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I have no doubt that many of the defendants at Nuremberg had never pulled a trigger in an unlawful way or committed a murder directly, but some of them were there because they were engaged as members of
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Lord Mayhew of Twysden: This amendment simply makes it a defence to prove that something is an unlawful enterprise. In some ways, it is quite an attractive amendment and, viewed academically, one can see how the already eloquent argument of the noble Lord could be expanded. However, I suggest that it must fail on practical grounds, for the reason given by my noble friend Lord Kingsland. Under our constitutional arrangements, for better or for worse—and I cannot think of one that would be better practically—the Government’s legal adviser is the Attorney-General. Somebody has to hold that position and, for there to be an end to a dispute, there has to be a rule that, when the Attorney-General has given his opinion on the legality or otherwise of something, the Government must accept it. If they have to accept it, I do not see how, practically, it can be sustained that those whom they order to give effect to their policy should be able to challenge that which the Government themselves cannot challenge. In those circumstances, as a matter of practicality, I suggest that this amendment must fail.
I do not think that this is to oust the jurisdiction of the courts on the question whether something is lawful. We are simply considering whether there should be a defence. I do not believe that you can prevent somebody raising it as a matter of consideration for the court. That jurisdiction is not being ousted; we are simply preventing it becoming a defence, for the practical reasons that I and other noble Lords have suggested.
7.15 pm
Lord Craig of Radley: The word that I stumbled over when I read this amendment was “prove”. The amendment says that the defendant has to prove that whatever he was doing was “illegal under international law”. That really seems an impossible operation for a defendant. I am not sure what the international law would be that he was trying to prove was involved. So I am afraid that I cannot support the amendment.
Viscount Slim: I come to some nuts and bolts with regard to the remarks of the noble Lord, Lord Thomas of Gresford. None of us would want our medical officers to think that they were going into battle to kill or wound people or to fight, but with the sort of enemies that we fight these days—and in the past—if the medical officer is not armed, surely he has a duty to defend his patients if his surgical station is overrun. He has a duty to defend himself, too, because we want him to go on being a jolly good medical officer.
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I would have to be very careful in agreeing with the noble Lord, especially with regard to the case that he mentioned, on which I have only the newspapers to go by. I can see this being used as an excuse in an operation area, when somebody is given an order to go on patrol, or whatever, and that person says, “No, I don’t agree with the war; I’m not going”. When we come down to nuts and bolts, we have to be very careful of that.
Lord Drayson: Amendments Nos. 14 and 25 would make it a defence to any charge of obstructing operations or desertion to show that the operation in question required someone to commit,
The words quoted seem to be intended to cover both criminal acts and service which the United Kingdom was carrying out contrary to its international law obligations, as the noble Lord, Lord Kingsland, has said. I emphasise that if a member of the Armed Forces is ever given an order to commit a crime, he should disobey it. That is the right response if he is given such an order. Therefore, the amendment is unnecessary to deal with crimes.
The amendment would also allow a defence that service being undertaken was illegal under international law. That is simply a wider variation of the first amendment, which allows a defence if one type of service—military occupation—is unlawful under international law. This allows the service man or woman to argue that service against an enemy or for the protection of life or property is not being undertaken in accordance with international law.
International law, however, looks at Governments and states in relation to the legality of operations. It does not expect the ordinary service man or woman to assess whether an operation is sanctioned by international law. It would totally undermine the cohesion of the Armed Forces to provide that, in respect of certain types of operation abroad, a member of the Armed Forces could simply go absent without permission because he or she thought the operation was contrary to international law. Under the amendment, he would not even have to show that he had gone absent for this reason, only that the operation did not meet international law requirements.
Your Lordships will no doubt be aware that the report of the Joint Committee on Human Rights published last Friday asked why Clause 3 does not allow the legality of the deployment of British forces to Iraq to be argued in relation to an offence under Clause 3. I will write to the committee to provide a detailed answer to its questions, but I hope my reply to this amendment has outlined in the time available our reasons for deciding that such a defence should not be available.
Lord Thomas of Gresford: I am grateful to the Minister for his reply, and to all noble Lords who have taken part in this very short debate on this matter of considerable principle. Should a person be allowed to argue, to take the question of the noble and gallant Lord, Lord Craig, that an invasion is a war of aggression? Such a war is obviously illegal in
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We will consider this matter. I shall consider the Minister’s response tonight and in his promised letter to the Joint Committee to see whether we can take this debate any further. This is a probing amendment, and I hope it has at least raised an interesting issue for your Lordships. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Earl Attlee moved Amendment No. 15:
The noble Earl said: I shall also speak to Amendments Nos. 16, 17 and 18. The Bill has sensible provisions about looting, but where does looting stop and using the enemy’s materiel of war against him start? Presumably it would be legal, though sometimes unwise, to take and use the enemy’s hand grenades, but taking his wristwatch would be illegal. However, what about food supplies? Where is the dividing line? And how does Clause 4 work?
Amendment No. 16 covers the law of armed conflict requirements not to take a prisoner of war’s NBC protective equipment, although my amendment is designed to go a bit wider and include such things as boots and foul-weather equipment. Amendment No. 18 builds on No. 15 and creates an offence of “failing to suppress looting”. If an offence to fail to suppress mutiny is in the Bill, why do we not have one for failing to suppress looting? Both are serious breakdowns in discipline. I beg to move.
Lord Garden: While I am generally sympathetic to the noble Earl’s approach to this question and to having consistency of offences, we have to think about the onus his new clause, which would include the failure to suppress looting, would put on particular servicemen to identify that the process going on was covered by Clause 5—that people who were subject to service law were conducting the looting. As an example of the difficulty they might be placed in, I quote the comments of the former Defence Secretary, Mr Hoon:
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“The hon. Gentleman referred to looting, and I know that right hon. and hon. Members will be concerned about that issue; indeed, I have sought to identify the extent of it—
he was talking about Iraq, during that operation—
- “Fortunately, it appears so far to be confined to Iraqi citizens—shall I use the word—‘liberating’ those items that are in the charge of the regime by entering its former facilities and the secret organisations, and redistributing that wealth among the Iraqi people”—
this is Mr Hoon, the Defence Secretary, speaking—
- “I regard such behaviour as good practice, perhaps, but that is not to say that we should not guard against more widespread civil disturbances”.—[Official Report, Commons, 7/4/03; col. 24.]
Your Lordships now know, with the benefit of hindsight, that that looting period in Iraq led to the chaos and anarchy that have developed since. It seems hard that we are putting the onus for making difficult decisions about looting on junior servicemen when our Defence Secretary seems unable to come to the right conclusion.
Earl Attlee: I would just add that my amendment was targeted at servicemen, not civilians.
Lord Drayson: Amendments Nos. 15 and 16 limit the offence of looting from a person to personal property, including personal protection equipment. I believe the reason behind this is to make clear that in some cases military equipment may be taken. I believe, however, that it is already clear, as the offence is committed only if property is taken without lawful excuse.
Amendment No. 17 would add to subsection (4) that a lawful excuse includes taking property for the public service. This is already provided by subsection (3) in relation to military equipment. The amendment would apply the defence to taking even the personal property of the dead and wounded. In my view that would not be appropriate.
The wording of Amendment No. 18, which creates a new offence, suggests to me that the noble Earl has drawn his idea from the offence under the Bill of failing to prevent or suppress a mutiny. However, that offence is exceptional. There has long been an offence of failure to prevent or suppress mutiny because of the enormous potential effects that that might have and the need to ensure that the personnel of any rank, without specific orders, would do all they could reasonably do to prevent or suppress it. Such extra obligations are, however, not generally imposed. For offences apart from mutiny, we think the existing provisions are sufficient. Those include disciplinary offences, such as neglect of duty and conduct to the prejudice of good order and discipline, as well as criminal offences, such as aiding and abetting crimes. I hope the noble Earl accepts this view and feels able to withdraw his amendment.
Earl Attlee: I am grateful for the Minister’s response. My only difficulty, which I will have to think about carefully, is that Clause 4 says “without lawful excuse”, but surely, if you are using the equipment for your own purposes, that would just be a reasonable excuse. I will have to look carefully at his
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Amendment, by leave, withdrawn.
[Amendments Nos. 16 and 17 not moved.]
Baroness Crawley: I beg to move that the House be resumed. In moving this Motion, I suggest that the Committee stage begins again not before 8.30 pm.
Moved accordingly, and, on Question, Motion agreed to.
Terrorism Act 2000 (Proscribed Organisations) (Amendment) Order 2006
7.30 pm
rose to move, That the draft order laid before the House on 17 July be approved [34th Report from the Joint Committee and 42nd Report from the Merits Committee].
The noble Baroness said: My Lords, Section 3 of the Terrorism Act 2000 provides a power for the Home Secretary to proscribe an organisation which he believes is concerned in terrorism. This is done by adding the organisation to Schedule 2 to the Terrorism Act 2000, which lists proscribed organisations. An organisation is concerned in terrorism if it commits or participates in acts of terrorism, prepares for terrorism, promotes or encourages terrorism or is otherwise concerned in terrorism.
This power was extended by Section 21 of the Terrorism Act 2006 to include those organisations which glorify the commission or preparation of acts of terrorism. Glorification includes any form of praise or celebration of acts of terrorism. We are therefore now able to take action against those who make statements which create a climate that supports and fuels terrorism.
The order we have before us today lists four organisations that we believe are concerned in terrorism. These are: Al-Ghurabaa; the Saved Sect; the Baluchistan Liberation Army, or BLA; and Teyrebaz Azadiye Kurdistan, or TAK. Two of these organisations, Al-Ghurabaa and the Saved Sect, are being proscribed under the new glorification provisions and this is the first time that they have been used. The other two organisations, the BLA and TAK, are directly involved in acts of terrorism.
When deciding on whether to make an order proscribing a group, a number of additional factors are taken into account and these were published in 2001. They are: the nature and scale of an organisation’s activities; the specific threat that it poses to the United Kingdom; the specific threat that it poses to British nationals overseas; the organisation’s presence in the United Kingdom and the need to support other members of the international community in their fight against terrorism.
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Proscription of an organisation is a very serious matter. It means that the organisation is outlawed in the United Kingdom and it is illegal for it to operate here. The 2000 Act makes it a criminal offence to belong to or invite support for a proscribed organisation. It is also an offence to arrange a meeting which will support or further the activities of, or which will be addressed by, someone who belongs to such an organisation. Finally, a person commits an offence if they wear clothing or carry or display articles which provide a reasonable suspicion that they are a member or supporter of a proscribed organisation.
It is important to note here that any organisation that is proscribed, or anyone affected by a proscription, can appeal to the Home Secretary for the organisation to be deproscribed. If this is refused, the applicant can appeal to the Proscribed Organisations Appeal Commission (POAC). Given the wide-ranging impact of proscription, the decision to put forward a group for proscription is taken only after a thorough review of all the relevant information. This includes open source material as well as intelligence material and advice that reflect consultations across government and with the law enforcement agencies.
Proscribing the four groups in the order will send a clear message that the United Kingdom takes seriously its role in fighting terrorism. We all know that the nature of terrorism has changed, that the structures used are more fluid and international and that there are organisations that recruit and radicalise as well as those that actually commit terrible acts of violence against innocent civilians.
It is against this background that we must consider all the steps we can take to protect our citizens from terrorism. This involves difficult decisions and judgments but the overriding responsibility must be to protect the public. Part of that is about making it harder for those organisations that are involved in terrorism, both directly and indirectly, to operate. That is what proscription does.
I turn to the organisations in the order. Al-Ghurabaa and the Saved Sect use the internet as their main medium. The two organisations are closely connected and both are successor organisations to Al-Muhajiroun, which was run by Omar Bakri. They use the internet to attack the values of our society and to praise those who want to use violence for ideological aims. They spread a message that is aimed at the young and the vulnerable and which indirectly encourages them to emulate terrorist acts. For example, the Al-Ghurabaa group explicitly refused to condemn the July 7 bombings and a spokesperson has said:
“What I would say about those who do suicide operations or martyrdom operations is they’re completely praiseworthy”.
There is also material on the Al-Ghurabaa website that says:
“We do believe in Jihad, we do believe in violence, we do believe in terrorizing the enemy of Allah”.
They talk about Osama bin Laden being a lion and of his opponents,
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The Saved Sect churns out similar propaganda. It talks about the only solution being violent Jihad. This is not freedom of speech but an abuse of those freedoms, and it is an insidious attack on the values we hold dear in our culture.
The case with the BLA and TAK is different. These are organisations directly concerned with terrorism—organisations that have claimed responsibility for some dreadful atrocities. For example, the BLA has claimed responsibility for attacks going back to at least 2004, including the murder of Chinese engineers in February 2006 and nine bombings at railway stations during 2005. TAK has also claimed responsibility for attacks in Turkey since 2004, including a bomb attack on an internet café in Istanbul. Although these organisations are not based in the United Kingdom, they pose a threat to our citizens as the tragic death of British citizens in a bomb attack by TAK in the Turkish resort of Kusadasi in 2005 demonstrates.
Given the nature of the organisations listed in this order, we invite your Lordships to agree that it is quite right that we should proscribe them, and I commend the order to the House. I beg to move.
Moved, That the draft order laid before the House on 17 July be approved [34th Report from the Joint Committee and 42nd Report from the Merits Committee].—(Baroness Scotland of Asthal.)
Baroness Anelay of St Johns: My Lords, I thank the Minister for explaining the terms of the order.
My honourable friend Mr Patrick Mercer, the shadow Minister for Homeland Security, made it clear when this matter was debated in another place last Thursday that we strongly support the making of the order. The police and security services have an intensely difficult task to perform in protecting the public from the threats and activities of extremist groups. That task is made even more testing when such groups change, chameleon-like, either their name or their organisational links and methods.
The proscription of an organisation is indeed a serious matter; and it has serious consequences. The organisation is outlawed in the United Kingdom and it is therefore illegal for it to operate here. The Minister was right to remind us that the Terrorism Act makes it a criminal offence to belong to, or invite support for, a proscribed organisation. It is also illegal to arrange meetings for them or to wear items that indicate support for such an illegal organisation.
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