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Lord Goodhart: I support the amendments spoken to by the noble Lord, Lord Kingsland. I have a few concerns about them in detail, because, in the case of certain offencesfor example, acts preparatory to terrorism under Clause 5, or providing or receiving training under Clause 6it may well be that one would want to have some weapon against somebody who subsequently arrived in this country and there was reason to believe that they were here for nefarious purposes.
However, the principle is right. Of course, it could be that people would be liable to prosecution under Clause 17, at least in theory, even if what they had done had been done many years previously. I accept it could not be retrospective to the enactment of this Bill. It could thereafter, however, go back a long way and expose people to prosecution for acts which had occurred many years ago and had no relevance whatever to their presence in the United Kingdom. So while I am not sure that this is the most appropriate form of words for it to take, it raises an issue requiring serious consideration.
Baroness Scotland of Asthal: Can I clarify something? Initially, the grouping I had indicated that we were going to speak to included Amendments Nos. 99, 99A and 100, Amendments Nos. 99A and 100 being in the name of the noble Lords, Lord Goodhart and Lord Thomas of Gresford; and Amendments Nos. 101 and 102, in the name of the noble Lord, Lord Elton. Am I right in saying that I now have to reply only to Amendment No. 99?
Lord Kingsland: On my sheetit may be out of dateAmendment No. 99 is on its own; then we have Amendments Nos. 99A and 100; and then we have Amendments Nos. 101 and 102. Perhaps, for the convenience of the Committee, we ought to debate the
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other two groups, and then the noble Baroness could deal with them altogether. I suspect, however, that that is not procedurally possible.
Baroness Scotland of Asthal: I am grateful for that clarification. The amendments all refer to extra-territorial jurisdiction. I had, therefore, intended to deal with a number of different points.
Lord Goodhart: I am happy to speak to Amendments Nos. 99A and 100, even if this is not strictly in accordance with the proper procedure, so that the noble Baroness can deal with them altogether.
Lord Elton: Has anybody moved a Motion yet?
Lord Kingsland: Yes, I have: Amendment No. 99.
Lord Elton: I am happy to speak to Amendments Nos. 101 and 102, provided that the answer is given separately and distinctly in the speech.
Lord Goodhart: Amendment No. 99A would remove criminal liability for encouragement of terrorism under Clause 1 if it was committed abroad. This does not cover the liability for the offences either of acts preparatory to terrorism under Clause 5 or of giving or receiving training for terrorism under Clause 6.
Given the width of the definition of terrorism and the width of the concept of encouragement enormous numbers of people would be potentially liable to prosecution under Clause 17 if it extended to the offence under Clause 1. Offences under Clause 2 are not included, because Clause 17 applies only to offences under Clauses 1 or 6. So the dissemination of terrorist material outside the United Kingdom would never come within the scope of prosecution under Clause 17. It is difficult to see the justification for saying that it applies to making a statement under Clause 1 and disseminating that statement under Clause 2, but at present the Bill makes that distinction.
The effect is that if someone outside the United Kingdom gave encouragement to, say, militants in Kashmir or Chechnya, he could be liable for a crime under Clause 1. That is seriously over-stretching the matter. We are looking at speech crime and, indeed, it comes close to being thought crimea word invented by a gentleman whose name was Blair, although he wrote under the nom de plume of Orwell. What is described here falls short of incitement to terrorism, and where it has no impact on the United Kingdom it does not seem appropriate to retain a power of prosecution in this country. Apart from anything else, any prosecution would be totally random, because there must be at any given time a large number of people who are potentially liable to prosecution, but the vast majority would never be discovered to have made a statement.
Providing for a prosecution for encouragement as opposed to incitement of terrorism in the United Kingdom, when the offence has been committed outside
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the United Kingdom, and which does not relate to encouragement in the United Kingdom, does not serve any useful purpose.
Lord Elton: My Amendment No. 101 is to elicit the reason for treating offences under Sections 3(1)(a) and (b) of the Explosive Substances Act 1883 differently from the offences listed in Clause 17(2) when they are treated as triable in the United KingdomI refer your Lordships to Clause 17(5).
My Amendment No. 102 is, first, to elicit which offences would be caught by the qualification in relation to Scotland; secondly, to ask why it is necessary to define them more strictly than others; and thirdly, to ask what the consequences of that would be.
Baroness Scotland of Asthal: I am grateful for that. I will take the strictures given to me by the noble Lord, Lord Elton, and deal with each of the amendments separately and distinctly so that each noble Lord gets the answer he deserves. I shall have to be careful how I phrase my responses. All the amendments concern extra-territorial jurisdiction. The issues can be divided into two distinct groups, so I shall deal first with the amendment tabled by the noble Lord, Lord Kingsland, then those tabled by the noble Lord, Lord Goodhart, and then those of the noble Lord, Lord Elton.
Extraterritorial jurisdiction was the subject of extensive debate in the other place. Many Members in the other place argued that the extent of extraterritorial jurisdiction originally in the Bill went too far. As your Lordships know, the Government wish to proceed by consent to the furthest extent possible on the Bill. Therefore, we sought to respond to the concerns expressed at that time. Accordingly, the Government brought forward amendments in another place, and the extent of extraterritorial jurisdiction in the Bill before your Lordships is considerably narrower than it was in the Bill that was originally introduced.
Clause 17 now provides what is effectively the minimum extraterritorial jurisdiction required to enable the United Kingdom to fulfil its international obligations and to enable us to ratify the Council of Europe Convention on the Prevention of Terrorism and the UN Convention on the Suppression of Nuclear Terrorism. I shall explain why those conventions require us to deal with extraterritorial jurisdiction in this way. I do so by reference to the Council of Europe convention, but exactly the same arguments apply, mutatis mutandis, to the UN convention.
Article 14 of the convention requires a state party to establish extraterritorial jurisdiction for the offences under the convention in a number of circumstances, including, for example, if the offender is a national of a state party, regardless of where the offence is committed. So we must take jurisdiction over a convention offence committed anywhere in the world by a United Kingdom citizen.
Secondly, Article 14 of the convention requires us in most situations where a person accused of committing an offence is wanted by another party to the convention and is found in our territory either to extradite the person or
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try him ourselves. That is a standard international convention provision. In such a case, our preference would always be to extradite, but as your Lordships will know, the Extradition Act 2003 sets out various reasons why in certain cases we cannot accede to an extradition request. So extradition can never be guaranteed.
That being so, we need to have jurisdiction so that we can take the prosecution option, whatever the nationality of the offender and whatever the offence that has been committed. So Clause 17 reflects those requirements. It provides that for offences in Clauses 1 and 6 of the Bill, which are necessary to enable us to ratify the European convention, we take extraterritorial jurisdiction in respect of them so far as they relate to convention offences. That is narrower than was originally in the Bill and it represents what we suggest is the absolute minimum extraterritorial jurisdiction necessary to allow us to ratify the Council of Europe Convention on the Prevention of Terrorism.
Similarly, we take the minimum necessary extraterritorial jurisdiction over the offences in the Bill designed to enable us to ratify the UN convention. Amendments Nos. 99, 99A and 100 would narrow still further the scope of extraterritorial jurisdiction. In every case, the effect would be that our law would not be fully compatible with the requirements of the Council of Europe convention. Additionally, in the case of Amendment No. 99, we would be out of step with the UN convention. That would be most unfortunate. It would undermine a major motivation in bringing the Bill forward in the first place; it would also seriously embarrass the United Kingdom in all our contact with our fellow signatories to the conventions; it would send a very unfortunate signal to all our international partners; and it would suggest that we are not truly committed to combating terrorism wherever it is found.
I cannot believe that that is the intention of Her Majesty's Loyal Opposition and I cannot believe, bearing in mind the vigour with which the Liberal Democrats have always sought to support international conventions, that that is their intention either. We have all repeatedly professed ourselves to being wholly committed to combating terrorism internationally. Therefore, it is incumbent upon us to show that we stand together with our international partners in refusing to accept terrorism wherever it is found. Therefore, I strongly urge the noble Lords, Lord Kingsland and Lord Goodhart, not to press their amendments. I can only think that the noble Lords may have forgotten the connection between those conventions and these provisions.
Amendments Nos. 101 and 102 were tabled by the noble Lord, Lord Elton. I understand that what he really wants is to elicit from me an explanation of why we have drawn the terms of the Bill in the way that we have. In Clauses 17(5) and (6), the Bill makes a useful change to the Explosive Substances Act 1883. At present, it is an offence under the Act to plan explosions that endanger life only if they are to take place in the United
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Kingdom or the Republic of Ireland. Preparing for an explosion that is to take place in another country is not an offence. I suspect that this is a legacy from a very different age, when travel was difficult and the notion of being able to transport explosives easily and plan an explosion in another country would have seemed pretty far-fetched. The Bill simply closes an historical loophole.
I am sure that noble Lords know that terrorism is a reserved matter under the Scottish devolution settlement. However, the operation of the 1883 Act in respect of non-terrorist mattersthat is, preparing for an explosion to get into a bank in connection with a robberyis a devolved matter. Accordingly, the provision in the Bill relating to the 1883 Act extends its territorial application so far as conduct in Scotland is concerned only where the planned explosion is connected to terrorism.
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