sense, or because of blackmail, to ship someone to another country to wash his hands of the problem, it would be wrong to suggest that he does not have the power to do so under his already wide powers. When the right hon. Member for Down, South talks about the Government bending, I must tell him that the Government have supple enough limbs now and do not need any ointment provided in this measure to give them any additional spring. If a Government want to succumb to pressure, they can do so now. That is why it is no more likely that pressure will be put upon this country because of this Bill than at any time in the past.
In asking the House to reject the new clause, I in no sense mean that we believe that this is a suitable Bill to allow the transfer of the several dozen terrorist prisoners in our prisons. I do not believe that any Secretary of State is likely to arrive at the conclusion that it would be appropriate to do that. However, it would be in keeping with the way that Home Office discretion has been handled in individual cases over the years that there should be a residual discretion. The category of terrorist is not self-defining; there are plenty of safeguards within the statements that have been made and within the common sense of the situation that make it imperative that the Secretary of State should refuse any application in any of the cases mentioned tonight.
I have a great deal of admiration for my hon. Friend who is brave, forceful, persuasive and eloquent in his arguments, even though he shows a slight hint of intolerance towards we lesser mortals who may not agree with him. But he has stood upon the precise position upon which he stood during Second Reading, and the precise position that our right hon. and noble Friend in another place stood upon when the matter was decided there.
The difficulty that my hon. Friend faces is twofold. First, if he is saying that the Secretary of State will always refuse to return a terrorist, there can be no reason why that is not incorporated in the Bill. It is when he refuses to incorporate that that there is a little area of greyness when, if someone if not observant, aware and informed, the repatriation of a terrorist could take place. That is what concerns us.
Secondly, it is no longer open to my hon. Friend, on behalf of the Government, to say that we cannot define what a terrorist is. In at least two Acts of Parliament the word "terrorist" is defined. It is defined in the Prevention of Terrorism (Temporary Provisions) Act 1984 and the Northern Ireland (Emergency Provisions) Act 1978. To say that that was the subject of discussion when we talked about capital punishment, and the reason why some hon. Members advanced objections to capital punishment for terrorist offences causing death, is neither here nor there. We were not discussing legislation, but a motion. If everything that an hon. Gentleman said in a speech is taken as a ban on future legislation, this House would have come to a pretty pass.
Neither of my hon. Friend's arguments was persuasive. What was more persuasive was the argument that the Home Secretary can exercise a prerogative power. The reason for inserting into the Bill a bar on terrorist offenders being returned is not to abrogate the prerogative power, because it cannot be abrogated, but to make it clear beyond peradventure to the people whom we represent—they are important, especially in those parts of the country most susceptible to terrorism — that it was Parliament's intention that, but for the prerogative power, there should be no weakening and no concession to pressures from foreign powers. That must and can be explained. It will stiffen the backbone of a Government in negotiation or discussion with the head of a foreign power.
I am sorely pressed to pursue new clause 1 with its attendant amendments. The only reason why I shall beg to ask leave to withdraw it is the I gave an undertaking to do so when I made my opening speech. I had no idea that so many hon. Members would support the new clause. Had I been aware of that, I would not have committed myself. Having committed myself, I must, I am afraid, remain true to my word. It would be inappropriate not to withdraw the new clause in those circumstances. However, what the House chooses to do is its business. I am honour bound not to press the new clause. I beg to ask leave to withdraw the clause.
|Division No. 391]||[11.17 pm|
|Biggs-Davison, Sir John||Walker, Cecil (Belfast N)|
|McCusker, Harold||Winterton, Mrs Ann|
|Maginnis, Ken||Winterton, Nicholas|
|Molyneaux, Rt Hon James|
|Nicholson, J.||Tellers for the Ayes:|
|Powell, Rt Hon J. E. (S Down)||Rev. Martin Smyth and|
|Taylor, Rt Hon John David||Mr. William Ross.|
|Alexander, Richard||Hirst, Michael|
|Alison, Rt Hon Michael||Hogg, Hon Douglas (Gr'th'm)|
|Ancram, Michael||Hunt, David (Wirral)|
|Ashby, David||Jackson, Robert|
|Aspinwall, Jack||Knight, Mrs Jill (Edgbaston)|
|Atkinson, David (B'm'th E)||Lee, John (Pendle)|
|Baker, Nicholas (N Dorset)||Lightbown, David|
|Baldry, Anthony||Lilley, Peter|
|Batiste, Spencer||Lloyd, Peter, (Fareham)|
|Beith, A. J.||Lord, Michael|
|Bellingham, Henry||MacGregor, John|
|Berry, Sir Anthony||Maclean, David John|
|Best, Keith||Major, John|
|Boscawen, Hon Robert||Malins, Humfrey|
|Bottomley, Peter||Malone, Gerald|
|Bottomley, Mrs Virginia||Marland, Paul|
|Bowden, Gerald (Dulwich)||Marlow, Antony|
|Brandon-Bravo, Martin||Mates, Michael|
|Bright, Graham||Mather, Carol|
|Brown, M. (Brigg & Cl'thpes)||Maxwell-Hyslop, Robin|
|Bruinvels, Peter||Mellor, David|
|Buck, Sir Antony||Merchant, Piers|
|Budgen, Nick||Miller, Hal (B'grove)|
|Burt, Alistair||Mills, Iain (Meriden)|
|Butterfill, John||Morris, M. (N'hampton, S)|
|Carlile, Alexander (Montg'y)||Moynihan, Hon C.|
|Carlisle, John (N Luton)||Murphy, Christopher|
|Carttiss, Michael||Needham, Richard|
|Cash, William||Neubert, Michael|
|Chope, Christopher||Newton, Tony|
|Clark, Dr Michael (Rochford)||Nicholls, Patrick|
|Conway, Derek||Norris, Steven|
|Cope, John||Osborn, Sir John|
|Couchman, James||Ottaway, Richard|
|Cranborne, Viscount||Page, Richard (Herts SW)|
|Currie, Mrs Edwina||Penhaligon, David|
|Dicks, Terry||Powell, William (Corby)|
|Dorrell, Stephen||Powley, John|
|Dover, Den||Proctor, K. Harvey|
|Dykes, Hugh||Raffan, Keith|
|Evennett, David||Rhodes James, Robert|
|Fallon, Michael||Rowe, Andrew|
|Gregory, Conal||Sayeed, Jonathan|
|Hamilton, Hon A. (Epsom)||Shaw, Sir Michael (Scarb')|
|Heddle, John||Shepherd, Colin (Hereford)|
|Smith, Tim (Beaconsfield)||Tracey, Richard|
|Soames, Hon Nicholas||Twinn, Dr Ian|
|Spencer, Derek||Waddington, David|
|Steen, Anthony||Wakeham, Rt Hon John|
|Stern, Michael||Walden, George|
|Stevens, Lewis (Nuneaton)||Wardle, C. (Bexhill)|
|Stevens, Martin (Fulham)||Watson, John|
|Stewart, Allan (Eastwood)||Watts, John|
|Stewart, Andrew (Sherwood)||Wells, Bowen (Hertford)|
|Stradling Thomas, J.||Whitfield, John|
|Sumberg, David||Whitney, Raymond|
|Taylor, Teddy (S'end E)||Wolfson, Mark|
|Terlezki, Stefan||Wood, Timothy|
|Thatcher, Rt Hon Mrs M.|
|Thompson, Donald (Calder V)||Tellers for the Noes:|
|Thompson, Patrick (N'ich N)||Mr. Tristan Garel-Jones and|
|Thorne, Neil (Ilford S)||Mr. Tim Sainsbury.|