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Lord McNally: Our Amendment No. 135 is put forward with the same probing inquisitiveness as that shown by the noble Earl, Lord Onslow, but with a slightly different emphasis. My colleagues are worried that legislation at the moment does not include so-called Xdirty bombs". This amendment is intended to bring them within the ambit of the Act.

Baroness Symons of Vernham Dean: I thought that we would have some fun with this amendment, not least because the noble Earl rushed along the corridor the other evening, waved the Bill under my nose, and said XWould you believe it?". As drafted, this amendment would delete the substantive offences from the nuclear weapons clauses in the Bill. That would clearly destroy the purpose of both this clause and Clauses 49 to 56, which refer to it.

The noble Earl will not be surprised to know that I cannot accept his amendment. I understand that he is concerned that causing a nuclear explosion is not currently an offence. He is right. It is not in and of itself an offence so to do. But while it is not a specific offence, it would fall foul of a number of existing provisions—including the endangering of life and damage to property—as well as of Section 2 of the Explosive Substances Act 1885, which carries a maximum penalty of life imprisonment.

Therefore, I strongly advise the noble Earl that, should he come across a nuclear device in his drive one morning, he should not pop it into the back of his car

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and drive around with it because he might find himself in considerable difficulty. It is very hard to imagine a nuclear explosion that would not cause danger to life or indeed to property. I do not believe that even the noble Earl's powers of persuasion would see him through that predicament.

Similarly, many of the offences relating to production, development, possession and transfer would be covered under existing legislation. I do not believe that the noble Earl should be too worried about this matter although he is quite right because there is no offence.

The noble Earl also asked about United Kingdom scientists working for what I can only describe as Xfriendly" countries. We would be able to authorise a specific scientist to work for an ally. Indeed, from my previous incarnation in the Ministry of Defence I am aware of a number of occasions when scientists have moved between the countries of NATO allies. I am sure that that is very much what the noble Earl would expect.

Making the acts set out in Clause 48 illegal in their own right is an important part of our efforts to strengthen the existing legislation although the noble Earl obviously believes that it is comic that we should have to do so. There is a very important role to play in the strengthening exercise. There is no doubt that we regard these offences particularly seriously and that we consider life imprisonment to be a suitable penalty for those found guilty of them. It will help to ensure that terrorists cannot use any expertise to which they may have access to develop nuclear devices or to threaten to use them, if they succeed in making one. Now that the noble Earl has had his bit of fun, I hope that he will not press his amendment.

I turn to the amendment tabled by the noble Lord, Lord McNally. The amendment seeks to widen the definition of a nuclear weapon to include the so-called radiological or—as he termed it—Xdirty" bomb, which is the way that it is often described. There has been a great deal of speculation about such devices. For obvious security reasons I shall not detail how they are made or what effects they have, but I sympathise with the noble Lord's intention in tabling the amendment.

The Government do not want to see terrorists seeking to acquire or use such devices any more than does the noble Lord. However, we are confident that other provisions in the Bill, such as those relating to noxious substances in Clause 112, together with other existing legislation such as the Terrorism Act 2000 and the Nuclear Material (Offences) Act 1983, provide sufficient legal sanctions against such activities. We do not, therefore, think that making specific provision of the kind suggested in the amendment is necessary.

One further point is that the Government do not think that it is desirable to blur, even for the limited purposes of this part of the Bill, the clearly understood character of a Xnuclear weapon". We do not believe that it would be helpful to lump together that and radiological weapons or to treat as of equal

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significance devices based on conventional explosives and those relying on a nuclear chain reaction leading to an atomic detonation, which are of a special, indeed unique, nature.

I hope that the noble Lord feels that I have given him enough indication of why we do not support his amendment. Although we have a great deal of sympathy for it, we believe that it is covered elsewhere in the Bill. To cover it in the way that he suggests would actually lead to more confusion and difficulty about the way in which we define what is nuclear. I hope that the noble Lord will feel that he does not need to press his amendment.

Lord McNally: Although the section gives cause for merriment, does the Minister not agree that one of the changes in mindset that we must take on board after 11th September is to contemplate what was previously the unthinkable? Before 11th September the idea of suicide pilots flying jumbo jets into skyscrapers would have been thought of as a scenario for Hollywood movies. References to nuclear weapons and dirty bombs might seem to be part of XJames Bond" or XDr Strangelove". But the truth, as can be seen from some of the intelligence discovered, is that there are people trying to develop weapons along those lines. I suspect that, both in legislation and the whole mindset of our approach to terrorism, we shall have to take on board thinking the unthinkable in order to be ahead of the terrorists rather than simply reacting to them. But I understand the Minister's point.

Baroness Symons of Vernham Dean: I agree. I hope that much of what I have said today on previous amendments indicates my own belief that we are in a very different position post-September 11th to that which we were in before.

My point about the noble Lord's amendment is that we do not want in any way to muddy the terms and definitions of what is understood internationally as Xa nuclear weapon". In particular, we do not want to do that in terms of the non-proliferation treaty. I hope that the noble Lord will accept my assurances that it is covered in a different part of the Bill and that we have enormous sympathy with his point. We just believe that it is better dealt with in a different way.

Tabled in this group is Amendment No. 138 standing in my name. Perhaps that is to be addressed separately.

7.15 p.m.

Lord Howell of Guildford: Amendment No. 138 is in the same group as Amendment No. 134A moved by my noble friend Lord Onslow. The amendment concerns the defences in Clause 50 against prosecution for offences under Clause 48.

It might be called—rather boldly from a spokesman from these Benches—the Matrix Churchill amendment. Its purpose is to give an additional defence to those in Clause 50. The defence is,

    Xfor the accused to show that he reasonably believed he was acting for, or with the authority of, the Government of the United Kingdom".

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I realise that in the twilight world of intelligence, which I certainly do not want the noble Baroness to comment on, people who might have been acting with the authority of the state are disowned. That may be the end of the matter. Nothing can be done for them. But in the open world we know, and as the Matrix Churchill case showed, an accused may think that he or she was acting with government authority. We think that the additional defence would be prudent here. Just as someone who does not know that he is dealing with nuclear material has a defence under the clause, so should someone who has reason to think that he is acting for or with the authority of the Government. That is the purpose behind the amendment. I should be grateful for the comments of the noble Baroness.

Baroness Symons of Vernham Dean: As the noble Lord says, the amendment has the effect of providing a further defence to a person accused of offences under Clause 48; namely, that he or she reasonably believed that he or she was acting for, or with the authority of, Her Majesty's Government.

The Government do not believe that that would be a helpful change. It blurs what we believe is a clear distinction between what has been authorised and what has not been authorised. If a person intends to conduct such activities and wants to stay on the right side of the law, he or she really should take legal advice and, if necessary, apply to the Secretary of State for an authorisation. The Secretary of State could then grant an authorisation if he thought that doing so was in the national interest.

It seems to the Government to be unhelpful to widen the field of those acts. Clause 48 would not make an offence by adding this subjective test in the way that the noble Lord suggests. I understand that there may be some difficulties about how the authorisation process works. It will work in a similar way to authorisations for military action and the way that those are given. Obviously, we do not want to discuss those in detail on the Floor of the House. However, I can tell the noble Lord that it is a question of the chains of command that are in place in whatever service one is operating and ultimately it is a matter of ministerial consent that is necessary in order for this to have proper legal backing.

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