Standing Committee D
Tuesday 8 February 2000
[Mr Humfrey Malins in the Chair]
Question proposed [3 February], That the clause stand part of the Bill.
Question again proposed.
Mr. David Lidington (Aylesbury): When we adjourned last Thursday, I was about to ask the Minister about clause 60 and the implications of the United Kingdom's proposed ratification of the international convention for the suppression of terrorist bombings. Since then, I have thought carefully about whether such an important subject requires an extensive debate. I took expert advice from experienced Members, including my right hon. Friend the Member for Bromley and Chislehurst (Mr. Forth). I consequently condensed my questions into three points.
First, what is the relationship between the extraterritorial jurisdiction sought under clause 60 and the normal arrangements that we have with several countries for the extradition of serious offenders for trial in the country in which the offence is alleged to have taken place? When such offences take place in a country with which the United Kingdom has an extradition treaty, will it be open to the UK Government or the prosecuting authorities to choose to try alleged criminals here under the proposed extraterritorial jurisdiction or to extradite them to face trial elsewhere? Do the convention and the Bill require that one or other of those courses of action take priority? At what point and to what extend is the matter a question of judgment?
I accept that Ministers could be under political pressure--I do not use that phrase in a pejorative sense--to have a case tried here rather than return someone to a country believed to be tyrannical or oppressive by a significant sector of the British public. Public feelings of sympathy for the alleged offender may even outweigh the serious crime with which he or she has been charged.
My second question is about article 8 of the convention, which appears to oblige the UK Government and all other parties to the convention to initiate prosecutions without exception. It explicitly states:
"The State Party in the territory of which the alleged offender is present shall, in cases to which article 6 applies, if it does not extradite that person, be obliged, without exception, whatsoever and whether or not the offence was committed in its territory, to submit the case without undue delay to its competent authorities for the purpose of prosecution".
Will the Minister confirm that that means that we are proposing to treat the offences provided for in the convention in the same way as hijackings and piracy? To a certain extent, the Government would be binding their hands and saying, "We regard those crimes as so horrific and such a threat, to not only human life and safety but to international order, that whatever the extenuating circumstances we accept an obligation, binding in international law, to initiate proceedings for prosecution." I would be grateful for the Minister's confirmation that that is the meaning of article 8.
My third question relates to the rules of evidence. My understanding of article 8 is that we are accepting the obligation to initiate prosecutions, but that the police and the Crown Prosecution Service would apply the same tests as in a purely domestic criminal prosecution. They would have to satisfy themselves that there was adequate evidence to justify bringing the case before a British court and that it was in the public interest for such a prosecution to be brought. Would that public interest test be related to an assessment of public opinion or of the state of Britain's diplomatic and commercial relations with the other country?
The evidential test is relevant to alleged offences that have taken place overseas. The CPS will have to weigh up whether there is sufficient evidence to justify bringing a prosecution in a British court. Will the CPS, in making that assessment, apply the normal rules about admissibility of evidence? Clearly, it might be difficult for the CPS to obtain documentary evidence and to secure the presence of witnesses in court to ensure that the case meets the standards that British courts normally require in prosecutions of such serious offences. The European convention on mutual legal assistance would help in such a case, by allowing evidence to be presented through video recordings and to be faxed to the United Kingdom, rather than requiring original documents.
If we are properly to assess what effect the clause and ratification of the convention will have in practice and what difference they will make to our ability to combat international terrorism, we will need answers to the practical questions that I have raised about evidence.
Mr. Simon Hughes (Southwark, North and Bermondsey): I have a few supplementary questions that are appropriate at this point.
By definition, various jurisdictions will be relevant in the context of the clause. When we talk about jurisdiction in this country and possibly elsewhere, various questions arise, as the hon. member for Aylesbury (Mr. Lidington) rightly said. Those of us who took courses in international law will remember those issues--not very well, but well enough to remember that they are controversial. Do the Government have a mechanism in place to deal with those issues, not only with the Irish Government, with whom they collaborate regularly on legislation in Ireland and in the United Kingdom, but with the European Union and members of the Council of Europe, which are signatories to the convention on human rights? Is there a process to ensure that our legislation on international offences resembles theirs as closely as possible? Of course, bringing together national jurisdictions takes time. I remember from my work at the Council of Europe that there were regular intergovernmental conferences to seek agreement about such matters. It would help to know whether it is now the Government's practice and policy to agree legislative wording and implementation so that there is the greatest similarity, especially across Council of Europe countries, which are all governed by the convention.
It is appropriate that this matter crops up today. The hon. Member for Aylesbury (Mr. Lidington) touched on the issue of extradition. Down the road, the most recent phase of the case relating to General Pinochet is taking place. That case reminds us of a question that could apply equally to terrorist bombings and which certainly applies to the Lockerbie air disaster, the Libyan defendants and the issue of jurisdiction. What process is followed to establish who should trigger extradition? Where is the right jurisdiction? What is the right legal forum for such cases? It may be far preferable, cheaper and more efficient in international law making and law enforcement for a particular country to be the forum.
What is the process? How far advanced are we with the planning? When the Spanish and the Belgians sought extradition of General Pinochet, they did so largely because individuals went to their courts and to international organisations. However, as the hon. Member for Aylesbury said, extradition is often instigated by domestic prosecuting authorities equivalent to our Crown Prosecution Service. There is an international network of prosecuting authorities, just as there is a network for policing and secret or special services. What will be the process? We can pass the clause into law, create offences and include offences from Acts of Parliament that go back almost 120 years, but our logic must be that people cannot play one jurisdiction off against another. For the same act, there should not be highly different thresholds for prosecution or guilt, or different definitions of the offence.
My third linked question relates to the prosecuting authorities. It is appropriate that decisions should be taken not unilaterally but collectively. A case is more likely to stand up if there is a common view on how to proceed among the prosecuting authorities in the relevant countries of the Council of Europe or the EU. The best place to seek maximum agreement if the Council of Europe. The European convention is the external arbiter of the working of the Bill, so we should seek maximum agreement among its signatories. Can the Minister update us on the current practice and what the Government expect to happen, in the interests of co-ordination on matters that would be best dealt with at an international level?
The Chairman: The hon. Member for Aylesbury strayed slightly on to clause 61, which was entirely appropriate. If hon. Members stray on to clause 61, I shall be entirely content as that will save time. However, there will be a further debate on that matter.
The Minister of State, Home Office (Mr. Charles Clarke): First, I pay tribute to the outstanding judgment of the hon. Member for Aylesbury in taking the profound, wise and welcome decision not to follow the lead of the right hon. Member for Bromley and Chislehurst in his approach to such matters in Committee. The hon. Gentleman's approach completely validates his presence on the Conservative Front Bench and shows wisdom that we must all admire.
As the Committee will be aware, clause 60 is designed to extend extraterritorial jurisdiction, beyond that which already applies, in relation to the offences listed in subsection (2). It essentially ensures universal jurisdiction over those offences in existing legislation, such as the Explosive Substances Act 1883, the Biological Weapons Act 1974 and the Chemical Weapons Act 1996, which currently attract different levels of extraterritorial jurisdiction in so far as those offences are committed as acts, or for the purposes, or terrorism.
Under the clause, if a person commits a terrorist act outside of the United Kingdom that would constitute one of the offences listed if he had committed it here, and he then enters this country, he is triable here. That extension of extraterritoriality, together with the related changes to the Extradition Act 1989 under new clause 9, is necessary to enable the United Kingdom to ratify the United Nations convention for the suppression of terrorist bombings in due course, and to meet its obligations under the so-called extradite or prosecute provisions of that convention, which are common to earlier UN counter-terrorism conventions. That covers cases in which, for example, a convention state seeks the extradition of a person who has allegedly committed a terrorist act in that state, but extradition from the United Kingdom is not possible for whatever reason, so prosecution here could follow. The United Kingdom signed the convention when it opened for signature on 12 January 1998.
The main provisions of the terrorist bombings convention are that, under article 6, the state party is required to take jurisdiction over the convention offences that relate to terrorist bombings or the use by terrorists if other lethal chemical, biological or chemical devices when they are committed by its nationals anywhere in the world. In addition, under articles 6, 4 and 8, each state party is obliged to establish jurisdiction so as to prosecute alleged offenders regardless of nationality when they are in a state's territory and that state will not extradite to another state for whatever reason. The so-called extradite or prosecute provision that I mentioned earlier is common to almost all UN counter-terrorist conventions to certain other conventions. Clause 60 and new clause 9 will enable United Kingdom to meet that important international obligation.
As hon. Members will be aware, in relation to many Council of Europe countries and India, extraterritorial jurisdiction already applies to a number of serious offences under the Suppression of Terrorism Act 1978. Therefore, I should like to take this opportunity to clarify for the record what my right hon. Friend the Home Secretary said on Second Reading. He said:
"Extra-territorial jurisdiction covers all Council of Europe countries".--[Official Report, 14 December 1999; Vol. 341, c. 162.]
In fact it covers only those countries that have been specifically designated by statutory instrument under the 1978 Act, following their ratification of the 1977 European convention on the suppression of terrorist bombings.
As I have said, the offences that we are considering under clause 60 will, of course, automatically attract universal jurisdiction. As more countries take action to meet their obligations under the terrorist bombings convention and other UN counter-terrorist conventions, so the underlying objective of international action--to deny terrorists refuge anywhere in the world if at all possible--comes a little closer to practical reality. Building up that infrastructure of international counter-terrorist law and, most important, ensuring effective implementation by all participating states is, of course, a lengthy and difficult process, and, as most member of the Committee will agree, we as a country must continue to play a significant part in that process.
Adherence to the terrorist bombings convention and other UN counter-terrorist conventions is consistent with the United Kingdom's support for effective international co-operation against terrorism. If we had wanted a reminder of the importance of that since we last met, the Stansted hijacking could not have illustrated it more clearly.
The hon. Member for Aylesbury spoke about the problem of choosing between different forms of legislation. Extradition law and procedure is extremely complex. Most extradition cases involve accused rather than convicted persons. The best answer I can give is to emphasise that the normal preference would always be for extradition. Lord Lloyd said in his report that extraterritorial jurisdiction was always a second best. The Government share that view and although it is not possible to go into a detailed explanation of every conflict that could arise and every hypothesis here in Committee, I should like to place it on record that our normal preference would always be for extradition as the appropriate means of dealing with issues that arise.
The second question that the hon. Member for Aylesbury asked was about the meaning of article 8. The obligation under article 8 is to submit the individual for prosecution, but it would be for the Director of Public Prosecutions to decide whether it was in the public interest to proceed. It is always difficult to prosecute in relation to acts committed abroad, but the interpretation that I place on the record here is our considered view. We believe that in passing the clause and the relevant new clauses, we are meeting in full our obligations under article 8 of the convention. The hon. Gentleman's third question related to rules of evidence. Normal evidentiary notes would apply to the decision to bring proceedings in this country for a terrorist offence so the normal situation is not changed by the Bill.
The hon. Member for Southwark, North and Bermondsey (Mr. Hughes) commended me for my studies in international law when I was an undergraduate. But I never studied international law. It is part of my general weakness in make-up that I did not study law as a whole and it makes me an inadequate person, but I have been advised by people who are well versed in these things and I hope that I can answer the hon. Gentleman's questions. First, he asked whether there would be a greater bringing together of the legislation on all the different processes. The answer is fundamentally yes. Procedures are similar in relation to the European convention on extradition. There are differences in relation to some states where extradition may be dealt with in a different way, but the differences are not significant. Basically we are, in the way he described, moving steadily towards a more coherent and positive position. We are seeking to achieve similar jurisdiction legislation across the different legal systems. That is the purpose of the UN convention itself and the reason why we have signed it and encourage others to do the same. However, as the hon. Gentleman knows better than I do--I mean that quite seriously--there are different systems in different countries. The constant effort is to bring them together, but we are not there in every respect.
I think that I have dealt with the point that the hon. Gentleman raised about extradition. Jurisdiction depends simply on whether the person in question is to be found in the United Kingdom. If a person is here, he or she can be extradited, prosecuted here and dealt with or released. That is the process. On the question of unilateral or collective decisions, decisions should be taken collectively, not unilaterally as the hon. Gentleman suggested. The authorities here must still decide whether to prosecute. The normal evidential standards will apply. There is not a collective process whereby we all agree that an action should take place in this country. That is the same for every other country. Obviously, the general point that the hon. Gentleman makes is political. In matters of this kind, the more there can be collective agreement about how to proceed, the better. I understand that point, but legally the position is, and should be, that decisions are taken in this country explicitly for that reason.
Question put and agreed to.
Clause 60 ordered to stand part of the Bill.
Question proposed,That the clause stand part of the Bill.