§ 5.41 p.m.
§ Lord Kennet rose to call attention to the need for a review of the Vienna Convention on Diplomatic Immunity of 1961 and for an independent inquiry into the intelligence appreciation of the threat posed by Libyan terrorist attacks before the recent events in St. James's Square; and to move for Papers.
§ The noble Lord said: On the morning of 17th April there was a demonstration outside the building which had been the Libyan Embassy in St. James's Square by Libyan opponents of the present Libyan regime, and during that demonstration one or two machine-gun bursts were fired from a window of the building. As a result of this. Woman Police Constable Fletcher was shot dead. I think the House would agree that, first, we should renew the messages of condolence that we have already sent to the family of Constable Fletcher. Eleven Libyans were also shot. I have inquired about their condition, and I understand that they are all out of hospital, for which I think the House will be glad. They, too, were casualties of the outrage. All are agreed that what happened was unprecedented.
§ Our Motion this afternoon falls into two parts. The first part speaks about a review of the Vienna Convention on Diplomatic Relations—not Diplomatic Immunity. I apologise for the mistake on the Order Paper. The second part addresses itself to the independent inquiry into whether the intelligence available to us might have helped to avoid the outrage, which inquiry we have already demanded elsewhere; and my noble friend Lord Harris of Greenwich will speak to that part of our Motion later in the debate.
§ The Vienna Convention embodies what is, in fact, the oldest part of international law. It has hitherto been automatically thought of and perceived in the world as a means to protect diplomats against the wrath of the people to whom they were posted, and against unjust laws which might exist in the receiving country. We have now to begin to think of it as an instrument for protecting the people of receiving countries against outrages committed by diplomats, and we have to think about this in a world of increasing state terrorism.
§ Let me say at once that I am not going to urge that the Government should necessarily seek a revision of the Vienna Convention. The St. James's Square outrage was, of course, the tip of an iceberg which everybody has known for a long time existed. There are immense numbers of people enjoying diplomatic immunity in most of the major capitals of the world, 1448 and London has a very high number indeed. There has been a good deal of anxious questioning in both Houses of Parliament for years now about this number. When I asked in this House in 1973 how many there were, I was told that it was 4,600 and that about three times that number should be added for their families. In 1982 Mr. Greville Janner inquired in the House of Commons, and by then the number was 5,200, with three times that number to be added for families. This of course constitutes a steady advance.
§ As your Lordships would expect, minor crime—given that number of persons totally immune to prosecution—is astronomical. During a period of nine months last year, as the noble Lord, Lord Elton, recently informed this House, 74,674 fixed penalty notices for traffic offences were cancelled without further inquiry when it was established that the car in question belonged to a protected diplomat.
§ More serious crime is of course in proportion. Over a period of 10 months in 1982, as Mr. Mayhew informed the House of Commons in that year, more serious crimes were as follows: violence against the person, 4; offences against the Theft Act (including shoplifting), 16; drink offences (drunk and disorderly), 2; road traffic offences involving drink, 19; other road traffic offences—that is, those where proceedings were actually contemplated before they were withdrawn—115; firearms offences, 1; sexual offences, 1, and others 8. No action was taken in any of those cases. A minority of the diplomats concerned—22 of them; because they were all known—left the country, and the remainder did not. I do not know whether, when the Minister of State comes to answer, she will be able to give us more up-to-date figures, because they would be interesting.
§ I come now to the St. James's Square outrage and the lessons it can teach us for a review of the Vienna Convention. The arms used there were either, first, bought or stolen in this country, or, second, brought in in the private baggage of a diplomat, which is immune; or, thirdly, brought in through the diplomatic bag itself. I think that the first possibility is the least likely. The second possibility does not matter, because a diplomat's private baggage has less protection than a diplomatic bag, and if a country were to administer the convention more strictly in regard to arms the criminal diplomatic mission could simply move its means of import up one to the diplomatic bag itself, which enjoys a higher degree of protection. The diplomatic bag is indeed the essence of the problem.
Twice in the past 12 months Mr. Ray Whitney has answered written parliamentary Questions with the same words:
We are precluded by the provisions of Article 27 of the Vienna Convention on Diplomatic Relations from opening or detaining diplomatic bags".
§ This is so. But we are not precluded by that wording from doing certain other things to them, particularly x-raying them or scanning them by other sorts of energy, and, if we see that they are full of machine-guns, from taking the appropriate action.
Now what is that? Probably no better source of advice is available than Satow's Guide to Diplomatic Practice, which says:
The receiving state or the airline authorities may subject a bag to detector devices designed to show the presence of explosives, metals
or drugs, since this does not involve opening or detaining it, and if this test disclosed grounds for suspicion the airlines could decline to carry it".
§ I ask your Lordships to mark two points there. First, the receiving state—in this case us—may, and presumably does, know whether a given diplomatic bag contains guns; and, secondly, airlines have a duty to do the obvious thing—namely, to send the bag back. States do not even have a right to do this. So what is the obvious course for a receiving State? I suggest that it is to declare the offending ambassador, or one of his staff, persona non grata until his country stops sending arms through the bag.
§ At this point I shall make one observation about the intelligence ramifications of the present case. During the past few years it has seemed to me that, in the difficult decisions whether to protect the continued efficacy of their sources or to use the intelligence procured to prevent danger or harm to our people, officials have sometimes leaned too much towards preserving the sources.
§ The other great question which has been publicly discussed is the inviolability of embassy buildings. I would add to the discussion only by reminding the House of a case which may or may not be relevant. In 1973 the Government of Pakistan suspected that arms were being brought in under diplomatic cover and stored in the embassy of Iraq. They asked for the Iraqi ambassador's permission to search it. They were refused. They searched it all the same. They found that it was so. They protested strongly to Iraq. They expelled the Iraqi ambassador and withdrew their own. So at the end of the day they were just where we are today with Libya.
The Libyan Embassy was not a real embassy. There was no ambassador; there was no head of mission, as the Vienna Convention requires there to be. There was simply a committee which the Government decided to treat as if they were proper diplomats. I know that this was discussed among the Ten—the Prime Minister has emphasised it—and I know that the Ten agreed to accept these committees. But that does not make it any better. Article 11.2 of the convention says:
The receiving State may … refuse to accept officials of a particular category".
I may be wrong, but I should have thought that members of a four-man student revolutionary committee were officials of a quite particular category, and that the record of this category around the world was already well enough known. I hope that the Government will say something about their oddly-relaxed approach to the various Libyan innovations in diplomatic practice.
§ Terrorism is bad enough. Here we are talking about state terrorism. But Libya is not alone. Let us listen for a moment to the voices of state terrorism around the world, first from Tripoli itself. Here the voice says that the incident was Britain's fault because we did not prevent "stray dogs" from demonstrating. The British police, the voice goes on, influenced by Zionism and imperialism, organised an attempt to storm the embassy. Therefore Libya will form an alliance with the IRA, with branches in all Libyan towns. That, no doubt, will be of great interest to Libyan workers, soldiers and nomads.1450
§ More seriously, the voice from Tripoli specified that when the British embassy in Tripoli was searched after the rupture of diplomatic relations, 20 tins of what might be nerve gas were found in the presence of the Italian consul. It is worth pausing for a moment. Perhaps the Minister of State will be able to tell us what it was that the Italian consul did find when he searched our premises there.
§ Moscow of course backs Libya to the hilt. Here the voice says that the police-led assault on the office in St. James's Square was part of a scenario worked out in advance by the United States and other Western powers for a large-scale provocation against Libya. Moscow has also informed the world that when the Metropolitan Police went into the offices afterwards they found no arms and no evidence of shooting.
§ It is a world of state lies and secret state violence. What a comfort it would be if we could say to ourselves that at least the other super-power had clean hands! The Government have very properly condemned the United States for mining the harbours of a country with which it is not at war, and the world court has very properly endorsed this condemnation and ordered the United States to stop it. But the voice of Washington—it is that of the President's national security adviser—continues to claim a general right for the United States to do these things.
§ I come now to the review of the convention which the Government are undertaking. It takes place against the backgound of rising state terrorism. We do not urge the Government to seek a revision of the convention. Like all treaty revisions, it would be a Pandora's Box and would take many years. But plenty of other things can be done. Today's leader in The Times is helpful.
§ The convention is quite complex. It is by no means one-sided. It lays clear duties on diplomats—above all, the duty to keep the law of the receiving country. It also sets out the proper functions of an embassy. That is useful, because it can sustain the presumption that anything else is illicit and not protected. These are clear provisions. There is also quite a lot of long grass. Perhaps the Government should begin both to use the clear provisions more boldly and also to exploit the long grass from time to time against criminal governments.
§ The Government should also do whatever they can to get international support for a general stringency in the application of the Vienna Convention by receiving countries. My right honourable friend Dr. David Owen has suggested that there might be a United Nations resolution reaffirming the Vienna Convention. This could have the advantage of spot-lighting any country which abstained. It might not only be Libya. The Government should also take an initiative, with the Ten, which may lead to a declaration. Such a declaration may tend towards the idea that diplomats should be expelled in proportion to the gravity of the offence, starting with one junior person. An important point would be that we should give the reasons for these expulsions, and give them publicly. A tit-for-tat expulsion of a diplomat by the other side, without reason given, would not then seem to be so sensible.1451
§ There are many devices that one could think of, but the essence is this: that the St. James's Square outrage could be used as a rallying point to begin to collect as many countries as possible into a new and public move to apply the Vienna Convention as strictly towards the safety of the people of the receiving country as it is now, perfectly properly, applied to the immunities of the sending country's representatives. As formal war fades into history and as unofficial and official terrorism increases, such a move seems the least we can do. My Lords, I beg to move for Papers.
§ 5.59 p.m.
§ Lord Broxbourne
My Lords, may I begin with an apology to the House in general and to the noble Lord, Lord Kennet, in particular for having missed the opening of his speech. If it was of the same high quality as the rest of his speech. I have certainly been punished for my lateness.
I listened, as, I am sure, has the House, with great interest to the noble Lord submitting his Motion to the House. I nearly said "two Motions", because, though technically and in form, it is one Motion, in substance it is two. It is a dichomotic Motion which is appropriate to this Session of this Parliament in which we are dealing with dichomotic Bills. The Housing and Building Control Bill and the Rates Bill are dichomotic, and now we have a dichomotic Motion. The general part of the Motion deals with the Vienna Convention on Diplomatic Relations. The second part of it deals with the activities of the Libyan terrorists. I dare say the House will be relieved to know that I propose to confine myself to one part only: to the question of the convention and possible action in regard thereto.
Two matters arise on this question. First, the content, effect and adequacy of the convention; secondly, the desirability and practicability of action to change and improve it, in so far as that is needed. As your Lordships will know, the convention, after a long gestatory period, came into force on 24th April 1964 and was proclaimed by Article 48 to be open for signature by all members of United Nations. It was ratified by the United Kingdom in 1964 and necessary provision was made in our British municipal law in that year.
Whatever view is taken of the content of the convention and the possibility of abuse, it must be said that it is clear, it is concise, it is comprehensive, and it is categorical. Thus, Article 22 requires that the premises of the missions shall be inviolable and immune from search, requisition, attachment or execution. There is a similar provision in regard to the private residences of the diplomatic agents in Article 31. Article 24 ensures the inviolability of the archives and documents of the mission.
Article 27 requires, in similarly unqualified terms, that the diplomatic bag shall not be opened or detained; and Article 29, that the person of a diplomatic agent shall be inviolable and not liable to any form of arrest or detention—with a further immunity from criminal proceedings in the receiving state under Article 31. There are many more provisions in the 53 articles of the convention, but 1452 those are the key provisions, and they are all crystal clear in their effect and in their drafting.
Two points strike me about those provisions. The first is their clarity and categorical nature—all absolute and virtually unqualified. The second is their one-sidedness. There is a formidable array of rights, privileges, immunities and safeguards without any corresponding reciprocal obligations. The reason for this is perhaps twofold. First, there is a reciprocity deriving not from the content of the convention but from the dual nature of the parties' signatories thereto. Each party—each signatory, each state—is both, in the language of the convention, a receiving state (in which capacity it must assume the obligations imposed upon it) and a sending state (in which capacity it has the benefit of those same provisions).
The second reason, I would think, is that there is an assumption underlying the convention that signatories will observe the lex gentium; that they accept an implied obligation to use the rights and immunities conferred with propriety and not abuse them. This obligation exists by necessary implication and is not spelt out in the convention. Presumably this is because—as is the case with so many implied terms—it is thought to be so obvious not to require expression. The noble and learned Lord. Lord Denning—from whom we shall be hearing, I am pleased to say—will recognise the test of what in the courts is called the "official bystander", as will the noble and learned Lord, Lord Wilberforce. I only wish that we were to have the privilege of hearing from him, too.
Unfortunately, in a convention so precise in its specification of rights and immunities, there is, apart from an oblique reference in Article 45 to breaking off diplomatic relations, no express provision for remedying and correcting breaches of the fundamental implied condition not to abuse those rights and privileges. That is the heart of the present problem which the noble Lord has presented to the House.
This brings us to the second main matter—the practicability of action to change and improve the convention in order to cure this weakness. This brings me to the other Vienna convention (because there are two of relevance in this context); the Vienna Convention on the Law of Treaties, ratified by the United Kingdom in June 1971. There is a very large number of signatories but it does not, I think, include Libya nor. as far as I know, in effect any of the Soviet bloc or the Soviet itself. Nevertheless it is, one would suppose, basically a codification and statement of principle applying to the conclusion, validity and interpretation of international law. It is to its provisions that we must look for the arrangements governing amendment and the possibility of giving effect to them.
The basic provisions are to be found in Articles 40 and 41 of the Vienna Convention on the Law of Treaties. It is the provisions of Article 40(2) which present the difficulty in regard to any amendment of the Vienna Convention of Diplomatic Relations. With great respect to the noble Lord, to review a convention is likely to be a somewhat academic and sterile exercise if it will not lead to any amendment and improvement.
1453 Article 40(2) states:Any propsal to amend the multilateral treaty as between all the parties must be notified to all the contracting states, each one of which shall have the right to take part in the decision as to the action to be taken in such a proposal".So one sees that there is in effect a requirement of total notification and also of unanimity before one can hope for any amendment of the treaty. That is so because, as your Lordships will see from reading Article 40(1),Unless the treaty otherwise provides, the amendment of multilateral treaties shall be governed by the following paragraphs".In other words, that it mandatory; there must be notification and there must be unanimity.
The problem is clear. The countries most likely to abuse the provision of the Vienna Convention on Diplomatic Relations are those most likely to withhold consent to its amendment. It is true that Article 41 provides the possibility of separate, ad hoc amendment which would apply only to the two or more countries concluding the specific agreement to modify. Indeed, that would be possible, in theory, in the case with which we are seeking here to deal.
The possibility of an ad hoc agreement between two countries to modify, so far as they are concerned, would be a specific course open to us in regard to any other country or group of countries—but again it is likely to remain a theoretrical possibility because the countries most likely to abuse the provisions of the convention would be those least likely to enter into an agreement of that kind.
The noble Lord, Lord Kennet, mentioned Article 11 in subsection (2) of the Vienna Convention on Diplomatic Relations. That would provide some possibility of improvement, but only to a limited extent. Only one other possibility occurs to me, and it arises from the annexe to the Convention on the Law of Treaties. This annexe provides for a panel of conciliators of "qualified jurists"—a term much beloved by continental lawyers—and for the setting up of a "Conciliation Commission" in particular cases. Such a commission would be drawn from the panel and set in motion by the Secretary-General of the United Nations. It then decides upon its procedure, including the opportunity for oral or written submissions, and comes to a decision. But, again, that decision is not binding on the parties and constitutes, according to the convention, only a recommendation.
Clearly, therefore, that also is not very hopeful as a solution but is possibly, in the time-honoured jargon, an avenue to be explored. There is the same basic difficulty as with an ad hoc agreement to modify or amend under the other Vienna Convention—the states or parties in regard to which one would wish to apply the procedure are those least likely to agree or, having agreed, least likely to accept any decision not to their liking.
Therefore, I fear that one comes to the conclusion that the position in respect of the improvement and amendment of the Vienna Convention on Diplomatic Relations is neither easy nor promising. The difficulties are clear. You can only bind sovereign states if they are willing so to be bound. You cannot impose goodwill but only invite it and hope for it in return for your own. Our forbears realised the truth of this. They realised that good international relations could only be based on an unquestioning and 1454 unconscripted adherence to what they called the Law of Nations.
It was, perhaps, easier in a way then; in a smaller world with fewer nations. Today there are many nations varying vastly in both experience and good will. Improvement by way of textual amendment of the Vienna Convention is likely, therefore, to be difficult if not impossible. Therefore, we must promote as best we may, and strengthen by all means open to us, respect for the lex gentium and regard for international law by our own actions and representations in the United Nations, the Commonwealth, the European Community and in our bilateral dealings with individual nations. That is perhaps the best, and indeed it may well be the only, way.
§ 6.12 p.m.
§ Lord Denning
My Lords, a few weeks ago a most wicked crime was committed in one of our public places—in St. James's Square. It was in England that it was committed. A woman police constable was murdered but the criminal went free. He was not arrested. The premises from which the shot was fired were not searched. It is said that the miscreants had diplomatic privilege under the Vienna Convention. I do not believe it. Those who interpret the Vienna Convention in that way are entirely wrong. The Vienna Convention was made, by the Diplomatic Privileges Act 1964, part of our English law. It is to be interpreted and can be interpreted again by our English lawyers just the same. It starts off with a word known in international law but very little known in our English law. It states that the premises of the embassy, or whatever it may be, are to be "inviolable". It adds that the person or the diplomatic agent is to be "inviolable". Does that mean without exception? Under the preamble to the convention it is said that it is only the expressed terms that apply, but still the old customary rules of international law go with it. Article 41 of this convention states:The premises of the mission must not be used in any manner incompatible with the functions of the mission as laid down in the present Convention or by other rules of general international law".The mission was being used in contravention of every elementary principle of international law.
Let me take the first instance—the personal privilege of the ambassador or the diplomatic agent. Article 29 states:The person of a diplomatic agent shall be inviolable. He shall not be liable to any form of arrest or detention. The receiving State shall treat him with due respect and shall take all appropriate steps to prevent any attack on his person, freedom or dignity".Is there not a correlative to that? If we are to protect him from any attack, surely he is not allowed to attack us; to attack our personal freedom or dignity by firing weapons and guns from the embassy. Let me take illustrations from our international law and quote Hugo Grotius—almost a founder of it. He gave the illustration that if an ambassador attacked a man, that man in self-defence could kill that ambassador. Grotius himself said that. It is the principle of self-defence. So did Oppenheim in his later edition of International Law, or the more modern ones. There is the exception of self-defence in the case I have given. There is the exception of emergency. The drunken diplomat with a loaded gun in a public square: is he not to be arrested? Is he not to be detained? Cannot 1455 our police deal with such a position? Clearly they could.
There is the principle of self-defence; the principle of emergency and, indeed, there is the principle which Dr. F. A. Mann pointed out in a letter to The Times. Supposing an ambassador goes out with a machine gun and starts shooting down people in a public street? Is he entitled to privilege from arrest or detention? It cannot be. There are exceptions written by international law for this convention which were not put in but ought to have been put in.
I have dealt with the personal position of the ambassador or the diplomatic agent himself. But what about the premises, the mission where he resides? Are those premises inviolable? Article 22 states:The premises of the mission shall be inviolable.It goes on to say:The premises of the mission … shall be immune from search, requisition, attachment or execution".That is what the convention expressly says; but impliedly international law writes in the exceptions. If an embassy is on fire and likely to spread to adjoining premises are not our firemen and police entitled to go into that residence or that mission to put out the fire and save the houses next door? If there is a gunman inside shooting and firing at our ordinary peaceful people outside, are we not allowed to go in? If you plead the principle of self-defence, or whatever exception one calls it, we are entitled to search the premises and arrest the miscreants and prevent these crimes from being committed.
As my noble friend. Lord Kennet, said, when in 1973 Pakistan discovered that the Government of Iraq had hoards of arms in its embassy the Pakistan authorities were quite right and entitled to go in—despite what Iraq said. They did go in and found hoards of arms there. This so-called principle of inviolability is subject to many exceptions in international law which are written inpliedly into the convention when the position is abused by those of the sending authority. I have dealt with that.
Neither does the diplomatic bag have all that much exemption. That is also covered by Article 27. It is true that it says:The diplomatic bag shall not be opened or detained".It goes on to say:The packages constituting the diplomatic bag must bear visible external marks of their character and may contain only diplomatic documents or articles intended for official use".Supposing that provision is breached, and the diplomatic bag contains narcotics, bombs or whatever else it may be. It seems to me that that provision does not prevent proper steps being taken to discover it, whether by scanning or whatever else. Such action is perfectly lawful for our authorities. They need not actually open the bag these days. By scanning and other scientific means they can well see things. We have these things at the airports. They can well see whether there is any metallic substance or the like there.
I have gone through the terms of the convention, because, as I said, they are part of our English law, but what is to be done? I know the difficulty of the position. If we had taken steps here, what would have 1456 been done by those others in Libya to our own residents there? Would they play just tit for tat. I do not know whether they would or not. But on the other hand, I can see the difficulty, which is why the decision was not taken, as I suggest it could have been, to enter the premises, seize, search and arrest.
But if I am wrong about that, what is to be done? As my noble friend Lord Broxbourne says, it is not much good trying to review this convention and get all the states of the world to agree to a modification. Let us do all that we can. One thing that has occurred to me is that we could take the advisory opinion from the International Court of Justice. It could say whether the exceptions which I have indicated are existent in international law. It could say whether those exceptions which I have indicated are correct or not. If the International Court of Justice affirmed that, you would have guidance for all the countries for the future so as to know what could be done.
Otherwise, there are other means. As my noble friend Lord Kennet said, we can do everything we can by co-operation with others to stop this evil of our day—this international terrorism. All I would say is that, as I view this Vienna Convention, and as I view the Diplomatic Privileges Act, they did not give privilege to those criminals who were shooting from the embassy in St. James's Square.
§ 6.22 p.m.
Lord Paget of Northampton
My Lords, may I first apologise to the noble Lord, Lord Kennet, for missing his opening passage. This debate came on rather suddenly, but I am extremely sorry that I missed that. May I also express my pleasure at speaking after the noble and learned Lord, Lord Denning. In the old days I often spoke before him, but this is my first experience of speaking after him. May I also add how much I enjoyed his version of the law and how, as on many other occasions, I wished that his version of the law was the law, but on this occasion I am afraid that I cannot go quite as far as agreeing with him as to what the law on this matter is.
As the noble Lord, Lord Broxbourne, said, there are two branches to this. The first is the security question. I feel that so often the needs of protecting security are simply an excuse for bad behaviour. But there is one form of security which it is essential to protect, and that is sources—where the statement of a fact is likely, or even certain, to disclose the source you got it from. One of the papers—I think it was the Daily Telegraph—said that we had been informed by the Americans that the Colonel had sent a message (a telephone message or a signal) to the embassy, instructing it to fire on demonstrators if any appeared before—they do not call it an embassy—the People's Bureau. Was that true? If it was true, I would certainly regard that as the most shocking breach of security. It would inevitably tell the Libyans that the Americans had their code, and it would also tell the Americans that we were quite insecure to give information to. If it is not true, I feel that the newspaper in question should be rather severely dealt with.
The other point is the broad one which I think all the other speeches have dealt with, and that is the amendment of the Vienna Convention. On this I find myself in entire agreement with Lord Broxbourne. You cannot conceivably get universal agreement to 1457 any kind of amendment which would be the slightest good, because you have to get agreement from the lawless states to a new restraint on lawlessness. You really cannot get agreement to the stiffening of criminal law from a convention of burglars, which is what we are being asked to do here.
If you cannot amend the situation there, what is one to do about it? The assassin states have been rather my King Charles's head. The use of assassination as an instrument of government policy is something which has only really come in in the past 10 years. It began in the most ancient history. There was the king and his assassins whom the crusaders knew as "the old man in the mountain". He was a fellow student of the great Persian poet Omar Khayyam. He said, "If I can get 10 men to obey me absolutely, I can rule the world", and he sought for his 10 men. He sent messages to the various potentates, "Do this, or I will send my assassin". As the assassins had been totally convinced that they went straight to heaven afterwards, they were extremely effective, and this regime lasted for 300 years, until the Mongols rooted it out. I believe that that is frankly the only treatment for it.
But here we have a situation in which there are a number of assassin states, and Libya is only the most noisy example. Assassin states proclaim themselves. It is part of the game. There is not much point in being an assassin state if you cannot threaten assassination and be believed. So we know who these assassin states are, and what form of representation we give them is within our discretion.
It would probably be very desirable to get together with what used to be called the "great powers", the leading states, and say that in the case of certain powers and certain states representation should be confined; they should not have the width of a Vienna Convention. It should be a matter of limited convenience without the security of a diplomatic bag, in which both arms and dope can be smuggled. Certainly when I say that I would include Russia among the great powers with whom we should consult, and who I think certainly finds the behaviour of assassin states as awkward and embarrassing as we do. I do not see why we would not have a common interest with Russia here.
I do not think that we have ever had trouble with the Russians bringing in arms in their diplomatic bags or bringing assassins into this country to do their job. Of course, there has been talk of spying. Well, the job of a diplomat is to get information for his government. What is obtaining information and what is spying is very marginal. All states and embassies stray a bit on the borderline here.
That is not what we are thinking about. This is a question of infiltrating assassins, infiltrating arms, treating the whole relationship of diplomacy in a manner totally contrary to its spirit. I believe that here is the point where we ought to work to get an association of the great powers, all of whom have a common interest in this, and say that we are going to have two levels of representation. As to the second level of representation, we would work out a common agreement as to what we would grant and what we would not grant to our visitors. If we got together and did that, countries such as Libya could decide whether or not they want to send a representative on those 1458 terms. The convenience to their trade would be such that I think representation, even on second-grade terms, would for these smaller states be of considerably more value than none at all, provided that they knew it was the best they could get.
However, I do not believe that we can have a general amendment to Vienna. You cannot get through rules to which the burglars would not agree. We have got to have a great power get-together on a very dangerous change in world society which it is in all our interests to stop.
§ 6.33 p.m.
§ Lord Molson
My Lords, I am sure that all your Lordships will agree that the noble Lord has done a good service in raising this important matter for discussion in this House. It is not only a matter of the utmost importance but one upon which public opinion in this country is deeply moved. It is right that your Lordships should debate it. If the debate were not distinguished for any other reason, it certainly would be distinguished and remembered because of the speech to which we have just listened from the noble and learned Lord, Lord Denning—by common acclaim one of the great judges of his time. He has always stood, as indeed he made clear in one of his books which I read with interest and admiration, for the principle of justice, rather than for any pedantic adherence to the letter of the law.
I believe that that principle inspired his speech today. Not all his judgments have met with the agreement of all his learned brothers, especially noble and learned Lords who sit in this House. I did notice that when he expressed views which were not those which I think were adopted by the right honourable gentleman the Home Secretary—who is himself a very distinguished barrister—the noble and learned Lord did remark, when he was construing the words of the Vienna Convention, that there were words dealing with self-defence and so on which they did not put in but should have.
So it may well be that, as regards the view, which I think is the more conventional view amongst lawyers, that we were prevented by the Vienna Convention from doing what I am quite sure all of us would have liked to do, this is one of the cases where the noble and learned Lord would like to see justice done rather than the letter of the law observed. I thought that a most valuable constructive suggestion of his was that this whole matter should be referred to the International Court of Justice.
Anger, however justified, is a bad counsellor. I feel that the Home Secretary, who had the handling of this matter, conducted the affair impeccably. It is a fortunate thing that the only police force in England which comes directly under the Home Secretary is the Metropolitan Police Force. Therefore the responsibility rested clearly upon the Home Secretary, who I believe behaved and conducted the affair extremely well.
I should never dream of being so presumptuous as to argue with the noble and learned law Lord about law or international law, but it happens that a number of yeas ago I had a conversation with the late Lord Strang, who, as your Lordships will know, was a very distinguished Head of the Foreign Office. I was 1459 discussing with him the matter of diplomatic immunity. The view that he took, which was not that of a lawyer but that of a practical diplomat, was that it was of the utmost importance for us to obey the strict letter of international law and especially of the Vienna Convention. He pointed out, without mentioning any names, that there were a number of countries, which would be only too glad to violate the principles of the Vienna Convention if they could find any excuse for so doing. If we departed from the letter of the Vienna Convention we should not only invite reciprocal treatment but it would open the way for things far worse than anything we had contemplated.
So far, I have been dealing with the first part of the noble Lord's Motion. As my noble friend Lord Broxbourne pointed out in his erudite speech, there are in fact two separate Motions. The second calls for an independent inquiry. I hope, and I am confident, that the Government will resist any such demand. We have had an assurance that the Government will go into the whole matter and consider carefully whether there was any failure in our security arrangements or in the transmission of any information that came to us, to the police and to other people concerned. I am quite confident that the Government will learn all the lessons that can be learnt from that internal inquiry.
I do not take that line merely because it is a Conservative Government. I should take exactly the same line if it was a Labour Government or an Alliance Government. I think that we can rely completely on any British Government, after such sad events, to go into the whole matter and see whether any useful steps may be taken to prevent a recurrence of anything of the sort.
It is deplorable that, owing to a number of events in the last few years, so much has been disclosed of the operations of security organisations in this and in other countries. If there were any independent inquiry, I feel that there would be the greatest danger of information being conveyed that ought to be kept secret. I feel confident that the Government will continue to handle this matter as they have done so far, in a wise and prudent manner.
If I have ventured to express views that differ from those of the noble and learned Lord, it is not because I would be so presumptuous as to question his legal interpretation. But this is a matter that politicians and statesmen have to consider. The danger of departing from the safeguards of the Vienna Convention would be far greater than any satisfaction that we might have obtained by taking more drastic action. As my noble friend Lord Broxbourne has pointed out, the terms of the Vienna Convention are incorporated in our statute law. Even if an attempt had been made to bring the murderer to justice, he would not have been convicted, I am sure, by any British court. The Government followed, I think, the only line they could.
§ 6.43 p.m.
§ Lord Gladwyn
My Lords, I am not altogether certain that I speak on this particular point with the agreement of all my noble friends in the Alliance. But, personally speaking, at any rate, there seems little or no purpose in endeavouring to get agreement on some revision of the Vienna Convention. In this respect, I 1460 agree with the noble Lord, Lord Broxbourne, and other noble Lords. It would be a field day for the 141 celebrated, international lawyers who would take part in such a conference. But what prospect of success could there possibly be? Clearly, the countries of the Communist bloc would not want to change the rules governing diplomatic immunity from which they profit so much, notably in financing and encouraging Communist parties all over the world. No more would those countries which see advantage in using the bag to import illicit articles—-even, conceivably, arms and ammunition. Quite a number of small or very small states would equally object—the bag, and immunity generally, no doubt representing in practice a useful adjunct to the standard of living of their representatives and their staffs. If any action is to be taken to reform the existing system, it must presumably be taken either by us alone in defiance of the convention, accepting, of course, any retaliation that might arise, or, preferably by a group of states acting together—for instance, the European Community of which we are a member.
I suppose that our greatest objection to the present system is that it can be used or misused by terrorist organisations for terrorist purposes. Nor can we ignore the fact that this danger is likely to increase with the passage of time. It is not only the problem posed by crazy rulers like Colonel Gaddafi, who seems resolved to exterminate enemies wherever they may be found and by whatever means available. It is also the problem posed by terrorist groups which may, by one means or another, in the next decade or so, get control of some diplomatic bags. We are told, for instance—and I have checked this with someone in the International Institute for Strategic Studies—that nuclear bombs or devices exist that are not much larger than a six-inch shell but which could nevertheless flatten the whole of Whitehall together with much of Westminster. What would happen if we were told that one had been planted here and would go off unless certain demands were met?
Such a device might be introduced already assembled in the boot of a car. But the terrorists concerned would no doubt prefer the comparative safety of the diplomatic bag provided that the bag was always exempt from what is called "scanning". Whatever the limitations of scanning, it could presumably always be relied upon to detect radiation emanating from any nuclear device. But it is obvious that there would be no point in scanning at all unless it was the intention, if anything suspect was noticed, to open the bag in order to see what it was. Even if this was done in the presence of a representative of the embassy concerned, it presumably would be a breach of the Vienna Convention. As noble Lords have said, the convention is absolutely specific. Article 27 lays down flatly that the diplomatic bag shall not be opened or detained apparently in any circumstances whatever. So this rather awkward fact must be recognised from the start if this method of scanning to check for the possible importation of arms by diplomats is to be the answer. Myself I hope that it will be eventually adopted.
I should also have thought that there was a case to be made out for limiting the weight of diplomatic bags to some agreed amount. I have not read the 1461 convention perhaps with sufficient care, but I would have thought that a weight limitation was permissible under the convention. After all, what is essential for any diplomatic representative is the ability to communicate with his government by both written and telegraphic means. All that is stricly required for this particular purpose is the use of a sealed bag for the transmission of correspondence as well as, one must presume, in modern conditions, the occasional conveyance of machines in order to encipher telegrams and that is all, really.
Beyond freedom from arrest, there is no further reason in equity why diplomats should be exempt, for instance, from customs duties or, for that matter, exempt, save perhaps for the head of the mission, from the payment of fines for parking offences. But if in defiance of the Vienna Convention we were to institute such reforms as these, or anything like them, we should have to face retaliation by governments all over the world, and presumably they would apply the same rules to our diplomatic mission in their countries. Would this really matter very much? I only ask the question. Would it not mean only that we should have to pay our diplomats rather more than at present? I cannot see that otherwise our national interest would be unduly damaged. Still, I suppose that in practice that sort of action would be out of the question as things are. Are we then debarred from taking any unilateral action, and no doubt illegal action, at all? I suppose so, in principle, but certainly I should make an exception of scanning, for the reasons I have given. That is the main thing we want to do on our own or in collaboration with our friends. Even here, if the operation resulted in the presumption that a bag contained arms or, still worse, nuclear material, as I say, the bag would have to be opened in the presence of a representative of the mission concerned.
An alternative or additional course would naturally be for us to decide to have no diplomatic relations with any state which on the face of it was in any way encouraging terrorism or was known to be in touch with terrorist groups. At least this would have the advantage of being something that we could do without any violation of the Vienna Convention. It might well be, as possibly may be the case with Libya, that mutually advantageous trade could still be carried on without any diplomatic or consular assistance. Surely we can also quite legitimately reduce the size of diplomatic missions; I am sure that would be in accordance with the Vienna Convention. Presumably we should also not hesitate to declare persona non grata any member of any mission who we consider has violated the law or committed any offence. I should hope that we do so increasingly. That would also be in accordance with the convention.
I believe that the Government intend to discuss the general subject of how to defeat efforts to use diplomatic facilities for the propagation of terrorism with our associates in the Community and presumably also with our colleagues in NATO. I am sure this is right and I can only wish them well in their efforts. All I would repeat is that I trust that they will not encourage any idea of a general conference, no doubt to be held under the auspices of the United Nations, for the revision of the Vienna Convention; and not discourage any proposals for at least some minor 1462 revisions such as scanning—if we can call that a minor revision—which might be adopted, at least by ourselves and our friends, even if it is to constitute a technical infringement of the convention, which already has been overtaken by events and which in legal language might even be said to be subject to a Statute of Limitations! For the reasons I have given I think this is about all we can do at the present time.
§ 6.54 p.m.
§ Lord Harris of Greenwich
My Lords, it has been commonly accepted that the matter we are discussing today has deeply shocked public opinion in this country and in many other countries as well. That is the circumstances in which a young policewoman was shot down in St. James's Square and shortly thereafter we were compelled to escort the murderers to London airport and see them safely on to a plane to take them back to Libya
It is commonly accepted by all who have spoken that a review of the Vienna Convention raises formidable problems. Quite apart from anything else, as has been said by almost everyone who has spoken, some of the states who are keenest on assassinating their opponents as a means of conducting their day to day business would be represented at such a conference, and so would the Soviet Union and its allies. By no means could we be sure that we should necessarily secure agreement at such a conference.
Nevertheless, the fact is that clearly we have to take some form of international action to deal with the situation that has developed. I think that what the Foreign Secretary has been doing in recent days with our colleagues in the European Community is a valuable first step. I hope that will be followed—I should be grateful if the noble Baroness could confirm this—by an early meeting in the series of meetings which take place between the Home Secretary and Ministers of the Interior of the European Community, where, presumably, these matters can be taken a stage further.
But there are one or two matters which have already been identified in the course of this debate and which require our urgent attention. One is the issue touched on by my noble friend Lord Gladwyn—the question of scanning diplomatic bags. The noble Baroness will recall that a few days ago we had an exchange in the House on this matter. I wonder whether or not she is able to report any developments on this question since that exchange. I think the noble Baroness conceded on that occasion that we were not precluded by the terms of the Vienna Convention from scanning diplomatic bags. If that is so, it seems to me, for the reasons stated by my noble friend Lord Gladwyn, that the sooner we do it the better. Presumably that is one of the matters we would wish to discuss with our colleagues in the European Community.
Secondly there is the question of the International Court of Justice, which was touched on by the noble and learned Lord, Lord Denning. It seems to me that that is exactly what we should be considering at the moment. I find it extremely difficult to understand what is the argument against going to the International Court of Justice. As it happens, Libya itself has recently been a party in an action before the International Court of Justice, though obviously on a 1463 wholly different question. I realise that this matter must have been considered by Ministers and I am sure we should be glad to know whether the Government are proposing to take any action along these lines.
Having said that, I want to move on to deal with the questions of the intelligence appreciation of the Libyan threat before the events in St. James's Square and why in our view this necessitates an independent inquiry, either by Privy Counsellors on the lines of the inquiry which took place after the Falklands War or by the Security Commission presided over by the noble and learned Lord, Lord Bridge of Harwich. Again, it must be common ground that the Government must have realised what were Colonel Gaddafi's objectives. He could hardly have made them clearer. In February 1980 he declared that he proposed to liquidate his opponents living abroad. On 7th October 1982 he called on Libyans travelling abroad to become responsible for the elimination of Libya's enemies wherever they might be. Following his first statement in 1980, terrorist attacks commenced against Libyan exiles living throughout Western Europe—in Germany, in Italy and in Greece. As we know, in this country a well-known Libyan journalist was assassinated outside the Mosque in Regent's Park and two months later a Libyan lawyer was murdered in his London home. Two Libyan children were poisoned in North London and a student opponent of Colonel Gaddafi was stabbed to death in Manchester. And so it went on.
As the noble Baroness may recall, on 5th April this year I asked the Government what action they were proposing to take against the Libyan Government following the bomb attacks in London and Manchester which occurred in March and in which 29 people were injured. The noble Lord, Lord Elton, in his reply assured us at col. 794 of the Official Report for 5th April this year that:the Home Secretary and the Foreign and Commonwealth Secretary are determined to reply to them in the appropriate manner, should they continue to develop".That was the Government's position on 5th April this year. Ten days later Woman Police Constable Fletcher was murdered and 11 opponents of Colonel Gaddafi were shot down in the street in St. James's Square by automatic weapons fired from the people's bureau.
The Home Secretary has complained about people being wise after the event. I think that there is some truth in that criticism, because it is all too easy to minimise the serious problems that arise when one is handling a terrorist episode of this kind. Having been involved as a Minister in handling three of them, I am well aware of the great difficulties which face both the security forces and Ministers when confronted with these violent situations. And I know how infuriating it can be to reply to criticisms from those who do not always recognise the limited amount of information which is available at the outset of one of these incidents; the risks to innocent lives if there is a single error of judgment committed by anyone—policeman or Minister; and the great problems that arise (and I can remember this in relation to one of these incidents) if foreign nationals or a foreign government are involved. Speaking for myself, I accept all of that without any degree of hesitation. But I fear that it does 1464 not begin to deal with the criticisms that have been made about the failures of our intelligence appreciation of the threat posed by Colonel Gaddafi's agents in Britain, and about the use made by them of the Libyan People's Bureau over the last four years.
Why did the Government not recognise the threat posed by the Libyan People's Bureau in London? We all now know that it was packed with firearms and ammunition and almost certainly with explosives, which were, of course, sent back by diplomatic bag before the diplomats left our shores. How could it be that there was such a failure to recognise the central role of the bureau in the terrorist operations which were conducted against Libyan exiles living in the United Kingdom? The present Government had already been compelled to expel a Libyan diplomat—and that they certainly did—because of his enthusiastic public endorsement of Colonel Gaddafi's campaign to liquidate his enemies in this country. I wonder whether it really could have been assumed that Colonel Gaddafi was such a keen student of the Vienna Convention that he would have prohibited absolutely the use of those premises to store weapons, ammunition and explosives? What did the Foreign Office really believe was going to happen when Libyan students took over the People's Bureau in February of this year?
And what about those so-called students? A few were, it is true, and it is right to recognise this, ordered to leave the country by the present Government. But I do not believe—and 1 suspect that the Government would now share this view—that this in any way dealt with the scale of the Libyan threat in this country. There was ample evidence that the hard core of terrorists, in the four years of Colonel Gaddafi's campaign in this country, described themselves as students. Some of those people had presided over the hangings of students opposed to Colonel Gaddafi in Libya. Some of them were pretty middle-aged students—gentlemen in their late 30s—but they were still allowed to enter the United Kingdom on student visas and to remain here, despite the growing evidence that a number of them were involved in the campaign of violence in this country.
Let me take the example of just two of these gentlemen: Mr. Baghdadi and Mr. Mabruk. Both were described as students and were admitted to this country in 1982. Both were given extensions of stay, and both were deported by the Home Secretary immediately after the events in St. James's Square. According to the noble Lord, Lord Elton, in a Written Answer which he gave to me on 9th May at col 1003, they were granted extensions of stay:on the production of evidence of enrolment in full-time academic courses and of adequate funding".I am sure that they had adequate funding. There has never been any shortage of adequate funding as far as Colonel Gaddafi is concerned when he is contemplating terrorist operations outside Libya.
But what steps were taken to verify that these gentlemen were students and that they were not involved in this campaign of terror? I realise that this raises a question outside the departmental responsibilities of the noble Baroness and I apologise to her for raising this issue. Nevertheless, it is central to the question of our intelligence appreciation of the 1465 Libyan threat. I am well aware, having been a Home Office Minister for a number of years—although not having dealt with immigration policy in that time—of the great problems which face our immigration service and the genuine attempts which are made both by officials and by Ministers to have a fair policy in all respects. Sometimes they succeed and obviously very often they fail.
However, having said that, I still find it hard to understand the order of priorities. An immense amount of official time was consumed—and I am just putting forward two illustrations—in running to earth Mrs. Begum, a woman who was granted entry clearance in 1982 to join her husband in this country. He died, and after a prolonged investigation and search for this lady she has now been thrown out of the United Kingdom. There is also the case of Mr. Pereira, who has been threatened with deportation having been made redundant, despite the fact that he had lived in the United Kingdom for six years and has a child born here. Again, I repeat: I recognise the genuine problems facing Ministers in dealing with immigration cases and I do not want in any way to minimise them. But what I do question is why such substantial resources were devoted to cases of this character when so many so-called students from Libya with close connections with the Gaddafi regime had so little difficulty in entering the United Kingdom. Certainly a few were expelled; that is true. But again, the numbers in no way correspond with the seriousness of the terrorist threat.
I return to the point which I made earlier. I find it rather difficult to understand why so many misjudgments were made and why we took such a remarkably passive attitude before the events in St. James's Square. Colonel Gaddafi's threats against Libyan exiles in this country were clear and specific; and his gunmen implemented those threats with enthusiasm. Our intelligence services were, of course, well aware of this, and of the scale of Libyan operations in other parts of the Western world. In one country after another, Libyan terrorists have been responsible for committing terrorist outrages. Colonel Gaddafi backed the international terrorist known as Carlos, who was responsible for the attack on the OPEC ministerial meeting in Vienna and for many other terrorist attacks throughout Western Europe. Colonel Gaddafi has trained and financed IRA gunmen responsible for the slaughter of so many innocent civilians and servicemen in Northern Ireland.
Quite apart from the evidence available to our intelligence services, a great deal of this information is available to newspaper readers, because Colonel Gaddafi has never made any effort to disguise his objectives. In addition, I must tell the noble Baroness, Libyan exiles in this country claim—and I repeat "claim"—that they sent direct warnings about the scale of the Gaddafi threat to both Ministers and Foreign Office officials.
I realise, of course, that one has to analyse information of this kind extremely critically. But is it right—and the noble Baroness may be able to help us, or, inevitably, she may not—that the National Front for the Salvation of Libya (which is an organisation which, as she knows, is regularly in correspondence with Ministers) specifically warned the Government in 1466 July of last year about a meeting of revolutionary committees addressed by Mr. Sodani, one of Colonel Gaddafi's principal agents in the United Kingdom, and attended by 60 so-called students at various centres of education throughout the United Kingdom?
This meeting had one central objective: to draw up detailed lists of Colonel Gaddafi's opponents in the United Kingdom. Subsequently, I understand, the organisers met again at the Libyan official residence, where they were joined by four of the so-called student leaders who took over command of the embassy in February of this year. Later still, a number of accredited Libyan diplomats, including the consul, the cultural attaché and the head of security at the embassy became involved. The question remains: were we aware of this? The Libyan exiles claim that they told the Government at the time. I have no idea whether that is accurate or not. That is their claim. If they told the Government, what action was taken?
I recognise in discussing matters of this degree of sensitivity that no one outside a small group of Ministers is in a position to know how much intelligence we possessed about Libyan operations in this country, and whether it had been made available to them. But after so many serious failures in our intelligence services during the lifetime of several Governments—by no means exclusively the present one—I just do not believe that it is right, as the noble Lord, Lord Molson, suggested in his speech, that we should simply leave this to Ministers. That is far too easy a way out.
What I believe is necessary, as I said at the outset, is that we should either have a Committee of Privy Counsellors on the lines of the inquiry which took place after the Falklands war, or that the matter should be referred to the Security Commission presided over by our colleague the noble and learned Lord, Lord Bridge of Harwich. That is necessary. What we are not interested in is simply a relentless search for scapegoats. What we want to ensure is that some group of responsible people establish where the weaknesses existed so as to ensure that early remedial action is taken, and thus we can begin to restore a confidence in the intelligence services of this country which has I am afraid, been fairly seriously damaged in recent years.
§ 7.14 p.m.
§ Lord Cledwyn of Penrhos
My Lords, we are all grateful to the noble Lord, Lord Kennet, for initiating this debate today and for the thoughtful speech with which he opened it. Other noble Lords have made constructive contributions. I think we are all agreed that the events of 17th April and the following days have had repercussions that will continue for a long time to come. The tragic and unnecessary death of Yvonne Fletcher showed that the world is an unpredictable and still largely uncivilised place, and that violence is just around the corner even in this relatively well-ordered society.
Our experience in April is only one example of the way in which international terrorism has spread over the last 20 years. Other countries like France and West Germany have suffered similar and even worse atrocities than we have, and if a long-term solution is to be found, then it must be by international 1467 agreement. In his Statement on 1st May the right honourable gentleman the Secretary of State for Foreign and Commonwealth Affairs said, at col. 211, that he was instituting,a full review of the Vienna Convention, its operation and enforce-ability".And we also note that the Select Committee on Foreign Affairs in another place are to investigate this and related matters.
I am glad that on Monday the Foreign Secretary raised the matter at the European Economic Community Summit of Foreign Ministers, and that a common code—I think that is the term used—for the Community is now to be considered and drafted. All this is very necessary because things have changed a great deal since the Vienna Convention came into force almost exactly 20 years ago on 24th April 1964. Those parts of the Convention requiring parliamentary approval were embodied in the Diplomatic Privileges Act 1964. During the Second Reading debate in this House on 11th May 1964 the late Lord Silkin made a significant remark. He said, at col. 44:Whenever there was a question … of extending diplomatic privileges, or of giving them to a bigger section of people coming into this country, this House has generally been critical".In the light of subsequent events, Lord Silkin was unusually prescient.
I think everyone agrees that to amend the convention would take a great deal of time, and we have noted that the Soviet Union would oppose any attempt to do so. In any event, it took centuries to obtain a convention, or to achieve a consolidation of a body of international custom which had grown over the years, and it might not be in our own interests to change it, at least without careful consideration of the consequences to us.
The noble Lord, Lord Broxbourne, in a characteristically able speech, defended the provisions which he summarised very well. It is not the convention which is at fault, but the way the convention is abused. What the Libyan authorities did on 17th April was to abuse the convention in a monstrous fashion. We must face the facts, which are that formal change would take a long time and would present great difficulties, as the noble Lord, Lord Broxbourne, has said.
We are, of course, aware that any weakening of the immunities under the convention would curtail the rights of diplomats in this country, but they would impose the same restrictions on our diplomats abroad. It is, however, essential to examine the way in which the convention is working and how its provisions should be tightened where necessary and if possible.
I understand that a number of unilateral measures are under consideration by the Government. Perhaps the noble Baroness would be good enough to comment on these when she replies. The first is that the power to declare diplomats persona non grata should be used more readily. That seems to me to be sensible, for the tendency has developed for some countries to fill their embassies with numbers out of all proportion to the size of their country or the functions they have to perform.
They thus enjoy important immunities of which 1468 some take undue advantage. The most simple example is diplomats' cars which are exempt from parking fines. I believe that there are 5,718 diplomatic cars in London, and the noble Lord. Lord Kennet. has mentioned the huge number of fixed penalty notices which were cancelled on immunity grounds. This is. I believe, being looked at now. but the question of examining the bona fides of diplomats has been under review for a long time. Mr. Douglas Hurd, when he was Minister of State in the noble Baroness's department, was talking about this—in June 1980. I hope that we can now define a new and more limiting policy on the number of diplomats.
I read the interesting article by Sir Anthony Parsons in The Times the other day. and I shall read what is a telling paragraph from that article. He said:My view is that the best remedy lies in a more vigilant scrutiny of the individuals seeking to enter Britain from states which, for domestic or ideological reasons, do not consider themselves bound by accepted international norms: whether those individuals are nominated as diplomats or as consular officials".That seems to me to be a sensible way to put it. We have the power to do this, to apply this limitation, and we should consider using it more frequently in the appropriate circumstances.
The second measure is a greater willingness to break off diplomatic relations. This is a much more serious step, and in his Statement the Foreign Secretary described it as "an exceptional event". We must, of course, agree with him. The consequences are always serious, the more so when there are British citizens in the country concerned, as is the case in Libya, where there are about 10,000 British residents. There are also the trading and commercial considerations and the likelihood that others are ready to step into our commercial and trading shoes. This factor has a distasteful aspect, especially where friends and allies are involved, and it makes the desirability of concerted action necessary, for example, within the European Community, where there should be clear rules of conduct between us. I hope that that will be the objective of the common code which is now being drafted. The Government were right to break off diplomatic relations with Libya, and I hope the Minister can assure the House that we have the full support of all our partners in the Community in this action.
The third measure is to scrutinise more carefully the usage of diplomatic buildings, and perhaps the Minister will comment on this as well.
The problems connected with the diplomatic bag have been discussed at length over the last few weeks, and noble Lords have referred to the problems. This is very natural. I am sure we were all curious about the contents of the voluminous bags which went back to Libya. We remember the case of the Moroccan Embassy employee who tried to smuggle one-third of a ton of cannabis into this country in a diplomatic bag. The "bag" in this case was a large crate. There have also been allegations that firearms have been smuggled into this country in the so-called "bag". The whole thing would be a farce if it were not fraught with so much danger for our own citizens.
This is an area which needs looking at carefully. Is the bag as sacrosanct as some make out? Article 27 of the convention states: 1469The diplomatic bag shall not be opened or detained".It does not, however, specify any definition of the bag other than that:The packages constituting the diplomatic bag must bear visible external marks of their character and may contain only diplomatic documents or articles intended for official use".This is far too wide. It means that a railway wagon or a cargo plane can be construed as a diplomatic bag if it carries the official seal.
Unfortunately, there are many loopholes to smuggling and, as has been said by a number of noble Lords, one suggestion has been the use of X-rays to inspect the so-called "bags". The Vienna Convention preceded widespread terrorism and the installation of X-rays in airports also preceded the convention. One has to have regard to the use of the term "inviolate" in the convention, and the question is whether the inviolability of the diplomatic bag under Article 27 precludes the X-ray.
It seems to me that what is needed is a more precise interpretation of the word "bag", because at the moment the fact is that the inviolability extends to the diplomatic crate and the diplomatic jumbo-jet provided that they carry the official seal. The Oxford English Dictionary defines "bag" as:a receptacle of flexible material with opening at the top"—of a kind which is normally used to carry official documents: not a jumbo-jet and not a railway train, even if it has the Libyan official seal. I am sure that the Government and the Select Committee will examine this area very carefully.
Noble Lords may be aware that this matter was debated in another place in the early hours of this morning, so the Official Report has not yet appeared. But I was able to obtain from the Library the reaction of the Home Secretary to a number of these matters. Perhaps I may quote him. This is what Mr. Leon Brittan said:There is no doubt that we have a problem and that there has been abuse of the diplomatic bag. There is no doubt also in my mind that the present position requires consideration".It certainly does. He went on to say in reply to another honourable gentleman:but for the record I should make it clear that I cannot accept his interpretation of the law, which is that it would be permissible under the law as it exists, or under the Vienna Convention, to open diplomatic bags. That is not so.He went on a little later:It is therefore clear, as a matter of construction and as a matter of law. that it is not permissible to inspect the diplomatic bag";and, further:Similarly, the proposal that scanning should be attempted and that if anything suspicious is shown the diplomat concerned should be required to open the bag or to return it cannot be carried out because of the provisions of Article 27".That was the view expressed by the right honourable gentleman the Home Secretary last night.
§ Lord Gladwyn
My Lords, would the noble Lord agree that, as I said in my speech, scanning is absolutely useless unless, having detected something in it, one has the right to open the bag?
§ Lord Cledwyn of Penrhos
My Lords, I am much obliged. I tend to agree with what the noble Lord, Lord Gladwyn, said in his speech.
1470 What we must now do is to study carefully what the Home Secretary said last night. I do not want to come to a snap decision on what the Home Secretary, with the advice of his lawyers, said, but I believe that the conclusions he came to were sweeping conclusions and must be looked at again.
Another point to bear in mind is that the Vienna Convention did not authorise foreign representatives to carry guns, and any of them found doing so should be sent packing forthwith.
Other suggestions which have been made and which deserve consideration are that positive vetting procedures should be introduced. These, again, are permitted by the Vienna Convention. The noble and learned Lord, Lord Denning, in a telling speech, made an important point. As I understood him he proposed that the absolute immunity given under Articles 22 and 2 7 should be brought under the higher and neutral jurisdiction of the International Court at The Hague. The convention will remain little more than a voluntary code until the International Law Commission at the United Nations begins to think along the lines of the noble and learned Lord. No doubt this is a proposal that the Government will wish to consider as well, and we shall be glad to have the reactions of the noble Baroness later on.
The second part of the noble Lord's Motion calls for an independent inquiry. I think the history of our relations with Libya in the period prior to 17th April justifies this request. When I asked the noble Baroness about an inquiry on 1st May, she referred to the internal Whitehall inquiry which the Government set up. Perhaps she can tell us how this internal inquiry is getting on and when we may expect it to report. As I said then, in a dangerous and delicate situation like the one at St. James's Square Ministers must make the best judgments they can on the advice they receive and on the events as they develop. After an initial slip by the Home Secretary, I think the Government conducted the operation satisfactorily. We did what the Libyans certainly did not do: we acted in accordance with the Vienna Convention.
The question at issue, however, is whether the Ministers concerned should have taken greater precautions prior to the shooting incident on 17th April, given the warnings that they received. The criticisms of the noble Lord, Lord Harris of Greenwich, are valid in the circumstances. It must now be doubted whether it was right to afford any recognition to the students who took over the bureau in February. Positive vetting would clearly have given them very short shrift indeed.
The Times, in a leader on 4th May, said this:The Police, the Foreign Office, the Home Office and MI5 have been aware for a substantial period of time that the People's Bureau … was a nest of terrorists".I agree with that conclusion, as all noble Lords do.
The midnight protests against the demonstration both in Tripoli and in London on 16th April were not taken seriously by the Government on the grounds that such warnings at such times have occurred before. We should like to know how many times the Libyan authorities have called in the Foreign Office at midnight and how many times our ambassador in Tripoli has been summoned at midnight. Further-more, we should be told whether there was a radio 1471 message from Tripoli which was decoded and showed that Colonel Gaddafi gave special instructions to use force against the demonstrators.
Finally, the inquest into the death of Yvonne Fletcher has revealed a great deal of evidence which needs to be sifted very carefully and considered objectively with the other matters raised in the debate by noble Lords, not least the powerful speech of the noble and learned Lord, Lord Denning. For all these reasons, and in the interests of national security, a full independent inquiry may prove to be essential. We hope that the Government's own investigation and that of the Select Committee in another place, taken together, will cover the ground. If they do not, we shall have to return to this subject again.
§ 7.30 p.m.
§ The Minister of State, Foreign and Commonwealth Office (Baroness Young)
My Lords, we have had a most important and timely debate this evening. The whole country was deeply shocked by the outrage that took place at the Libyan People's Bureau in St. James's Square on 17th April. It was as a consequence of this that the Government broke off diplomatic relations with Libya. No British Government has ever done this in response to abuse of immunity—indeed we have only broken diplomatic relations on three previous occasions since the war. And, as was said in the Statement on 1st May by my right honourable and learned friend the Secretary of State for Commonwealth Affairs, we have taken so far the firmest action of any country faced with abuse of diplomatic immunity.
The noble Lord, Lord Kennet, has phrased his Motion in the form of two questions to which I shall give answers. But before turning to those more specific points, I should like to reply to two quite separate questions which he raised in his opening remarks. The first one was about the Libyan Committee. I should like to confirm to the whole House that we did not regard the committee as a Head of Mission in 1979. We refused to do business with them for many months. Until June 1980, they nominated a single individual as the Head of the Mission. Then we acted with our Community partners and our example was followed by all other countries in the world with whom Libya sought to maintain diplomatic relations.
The second specific point that he asked me about was about the weapons in the Tripoli Embassy. The facts are as follows: the Libyans claimed to have discovered some weapons, including five pistols, some ammunition and tear gas. This, of course, is totally bogus. No such equipment was issued to the Embassy or to the staff and Her Majesty's Ambassador has confirmed that none was held. The building was empty for a considerable period after the departure of the staff on 27th April and the Libyans had ample opportunity to plant the items referred to.
In the course of this debate, many noble Lords have made a number of constructive and positive suggestions as to courses that might be followed in order to help in this particular situation. I should like to say at the outset that I shall read again the whole debate and that we shall look carefully at the suggestions that have been made. Noble Lords will 1472 know from the Statement of my right honourable and learned friend the Foreign and Commonwealth Secretary on 1st May, that a full review of the Vienna Convention on diplomatic relations has been instituted and the review will cover its operation and its enforceability.
It may be helpful if, first, I draw to your attention the existing provisions under the Vienna Convention. We have the right under Article 9 to notify the sending state at any time, and without having to explain the decision, that the head of a mission or any member of the diplomatic staff is persona non grata or that any other member of the staff of a mission is not acceptable. We also have the right under Article 11 to require that the size of a mission be kept within limits considered by us to be reasonable and normal. The two articles taken together are potentially a powerful weapon against the missions of governments who advocate or support terrorism.
The Foreign and Commonwealth Secretary referred in his Statement on 1st May to certain immediate actions which are being taken to strengthen control over the operations of foreign missions in this country. He referred to the ultimate sanction of complete severance of diplomatic relations. This is not an action which we would undertake lightly. Her Majesty's Government are responsible for the protection of many thousands of British subjects who live overseas, often in the furtherance of Britain's worldwide trading interests. In many places, the conditions which they have to face are anything but safe. It is precisely in such places that the protection of the Government is most necessary. In considering the lesser sanctions open to us under the existing terms of the Vienna Convention, we have to bear in mind that diplomatic relations between governments rest ultimately upon the principle of reciprocity, a point made by my noble friend Lord Broxbourne.
This is the real sanction of diplomatic law, since every state is both a sending and a receiving state. The effectiveness of the Vienna Convention—and it has, in general, proved to be very effective—rests largely on this principle. A case in point is the question of whether we should subject the diplomatic bags of foreign governments to electronic scanning, a point raised by almost every noble Lord who has spoken in this debate. This practice is not expressly ruled out by the Vienna Convention. The practice of all states is, in fact, not to scan bags. Our own practice hitherto has been never to allow our own bags to be scanned nor to scan the bags of others. The noble Lord, Lord Gladwyn, asked a specific question about the weight of bags. I can confirm that bags may include "Articles for official use" and we have ourselves sent to East European countries building blocks to construct Embassy premises. Weight limits would be very inconvenient to everyone without doing much to help the problem of abuse. Drugs and many weapons do not weigh very much.
The topic of the diplomatic bag is currently on the agenda of the United Nations International Law Commission. We have more than once considered whether any change in our practice is desirable. Any such change would inevitably take place on a reciprocal basis. We have to decide in these cases how best to protect British interests and, in particular, the 1473 security of our essential communications. However, all these matters are under consideration in the context of the review. I have already referred to our power to declare persona non grata, or unacceptable, any member of a diplomatic mission who is unwelcome to us. The noble Lord, Lord Cledwyn, referred to this point. Normally we take such action where there is evidence of personal conduct incompatible with diplomatic status.
My right honourable friend the Foreign and Commonwealth Secretary has stated that from now on we shall go further than this, if circumstances justify it. We shall be ready to use the power of expulsion as an exemplary measure against any mission that the Government have good reason to believe is responsible for unacceptable activities in this country. We shall also scrutinise carefully applications for visas for diplomats of countries whose missions are suspected of unacceptable activities.
My noble friend Lord Broxbourne raised a very interesting point about the privileges enjoyed by those having diplomatic immunity and corresponding obligations. Article 41 of the Vienna Convention requires the persons enjoying these privileges and immunities to respect the laws and regulations of the receiving state. It also requires the premises of the mission not to be used for any matter incompatible with the functions of the mission. We have said repeatedly that Libya was in clear breach of Article 41 of the convention. I have said that we have the power to set limits to the size of diplomatic missions, a point raised also by the noble Lord, Lord Gladwyn. We can also refuse to accept as having diplomatic status any premises of a mission which are not in our view being used for diplomatic purposes. We now face a wider threat from international terrorism and we shall not hesitate to use our powers to prevent the abuse by missions of their diplomatic status in connection with terrorist activities.
I now turn to the more general points of principle which should be borne in mind in any discussion of the possibility of amending the Vienna Convention. The Vienna Convention did not create new law. The inviolability of the envoy, both in peacetime and between peoples at war, is a rule which goes back 3,000 years. It is fundamental to the growth of any relations between states which regard each other as enemies. The Vienna Convention thus represents a codification of customary international law on immunity and on other aspects of diplomatic relations. But the very long stability of the rules of law being codified was one of the factors on which the success of the Vienna Convention depended.
It follows from this that even if it were open to us simply to denounce the Vienna Convention unilaterally this would not entitle us to disregard the basic principles of inviolability of diplomats and missions which are reflected in the convention. Any amendments to the Vienna Convention—to which 141 states are now parties—would be a matter for international negotiation. Even those countries most friendly and sympathetic to our point of view have stressed that the whole system on which diplomatic relations are based should not be put at risk because of abuse by a tiny minority of states. The effort by the international community should concentrate on 1474 isolating any country which abuses the basic rules of the system. I have to say, therefore, that it is not likely that most countries would welcome any changes in the Convention.
I must also re-emphasise the point about reciprocity; any qualifying of the present immunity enjoyed by diplomatic agents in respect of both their persons and their premises could be exploited by unfriendly states overseas and could, for example, potentially lead to the arrest of British diplomats on trumped-up charges. I would remind your Lordships that Iran sought to justify the many months of detention of the United States hostages in Teheran on the basis that the diplomats had committed crimes against the Iranian people.
Several noble Lords have asked whether there has been any collective discussion on this whole matter. I should like to confirm that my right honourable and learned friend the Secretary of State raised the proposed review of the Vienna Convention at the Foreign Affairs Committee early this week on 14th and 15th May. I should also like to confirm that as a Government we place great value on collective international action against terrorism. We firmly believe that such action is likely to provide the most effective means of countering international terrorism, including state terrorism. We are, therefore, seeking to achieve a common approach to the problem on a number of different fronts.
As 1 said, most recently my right honourable and learned friend the Foreign and Commonwealth Secretary raised the issue with his European colleagues at the meeting of the Foreign Affairs Council on 14th May. They accepted that the issue had to be taken seriously and they instructed senior officials to consult closely. My right honourable friend the Prime Minister intends to raise it at the London Summit in June. The problem is a serious one which affects us all. We shall take every opportunity to make it clear that support for terrorism does not pay. We are not prepared to accept terrorism in any form, including that organised or directed by governments and abusing diplomatic privilege.
The noble and learned Lord, Lord Denning, raised a number of very interesting and important points. I would like to confirm that we are reluctant without the most careful and balanced consideration of the implications to advocate exceptions to the basic rules of inviolability or to enter into the dangerous game of claiming rights of retaliation in response to a breach of the convention. But this certainly does not mean that the fundamental right of self-defence, either in international law or in domestic law, is irrelevant in this context. Your Lordships may indeed recall that we relied on it when we made clear that those emerging from the Libyan People's Bureau, diplomats and non-diplomats alike, were personally searched for weapons and explosives before their identities were established. This limitation on the inviolability of the diplomats concerned was clearly essential for the protection of the police handling this stage of the expulsion, and its justification on grounds of self-defence has not been seriously challenged.
The noble Lord, Lord Cledwyn, raised two points about the present position on immigration and the present position on students. I should like to confirm 1475 that my right honourable and learned friend the Home Secretary has powers under the Immigration Act 1971 to exclude and to deport foreign nationals on the grounds that their presence here is not conducive to the public good, and he has made it clear that he will not hesitate to use these powers in the public interest. My right honourable and learned friend the Home Secretary announced on 1st May restrictions that he was imposing on the admission of Libyan nationals and the stay of those already here, which involved all applications being considered very carefully and granted only after stringent checks. This particularly applies to students and to trainees.
I turn now to the second part of the Question raised by the noble Lord, Lord Kennet, and to the suggestion that there might be an independent inquiry. We do not believe that an independent inquiry would be justified. We do not believe that the situation is comparable to the Falklands war, although we acknowledge that the incident in St. James's Square is unprecedented. The noble Lord, Lord Harris, who supported this case, quoted my right honourable and learned friend the Home Secretary who said that it was easy to be wise after the event, a point with which we would all agree, but the facts of the situation are that there was a comparative lull between 1980 and the bombings of March 1984. There was no accumulation of violence in 1982 and 1983. Furthermore, we could not ignore the very real risk to British embassy staff and the British community as a whole in Libya—after all, four embassies in Tripoli have been burnt in the past five years.
When the Libyan People's Bureau was taken over by a committee of revolutionary students in February 1984, we refused to deal with the revolutionary students and, as I indicated earlier in my remarks, we insisted that the Libyans name a new head or secretary of the Libyan People's Bureau. From that time no additions were accepted to the Libyan diplomatic list. We knew who were the accredited members of the Libyan People's Bureau but not in fact who were inside on 17th April.
After the bombings which happened on 10th and 11th March official Libyan involvement was suspected and six Libyans were deported and five are awaiting trial, but the link between those responsible for the bombing and the Libyan People's Bureau was not clearly established. We issued a strong statement directed to Libyans that a repetition of the 1980 incidents would have serious effects on our relations and that we expected the Libyan authorities to do everything in their power to prevent criminal acts by the Libyan residents.
This matter of an independent inquiry has been raised on several occasions and, as I have indicated, we do not believe that this is a case comparable to the Falklands. We therefore do not believe that there should be an independent inquiry into this case.
§ Lord Harris of Greenwich
My Lords, without becoming involved in an argument about the Falklands Inquiry, what is the argument against this matter going to the Security Commission?
§ Baroness Young
My Lords, I was about to turn to that point. As my right honourable friend the Prime 1476 Minister has said in another place, an internal inquiry has been set up under the Cabinet Office. When my right honourable friend said this, she indicated that any external inquiry into intelligence matters would risk compromising sources and damaging the effectiveness of the intelligence services, the very cause that most of us seek to protect. As my noble friend Lord Elton said on the same day in this House:Such risks should be run only when there are overriding reasons of public policy for doing so and in the present case we are clear that it would not be justifiable to incur these risks".—[Official Report, 1/5/84; col. 487.]I should like to conclude by pointing out that, contrary to the impression sometimes given by the Press, most of the 5,000 or so diplomats serving in this country and their families are law-abiding and do not use their immunity to flout United Kingdom laws and regulations in any way. The same applies, needless to say, to British diplomats serving overseas. The abuses which any revision of the Vienna Convention would be intended to correct are committed by only a very small minority of diplomats.
May I repeat what I said at the beginning of my remarks: that I shall, of course, look carefully at the record tomorrow in Hansard and consider all the suggestions that have been made in your Lordships' House. I will certainly draw them to the attention of my right honourable friend the Secretary of State for Foreign and Commonwealth Affairs.
§ Lord Kennet
My Lords, this has been an interesting debate and one which, in many respects, I hope may prove helpful to the Government in the review they are making of the convention. I should like to make one or two points, if I may detain the House for about 40 seconds. The noble Lord, Lord Cledwyn, mentioned the "diplomatic jumbo" and the noble Baroness, Lady Young, mentioned "diplomatic building blocks". I forgot to mention, when I spoke earlier, the diplomatic railway. There was a time when this country built a railway in the Soviet Union out of materials which had been brought in with the diplomatic bags. Things have changed since then.
Several noble Lords asked what was the point of scanning if you were not allowed to open the bags. There is something that could be done if bags were scanned: you could send them back unopened. This is a point that I think we may want to come back to later—indeed, everybody should come back to it later—the fact that the airlines are under a duty regularly to scan all baggage that they are carrying, including of course diplomatic bags; and, if they see something in them, they refuse them. This country does not scan diplomatic bags and so they do not see whether there are machine guns in them. There is a lot of interesting matter hidden behind this.
I have to say that the Government's answer on the inquiry was not satisfying: nor has the Prime Minister's defence of her refusal to hold an independent inquiry been satisfying. She bases her objection on security grounds. The Franks Inquiry into the Falklands War was an independent inquiry and went very fully into intelligence matters. There is no reason why there should not be another such inquiry this time.
Everybody who has spoken has agreed that the 1477 Government should not seek a revision of the Vienna Convention. This is one of those rare debates in your Lordships' House when it is possible to identify an issue on which everyone is agreed, and on which the Government agree also. For that reason perhaps it was a little surprising to hear the Minister of State read out the defensive brief against having a revision of the convention when nobody had asked for it and almost everybody had specifically said that we should not ask for it.
My Lords, I beg leave to withdraw my Motion for Papers.
§ Motion for Papers, by leave, withdrawn.