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Mr. Leigh: The hon. Gentleman is making an interesting point and we are having a worthwhile little debate. He is obviously familiar with Saudi Arabian and Islamic law in a way in which I am not. What would happen if a group in this country was plotting to plant bombs in Saudi Arabia--clearly an offence under our law--given that little is written down under Islamic law, which was decreed by the prophet many centuries ago and is subject to interpretation by religious groups? How would a firm of solicitors in this country, or the Crown Prosecution Service, proceed? To what authorities would they go under Saudi Arabian law? Is it written down? That worries me, and the hon. Gentleman, with his knowledge of the subject, may be able to help.
Mr. Galloway: With pleasure. It would be different in different countries. Not all countries that claim to implement Islamic law are as utterly bereft of due process as Saudi Arabia. In some other Islamic countries, the religious authorities--the Ulema--have a certain independence and can decide whether such and such a matter is an offence. That is not the case in Saudi Arabia, where the head of the Islamic council, Sheikh Bin Baz, is a hand-picked factotum of an unelected, dictatorial Government--a mediaeval tyranny.
Frankly, if the Crown Prosecution Service addressed a letter to Sheikh Bin Baz asking whether something was an offence, he would refer it to the King. In fact, one could save the stamp by asking Mr. Algosaibi, the ambassador in London, who could tell one whether a matter was an offence. That is a monstrosity, and a great mismatch with our due process of law and all the wonderful safeguards that we have built up over centuries to protect defendants' rights. We take enormous care--we are doing so this morning--before making any legislation. That is utterly mismatched with the state of affairs in a country such as Saudi Arabia, where there is no law, no due process and no democracy.
The answer to the hon. Member for Gainsborough and Horncastle is therefore that it would be at one and the same time very difficult and very easy. It would be easy in practice, because an offence would be whatever the King decreed was an offence at any particular time, which might be different from what he said the week before or would say a week later.
The mismatch to which I referred would be likely to lead to a clashing of gears between the two legal systems--if one can glorify the Saudi Arabian arrangements with that term--and that would create a tremendous shudder that could lead to injustice.
We should also consider the issue of occupied territory. Many places in the Islamic world are occupied, some of them debatably so. In many great universities and inthe House, the hon. and learned Member for Burton(Sir I. Lawrence) and I have often debated the Israeli occupation of various Arab lands, which continues even under the Oslo accord. Israel occupies some of the west bank, some of the Gaza strip, some of Syria and some of Lebanon.
What are the legal circumstances in those territories? If someone here, as an act of self-defence, is plotting armed struggle against the Israeli occupier, which law will apply? It is certainly not an offence under Syrian law to struggle against Israeli occupation of the Golan heights, which were seized in war and are recognised by international law and the United Nations as occupied territory; indeed, it is a national duty. Would we be talking about whether it was an offence under Israeli law or under Syrian law? I am sure that under Israeli law it is an offence to plot the overthrow of the Israeli military occupation, but it is not under Syrian law, and the Golan is Syrian territory.
What about the other Israeli-occupied Arab lands? Both points relating to the Islamic area are crucial to whether the Bill makes any sense. I would submit that on both counts the Bill is seriously flawed and deficient.
Sir Ivan Lawrence (Burton):
The hon. Gentleman makes an interesting and important point. An even more important point, on which he is touching, affects a future amendment: the resolution of the question is a political matter that ought to have the approval of the Attorney- General before any such prosecution is launched.
Mr. Galloway:
At the very least, it should have the approval of the Attorney-General, although I am not entirely comfortable with vesting such sweeping powers in him. The hon. and learned Member for Burton has in part acknowledged my point about how politically charged all the issues that we are discussing will be, and how potentially disruptive it will be to our lives as well as our legal system.
I shall give a brief example. There is occupied land in Kashmir; 580,000 Pakistanis and Kashmiris in this country do not recognise India's right to jurisdiction over Kashmir, which is subject to a 50-year-old United Nations resolution, declaring it disputed territory. Two years ago, in conference, the Labour party accepted that it was disputed territory. That will be the stance of my right hon. Friend the Member for Livingston (Mr. Cook), who is likely to be Foreign Secretary in a few weeks.
In that disputed territory, either a terrorist struggle or a freedom struggle is going on, depending on one's political viewpoint. Today and every Friday, the greater part of 580,000 citizens of this country pray for the success of that armed struggle in what they describe as occupied Kashmir, openly collecting money in mosques to support it.
Under which legal system would an offence be committed under dual criminality in occupied Kashmir? It is undoubtedly an offence under Indian law to seek to overthrow the occupation forces in Kashmir, but it is a national duty to Kashmiris, including those who live here. Three quarters of all Pakistanis in this country are Kashmiris from Mirpur. Every last one of them supports the armed struggle against Indian occupation and regards it as a freedom struggle. Under the Bill's dual criminality, they are committing an offence every week because they are inciting, supporting--one might say conspiring--and raising funds for the struggle in Kashmir. Whose law in Kashmir would they be breaking? Not Pakistani law; it is a national duty. Certainly not the moral code from which they draw their strength. However, they would be breaking Indian law.
There would be an offence under Israeli law in the Golan heights, but not under Syrian law. There would not be an offence under Jordanian law--at least in respect of most of the time about which we have been talking--in the west bank, but there would be under Israeli law. Islamic law is uncodified, very wide and vague and was written many centuries ago by the Prophet Mohammed. Its interpretation in Iran is wholly different from that in Saudi Arabia. The interpretation in Iran will differ from yesterday to today to next week, according to whose star is in the ascendant in its theocracy. There will be one interpretation today under Sheikh Bin Baz's latest orders and a different one under different orders next week. That shows the mismatch between our democratically arrived at, well-codified, tried and tested law and those of other countries, which are utterly different in character.
Mr. Waterson:
There has been an interesting debate on this amendment. I am especially grateful to my hon. Friends the Members for Gainsborough and Horncastle (Mr. Leigh) and for Milton Keynes, North-East(Mr. Butler) for developing arguments that arose on Second Reading or in Committee.
On the remarks of the hon. Member for Glasgow, Hillhead (Mr. Galloway), it is wrong to hold up foreign legal systems to perhaps invidious comparisons with ours. We believe, perhaps slightly smugly, that we have the best legal system in the world. English common law is the envy of many parts of the world and has been exported widely. Other countries have evolved their own laws, systems and ways of doing things. He must not forget that the other part of the dual criminality test, which is crucial to my Bill, is that the offence must be a criminal offence in this country as well. That takes account of repressive
regimes. I shall not follow him in awarding marks out of 10 to different regimes. Where something is an offence under a repressive regime, whether left or right--for example, if it were an offence in Iraq to issue leaflets criticising Saddam Hussein--if it is not an offence under our system, it will fall.
Mr. Galloway:
What about a Syrian organisation in Britain that plotted armed action against the Israeli occupation of the Golan heights? Clearly, armed action is an offence in Britain. It is terrorism; let us call it what it is, at least in the Bill's terms. What about plotting an explosion at an Israeli army barracks, God forbid, on the Golan heights? That is not an offence in Syria, because Syria regards itself as being at war and under occupation. It is an offence in Israel, but the territory is not Israeli. How would dual criminality work in such circumstances?
Mr. Waterson:
The hon. Gentleman raises a complex example, although I do not blame him. There would be a general onus on the prosecution in such cases to take advice from the Foreign Office about whether, de jure or de facto, we recognised a regime in a particular country or part of a country. I accept that that would be a matter for evidence.
To return to the central issue, the amendments would take away the presumption that the dual criminality test is satisfied. I regard the very existence of the dual criminality test as a crucial safeguard. The basis of the test is that the act in question would have to be an offence both in Britain and in the country where it was to be carried out. It would be open to the defence in all cases to require the prosecution to show that the test was satisfied. That is a vital safeguard for those engaged in peaceful activities in Britain that may be against the law of their own country.
The Bill's wording, as I explained to my hon. Friend the Member for Gainsborough and Horncastle, follows the precedent in part I of the Criminal Justice Act 1993. It contains adequate safeguards in cases of doubt. It allows the defence to challenge the prosecution by serving a notice showing its grounds for believing that the test is not satisfied. In deference to my hon. Friend the Member for Milton Keynes, North-East, I do not believe that that requires the defence to prove anything directly, but it does require it at least to raise the possibility. However, there is an important alternative that allows the defence, with the permission of the court and the trial judge, to require the prosecution to show that the test is met without serving notice. That follows the pattern in some previous legislation that has used the same form of words to give the court discretion to allow a defence challenge without prior service of a notice.
I have found at least three precedents: the Computer Misuse Act 1990; the Civil Aviation (Amendment) Act 1996; and our old friend the Sexual Offences (Conspiracy and Incitement) Act 1996. Clause 1 envisages a sequence of circumstances. Normally, the dual criminality test would be taken to have been satisfied. It makes the implicit assumption that the prosecution will not have embarked on the case without having first checked on the law in the country in question. Clause 1 builds in
safeguards for the defendant. It allows the defence to give notice showing why it believes that dual criminality does not exist, for example by quoting elements in the foreign legal code that call the practice into question.
11.15 am
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