Lords Hansard text for 24 Jul 200624 July 2006 (pt 1051)

As the noble Lord, Lord Waddington, said, this is not the right occasion to ask the Minister to give a ruling on a specific organisation such as the PMOI—although the noble Lord has given very strong grounds indicating what the Minister’s answer should be. I wish to adopt a lower key, and a lesser demand, although I share the views of the noble Lord, Lord Waddington.

It is essential that this review should be carried out in depth and seriously. When one body on the proscribed list was said by the Foreign Secretary at the time of proscription to have never committed any terrorist offences in the United Kingdom; when, after many

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months of deep interrogation and inquiry by the American security authorities of PMOI members in the Ashraf camp in Iraq, there was no evidence of terrorist activities; when a raid by the French police on the headquarters of a body which, according to the press, produced nothing that could indicate any kind of terrorist activity, and when the umbrella body of that organisation is not listed as a proscribed organisation, surely the Government are under a clear and powerful duty to investigate and to be really satisfied that this proscription continues to be justified. If it is not justified, then serious injustice may be done and there may be a restriction on freedom of speech and on democracy that we in this country should not seek to establish a record for upholding.

I therefore urge the Minister to consider accepting—even if she cannot give us an indication tonight, although I hope that she will—that the Government need seriously, carefully, fairly and openly to consider the position of the PMOI, not as one of a group of 10, 15 or 20 organisations, but as an independent body whose record over the past few years can be investigated in great depth. If she does so, then I suggest, with great respect, that the answer may well be the one expected by the noble Lord, Lord Waddington, and the noble Baroness, Lady Harris. They accepted that she was not expected to give the answer tonight, but thought that it would be a good idea for her to give it pretty soon.

Baroness Scotland of Asthal: My Lords, I thank all noble Lords who have supported this order, in particular the noble Baroness, Lady Anelay, who has given such trenchant support to the orders and the necessity for them. I hope that I will be able to provide comfort to other noble Lords, too.

I can give the assurance sought by the noble and learned Lord, Lord Slynn of Hadley, on how we review such organisations. We keep under review a large number of organisations, although I cannot comment on specific details about them. However, I hope that your Lordships will be reassured to know that that is done by the proscription working group which brings together officials from the Security Service, the police, No. 10 Downing Street, the Foreign Office and the Home Office. If it was assessed that an organisation no longer met the criteria for proscription, then it would be considered for de-proscription.

A number of noble Lords including the noble Baroness, Lady Harris, the noble Lords, Lord Russell-Johnston and Lord Waddington, and the noble and learned Lord, Lord Slynn of Hadley, specifically mentioned the PMOI. The noble Lord, Lord Waddington, is correct in saying that an application regarding that organisation is currently before the Home Secretary. It would therefore be wholly improper for me to say anything at all about it. However, I can assure noble Lords that what has been said in this Chamber will be noted. It will be brought to the attention of those who have to consider these matters and I am sure that it will have some effect. I cannot say what the effect will be, of course, but I can assure your Lordships that it will be considered appropriately.

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I turn to the specific questions on internet service providers. As noble Lords will know, proscription means that it is a criminal offence to be a member of a proscribed organisation, or to distribute or circulate a terrorist publication to provide a service that enables others to obtain, read, listen to or look at such a publication, or to transmit electronically such a publication. We have therefore worked very hard with ISPs to look at that issue. For instance, we understand that the Al-Ghurabaa website was hosted in the United Kingdom and that the Saved Sect was hosted overseas. The company hosting the Al-Ghurabaa website has withdrawn its services. We are working with the police to consider possible enforcement actions, including the use of notices issued under Section 3 of the Terrorism Act 2006, which requires the removal of offending material from the internet. We know from experience in other areas such as child pornography that it is more difficult to deal with websites based overseas. The only way to tackle the issue is through international collaboration in the fight against terrorism, in which we are actively engaged. I can therefore assure the noble Baroness that we will take all appropriate action to deal with it.

Proscription means that the police can apply to a magistrates’ court for the forfeiture of an organisation’s assets. If appropriate, that can certainly be done.

The noble and learned Lord, Lord Lloyd, asked whether two of the organisations could have been proscribed under previous provisions as opposed to those involving glorification. It would have been very difficult under the old regime to so proscribe them. The specific nature of their activities does, however, fall squarely within the new glorification provision. There is therefore no ambiguity or difficulty in the current legislation. I think that it is arguable whether that would have been appropriate, or possible, under the old legislation.

I cannot give noble Lords specific details on the position regarding membership in the United Kingdom of those organisations. As noble Lords will know, however, it is not simply a matter of organisations that operate here or have a membership here. Their membership in other areas can have an effect here, and they fall within that remit.

On each of the four groups I hope that I have been able to assure noble Lords that appropriate steps have already been taken, and that they can be taken in reviewing those already proscribed and those that will be proscribed by this order. These are important matters. I agree that the consequences of proscription can be profound and far reaching. We therefore have to be most judicious in assessing who should or should not be on the list and when, and if it is possible, to remove those who may have properly been proscribed at one stage but no longer merit such proscription. It is an ongoing issue. A constant review, as opposed to simply a one-time review, is critical, as we must continue to assess the propriety of the continued proscription of each of the organisations.

I hope that I have assured noble Lords sufficiently to enable me to commend the order to the House without further ado.

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On Question, Motion agreed to.

Lord Bassam of Brighton: My Lords, I beg to move that the House do now adjourn until 8.30 pm.

Moved accordingly, and, on Question, Motion agreed to.

[The Sitting was suspended from 8.10 to 8.30 pm.]

Armed Forces Bill

House again in Committee.

Clause 6 [Mutiny]:

Lord Craig of Radley moved Amendment No. 19:

(a) he agrees with at least one other person subject to service law to overthrow or resist authority; (b) he agrees with at least one other person subject to service law to disobey authority, and the agreed disobedience would be such as to subvert discipline; (c) he, in concert with at least one other person subject to service law, acts with the intention of overthrowing or resisting authority; or (d) he, in concert with at least one other person subject to service law, disobeys authority in such circumstances as to subvert discipline.”

The noble and gallant Lord said: I shall speak also to Amendments Nos. 22 and 23. Mutiny is a most serious offence and, happily, of very rare occurrence. Rightly, if someone subject to service law were convicted of mutiny and sentenced to imprisonment, it could be for life. With such a punishment, it seems to me that the wording of Clause 6 should be in language which is crystal clear and which defines mutiny. Tomorrow's serviceman—even one today—can access via the internet the wording of any recent Act or Bill. I have Clause 6 on my PDA, and you can now get a PDA for a relatively modest sum. So it seems to me that this Committee should be most careful about the clarity of the wording and definitions of major offences in the Bill.

My Amendment No. 19 is probing, and possibly prodding. The word “mutiny” does not appear in the text of Clause 6—only in the side heading and the centre heading above it at line 11. According to my staff college training in service writing, which I assume had its basis in legal practice, it was wrong to rely on the words of a side or centre heading, and my directing staff would have red-inked it as a mistake if I had done that. In the whole of Clause 6, the word “mutiny” appears in the side heading only. It appears twice in lines 31 and 34 in the following clause, Clause 7, so it seems reasonable to expect Clause 6 to be very clear in its references to, and definitions of, mutinous behaviour.

I noted a difference of approach in the way that some of the clauses in this part have been drafted. Some start, as does Clause 6, with the generality:

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Others—for example, Clauses 8 and 9—state explicitly that a person subject to service law commits an offence if he “deserts” or if he is,

These offences, particularly desertion, are serious, and it is right to make plain what the defences are and to define them.

My Amendment No. 19 to Clause 6 is an attempt to emulate the approach of Clauses 8 and 9, so it starts with the words:

It is not clear to me whether Clause 6 is drafted to catch a person subject to service law with a charge such as disobeying authority so as to subvert discipline, which does not have the word “mutiny” in the charge. If so, I do not like it. I attempt in my amendment to make it clear that mutiny is an offence for a person subject to service law; the amendment brigades as definition the four types of mutinous behaviour given in the present Clause 6 into one subsection.

The Marshalled List does not repeat exactly the amendment that I tabled, which was reflected in HL Bill 113(n) and in the Keeling version, which the Minister sent to many of us. The word “or” is now missing from the end of both paragraphs (a) and (b). My intention was to make an offence of the behaviour set out in any one of the four paragraphs that define mutinous behaviour. I now understand that it is not necessary to repeat the word “or” to make it clear that the behaviour set out in any one of the four paragraphs would be deemed to be mutinous behaviour, so I am content with the absence of the word “or”.

Amendment No. 22 simply follows my approach of clarity. In Amendment No. 23 I seek an explanation from the Minister as to why the Bill distinguishes between an agreement with at least one other person to mutinous behaviour, as in Clause 6(1), and acting in concert with at least one other person to overthrow or to disobey authority, as in Clause 6(2).

Clause 7(1)(a) refers to mutiny occurring or “intended”. I do not follow why the different definitions of mutinous behaviour have to be separated so that only the latter group—that is, in Clause 6(2)—is caught by the definition of mutiny. Anyone failing to take steps to suppress or prevent mutiny ought to be culpable. As I could not understand the distinction drawn by Clause 7(2), I adopted the approach in my Amendment No. 19 of brigading the four mutinous behaviour definitions into one subsection, deleting Clause 7(2) as a consequence. I look forward to the Minister’s elucidation. I beg to move.

Lord Garden: I rise to speak to Amendments Nos. 20 and 21 within this grouping. I fully endorse what the noble and gallant Lord, Lord Craig, said about the seriousness of the offence of mutiny, which causes potentially great disaster in terms of military operations. When looking at the background to this, I noted that until 1689 mutiny applied as an offence only during a period of war. I am not proposing that

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we go back to the pre-1689 situation. However, the House of Commons Select Committee on the Armed Forces Bill report says at paragraph 19:

I agree with that.

When we consider this—the most serious of military offences in some ways—we have to remember that it covers a wide range of circumstances, some of which will be at the operational end, and some at the non-operational end. My amendments address the words “or resist” and “or resisting” authority, compared with “overthrow” authority, which is the other test of mutinous behaviour. Overthrowing authority is self-evident. The serviceman who has the noble and gallant Lord’s personal digital assistant to read this will know what overthrowing authority means.

Resisting authority is a more subjective test. I can think of many circumstances when the noble and gallant Lord was my commanding officer as Chief of the Air Staff, once upon a time, when a group of us might have suggested an alternative course of action. Was that resisting authority? That is the way in which discussions occur in peacetime operations or the way in which in peacetime circumstances we come to the best decisions—a bit like in your Lordships’ House when we come to the best formulation of law. We discuss various things. We are not being mutinous, but are merely trying to distil the available wisdom.

The word “resisting” in modern circumstances covers too broad a definition. Indeed, the Minister will probably say that he wishes to resist my amendment. If several of us resisted, would that be mutinous behaviour? This is a probing amendment. When something is so serious that until relatively recently it carried the death penalty, but now carries the sentence of life imprisonment, we need to be very precise in our meanings. I look forward to hearing what the Minister has to say about how “resist” works in modern society, where the age of deference is almost dead. The military may wish to maintain it but I think not by life imprisonment.

The noble and gallant Lord’s amendments took me back to his clarity of thought and language when we sat round the table at the Ministry of Defence. If in using the right legal terminology we can make the Bill understandable to anybody who reads it, that is to be encouraged. Of course, I would want him to drop the words “resist” and “resisting” from his subsection. With that small change, we could agree on his amendments.

Lord Astor of Hever: The noble and gallant Lord Craig has raised an interesting point on the drafting of Clause 6. As he said, the matter is one of form rather than substance. It is strange that the word “mutiny” does not appear in the opening line of the first subsection, whereas “deserts” appears in the opening line of Clause 8, which deals with desertion. Although I accept that Amendments Nos. 20 and 21 are probing amendments, they raise a different issue

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and, unlike the other amendments in this group, propose substantive change to the offence of mutiny. By removing references to resisting authority, the amendment would restrict the scope of the offence to actions done with intent to overthrow authority. That would dilute the definition of mutiny, which we believe should be worded as strongly as possible. Resisting authority in a military context can be just as damaging as overthrowing authority. Although I suspect that this offence will be used very infrequently, we submit that this wording should remain in the Bill to serve as an absolute safeguard to military authority.

Lord Borrie: I follow the noble Lord, Lord Astor of Hever, in expressing some surprise that the word “mutiny” does not appear in the opening lines of Clause 6. Indeed, the word “mutiny” does not appear at all in Clause 6. It appears in Clause 7, but not in Clause 6. Therefore, the approach of the noble and gallant Lord, Lord Craig of Radley—to start by saying that mutiny is an offence and then to define it—seems to be eminently sensible and logical. The Bill follows that approach in immediately subsequent clauses.

As to the amendments proposed by the noble Lords, Lord Garden and Lord Thomas of Gresford, I realise that “overthrow” is a good deal more serious than “resist”, but the examples of resisting given by the noble Lord, Lord Garden, were not terribly impressive. I saw him as a very senior officer discussing drafts or suggestions with the noble and gallant Lord. It can hardly be called resisting authority when one has been called in to discuss things. After the decision has been made, any suggestion of ignoring or disobeying it would be resisting. Although resisting is the lesser of the two possibilities, I see nothing wrong with—and, indeed, I look with approval on—the use of the words “overthrow” or “resist” in this clause.

Lord Thomas of Gresford: I do not know whether these provisions have been lifted entirely out of the Army Act 1955 or are a new construct, but it is interesting to look at the way in which Clause 6 is framed. Not only does it not mention mutiny, but the first two offences are that the person,

or,

Essentially, those are conspiracy charges. They relate to an agreement between two people to commit an offence, and the offence that they are contemplating is straightforwardly mutiny.

When one looks at subsection (2), one sees that a person subject to service law commits an offence if,

Those are actions. Subsection (1) is about agreement—that is, a conspiracy to do something in the future—whereas subsection (2) is about actually doing it. A proper way of approaching this might be to follow the amendment

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tabled by the noble and gallant Lord, Lord Craig of Radley. We could say what mutiny is—and how a person can be guilty of it—by incorporating paragraphs (c) and (d) of his amendment and then, by adding a subsection (3), we could deal with the question of conspiracy to mutiny. That is not actually required, because conspiracy to do an unlawful act is an offence anyway, but it might make it clear if that were included.

If one looks at Clause 7, one can see how inconsistent it is. It uses the word “mutiny”. It states:

something that is active—

something that goes to the future—

Of course, the failure to suppress a mutiny is confined to the acting and not to the conspiracy, whereas one would have thought that it is as important to quash a conspiracy as it is to quash the act of mutiny when it is occurring.

These are very serious offences punishable by life. I suggest to Members of the Committee that those drafting the two clauses should look again at them very carefully, bearing in mind everything that the noble and gallant Lord, Lord Craig of Radley, has said. Central to the drafting of those clauses should be a firm definition of mutiny. There should be no confusion between an agreement to do something in the future and actually doing it. If the Government desire to draw a distinction between the two in suppressing mutiny, they should make that very clear. I do not suppose that that is their intention, which brings me back to where I started—I suspect that this provision may have been lifted wholesale from the current legislation.

8.45 pm

Lord Drayson: I believe that I can be helpful on this amendment. The noble and gallant Lord’s Amendment No. 19 would revise the clause using virtually the same words, but giving it a different structure. In particular, the words,

would appear twice—once in relation to action with the intention of overthrowing or resisting authority, and once in relation to disobeying authority. Subsection (2) currently uses those words once in relation to both.

No drafting style will please everyone. We have tried to ensure consistency in style throughout the Bill. I have some sympathy with the noble and gallant Lord’s point of view. There is a problem with his redraft, however. I am not sure whether this is the noble and gallant Lord’s intention, but his amendment would change the effect of the clause. I will do my best to explain why.

At present, the clause creates two offences. One, in subsection (1), is in essence “agreeing” to act. The other, in subsection (2), is in essence “acting”. We think it more appropriate for there to be two offences, because “agreeing to act” and “acting” are really quite

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different. That also means that the prosecution must decide at the outset which offence it believes the defendant has committed and charge him with that offence. It must nail its colours to the mast, so to speak. The charge would either be acting,

or agreeing,

Amendment No. 19 would alter that by making all forms of mutiny a single offence. So the charge could be, “acting with the intention of overthrowing or resisting authority or agreeing with one other person to overthrow or resist authority”. I am sure that noble Lords will see the distinction. If the accused were convicted on a charge that was drawn in that way, no one would know whether the court thought that he had agreed to act mutinously or that he had actually done so.

In such a serious matter, we think it better that the charge should make it absolutely clear what the accused is alleged to have done. Keeping the offences separate, as we have in the Bill, achieves this. I will, however, look in this one instance at whether we can go some way towards meeting the noble and gallant Lord’s point about the drafting. I trust that, in the circumstances, he will feel able to withdraw his amendment.

Lord Craig of Radley: I thank the Minister for that very helpful explanation and I thank all noble Lords who have spoken in support. The difficulty that I have with the Minister's distinction between acting and what he said is “showing an intention of acting” is that Clause 7(1)(a) talks about intention. Therefore, the provision deals not just with the act of committing a mutiny but with the fact that people have agreed to do so. It seems to me that, if they have agreed, there is an intention of being mutinous. I put these provisions all together because of the wording of Clause 7(1)(a), which mentions a person who,

The use of the word “intended” seemed to me to cover the first provision of Clause 6, which talks about agreeing with one or more people. Nevertheless, in view of what the Minister and everyone else have said, I shall be very happy to beg leave to withdraw the amendment.

Lord Drayson: With the indulgence of the Committee, I should like to speak to Amendments Nos. 20 and 21. Those amendments would limit the offence to agreements or action to overthrow or subvert authority; the offence would no longer cover agreement or action to resist that authority. That would legalise resistance to authority, as long as it stopped short of actually overthrowing or subverting that authority. Such resistance could, without doubt, imperil a mission. Concerted resistance to command authority cannot in my view—or, more important, the view of the services—be consistent with discipline. The amendment should therefore be rejected.

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Clause 7 complements Clause 6 by requiring service personnel to do all that they reasonably can to prevent or suppress acts of mutiny that go beyond a simple agreement to mutiny. We do not believe it right that the duty imposed on all service personnel to prevent and suppress mutiny should be limited to acts of mutiny that go beyond an agreement to mutiny. I therefore cannot support Amendment No. 23 and hope that the noble and gallant Lord will consider withdrawing it. Amendment No. 22 to Clause 7 appears to be consequential to Amendment No. 19 to Clause 6.

Lord Garden: I am slightly disappointed by the Minister's reply to what was, after all, a probing amendment to try to get some clarity on what he thought “resisting” meant. He has told us that, because at the extreme end “resisting” is tantamount to “overthrowing” authority, all lesser things should be encompassed by it. I was rather hoping that he would find some way to define it more narrowly to make it appropriate to an offence of this magnitude. His answer did not give us that. I was also slightly surprised that, in tackling the issue raised by the amendment of the noble and gallant Lord, Lord Craig of Radley, he did not pick up the helpful suggestion made by my noble friend Lord Thomas of Gresford that he could still have kept the offences—that is, agreeing to do mutinous things and acting mutinously—separate by a fairly simple addition to the noble and gallant Lord’s amendment.

Earl Attlee: The Minister may prefer to write to me on this query. It seems to me that there is an offence of discussing the possibility of mutiny. I would never be prepared to discuss resisting or overthrowing authority. I would not want to get anywhere close to doing that, but it does not seem to be an offence to discuss the possibility of resisting or overthrowing authority. If the Minister could write to me on that point, I should be grateful.

Lord Drayson: I would be happy to write to the noble Earl on that point. I am grateful to noble Lords for the careful thought that they have applied to the clause. There are matters that I will read carefully in Hansard to see whether they can be applied to the benefit of the clarity of the clause.

Lord Craig of Radley: I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 20 to 22 not moved.]

Clause 6 agreed to.

Clause 7 [Failure to suppress mutiny]:

[Amendment No. 23 not moved.]

Clause 7 agreed to.

Clause 8 [Desertion]:

Lord Judd moved Amendment No. 24:

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The noble Lord said: In moving Amendment No. 24, I will be particularly interested in the debate on Amendment No. 25, in the name of the noble Lord, Lord Thomas of Gresford, which in some ways is related to the same ground. I indicated my concerns about the matters covered in this amendment at Second Reading. The Minister, who has been most responsive and helpful in taking up points made at Second Reading and elsewhere, did not at that stage apparently feel able to comment on this point. It will therefore provide an opportunity for him to say a bit about the matters under consideration.

Having served in the Armed Forces, albeit a long time ago, and been a Defence Minister, I am well aware of the gravity of desertion. It is a very serious offence, which can place lives in jeopardy and undermine an operation. Particularly in these days of highly developed technology, the absence of a key person at a particular time could be of critical significance. I have no argument whatever about spelling out the gravity of the offence of desertion in the Bill. I believe that if one recognises the gravity of desertion, it is therefore important to have severe penalties. We can argue about what those penalties should be when we have an opportunity to look at that a little later in our deliberations, but there should be a severe penalty.

My amendment simply proposes that, if the offence is grave and the punishment severe, it should be clear beyond doubt that whatever the service man or woman is being asked to do is proper and lawful. I suspect that my noble friend will say, “What on earth is the point in putting in the word ‘legal’ because, by definition, anything that a serviceman will be asked to do by our Government would be legal?”. Of course, that argument can be turned on its head: if anything that anyone may be asked to do is obviously legal, it would be quite harmless to put the word “legal” in the text just to underline the point.

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