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Mr. Douglas Hogg (Sleaford and North Hykeham) (Con): I wish briefly to support the remarks made by the hon. Member for Birmingham, Northfield (Richard Burden) and to speak briefly to my amendment No. 75 in the same grouping.
As the hon. Member for Birmingham, Northfield rightly remarked, clause 20 really applies to the entirety of the Bill as it contains the definition of terrorism. As the hon. and learned Member for Medway (Mr. Marshall-Andrews) reminded us yesterday, it applies particularly to clause 1, which he rightly described as the most offensive part of the Bill, and I agree with him. The question of what is terrorism brings us face to face with the most difficult decision: what is a freedom fighter, and who is a terrorist? It is extraordinarily difficult. At the moment, the Bill applies equally to those whom this House would regard as freedom fighters and those whom the House would regard as terrorists. The definition makes absolutely no distinction between the two. The question that we must ask is whether that is what we really want to do.
The question can be judged historically. If we look back to the struggle of the Fenians in Ireland in the 19th century, was all of their violence improper, albeit that civilian casualties were involved? What about the struggle of the African National Congress in South Africa? Will we all say that its violence was improper?
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What about the struggle in Cyprus by the EOKA, the struggle in India against the British Raj, or the struggle against the British in Africa?
John Bercow : Or the struggle in Darfur.
Mr. Hogg: Or, as my hon. Friend says from a sedentary position, the struggle in Darfur.
All of us must ask ourselves whether we are prepared to assert that in all circumstances violence is wrong when it is designed to remove an oppressive regime. I, for one, am not prepared to say that. What do I say about Mugabe? It would surely be right to remove Mugabe by force if necessary because his is an oppressive regime. Turning to the point frequently made by my hon. Friend the Member for Buckingham (John Bercow), is that not also true of Burma? One must therefore conclude that there are regimes where there is no democracy and where the only way forward is by force.
Mr. Edward Garnier (Harborough) (Con): Will my right hon. and learned Friend give way?
Mr. Hogg: May I finish this point, and then I will of course give way to my hon. and learned Friend?
I identified a curious paradox yesterday—we were told by a Labour Member that it was entirely right for the Government to seek to displace Saddam Hussein by force in order to achieve regime change, but if we urged civilians to do that, they would be committing a criminal offence covered by this Bill. Even more to the point, in 1990, when I was in the Foreign Office, we urged people to rise up and strike down Saddam Hussein. All of us who did that would have been caught by the Bill. I now give way to my hon. and learned Friend.
Mr. Garnier: I am most grateful to my right hon. and learned Friend. Not for the first time, he has just made the very point that I was going to ask him to make.
Mr. Hogg: We must decide how to proceed. We can leave the Bill as it is—I shall return to that possibility in a moment—or we can opt for a whitelist: a list of countries where actions of force will always be treated as terrorism. That would be a political decision, I think that it would be an improper decision, and it would certainly be impossible to justify against a background of law.
We can only ask ourselves what is the real vice against which we are striking. I think it is the deliberate targeting of civilians. My amendment, like those tabled by the hon. Member for Birmingham, Northfield and the right hon. Member for Southampton, Itchen (Mr. Denham), is designed to restrict the definition of terrorism for these purposes—that is, overseas terrorism—to actions against civilians. Our drafting may be imperfect, but we are currently dealing only with concepts expressed in statutory language.
Ministers may tell us that we need not worry because the Attorney-General is the filter and there can be no prosecutions in respect of this class of terrorism without his approval. The hon. and learned Member for Medway dealt with that rather effectively, but I want to make a further point. The decision on whether or not
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to prosecute over terrorism overseas is not a legal decision; it is a political decision. In effect, it creates the whitelist. In this context, the Attorney-General is a Minister and his decisions will reflect not a legal but a political judgment. I do not believe that we should legislate for prosecutions only to follow a political judgment. I hope that the Home Secretary and his colleagues will think again about whether we can somehow restrict the definition of terrorism so that we strike only at that which is deeply offensive and do not find ourselves outlawing the freedom fighter or those who wish to support him—as many right hon. and hon. Members have done in the past, and will doubtless do again.
Mr. Denham : What I shall say about my amendment, No. 69, will follow comments that have already been made and will, I hope, begin to show the possibility of a way of dealing with the problems that we confront—the type of civilian murder promoted by al-Qaeda, and the type of international obligations that we need to introduce in response to events such as Beslan—while avoiding other problems, which have been well highlighted.
One of the more disconcerting aspects of the debate so far has, I am afraid, been the tendency of Ministers not to acknowledge that there is a problem with the definition. I hope that at the end of this brief debate, my right hon. Friend the Home Secretary will at least acknowledge that there is a problem, which needs to be explored between now and Report.
My amendments may not be perfect, but nor is the Bill. Attention has already been drawn to the anomaly of it being legal to invade Iraq to get rid of Saddam Hussein, but illegal to support the Iraqi people if they acted in the same way. I want to discuss the problem of definitions more narrowly. There is nothing magic about the definition in the Terrorism Act 2000. It is not based on international law. Other definitions are significantly different. The European Union Council framework decision, for example, lists much the same offences, but involves a much higher threshold. It refers to "seriously intimidating a population", to
"seriously destabilising or destroying the fundamental political, constitutional, economic or social structures of a country or international organisation".
Those are high thresholds and they do not exist in our own national legislation. It is true that we have to ratify the Council of Europe convention, but it does not define terrorism. We are free to define terrorism as we want, as long as we include certain specific offences, so there is no single agreed definition of terrorism. I am looking for a wording that we can apply to the new situation—the international spread of terrorism aimed directly at the mass murder of civilians.
5.30 pm
Dr. Phyllis Starkey (Milton Keynes, South-West) (Lab):
My right hon. Friend refers to a number of international documents and conventions. Should we not also consider the Geneva conventions—the so-called
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rules of law—which clearly set out that nation states must not deliberately target or harm civilians? If people exercising their legitimate right to resist an occupying force were also bound by those conventions, they would be permitted to attack soldiers in uniform but expressly forbidden from attacking civilians, whether armed or not.
Mr. Denham: I will touch on that issue, which relates to the report from which I took the wording of my amendment, in a moment. That report was by the high-level working group established by the Secretary-General of the United Nations in preparation for the 60th anniversary world summit. The group addressed the problem of defining terrorism legally, politically and specifically. It concluded—I am paraphrasing, but I hope fairly—that actions of states such as war, occupation and genocide are already covered by international law in one way or another. Attempts to agree international laws on terrorism, excluding specific offences, have so far always foundered on what has been described as the freedom fighter problem—one man's terrorist is another's freedom fighter. In the past, that problem most obviously preoccupied the UN in respect of the Palestine Liberation Organisation, the Israeli occupation since the '67 war, and so on.
The high-level working group made a very persuasive point. It said that there should be some international norms, and it approached the issue not from the political basis of the action that might be carried out by civilian or non-state combatants, but according to the type of action that is acceptable. It said that it does not matter what the cause is—deliberately targeting civilians is wrong. That is the basis on which it produced the wording that I have used in my amendment.
There are two reasons to commend this definition to the House today. First, although it is not an intergovernmental agreement, it did come from a legitimate international process set up under the auspices of the UN. Secondly, it deals with the problem that this House has been wrestling with for the past few days, and for that reason it is to be greatly preferred, in dealing with the offences under consideration, to the Government's definition. Any Member of this House should be prepared to argue with their constituents that deliberately setting out to kill civilians and non-combatants—be it in Burma, Chechnya, Kashmir, Palestine or any future trouble spot—is wrong, no matter what the history, grievance or repression. That is why the wording of my amendment has been drawn directly from the working group report.
I acknowledge that my amendment is not perfect. First, it should certainly apply to clause 21—the proscription clause—which was discussed earlier. Secondly, a number of colleagues have raised with me the fair criticism that we cannot appear to endorse attacks by terrorist groups on British troops, or attacks on those of our allies with whom British troops may be serving, for example, under UN mandate or under the auspices of NATO, as in the Kosovan war. That is an issue, but it is perfectly clear—I have examined it in some detail—that there are a number of ways in which we could bring within the terms of this Bill such attacks on British troops and other troops serving the UN.
It is true that some extremely unpleasant—and, indeed, evil—acts that might take place around the world would not be covered by the definition in my
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amendment. We should recognise that openly as a problem, but the debate has shown that a much bigger problem exists with the way terrorism is defined for the purposes of clauses 1 and 17. That definition is so broad that it encompasses every act of political violence, even the most trivial.
I see no way to avoid the truth that the House will have to come to a compromise in this matter. We must find a compromise between the all-embracing definition, which throws up huge problems, and a definition that excludes some matters that all hon. Members doubtless oppose.
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