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Lord Goodhart: I am grateful to the noble Lord for giving way. While I can see that the Bill may not apply to Crown servants on the grounds that they are entitled to Crown exemption, it would potentially apply (would it not?) to members of the armed forces of France or the US.
Lord Bach: I shall now have to go back to part of the answer which I thought I could get away with not
giving because of the noble Lord, Lord Beaumont, not moving his Amendment No. 9. I shall return to that before I sit down.I deal with the difficulties of the wording of the amendment in the name of the noble Lord, Lord Cope of Berkeley. First, as it stands, it would not just cover our Armed Forces but would also exempt from prosecution in courts in the United Kingdom any terrorist act committed in a state with which we were engaged in armed conflict. That would cut across our international obligations, particularly the Terrorist Bombing Convention, to submit for prosecution any alleged terrorists in the UK whom we do not extradite for prosecution elsewhere.
We believe that two other technical defects have been identified. We no longer speak of war but rather of armed conflict. That is a very minor point. Another is that the terms in which the amendment has been drafted means that it is not clear whether the act would have to be committed during the conflict or whether the exception could be back-dated to apply to an act committed before the conflict began.
I accept at once that those last two points are genuinely technical. The real point behind the noble Lord's amendment is understood. However, we believe that we have answered that by the Crown not being bound and also that it is difficult to conclude that our Armed Forces could, when acting in the course of their duties, be held to come within the definition of terrorism.
I deal now with the point made by the noble Lord, Lord Goodhart; in other words, that allied forces might be liable under the Bill. The position there is really linked with that difficult issue of freedom fighter or terrorist.
Without going into the full arguments as far as that is concerned, that brings us up against potentially hard cases. Where significant proportions of the population have sympathy with the objectives pursued by, for example, our allies, we could not say, under the definition of terrorism in the Bill, that offences were not being committed. It may well be that offences are being committed.
We do not believe that the intention behind the acts, however worthy or understandable, would somehow make those unlawful acts lawful; how could they? But we recognise that in certain cases--this really would be our line--there are public interest considerations that should be borne in mind in considering whether prosecution should ever be started or continued.
Before the noble Lord comes in on that point, perhaps I may say that I am speaking more about organisations in foreign countries that commit acts which, while being terrorist acts by the standards of the Bill, are acts which may well have some support in this country, than I am, perhaps, about, for example, allied troops. However, the same might apply. There is a future debate to be had on who should decide on the prosecution; whether it should be the Director of Public Prosecutions or the Attorney-General. I hope Members of the Committee will listen carefully when I say that we are considering that matter with care
before we reach the necessary amendments. We are considering it sympathetically in terms of it being the Attorney-General. I make no commitment, but that is an issue to which we will come in due course.
Lord Lester of Herne Hill: I am grateful to the Minister. I was about to raise that very point. I seem to recall the right honourable Douglas Hogg in another place focusing on the fact that many of the bombing acts of the ANC in the mid-1980s fall within this definition. We are dealing with a highly political public interest choice which has to be made.
May I take it, without any commitment on the part of the Government, that when we come to Amendment No. 176 tabled in my name and that of my noble friend Lord Goodhart, which indicates that the Attorney-General is the right public officer to make that public interest decision rather than the Director of Public Prosecutions, that this might be a way forward, rather than tampering with definitions and trying to grasp an amoeba, which is difficult? This is not the sort of matter which one would normally leave to the Attorney-General to decide upon in the public interest.
Lord Bach: I shall not go into the interesting debate that no doubt we shall have on that amendment. I have said, and I stand by it, that we will look sympathetically at the terms of that amendment. I hope that will satisfy the noble Lord for today.
In attempting to answer the point raised by the noble Lord, Lord Goodhart, I raise these matters because they are relevant. However, they are perhaps best covered by repeating what I said: it would be hard to conclude that our Armed Forces--perhaps it could even read "our allies' 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. That is the other limb upon which it could be argued that the issue raised by the noble Lord may not be such an issue in practice as it is in theory.
However, I have gone off the track to answer the noble Lord, Lord Goodhart. I believe my noble friend may have a searching question.
7.15 p.m.
Lord Goldsmith: I am not sure that it is searching, and I was not sure of the moment to raise it. I wonder whether, in the view of my noble friend the Minister, there is an additional problem posed by the amendment tabled by the noble Lord, Lord Cope. The amendment focuses on the place where the action is taken, whereas I believe what he had in mind was the question of against whom the action is directed. As it stands, the amendment, if passed, would prevent it being terrorism if people took action in a country with which we were at war but which was directed at our own citizens, for example. I suggest that that is not what the Act had in mind. That was the question I was thinking about asking when my noble friend the Minister suggested I should rise.
Lord Bach: I shall think about replying to it, and I shall put it to the noble Lord, Lord Cope. There is a
final word I should like to say in response to the noble Lord, Lord Goodhart. We do not think the definition covers any lawful action in armed conflict. It really is unlikely that a court would call the actions to which he referred terrorism; but it may be even at a stage before that. Then, obviously no prosecution would take place.I hope that I have satisfied the noble Lord, Lord Cope, with my answer to his amendment. We do not think that the amendment is necessary. We do not think that there is any danger in the real world of our Armed Forces finding themselves liable under the Bill.
Lord Avebury: I am sure that the Committee will be relieved to hear that there is not any danger that members of the Armed Forces would be liable to prosecution under the provisions of the Bill.
The Minister reminded us that we no longer speak about being at war but about being in a conflict situation. In my mind that raises the question of what happens in the countries where we are engaged in either peacekeeping or peace supporting operations. A particular example that springs to mind at present is that of our forces in Sierra Leone. According to what the Minister told the Committee, nothing that our forces do in Sierra Leone could possibly be the subject of proceedings under the Bill.
In answer to my noble friend Lord Goodhart, he also stated that he thought the consent of the Attorney-General or whoever it may be, to a prosecution, would mean that acts committed by forces allied to the United Kingdom would also not be subject to prosecution under the Bill. Therefore, the Bangladeshis or the Indians, for instance, who are serving with the UNAMSIL forces in Sierra Leone would be able to engage in armed acts against the rebel RUF without there being any threat of prosecution.
In my mind that raises the possibility of the extension of the United Kingdom's jurisdiction to acts committed by the terrorist organisations. Are we saying that if, for instance, Mr Foday Sankoh, the leader of the RUF, set foot in the United Kingdom we could bring proceedings against him under the Bill, or that any armed opposition to a government, whether in Sierra Leone or any other part of the world, which is committing acts specified in Clause 1 would render itself liable to jurisdiction in this country?
If that is what we are saying, the Bill represents a large extension of our extra-territorial jurisdiction. The Attorney-General recently reaffirmed to me that that was not the intention of the Government. He said that we still maintain that any extension of extra-territorial jurisdiction would have to be justified on the same criteria as were contained in the assessment by the Home Office of extra-territorial jurisdiction which was produced, I believe, in the summer before this Government came into office. They relied on that when I introduced a Bill in this House to extend our jurisdiction to acts committed under common Article 3 of the Geneva Conventions, which at the time the Government opposed.
In a recent answer to me in a letter, the Attorney-General stated that it was now the intention of the Government, when they come to legislate on the international communal courts statute to take powers to criminalise Article 3 acts. I welcome that and I am very pleased that they have come round to my point of view.
However, here we are under this Bill embarking on an enormous extension of extra-territorial jurisdiction and there has been no discussion at all, as far as I am aware, on the principle of the matter. They have departed from the policy of both this Government hitherto and their predecessors in office. I think that requires an examination by your Lordships at this stage. This will be the only opportunity that we have of doing so.
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