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Mr. Peter Viggers (Gosport): I waited to hear how my hon. Friend the Member for Eastbourne (Mr. Waterson) would deal with the amendment before speaking. I remain very concerned about the Bill as currently drafted and support the amendment of my hon. Friend the Member for Gainsborough and Horncastle (Mr. Leigh).

The starting point in dealing with dual criminality must be that both offences must be proved beyond reasonable doubt--both the offence in this country and the offence that is alleged to have been caused in the other country. In practice, a foreign country will make representations through its ambassador or through our foreign post to our Government. The Foreign and Commonwealth Office will then institute inquiries in the foreign country, using its intelligence sources as well as its normal diplomatic sources. Back will come a message from the foreign country to the FCO that, prime facie, it seems that the alleged criminality would be an offence. All the legal and other resources of the Foreign Office will have been marshalled to come to that conclusion.

The matter will then be referred to legal sources in this country, who will make their own decision and tell the CPS, or those responsible for prosecution, that in their view the second half of the dual criminality rule has been met. As my hon. Friend the Member for Gainsborough and Horncastle appropriately pointed out, it will then be for the solicitor to whom the defendant goes, in Gainsborough or wherever he resides, to find out what he can about the foreign jurisdiction. Goodness knows, one of the most complicated areas of law is the conflict of laws, as anyone who has studied law will know. It will be extremely difficult for the defendant to disprove the allegation. I find it particularly offensive that in cases heard by the Crown court, the question whether the second condition is satisfied is to be decided by the judge alone.

I add my voice to those who have urged my hon. Friend the Member for Eastbourne to reconsider the point. If he is not prepared to reconsider it here, I hope that the voices of those who have expressed reservations will be heard in another place.

Mr. Kirkhope: We have had an interesting debate. Although the Government cannot go down the lines

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suggested in the amendments, they raise issues of enormous importance. I am a little surprised that hon. Members do not have more confidence that, by creating a dual criminality test, we are applying to all these matters the criminal law in this country, and that elsewhere. As I have said before, we welcome people who wish to exercise their freedom of expression and allow them to do all sorts of things in Britain, which is a free and democratic nation. If they fall foul of our criminal law--they would have to do so for the dual criminality test to be met--at least at that point, they can rely on the British justice system.

My hon. Friend the Member for Eastbourne(Mr. Waterson) has given the House a number of examples of other legislation that contains precisely the same requirements as those in the Bill, to determine whether dual criminality applies. It is open to the defence to raise the issue, either using the basis of the court or in any other way. An obligation is then immediately placed on the prosecution to show to the satisfaction of the court that there is dual criminality; that there is an equivalence between the position in the other country and our position on the alleged offences. That seems to me a strong safeguard.

To turn the matter on its head, as the amendments suggest, and put the onus elsewhere before proceedings commenced would, in the vast majority of cases, be unnecessary and complicated. We are concerned that, where dual criminality is shown--where offences are committed in this country that are unacceptable in our criminal law--we should be able to act against the people responsible in a speedy but just manner.

I have heard what other of my hon. Friends have said. I believe that they are right to have concerns. The safeguards built into the Bill, coupled with the criminal law in this country, should be enough to placate those fears. For that reason, the Government cannot support the amendments.

Mr. Leigh: With the leave of the House, I should like to make a few more remarks. It is probably a great mistake to start reading Bills too carefully. The more one reads them, the more worried one becomes. I am still not entirely satisfied.

It is clear to me that we have two debates running side by side. We all know that the Government are primarily concerned with pursuing football hooligans, paedophiles and criminals plotting international crime. For that reason, they do not want to put enormous burdens on the Attorney-General or the prosecution by requiring them to prove dual criminality, as my amendment would require them to do. We all accept that. There is no problem with that.

What I, my hon. Friends the Members for Milton Keynes, North-East (Mr. Butler) and for Gosport (Mr. Viggers) and the hon. Member for Glasgow, Hillhead (Mr. Galloway) are worried about is those other cases. That is where the Bill falls short. The more we debate the matter, the more the Bill falls short on those other cases. I suspect that the other place, which is staffed by people of far greater legal distinction than me or my hon. Friend the Member for Milton Keynes, North-East--well, perhaps not my hon. Friend--may well start to look at the Bill with a jaundiced eye.

The speech of the hon. Member for Hillhead, who has great knowledge of the middle east, was interesting. The example that he adduced of the Golan heights was

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pertinent. A group plots in this country to plant a bomb in protest at the Israeli occupation of the Golan heights. That is an offence under British law and under Israeli law, but not under Syrian law. But our Foreign Office does not recognise the sovereignty of Israel over the Golan heights. If ever there was a difficult issue, that is it. It would tax even my right hon. and learned Friend the Attorney-General, with all his legal skill. It would certainly tax the CPS. That makes it clear that amendments to be debated later should be considered seriously by the Government and by my hon. Friend the Member for Eastbourne, the promoter of the Bill. It also proves that there is a lot in my amendment.

My hon. Friend the Member for Eastbourne worried me. I am talking about political and terrorist offences now, not simple football hooliganism-type offences. My hon. Friend said that there was an implicit assumption that the dual criminality test is satisfied. We are talking about political offences and state trials. Is it right that we should frame legislation based on an implicit assumption that the dual criminality test is met when an offence is committed abroad? The hon. Member for Hillhead spoke knowledgeably about the complexities of Islamic law. Virtually nothing is written down. These are hugely complex matters. Now my hon. Friend the Member for Eastbourne says that the matter should be at the discretion of the court. Why should it? The prosecution brings the action. It must prove that the act is an offence here and abroad. That is the purpose of my amendment. This is British justice.

I do not intend to press the amendment, but we have had an interesting debate and serious questions have been asked. Before the Bill proceeds to become an Act of Parliament, I hope that my hon. Friend will think again, but for now I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Mr. Michael: I beg to move amendment No. 4, inpage 2, line 39, at end insert--

'(12A) No prosecution in respect of conspiracy to commit an offence to which subsection (12B) applies shall be instituted by virtue of this section except by or with the consent of the Attorney General.
(12B) This subsection applies to any offence listed in an order made by the Secretary of State by statutory instrument.
(12C) A statutory instrument made under subsection (12B) above shall be subject by approval by resolution of each House of Parliament.'.

Madam Deputy Speaker (Dame Janet Fookes): With this, it will be convenient to discuss the following amendments: No. 6, in page 3, line 9, at end insert--

'Attorney General

Attorney General for Northern Ireland.'.

No. 8, in clause 2, page 3, line 45, at end insert--

'(8A) No prosecution for incitement to commit an offence to which subsection (8B) applies shall be instituted by virtue of this section except by or with the consent--
(a) in England and Wales, of the Attorney General; or
(b) in Northern Ireland, of the Attorney General for Northern Ireland.
(8B) This subsection applies to any offence listed in an order made by the Secretary of State by statutory instrument.

14 Feb 1997 : Column 549

(8C) A statutory instrument made under subsection (8B) above shall be subject by approval by resolution of each House of Parliament.'.

Mr. Michael: Amendment No. 4 would create a mechanism to allow a distinction to be drawn between the prosecution of those involved in some pretty horrific activities such as child sex abuse abroad, racial violence, anti-semitism or activities of the mafia, and the prosecution of those who are supporting a fight for freedom and justice in another country. That is an important distinction, as hon. Members on both sides of the House have made clear in the debates from Second Reading onwards. The mechanism in the amendment of a list and the approval of the Attorney-General would, for example, allow the prosecution of paedophiles engaging in overseas activity to go ahead without approval, but would require approval in some of the more sensitive cases referred to by hon. Members on both sides of the House. The list may, of course, include terrorist offences, although they are dealt with more specifically under amendment No. 5.

Support for the Bill has come from the Government and the Opposition, but we have both also expressed concern about key areas of it. Last year, it was Ministers who wanted to proceed with caution when we wanted to pursue those guilty of child sex abuse. Now, there seems to have been a leap to the opposite end of the spectrum, because the Bill relates to absolutely all offences. I understand why the hon. Member for Eastbournehas approached it in that direction, but the price we must pay for allowing such wide-ranging legislation is to ensure that there is a mechanism to protect against its misuse. That is why the amendments address issues that have been raised by hon. Members on both sides of the House, and why there should be the same unanimity about trying to get the balance right as there has been in offering general support for the Bill.

In Committee, the need for balance was acknowledged given the wide scope for action under the Bill. The hon. and learned Member for Burton (Sir I. Lawrence) suggested in Committee that the Bill had been drawn widely, but, as I said then, I believe that it has been drawn without limits. I understand that the intention behind that is to avoid spurious challenges, needless delay and obstructive nit-picking by those who are able to employ the best lawyers but who may be the most serious enemies of civilised society. I entirely accept that intention behind the Bill, but it is important that we appreciate today that we must balance the scope of the Bill with a mechanism to ensure that its powers cannot be used malevolently or with bad judgment with results that go beyond Parliament's intentions.

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