§ Mr. Alun Michael (Cardiff, South and Penarth)
I beg to move amendment No. 1, in page 1, line 25, at end insert—'(4A) The fourth condition is that the offence referred to in subsection (4) would be triable on indictment and punishable by imprisonment.'.
§ Madam Speaker
With this, it will be convenient to discuss the following amendments: No. 2, in page 1, line 26, leave out 'fourth' and insert 'fifth'.
No. 3, in page 2, line 32, leave out 'fourth' and insert `fifth'.
No. 7, in clause 2, page 3, line 13, after 'offence', insert'which is triable on indictment and which is punishable by imprisonment'.No. 10, in clause 3, page 4, line 11, after 'offence', insert'which is triable on indictment and which is punishable by imprisonment'.
§ Mr. Michael
I congratulate the hon. Member for Eastbourne (Mr. Waterson) on his Bill reaching this stage. It is an ambitious Bill, which has, not surprisingly, received considerable drafting help from the Home Office and is, in essence, a Government Bill. The hon. Gentleman has not sought to abrogate responsibility for it, as he made clear in Committee, but it addresses wider issues than a private Member's Bill normally does. Scrutiny was rightly given on Second Reading and in Committee to the necessary balance.
The targets, as the hon. Member for Eastbourne has said—the Minister and I have repeated this—are the evils of terrorism, violence, racism and the conspiracy to commit crimes against civilised society. The problem with the Bill is also its strength—it is widely drawn to avoid spurious challenges on technical detail that might occur if it were drawn narrowly to cover a specific range of offences.
With the Bill having been drawn so widely to hit the intended targets, hon. Members on both sides have made it clear in the House and in Committee that we need reassurances that there will be a balance to avoid the powers given in the Bill being used for purposes beyond those intended by Parliament. I do not want to labour that point, because it was made well in Committee by many hon. Members, including my hon. Friend the Member for Swansea, East (Mr. Anderson). He wanted to be here this morning, but he has constituency commitments that he could not escape. I am sure that the Minister agrees that my hon. Friend made his points with reason and force in Committee. Conservative Members made the same points.
There is no disagreement on the fact that in certain circumstances, the powers in the Bill could be used in a way that the House did not intend. Examples of possible problems include Nelson Mandela's time in the United Kingdom, the activities of many people in this country who supported the Anti-Apartheid Movement and those of British Somalis whose relatives in the north of 525 Somalia—the former British Somaliland—were subjected to human rights abuses in a civil war conducted by the then President, Siad Barre. That was a hidden war for many in this country, long before the public conflict in Somalia. Hon. Members on both sides gave many other examples from around the world of cases in which the fine line between supporting those who want to bring democracy to their country and supporting those who promote violence and terrorism is difficult to draw in law.
As with many serious issues that we debate, it is often easy to recognise what my right hon. and learned Friend the Member for Aberavon (Mr. Morris) once described as the elephant on the doorstep, but it is more difficult to define it. That is the type of issue that we are dealing with. The hon. Member for Eastbourne aims to prevent involvement in and promotion of terrorism, as well as trying to deal with those travelling to international football matches who are not really soccer fans, but a disgrace to the name. However, we must make sure that there is a mechanism to protect against the danger of the powers in the Bill being used for an unintended purpose. That is why, as in Committee, I have tabled amendments to provide a mechanism to ensure that the intentions of Parliament are protected.
§ Mr. Nigel Waterson (Eastbourne)
I think that the hon. Gentleman accepted in Committee that it is impossible to draw the line that he describes in the Bill, which is why he is looking for an extraneous mechanism—albeit specified in the Bill—to require consent in certain cases. I think that that is a fair summary of his position.
§ Mr. Michael
It is indeed. It would be too legalistic to try to draw a line, but it is sensible to have a provision built in. The protection offered by the powers of the Attorney-General and the clear understanding of his role—not his role as a member of the Government, but his other role of scrutinising prosecution—would give assurances to the House that the Bill will hit its intended target and will not go beyond that with a scatter of shot at all sorts of unintended targets.
The Minister undertook in Committee to consider what had been said. The debates on the Bill have shown the House of Commons at its best, on the Floor of the House and in Committee. I know that some people outside criticise us when we argue violently across the Chamber, but sniff out a conspiracy when we try to agree. Hon. Members on both sides have been united in supporting the purpose of the Bill and have also been united in trying to tease out a mechanism that would get the law in place, with the safeguard that I have described.
I do not seek to delay the House. Anybody who wants to see the arguments laid out can read the Committee Hansard. I appreciate that the Minister is not in the easiest situation, because it is only three days since the Committee debate. He has had only a short time to fulfil his promise to consider the arguments that were made there. The fact that the Government and the promoter of the Bill have not tabled amendments today shows that, 48 hours ago, the consideration that the Minister promised had not been completed. I hope that the Minister will be able to say something about that. I know that he and the promoter of the Bill are sympathetic to the strong point that I am making.
526 Length of contribution is not necessarily a sign of strength of argument. I would not help my argument by going on at length. I hope to hear sympathy for the need for a mechanism to avoid the misuse of the powers in the Bill and an undertaking that the Minister will consider the point further and will try to meet it when the Bill receives further consideration in another place. If that is his response, I shall not seek to prolong the debate or to push the amendments to a vote. I believe that we can make progress if the Minister considers the issues that he undertook to address.
§ The Parliamentary Under-Secretary of State for the Home Department (Mr. Timothy Kirkhope)
The hon. Gentleman will correct me if I am wrong, but is he talking about amendments that we have not reached?
§ Mr. Michael
The point is to find mechanisms. Amendment No. 1 is one of several. I am talking about them as a bundle rather than separating them, although we are debating them specifically. The aim of amendment No. 1 is to ensure that only actstriable on indictment and punishable by imprisonmentwould be caught by the Bill.
§ Mr. Kirkhope
The hon. Gentleman has spent a lot of time talking about issues that relate to a later group of amendments. I want to respond on behalf of the Government, but I hope that he will not object if, at this early stage, I do not respond on matters that are covered elsewhere.
§ Mr. Michael
If the Minister does not want to respond at an early stage, we shall have to consider matters later. I was trying to make progress.
As I said, there is a variety of ways, not all of which have been explored, in which we could ensure that the Bill is not used to hit the wrong targets and that it is used to hit the targets intended by the hon. Member for Eastbourne and by the Government. One possibility is for the Attorney-General to examine a variety of offences, including terrorism, that may be sensitive internationally. Another possibility is to say that the Bill should be used for serious offences—those punishable by imprisonment. Amendment No. 1 seeks to remove from the scope of the Bill offences at the bottom end.
Under the Bill, it is theoretically possible for an extremely wide range of offences, including minor, petty offences such as parking offences, to be prosecuted. Clearly, that is not the intention of the Government or of the hon. Member for Eastbourne. However, a mechanism is needed to ensure that the Bill cannot be misused in terms of individual decisions being taken low down the tree of responsibility.
§ Mr. Waterson
Does the hon. Gentleman accept that, for example, the offence of threatening behaviour under the Criminal Justice and Public Order Act 1994, which could well arise in football hooliganism cases, would be caught by the amendment, because it is not an offence that can be dealt with on indictment, but can be dealt with only on a summary basis?
§ Mr. Michael
Yes. That is why I made it clear that the amendments, which were drafted within an hour or two 527 of the completion of the Committee stage, because that was the only way in which to ensure that they could be considered today, are not ones that I would press to a vote. The intention is not to undermine the purposes of the Bill. The intention is to get assurances that the Minister will consider the points that we raised in Committee and will ensure that there is a mechanism that will help to ensure that the problem I have highlighted is addressed.
I have made it clear from the beginning that these are not perfect amendments. They are designed to ensure that the points I have raised are explored on Report. As I said, the Minister has had only from Wednesday until today to consider those important and wide-ranging points. I point out, however, that the Opposition had only Wednesday afternoon in which to consider what amendments to table, to ensure that various matters were raised. I hope that the Minister and the hon. Member for Eastbourne accept that less serious offences should not be pursued under the Bill. I want them to tell the House how that will be ensured.
Last year, when we discussed sex tourism, the Minister suggested that the House should be careful not to rush into extra-territoriality; I reread the Hansard report of that debate a couple of days ago. This Bill goes very wide. When replying on amendment No. 1, the Minister will have to satisfy the House that we shall not use the Bill to pursue the most minor matters and that there will be a mechanism to ensure that the Bill is used to hit the intended target—the target that has led both sides of the House to support the Bill. I do not want to labour the point further. I hope that the Minister will give a positive response and that we can move on to consider more serious offences.
§ Mr. Galloway
These whole proceedings have been an outrage. As my hon. Friend the Member for Cardiff, South and Penarth (Mr. Michael) has just made clear, the Committee stage finished on Wednesday. My hon. Friend has complained that he had almost no opportunity to contemplate amendments to table on Report. It remains to be seen whether the Minister can assuage the doubts, such as they are, of Labour Front-Bench Members in the short time available.
The amendment does not go nearly far enough in that it implies a safeguard against abuse that is not there. The Bill, even if amended by this milk and water amendment, will change political asylum in this country in a profound and dangerous way. It will change a state of affairs that has existed since Napoleonic times.
The Minister may hope that he can disturb me; I assure him that he will not be able to disturb my flow. I was unable to be present for the Second Reading debate because I was not in the country, but I am here now, as the Minister will learn during our proceedings. I am here now to argue that the Bill is an extraordinary and ill-considered measure. I make no personal accusation against the hon. Member for Eastbourne (Mr. Waterson), the promoter of the Bill. As my hon. Friend the Member for Cardiff, South and Penarth said, this is a Government Bill in all but name. It is a hasty and ill-considered response to the specific issue of a political asylum case—
§ Mr. Edward Leigh (Gainsborough and Horncastle)
On a point of order, Mr. Deputy Speaker. Those of us who have dealt with the Bill on Second Reading, in 528 Committee and today know that the amendments are narrowly drafted. They deal simply with whether the offences covered by the Bill are liable to indictment or summary trial. Is it in order for the hon. Member for Glasgow, Hillhead (Mr. Galloway), who was not present for the Second Reading debate, to give a long speech on the principle of the Bill, which is not germane to the amendments?
§ Mr. Deputy Speaker (Sir Geoffrey Lofthouse)
I assure the hon. Gentleman that I have listened carefully to what the hon. Member for Glasgow, Hillhead (Mr. Galloway) is saying. He referred to the amendment, but he is going a little wide of it now. I ask him to return to the amendment.
§ Mr. Galloway
My contention is that the amendment does not go far enough and I hope to persuade the House of that point. I am sorry that I was unable to attend the Second Reading debate. I did, however, attempt to become a member of the Committee that considered the Bill. I wrote to the hon. Member for Eastbourne and I telephoned his office. I would very much have liked to have been a member of the Committee so that I could express my strong views during the line-by-line, proper parliamentary scrutiny. Alas, no place could be found for me.
I was glad to receive a letter from the hon. Member for Eastbourne saying that he was personally sorry that he had been unable to find a place for me. I wrote to him saying that I was glad to hear that because that was not the information that had been fed to me. I had heard that he would not have me on the Committee under any circumstances. I was pleased by his reassurance because if he had not wanted me on the Committee, it would have meant that he was frightened to face my arguments. The amendment does not go far enough. It is misleading to the public and the House in the sense that it purports to be a safeguard against abuse, but cannot be. I am not a lawyer, but I follow issues of political asylum closely and nothing in the Bill or the amendment provides a legal safeguard against abuse. To leave it to a here-today, gone-tomorrow Attorney-General to decide who is a terrorist's friend and who is a freedom fighter's friend is an absolute outrage.
§ Mr. Waterson
The hon. Gentleman talks of safeguards. I wonder whether he has applied his mind to the principle of dual criminality which is a central part of the Bill.
§ Mr. Galloway
Yes, I have, and that provides no safeguard either because, such are the horrors in their own country and their well-founded fear of persecution for their political views, those who are in exile and have been granted political asylum here, almost by definition come from places where the position can be changed only by what would be considered criminal means.
How can the Iraqi opposition get rid of Saddam Hussein except by violent means? There is no other way in which he can be overthrown. Members of the Iraqi National Congress, which occupies a very plush office opposite Harrods, spend every day plotting the violent overthrow of Saddam Hussein. Personally, I pray for their 529 success, as does every right-thinking hon. Member. However, they are inciting their countrymen to commit an illegal act. Nothing in the amendment would preclude an Attorney-General taking action against the Iraqi National Congress because of its daily incitement of illegality in Iraq.
Conservative Members may laugh. Of course they are in favour of the overthrow of Saddam Hussein, but that was not always the case. In the 1970s when my colleagues and I were founding the Campaign Against Repression and for Democratic Rights in Iraq, Conservative Members sat on sofas with Saddam Hussein trying to sell him guns. When CARDRI, of which I was a founder member, called for illegal, violent action, which some would describe as terrorist action to overthrow the Government of Saddam Hussein, there would have been nothing in the amendment to stop a Conservative Attorney-General taking action against us. By definition, such dissidents would have been a threat to United Kingdom trade. After all, that was al-Masari's crime. He was threatening and jeopardising United Kingdom arms contracts with the Saudi Arabian dictatorship. So when Saddam Hussein was a blue-eyed boy as far as Conservative Members were concerned, his opponents might have been seen to have been jeopardising British trade, including arms contracts. The amendment would in no way have protected those dissidents who were here lawfully as political refugees.
That is why the amendment is simply inadequate as a safeguard against the Attorney-General's fiat of describing this dissident at this time as a freedom fighter and that dissident at that time as a terrorist who must be quashed.
Mandela was referred to on Second Reading and this morning by my hon. Friend the Member for Cardiff, South and Penarth (Mr. Michael). I fail to see how the amendment addresses the points that were made.
§ Mr. Michael Fabricant (Mid-Staffordshire)
The hon. Gentleman must accept that circumstances change. Not so many years ago, the Palestine Liberation Organisation allowed a Japanese terrorist organisation to shoot people at Lod airport. Now, however, Yasser Arafat is the leader of an established nation. Does the hon. Gentleman accept that an amendment of some kind is necessary to control terrorism in Britain and someone has to decide who is a terrorist and who is a freedom fighter?
§ Mr. Galloway
We are all in favour of controlling terrorism in Britain. Surely not a single hon. Member has any truck with terrorism here, but we are talking about terrorism in other countries and what is defined as terrorism by foreign dictatorships where there is no democratic process. I shall deal with Palestine, with which I am exceedingly familiar, or at least as familiar as any other hon. Member, but for the moment I should like to continue making my point about Mandela.
The amendment would not have protected the activities of Nelson Mandela when he was here in exile because he was calling for and organising activities that were indictable offences in his own country, punishable by imprisonment.
§ Mr. Michael
Perhaps it would be helpful if I underlined the fact that two extremes need to be protected: 530 one is the possibility that serious offences might be alleged and the other, which the amendment seeks to address, is that the Bill might be used against minor offences committed abroad. Therefore, there are two sets of amendments attacking both ends of the scale.
§ Mr. Galloway
Indeed. I am sure that we shall return to that when we discuss the other amendments. Amendment No. 1 was proposed as a safeguard, but it does not go nearly far enough. Nelson Mandela was arguing, organising and raising funds and all the people with whom he worked are now rightly considered heroes by the British state. Just a few yards from here, in Westminster Hall, Madam Speaker made one of the most moving speeches I have ever heard in the presence of President Mandela in which she described how she felt during his early leadership of the African National Congress, including his visit here. At the time, Nelson Mandela was collecting funds for, organising, advocating, inciting and conspiring for the armed wing of the ANC Umkhonto we Sizwe—to commit violent acts that were indictable here and in South Africa and punishable by imprisonment. Under the Bill and the amendment, which does not go far enough, President Mandela would have been clapped in irons. There is no doubt about that.
§ Sir Russell Johnston (Inverness, Nairn and Lochaber)
I have been following the hon. Gentleman's speech with great interest as I am not really conversant with the Bill, but he has now said, "The amendment does not go far enough" four times. I get the feeling that no amendment would go far enough.
§ Mr. Galloway
That is not the point. In my humble opinion—and I am humble in front of the venerable and distinguished hon. Member—that comment does not behove him. He is a splendid Liberal and a splendid veteran of the anti-apartheid cause. Perhaps he should listen a little more carefully.
§ Sir Russell Johnston
I was not intending to make a joke. It simply seemed to me that the hon. Gentleman was advancing arguments that in substance are against the whole idea of having such a Bill at all.
§ Mr. Galloway
Clearly, the time has gone when I would have been permitted to do that. I am anxious to ensure that the Bill has real safeguards. I had no time to table amendments. After all, we did not know until yesterday afternoon that the Bill would be coming before the House today—a matter about which my hon. Friend the Member for Cardiff, South and Penarth complained.
I am anxious to find a means by which Parliament can politically prescribe circumstances in which action under the Bill would be taken. I am anxious to avoid not only a diminution of our civil liberties and the rights of political refugees but the chaos and congestion in the legal system which will result from the Bill, about which I shall argue when I have the opportunity. Some of our hon. Friends will no doubt be gainfully employed in their other tasks as lawyers because the Bill will result in court cases by the hundred every year. The legislation is rushed in response to a specific and, for the Government, highly embarrassing political refugee case—that of Professor al-Masari, who was a thorn in the side of the Government of Saudi Arabia.
531 I should like to continue my point about Nelson Mandela and how the amendment would not go remotely far enough to protect him. Mandela was here organising armed action against the South African dictatorship. Indeed, not so long ago, it was absolutely routine for Conservative Members—we all know who they are—to denounce President Mandela as a terrorist and the African National Congress as a terrorist organisation.
§ Mr. Dennis Skinner (Bolsover)
I was surprised to find when I arrived half an hour before President Mandela spoke in Westminster Hall that the first four rows of seats were occupied by all the Tory Members of Parliament who had wanted to hang, draw and quarter him.
§ Mr. Galloway
That was one of the most extraordinary sights in modern times. The whole world of course rejoices if a sinner repents. None the less, even in my time in the House, which is less than 10 years, it was routine for Conservative Members to denounce President Mandela as a terrorist leader. Indeed, their co-party workers used openly to sell and wear "Hang Nelson Mandela" T-shirts at Conservative party conferences. That was just in the past few years, when the whole world, apart from such dinosaurs, had come to regard Mandela as a world statesman of premier rank and indispensable to the solution of the crisis in southern Africa.
How much more the argument would have applied to Nelson Mandela when he was in this country organising armed action almost 40 years earlier. What would an Attorney-General have done if the proposed power had been available of Mr. Mandela's clandestine trip to London to gain funds for and help organise terrorist action? There is no getting away from that point, although some of my hon. Friends would like to. Under the Bill, Nelson Mandela was involved in commissioning, inciting and conspiring to commit terrorist action; he was organising people to carry guns to shoot members of the security forces of the sovereign Government of South Africa—a recognised Government with whom we had diplomatic relations.
Nelson Mandela was conspiring, organising, commissioning, and inciting people to cause explosions, which they did, without number. Such explosions were organised from here and states adjacent to South Africa. The famous example given on Second Reading was that of explosions among electricity pylons. It was used because it sounds the most innocuous possible definition of terrorism. Not all the ANC's bombs went off under electricity pylons, though. Some of them went off in very much more damaging places. If the power in the Bill had been available when President Mandela was here, one can imagine the hue and cry that we would have heard from the Conservative Benches in order to ensure, untrammelled by the amendment, that the legislation was used to stop him commissioning, inciting and conspiring to commit such terrorist acts.
I gave unconditional support to the ANC's armed struggle against apartheid, but not every Member was prepared to. I make no apology for it. It gained me a warm embrace from President Mandela, which is one of the most treasured achievements of my life. The reality, however, is that on many occasions there would have been 532 a majority in the House of Commons in favour of deploying the Bill to clap him in irons. The South African Government would have been demanding that it be done; the British multinational companies which profited so hugely from the slavery of apartheid would have been pressing that it be done; memos would have gone backwards and forwards between captains of industry, the military industrial complex, and Ministers and other forces, the Bernard Levins and the rest, who would have no doubt taken to the columns, as others would have taken to the airwaves, to create an atmosphere that would have led the Attorney-General to say, "This man's conduct is in breach of this law. The amendment does not stop that being so and we will prosecute him." Where would we have been in those circumstances? How would we have faced President Mandela in Westminster Hall? I have dealt with the issue of President Mandela because he would not have been protected by the amendment, contrary to what my hon. Friend the Member for Cardiff, South and Penarth sought to imply.
§ Mr. Michael
I should make it clear again that the amendment is intended to ensure that, by providing extra-territorial jurisdiction and the power to prosecute, the Bill does not cover minor offences abroad, such as bicycle offences and the like, as well as prosecutions for offences relating to violence. The amendment is not intended to deal with a set of political and moral judgments that my hon. Friend is addressing, which subsequent amendments seek to address. The amendment specifically deals with the bottom end of offences and a quite different mischief, which, in the interests of everybody, should be excluded from the Bill by some mechanism.
§ Mr. Galloway
But my point is that—we can consult the record—it has been claimed in support of the amendment that it is some kind of civilising measure, protection or means by which the worst excesses of abuse of the legislation can in part be curbed. I take my hon. Friend's point that other amendments will, in his view, buttress that further.
§ Mr. Michael
By trying to outline the Opposition's intention generally, I may have gone beyond the amendment's intentions. I wanted to make it clear that two issues need to be dealt with. The amendment was not intended to deal with the one to which my hon. Friend is primarily referring.
§ Mr. Galloway
Obviously, if I had not been in order, you, Mr. Deputy Speaker, would have stopped me. I am entitled to address the speech that my hon. Friend the Member for Cardiff, South and Penarth made in support of his amendment, and that is what I am trying to do.
I have dwelt on the issue of President Mandela precisely because he is such a cosy and well-loved figure nowadays. It was not always thus. No doubt in their dark hearts some Conservatives still regard President Mandela as a terrorist, although I doubt whether many would be prepared to admit it. I could think of one, perhaps two, whose travel plans have been gravely altered by the change in South Africa.
§ Mr. Galloway
I did not travel to South Africa in the old days and I have not done so recently, but I accept that 533 jibe in the spirit in which it was offered. I have chosen Nelson Mandela's case because it is an easy case. Almost nobody would now say that they would have wanted him to be prosecuted under this legislation. One man's terrorist is another man's freedom fighter. That saying is a cliche because it is so true. Nelson Mandela was always a freedom fighter to me, but to some Conservative Members, for a long time, he was a terrorist. Some still probably cannot get their lips around the words "freedom fighter".
I shall take another example of people who are terrorists to me, but are probably freedom fighters to some Conservative Members. I was for many years—I used to travel to Nicaragua regularly—a supporter of the Frente Sandinista, the liberation movement in Nicaragua, which came to power by armed insurrection in 1979, having captured the Nicaraguan Parliament. A man with a red bandanna took all the Ministers hostage including, I am sorry to say, Mr. Deputy Speaker, the Speaker of the Nicaraguan Parliament. The entire Parliament was held hostage, much as the people in the Japanese embassy in Lima is being held hostage today. The entire Parliament was seized by Nicaraguan revolutionaries and the whole exercise ended soon afterwards with a victory for the revolutionary forces.
I was with the Sandinistas when they were a revolutionary front opposing the Somosa dictatorship in Nicaragua. The United States said of Somosa, "He may be a son of a bitch, but he is our son of a bitch." I was with the Sandinistas then and when they were in power, but people who were against the Sandinistas were operating in this country. The so-called Contras were fund-raising and organising terrorist action from this country against the Government of Nicaragua.
Just as in Nelson Mandela's case, many Conservative Members were on the wrong side. They supported the Contras, and attended their functions. At least the African National Congress tried to avoid civilian casualties in their struggle against apartheid. The Contras' whole raison d'etre was to wreak as much human damage as possible. They cut people's throats and pulled out their tongues to hang like neckties. They caused mass destruction and suffering in Nicaragua, but they were supported by some Conservative Members and regularly feted at Conservative party conferences, although admittedly on the fringe. Sometimes the same people one day wore a "Hang Nelson Mandela" T-shirt and the next an "I support the Contras" T-shirt.
§ Mr. Deputy Speaker
Order. This is an interesting tour of world geography, but it would be more helpful if the hon. Gentleman could return his attention to the amendment we are discussing.
§ Mr. Galloway
I apologise, Mr. Deputy Speaker, if I was flying too far and wide of the amendments. My point is that the Nicaraguan Contras operated in London, inciting, inspiring and commissioning acts of terrorism. I found their actions revolting. However, it would not have been right—in the unlikely event that I were the Attorney-General—for me to have prosecuted the Contras under this legislation, untrammelled by the amendments, because I detested them and regarded them as terrorists. It cannot be right that one man, the Attorney-General, 534 should be given the power to decide who is a terrorist and who is a freedom fighter. That is the power that the Bill would give the Attorney-General and the amendments do not go nearly far enough in putting the hems on that untrammelled power.
The Bill will cause a grave diminution in the political rights of our people which have been cherished for centuries and, for many decades at least, were cherished even by members of the Conservative party, who welcomed to this country revolutionaries such as Kossuth after the wave of revolutions in 1848. Kossuth was a Hungarian who led an armed, terrorist struggle against the Austro-Hungarian empire from his sanctuary in London. He would not have been protected by the amendments: he would have been prosecuted under the Bill, had it existed at the time.
Perhaps some Conservative Members wish that Karl Marx had been prosecuted, but this country's reputation would have been gravely diminished if he had been, when he was labouring in the British museum and calling for the beheading of the European kings. Several of those monarchs wrote in congress to the British Government to ask that he be prosecuted, but the then Conservative Government replied that the mere advocacy of regicide was not a crime in Britain and that Mr. Marx was free and welcome to continue his labours in the British museum. How different were that Government from today's Conservatives—the nouveau Tories—to whom such love of liberty is a foreign and distant concept.
The Bill would not be sufficiently improved by the amendments. I oppose the amendments because they do not go far enough. No doubt, if I catch your eye, Mr. Deputy Speaker, I will have other opportunities to speak on the other amendments and later on Third Reading. I thank you for your indulgence so far.
§ Mr. Waterson
We have had an interesting debate on the amendments and a pleasant stroll down memory lane for those who have fond memories of old Labour. The amendments, which have a narrow compass, would provide that the substantive offences in clauses 1 and 2 would need to be first triable in a Crown court and punishable by imprisonment. As the hon. Member for Cardiff, South and Penarth (Mr. Michael) said when he moved the amendments, they would exclude offences that are triable only on a summary basis in the magistrates court or are not punishable by imprisonment.
Under English law, there are only three categories of offences—those that can be tried only on indictment, those that can be tried only on a summary basis and those that have an option to be tried on either basis. The hon. Member for Cardiff, South and Penarth would eliminate the offences that he perceives to be unimportant, at the bottom end of the scale or less high profile. The terminology is difficult, but those are the expressions that were used on Second Reading and Committee. The hon. Gentleman suggests that there are some circumstances in which it would not matter too much if people in this country were conspiring to commit offences abroad, even in cases in which the test of dual criminality was properly satisfied. I will be blunt: I do not subscribe to that view, and I gave the example in an intervention earlier of the 535 offence of threatening behaviour under the Public Order Act 1986, which carries a term of imprisonment of six months but is a summary offence.
§ Mr. Michael
The hon. Gentleman has taken the point that I was making when I moved the amendment. I made it clear that the amendment is not a perfect mechanism, and I seek some assurance that offences that the hon. Gentleman would agree should not be pursued, will not be pursued. It is not clear how that can be effected in the Bill as it stands, so it needs to be dealt with either in the Bill or by some other mechanism. I look to the hon. Gentleman and the Minister to provide reassurance.
§ Mr. Waterson
I take that point. In fairness to the hon. Gentleman, I agree that he said that he did not regard the amendment as a clear-cut solution to the problem that he described. However, I am not sure whether I accept that there is a problem. As I have said during previous debates on my Bill, the point of it is to take the approach set out in the Sexual Offences (Conspiracy and Incitement) Act 1996 and extend it right across the spectrum of the criminal law in this country.
§ Mr. Waterson
May I finish this thought?
I do not see any point in trying to distinguish in any of those ways between types of offence considered serious and those considered not so serious. I have said that on more than one occasion.
§ Mr. Michael
Yes, but the hon. Gentleman might reflect on the fact that when we debated the same issues last year, the Minister said that we should be careful how far we go into extra-territoriality, which is what the Bill is all about. He said that we should ensure that we did not go beyond the intended mark. I turn those remarks back now, because last year the Minister was too hesitant, whereas now we may be going even further than the hon. Gentleman intends. Where is the mechanism to ensure that that does not happen?
§ Mr. Waterson
We shall hear shortly what my hon. Friend the Minister has to say. I am not trying to duck the debate, but I think that some of the later groups of amendments will give us more scope to look at mechanisms and how they will or will not work.
On the specific issue that we are discussing, certain offences come to mind. I have thought of one, but there may be other examples. Threatening behaviour, for example, would be an appropriate charge to bring in the context of football hooliganism—one of the high-profile issues that we have recently debated in connection with the Bill. British so-called fans plan to go abroad to football matches, and they conspire, possibly with fans abroad, to cause criminal acts.
I shall return to the general point, promising to return to other matters, as we must, on other amendments. In view of the sheer generality of my Bill, which covers the whole sweep of the criminal law in this country, I do not see how we can draw such boundaries. More importantly, 536 I do not see why they should be considered either necessary or desirable. I therefore invite the hon. Gentleman to seek leave to withdraw the amendment.
§ Mr. Kirkhope
It is clear that the hon. Member for Cardiff, South and Penarth (Mr. Michael) seeks to eliminate what he perceives to be "unimportant" offences. He is saying that in some instances it does not matter if people in this country are conspiring to commit offences abroad, even when the test of dual criminality is satisfied.
As I said in earlier proceedings on the Bill, I do not subscribe to that view and I cannot accept it.
§ Mr. Kirkhope
Not at the moment.
As my hon. Friend the Member for Eastbourne (Mr. Waterson) said, affray is a summary offence. That was a good example. If we accepted the amendments and thus could not apply the Bill to such behaviour, that would leave a considerable gap in our ability to deter people and to deal with crime and international bad behaviour. That is important in the context of the Bill.
I listened with some interest to the meandering speech by the hon. Member for Glasgow, Hillhead (Mr. Galloway). Had the hon. Gentleman been here on Second Reading, he would have been able to contribute a view to the argument about whether one man's terrorist is another man's freedom fighter. We debated that idea fully then and the hon. Member for Swansea, East (Mr. Anderson), who is not in the Chamber today, made a long and interesting speech. My hon. Friends felt that it was totally wrong that someone should be able to use this country as a haven for the plotting and planning of criminal acts in other countries.
§ Mr. Galloway
It is only right that the Minister should allow me to intervene, as he has referred to me, although he looked as though he was giving way to me with a heavy heart.
The analogy that the Minister used cannot be true. I am willing to accept that he did not support the African National Congress's freedom struggle—I am fairly certain that he did not—and I am even willing to accept that he did not support the Contra revolutionaries in Nicaragua, but it is stretching things a little to believe that he would not support violent criminal action to overthrow Saddam Hussein. Looking back into history, does he feel that he would have had to offer support to the French resistance, whose members were committing acts of sabotage and cutting the throats of the Nazi occupiers of France? Under the Bill, they and their supporters here in Britain would have been guilty of an offence.
§ Mr. Kirkhope
I do not support the idea of anyone using our country to incite others to commit crimes elsewhere, any more than I support the actions of Members of Parliament who suggest that others should fail to pay their poll tax or disobey the law in this country in any other way.
537 If we accepted the amendments, we would deny ourselves the possibility of taking action to deal with many offences which, although they may be triable on a summary basis, are not minor or insignificant in the effect that they may have elsewhere. Therefore, I fully support the view of my hon. Friend the Member for Eastbourne and the Government recommend that the House does not accept the amendments.
§ Mr. Michael
The Minister said that he did not subscribe to the idea that it does not matter that there are some offences arising abroad which involve some act in this country. That is the precise argument that he and other Ministers used when we were trying to persuade them to pursue people involved in sex tourism and child abuse abroad. When we suggested that Britain should go further in providing powers to pursue such people, the Minister responded by saying that we should be careful not to go too far and hit too wide a target.
I agree that the amendment is not a perfect mechanism. As both the Minister and the hon. Member for Eastbourne have said, the amendment as drafted—it was drafted rapidly—would have unintended consequences. That is why I do not intend to press it to a vote. However, the Minister should take note of the lower end of the spectrum of offences—the less evil activity which might be prosecuted under the Bill unless some mechanism is put in place. We tabled the amendment because all our debate in Committee was about the higher end of the spectrum of offences—the sort of serious issues that my hon. Friend the Member for Glasgow, Hillhead (Mr. Galloway) raised. I want to ensure that the danger of the Bill's being used against petty offences that do not have that significance, and do not involve violence, is understood and taken into account. I urge the Minister to take that point and to consider it in the context of the overall mechanism that the Bill will introduce. If he cannot do that, will he ensure that the point is dealt with by the time the Bill goes to another place? Hon. Members on both sides of the House would find that satisfactory.
I have made my point, and I hope that it has been properly registered. I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
§ Mr. Deputy Speaker
With this, it will be convenient to discuss the following amendments: No. 12, in page 2, line 25, leave out', if it thinks fit, may' and insert 'shall'.No. 13, in page 2, line 27, leave out from 'satisfied' to end of line 28.
§ Mr. Leigh
The amendments have been tabled in response to concerns that the Bill as it stands could be seen to place responsibility on the defence to disprove an element of the prosecution's case when, due to the complex nature of the alleged offences, the defence may not have the resources to do that. My amendments would remove proposed sections 1A(8) and 1A(9) and, if they 538 were accepted by my hon. Friend the Member for Eastbourne (Mr. Waterson), would amend the Criminal Law Act 1977 to read:The court may permit the defence to require the prosecution to show that the second condition is satisfied".At present, proposed section 1A(9) states:The court, if it thinks fit, may permit the defence to require the prosecution to show that the second condition is satisfied".For those who are not familiar with the legislation, the second condition is that the offence is illegal in the other jurisdiction as well as our own. The trouble with the Bill at present is that it is possible for the court to put the onus on the defence to prove that an offence was committed abroad. I will explain why I think that that would be unfair and contrary to our traditions.
The Bill demonstrates our commitment to do our bit in halting international—and particularly organised—crime. There is no dispute about that, as I am sure that even the hon. Member for Glasgow, Hillhead (Mr. Galloway) will recognise. I know that my hon. Friend the Minister is particularly disturbed about football hooliganism, and I share his concerns. During the Second Reading debate on 31 January, hon. Members—including me—spoke of terrorism and other forms of international crime. My hon. and learned Friend the Member for Burton (Sir I. Lawrence)—who unfortunately is not able to join us today, but who made an interesting speech in that debate—referred to the report on organised crime produced by the Home Affairs Select Committee, which he chairs. He described the Bill as a partial response to that report.
Those who support the Bill and want to see it become law hope that it will deter those who would use Britain as a base for plotting international crime or for fomenting terrorism. We hope that the Bill will answer foreign criticism—we have discussed the issue both in the Chamber and in Committee—that our present laws allow people to act in a manner that is damaging to other countries and to our reputation abroad while not necessarily causing physical damage here. Such criticism harms our international standing: that is why we want the Bill to become law.
Although we support the concept of permitting the prosecution in this country of people who conspire to commit crimes abroad, it means that the prosecution must fully abide by the traditions and procedures of our criminal and our common law as that law has developed over many centuries. For instance, it has long been a tradition that anyone who is brought before a criminal court does not have to prove his or her innocence. The court must hear and assess the evidence and prove that a triable offence was committed in the first place. That is why we have committal proceedings.
As a practitioner at the criminal Bar, I have spent many hours arguing that point in committal proceedings. From the start of proceedings in the magistrates court, through committal proceedings to the Crown court, the prosecution must prove all the required elements of the offence and prove that the defendant is guilty of committing that offence. As the Bill is presently drafted, proposed subsection (8) may be viewed as placing the onus on the defence, not on the prosecution, to adduce evidence before the trial that an offence has been committed in a foreign jurisdiction. No doubt my hon. Friend the Member for Eastbourne will remind me that 539 proposed subsection (9) allows the court the discretion to overrule that provision. Why has my hon. Friend drafted the Bill in this way? It seems rather strange, but he may have good reasons for doing so. I am happy to accept his advice.
§ Mr. Waterson
The Bill's wording follows the precedent set out in part I of the Criminal Justice Act 1993—legislation with which I am sure my hon. Friend is extremely familiar.
§ Mr. Leigh
I am grateful to my hon. Friend for that clarification. It may be true: I appreciate that, when forming legislation, the parliamentary draftsmen often base their drafting on previous legislation. However, the matters with which criminal justice Acts deal are often very different from the highly complex issues that we must address in this area.
I am pleased to see my hon. Friend the Member for Milton Keynes, North-East (Mr. Butler) in his place. During the Second Reading debate, he said:it should be for the prosecution to prove, as it would if it were seeking extradition, that the offence is an offence in both jurisdictions."—[Official Report, 31 January 1997; Vol. 289, c. 612.]I have moved the amendments today because I thought my hon. Friend made an interesting point that deserved to be discussed on the Floor of the House at Report stage. As legislators considering criminal law, we must ensure that when we devise this sort of legislation we do not make the task of prosecutors in criminal trials too easy at the expense of the defendant. Our traditions are about ensuring that there is a balance between the prosecution and the defence.
The real problem is demonstrating that an offence took place in a foreign jurisdiction. Who would find it easier to learn of alleged crimes that were committed abroad? As my hon. Friend the Member for Milton Keynes, North-East pointed out, there is an enormous disparity between the resources of the prosecution and those of the defence. Let us take one random example. Would an ordinary firm of solicitors in a small industrial market town such as Gainsborough—
§ Mr. Leigh
My hon. Friend's sedentary intervention is quite uncalled for—he should know where Gainsborough is. It is a small town with excellent solicitors, but how could they know whether an act complained of is contrary to Islamic law, for example? It would be beyond the resources of large firms of solicitors in London to investigate that matter. Islamic law—although very worth while in itself—is highly complex. If we conceive of a prosecution being brought against a group for plotting or fomenting revolution in Iran, for example, a defence solicitor may have to research Islamic law. Where would he find the resources to do that?
On the other hand, the prosecution is uniquely advantaged in that respect as it is backed by all the resources of the state. Activities which are difficult—or well nigh impossible—for a firm of solicitors are feasible for the Government and all its agencies. Therefore, it is 540 in the interests of justice and of practicality that the state should always be responsible for proving that the second condition—that the alleged offence would be an offence abroad—has been met. My amendments are simple. They want to make that clear on the face of the Bill. They are simply designed to ensure that the traditional fairness of our criminal justice system applies to those who might face prosecution under the Bill.
I have some sympathy with some of the points made by the hon. Member for Cardiff, South and Penarth (Mr. Michael). If he has had a chance to read Hansard he will see that I made some similar points myself on Second Reading and in Committee. Time and again, I have pointed out that while I support the Bill we cannot—for all the hon. Gentleman said—tolerate groups fomenting international terrorism. I always think of the example of the War Crimes Act 1991: there has been only one prosecution under that Act and it ended in a débâcle.
If the Bill is to become an Act, it must be drafted sensibly and fairly. We must ensure that we deal with the right sort of issues and that when a trial comes to court it is properly prepared. I should have thought that my modest amendment would at least ensure more fairness in any prosecutions. To that extent, I hope that it will assuage some criticism of the Bill and reassure those who have genuine worries about it as it stands.
§ Mr. Butler
I support my hon. Friend the Member for Gainsborough and Horncastle (Mr. Leigh) and I promise that immediately after the debate I will find out where Gainsborough is: I apologise for not knowing. I support my hon. Friend's amendments, which seem to deal with a significant defect in the Bill—exactly the defect that I raised on Second Reading and that he raised subsequently and again today. It is simply not fair to put the onus on the defence to prove a point that it is not within its competence to prove.
The requirement under proposed subsection (8) is that if the defence wishes the prosecution to be put on proof, it has to state the condition—that is, that dual criminality is not in their opinion satisfied—and show its grounds for that opinion and for requiring the prosecution to do so. The Bill is also defective in terms of what grounds can be shown. Who is to assess whether the grounds are adequate? For instance, will the ground that one cannot find out be sufficient? That is likely to be the real ground.
If the Bill is not amended, can the defence go to court and say, "We simply do not know whether there is dual criminality. We cannot find out." Is the defence able to say that it cannot find out because the legal aid authority will not certify the costs involved? The defence might say that it cannot even estimate the costs. A best estimate might be £5,000 for having research done in a foreign country by foreign agents, presumably with a notarised result, brought to the defence and put before the court. The legal aid authority is highly unlikely to authorise that sum. Is that sufficient ground for the opinion that dual criminality is not established? It is not a question of the common use of language—it can be sufficient grounds—but that the only grounds for the opinion are that we do not know and we do not know is not an opinion that it is not satisfied.
Without playing too many semantic games, the Bill as it stands could pose difficulties. The proposer has to answer those questions if the Bill is to proceed 541 unamended. What are the grounds? Are the grounds that we do not know and cannot find out adequate? Is anyone going to look into those grounds and discuss them? What would be the effect on the judge if the time limit under subsection (8) were missed, but the defence on the day of the trial, at the pre-trial review or shortly before the day of the trial—outwith the established time limit set by the rules of court—said that it had come to its notice that the offence might not be an offence in Burkina Faso or wherever? The court then only has a discretion to permit the defence to require the prosecution to show that it is satisfied. How is that discretion to be used?
This is not a mere lawyers' game of saying, "Everyone knows that it is dual criminality; the issue is whether we can prove it." Unless it is proven, it cannot be known, and unless a procedure is laid down in the Bill for it to be proven by the only party to criminal proceedings with the resources and facilities to do so, we run the risk of people being convicted for offences that cannot have been committed under the Bill. We will not know, and the idea that people can be prosecuted and convicted on the basis that they might have committed an offence is alien to the British criminal law: it has to be proven beyond reasonable doubt.
For this offence, the starting point would have to be dual criminality. I think that hon. Members on both sides of the House agree that unless there is dual criminality there should be no prosecution and that prosecution for such conspiracy cannot lie, as the Bill states. With the greatest respect, I therefore suggest to my hon. Friend the Member for Eastbourne (Mr. Waterson) that although my name appears below his as one of the supporters of the Bill there is a defect—it was pointed out on Second Reading, so there has been adequate time to deal with it—and I hope that in his reply or in that of my hon. Friend the Under-Secretary of State we will hear how it is to be dealt with, either in the Bill as it stands or by adopting the proposals of my hon. Friend the Member for Gainsborough and Horncastle so that it can be avoided altogether.
§ Mr. Galloway
I intrude with some trepidation on these fascinating, lawyerly, sincere and important contributions. I shall be interested to hear the outcome.
I must deal with the point made about Islamic law by the hon. Member for Gainsborough and Horncastle (Mr. Leigh) when moving his amendment. I think that we can all accept that, notwithstanding the many examples that I gave of the sort of cases that could be tried, the most likely to be tried in the present political climate under this legislation are those relating to middle eastern or other Islamic countries. That is the atmosphere in which the measure was born. For the purposes of the argument, it is a likely hypothesis.
The hon. Member for Gainsborough and Horncastle pointed out—out of respect, I am sure—that Islamic law is complex. As a matter of fact, it is not—it is basic and open to interpretation. Saudi Arabia, for example, has no written law. There is no law in Saudi Arabia other than the sharia, which was written many centuries ago. No doubt it is a fount of great wisdom, but it is not up to date with the development of criminal law in other parts of the world, so it is subject to constant interpretation. In Saudi Arabia, the people who interpret Islamic law and decide 542 whether a matter is an offence under their jurisdiction and so satisfies the point about dual criminality, are clerics in the two mosques, who are hand-picked and effectively agents of the Saudi Arabian Government. Whatever one thinks of them or of that Government, that is a matter of fact.
In short, there is no law in Saudi Arabia but that which that regime declares to be legal or illegal at any one time and that interpretation can, and does, change. Things are illegal one day that were legal the day before. Saudi Arabia has no Parliament, of course, and no free courts. The defence has no rights. I was fascinated by the description given by the hon. Members for Gainsborough and Horncastle and for Milton Keynes, North-East (Mr. Butler) of the great safeguards and the importance of the justice system in this country. I was thinking about Saudi Arabia, where there are no safeguards and people go missing, or are kept in dungeons and do not appear in any court. When they do, they are charged with offences under the sharia, as interpreted by the clerics who have been hand-picked by the Saudi Arabian regime.
That is true of other countries in the Islamic world. I hope that the Minister will say how he will ascertain in such countries whether dual criminality has been satisfied. Will he write to King Fahd and ask whether the act being commissioned, incited or conspired about in this country is an offence? He had better not ask under which code, clause or Act it is an offence, because there are no codes, clauses or Acts in Saudi Arabia, where there is no Parliament, no freedom and no due process of law.
I do not accept that the implementation of Islamic law by the Saudi regime is a due process, and I do not think that the hon. Member for Gainsborough and Horncastle does either, although it may suit his purpose to be allied with that Government at this time—a Government who preside over the dragging of people to public squares and their beheading, and the chopping off of people's hands or feet without due process, proper defence or any codified law.
§ 11 am
§ Mr. Leigh
The hon. Gentleman is making an interesting point and we are having a worthwhile little debate. He is obviously familiar with Saudi Arabian and Islamic law in a way in which I am not. What would happen if a group in this country was plotting to plant bombs in Saudi Arabia—clearly an offence under our law—given that little is written down under Islamic law, which was decreed by the prophet many centuries ago and is subject to interpretation by religious groups? How would a firm of solicitors in this country, or the Crown Prosecution Service, proceed? To what authorities would they go under Saudi Arabian law? Is it written down? That worries me, and the hon. Gentleman, with his knowledge of the subject, may be able to help.
§ Mr. Galloway
With pleasure. It would be different in different countries. Not all countries that claim to implement Islamic law are as utterly bereft of due process as Saudi Arabia. In some other Islamic countries, the religious authorities—the Ulema—have a certain independence and can decide whether such and such a matter is an offence. That is not the case in Saudi Arabia, where the head of the Islamic council, Sheikh Bin Baz, is a hand-picked factotum of an unelected, dictatorial Government—a mediaeval tyranny.
543 Frankly, if the Crown Prosecution Service addressed a letter to Sheikh Bin Baz asking whether something was an offence, he would refer it to the King. In fact, one could save the stamp by asking Mr. Algosaibi, the ambassador in London, who could tell one whether a matter was an offence. That is a monstrosity, and a great mismatch with our due process of law and all the wonderful safeguards that we have built up over centuries to protect defendants' rights. We take enormous care—we are doing so this morning—before making any legislation. That is utterly mismatched with the state of affairs in a country such as Saudi Arabia, where there is no law, no due process and no democracy.
The answer to the hon. Member for Gainsborough and Horncastle is therefore that it would be at one and the same time very difficult and very easy. It would be easy in practice, because an offence would be whatever the King decreed was an offence at any particular time, which might be different from what he said the week before or would say a week later.
The mismatch to which I referred would be likely to lead to a clashing of gears between the two legal systems—if one can glorify the Saudi Arabian arrangements with that term—and that would create a tremendous shudder that could lead to injustice.
We should also consider the issue of occupied territory. Many places in the Islamic world are occupied, some of them debatably so. In many great universities and in the House, the hon. and learned Member for Burton (Sir I. Lawrence) and I have often debated the Israeli occupation of various Arab lands, which continues even under the Oslo accord. Israel occupies some of the west bank, some of the Gaza strip, some of Syria and some of Lebanon.
What are the legal circumstances in those territories? If someone here, as an act of self-defence, is plotting armed struggle against the Israeli occupier, which law will apply? It is certainly not an offence under Syrian law to struggle against Israeli occupation of the Golan heights, which were seized in war and are recognised by international law and the United Nations as occupied territory; indeed, it is a national duty. Would we be talking about whether it was an offence under Israeli law or under Syrian law? I am sure that under Israeli law it is an offence to plot the overthrow of the Israeli military occupation, but it is not under Syrian law, and the Golan is Syrian territory.
What about the other Israeli-occupied Arab lands? Both points relating to the Islamic area are crucial to whether the Bill makes any sense. I would submit that on both counts the Bill is seriously flawed and deficient.
§ Sir Ivan Lawrence (Burton)
The hon. Gentleman makes an interesting and important point. An even more important point, on which he is touching, affects a future amendment: the resolution of the question is a political matter that ought to have the approval of the Attorney-General before any such prosecution is launched.
§ Mr. Galloway
At the very least, it should have the approval of the Attorney-General, although I am not entirely comfortable with vesting such sweeping powers in him. The hon. and learned Member for Burton has in part acknowledged my point about how politically charged all the issues that we are discussing will be, and how potentially disruptive it will be to our lives as well as our legal system.
544 I shall give a brief example. There is occupied land in Kashmir; 580,000 Pakistanis and Kashmiris in this country do not recognise India's right to jurisdiction over Kashmir, which is subject to a 50-year-old United Nations resolution, declaring it disputed territory. Two years ago, in conference, the Labour party accepted that it was disputed territory. That will be the stance of my right hon. Friend the Member for Livingston (Mr. Cook), who is likely to be Foreign Secretary in a few weeks.
In that disputed territory, either a terrorist struggle or a freedom struggle is going on, depending on one's political viewpoint. Today and every Friday, the greater part of 580,000 citizens of this country pray for the success of that armed struggle in what they describe as occupied Kashmir, openly collecting money in mosques to support it.
Under which legal system would an offence be committed under dual criminality in occupied Kashmir? It is undoubtedly an offence under Indian law to seek to overthrow the occupation forces in Kashmir, but it is a national duty to Kashmiris, including those who live here. Three quarters of all Pakistanis in this country are Kashmiris from Mirpur. Every last one of them supports the armed struggle against Indian occupation and regards it as a freedom struggle. Under the Bill's dual criminality, they are committing an offence every week because they are inciting, supporting—one might say conspiring—and raising funds for the struggle in Kashmir. Whose law in Kashmir would they be breaking? Not Pakistani law; it is a national duty. Certainly not the moral code from which they draw their strength. However, they would be breaking Indian law.
There would be an offence under Israeli law in the Golan heights, but not under Syrian law. There would not be an offence under Jordanian law—at least in respect of most of the time about which we have been talking—in the west bank, but there would be under Israeli law. Islamic law is uncodified, very wide and vague and was written many centuries ago by the Prophet Mohammed. Its interpretation in Iran is wholly different from that in Saudi Arabia. The interpretation in Iran will differ from yesterday to today to next week, according to whose star is in the ascendant in its theocracy. There will be one interpretation today under Sheikh Bin Baz's latest orders and a different one under different orders next week. That shows the mismatch between our democratically arrived at, well-codified, tried and tested law and those of other countries, which are utterly different in character.
§ Mr. Waterson
There has been an interesting debate on this amendment. I am especially grateful to my hon. Friends the Members for Gainsborough and Horncastle (Mr. Leigh) and for Milton Keynes, North-East (Mr. Butler) for developing arguments that arose on Second Reading or in Committee.
On the remarks of the hon. Member for Glasgow, Hillhead (Mr. Galloway), it is wrong to hold up foreign legal systems to perhaps invidious comparisons with ours. We believe, perhaps slightly smugly, that we have the best legal system in the world. English common law is the envy of many parts of the world and has been exported widely. Other countries have evolved their own laws, systems and ways of doing things. He must not forget that the other part of the dual criminality test, which is crucial to my Bill, is that the offence must be a criminal offence in this country as well. That takes account of repressive 545 regimes. I shall not follow him in awarding marks out of 10 to different regimes. Where something is an offence under a repressive regime, whether left or right—for example, if it were an offence in Iraq to issue leaflets criticising Saddam Hussein—if it is not an offence under our system, it will fall.
§ Mr. Galloway
What about a Syrian organisation in Britain that plotted armed action against the Israeli occupation of the Golan heights? Clearly, armed action is an offence in Britain. It is terrorism; let us call it what it is, at least in the Bill's terms. What about plotting an explosion at an Israeli army barracks, God forbid, on the Golan heights? That is not an offence in Syria, because Syria regards itself as being at war and under occupation. It is an offence in Israel, but the territory is not Israeli. How would dual criminality work in such circumstances?
§ Mr. Waterson
The hon. Gentleman raises a complex example, although I do not blame him. There would be a general onus on the prosecution in such cases to take advice from the Foreign Office about whether, de jure or de facto, we recognised a regime in a particular country or part of a country. I accept that that would be a matter for evidence.
To return to the central issue, the amendments would take away the presumption that the dual criminality test is satisfied. I regard the very existence of the dual criminality test as a crucial safeguard. The basis of the test is that the act in question would have to be an offence both in Britain and in the country where it was to be carried out. It would be open to the defence in all cases to require the prosecution to show that the test was satisfied. That is a vital safeguard for those engaged in peaceful activities in Britain that may be against the law of their own country.
The Bill's wording, as I explained to my hon. Friend the Member for Gainsborough and Horncastle, follows the precedent in part I of the Criminal Justice Act 1993. It contains adequate safeguards in cases of doubt. It allows the defence to challenge the prosecution by serving a notice showing its grounds for believing that the test is not satisfied. In deference to my hon. Friend the Member for Milton Keynes, North-East, I do not believe that that requires the defence to prove anything directly, but it does require it at least to raise the possibility. However, there is an important alternative that allows the defence, with the permission of the court and the trial judge, to require the prosecution to show that the test is met without serving notice. That follows the pattern in some previous legislation that has used the same form of words to give the court discretion to allow a defence challenge without prior service of a notice.
I have found at least three precedents: the Computer Misuse Act 1990; the Civil Aviation (Amendment) Act 1996; and our old friend the Sexual Offences (Conspiracy and Incitement) Act 1996. Clause 1 envisages a sequence of circumstances. Normally, the dual criminality test would be taken to have been satisfied. It makes the implicit assumption that the prosecution will not have embarked on the case without having first checked on the law in the country in question. Clause 1 builds in 546 safeguards for the defendant. It allows the defence to give notice showing why it believes that dual criminality does not exist, for example by quoting elements in the foreign legal code that call the practice into question.
There is the further safeguard that the defence may seek to persuade the court at the trial to put the onus on the prosecution to establish dual criminality without the defence having first to show any reasons. It is a balanced, two-pronged approach to the issue, which safeguards defendants without putting unnecessary burdens on the prosecution. The amendment, by contrast, would place an unnecessary burden on the prosecution in cases where the dual criminality test was clear cut. I imagine that in many cases it would be straightforward that there was a breach of the foreign law.
In cases of doubt, however, the existing formulation will provide the necessary means for a challenge by the defence, either by notice, or at the trial, without notice and without grounds being given by the defence. I believe that the amendment is unnecessary and I urge my hon. Friend the Member for Gainsborough and Horncastle to withdraw it.
§ Mr. Peter Viggers (Gosport)
I waited to hear how my hon. Friend the Member for Eastbourne (Mr. Waterson) would deal with the amendment before speaking. I remain very concerned about the Bill as currently drafted and support the amendment of my hon. Friend the Member for Gainsborough and Horncastle (Mr. Leigh).
The starting point in dealing with dual criminality must be that both offences must be proved beyond reasonable doubt—both the offence in this country and the offence that is alleged to have been caused in the other country. In practice, a foreign country will make representations through its ambassador or through our foreign post to our Government. The Foreign and Commonwealth Office will then institute inquiries in the foreign country, using its intelligence sources as well as its normal diplomatic sources. Back will come a message from the foreign country to the FCO that, prime facie, it seems that the alleged criminality would be an offence. All the legal and other resources of the Foreign Office will have been marshalled to come to that conclusion.
The matter will then be referred to legal sources in this country, who will make their own decision and tell the CPS, or those responsible for prosecution, that in their view the second half of the dual criminality rule has been met. As my hon. Friend the Member for Gainsborough and Horncastle appropriately pointed out, it will then be for the solicitor to whom the defendant goes, in Gainsborough or wherever he resides, to find out what he can about the foreign jurisdiction. Goodness knows, one of the most complicated areas of law is the conflict of laws, as anyone who has studied law will know. It will be extremely difficult for the defendant to disprove the allegation. I find it particularly offensive that in cases heard by the Crown court, the question whether the second condition is satisfied is to be decided by the judge alone.
I add my voice to those who have urged my hon. Friend the Member for Eastbourne to reconsider the point. If he is not prepared to reconsider it here, I hope that the voices of those who have expressed reservations will be heard in another place.
§ Mr. Kirkhope
We have had an interesting debate. Although the Government cannot go down the lines 547 suggested in the amendments, they raise issues of enormous importance. I am a little surprised that hon. Members do not have more confidence that, by creating a dual criminality test, we are applying to all these matters the criminal law in this country, and that elsewhere. As I have said before, we welcome people who wish to exercise their freedom of expression and allow them to do all sorts of things in Britain, which is a free and democratic nation. If they fall foul of our criminal law—they would have to do so for the dual criminality test to be met—at least at that point, they can rely on the British justice system.
My hon. Friend the Member for Eastbourne (Mr. Waterson) has given the House a number of examples of other legislation that contains precisely the same requirements as those in the Bill, to determine whether dual criminality applies. It is open to the defence to raise the issue, either using the basis of the court or in any other way. An obligation is then immediately placed on the prosecution to show to the satisfaction of the court that there is dual criminality; that there is an equivalence between the position in the other country and our position on the alleged offences. That seems to me a strong safeguard.
To turn the matter on its head, as the amendments suggest, and put the onus elsewhere before proceedings commenced would, in the vast majority of cases, be unnecessary and complicated. We are concerned that, where dual criminality is shown—where offences are committed in this country that are unacceptable in our criminal law—we should be able to act against the people responsible in a speedy but just manner.
I have heard what other of my hon. Friends have said. I believe that they are right to have concerns. The safeguards built into the Bill, coupled with the criminal law in this country, should be enough to placate those fears. For that reason, the Government cannot support the amendments.
§ Mr. Leigh
With the leave of the House, I should like to make a few more remarks. It is probably a great mistake to start reading Bills too carefully. The more one reads them, the more worried one becomes. I am still not entirely satisfied.
It is clear to me that we have two debates running side by side. We all know that the Government are primarily concerned with pursuing football hooligans, paedophiles and criminals plotting international crime. For that reason, they do not want to put enormous burdens on the Attorney-General or the prosecution by requiring them to prove dual criminality, as my amendment would require them to do. We all accept that. There is no problem with that.
What I, my hon. Friends the Members for Milton Keynes, North-East (Mr. Butler) and for Gosport (Mr. Viggers) and the hon. Member for Glasgow, Hillhead (Mr. Galloway) are worried about is those other cases. That is where the Bill falls short. The more we debate the matter, the more the Bill falls short on those other cases. I suspect that the other place, which is staffed by people of far greater legal distinction than me or my hon. Friend the Member for Milton Keynes, North-East—well, perhaps not my hon. Friend—may well start to look at the Bill with a jaundiced eye.
The speech of the hon. Member for Hillhead, who has great knowledge of the middle east, was interesting. The example that he adduced of the Golan heights was 548 pertinent. A group plots in this country to plant a bomb in protest at the Israeli occupation of the Golan heights. That is an offence under British law and under Israeli law, but not under Syrian law. But our Foreign Office does not recognise the sovereignty of Israel over the Golan heights. If ever there was a difficult issue, that is it. It would tax even my right hon. and learned Friend the Attorney-General, with all his legal skill. It would certainly tax the CPS. That makes it clear that amendments to be debated later should be considered seriously by the Government and by my hon. Friend the Member for Eastbourne. the promoter of the Bill. It also proves that there is a lot in my amendment.
My hon. Friend the Member for Eastbourne worried me. I am talking about political and terrorist offences now, not simple football hooliganism-type offences. My hon. Friend said that there was an implicit assumption that the dual criminality test is satisfied. We are talking about political offences and state trials. Is it right that we should frame legislation based on an implicit assumption that the dual criminality test is met when an offence is committed abroad? The hon. Member for Hillhead spoke knowledgeably about the complexities of Islamic law. Virtually nothing is written down. These are hugely complex matters. Now my hon. Friend the Member for Eastbourne says that the matter should be at the discretion of the court. Why should it? The prosecution brings the action. It must prove that the act is an offence here and abroad. That is the purpose of my amendment. This is British justice.
I do not intend to press the amendment, but we have had an interesting debate and serious questions have been asked. Before the Bill proceeds to become an Act of Parliament, I hope that my hon. Friend will think again, but for now I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
§ Mr. Michael
I beg to move amendment No. 4, in page 2, line 39, at end insert—'(12A) No prosecution in respect of conspiracy to commit an offence to which subsection (12B) applies shall be instituted by virtue of this section except by or with the consent of the Attorney General.(12B) This subsection applies to any offence listed in an order made by the Secretary of State by statutory instrument.(12C) A statutory instrument made under subsection (12B) above shall be subject by approval by resolution of each House of Parliament.'.
§ Madam Deputy Speaker (Dame Janet Fookes)
With this, it will be convenient to discuss the following amendments: No. 6, in page 3, line 9, at end insert—
No. 8, in clause 2, page 3, line 45, at end insert—
'Attorney General Attorney General for Northern Ireland.'.'(8A) No prosecution for incitement to commit an offence to which subsection (8B) applies shall be instituted by virtue of this section except by or with the consent—
- (a) in England and Wales, of the Attorney General; or
- (b) in Northern Ireland, of the Attorney General for Northern Ireland.(8B) This subsection applies to any offence listed in an order made by the Secretary of State by statutory instrument.549(8C) A statutory instrument made under subsection (8B) above shall be subject by approval by resolution of each House of Parliament.'.
§ Mr. Michael
Amendment No. 4 would create a mechanism to allow a distinction to be drawn between the prosecution of those involved in some pretty horrific activities such as child sex abuse abroad, racial violence, anti-semitism or activities of the mafia, and the prosecution of those who are supporting a fight for freedom and justice in another country. That is an important distinction, as hon. Members on both sides of the House have made clear in the debates from Second Reading onwards. The mechanism in the amendment of a list and the approval of the Attorney-General would, for example, allow the prosecution of paedophiles engaging in overseas activity to go ahead without approval, but would require approval in some of the more sensitive cases referred to by hon. Members on both sides of the House. The list may, of course, include terrorist offences, although they are dealt with more specifically under amendment No. 5.
Support for the Bill has come from the Government and the Opposition, but we have both also expressed concern about key areas of it. Last year, it was Ministers who wanted to proceed with caution when we wanted to pursue those guilty of child sex abuse. Now, there seems to have been a leap to the opposite end of the spectrum, because the Bill relates to absolutely all offences. I understand why the hon. Member for Eastbourne has approached it in that direction, but the price we must pay for allowing such wide-ranging legislation is to ensure that there is a mechanism to protect against its misuse. That is why the amendments address issues that have been raised by hon. Members on both sides of the House, and why there should be the same unanimity about trying to get the balance right as there has been in offering general support for the Bill.
In Committee, the need for balance was acknowledged given the wide scope for action under the Bill. The hon. and learned Member for Burton (Sir I. Lawrence) suggested in Committee that the Bill had been drawn widely, but, as I said then, I believe that it has been drawn without limits. I understand that the intention behind that is to avoid spurious challenges, needless delay and obstructive nit-picking by those who are able to employ the best lawyers but who may be the most serious enemies of civilised society. I entirely accept that intention behind the Bill, but it is important that we appreciate today that we must balance the scope of the Bill with a mechanism to ensure that its powers cannot be used malevolently or with bad judgment with results that go beyond Parliament's intentions.
The mechanism requiring the Attorney-General to act as the guardian at the gate of prosecution—not as a Minister, but in his role as a Law Officer—is not perfect, but at least that addresses some of the important issues that have been raised by hon. Members. As I pointed out in Committee, there is a separate problem in Scotland because under Scots law all prosecutions are commenced under the name and authority of the Lord Advocate. In practice, however, the decision will be taken by a procurator fiscal. There is no assurance that the approval of the Lord Advocate would be required in cases that arise 550 as a consequence of the Bill. I do not have an answer to that, although the Minister acknowledged in Committee that I had attempted to discuss it. If the Minister is unwilling to accept the mechanism that I have offered today, I hope that he will acknowledge that a suitable mechanism needs to be found
As I said about amendment No. 1, the amendments are not perfect. They were drawn up following our debates in Committee on Tuesday and Wednesday and they had to be tabled on the very day the Committee reported so that they could be discussed today. I do not claim to have the capacity to table perfect amendments within such a short time. I hope that the Minister will accept, however, that my amendments represent an honest attempt to introduce a mechanism to address the problems that have been highlighted.
The clear intention of the Bill is to address a gap in the law that prevents prosecution in the United Kingdom of those who conspire to cause violence abroad. The very nature of the offences with which we are dealing means that difficult cases will arise, as my hon. Friend the Member for Swansea, East (Mr. Anderson) and I said in Committee. There are also cases of conspiracy to commit violence abroad, such as racial violence and acts of anti-semitism, which have nothing to do with freedom or the search for justice. Organised violence has been committed under the cloak of football and other international events.
The Bill may be used to target those who promote or pursue other serious organised criminal activities including drug trafficking, major fraud and disorder. The consequences of organised violence and trafficking in drugs, which is conducted as a result of international conspiracy, leads down to the streets of our constituencies—the cities, towns and villages of the United Kingdom. There are serious links between some of the activities that the Bill is intended to hit and the well-being of our constituents. I am sure that the Minister and the hon. Member for Eastbourne would agree that such activities should be our target, but we should not target or silence those involved in legitimate political activity while living in exile.
It is inevitable that decisions will have to be made on difficult cases. That is why we want the Attorney-General to exercise an oversight of prosecutions. Perhaps the Minister can offer an even better solution, because I acknowledge, as did my hon. Friend the Member for Hillhead, that our amendments are not perfect. They are designed, however, to strike a balance on the exercise of the powers in the Bill. We must be able to prosecute some of those who everyone agrees should be prosecuted—the elephants on the doorstep, as I described them earlier—but we must ensure that those powers are not used in a way unintended by Parliament. It is difficult to achieve a balance between pursuing those who undermine liberty and democracy and protecting those concepts in other cases. It is a great challenge to hon. Members to find that balance.
It is impossible to predict future cases that may cause concern, but I should like to remind the House of two examples that have already been cited in order to clarify what should and should not be the purposes of Parliament when it passes the Bill.
In Committee, I referred to the example of Mandela in similar terms to those used by my hon. Friend the Member for Hillhead today. During the apartheid years many 551 people in this country were involved in the anti-apartheid movement. We are proud to have been involved in activities in support of those who were seeking to overthrow the apartheid regime. As my hon. Friend said, the importance of that movement was underlined by President Mandela when he spoke so movingly to both Houses of Parliament last year.
There was a wide-ranging alliance of opponents to apartheid which included those who planned violence, those who condoned some acts of sabotage short of putting people in danger and those who advocated non-violent action. If I understand him correctly, the Minister confirmed earlier that it is not the Government's intention that the Bill should be used in a similar case to target those who neither advocated nor planned violence or were directly involved in it simply because they were associated with such a broad alliance. The purpose of the amendments is to question how we can ensure that the intentions of Parliament are not exceeded in the future.
Secondly, I should like to refer to Somaliland. I was a community worker in an area with one of the biggest Somali communities in the country so I was particularly aware of that country before coming to the House. Most British Somalis come from the former British Somaliland and most settled here after service in the British Army, Navy or merchant navy. Their service was enormously important during the second world war and as recently as the Falklands war and the Gulf war.
During the 1980s, the people of north-west Somalia, what was British Somaliland and is now known as the Republic of Somaliland, were the victims of an atrocious period of civil rights abuse, under the regime of the then President Siad Barre. It was described as a hidden war. It long predated the public war when the opposition to the regime of Siad Barre spread to the south and Mogadishu. The earlier hidden war, which affected the families and friends of British Somalis, was not in the public view because the television cameras were not present. I regret to say that the international community and Britain ignored the human rights abuses that were committed then.
The Somali National Movement defended the rights of the families and relatives of the British Somalis and was also engaged in a civil war against the Government of Somalia. Would people in the United Kingdom who sent money and medical supplies to the north of Somalia have been caught by the Bill? Is that the intention of the Bill? As I understand it, it clearly is not. It will help to clarify Parliament's intention if we can be clear on that point, and it will help if the Minister will agree that we require safeguards to ensure that the powers provided by the Bill are not used to hit those types of target.
The point has already been made by hon. Members on both sides the House—it was also made very strongly by Liberty in its briefing—that incitement is a particularly elastic concept. Would it be incitement for an opponent of the Iraqi regime to write a newspaper article in the UK calling for the overthrow of Saddam Hussein? We may not even have to consider the examples given by my hon. Friend the Member for Hillhead of those with even greater enthusiasm to realise that a line must be drawn.
I understand why the Bill has been drafted so widely, but it is important that there are mechanisms to ensure that those wide-ranging powers are used to serve the purpose intended by Parliament and not for others. That is why it 552 is important that the issues are put on the record. I hope that the Minister will express his strongest and clearest agreement with the principles on how the legislation should operate. Under the Pepper v. Hart ruling, a clear statement will be very helpful.
Hon. Members have given many examples of how the legislation could operate. My hon. Friend the Member for Hillhead made his point by referring to various countries. In Committee, my hon. Friend the Member for Swansea, East referred to the situation in Kashmir and to those in different parts of Africa. The two examples that I gave, however, demonstrate the difficult judgments that will have to be made under the Bill's provisions. Those provisions must be used with sensitivity.
Judgments will first have to be made at a senior level, where Parliament's intentions are understood and appreciated, rather than at a more administrative level. Conversely, we must limit the possibility of powers being used way beyond Parliament's intentions. I believe that the mechanism requiring review by the Attorney-General of the specific offence of terrorism will be of particular value in ensuring that the scrutiny which Parliament expects will occur.
§ Sir Russell Johnston
I agree with everything that the hon. Member for Cardiff, South and Penarth (Mr. Michael) has said. However, in my long years in the House, one thing that I have learnt is that Ministers' assurances that Parliament's intentions are this, that or the other become worthless after a Bill becomes law.
§ Mr. Michael
I understand that point, which is why I mentioned the case of Pepper v. Hart, in which it was said that Parliament's intentions as expressed on the Floor of the House can be considered. I think that that is an important starting point in clarifying Parliament's intentions. However, I agree with the hon. Gentleman, which is why I think that we need a mechanism to ensure that the intentions expressed on the Floor of the House are considered at a specific point. In our amendments, we have suggested that it should be clear that the buck stops on the desk of the Attorney-General in interpreting Parliament's intention. Therefore, decisions cannot be taken by accident because—in Scotland, for example—they have been taken by the procurator fiscal or by someone in the Crown Prosecution Service, in which, even at the top levels, there may not be total confidence that they are taking the right judgment. That is why it is important that we have a mechanism.
I do not pretend that our amendments are the final word on the issue. I hope that the Minister will at least acknowledge the intentions behind this group of amendments, and that he shares my concern that an appropriate mechanism should be established before the Bill becomes an Act. Protection should be created, and everyone should be quite clear on the intentions behind the Bill and on what should be done. If we are to enact a Bill that rightly, and with our support, attempts to tackle the real evil of international violence and terrorism, we must be clear and avoid unintentional consequences. We can then deal with those acts that we all agree cannot be condoned, and which British justice can pursue.
§ Mr. Kirkhope
I have listened with great interest to the comments in this debate of the hon. Member for Cardiff, South and Penarth (Mr. Michael), as has my hon. 553 Friend the Member for Eastbourne (Mr. Waterson). My hon. Friend will no doubt wish to reply. The Government have been very concerned about the comments made by my hon. Friend—who is promoting the Bill—by the hon. Gentleman and by the hon. Member for Swansea, East (Mr. Anderson). The Bill deals with a difficult issue. In Committee, we had a very full debate on the necessity of a provision requiring the Attorney-General's consent for prosecution under the legislation.
The Bill is obviously and necessarily widely drafted. The conduct that it would embrace ranges from planning by paedophiles and football hooliganism to criminals who organise from within the UK offences that may be committed abroad. It also embraces that category of cases identified by hon. Members in this debate, in which the prosecution's decision will involve public policy considerations in sensitive areas. I think that it is common ground that such cases must be considered not only at a very high level but by a person with the requisite understanding and experience of the issues involved. In Committee, there was a difference of view about who should have oversight, but the point was debated fully.
I do not believe that it is necessary that every case brought for prosecution under the legislation must be considered by the Attorney-General, simply to ensure that no highly sensitive cases escape his notice. Nevertheless, I have spoken to the Attorney-General, and he has considered, with the Director of Public Prosecutions, the issue very carefully. I am able to inform the House that, on the authority of the Attorney-General, the Director of Public Prosecutions proposes to issue a standing instruction which will stipulate the level at which all cases under this legislation must be considered. It will be supplemented by a further requirement that any such case which gives rise to issues of public policy touching on a sensitive area, such as international relations, shall be drawn to the attention of the director, with a clear view to consultation between the director and the Attorney-General.
Consultation between the Director of Public Prosecutions and the Attorney-General in relation to sensitive cases is an integral part of the superintendence relationship provided for under the Prosecution of Offences Act 1985, to which we referred in Committee. The Director of Public Prosecutions for Northern Ireland would put in place similar arrangements.
Those proposals perhaps do not quite go to the lengths of the amendments tabled by the hon. Member for Cardiff, South and Penarth and other hon. Members, but I think that they are a very positive set of proposals and have been promptly made.
§ Mr. Michael
I am grateful to the Minister for his comments. He is making it clear that he listened to what was said in Committee. However, I should like to be clear on his proposals. He has mentioned and outlined a mechanism. Will the strength of his proposals be based on a requirement rather than on advice, and will he advise 554 his colleagues in another place to ensure that the mechanism is included in the legislation, through amendments tabled in another place?
§ Mr. Kirkhope
As I think we have been reminded several times today, there has been a comparatively short time between the stages in the Bill's passage. We have yet to work out the precise and most practical mechanisms. However, I think that my remarks have made it fairly clear which route we think we can and should follow. No doubt the hon. Gentleman and my hon. Friend the Member for Eastbourne thought that I would come empty handed today, but I have not. I believe that our proposals can well be put into practice in a manner that will effectively deal with some of the concerns that have been expressed. I know that hon. Members have said in this debate that Ministers give assurances which are as nothing as time goes on. I do not give assurances lightly, and I will personally ensure that the matters progress—hopefully to satisfy hon. Members.
§ Mr. Galloway
One is grateful for small mercies and that sounds, on the face of it, like a small mercy, but, as even the Minister has acknowledged, the lack of clarity—the necessary lack of clarity given the lateness of the hour of the statement being lobbed into the debate—again highlights what I said earlier: the unseemly haste with which the Bill is being rushed through means that mistakes might be made. The small mercies being thrown on the table may or may not be as they appear, and may or may not have the quality to which the Minister attests. I have no doubt that the matter will be fully tested in another place.
I am not sure whether the elevation of the decision to prosecute to ministerial level—if that is what the Minister was saying; it is certainly what my hon. Friend the Member for Cardiff, South and Penarth is proposing in the amendment—is a good or a bad thing. The position of Attorney-General is a political appointment. The Attorney-General is a member of the Cabinet and of a political party. He is a partisan political figure, not some august God-like legal figure far removed from down and dirty politicians like us. As we have seen in recent years, Attorney-Generals are often taken down dark alleyways by their political colleagues—alleyways which they perhaps wish they had not gone down and which lead to all sorts of nasty accidents that later leap up and bite them. I am therefore worried that the proposed move might not necessarily be a good thing. Like a Government, an Attorney-General is here today and gone tomorrow. That means that the tests applied are necessarily subjective and ever changing.
Some years ago, I had the privilege to go to Saudi Arabia as part of a delegation from the House. I was with a group of people who turned out to be very distinguished—myself excepted of course. On the delegation was the now Government Chief Whip. He then held no position, although I was able to see his sagacity long before the Prime Minister did.
The delegation was very ably led by Lord Pym, the former Foreign Secretary. I forget which one it was, but there had been a recent squall in British-Saudi relations. The al-Yamamah II mega arms deal was in the pipeline, and billions of pounds of work and profits and many jobs were at stake, so it was thought that the ruffled feathers of the Saudi Arabian Government had to be smoothed.
555 As those who were in the House with him will recall, Lord Pym is an Englishman of a certain type. He is an old-school gentleman, a real gent. All the diplomatic skills that he had acquired over the years were put to use by that delegation when we met all the luminaries of the Saudi Arabian state. Each and every one of those luminaries made the same complaint to Lord Pym, namely about media misrepresentation, as they put it, of Saudi policy and the Saudi legal system. The gripe that was current at the time was the decision to broadcast in this country the documentary "Death of a Princess", which sensationalised some of the horrors of the Saudi legal system.
Before the first meeting, Lord Pym briefed us in the following terms—I am paraphrasing but I think accurately—"We are here to soft-soap but we can never apologise." With great aplomb, sophistication and savoir faire, Lord Pym soft-soaped but did not apologise. Whenever he was asked why Britain did not prosecute this or that person for this or that slight against Saudi Arabia, he replied—it seemed to be a great strength to him—that politicians had nothing to do with such decisions. He said that our legal system was separate from the Executive and that politicians did not decide who should be prosecuted or not. I was then a young Member of Parliament and it seemed to me a great strength—probably also a good excuse—that Lord Pym could say that then. To some extent, the Government recently said the same thing during the al-Masari period. They were able to say that al-Masari was not committing any breaches of British law and although they despised and detested him, they could not invent reasons to prosecute him.
We shall no longer have that excuse if we accept the amendment or what appears to be a concession from the Minister. If we accept the amendment and the apparent concession, the decision about which cases to proceed with will be a political decision made with the state's interest, as it is perceived at a particular time, in mind. It will therefore have less to do with justice and more to do with politics; it will be more subjective than objective. It will not be a test of whether an offence has been committed but of whether the Attorney-General of the day thinks that an offence should be proceeded against. That will lead us down some tortuous byways because Governments, and even policies within Governments, change. I repeat the example that I cited earlier.
There was time when Saddam Hussein's Government were most valued customers and warmly treated. If they were not allies, they were very special customers. Ministers without number made trips without number to sit on his sofa and try to sell him military hardware. British business delegations were constantly going over there while people like me were demonstrating outside the embassy in London on the side of the victims of the Saddam dictatorship.
That has all changed: the decision about what it would have been right to proceed against according to the judgment of an Attorney-General at that time would be different from the decision taken today. There is no chance of the Iraqi opposition today being prosecuted for plotting the violent overthrow of Saddam Hussein. Similarly, had the Bill been law then, there would have every chance that those plotting the overthrow of Saddam Hussein, and who were acting against a Government with which our Government had warm and profitable relations, might well have been proceeded against because they were then, as others are now, seeking the violent overthrow of that regime. That regime has not changed but the policy of the 556 British Government—the same British Government—has. The powers that would be given to the Attorney-General under the amendments or the alternative that goes some way towards that, which the Minister seemed to offer us, are of doubtful value in improving the justice of the Bill.
§ Sir Ivan Lawrence
The hon. Member for Glasgow, Hillhead (Mr. Galloway) has missed the point about the Attorney-General with his examples of cases in which the United Kingdom chose not to prosecute. The issue is not whether there is evidence—the subject of the examples that the hon. Gentleman gave—but whether, there being evidence, it is in the national interest for a prosecution to proceed. It is in those circumstances that powers are given to the Attorney-General. The latest edition of "Blackstone's Criminal Practice" sets out the situation concisely on page 935. It says:In general, the Attorney's consent is required where issues of public policy, national security or relations with other countries may affect the decision whether to prosecute. An example is the Suppression of Terrorism Act 1978 … by which he must sanction any proceedings here for terrorist offences allegedly committed in a convention country. Other examples are offences of bribery under the Public Bodies Corrupt Practices Act 1889 or Prevention of Corruption Act 1906 … offences under the Official Secrets Act 1911"—or offencescontrary to part III of the Public Order Act 1986 … offences of belonging to a prescribed organisation, contributing money to prescribed organisationsand other examples. It is clear that the purpose of the Attorney-General's consent is to decide where, as a matter of public policy, a prosecution ought to proceed if it may not be in the interests of the United Kingdom to permit it.
§ 12 noon
§ Mr. Kirkhope
I do not know whether my hon. and learned Friend was in his place a few minutes ago, when I made clear a proposal in regard to the Attorney-General and the Director of Public Prosecutions in future consideration of matters that arise from the Bill in the area that he is discussing.
§ Sir Ivan Lawrence
If my hon. Friend has conceded the point that was made in Committee, I am grateful and I apologise for detaining the House unnecessarily even for a minute or two.
§ Mr. Kirkhope
It is difficult for me to go back over that ground. I have not conceded the precise nature of the amendments, but I have said that we want a mechanism put in place to ensure greater scrutiny, particularly for sensitive matters and matters that may be in the area of public policy. We want that put on a clearer basis. I have put that clearly on the record this morning. Our proposal does not fit the amendments precisely, but it recognises the contributions in Committee of my hon. and learned Friend and other hon. Members who wanted us to make such provisions to allay their fears and concerns.
§ Sir Ivan Lawrence
I am grateful for that. I trust my hon. Friend and his advisers to come up with a form that responds reasonably to our concerns. I apologise for having taken the House's time.
§ Mr. Donald Anderson (Swansea, East)
I apologise to the House for arriving late. I have been to and from my 557 constituency. I understand that the Minister has made it clear that the Government have moved, recognising that the points raised on Second Reading and in Committee are points of substance. We accepted from the start that the Bill was necessary, but that safeguards were needed. We shall give the Bill a fair passage and we hope that the Government will move towards the points relating to sensitive matters that we have raised.
I pay tribute to the hon. and learned Member for Burton (Sir I. Lawrence) for suggesting a formula and for raising some interesting examples of ways in which things might go wrong. His Afghan example was particularly apposite. A private individual can normally raise an issue without the consent of the Attorney-General. A private prosecution might have been made against our former Prime Minister because of her collusion with certain Afghan rebels against the then established Afghan Government during the mid-1980s.
I shall not detain the House. I welcome the Minister's undertaking that he and his advisers—as well as the promoter of the Bill, the hon. Member for Eastbourne (Mr. Waterson), whom I congratulate again—have recognised that a problem exists. I look forward to finding out how they will address it.
§ Mr. Waterson
I am entitled to be brief in responding to the debate for two reasons. First, we have had positive and detailed debates on the issue on Second Reading, in Committee and today. I am delighted to see my hon. and learned Friend the Member for Burton (Sir I. Lawrence) and the hon. Member for Swansea, East (Mr. Anderson) in their places. Both of them have been admirably persistent and persuasive on this topic. The second reason is my hon. Friend the Minister's announcement, which I very much welcome. The Government have clearly listened to the arguments deployed at various stages and they have come up with a positive solution to the concerns expressed.
I want to add just two other points on which I have touched in previous debates on the subject. I give the House a general reminder that for many years, the Attorney-General has had the power to intervene in any prosecution in this country under the nolle prosequi procedure. In addition, there are already certain substantive offences on the statute book which specifically require the consent of the Attorney-General. Under the Bill, the same requirement would apply to offences of conspiracy and incitement relating to those substantive offences. Those offences include issues of special sensitivity, one example being the Official Secrets Act 1911.
I commend my hon. Friend the Minister for his announcement and invite the hon. Member for Cardiff, South and Penarth (Mr. Michael) to seek leave to withdraw his amendment.
§ Mr. Michael
I thank the, Minister for responding positively to the concerns expressed in Committee and today. He is wise to do so and wise to have left open the 558 possibility of inserting into the Bill, by amendment in the other place, the mechanism to which he referred. He did not actually say that that would happen, but he did not close the door on the matter.
We recognise that the Minister's response has been genuine and sincere. I am sure that he will ensure that his undertaking is followed through. I am also certain that intentions expressed in this House are of some value, but, as the hon. Member for Inverness, Nairn and Lochaber (Sir R. Johnston) said, they do not have the same force as legislation.
The power of the Attorney-General to intervene when he feels like it, to which the hon. Member for Eastbourne (Mr. Waterson) referred, is not enough. We need a mechanism in place that guarantees the Attorney-General's oversight and ensures that the Bill is used only against the targets that it is intended to deal with.
I hope that the Minister accepts that we appreciate that he has moved swiftly to try to address the concerns expressed by hon. Members on both sides. I pay tribute to the fact that he has been willing to listen to hon. Members. That says a lot for him and is an example of the House of Commons acting as it should. I hope, however, that he is aware of our strong belief that the mechanism to provide a safeguard which he offers should be included in the Bill. That is beyond our scope to address today, but the Minister will have read our suggestion, which is included in another group of amendments concerning terrorism. I know that he will continue to think about these matters.
I offer the Minister our co-operation in trying to tease these matters out. We are always willing to help the Government, as he knows—
§ Mr. Kirkhope
For about the fourth time during the passage of the Bill, I must tell the hon. Gentleman that it is not a question of teasing anything out of me. I do not like that phrase and I wonder whether he would desist from using it.
§ Mr. Michael
I apologise if I have teased the Minister. The hon. and learned Member for Burton (Sir I. Lawrence) suggested that I was seeking to terrorise the Minister. I seek simply to help to achieve an effective measure that contains the safeguards that are required. It is not the Minister's mind or his intentions that need teasing out, but effective, clear legislation. I hope that the Minister will not feel so sensitive to that way of expressing it. The Bill needs a safeguard to balance the completely open range of offences that it seeks to address by making sure that it cannot be misused or abused.
Given the Minister's willingness to consider further, we welcome the Bill, but in a limited way. Although we should like some amendments to be made in another place, I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Order for Third Reading read.
Motion made, and Question proposed, That the Bill be now read the Third time.—[Mr. Waterson.]
§ Mr. Galloway
I oppose the Third Reading of the Bill. As I said earlier, I shall not attempt to talk the measure out. It is clear that I am alone in opposing it in principle and as a democrat I shall have to accept the consequences of that when we divide.
I was unable to attend the debate on Second Reading as I was out of the country. However, as I have been on my feet for a good part of this morning and I hope that I have registered some important points that have been acknowledged by hon. Members on both sides of the House and may well be picked up elsewhere, I shall confine myself to stating relatively briefly my opposition in principle.
Of course there is complete consensus about the need to hunt down paedophiles, football hooligans and other criminals and deal rigorously with them. I hope that the hon. Member for Eastbourne (Mr. Waterson) will accept that those of us who are anxious about the political dimensions of the Bill are genuinely concerned about liberty. There have been long discussions on Second Reading, in Committee and on Report, but the nub of the problem remains the same—the definition of terrorism and the proper appreciation of our state's interest in deciding whether to pursue people held to be involved in inciting others to commit acts of terrorism.
On Second Reading, a number of hon. Members restated their position and said, as the Minister has today, that they were against all violence for any political end at any time. I am not—and I do not believe that in their heart of hearts they are either. Each one of them would oppose occupation and oppression ever they came to our land: they would fight them on the beaches, they would fight them in the streets, they would fight them on the rooftops and from house to house and would never surrender their liberty. Precisely that evil has occurred in other countries, where good men and women have been ready to resist tyranny and determined to resist the assertion of what was called on Second Reading the divine right of kings. A Government being established, recognised and lawful does not mean that the country has any democratic validity. The country may, as many do, be pursuing appalling acts of tyranny against its own citizens such that some of them flee abroad, often—to our credit—to this country because of the high standards of liberty that it has historically enjoyed.
I gave examples, as have others, of people such as Kossuth and Marx in the 19th century, as well as many more without number—I could spend the rest of the day reciting their names—who came here because this was a land where liberty had been won, freedoms gained and in which there was democratic space to organise, incite, and even conspire to overthrow the tyrannies that afflicted their countries.
By definition, a tyranny can be removed only by extraordinary measures. It is sometimes possible, although very rare, that massive civil disobedience and huge demonstrations can topple a regime, as some in eastern Europe were toppled, but much more often at one stage or another during a dictatorship, people have to bear arms and take armed action against it.
Inevitably, in conditions of extreme repression, the leadership of such movements will gravitate to countries such as ours where freedom and liberty prevail. The Bill will criminalise such people, even though they have not 560 broken any law in Britain—or at least they would not have done so until the Bill became law—or caused any harm to the Queen's peace in her realm. They will fall open to prosecution in this country under the Bill because they are inciting, supporting or organising events in distant tyrannies, which are clearly offences under the laws of such distant tyrannies.
Such circumstances will lead us down some very dark pathways. I insist that, given the Conservative majority and the prevailing mentality at the time, the Bill would have led to the prosecution of Nelson Mandela. Only in recent years would he have been free from the threat of prosecution by the Attorney-General, the Director of Public Prosecutions or whoever was making the decision. Many other people today, some of whom are approved by me and some of whom are approved by Conservative Members, would be similarly affected.
I restate the cliché, which is a cliché only because it is so obviously true, that one man's terrorist is another man's freedom fighter. Makarios was a wanted terrorist and took tea with the Queen in Buckingham palace. Mugabe was a wanted Marxist Leninist terrorist and then took tea with the Queen at Buckingham palace. One could give example after example of such people. Yasser Arafat was referred to earlier. Until very recently, he was routinely described as a terrorist leader. I never believed that—I was with him always, but that was not the case for the majority of Members. Yet last year and the year before that he sat with his distinctive chequered headdress up in the Gallery as an honoured guest in the House of Commons. The definitions of terrorist and freedom fighter are constantly changing and we will be asking for trouble if we proceed with the Bill.
The Bill itself might disturb the Queen's peace. I gave an example earlier, which I will now develop. In this country, there are 580,000 Pakistani Kashmiri Muslims. Every man and woman among them supports what they call the freedom struggle in occupied Jammu and Kashmir. Today, in mosques up and down the country, people will be collecting money for the jihad—the holy war. That money will make its way to Srinagar and the coffers of the liberation movement. If the Bill became law, those people would be committing an offence every time they did that. Will they be prosecuted? India will demand that they are. India will say that we now have a law that would allow us to proceed against people who are inciting and helping to organise acts of terrorism in Kashmir. India will press the Foreign Office, and our ambassador in Delhi will be upbraided for any failure to prosecute the hive of terrorists—as India perceives them—who support such activities.
Will our Attorney-General agree to a prosecution? If he does, what will be the response of the Pakistani and Kashmiri communities in this country? Will they welcome the criminalisation of their brethren? Will they support a prosecution of their co-religionists who are British citizens? We can be sure that they will not. They will take grave exception. They might demonstrate and even burn an effigy or a flag. The demonstration might get out of hand and the police might deal with it injudiciously. Civil disorder might break out in our country because of a cack-handed prosecution of political activists at the behest of a foreign state.
The Under-Secretary may argue that, although we have important trading and economic interests with India, it would be unlikely to be able to push us into taking such 561 a prosecution, but Saudi Arabia was able to put enormous pressure on the British Government to crack down on the activities of Dr. al-Masari and other Saudi dissidents in Britain. I recognise and acknowledge the Government's motives: they wished to protect jobs, industry and profits. Only a fool would deny that those are important factors, but I believe that the Government are supporting the Bill as a direct result of their inability to deal with the al-Masari affair. The Government were unable to silence him or kick him out to a remote Windward island.
The Bill has been hurried through with such unseemly haste that the Opposition and the Government have been unable to carry out their duties. My hon. Friend the Member for Cardiff, South and Penarth has been unable properly to table amendments and the Minister has been unable properly to inform us of the concession that he has made: it sounded different each time he explained it, so until we read Hansard we shall not know what we are being asked to accept. That is indecent and unseemly haste, at the behest of a foreign Government—indeed, a foreign tyranny with no elections, no democratic system and no proper legal system.
The Bill would open us up to pressure from every tinpot dictatorship around the globe asking why we are not using the legislation to prosecute Mr. X or Mr. Y, who is in London busily plotting the overthrow of the dictatorship. We shall be asked, "Why did you prosecute Mr. X when you will not prosecute Mr. Y? Is it because Mr. X's country of origin is more important than Mr. Y's?" India will ask, "Why are you prepared to prosecute Saudi dissidents but not Kashmiri activists fomenting armed revolution in our territory?" What will the Government's answer be?
This country's freedoms did not fall from the sky. They were won by great reformers and great parliamentarians. Great movements of people created the measures of freedom and democracy that we enjoy here today. It is entirely wrong that a substantial reduction and diminution in those freedoms should be made in such a thinly attended House. At 9.40 this morning, if I had managed to find just one more teller, I would have won the Division. There would not have been 40 Members in the House to support the Government's business today. For the lack of one teller, I could not put that to the test—although by the time the Division was called off there were only 10 Members on the Government side of the House and only two on the Opposition side, one of whom was myself. That is how thinly attended the House has been in considering this important measure which has been rushed through.
The Committee stage finished on Wednesday, and we are having Third Reading on Friday, with no time for hon. Members to do their duty properly. It would be entirely wrong for the House to give away in such a desultory, haphazard and ill-considered manner a substantial measure of our ancient freedoms, which this great Parliament has won and developed over the years.
§ Mr. Denis MacShane (Rotherham)
This is an issue of some concern to me, as our country now increasingly has to face its international responsibilities. I must tell my hon. Friend the Member for Glasgow, Hillhead 562 (Mr. Galloway) that I am not sure that when the Kashmiris in my constituency contribute money to the campaign for human rights in Indian-occupied Kashmir, they do so in the direct knowledge or belief that they are contributing to terrorist activities. My impression of the strong and passionate commitment in Rotherham to the Kashmiri cause is that people want an end to terrorism and violence of any sort.
§ Mr. Galloway
My hon. Friend takes a close interest in such affairs. Has he heard of the jihad fund? Does he know what the word "jihad" means? It means holy war. In every mosque in every town and city in this country, there is a collection every Friday for that fund, which goes to support the liberation movements in occupied Kashmir. Of course, people want an end to the violence, but until Indian occupation ends, they are prepared to support the counter-violence of their compatriots.
§ Mr. MacShane
I do know what jihad means, but I am grateful to my hon. Friend for reminding me. Of course there are many funds with aggressive and warlike historic names attached to them, but I do not believe that my Kashmiri constituents support or want their money to go to any kind of armed violence.
I do not want to enter a debate about Kashmir now, because what is at stake is the wider issue of the need to address international responsibilities in a world that is losing the strength of its frontiers. As I look round the world, I see many examples of cases in which the Government should not flinch from the need to prosecute and to demand justice—and, yes, sometimes the need to stay the hand of those who support terrorist violence.
Abominable crimes have been committed in Albania, including the assassination of a wonderful trade union leader two weeks ago by Islamic fundamentalists, who allegedly derive their funding and support from London. Many people in this country are making a fortune from trading with states that turn a blind eye to terrorism. Iran announced recently that it is not prepared formally to withdraw the fatwa issued for the execution of Salman Rushdie. The Government must send a message that we are prepared to deal with the problems of international terrorism and crime. It is not enough for people simply to move offshore or to raise the banner of political activism: if their activities are linked to terrorism or other violence, I would have no compunction in seeing the force of law employed against them. As my hon. Friend the Member for Hillhead will know, London is the destination for a great deal of Russian mafia money. This modest measure is necessary if we are to tackle the problem of international crime.
Much outrage was expressed this week against the gangster state of Albania. Its President, who encouraged the selling of pyramid schemes that have led to the ruination of hundreds of thousands, if not millions, of Albanians, is the political godson of our Prime Minister. President Sali Berisha has appeared at Conservative party conferences with the Prime Minister, and his Democratic party is now widely regarded as a gangster organisation, with links to arms smuggling and arms deals with Rwanda and Afghanistan, to drug dealing and to the smuggling of historical artefacts from Albanian national museums. That gangster state and its President have strong links with, and the patronage of, the Conservative party. I refer hon. Members to early-day motion 535, standing in my name 563 and that of several other hon. Members, which gives further details of the criminal activities of the Albanian regime and its links with London.
I put it to my hon. Friend that when some future public inquiry, chaired by someone with the authority of Sir Richard Scott, examines the behaviour of the gangster state of Albania and its political support in this country, there may be a case for bringing prosecutions using this legislation if it passes into law. My hon. Friend is right to address the important question of preserving the right to political protest and our country's tradition of offering sanctuary to those who are fleeing persecution from oppressive regimes. However, we must make a clear distinction between political opposition and supporting and endorsing violence.
We must recognise also that there will be accounts to settle in future, deriving from the corrupt behaviour of elements of the political class in our country, who may flee our shores and seek exile elsewhere. The long arm of British law should not be prevented from bringing them to justice.
§ Sir Russell Johnston
I had not intended to speak in the debate, but feel that I should make a brief contribution. It seems clear that the general intention of the Bill is laudable, certainly within the area of criminality—the area of political activism is much more problematic. What I have heard loud and clear, however, is that the Bill is cast in an unsatisfactory way.
The amendments proposed by the hon. Member for Gainsborough and Horncastle (Mr. Leigh) were evidently substantial and it was obvious that he continued to believe them to be so, even as he withdrew them. It is against the tradition of the legal systems throughout this country—in England and Wales and in Scotland—that matters are in any way tilted in favour of the prosecution.
The legislation is important and it is clear that it has been rushed. Circumstances sometimes require that things be rushed—I do not deny that—but I am not sure whether that is so in this case and because the Bill has been rushed, it could produce injustice, which is something that we must be most concerned to avoid. The earnest—I do not use the word unflatteringly—and fairly expressed worries of the Opposition Front-Bench spokesman reflected that. As I said in an intervention in his speech, whatever assurances the Minister may give about the way in which the Bill might be operated when it becomes an Act, once an Act is an Act, it is on its own and it is left to the legal system to interpret it.
I was impressed by many of the arguments advanced by the hon. Member for Glasgow, Hillhead (Mr. Galloway). I think that he might concede that many of those matters were always and will always be the subject of political morality judgments, but I should be very concerned if there were truth in his allegation that the al-Masari case was the genesis for this legislation. I hope that the Minister will make it clear in his reply that it is not. When the hon. Member for Hillhead told us, rather amusingly, about his experience with Lord Pym and the incident of the television programme about the princess, which was current at the time, he made it clear that Lord Pym would not have that defence if a delegation were to go to Saudi Arabia in similar circumstances after the Bill became law. I do not think that that is a good route for us to take. 564 Consequently, the Attorney-General clearly will be involved in making decisions about problems that he did not previously have to deal with, which means the greater politicisation of the legal system.
I am told by some that the other place is more contemplative than we are. I hope that its Members will contemplate with great care and judiciousness when the Bill reaches them.
§ Mr. Donald Anderson
The role of Parliament is not to be a rubber stamp for the Executive. Our task is to view legislation that has been drafted by the Executive and to question and improve it.
The course of the Bill from the time when it reached the House is a good example of the Executive being questioned, and the Bill might be improved. I say might because we have but an undertaking from the Minister, which has yet to be put in legislative form and tabled in the other place. I suspect that had he not made a concession, the Bill would not have gone through easily in the other place, with its history—particularly recently—of standing for our traditions and against the Government, who may try to steamroller measures through, especially as one approaches an election. The approach to an election is not a good time to speak for civil liberties, particularly with the present Home Secretary.
The Home Office drafted the Bill without adequate safeguards for civil liberties. I was surprised, when I saw the terms of the Bill, that the organisations that seek to preserve our traditions and speak on behalf of civil liberties had not woken up to its implications. That might be partially excused by the fact that, at first sight, the Bill appears wholly innocuous and only on closer examination do some of the graver implications become clear.
I and other hon. Members raised those issues on Second Reading, citing the example of what might have happened to Nelson Mandela in the early 1960s had he sought refuge in this country. I also referred to the question of sensitive communities in this country, which quite properly protest against perceived injustices abroad.
I share some of the misgivings that have been expressed about the haste of the legislation, but that is understandable, because there is limited time for private Members' legislation, the Home Office chose not to introduce the Bill as a Government Bill earlier in the Session, and we are on the threshold of a general election.
I share the concerns of my hon. Friend the Member for Glasgow, Hillhead (Mr. Galloway) and recognise the strength of the case that he made as a spokesman for Liberty, reflecting our strong traditions in such matters, but I cannot accept his absolutist approach that all oppositions, whatever they may do in this country in preparation for an offence abroad, whether they be Algerian fundamentalists or the African National Congress in the 1960s, must by the very fact of being called oppositions be immune from prosecution here. There is a dilemma.
I accept what my hon. Friend said about the dangers under certain Attorneys-General, and it is certainly true that historically the Attorney-General has an ambiguous function, being both legal adviser to the Government and part of the Government, and that that dual function can be misconstrued abroad. Nevertheless, I do not accept his 565 absolutist approach; I think that he fails to appreciate the international nature of crime nowadays, especially drug trafficking, money laundering and paedophilia, or to understand the public concern about the nature of certain groups that find sanctuary in our country and abuse our laws.
There is therefore a need not to take an absolutist approach but to seek to address real problems. I commend my hon. Friend the Member for Cardiff, South and Penarth (Mr. Michael)—he seems always to be involved in several Bills at the same time and has amassed great experience in drafting, which I am sure that he will put to good use shortly from the Government Benches—for having tried robustly to suggest various mechanisms to the Government. Those mechanisms may not be wholly acceptable, and the Government clearly have access to resources that are denied to the Opposition, but they seem ready to accept certain safeguards.
Some problems exist and the Government have promised to provide safeguards. We have yet to see the colour of their money, but an undertaking has been given. Although I share the concerns of my hon. Friend the Member for Hillhead, I accept that the Government have moved and recognised the problem. They have said that they will use their resources to provide an appropriate response in the other place. I think it only proper, given that they have so moved, to withhold judgment until we see the nature of their response.
§ Mr. Michael
The Minister and the Bill's promoter, the hon. Member for Eastbourne (Mr. Waterson), have heard both support for the Bill and expressions of concern about how powers might be misused. We all understand the fears of hon. Members. In particular, my hon. Friend the Member for Glasgow, Hillhead (Mr. Galloway) argued strongly that the powers should not be used to undermine the struggle for freedom and justice in different parts of the world. However, he also acknowledged that he would not want to defend evil and unprincipled villains who break the law and cause murder and mayhem around the world. We are united in our aspirations for the legislation.
The difficulty of knowing where to draw the line has been acknowledged by the Minister. Mafia killers in the United States were caught only on tax evasion charges. Those guilty of war crimes, and even genocide, could not be pursued in our courts until the War Crimes Act 1991 was passed. British men involved in the evil of child sex abuse abroad could not be pursued until last year, when the House passed legislation to allow their prosecution in our courts. British thugs involved in racial attacks abroad, organised and orchestrated in the United Kingdom, are still able to laugh at justice because they cannot be prosecuted in the United Kingdom. Those evils, sometimes cloaked under a false veil of interest in football, are among the nastiest activities. I know that hon. Members who are concerned that a line should be drawn would not want to defend such people. Those are the evils that we want to pursue and the Bill makes it possible to pursue them.
The Minister promised to introduce a mechanism to protect those whom hon. Members feel should not be pursued under the Bill. That was the only point of major 566 discussion in the debate. The Minister is therefore on the same side of the argument as the rest of us. I ask him to persuade the Home Secretary, and those responsible for legislation in another place, that the mechanism for that protection should be put into the Bill by an amendment. He should do all that he can to ensure that that mechanism is as effective as possible and provides as complete an assurance as possible. I know that the Minister will do his best. I am sure that hon. Members agree that he has the support of the House in seeking to make that an effective and genuine form of protection that will stand the test of time. If it is a mechanism that simply glosses over the problem, we shall have to return and amend the legislation, which would be a pity.
I give the Minister the strongest encouragement to provide the assurance that hon. Members have sought, because we shall then with an easy mind be able to say that the legislation can be used to pursue the evil and wicked, without carrying with it the danger that those who are not involved in evil and wicked acts might also be caught unintentionally, and certainly against the intentions of Parliament.
§ Sir Ivan Lawrence
No one can seriously deny that the Bill is necessary, and not many people have done so. I congratulate my hon. Friend the Member for Eastbourne (Mr. Waterson) on introducing the Bill and I thank him for inviting me to be one of its sponsors.
No civilised society can sit back and let serious crime be perpetrated on its land. No civilised society, particularly in this new world of internationalism, can sit back and see serious crime conceived in our land, or incited on our land, to be committed in another country. We all have to get together to ensure that our laws deal adequately with this new era of international crime.
I do not agree with the hon. Member for Swansea, East (Mr. Anderson), who said that my hon. Friend the Member for Eastbourne did not fully understand the nature of international crime. I believe that he does. It is for that very reason that the Bill has been produced and we are debating it today.
Of course, no legislation is perfect. I have spent some time, for which I apologise—I hope that, in the end, it will turn out not to have been necessary—
§ Mr. Donald Anderson
I tried to say precisely the opposite. Both the hon. Member for Eastbourne (Mr. Waterson) and I have practised in matters that involve international terrorism. He and I are well aware of the globalisation of crime nowadays.
§ Sir Ivan Lawrence
I am pleased that the meaning intended was the same as that which I intend, although the words may have appeared to come out differently.
The hon. Member for Swansea, East and I were concerned that acutely political legislation was being introduced which contained no provision for the instrument of this state, personified in law by the Attorney-General, to decide when a prosecution would be against the interests of this country.
I am greatly reassured by my hon. Friend the Minister's assurance that the matter will be further looked into and that the specific points that we have raised will be dealt 567 with. I know that I can give my full trust to the Government to deal with that adequately and to the reasonable satisfaction of everyone. That it is necessary to deal with the point, I have no doubt. There will be cases in which we will want to say, "Steady. It simply is not in the interests of this state to pursue a prosecution." That power must be vested in those who decide whether a prosecution should be brought. It is too late to take such a decision once the prosecution is in train.
We have received undertakings. Other matters have come to light during the interesting debates—I do not often take part in them now—in Standing Committee and at other stages in the Bill's proceedings. A number of issues have been raised and dealt with and the Bill is being improved. Therefore, I express my gratitude to my hon. Friends the Minister and the Member for Eastbourne for coming up with a conclusion that satisfies us all. Serious crime will be dealt with in an international context. We have considerable international responsibilities. A gap in the law is being filled by an important piece of legislation.
§ Mr. Leigh
We have had a series of excellent debates in Committee, this morning and on Second Reading. I congratulate my hon. Friend the Member for Eastbourne (Mr. Waterson) on the care with which he considered all the amendments that we tabled in Committee and on Report. However, I am still worried about the Bill, although I understand why it is necessary and I do not oppose it.
I tabled some amendments for debate today, but they were not necessary, because my hon. Friend the Minister made a concession. My amendments would have ensured that the Director of Public Prosecutions was required always to consult the Attorney-General about prosecutions for political offences. My hon. Friend the Minister has now given a concession that he will so consult. Ultimately, whether a prosecution is brought will be a matter for political judgment.
The only warning that I give to the House is this. We are all united against international terrorism. It is an easy thing to say, a little like saying that we are all united in defence of the family; but life is not as simple as that. The hon. Member for Glasgow, Hillhead (Mr. Galloway) gave a number of examples to prove that we are dealing with a grey area.
I understand that it is public policy of Her Majesty's Government and the American Government to ensure by all peaceful means, apparently, that Saddam Hussein is removed from power. As we know, however, there is no peaceful way in which to remove him from power. He is holding his subjects in a condition of absolute tyranny and his regime is maintained by terror. I suspect that it is a matter of public policy in this country and in America that those groups that are seeking to overthrow Saddam Hussein by terrorist means should be covertly supported. I suspect that everyone in the House would like Saddam Hussein to be removed by terrorist means, but that, of course, would be an offence under the Bill, which is soon to be an Act.
The truth is, and we all know it, that now that the Attorney-General will be involved—none of us suggested that; it is a political decision—he will be taking political decisions. If a group operating from London were 568 discovered to be fomenting terrorism against Iraq, I strongly suspect that once the Bill is enacted its members would not be prosecuted.
§ Mr. Donald Anderson
If a safeguard of the nature suggested by the Government were not built into the Bill, it would of course be possible for a private citizen to initiate a prosecution. That would cause considerable problems.
§ Mr. Leigh
I accept that point. I am glad that the Minister has made various concessions today, but I suspect that, if a terrorist group were discovered to be inciting or fomenting terrorism against Saudi Arabia, its members would be prosecuted under the Bill.
The thought that I should like to leave with the House is whether the Bill is in keeping with our traditions of creating law. Is the type of decision proposed by the Bill one in which the Attorney-General or the DPP should be involved? Surely a person should be prosecuted because he has committed or allegedly committed an illegal act. We should not indulge in a cherry-picking exercise where the Attorney-General is involved in highly politicised decisions, influenced not by what is right or wrong in terms of jurisprudence, but by what is right or wrong in terms of international diplomacy and British national interest.
Hon. Members may say that I am simply wrong and ask why the Attorney-General should not be involved in such decisions. In any event, that undoubtedly will happen. I should like to leave this thought with the House: it is a strange sort of law for us to pass on a Friday morning which will result in some terrorists being prosecuted and others not being prosecuted. That is something about which we should be worried.
We should also be worried about the sheer practicalities of the Bill. For example, what about the problems of collecting evidence both at home and abroad and the disparity in the resources of the prosecution and the defence about which I spoke before? What about the difficulties of adducing evidence in a British court in front of a British jury relating to something that happened in a faraway country of which we know little, which has a system of law totally alien to the British concept of justice and of which we have little conception? Those serious points must be further considered. The difficulty we face is that, for reasons of British national interest, it is useful for Her Majesty's Government to explain to friendly foreign powers that they have the means to prosecute people who may be causing trouble in this country. Fundamentally, that is what the Bill is about. Such powers may well be in the British national interest, which is why I am not prepared to oppose the Bill. I must defer to the judgment of the Foreign Secretary and of the Home Secretary on those matters.
As Back Benchers, however, I should have thought that we are entitled to ask those questions, and we have asked them. The Bill has at least been improved to the extent that the Minister has made the concession that the Attorney-General will be consulted. No doubt the Bill will be passed into law; no doubt the other place will also want to examine it carefully.
§ Mr. Kirkhope
This has been an excellent and important debate. I again congratulate my hon. Friend the Member for Eastbourne (Mr. Waterson) on promoting the Bill, and on the excellent way in which he has guided it. He has listened to the concerns of hon. Members, and has taken those into account as the Bill has progressed.
There is no doubt about the threat of international terrorist activity in the United Kingdom. Hon. Members need think back only a few weeks to the letter bombs delivered to the offices of an Arabic newspaper in London, which seriously injured one person, or back a little further, to December, to the conviction of two individuals for car bombing the Israeli embassy and a Jewish charity building, in London, in July 1994. In the same year, two members of a Kurdish terrorist organisation, the PKK, were sentenced to lengthy terms of imprisonment for arson attacks directed against Turkish premises. International terrorists, by definition, commit crimes abroad to cause political change, and hon. Members have spoken in some detail about those issues.
The threat of international terrorist activity to the United Kingdom is closely linked to the threat of such activity being conducted from the UK. Hon. Members have asked on which terrorists or terrorist groups the Bill might impinge. On Second Reading, hon. Members mentioned various press reports or allegations about the activities in the UK of supporters of international terrorist groups, such as Hamas. Often those allegations are unfounded, either because they relate to activities that are not offences under UK law, such as political propaganda or charitable fund raising, or because they are not substantiated by evidence. Some of the activities mentioned in this debate would not necessarily fall foul of UK law, because laws in this country allow freedom of expression and freedom of political organisation against regimes or Governments that are not to the liking of those involved.
Investigations have not shown any evidence that Hamas supporters in this country are actively involved in organising or funding terrorism abroad, but we do take any allegations of terrorist activity here very seriously. The police and the security services devote high priority to countering any activity here in support of international terrorism. When there is evidence, we can and we do take action under our current law—for example, by excluding or deporting people from the United Kingdom. However, the Bill would very much strengthen our ability to do so, and underline our determination not to tolerate support here for terrorism abroad.
Security and legal considerations preclude me from going into detail about current investigations, but I can say that, for example, two Algerian nationals are currently in custody in the UK, subject to applications by the French authorities to extradite them in connection with the 1995 bombing campaign in France. One of the individuals is alleged to have been involved in those offences from the UK. The Bill will also prove useful in the fight against those involved in organised international crime.
§ Mr. Galloway
All the examples the Minister has cited have been or are being dealt with under existing British law. The maniacs who tried to blow up the Israeli embassy and the Jewish charitable building were dealt 570 with under due process of British law. The Minister has just told us that two Algerians are facing extradition to France—God's speed to that extradition—where they are alleged to be guilty of serious terrorism. They are all being dealt with under existing law. We are now inventing a new law; surely the Minister should be making a case for that.
§ Mr. Kirkhope
I have tried to explain that the Bill will strengthen our powers. We do indeed already have some powers, but the new ones will be extremely useful in our fight against international crime being organised from this country.
Criminals are involved in a wide range of offences, including passport fraud, drug trafficking and illegal immigration. A joint development between the National Criminal Intelligence Service and the law authorities in the Netherlands, for example, resulted in the arrest of 14 individuals in the UK and the Netherlands for drug trafficking. Economic crimes, such as corporate market manipulation, have been the subject of attention by NCIS working with the appropriate financial regulation authorities.
Successes have also been scored against paedophiles. As hon. Members are well aware, legislation currently before the House is helping to strengthen our approach against this vile and despicable crime.
Through NCIS, we have targeted individuals who were suspected of producing counterfeit dollars in the UK for use in the United States. That operation was the work of a number of agencies, and investigations have also uncovered forged documents linked to a European operation controlled by an organised crime group. There are many examples of the types of crime which the Bill will assist us to detect and take action against.
I know that concerns have been expressed in various ways, but I hope that the assurance that I gave a little earlier will help to allay them. We are not against asylum, as the hon. Member for Swansea, East (Mr. Anderson) almost suggested. We want to grant asylum; the Bill does nothing to take away from people who fear for their lives the right to come here and be safe as long as they are prepared to accept this country's laws. That notion is paramount and it is what lies behind this important Bill. I commend it to the House.
§ 1.6 pm
§ Mr. Waterson
We have had an interesting debate of very high quality. I am grateful for the element of cross-party support for the Bill and must thank especially the hon. Member for Cardiff, South and Penarth (Mr. Michael) for his efforts during its various stages. I also thank my colleagues who have given up their time on a Friday to be here rather than in their constituencies.
The hon. Member for Glasgow, Hillhead (Mr. Galloway) made plain his root-and-branch opposition to the Bill, but he also made some thought-provoking points, for which I thank him. The hon. Member for Rotherham (Mr. MacShane) made a characteristic contribution.
I am delighted to welcome the hon. Member for Inverness, Nairn and Lochaber (Sir R, Johnston) to our debate. This is the first time that we have had the benefit of the views of the Liberal Democrats on this matter. I do not accept his criticism that the Bill is ill considered or 571 rushed—we have had full debates in Committee and on Second Reading, as well as today. I ask him to consider the safeguards included in the Bill.
I am delighted to welcome the hon. Member for Swansea, East (Mr. Anderson) to our deliberations again. He knows that I do not agree with his comments about the safeguards, but I am grateful for his continuing interest in the Bill. I thank my hon. and learned Friend the Member for Burton (Sir I. Lawrence) and my hon. Friend the Member for Gainsborough and Horncastle (Mr. Leigh) for their support and for their detailed scrutiny of the Bill.
There is a clear, and perhaps surprising, loophole in our laws which the Bill is designed to close. Because our approach to territoriality of jurisdiction is based, as has been mentioned, on the Queen's peace, it enables people to conspire and incite criminal acts while in this country. All we are doing is applying the principle, which the House approved in the Sexual Offences (Conspiracy and Incitement) Act 1996, across the range of criminal law—the principle of extra-territoriality of jurisdiction, whether it relates to paedophilia, terrorism, fraud, drug trafficking, football hooliganism or a range of other possible offences.
The Bill has safeguards to protect our long tradition of providing safe haven for refugees and the like. As the hon. Member for Hillhead pointed out, Karl Marx is perhaps the best example of that. He sat peacefully and without interruption in the reading room of the British museum. The Bill will have no effect on peaceful dissent and political opposition. It contains the fundamental safeguard of dual criminality and the normal safeguard of the prosecution having to prove its case beyond reasonable doubt.
§ Mr. Donald Anderson
The hon. Gentleman is speaking as though he is not in favour of the concession made by the Home Office. Does he agree that another argument for involving the Attorney-General is the possibility that a tyrannical regime overseas could urge, finance and give evidence to a private individual in this country sympathetic to that tyrannical regime to bring an action against someone like Mandela, whose broad opposition to such a tyrannical regime we would support?
§ Mr. Waterson
The hon. Gentleman has anticipated my next point, which is that much of the debate that he has instigated has been about whether the Attorney-General's consent should be a precondition for a prosecution or whether some other mechanism can be arrived at for what the hon. Gentleman described in Committee as high-profile cases—those sensitive cases with a political and perhaps an international element. That is why I very much welcome the announcement made by my hon. Friend the Minister, as I am sure that the hon. Gentleman does. The announcement meets the legitimate concerns expressed in our debates. We cannot permit people who come to this country as a safe haven to abuse our hospitality by plotting to commit criminal acts abroad and let them go unpunished. I commend the Bill to the House.
§ Mr. Skinner
I have listened to my hon. Friend the Member for Glasgow, Hillhead (Mr. Galloway), who attempted earlier to stop the proceedings. I was a couple of minutes late for that. I heard the generality of his views.
572 I suspect that the Bill was introduced by the hon. Member for Eastbourne (Mr. Waterson) because it came off a Home Office shelf. It is, to all intents and purposes, a Government Bill.
§ Mr. Waterson
I welcome the hon. Gentleman to our debate, which has been going on for some time. I assure him that I take full responsibility for the Bill. It is my Bill. If there are any defects in it, I shall be delighted to explain or defend them. It is my Bill and I am delighted to have the opportunity of putting it to the House.
§ Mr. Skinner
Of course it is the hon. Gentleman's Bill now. The truth is that it comes off the Government's shelf. My hon. Friend the Member for Swansea, East (Mr. Anderson), who was on the Committee, made it plain without being challenged that the Bill came from the Home Office.
There are not many Fridays for authentic private Members' Bills. This is one of the rare occasions—there are even fewer than normal in this Session before the general election. The system has been abused, probably by Governments of both parties over many years. It is time that that was stopped. That is the first reason why I do not like the use of Bills off the Government's shelves, taking up valuable time that should be for authentic private Members' Bills.
When I was listening to my hon. Friend the Member for Hillhead at 10 o'clock this morning, he was talking about terrorists versus freedom fighters. He talked about the classic example of Nelson Mandela having been in this country. Nelson Mandela was regarded by Tory Members of Parliament in particular as a terrorist. They wanted to hang, draw and quarter him. When we had the celebration in Westminster Hall a few months ago, I went in early, and when I got there the first four rows were occupied by Tory Members of Parliament who had wanted to keep Nelson Mandela in gaol for ever. He had become not a terrorist but a freedom fighter.
The same was true of Archbishop Makarios, who was a terrorist, but finished up taking tea at Buckingham palace. I remember going to a meeting in one of the Committee Rooms to hear Robert Mugabe before he became the leader of his country. He was a terrorist then, but he has now been in power for well over a decade. For that reason, I am very disturbed about the way in which the Bill—a political Bill to its backbone—is being used.
I have heard several references to the fact that the Government want to control football hooligans with the Bill. If they want to control football hooligans, they should bring in a Bill to control football hooligans. If the Government want to get hold of the international drug conspiracy and all those other seedy affairs, they should bring in a Bill to do that. What they have done is to use a piggyback method. They have used the argument about hooligans and drugs as the soft argument, in the knowledge that the freedom fighters and asylum seekers will get caught up in the net. That is how I see it.
The Bill is an abuse of the Friday procedure, because the Government have used one of their Back Benchers to get it through. The Attorney-General will be able to use a pick-and-mix method in deciding, in a political sense, who is picked up and who is not. The Bill is a catch-all for various groups. If the Government want to be specific about hooliganism at football matches, drug dealing, 573 terrorism and all the other crimes we abhor, they should do so in a principled fashion. They should introduce a Bill between Monday and Thursday so that it is dealt with in the appropriate way. For those three reasons, I shall join my hon. Friend the Member for Hillhead if he decides to divide the House.
Question put, That the Bill be now read the Third time:—
§ The House divided: Ayes 26, Noes 0.
|Division No. 76]||[1.16 pm|
|Batiste, Spencer||Malone, Gerald|
|Bowis, John||Merchant, Piers|
|Butler, Peter||Ottaway, Richard|
|Cormack, Sir Patrick||Steen, Anthony|
|Dykes, Hugh||Townsend, Sir Cyril (Bexl'yh'th)|
|French, Douglas||Viggers, Peter|
|Greenway, Harry (Ealing N)||Waterson, Nigel|
|Hughes, Robert G (Harrow W)||Wheeler, Rt Hon Sir John|
|Jenkin, Bernard (Colchester N)||Whitney, Sir Raymond|
|Kirkhope, Timothy||Wilkinson, John|
|Lait, Mrs Jacqui||Wood, Timothy|
|Lamont, Rt Hon Norman|
|Lawrence, Sir Ivan||Tellers for the Ayes:|
|Leigh, Edward||Mr. Peter Atkinson and|
|MacGregor, Rt Hon John||Mr. Michael Fabricant.|
|Tellers for the Noes:|
|Mr. George Galloway and|
|Mr. Dennis Skinner.|
§ It appearing from the report of the Division that 40 Members had not taken part in the Division, MADAM DEPUTY SPEAKER declared that the Question was not decided, and the business under consideration stood over until the next sitting of the House.