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Lord Astor of Hever: I thank the Minister for that reply. I agree that it has been a very helpful debate. These are very complex issues. It is important that we return to them in greater detail at Report stage.

I welcome the fact that the Government have recognised the importance of simplicity of approach and that they will be consulting publicly. I believe that my noble friend Lady Fookes and the noble Earl, Lord Onslow, made very valid points about the complexity of these matters. I have two questions for the Minister. I imagine that training will be voluntary rather than mandatory. It is very important that enough people go on the courses to understand the complexities of pension sharing. What kind of take-up does the Minister expect?

She is trying to simplify the whole matter. As I understand, she is legislating for all contingencies thus enabling the Lord Chancellor to choose which way to go. Can the Minister clarify those two points?

Baroness Hollis of Heigham: The noble Lord's description was exactly right because that is what we are doing. Plans are being made for the training of court staff and judges in England and Wales. I have every reason to believe that they will all be expected to

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undertake that training in so far as they have to address the issues. Training facilities for barristers is a matter for their professional bodies.

Lord Astor of Hever: I thank the Minister for that answer. What constraints are there on the Lord Chancellor for the way in which he chooses particular provisions?

Baroness Hollis of Heigham: Choosing what, exactly?

Lord Astor of Hever: The noble Baroness said that there were various contingencies and that the Government were legislating for them all and then it would be for the Lord Chancellor to choose which way to go.

Baroness Hollis of Heigham: As I tried to explain in response to the contribution to the discussion by the noble Baroness, Lady Fookes, subject to parliamentary approval, pension sharing will go ahead. It may do so following the introduction of Part II of the Family Law Act. It may go ahead before the introduction of that legislation. However, it may go ahead without there being a Part II of the Family Law Act. Therefore it must remain within the framework of the Matrimonial Causes Act 1973 or any subsequent codification of that law.

Those are the three options available to the Lord Chancellor. He is reflecting on them in the light of research findings and the consultation exercise that is now taking place. Having had a discussion with him earlier today, I believe it is fair to say that it is genuinely a fair question. As the noble Lord, Lord Goodhart, said, it would be foolish to go ahead and implement Part II of the legislation and not give pension sharing the protection of coming within the umbrella of the Matrimonial Causes Act 1973. The research which has taken place so far shows that the information process which we offered leading to mediation has not been the success that we all hoped for.

Lord Astor of Hever: I am grateful to the Minister for that reply. The government amendment has raised many complicated issues. I am sure that the Committee will want to revisit them at Report stage. I beg leave to withdraw the amendment.

[Amendment No. 58A, as an amendment to Amendment No. 58, by leave, withdrawn.]

Lord Astor of Hever moved, as an amendment to Amendment No. 58, Amendment No. 58B:

Leave out lines 29 to 32

The noble Lord said: The provisions of Schedule 3 mean that a court can no longer treat a pension as a marriage settlement, as in the leading case of Brooks v. Brooks in 1996. Mr Brooks was entitled to benefit under a non-contributory pension scheme set up by his company. The scheme provided for him on retirement to elect to give up part of his entitlement to fund the pension for his widow after his death and, in the event of his death, before or soon after retirement, for a lump

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sum to be paid at the discretion of the trustees of the scheme to a class of potential beneficiaries including his spouse and children at his death.

The scheme was designed only to provide benefits for Mr Brooks and his immediate family. It was entered into at approximately the time of his marriage. The company is regarded as the settlor. The funds provided by the company were treated by the court as a settlement which made future provision for the husband and was nuptial as it incorporated benefits for the wife.

We would like to see courts retain the right to treat pensions similar to that contributed to by Mr Brooks as marriage settlements capable of variation by them. That would retain an existing power of the courts and therefore widen the range of remedies available to the court in individual cases. It is unlikely that this remedy would be used very frequently because it applies only to a small number of pensions, and pension sharing is likely to be the favourite remedy. I ask the Minister to say why the Government do not want to retain that method of dealing with pensions on divorce. I beg to move.

Baroness Hollis of Heigham: This amendment seeks to delete the provisions of the new Schedule 3 to the Bill as inserted by Amendment No. 58 and others, which will prevent pension sharing in England and Wales by variation of a marriage settlement.

Courts have the ability to vary any part of a marriage settlement when the parties divorce. Pension sharing by variation of a marriage settlement is one way in which the courts in England and Wales have found to share a pension effectively. I am thinking in particular of the case of Brooks v. Brooks 1995, which the noble Lord quoted to illustrate his point where the husband's pension rights were varied to provide an income for his wife. It is a 1995 case which was reported in 1996, in case there is any misunderstanding.

I do not believe that it would be right to accept this amendment. The Bill is intended to produce a single system of pension sharing which is as simple and inexpensive to operate as is reasonably practicable. The system will produce certainty for the courts, for the parties whose marriage is being ended and for the pension providers who administer the division of the pension.

Preserving the expensive and uncertain remedy of pension sharing by variation of a marriage settlement would frustrate these aims. While there is a place for pensions of the type concerned in Brooks v. Brooks under the present law, they will simply be an unnecessary complication under the new law of pension sharing. Given the responses of the Committee to the previous amendments, I would have thought that simplicity had its attractions. I invite the noble Lord to withdraw his amendment.

Lord Astor of Hever: I thank the Minister for that reply. She has clarified thoroughly this very complicated position. I beg leave to withdraw the amendment.

[Amendment No. 58B, as an amendment to Amendment No. 58, by leave, withdrawn.]

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Baroness Amos: I beg to move that the House do now resume. In moving this Motion, I suggest that the Committee stage begin again not before 8.30 p.m.

Moved accordingly, and, on Question, Motion agreed to.

House resumed.

General Pinochet

7.30 p.m.

Lord Carter: My Lords, with the leave of the House and in my capacity as Chief Whip, I shall take this opportunity to remind the House that the case of General Pinochet is still before the courts. Committal proceedings will commence on 27th September. All speakers in the debate on the Unstarred Question are reminded to observe the guidance on sub judice set out on page 74 of your Lordships' Companion to the Standing Orders. All matters relating to the current extradition proceedings in the case of General Pinochet remain sub judice. In this tricky matter, I hope that all noble Lords speaking in the debate this evening will err on the side of caution in following the sub judice rule.

Lord Lamont of Lerwick rose to ask Her Majesty's Government what were the circumstances and background of the arrest of General Pinochet; what was the role of the police, the Crown Prosecution Service, Ministers and the Diplomatic Service; and what has been the effect on Anglo-Chilean relations.

The noble Lord said: My Lords, I am grateful to the noble Lord, Lord Carter. The greatest offender against the sub judice rule has been the Government, and particularly Mr Peter Mandelson who made remarks on television immediately after the arrest of General Pinochet that were clearly extremely prejudicial to justice. I should be interested to hear what rebuke was administered to him.

Of course, I shall abide by the sub judice rule and I shall say nothing about the issues in the committal proceedings which are to take place in September. However, I have been informed by Mr Davies, Clerk of the Parliaments, that I am entitled to comment on the decision of the Home Secretary to let extradition proceedings continue, as currently there is no appeal pending against that decision.

The tactics for the arrest of Senator Pinochet are redolent of the diplomatic methods of the Borgias. The 83 year-old former Chilean head of state was accepted into this country on what he believed to be a diplomatic passport, escorted through a VIP lounge paid for by the British Government, and on 16th October, at a very late hour, while still under the effects of an anaesthetic after an operation, arrested by armed police.

The noble Lord, Lord Williams of Mostyn, has denied to me in Parliamentary Questions, that Senator Pinochet was arrested by armed policemen. I have here a sworn affidavit by a captain of the Chilean Army, who was present in the room when Senator Pinochet was arrested. He specifically observed that four of the officers were armed. It seems extraordinary that the reputation and the

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demonisation of Senator Pinochet should be such that, even aged 83 and under the effects of anaesthetic, four armed officers were required to arrest him.

The arrest was greeted with dismay by present and former heads of states in many countries. It was condemned by Felipe Gonzales, the former Prime Minister of Spain, and by President Menem of Argentina. George Bush called the proceedings against the senator a travesty of justice, and even the Pope made representations to the Government that the senator should be returned to his own country.

Most significantly, the arrest was roundly condemned by the Government of Chile, largely consisting of opponents of General Pinochet. Former President Aylwin and the present president of Chile, President Frei, called the arrest an interference in the internal affairs of Chile and an obstacle to reconciliation.

There are many disquieting features concerning the arrest that give rise to questions of collusion between the British and Spanish authorities. Senator Pinochet was initially detained under a warrant which was subsequently shown in the High Court to be wrong in law. The senator's lawyers wrote to the Home Secretary about the warrant, but the Home Secretary did not deign to reply. In the mean time, the Crown Prosecution Service went to Spain to advise the Spanish authorities on the warrant. In passing, I note that that is a form of co-operation not practised by the Irish Government in relation to the British Government pursuing terrorists in Ireland.

On the Friday before the arrest of General Pinochet, two telephone calls were made to the Foreign Office, one from the Chilean Embassy inquiring about rumours that the general may be arrested. The Chileans were informed that the Foreign Office would contact them again on Monday. On the same day, the police contacted the Foreign Office to find out whether Senator Pinochet enjoyed diplomatic immunity. At that point, why did the Foreign Office not go back to the Chilean Embassy? Why did the British Government consider that they had a greater obligation to the Spaniards than to the Chileans, unless there was some collusion between the two countries?

The reputation of British justice and its integrity have been severely damaged by this case. A judge concealed his involvement with one of the parties to the court case. That judge has never apologised. He still hears cases. At a new hearing, made necessary by that event, a completely different verdict was given. Three British courts have given three completely different rulings. The High Court decided that Senator Pinochet enjoyed sovereign immunity; the Law Lords, at their first hearing, decided that he did not enjoy sovereign immunity; and at their last hearing, the Law Lords decided that he enjoyed partial immunity.

Many may think that the obvious confusion of the judges is an argument why the Home Secretary should have been cautious about giving authority to proceed in this case. The Government maintain that the case of Senator Pinochet is a matter for the courts only. But it is not. The courts decide whether a person can be extradited under the law. The Home Secretary decides

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whether he should be extradited. The Home Secretary has wide discretion, as shown by his decision not to extradite an alleged IRA bomber to Germany.

On 24th March this year, the House of Lords gave a clear hint to the Home Secretary that in view of the dramatic scaling back of the charges to those after 1988 only, he ought to reconsider his authority to proceed against General Pinochet. The Home Secretary chose not to take that hint.

Justice has to be related to a time and a place. The senator's case can properly be considered only by Chileans in Chile. The decision of the Home Secretary is an affront to the sovereignty of Chile, a country with its own system of courts and its own democracy.

Twenty-eight years ago Chile was in a situation of near civil war. Terrible things were done on both sides--no one denies that--but the Chileans themselves subsequently decided to deal with that in their own way, as we have decided to deal with our problems in Ulster in our own way. Like us, they had a peace process and an amnesty; they had a reconciliation commission that was a model for South Africa and a number of people were given prison sentences.

The torture convention was never intended to be used in the way now permitted. No one suggested in 1988 that it modified sovereign immunity. It was never intended that someone should be extradited from country A to country B to be charged with offences in his own country, country C, against his own nationals. An important feature of this case is that none of the charges currently against General Pinochet involves citizens of this country or of Spain.

When my noble friend Lord Patten introduced the convention to the House, he made it clear that it was not intended to operate retrospectively. It has taken three court hearings to re-establish that point. He also said that the purpose of our accession to the convention was not to instigate a retrospective witch hunt against those alleged to have committed torture in the past. But that is exactly what has happened in this case.

This case illustrates some of the drawbacks in extradition proceedings. At no time has the senator been allowed to challenge in a British court the substance of the charges brought against him. They are taken at face value, even though former President Aylwin and former British ambassadors to Chile have said that there was no policy of torture in Chile after 1988. It is worth noting that Amnesty International alleges further cases of torture under both Presidents Aylwin and Frei, both of whom would now be well advised to reconsider their foreign travel plans.

The British are not in a strong position to lecture other countries on how to deal with torture. This Government have let out of jail over 270 terrorists, many of whom are murderers, maimers, torturers, bombers and killers of children. The Government have done that in the name of peace and reconciliation, as the Chileans have made decisions for their country in the name of peace and reconciliation.

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When I drew the attention of the noble Lord to parallels between Northern Ireland and Chile, he replied that Ulster is unique. Chile is also unique. That is why it can be judged only by Chileans. On 24th March 1999, Lord Browne-Wilkinson said:

    "It may well be thought that the trial of Senator Pinochet in Spain for offences all of which related to the state of Chile and most of which occurred in Chile is not calculated to achieve the best justice". As I understand it, he was saying that he had to interpret the law, but he was admitting that there may be a conflict between law and justice. If there is a conflict between law and justice, surely that is for the Home Secretary to resolve.

Even the statute of the proposed international criminal court, which does not exist, acknowledges the right of home countries to conduct their own trials on their own territory. As a matter of principle, to let courts in one country put the government of another on trial, is tantamount to an assertion by the first country that the second is subject to its authority. If international law requires the trial of General Pinochet in an outside country, then it must require trials of butchers from many other places.

But Chile is a small country with no great leverage or influence on Britain; and Britain does not care. No one expects Britain or Spain to hold a top Chinese leader for massacres in Tibet; or to hold former Russian officials for extradition to Latvia. The decision of the Home Secretary was selective, hypocritical, arrogant and an unjustified interference in the affairs of a friendly country. The action should never have been allowed to start and I hope that at some stage in the future--he will have other opportunities--the Home Secretary will take steps to free a man who is a political prisoner in this country.

7.42 p.m.

Lord Clinton-Davis: My Lords, that was an extraordinarily ill-advised speech. It ignored the warning that the Chief Whip properly gave at the beginning of this debate, and a noble Lord of the experience of the noble Lord, Lord Lamont, ought to have known better.

The fact is that the noble Lord brought into question the issues that underlie this matter which will be properly dealt with by the courts. The defenders of General Pinochet have decided to come to this House tonight en masse. It will be interesting to hear what they have to say without, I hope, breaching that important warning.

This is a juridical matter of the greatest importance. It is a matter which is seminal in terms of international humanitarian law which has evolved. It is an important consideration which the courts have to address and it is improper for this House to venture an opinion as to the rights and wrongs of the proceedings at this stage. I am a lawyer. It is vital in a democracy that we respect those tenets of law that have been so flagrantly violated by the noble Lord, Lord Lamont, in his speech tonight.

It was inevitable that the noble Lord would have to do that. I should like to enter into a debate as to what happened in Chile in 1973. I was there shortly before on a parliamentary visit. I saw some of the events that

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were emerging at the time which gave us great concern. But I do not propose to do that. Nor do I propose to go into what happened in November 1973.

The noble Lord--inferentially perhaps--excused what happened at that time. I do not believe it to be excusable. It was not simply that General Pinochet took power. Many people assisted him in that direction. There were no political prisoners at the time of President Allende. It was not an efficient government; I concede that. But it was not a government who flagrantly denied the very essence of democracy, which I thought the noble Lord would himself have sought to uphold.

It is important, as we face the few days ahead when the courts will adjudicate on a matter of great importance, that we do not imperil those proceedings by making statements which are injudicious--as was the noble Lord's speech. I hope that the Government of Chile will understand the due process of law in this country and that the decision of the courts will be respected. Ultimately, if the court decides, as the noble Lord said, that there is a case which merits the consideration of extradition, the matter will have to be dealt by the Home Secretary. I do not envy him that position, but I am sure he will cope with it.

However, I do not believe that it is right to seek to intimidate the Home Secretary--nor will he be intimidated--by the sort of ill-advised speech we have just heard. I am surprised that a politician of the experience of the noble Lord should indulge in a speech of that kind. I hope that some of his supporters will not express similar views tonight. I should have liked to have said much more, but I am confined by the four-minute limit, which I will respect. I do not agree with the noble Lord, Lord Lamont, and he ought not to have tabled this Motion.

7.45 p.m.

Baroness Thatcher: My Lords, my noble friend Lord Lamont has done the House a service by initiating this short debate on a matter of great importance to Britain's reputation, to Chile's stability and to the orderly conduct of international relations. I shall try to deal with each of those matters while seeking to avoid remarks about the case itself.

Britain's reputation should be of vital importance to the government of the day. Our reputation sustains our interests. The Pinochet case has sullied that reputation. Senator Pinochet came here last September as a long-standing friend of Britain. Though I shall not go into the details, I can say that without President Pinochet's considerable practical help in 1982, many more of our servicemen would have lost their lives in the South Atlantic. The country thus owes him a great debt.

After leaving power he was accordingly received here as an honoured guest on a number of occasions. Similarly, on 22nd September last year, when he entered Britain on a diplomatic passport charged with a special mission by the current Chilean President, he was accorded all the privileges of an ambassador, including

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the protection of the Metropolitan Police Diplomatic Protection Squad.

However, some weeks later the general was arrested in hospital at dead of night, when under heavy sedation following a serious back operation. There is a widespread suspicion that there had been collusion between the British and Spanish authorities prior to the arrest, when the Chileans were not given the warning they might have expected about the imminent risk. That inhumane arrest was in any case made on the basis of an unlawful warrant. Senator Pinochet was then held for six days illegally under that warrant. Those circumstances left Britain's reputation for loyalty and fair dealing in tatters.

Secondly, I want to speak about the situation in Chile--this country's oldest and truest friend in Latin America. The great majority of Chileans, even the political opponents of Senator Pinochet, feel wounded at the way we and the Spanish have treated them. They are right to do so. Until the Senator's arrest last October, Chile had achieved three remarkable successes, all of them in large measure due to former President Pinochet.

First, it had seen the total defeat of communism at a time when that ideology was advancing throughout the hemisphere. As Eduardo Frei, the former Christian Democrat president of Chile put it: "The military saved Chile". Secondly, Chile has seen the establishment of a thriving, free-enterprise economy which has transformed living standards and made Chile into a model for Latin America. Thirdly, Chile is also remarkable because President Pinochet established a constitution for a return to democracy, held a plebiscite to decide whether or not he should remain in power, lost the vote (though gaining 44 per cent support), respected the result and handed over power to a democratically-elected successor.

Chile thus enjoyed prosperity, democracy and reconciliation--until we and the Spanish arrogantly chose to interfere in her affairs. So far, the Chileans have behaved with great restraint. But we should not assume that this will continue, particularly if Senator Pinochet, who is not now in the best of health, were to die in Britain or is taken to Spain. Anything that happens then will be the direct responsibility of this Government and, in particular, of the Home Secretary.

My final point concerns the implications of the Pinochet case for the conduct of international relations, which are essentially based on trust between nation states. This trust has now been shattered by the prospect of the courts in one country seeking the extradition of former heads of government from a second country for offences allegedly committed in a third country.

Senator Pinochet is, of course, being victimised because the organised international Left are bent on revenge. But on his fate depends much else besides. Henceforth, all former heads of government are potentially at risk; those still in government will be

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inhibited from taking the right action in a crisis, because they may later appear before a foreign court to answer for it--

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