Wednesday, 23 March 2011

Terrorism in UK Law - The Second Reading of the Terrorism Bill in December 1999

Readers of this blog and of my other blog Chilcot's Cheating Us will long have been aware that I consider UK military action in Iraq and in Afghanistan (and more recently in Libya) to be "terrorism" as defined in Section 1 of the Terrorism Act 2000.

In that context it is interesting briefly to review some of the discussion that took place in the House of Commons during the Second Reading of what was then the Terrorism Bill.

The House of Commons Hansard record of the Second Reading of the Terrorism Bill is available online.

It contains some interesting interaction demonstrating that actions in Iraq could be considered to be "terrorism" in the wording of what was then Clause 1 of the Terrorism Bill.

First an exchange between Douglas Hogg and Jack Straw here:

Mr. Hogg: I am sorry to interrupt the right hon. Gentleman, but I think that this is a serious matter.

Kurdish representatives came to see the then Foreign Secretary, the then Prime Minister and me, to obtain our support for their campaign to drive Saddam Hussein and his army out of north Iraq. On the face of it, that falls within the scope of action capable of constituting terrorism under clause 1.

I understand the right hon. Gentleman to be saying not that I am wrong, but that no one would be prosecuted for encouraging the Kurds to take such action, because of the discretionary power of the prosecution authority. That, however, is a profoundly unattractive situation.

Mr. Straw: I simply do not accept the proposition. The idea that in this country the police would investigate such an alleged offence in respect of Iraq, that the Crown Prosecution Service would bring a charge and that the Director of Public Prosecutions would give his consent cannot exist outside the right hon. and learned Gentleman's fevered imagination.

Of course, we can all invent hypothetical circumstances--fantastic circumstances--in which any of us, according to the criminal code, could be charged and subject to conviction; but there is no point in our doing so. We know that, in the real world in which we live, the criminal law is subject to a significant series of checks and balances, including proper invigilation by the courts of the land and control of the Crown Prosecution Service by Members of Parliament who are answerable to the House of Commons and the other place. Such circumstances therefore do not arise, and I do not believe that they ever will.

At precisely the time when the right hon. and learned Gentleman was engaging in the discussions to which he referred, the Government of whom he was a member were supporting the Jurisdiction (Conspiracy and Incitement) Bill, introduced in 1996 by the then Member of Parliament Nigel Waterson.

Notice that Douglas Hogg isn't told by Jack Straw that he's wrong. He couldn't because Douglas Hogg was correct in his interpretation of the meaning of Clause 1 (just as I believe I am correct regarding the meaning of Section 1, a slightly modified version of the then Clause 1).

Jack Straw is, shamefully, saying that the UK Police and Crown Prosecution Service will turn a blind eye to some "terrorism".

In other words Jack Straw, then Home Secretary, is relying on the political bias of the UK Police and Crown Prosecution Service to ensure that some terrorism ("our" terrorism?) is not investigated or prosecuted.

So much for everyone being equal under the Law!

Some time later, Tom King raised the following with Jack Straw here:

We then come up against exactly the problem that the hon. Member for Islington, North mentioned: one man's terrorist is another man's freedom fighter. I intervened on the Home Secretary to make the point about balance, which is one of the principles by which he will determine his actions.

We are talking, without question, about additional powers, not the normal criminal law. With additional powers must come additional safeguards. I shall not try to

14 Dec 1999 : Column 179
pronounce in detail what I think the answer should be. The merit of the Committee scrutiny of the Bill is that those issues, which need to be recognised, can be dealt with.

I shivered momentarily when my right hon. and learned Friend the Member for Sleaford and North Hykeham (Mr. Hogg) was speaking. I went into northern Iraq to support the Kurds there, supported by 45 Commando and a squadron of Tornados. We were attempting to ensure that the Kurds were protected: we encouraged them to take the most violent action to repel any aggression against them by Saddam Hussein and his forces and we provided back-up in the form of air power and a Marine commando. It is an extreme illustration, but I am sure that lawyers would have a field day with such admissions if I were liable to arrest for aiding and abetting a terrorist act against the legitimate Government of another country. I hope that the Serjeant at Arms does not feel the need to make a citizen's arrest for what might be claimed to be a manifest breach of proposed legislation.

Here we see the issue of UK military action being terrorism in the meaning of the then Clause 1 being raised.

It is clear that the potential for Clause 1 of the Terrorism Bill (which later became Section 1 of the Terrorism Act 2000) to encompass "terrorism" in Iraq was raised during the Second Reading.

Parliament cannot, I believe, be said to have been unaware of the broad scope of Clause 1 (later Section 1).

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