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(a) any reasonable grounds for believing that the government of the country has committed or encouraged in its territory genocide or crimes against humanity or grave breaches of human rights,
(b) the extent to which the government is accountable to its citizens through free and fair elections, and
(c) the nature of the acts of terrorism which the person against whom proceedings are contemplated, or any terrorist organisation of which he is believed to be a member or with which he is believed to be associated, has aided, committed or encouraged.
The amendment is similar to one that my noble friend Lady Williams of Crosby and I tabled to what is now Section 19 of the 2006 Act. Section 19(2) is concerned with offences connected with foreign countries that come within the definition of terrorism for the purposes of our legislation. Section 19(2) provides that the prosecution needs the consent of the Attorney-General or the Advocate-General for Northern Ireland.
As I think has become apparent, a wholly satisfactory definition of terrorism is extremely difficult, if not impossible, to achieve. The definition in Section 1 of the Terrorism Act 2000 is not wholly satisfactory, as I think the noble and learned Lord, Lord Lloyd of Berwick, who can be described as the father of that Act, would accept. In particular, the definition can extend to actions which would broadly be considered by most or many in this country as justifiable or at least not a terrorist matter.
I can perhaps describe this as a Mandela problem. In the days of apartheid, the African National Congress would unquestionably have fallen within the definition of terrorists under the 2000 Act. Its armed struggle involved serious damage to persons and property; it was intended to influence the Government of South Africa, and it was made for the purpose of advancing a political cause. Members of the ANC could therefore have been prosecuted in the United Kingdom had that legislation been in force when apartheid was still going strong. That is so, even though non-whites in South Africa were subject to grave oppression and had no voice in politics as voters, and the ANC did not use violence against civiliansindeed, it used little of it against anyone. The ANC, of course, had wide support in the United Kingdom and in many other countries.
The first question is: can terrorism be redefined to exclude members of organisations in the future which may be comparable to the ANC? At the time of the 2006 Act it was a matter of hope that something could be achieved, but it has become very difficult to believe that that is the case. As has already been pointed out, following the 2006 Act, the Government asked my noble friend Lord Carlile of Berriew to report on possible changes to that definition. His report recommended only minor changes and he was unable to come up with any major improvements to the definition in the 2000 Act. For my part, I doubt whether it was possible to do so and I think he went as far as he could.
However, my noble friend Lord Carlile concluded that the requirement for an authorityeither the DPP or the Attorney-General under Section 19(1) and (2) of the 2006 Actto approve a prosecution was a real protection against the abusive use of anti-terrorist laws. The Government, in paragraph 6 of their reply to the report, accepted this conclusion.
This amendment would place in the Bill some of the issues that the Attorney-General must take into account. I accept that they will not be the only ones and that there will be a number of other matters. These perhaps are three of the most important considerations. Under subsection (2) of my proposed new clause, the Attorney-General has to take into account, first,
That would point out that members of any organisation which approves of the murder of innocent peoplefor example, 9/11should not expect to avoid prosecution even if its cause is otherwise a good one.
All those matters are circumstances which any reasonable Attorney-General would take into account. While I should like to see them in the Bill, I would be content if the Minister is prepared to acknowledge on the record that these are matters which an Attorney-General should take into account when considering whether to authorise a prosecution under Section 19 of the 2006 Act. I beg to move.
Baroness Hanham: I am afraid that we have some difficulties with this amendment. As I understand it, the Attorney-General would have to take into account what sort of Government were being preyed against by a terrorist offence. A despotic Government whom
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We would say that terrorism is terrorism, whatever its nature. One should not refer to the motivation or political agenda of those who perpetrate an act of terrorism. There is no right to resort to terrorism under any circumstances. Therefore, we do not support the amendment.
Lord Goodhart: Surely an Attorney-General would have to take into account a number of factors, one of which is the degree of despotism, when deciding whether to prosecute for terrorism. The whole point of requiring the approval of the Attorney-General is that it is not merely a matter of whether the act of a particular prospective defendant falls within the definition of terrorism, but whether in all the circumstances, which may and indeed should include the nature of the Government against whom the action is taken, it is appropriate to go ahead with the prosecution. Had this legislation been in force at the time, I wonder if the noble Baroness would have said that it was appropriate for the Government to prosecute those members of the ANC who from time to time were resident in London.
Baroness Hanham: I imagine that the Attorney-General deals by and large with issues in this country, not whether in another country someone should be prosecuted. I think that I shall stick to my point that terrorism is terrorism.
Lord Lester of Herne Hill: I support the amendment moved by my noble friend. The conspicuously moderate way in which he has moved it indicates that he would be content with an assurance from the Minister that the factors set out in his amendment would be regarded by any reasonable Attorney-General as the kind to be taken into account in acting as guardian of the public interest and deciding whether a prosecution should go forward. We have a system in which the Attorney-General remains a politician as well as chief legal adviser to the Government in deciding whether to prosecute for terrorist offences. The Attorney-General must consider the huge breadth of the offencessome of which involve barbaric and horrendous violence and others which are essentially political in nature. While I understand perfectly the point of the noble Baroness, Lady Hanham, that violence is violence in all circumstances, I nevertheless believe the need for the Attorney-General to consent to a prosecution is a vital safeguard that should be exercised not only on subjective, political grounds but also on objective ones.
When the terrorist offence essentially comprises a speech crime, as in some acts of the glorification of terrorism through speaking or writing, there is a safeguard that the Attorney-General must act in accordance with the European Convention on Human Rights, including the guarantee of freedom of political expression. It is desirable to spell out objective criteria that do not fetter the discretion of the Attorney-General, which would be quite wrong in that there needs to be flexible discretion. But, as the amendment states,
the factors that my noble friend Lord Goodhart has set out in paragraphs (a), (b) and (c). That does not mean that he or she is restricted to a rigid framework, only that these must be relevant factors. I suggest that my noble friend is perfectly right to point out that in law as elsewhere context is everything, and that there will be cases of the kind suggested in paragraphs (a), (b) and (c) which surely are the kind of factors to which any reasonable Attorney-General should have regard in deciding whether a prosecution should go forward. If one does not have something like this, we are in danger of having a legal system in which there are no sufficient safeguards against abuse and of the right to vindicate democratic principles internationally where one has a truly despotic and horrendous regime, provided that the individuals concerned have not been involved in acts of terrorism of a kind that paragraph (c) seeks to rule out.
This is a balanced, sensible and pragmatic approach based on principle. I hope the Minister will at least say that these are the kinds of factors that the Attorney-General or the Advocate General for Northern Ireland would surely wish to take into account.
Lord West of Spithead: We fully recognise the sensitive issues that arise in relation to international cases. As has been said, Clause 41 expands Section 19 of the Terrorism Act 2000 so that the Attorney-General or Advocate General for Northern Ireland has to consent to all prosecutions in the United Kingdom for terrorism offences committed outside the United Kingdom. In Scotland, the Lord Advocate is already responsible for all prosecutions and so there is no need for a consent mechanism. Clause 41 was drafted in response to one of the recommendations in the report of the noble Lord, Lord Carlile, on the definition of terrorism. This is not another sop being given to him; it is what it is based on.
The decision of the Attorney-General, or the Advocate General for Northern Ireland, to prosecute is taken having regard to well-established principles of evidential sufficiency and public interest. Where Parliament provides for prosecutions to be commenced with the consent of the Attorney-General or the Advocate General for Northern Ireland, the decisions taken by those office holders will take account of all the relevant factors and should not be artificially fettered in the way proposed in the amendment. It would also be highly undesirable to create unnecessary opportunities for litigation regarding a decision to prosecute or not to prosecute.
I agree with the noble Baroness, Lady Hanham, that there can be no justification for any acts of terrorism and that it is inappropriate to draw any moral distinction between the different causes which inspire such activity. Apart from it being amazingly difficult, it is inappropriate. The use of serious violence to terrorise and kill the publicto kill indiscriminatelyis not acceptable regardless of motivation. There cannot be good and bad terrorists.
There have been no cases of which we are aware where people have been inappropriately charged using offences provided for in terrorism legislation, or where
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Lord Monson: I had not intended to intervene but some interesting points have been raised. Surely terrorism which is geared not to kill civiliansor, indeed, to kill anyonebut is merely confined to the blowing up of electricity pylons and so on, is in a totally different category from terrorism which involves widespread, or even minimal, death and injury.
Lord West of Spithead: We get into great difficulty when we focus on this. Is it all right, for example, to kill members of the Armed Forces in some countries? But, generally, terrorismthe threat to the public, the desire and willingness to kill members of the public, families and so onis not acceptable no matter what the cause.
Baroness Miller of Chilthorne Domer: I have been struck during the debate by the European-centric view of this. I am sorry that the Conservative Benches will not join in supporting a moderate amendment; my noble friend requested only an assurance from the Minister.
I refer, in particular, to that part of the amendment which relates to the Government of another country being involved in grave breaches of human rights, or where violence may have been committed which involved blowing up property. I am thinking of countries in Central America where some struggles may be caught by this legislation. So if people write magazine articles in support of a struggle that is happening there, are they really going to be prosecuted under our terrorism laws? I fail to see what right we have to judge their struggle, particularly where it has not involved any loss of life.
Lord Goodhart: I regret that the Minister has not gone even so far as suggesting that these are matters that any reasonable Attorney-General would have to take into account, though I firmly believe that they are. The Government, in their reply to the report of my noble friend Lord Carlile, have recognised that the definition of terrorism under the 2000 Act may lead to the inclusion in that definition of people who would not in fact be regarded as terrorists. Paragraph 6 of that reply says:
The definition of terrorism is broad enough to ensure that all cases of what would generally be considered terrorism are caught. The definition does however contain a number of tests that need to be met.
These tests mean that most of the actions which would generally be accepted as non-terrorist in nature fall outside the definition. It does not mean that non-terrorist activities will never fall within the definition but in such cases we rely on the police and Crown Prosecution Service in making sure that the definition is not inappropriately applied.
That is exactly what I am asking the Minister to confirm. Here is a case in which it is clear that the definition sometimes goes too wide. It is not an answer to say, Terrorism is terrorism and should always be prosecuted.
With specific reference to African National Congress issues, no doubt the Minister will recall that during a time when the ANC was carrying out or planning what it described as its armed struggle, there were resident and active in the United Kingdom a number of exiled members of the ANC who were openly assisting their colleagues remaining in South Africa. No one suggested at that time that they ought to be prosecuted for what they were doing. Now that it is clear that the definition of terrorism extends to activity of that kind, that needs to be modified in line with what the Government said in making sure that the definition is not inappropriately applied. I shall withdraw my amendment this day, but we may well wish to consider bringing it back on Report. I beg leave to withdraw the amendment.
(c) intends that the information should be useful to a person committing or preparing an act of terrorism.
The noble Baroness said: I have a great deal of sympathy with the Governments position in bringing forth these amendments, and I can see that they are needed in the light of recent actions against members of the armed services. However, there are two problems with Clause 83. The first is that a person commits an offence who elicits, or attempts to elicit, information about an individual who is or has been a member of the Armed Forces. It says that the eliciting of this information must be,
That is far too widely drawn. It is a catch-all phrase. In several circumstances that one can think of, a person may wish to elicit some information and might do so quite innocently through conversation through a social contact, and would not necessarily know that doing so was likely to be useful.
New Section 58A(1)(b) of the 2000 Act also makes it an offence to publish or communicate any such information. Again, we believe that this provision is extremely widely drafted. Although subsection (2) of the new section allows for a defence for a person charged with an offence under this section to prove that that they had a reasonable excuse for their action, we find it to be the other way round. If you innocently commit an offence of which you are not aware, once you are charged, it can be a defence that you were not doing it for the purpose of terrorism.
On the third day of our proceedings, we talked extensively about young peoples culpability in involvement in terrorism. The Minister had some sympathy with the idea that there is manipulation of young people and that they are often drawn in, as we have seen in recent terrorism trials, by those who are older and more experienced. If we left Clause 83 as widely
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We seek through our amendment simply to insert a provision to clarify that it would be necessary to show clear intent that the information procured or communicated would be useful to someone committing or preparing an act of terrorism. On that basis, we hope that the Minister will be sympathetic to clarifying the law in this area. I beg to move.
Baroness Hanham: In contrast with the previous amendment, we support this one. As the noble Baroness has said, the clause needs tightening up if it is not to leave exposed to prosecution people who should not be exposed. I hope that the Minister will be able to say that he is treating this amendment sympathetically.
Lord Lloyd of Berwick: I had not intended to speak on this amendment until I heard it moved, but I am bound to say that I have some sympathy with it. It is reminiscent of debates we have had on similar subjects. The publication of this information should surely be an offence only if it is intended to be of use in exactly the language which the amendment adopts, and this is something the Minister might consider.
Lord West of Spithead: We are not in favour of the amendment because making such an action intended would undermine the effectiveness of the offence provided for in this new section. Section 5 of the Terrorism Act 2006 already caters for preparatory acts which are done with the intention of assisting others to commit terrorist acts. Section 58 of the Terrorism Act 2000 and the new offence provided for in proposed new Section 58A are wider offences aimed at combating the activities of those whose conduct is likely to assist terrorists but do not require the prosecution to prove an intention to assist those involved in preparing or committing an act of terrorism.
Importantly, I am advised that in the case of R v K, the Court of Appeal held that to commit the offence under Section 58 of the 2000 Act, the information collected or possessed needs to be such as to raise a reasonable suspicion that it was intended to be used to assist in the preparation or commission of an act of terrorism, and be of a kind that is likely to provide practical assistance to terrorist organisations. We believe that similar tests will apply for the new Section 58A offence. So there should not be any concerns that, for example, a journalist publishing the names of service chiefs which are already in the public domain would be caught by this offence. But if someone said, Sergeant so-and-so lives in this house, normally gets such-and-such a bus between here and there and uses this pub, we would be very concerned about such material.
We should also remember that the range of information covered by the new offence is narrower than the information covered by the Section 58 offence, being restricted to information about specified groups of personnel working on the front line against terrorism.
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