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Session 2007 - 08 Publications on the internet General Committee Debates Criminal Justice and Immigration |
Criminal Justice and Immigration Bill |
The Committee consisted of the following Members:Alan
Sandall, Committee Clerk
†
attended the Committee
Public Bill CommitteeTuesday 27 November 2007(Afternoon)[Mr. Edward O'Hara in the Chair]Criminal Justice and Immigration Bill4
pm
Clause 74
ordered to stand part of the
Bill.
Schedule 15Offences
relating to nuclear material and nuclear
facilities
The
Parliamentary Under-Secretary of State for Justice (Maria
Eagle):
I beg to move amendment No. 224, in
schedule 15, page 185, line 16, at
end insert—
‘(ba) inciting
the commission of a nuclear
offence;’.
The
Chairman:
With this it will be convenient to discuss
Government amendments Nos. 225, 226 and
245.
Maria
Eagle:
Welcome back, Mr. O’Hara, to the
rollercoaster ride to the end of the Bill. We are getting
there.
I remind hon.
Members that the schedule relates to clause 74, which deals with
offences relating to the physical protection of nuclear material and
nuclear facilities. The amendments will ensure that the convention on
the physical protection of nuclear material, including the 2005
amendments thereto, is fully implemented into UK law. They will allow
prosecutions for incitement to commit offences against nuclear
facilities, as is required by the amended convention. However, in such
cases, it must be proved that the individual intended or believed that
the offence would be committed. If the offence is not committed as
incited, the inciter can still be prosecuted. They are basically
transitional arrangements until the Serious Crime Act 2007 comes into
force.
Amendment No.
245 makes consequential amendments to the definition of convention
offences in schedule 1 to the Terrorism Act 2006. The amendment ensures
that the schedule accurately reflects the new list of offences that
will be set out in the amended Nuclear Material (Offences) Act 1983 and
Customs and Excise Management Act 1979.
Are we
dealing with the schedule stand part debate now, Mr.
O’Hara?
The schedule
creates new criminal offences and extends existing ones under the
Nuclear Material (Offences) Act 1983, which is necessary for the UK to
ratify the 2005 amendments to the convention on the physical protection
of nuclear material. We are bringing UK law into line with certain
changes made to the convention.
It might help
if I give some background information on the changes. The convention
was concluded under the auspices of the International Atomic Energy
Agency in 1980. It came into force in 1987 and currently has just under
130 parties, of which the UK is one, having signed it in 1980 and
ratified it in 1991. The amended convention requires each state party
to establish, implement and maintain an appropriate physical protection
regime for civil nuclear material and facilities under its
jurisdiction, with the aim of protecting against theft, recovering
missing or stolen material, protecting material and facilities against
sabotage, and mitigating or minimising the radiological consequences of
sabotage. It also provides for co-operation between states in the event
of nuclear sabotage. It also incorporates a longer list of nuclear
offences than the original.
The
diplomatic conference of 2005 marked the end of a process initiated by
calls for amendment of the convention from the IAEA director general in
1999, and given impetus by enhanced concern for nuclear security
following the terrorist attacks in the United States in
September 2001.
The new and
extended offences cover the following broad areas of activity: misusing
nuclear material here or abroad intending damage to be caused to the
environment, or being reckless about whether it will be caused; doing
something outside the UK that involves moving nuclear material into or
out of a state without lawful authority; attacking a nuclear facility
here or abroad intending that damage will be caused to the environment
by exposure to radiation, or being reckless about whether such damage
will be caused; attacking a nuclear facility abroad and intentionally
or recklessly causing death, injury or damage to property as a result
of exposure to radiation; attacking a nuclear facility here or abroad,
intending that death, injury or property damage will be caused by
exposure to radiation, or being reckless about whether that is the
outcome, even if no such injury or damage
occurs.
Mr.
Philip Hollobone (Kettering) (Con): Those are some very
serious offences. I have two questions. Why, at the end of 2007, are we
getting round for the first time to implementing what the convention
asked the Government to do about these very serious offences? Secondly,
how many of the 130 signatories have already passed the measures into
their
law?
Maria
Eagle:
State parties that have been involved in the
negotiation of the amendments will have their own ways
of extending the offences to be able to deal with the
issue. My understanding is that about 10 to 15 have managed to ratify,
so we are not that far behind. This is the first opportunity that we
have had to deal with the matter, which is why, although it is a
somewhat strange clause to include in this Bill, I hope that the
Committee will accept it. What is happening is about extending
co-operation across borders so that activities of the kind in question
can be clamped down on properly by the authorities, without running
into problems of jurisdiction, or of incompatible laws across state
boundaries,
given that the relevant matters cross boundaries very easily. We are
fairly well up on the list of those who have got around to
implementing the changes. It is simply a matter of appropriate
legislative vehicles, which, as I hope the hon. Gentleman understands,
can often be a
problem.
As
the hon. Gentleman may know, the existing convention has largely been
about transport of nuclear material. It is partly the developments
since 2001, and the increased security that states have decided, for
obvious reasons, is required around nuclear material, that have led to
the diplomatic conference and the amended convention, which we want now
to implement. The director general of the International Atomic Energy
Agency, Mohamed el-Baradei, said of the amended convention:
“This
new and stronger treaty is an important step towards greater nuclear
security by combating, preventing and ultimately punishing those who
would engage in nuclear theft, sabotage or even
terrorism.”
It is on that
basis that I commend the schedule and the amendments to the
Committee.
Mr.
David Heath (Somerton and Frome) (LD): I welcome you to
the Committee this afternoon, Mr. O’Hara. Do not the
provisions show the extraordinary nature of the Bill—that part 6
can go from extreme pornography to prostitution and street offences,
and then to protection of nuclear material in a universal jurisdiction?
Later, of course, we shall go on to consider the penalties for
unlawfully obtaining personal data. All that is included in a single
part of the Bill—a Bill without a theme, as has been
said.
I
have some questions on the schedule. I thought that I would be
extraordinarily clever, but it turns out that I am not. I was going to
query the word “nuclide” in proposed new subsection (8)
of section 6 of the Nuclear Material (Offences) Act 1983, because I had
always used the word “nucleide” when I learned chemistry
many years ago, and I thought it was a misprint, but it turns out that
they have changed the word. I hope that I shall get the credit at least
for having done my research to ensure that I did not query the use of a
word whose usage had changed. I should probably blame the Americans for
eliding the perfectly serviceable word “nucleide” into
“nuclide”.
The provision
is extraordinary in the context of British law, which is not to say
that I shall argue against it. The measure provides universal
jurisdiction, which is familiar in American law, but which is rarely
used in this country. It does not matter where offences occur—it
could be anywhere in the world—they will be indictable in a
British court, and it will not matter who in the world is alleged to
have committed offences because anyone can be tried for them in a
British court. It is a substantial undertaking. A matter that has no
connection to the United Kingdom or any of its subjects could be put
before a British court. We should at least be aware of the breadth of
the applicability of the schedule as we debate it.
I should also
address one specific measure in the schedule. Paragraph 6 on page 186
deals with nuclear facilities, which are explicitly defined
as
“a facility used for
peaceful purposes”.
In other words, a facility is excluded if
it is not used for peaceful purposes, which is to say
“if it contains any nuclear
material which is used or retained for military
purposes.”
That proposal
seems to be an oddity. If a nuclear facility can in any way be
described as having a military application, either in itself or any
material contained in the facility, it falls outside the scope of the
offence and of the legislation.
It raises
some interesting questions of applicability. For example, what about
the nuclear facilities that we believe are being built in Iran. The
President of Iran tells us that the facilities are being built
exclusively for peaceful purposes, which would make removal of material
from those facilities an offence under the schedule. On the other hand,
the Government’s position is that the facilities are not for
peaceful purposes; rather, they have a military purpose, in which case,
in a British court, it could be adduced that they do not fall within
the definition because some would argue that they have a military
utility.
There might
be a perfectly proper reason for the specific definition, but it seems
curious and perhaps less well specified than it might
be.
Maria
Eagle:
The reason is perfectly simple: the convention does
not apply to military sites or materials, so the measures cannot do so.
We are simply amending the convention as all agree it should be
amended, which does not relate to military
facilities.
Mr.
Heath:
I am simply making the point that that exclusion
makes it more difficult to bring an effective prosecution. There will
be grey areas of definition. For instance, is a civilian institute that
uses nuclear material to develop nuclear safety and protection for our
troops in the field a peaceful or a military institution? It is
difficult to establish on which side of the line such an institution
will lie in terms of the definition. It would in some respects be a
purely defensive, almost academic institution, but it would use the
research that it undertook for military purposes—the proper
protection of our servicemen and women when they are in the
field—and therefore fall foul of the
clause.
4.15
pm
I
am simply saying that however well the provision may have read in the
treaty and in the convention, in British law it is a bit of a nonsense.
We should at least be aware that we are passing nonsense, even if we
think it a good idea to pass the nonsense to bring ourselves into line
with our international obligations.
My last point
is made in response to the intervention by the hon. Member for
Kettering. There have been perfectly good previous statutory and
legislative vehicles for the measure. If it was agreed in 2005, we have
had anti-terrorism legislation that could easily have been used for the
purpose, raising the question why the Government did not feel it
necessary to enact the measure until now, in this compendious
cornucopia that we call the Criminal Justice and Immigration
Bill.
Mr.
Edward Garnier (Harborough) (Con): I want to ask the
Minister a couple of questions. We must be careful when we extend the
jurisdiction of our courts to
extraterritorial offences, although I fully accept that it is necessary,
for example, to protect our armed forces from charges under this aspect
of the Bill in the event of our being at war. It raises the question
whether anybody who does anything against us, albeit in the course of a
military conflict, is protected from prosecution. I presume that they
are, unless the Secretary of State issues a certificate exempting them
from the protection. Let us not worry about that too much,
however.
The question
I really want to ask is this. Assuming that the offence is committed
overseas, but by virtue of the Bill is prosecutable in this
jurisdiction, would our prosecutors wait to see whether the country
where the act took place prosecuted, and prosecute in this country only
if there were no prosecution in the country where the act took place?
Alternatively, would there or could there be a prosecution in
both?
Maria
Eagle:
In that case, the hon. and learned Gentleman has
been remarkably succinct, for which I thank him. His
first scenario is correct: we would wait to see whether there were a
prosecution in the jurisdiction where the event took place. If there
were not, and we had the person in our grasp, the prosecution could be
undertaken in this
country.
I
have dealt to the extent that I can with the points that the hon.
Member for Somerton and Frome made. I cannot extend the
convention’s reach beyond that for which it was originally
negotiated, so it is not possible for the offences, which are an
amendment to the convention, to range more widely than its ambit. In
that sense, parameters have been drawn. He may not like the fact
that—[Interruption.] He is chuntering, so he obviously
has not received a good enough answer.
Mr.
Heath:
I do not want to interrupt the Minister, but that
argument is demonstrably not true. We are bound by our signing of the
convention to put into effect that which is in the convention. Our
signing does not limit us to that which is in the convention if it is
better to extend it through statute law in this
country.
Maria
Eagle:
No, indeed. However, the hon. Gentleman may recall
my saying that the clause is designed to put into effect the amendments
to the convention—simply that.
Maria
Eagle:
If the hon. Gentleman will give me a moment to
finish my sentence, I shall happily give way to him.
I am not
commenting on the range and ambit of the entire policy; I am simply
saying that the clause and schedule 15 are about implementing the
offences that
we must implement to ratify the amended convention. That is simply what
the Bill does, and in that sense I do not seek to go further. In the
broader policy sense, the hon. Member for Somerton and Frome is
perfectly right to say that, if one wished to apply offences to a wider
range of activities or places, Parliament could do
that—Parliament is sovereign—but that is not what we are
seeking to do in the Bill. There is not much more I can say about
that.
David
Howarth:
I should be grateful if the Under-Secretary
answered a general question, either now or later. Does the treaty
require the regime of conclusive certifying by the Secretary of State?
If it does not, the question arises whether that is the right
approach.
May
I put a hypothetical case to the Under-Secretary? It may be fanciful,
given present Government policy, but a future Government might take a
different view. Let us say that a country—perhaps the United
States—bombed an Iranian nuclear facility. If the question
whether that was an action by armed forces arose and, for some reason
best known to the Government of the day, the Secretary of State refused
to issue a certificate under the appropriate section—new section
3A to the Nuclear Material (Offences) Act 1983, inserted by paragraph 5
of the schedule—there would then be a question whether the
facility was military or peaceful. That matter is also, as I understand
it, to be determined conclusively by the Secretary of State. A future
Secretary of State could determine conclusively that such a facility
was not military and was therefore peaceful. At that point, the armed
forces of the other country would become subject to the universal
jurisdiction that my hon. Friend the Member for Somerton and Frome
mentioned and a case in the British courts becomes a
possibility.
Maria
Eagle:
Academic law is a wonderful thing, is it not?
Hypotheticals are part of it. To answer the hon. Gentleman’s
specific questions, the certification by the Secretary of State is not
mandated in the convention, but that is the mechanism that we choose to
adopt to deal with the issues in this
jurisdiction.
David
Howarth:
The point was not that that might happen, but to
illustrate the anomalies that might arise from using the mandatory
conclusive certifying process, and to say that there might be a
different way of doing it under which such difficulties would not
occur.
Maria
Eagle:
I am certain that there is probably another way of
doing it, but this is how we choose to do it. I am happy to hear from
the hon. Gentleman if he thinks of a better way that we ought to
consider in
future.
Mr.
David Burrowes (Enfield, Southgate) (Con): Will the
Under-Secretary clarify, either now or later, the timing of the
provisions in relation to the incitement offence? I understand that
that is, in effect, a transitional provision under the Serious Crime
Act 2007. What will the timing be in relation to that Act and the Bill
we are discussing? Which comes first? For how long will that be a
transitional provision?
Maria
Eagle:
Speaking from memory, as the provisions on
encouraging and assisting in the Serious Crime Act come into force,
they ought to cover what are currently common law offences. That ought
to deal with the issue. I am trying to remember when the provisions on
inchoate offences come into force. Whenever that happens, the
transition will be over. I hope that that assists the hon. Gentleman. I
just don’t have the date in my head and I apologise to the
Committee for that, but it should not be in the too-far-distant
future.
I
hope that I have dealt with the points that hon. Members have raised. I
commend the schedule and the amendments to the
Committee.
Amendment
agreed
to.
Amendments
made: No. 225, in
schedule 15, page 185, line 39, after
‘(2)(b)’ insert ‘,
(2)(ba)’.
No.
226, in
schedule 15, page 186, line 3, at
end insert—
‘(5) In
subsection (2)(ba) the reference to incitement
is—
(a) a reference to
incitement under the law of Scotland,
or
(b) in relation to any time
before the coming into force of Part 2 of the Serious Crime Act 2007
(encouraging or assisting crime) in relation to England and Wales or
Northern Ireland, a reference to incitement under the common law of
England and Wales or (as the case may be) of Northern
Ireland.’.—[Maria
Eagle.]
Schedule
15
, as amended, agreed
to.
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