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The Deputy Chairman of Committees (Lord Dean of Harptree): I should point out to the Committee that if this amendment is agreed to, I cannot call Amendment No. 3.

Lord Cope of Berkeley moved Amendment No. 2:

The noble Lord said: This is a much smaller point. The Captain of the Gentleman at Arms will be pleased to know that progress is likely to be a little swifter on the remaining amendments to be considered today.

The point occurred to me in discussing this Bill and its terms that there are sometimes actions--there were some bombs in London not so long ago of this character--which look like terrorist actions when they happen. Therefore, the police go into anti-terrorist mode. They use some of the powers incorporated in this Bill. It may subsequently turn out that these were not terrorist actions but actions of some kind of criminal nut, as it were, in which case it may be that the actions taken by the police which probably led to the arrest of the person concerned, might be invalidated by it being shown that this was not a terrorist action and the police were not entitled, in retrospect, to take the action that they did. That is why the suggestion is made in Amendment No. 2 that action which appears to be terrorist action should, nevertheless, be able to be followed by a police cordon and all the other powers which come later in the Bill.

I realise that this could give rise to the use of the anti-terrorist powers and the anti-terrorist police operations when they are proved ultimately not to be necessary. At the same time I would not want to invalidate the prosecution of someone who is not a terrorist, but who, nevertheless, let off bombs or took

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some action which appeared, in the first instance, to be a terrorist action. It is quite a small point but not without its own importance. I beg to move.

Lord Bassam of Brighton: I suspect that we have all been making faster progress.

I am grateful to the noble Lord for his explanation. He has clarified the meaning of the amendment. It would appear to us that it is an action designed to be covered in his "definitional" thinking for the purpose of advancing a political, religious or ideological cause where a judgment has to be made.

We have some sympathy with the spirit behind the amendment which we take to ensure that police and others can be confident that they can act even if they are not 100 per cent sure whether a qualifying motivation is present as long as such motivation appears to be present. I trust that is the right understanding of the proposal.

Lord Cope of Berkeley: Yes.

Lord Bassam of Brighton: It is important that the police are not needlessly deterred from acting to combat terrorism. However, we believe on reflection that the amendment is unnecessary. As we see it, provided the police are able to advance a reasonable case for their belief that a qualifying motive was present this should be sufficient. The fact that there have been no difficulties to the application of the current definition, which does speak of the use of violence for political ends without qualification, underlines that there may not be a difficulty in practice. I think we should rely on that.

Furthermore, I am concerned that inserting the concept of "appears" into the definition might give rise to uncertainty and drafting difficulties. I ask the question: how would it work in the context of the terrorist property provisions where the test might then be whether the funds in question were being used for the purposes of an action which is or appears to be done to advance a political, religious or ideological cause? We think that there could be difficulties in applying the "appears to" concept in the context of the decision about the proscription of groups.

I am not persuaded that the approach proposed by the noble Lord in his amendment, which I am sure was intended to be helpful, would work in all the contexts linked into the definition of the Bill.

I hope that on the basis of that explanation the noble Lord will consider withdrawing his amendment.

Lord Lester of Herne Hill: Does the noble Lord agree with me that Part V of the Bill dealing with counter-terrorist powers gives necessary latitude because, for example, in Clause 41 it provides:

    "A constable may arrest without a warrant a person whom he reasonably suspects to be a terrorist."

Similarly, a magistrate under Clause 42 may--

    "issue a warrant ... if satisfied that there are reasonable grounds for suspecting ..."

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and so on. Is not the point made by the Minister buttressed by Part V, making this amendment unnecessary?

Lord Bassam of Brighton: The noble Lord, as ever, has been very helpful. My understanding of those clauses is that they do provide that necessary flexibility. In a sense, that is what we require in the operation of this part of the legislation. I think that there will be common consent and agreement around the House to that point.

Lord Cope of Berkeley: One always learns something in this House in the course of these debates. I will certainly reflect on what has been said on this amendment. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

7 p.m.

[Amendments Nos. 3 to 9 not moved.]

Lord Cope of Berkeley moved Amendment No. 10:

    Page 1, line 14, at end insert ("except in countries with which the United Kingdom is at war,").

The noble Lord said: This amendment is moved to deal with the Kosovo or Gulf War problem or however one likes to describe it. Most of us agreed in the course of the earlier debate that there is a problem in this regard in relation to what happens when there are countries to which the United Kingdom is antagonistic, is at war, or some other definition--mine is not perfect--and there are also groups in this country which may be supporting the opposition in the country concerned. One can think of numerous examples, all the way from the French Resistance and so on and the operations of the SOE and others right the way up to much more recent examples.

There is a problem. My amendment does not solve it entirely. But it raises the problem and it is at least a step in the right direction. Of course, we could rely on the designation of countries as either good or bad, as it were--if that is not too "cartoon" a way of expressing it--by the Secretary of State. That is not a very good way of dealing with the matter. But we certainly could do that. I have tried to introduce a more objective way of expressing the matter in Amendment No. 10. It is an important point on which, I believe, the Minister is already going to reflect as a result of our earlier discussions. I certainly think he should do so. Meanwhile, I beg to move.

Lord Monson: The noble Lord, Lord Cope, mentioned the Kosovo problem. But is it not the case that the United Kingdom was never formally at war with Serbia?

Lord Cope of Berkeley: That is one reason why I am not sure that my definition is entirely satisfactory.

Lord Beaumont of Whitley: This is a very difficult series of points. I did not move my Amendment No. 9 because I thought that it might be better to

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raise the issue in the rather wider context of the amendment of the noble Lord, Lord Cope. It goes back further than the noble Lord suggested. Members of the Committee on the Liberal Benches will remember that Mr Campbell-Bannerman asked the very pertinent question, "When is a war not a war?" in his famous speech at the Guildhall. He answered by saying, "When it is waged by methods of barbarism". A whole can of worms is being opened here in relation to how much we should apply to these matters when war is either declared or has not been declared.

To a certain extent, where war has been declared, we are governed by the Geneva Conventions. But it is important that the law of the land states what should be done under most conceivable circumstances and I look forward to hearing what the Government have to say. I certainly look forward to arriving at something rather more satisfactory by Report stage.

Lord Bach: As Amendment No. 9 was not moved by the noble Lord, Lord Beaumont, I can considerably shorten my reply to this group of amendments. I deal solely with Amendment No. 10 in the name of the noble Lord, Lord Cope of Berkeley. Indeed, some of what I have to say was mentioned by my noble friend Lord Bassam in reply to the long debate on the first group of amendments.

The Government are right in assuming that the intention behind the amendment--indeed, it has been made clear by the noble Lord, Lord Cope of Berkeley--is to ensure that the Bill does not cover the legitimate acts of our Armed Forces and those supporting them in times of war. We believe that we can offer strong reassurance as to that.

First, as a general principle, we believe that it would be difficult to reach the conclusion that our Armed Forces, when acting in the course of their duties in an armed conflict, could be held to come within the definition of terrorism in the Bill. Taking it further, I repeat now the general principle in law that statutes do not bind the Crown unless by express provision or necessary implication. Of course, the Crown covers the military as well as others in the service of the Crown.

In this Bill, there is one minor and fairly technical exception in Clause 118, which has already been referred to. Apart from that, the offences in the Terrorism Bill will not apply to Crown servants and, therefore, would not affect our troops at a time of war. Those are my general comments on the amendment.

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