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The Earl of Onslow: Would the noble Lord explain just one more thing to me, going back to illegalities abroad? Let us assume, for the sake of argument, that there is a group of Burmese who wish to act in rebellion against the Burmese military government--a government which is acknowledged by all to be a particularly nasty one and one which has overthrown the legitimate government of that country. Let us assume that these people decide that they wish to blow up the railway bridge across the Irrawaddy, or some such act which we would undoubtedly regard as terrorism. Are we honestly going to prosecute people who are in rebellion against a foul military regime of which we strongly disapprove? That I find very difficult to stomach.
Lord Williams of Mostyn: That is one aspect, and it is an example which I can recognise. However, there
might be another example which needs to be recognised also. I shall turn the noble Earl's rhetorical question round, if I may. Are we really saying that if two or more people conspire in this country to blow up a primary school, that would be something that should be outside the sanction of the criminal law?The true answer to the noble Lord's question is the position of the Attorney. He has to judge whether it is in the public interest, and the public interest has many different facets as to whether the action should be prosecuted or not. However, let us not forget that the conspiracy to put the bomb on the railway line or to blow up the bridge may well cause the deaths of countless perfectly innocent people. So there are quite a lot of rather more complicated aspects to this problem than is sometimes proposed by the bald question.
Lord Mayhew of Twysden: I have listened with enormous enjoyment and admiration to the most skilful defence put up by the noble and learned Lord, Lord Williams of Mostyn. It is not entirely out of self-indulgence and the desire to prolong this enjoyable exercise that I rise again and risk wearying noble Lords for a minute or two more.
The noble Lord, Lord Holme, was right to remind us that this interesting discussion arises in the context of Clauses 5 and the remainder being tacked on to what arises directly from Omagh. That is why we are talking about it.
The second point to remember is that the law which is contained in Clauses 5 and the remainder is new law. The noble Lord, Lord Williams of Mostyn, correctly says that the present law about criminality, of conspiring in this country to commit offences overseas, is a patchwork. He rightly says that it is difficult to understand the rationale of that patchwork. But what do these provisions do? They make any criminal offence overseas which is a criminal offence in this country eligible for the provisions of these clauses. If you conspire, if you do something to help along such an offence--I accept the definition of conspiracy given by the noble Lord--you are guilty of a criminal act.
I return to the point I made a few minutes ago. It is very much open to question--in fact I think that it is quite wrong--that you should be told, "In all the circumstances you have been guilty of a criminal act, and it rests with the discretion of the Attorney alone whether or not you shall be prosecuted for it". The noble Lord, Lord Williams of Mostyn, had an arguable defence to some of the illustrations given. I thought possibly it was the case in relation to the scenario posed by the noble Earl, Lord Onslow. If you blow up a bridge you can cause many people to die.
Let me suggest another scenario. Let me suggest that we are dealing with a regime which beyond all question is oppressive and disgusting. Those regimes depend upon money to survive. Let us suppose that there is a conspiracy to steal their money, to deprive them by unlawful means of their financial resources. Many of us feel that if we are to be told that the law of this country is to be enlarged so as to make criminal a conspiracy in that context, we need to think about it for much longer.
We do not want to have that extension to our law tacked on to what I might call the Omagh-derived provisions of the Bill. We want to have more thought given to it.The noble Lord said that that is the anarchy of the jungle: it is not the rule of law. I did not think that that was a convincing answer to the point raised by my noble friend Lord Marlesford who said that if it were the law of the jungle how is it that the Attorney-General is permitted to turn a blind eye to it. I believe that there is here serious material which justifies the time we have been taking on it. For my part, I am not satisfied that there has been a proper explanation or justification for tacking on to the Omagh-derived provisions of the Bill an extension of the law of this country which is quite so sweeping as that, with the harm as it were mitigated only by the fact that the Attorney-General has the say-so. Frankly, although I listened with admiration to what the noble Lord, Lord Williams of Mostyn, said about how he would operate, that is not what the Bill states.
On page 8 of the Bill the text states that,
- "The Secretary of State may by order provide that subsection (5) above shall not apply, or shall not apply to any case of a description specified in the order".
For my part, if the noble Lord, Lord Avebury, proposes to seek the opinion of the Committee I shall be with him.
11.45 p.m.
Lord Thomas of Gresford: Perhaps I might be permitted to clarify my own mind about the intention here and to get away from explosions, revolution and so on, and turn to the practical problems that might arise.
I take it that if there was an agreement within the United Kingdom, for example, to export drugs from Thailand to the United States, that would be caught by these provisions and an indictment could be brought against the two people who agreed in this country, under these provisions for conspiracy, although the offence of exporting drugs from Thailand to the United States had nothing at all to do with this country.
Supposing it were to be said that two people conspired within the United Kingdom criminally to libel somebody in the government of Singapore, a friendly Commonwealth country which is a little sensitive to being criminally libelled from time to time. Criminal libel is an offence in this country. It is rarely brought; it is rarely charged. Saying things about politicians in this
country is rather more acceptable than it is in Singapore. Surely, under the provisions of this Bill it would be possible for an indictment to be framed against two people agreeing criminally to libel the Prime Minister of Singapore and to produce them at the Old Bailey for a trial before a jury, subject only to the consent of the Attorney-General. Am I right in thinking that?
Lord Williams of Mostyn: I cannot imagine any circumstances in which an Attorney-General would give a fiat in those circumstances, not least because criminal libel has virtually disappeared in this jurisdiction. It has not been charged for years, and the last time it was used, not very successfully, was by the late, revered Sir James Goldsmith.
I go back to the points which were made by the noble and learned Lord, Lord Mayhew. The fact is that the consequences that he speaks of are exactly the consequences that one finds in the jurisdiction north of the Border, because all serious crime there is subject to the say-so of the Lord Advocate, acting as defender of the public interest, in the same way as the Attorney-General does here.
It is true that we have spent a little time on this matter. Of course, time always rushes by when one is having fun. This is a legitimate extension of the powers available in this country. We have included the important sanction of the Attorney-General's consent, which was absent from the Bill in the other place; we have included the dual criminality; we have not included incitement, encouragement or funding. It is conspiracy to commit crime which will be caught. I recognise and sympathise with the motives of the noble Lord, Lord Avebury, because he does not want political refugees or political dissent to be stifled. People will be able to dissent as long as they like. They will not be caught by any extension of the conspiracy laws, unless they are conspiring, in a way that I have tried to define, to commit criminal acts.
Lord Elton: I apologise for asking the noble Lord to consider perhaps the fifteenth hypothetical case, but this seems a more probable one to me and a much nicer one to decide. Where there is an oppressive regime, such as in Burma, and in other countries that one could name, and there is a group of people who have been arrested and are about to be tried on what is bound to be a show trial, and an unjust trial at that, it is within the power of people in this country to provide airline tickets, communications, and so forth, to spirit them out of that country. They will be conspiring to defeat the course of justice in that country, which is a criminal act in this country. Is the noble Lord saying that that category of activity will be criminal but may not be proceeded against?
Secondly--the Minister will not want me to rise to my feet again--is he going to give us any alternative between accepting this amendment and wrecking a large part of the Bill and some more detailed way of controlling what happens? He is facing noble Lords on his own side as well as us with a very difficult decision in a few minutes if he is simply going to say, "My case rests." In addition to answering my question about the
hypothetical refugees assisted from this country, I hope that the Minister will give a little thought to the tactics of how to get out of this position.
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