Counter-Terrorism Bill

moved Amendment No. 127: 127: After Clause 82, insert the following new Clause— ““Amendment to Terrorism Act 2006 (1) The Terrorism Act 2006 (c. 11) is amended as follows. (2) In section 19, after subsection (3) insert— ““(4) In deciding whether to give consent under subsection (2), the Attorney General or the Advocate General for Northern Ireland shall have regard to— (a) any reasonable grounds for believing that the government of the country has committed or encouraged in its territory genocide or crimes against humanity or grave breaches of human rights, (b) the extent to which the government is accountable to its citizens through free and fair elections, and (c) the nature of the acts of terrorism which the person against whom proceedings are contemplated, or any terrorist organisation of which he is believed to be a member or with which he is believed to be associated, has aided, committed or encouraged.”””” The noble Lord said: On all four of the previous terrorism Bills I have spoken from my party’s Front Bench. On this occasion I am playing a much more modest role and have tabled only one amendment. The amendment is similar to one that my noble friend Lady Williams of Crosby and I tabled to what is now Section 19 of the 2006 Act. Section 19(2) is concerned with offences connected with foreign countries that come within the definition of terrorism for the purposes of our legislation. Section 19(2) provides that the prosecution needs the consent of the Attorney-General or the Advocate-General for Northern Ireland. As I think has become apparent, a wholly satisfactory definition of terrorism is extremely difficult, if not impossible, to achieve. The definition in Section 1 of the Terrorism Act 2000 is not wholly satisfactory, as I think the noble and learned Lord, Lord Lloyd of Berwick, who can be described as the father of that Act, would accept. In particular, the definition can extend to actions which would broadly be considered by most or many in this country as justifiable or at least not a terrorist matter. I can perhaps describe this as a Mandela problem. In the days of apartheid, the African National Congress would unquestionably have fallen within the definition of ““terrorists”” under the 2000 Act. Its armed struggle involved serious damage to persons and property; it was intended to influence the Government of South Africa, and it was made for the purpose of advancing a political cause. Members of the ANC could therefore have been prosecuted in the United Kingdom had that legislation been in force when apartheid was still going strong. That is so, even though non-whites in South Africa were subject to grave oppression and had no voice in politics as voters, and the ANC did not use violence against civilians—indeed, it used little of it against anyone. The ANC, of course, had wide support in the United Kingdom and in many other countries. The first question is: can terrorism be redefined to exclude members of organisations in the future which may be comparable to the ANC? At the time of the 2006 Act it was a matter of hope that something could be achieved, but it has become very difficult to believe that that is the case. As has already been pointed out, following the 2006 Act, the Government asked my noble friend Lord Carlile of Berriew to report on possible changes to that definition. His report recommended only minor changes and he was unable to come up with any major improvements to the definition in the 2000 Act. For my part, I doubt whether it was possible to do so and that he went as far as he could. However, my noble friend Lord Carlile concluded that the requirement for an authority—either the DPP or the Attorney-General under Section 19(1) and (2) of the 2006 Act—to approve a prosecution was a real protection against the abusive use of anti-terrorist laws. The Government, in paragraph 6 of their reply to the report, accepted this conclusion. This amendment would place in the Bill some of the issues that the Attorney-General must take into account. I accept that they will not be the only ones and that there will be a number of other matters. These perhaps are three of the most important considerations. Under subsection (2) of my proposed new clause, the Attorney-General has to take into account, first, "““any reasonable grounds for believing that the government of the country has committed or encouraged in its territory genocide or crimes against humanity or grave breaches of human rights””." That is the necessary starting point for refusal to prosecute. Unless that condition is satisfied, it is most unlikely that there ought to be a prosecution. Secondly, the Attorney-General has to take into account, "““the extent to which the government is accountable to its citizens through free and fair elections””." The undemocratic nature of a Government is an important factor in deciding whether prosecution is needed, although it is not necessarily the decisive factor. Thirdly, he has to take into account, "““the nature of the acts of terrorism which the person against whom proceedings are contemplated, or any terrorist organisation of which he is believed to be a member or with which he is believed to be associated, has aided, committed or encouraged””." That would point out that members of any organisation which approves of the murder of innocent people—for example, 9/11—should not expect to avoid prosecution even if its cause is otherwise a good one. All those matters are circumstances which any reasonable Attorney-General would take into account. While I should like to see them in the Bill, I would be content if the Minister is prepared to acknowledge on the record that these are matters which an Attorney-General should take into account when considering whether to authorise a prosecution under Section 19 of the 2006 Act. I beg to move.