Schedule 15

Criminal Justice and Immigration Bill – in a Public Bill Committee am 4:00 pm ar 27 Tachwedd 2007.

Danfonwch hysbysiad imi am ddadleuon fel hyn

Offences relating to nuclear material and nuclear facilities

Photo of Maria Eagle Maria Eagle The Parliamentary Under-Secretary of State for Justice

I beg to move amendment No. 224, in schedule 15, page 185, line 16, at end insert—

‘(ba) inciting the commission of a nuclear offence;’.

Photo of Edward O'Hara Edward O'Hara Llafur, Knowsley South

With this it will be convenient to discuss Government amendments Nos. 225, 226 and 245.

Photo of Maria Eagle Maria Eagle The Parliamentary Under-Secretary of State for Justice

Welcome back, Mr. O’Hara, to the rollercoaster ride to the end of the Bill. We are getting there.

I remind hon. Members that the schedule relates to clause 74, which deals with offences relating to the physical protection of nuclear material and nuclear facilities. The amendments will ensure that the convention on the physical protection of nuclear material, including the 2005 amendments thereto, is fully implemented into UK law. They will allow prosecutions for incitement to commit offences against nuclear facilities, as is required by the amended convention. However, in such cases, it must be proved that the individual intended or believed that the offence would be committed. If the offence is not committed as incited, the inciter can still be prosecuted. They are basically transitional arrangements until the Serious Crime Act 2007 comes into force.

Amendment No. 245 makes consequential amendments to the definition of convention offences in schedule 1 to the Terrorism Act 2006. The amendment ensures that the schedule accurately reflects the new list of offences that will be set out in the amended Nuclear Material (Offences) Act 1983 and Customs and Excise Management Act 1979.

Are we dealing with the schedule stand part debate now, Mr. O’Hara?

Photo of Edward O'Hara Edward O'Hara Llafur, Knowsley South

If there are no objections from the Committee.

Photo of Maria Eagle Maria Eagle The Parliamentary Under-Secretary of State for Justice

That is helpful, thank you.

The schedule creates new criminal offences and extends existing ones under the Nuclear Material (Offences) Act 1983, which is necessary for the UK to ratify the 2005 amendments to the convention on the physical protection of nuclear material. We are bringing UK law into line with certain changes made to the convention.

It might help if I give some background information on the changes. The convention was concluded under the auspices of the International Atomic Energy Agency in 1980. It came into force in 1987 and currently has just under 130 parties, of which the UK is one, having signed it in 1980 and ratified it in 1991. The amended convention requires each state party to establish, implement and maintain an appropriate physical protection regime for civil nuclear material and facilities under its jurisdiction, with the aim of protecting against theft, recovering missing or stolen material, protecting material and facilities against sabotage, and mitigating or minimising the radiological consequences of sabotage. It also provides for co-operation between states in the event of nuclear sabotage. It also incorporates a longer list of nuclear offences than the original.

The diplomatic conference of 2005 marked the end of a process initiated by calls for amendment of the convention from the IAEA director general in 1999, and given impetus by enhanced concern for nuclear security following the terrorist attacks in the United States in September 2001.

The new and extended offences cover the following broad areas of activity: misusing nuclear material here or abroad intending damage to be caused to the environment, or being reckless about whether it will be caused; doing something outside the UK that involves moving nuclear material into or out of a state without lawful authority; attacking a nuclear facility here or abroad intending that damage will be caused to the environment by exposure to radiation, or being reckless about whether such damage will be caused; attacking a nuclear facility abroad and intentionally or recklessly causing death, injury or damage to property as a result of exposure to radiation; attacking a nuclear facility here or abroad, intending that death, injury or property damage will be caused by exposure to radiation, or being reckless about whether that is the outcome, even if no such injury or damage occurs.

Photo of Philip Hollobone Philip Hollobone Ceidwadwyr, Kettering

Those are some very serious offences. I have two questions. Why, at the end of 2007, are we getting round for the first time to implementing what the convention asked the Government to do about these very serious offences? Secondly, how many of the 130 signatories have already passed the measures into their law?

Photo of Maria Eagle Maria Eagle The Parliamentary Under-Secretary of State for Justice

State parties that have been involved in the negotiation of the amendments will have their own ways of extending the offences to be able to deal with the issue. My understanding is that about 10 to 15 have managed to ratify, so we are not that far behind. This is the first opportunity that we have had to deal with the matter, which is why, although it is a somewhat strange clause to include in this Bill, I hope that the Committee will accept it. What is happening is about extending co-operation across borders so that activities of the kind in question can be clamped down on properly by the authorities, without running into problems of jurisdiction, or of incompatible laws across state boundaries,  given that the relevant matters cross boundaries very easily. We are fairly well up on the list of those who have got around to implementing the changes. It is simply a matter of appropriate legislative vehicles, which, as I hope the hon. Gentleman understands, can often be a problem.

As the hon. Gentleman may know, the existing convention has largely been about transport of nuclear material. It is partly the developments since 2001, and the increased security that states have decided, for obvious reasons, is required around nuclear material, that have led to the diplomatic conference and the amended convention, which we want now to implement. The director general of the International Atomic Energy Agency, Mohamed el-Baradei, said of the amended convention:

“This new and stronger treaty is an important step towards greater nuclear security by combating, preventing and ultimately punishing those who would engage in nuclear theft, sabotage or even terrorism.”

It is on that basis that I commend the schedule and the amendments to the Committee.

Photo of David Heath David Heath Shadow Leader of the House of Commons

I welcome you to the Committee this afternoon, Mr. O’Hara. Do not the provisions show the extraordinary nature of the Bill—that part 6 can go from extreme pornography to prostitution and street offences, and then to protection of nuclear material in a universal jurisdiction? Later, of course, we shall go on to consider the penalties for unlawfully obtaining personal data. All that is included in a single part of the Bill—a Bill without a theme, as has been said.

I have some questions on the schedule. I thought that I would be extraordinarily clever, but it turns out that I am not. I was going to query the word “nuclide” in proposed new subsection (8) of section 6 of the Nuclear Material (Offences) Act 1983, because I had always used the word “nucleide” when I learned chemistry many years ago, and I thought it was a misprint, but it turns out that they have changed the word. I hope that I shall get the credit at least for having done my research to ensure that I did not query the use of a word whose usage had changed. I should probably blame the Americans for eliding the perfectly serviceable word “nucleide” into “nuclide”.

The provision is extraordinary in the context of British law, which is not to say that I shall argue against it. The measure provides universal jurisdiction, which is familiar in American law, but which is rarely used in this country. It does not matter where offences occur—it could be anywhere in the world—they will be indictable in a British court, and it will not matter who in the world is alleged to have committed offences because anyone can be tried for them in a British court. It is a substantial undertaking. A matter that has no connection to the United Kingdom or any of its subjects could be put before a British court. We should at least be aware of the breadth of the applicability of the schedule as we debate it.

I should also address one specific measure in the schedule. Paragraph 6 on page 186 deals with nuclear facilities, which are explicitly defined as

“a facility used for peaceful purposes”.

In other words, a facility is excluded if it is not used for peaceful purposes, which is to say

“if it contains any nuclear material which is used or retained for military purposes.”

That proposal seems to be an oddity. If a nuclear facility can in any way be described as having a military application, either in itself or any material contained in the facility, it falls outside the scope of the offence and of the legislation.

It raises some interesting questions of applicability. For example, what about the nuclear facilities that we believe are being built in Iran. The President of Iran tells us that the facilities are being built exclusively for peaceful purposes, which would make removal of material from those facilities an offence under the schedule. On the other hand, the Government’s position is that the facilities are not for peaceful purposes; rather, they have a military purpose, in which case, in a British court, it could be adduced that they do not fall within the definition because some would argue that they have a military utility.

There might be a perfectly proper reason for the specific definition, but it seems curious and perhaps less well specified than it might be.

Photo of Maria Eagle Maria Eagle The Parliamentary Under-Secretary of State for Justice

The reason is perfectly simple: the convention does not apply to military sites or materials, so the measures cannot do so. We are simply amending the convention as all agree it should be amended, which does not relate to military facilities.

Photo of David Heath David Heath Shadow Leader of the House of Commons

I am simply making the point that that exclusion makes it more difficult to bring an effective prosecution. There will be grey areas of definition. For instance, is a civilian institute that uses nuclear material to develop nuclear safety and protection for our troops in the field a peaceful or a military institution? It is difficult to establish on which side of the line such an institution will lie in terms of the definition. It would in some respects be a purely defensive, almost academic institution, but it would use the research that it undertook for military purposes—the proper protection of our servicemen and women when they are in the field—and therefore fall foul of the clause.

I am simply saying that however well the provision may have read in the treaty and in the convention, in British law it is a bit of a nonsense. We should at least be aware that we are passing nonsense, even if we think it a good idea to pass the nonsense to bring ourselves into line with our international obligations.

My last point is made in response to the intervention by the hon. Member for Kettering. There have been perfectly good previous statutory and legislative vehicles for the measure. If it was agreed in 2005, we have had anti-terrorism legislation that could easily have been used for the purpose, raising the question why the Government did not feel it necessary to enact the measure until now, in this compendious cornucopia that we call the Criminal Justice and Immigration Bill.

Photo of Edward Garnier Edward Garnier Shadow Minister (Justice) 4:15, 27 Tachwedd 2007

I want to ask the Minister a couple of questions. We must be careful when we extend the jurisdiction of our courts to  extraterritorial offences, although I fully accept that it is necessary, for example, to protect our armed forces from charges under this aspect of the Bill in the event of our being at war. It raises the question whether anybody who does anything against us, albeit in the course of a military conflict, is protected from prosecution. I presume that they are, unless the Secretary of State issues a certificate exempting them from the protection. Let us not worry about that too much, however.

The question I really want to ask is this. Assuming that the offence is committed overseas, but by virtue of the Bill is prosecutable in this jurisdiction, would our prosecutors wait to see whether the country where the act took place prosecuted, and prosecute in this country only if there were no prosecution in the country where the act took place? Alternatively, would there or could there be a prosecution in both?

Photo of Maria Eagle Maria Eagle The Parliamentary Under-Secretary of State for Justice

In that case, the hon. and learned Gentleman has been remarkably succinct, for which I thank him. His first scenario is correct: we would wait to see whether there were a prosecution in the jurisdiction where the event took place. If there were not, and we had the person in our grasp, the prosecution could be undertaken in this country.

I have dealt to the extent that I can with the points that the hon. Member for Somerton and Frome made. I cannot extend the convention’s reach beyond that for which it was originally negotiated, so it is not possible for the offences, which are an amendment to the convention, to range more widely than its ambit. In that sense, parameters have been drawn. He may not like the fact that—[Interruption.] He is chuntering, so he obviously has not received a good enough answer.

Photo of David Heath David Heath Shadow Leader of the House of Commons

I do not want to interrupt the Minister, but that argument is demonstrably not true. We are bound by our signing of the convention to put into effect that which is in the convention. Our signing does not limit us to that which is in the convention if it is better to extend it through statute law in this country.

Photo of Maria Eagle Maria Eagle The Parliamentary Under-Secretary of State for Justice

No, indeed. However, the hon. Gentleman may recall my saying that the clause is designed to put into effect the amendments to the convention—simply that.

Photo of Maria Eagle Maria Eagle The Parliamentary Under-Secretary of State for Justice

If the hon. Gentleman will give me a moment to finish my sentence, I shall happily give way to him.

I am not commenting on the range and ambit of the entire policy; I am simply saying that the clause and schedule 15 are about implementing the offences that  we must implement to ratify the amended convention. That is simply what the Bill does, and in that sense I do not seek to go further. In the broader policy sense, the hon. Member for Somerton and Frome is perfectly right to say that, if one wished to apply offences to a wider range of activities or places, Parliament could do that—Parliament is sovereign—but that is not what we are seeking to do in the Bill. There is not much more I can say about that.

Photo of David Howarth David Howarth Shadow Solicitor General, Ministry of Justice

I should be grateful if the Under-Secretary answered a general question, either now or later. Does the treaty require the regime of conclusive certifying by the Secretary of State? If it does not, the question arises whether that is the right approach.

May I put a hypothetical case to the Under-Secretary? It may be fanciful, given present Government policy, but a future Government might take a different view. Let us say that a country—perhaps the United States—bombed an Iranian nuclear facility. If the question whether that was an action by armed forces arose and, for some reason best known to the Government of the day, the Secretary of State refused to issue a certificate under the appropriate section—new section 3A to the Nuclear Material (Offences) Act 1983, inserted by paragraph 5 of the schedule—there would then be a question whether the facility was military or peaceful. That matter is also, as I understand it, to be determined conclusively by the Secretary of State. A future Secretary of State could determine conclusively that such a facility was not military and was therefore peaceful. At that point, the armed forces of the other country would become subject to the universal jurisdiction that my hon. Friend the Member for Somerton and Frome mentioned and a case in the British courts becomes a possibility.

Photo of Maria Eagle Maria Eagle The Parliamentary Under-Secretary of State for Justice

Academic law is a wonderful thing, is it not? Hypotheticals are part of it. To answer the hon. Gentleman’s specific questions, the certification by the Secretary of State is not mandated in the convention, but that is the mechanism that we choose to adopt to deal with the issues in this jurisdiction.

Photo of David Howarth David Howarth Shadow Solicitor General, Ministry of Justice

The point was not that that might happen, but to illustrate the anomalies that might arise from using the mandatory conclusive certifying process, and to say that there might be a different way of doing it under which such difficulties would not occur.

Photo of Maria Eagle Maria Eagle The Parliamentary Under-Secretary of State for Justice

I am certain that there is probably another way of doing it, but this is how we choose to do it. I am happy to hear from the hon. Gentleman if he thinks of a better way that we ought to consider in future.

Photo of David Burrowes David Burrowes Shadow Minister (Justice)

Will the Under-Secretary clarify, either now or later, the timing of the provisions in relation to the incitement offence? I understand that that is, in effect, a transitional provision under the Serious Crime Act 2007. What will the timing be in relation to that Act and the Bill we are discussing? Which comes first? For how long will that be a transitional provision?

Photo of Maria Eagle Maria Eagle The Parliamentary Under-Secretary of State for Justice

Speaking from memory, as the provisions on encouraging and assisting in the Serious Crime Act come into force, they ought to cover what are currently common law offences. That ought to deal with the issue. I am trying to remember when the provisions on inchoate offences come into force. Whenever that happens, the transition will be over. I hope that that assists the hon. Gentleman. I just don’t have the date in my head and I apologise to the Committee for that, but it should not be in the too-far-distant future.

I hope that I have dealt with the points that hon. Members have raised. I commend the schedule and the amendments to the Committee.

Amendment agreed to.

Amendments made: No. 225, in schedule 15, page 185, line 39, after ‘(2)(b)’ insert ‘, (2)(ba)’.

No. 226, in schedule 15, page 186, line 3, at end insert—

‘(5) In subsection (2)(ba) the reference to incitement is—

(a) a reference to incitement under the law of Scotland, or

(b) in relation to any time before the coming into force of Part 2 of the Serious Crime Act 2007 (encouraging or assisting crime) in relation to England and Wales or Northern Ireland, a reference to incitement under the common law of England and Wales or (as the case may be) of Northern Ireland.’.—[Maria Eagle.]

Schedule 15, as amended, agreed to.