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Lord Beaumont of Whitley moved Amendment No. 142:


The noble Lord said: Members of the Committee will have noticed that I stayed quiet during the whole of this afternoon and evening until the last set of amendments was called. Now I come into my own with the final amendment of the day. It is very simple and it will take only a very short time to deal with it. I did not intervene when the noble Lord, Lord Elton, said, semi-facetiously, that he did not think that terrorists would enter on such cards the fact that they were terrorists. As the noble Lord is no longer in the Chamber, I must tell him through Hansard about my grandfather who was a Member of the British Parliament and married to an American. When he arrived in New York and was asked whether he intended to subvert the constitution of the United States by force, he said, "Yes, of course". He was noted for having a rather bizarre sense of humour and also for being an extreme radical. No one quite knows to this day which of those two qualities was actually in force at that particular time--

Lord Avebury: I trust my noble friend will allow me to intervene. During the McCarthy era, when my uncle

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was asked a similar question, "Do you intend, while in the United States, to commit any immoral, sexual offence?" he replied on the form, "Yes, I do--with Senator McCarthy".

Lord Beaumont of Whitley: I do not know what happened to my noble friend's relative, but my grandfather spent the night on Ellis Island until his wife's uncle--who just happened to Mayor of New York at the time--managed to spring him the next morning.

My amendment takes a few words for the purpose of asking what on earth they are meant to convey and what they are meant to do. They appear to be rather unnecessary. I do not know what they mean, or why they are in the provision. No doubt the Minister will tell me. I beg to move.

Lord Bach: Having just heard about the ancestors of two noble Lords, I think that that is probably enough for this hour of the night. Therefore, I shall not try to top their stories. With permission, I shall speak to the amendment on the Marshalled List. The "directing" offence in Clause 56 is based on an existing Northern Ireland offence under Section 29 of the EPA. It is aimed at those who direct the activities of organisations without committing acts of terrorism themselves.

Such persons may be active at the very top of terrorist organisations. We said in the consultation paper Legislation against Terrorism that the offence was aimed at "the strategists"; indeed, the two men who have been convicted of the offence in Northern Ireland are so-called "Mr Bigs", which is not, I believe, an expression used very often in this place. But the offence can also be committed by those who direct the organisation's activities at other levels: the organisation's "middle management", so to speak. It is surely right that they, too, should be guilty of an offence.

The maximum sentence of life imprisonment provides an appropriate penalty for those at the very top of such organisations, while at the same time allowing a court to give a lower sentence for those lower down the scale. By deleting the expression "at any level", the noble Lord's amendment would appear to focus the offence more directly on the "Mr Bigs" at the expense of middle management. If that is not the intention, a defendant, however highly placed, might still argue that he had not "directed" the activities of the organisation because he was responsible to another director at a higher level. There would be arguments about whether, because he answered to a superior, he could really be said to be "directing".

We do not think that making such an amendment would send the right signals to terrorist organisations about society's abhorrence for their actions. It is fundamental to this Bill that terrorism of any kind is terrorism and must be treated as such. By the same token, directing terrorism at any level is directing terrorism and must be treated as such. I hope that

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explains to some extent why the phrase that the noble Lord complains about, "at any level", is to be found in the Bill.

10.30 p.m.

Lord Beaumont of Whitley: The noble Lord has explained the position to a certain extent, but I find the explanation not the slightest bit persuasive. It seems to me that to leave out those three words would not in any way detract from the purposes which the noble Lord so rightly tries to achieve. It would not send any negative signal, unless people read Hansard rather carefully and noted that the words had been removed from the original text. If those words are removed from the Bill, I do not believe that any bad signal would be sent out. Terrorists would be just as easily convicted. However, this is a probing amendment; it is not an important point. I certainly do not intend to bring it back at any other stage. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 56 agreed to.

[Amendment No. 142A not moved.]

Clause 57 [Possession for terrorist purposes]:

[Amendments Nos. 143 to 156 not moved.]

Clause 57 agreed to.

Clause 58 [Collection of information]:

[Amendments Nos. 157 to 159 not moved.]

Clause 58 agreed to.

Clauses 59 and 60 agreed to.

Clause 61 [Scotland]:

On Question, Whether Clause 61 shall stand part of the Bill?

Lord Cope of Berkeley: The Committee will have noted from the Marshalled List that I intend to oppose the Question that Clause 61 stand part of the Bill in order to press once again a point I have made at intervals during our debates concerning the extent of consultation with the Scottish Parliament on certain matters. I have elicited the information that the Government did not consult the Scottish Parliament but they did consult the Scottish Executive. That does not seem to me an acceptable substitute given that the Scottish Parliament has authority--given to it by this Chamber and this Parliament--over matters of Scottish law. I have received that explanation on several occasions and no doubt I shall hear it again. I do not intend to press the matter this evening.

Lord Bach: I am not entirely surprised that the noble Lord opposes the Question that Clause 61 stand part of the Bill. He was good enough to give notice of his intention. He may be pleasantly surprised to hear that I shall not dismiss his arguments in a sentence or two. I shall take my time over this.

This clause applies to Scotland the England-and-Wales incitement provision in Clause 59. The only difference is that Clause 61 reflects the position of the Scottish criminal law. In Scotland, the relevant

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offences are covered by the common law, whereas in England and Wales they are dealt with by common law and statute. Clause 61 therefore keeps the law throughout the UK on an even footing when dealing with incitement to commit terrorism.

I invite the noble Lord to consider Clause 60 which deals with exactly this situation as far as Northern Ireland is concerned.There is nothing special about Clause 61, except that it deals with Scotland.

As I explained when we were considering Clause 8 of the Bill last week, terrorism is a matter reserved to the Westminster Parliament under Head B8 to Schedule 5 to the Scotland Act 1998. Under the devolution settlement at Section 29 and paragraph 2 of Schedule 4 to the Scotland Act, as the noble Lord will know, the Scottish Parliament is not competent to legislate on a reserved matter or to modify the law on reserved matters. Under Section 29 also, it is provided that where legislation of the Westminster Parliament deals with a reserved matter--in this case terrorism--the legislation may modify Scots criminal law as it applies to that reserved matter of terrorism.

That is precisely what Clause 61 does: it creates a new criminal offence and penalties, and thereafter leaves to the general criminal law of Scotland the process by which a person is tried and convicted for the offence. If I may set it out as clearly as I can for the noble Lord, as I am sure this will be the last time that he raises this matter in the course of the Bill's passage through the House--at least I hope so--the Government are clear, first, that Clause 61 deals with a reserved matter; secondly, that, as a result, the Scottish Parliament would not be competent to legislate on this matter; and, thirdly, that Clause 61--as does the rest of the Bill in its application to Scotland--makes provision in respect of Scots law that is specific to this subject matter of terrorism.

Lord Avebury: Why is it then that there is no equivalent in Clause 61 of the Criminal Damage Act 1971 in England or its equivalent in Northern Ireland? Apparently in Scotland a person can incite to commit damage to property, even if it endangers life, whereas he cannot do so either in England and Wales or Northern Ireland. That seems to be a difference between the jurisdictions which is not justified by any objective considerations.

Lord Bach: I hope to be able to answer the noble Lord before I sit down. Let me continue with what I was saying. The Committee will appreciate that if Clause 61 was not part of the Bill there would be a gap which it would not be within the competence of the Scottish Parliament to fill, even if the Scottish Parliament were otherwise minded to do so.

That is not to say that we will not continue to work together with the Scottish Executive on the details of how the provision in the Terrorism Bill will work in practice. Officials have been working very closely before introduction and at every stage of the passage of the Bill. Regular meetings and discussions have taken place. It is important that those responsible for

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policing and the criminal justice system in Scotland are fully aware of, and have been consulted on, the way that the provisions in the Bill will affect them.

The noble Lord, Lord Avebury, asks why we have a different definition for violence against property in Clause 59 to that contained in Clause 61. I believe that that is the purpose of his question. We have always said that the incitement provision is specifically focused on the most serious offences in this area which do not already--that is the key word--attract the incitement offence by virtue of the extra-territorial applications of existing legislation. Our intention in this provision, which essentially fills in gaps in UK law, is to outlaw the incitement here of very serious acts with a terrorist motive overseas. So, in relation to property crime, the relevant offence is to incite the endangering of life by damaging property. It is not a case of one definition of "terrorism" for here and a narrower one for abroad; it is the same definition for all acts, whether here or abroad. We are applying the definition in Clause 1 to specify existing offences, to ensure that incitement here to commit certain acts abroad--which, if committed here, would constitute one of those specified offences--will be caught. There is a difficult balance to be struck. We rightly cherish our long-held traditions of freedom of speech, and we only limit it in the most serious of circumstances.

We are very grateful to the noble Lord, Lord Cope, for having directed our minds towards this question of the effect that this legislation has on Scotland. He has quite rightly asked these questions on a number of occasions. I hope that the answer I have attempted to give at this last moment of today's Sitting may be of some help to him. We look forward to hearing what has to say.


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