David Howarth (Cambridge, Liberal Democrat)

I beg to move amendment 187, in clause 57, page 33, leave out lines 30 and 31.

After the rather dark and disturbing topics that we have discussed, amendment 187 might be thought of as some sort of light relief. It does, though, have some serious aspects. Clause 57 concerns conspiracies by people in this country to commit offences in other countries. The current provision is in the Criminal Law Act 1977 as amended. It covers conspiracies to commit offences outside the UK. Clause 57 seeks to change that situation by concentrating on England and Wales as opposed to the UK. That means that it is possible to conspire in England and Wales to commit an offence in Scotland or Northern Ireland—or that is the explanation given in the explanatory notes. The Criminal Law Act has a provision that exempts from the scope of the offence people who hold office under the Crown; I will return to the matter of why that situation should exist and what kinds of people it is meant to cover. However, in terms of clause 57 and the changes it means to make to the law, that provision—which exempts those who hold office under the Crown from the coverage of the section—has a rather startling effect. The effect is—I understand from the clause—that a conspiracy to commit criminal offences in Scotland or Northern Ireland by those who hold office under the Crown in England and Wales, would be lawful. I want to know why that is the case.

Lord Hurd used to write thrillers in which the plots were based on conspiracies in Scotland to do with Scottish national politics 20 or 30 years ago. If one were to allow one’s imagination to run wild one might think that this matter is similar. I venture to suggest that, instead, it is an accident in the way that the clause is drafted. However, there is an aspect of it that makes me think that perhaps it is not an accident. That is, later on the clause endeavours to make sure that there is no retrospective effect in Northern Ireland—that the exemption does not cover the legacy cases there, since they are, of  course, very politically sensitive. If that is the case, the question still arises as to why there should be this exemption for conspiracies by servants of the Crown when it comes to crimes that may have been committed in Scotland and Northern Ireland from now on. That is the first point.

The second point is what is the interaction between this provision and section 7 of the Intelligence Services Act 1994, the provision that is sometimes called the James Bond clause? Section 7 of the 1994 Act allows the Secretary of State to authorise acts—which might otherwise be illegal—outside the British Isles, in cases where what is being done is necessary for the proper discharge of a function of the intelligence service. The provision was controversial at the time and it still is, especially in light of accusations around Binyam Mohamed, and similar cases.

Nevertheless, there is an argument that section 7 of the 1994 Act is entirely preferable to the blanket provision in clause 57. Section 7 is at least limited to the functions of the intelligence service and does not apply to anyone holding office under the Crown—of whom there are quite a few in this room at the moment. Also, the second advantage is that, under section 7—I would be grateful for the expertise of the right hon. Member for Knowsley, North and Sefton, East (Mr. Howarth) in this matter—there has to be a specific authorisation by a Secretary of State. Therefore, there is a line of accountability that does not exist under the clause, with its blanket immunity.

George Howarth (Knowsley North & Sefton East, Labour)

The hon. Gentleman has answered his own question. The reason why those who hold office under the Crown are presumably included is that they often have to authorise the sort of activities that the hon. Gentleman is referring to.

David Howarth (Cambridge, Liberal Democrat)

That is precisely right. However, what I am asking now—we are discussing clause 57—is would it not be better to not have the blanket immunity that the clause is offering, but to rely rather more, or exclusively, on the specific authorisations that exist under section 7? We might be in a situation where time has moved on. There used to be idea that no one referred to the Secret Intelligence Service; we pretended that it did not exist. At that time, we used to pass statutes that gave blanket immunity to those who held office under the Crown as a kind of euphemism for the Secret Intelligence Service.

We have grown up since then. We now have specific legal provision for the Secret Intelligence Service, including section 7. Should we modernise that provision by leaving out the blanket immunity and relying instead on the more recent arrangements?

Maria Eagle (Parliamentary Secretary, Government Equalities Office; Liverpool, Garston, Labour)

As the hon. Member for Cambridge has explained, amendment 187 would remove proposed new subsection (16) of section 1A of the Criminal Law Act 1977 inserted by clause 57. The proposed new subsection is a re-enactment of an existing provision, as he spotted. It was inserted by the Criminal Justice (Terrorism and Conspiracy) Act 1998 into the earlier enactment. The purpose of the provision is not, as some might fear, to give all civil servants or, indeed, anyone else carte blanche to break the law. It is more in line  with what he said. He hit on an important point about the breadth of the exemption under the provision, with which I have some sympathy.

I shall say something about such matters, but first I want briefly to explain what we want to do with the clause. It corrects a small anomaly in the law of England and Wales in relation to conspiracies to commit criminal offences within other parts of the United Kingdom. At present, there is no offence of conspiring in England and Wales to commit an offence in Scotland or Northern Ireland, whereas it is an offence to conspire to commit an offence in England and Wales or outside the United Kingdom. Clause 57 will amend section 1A(2) of the 1977 Act by replacing “the United Kingdom” with “England and Wales”, which is correct.

The clause will widen the scope of the first condition under section 1A(2) of the 1997 Act, which applies only to agreements by two or more people to pursue a course of conduct that would involve one or more of them in an act or the happening of an event intended to take place outside the United Kingdom. It will ensure that the condition is satisfied when the act or event is intended to take place outside England and Wales, thus including acts in Scotland or Northern Ireland.

The clause will have the practical effect of ensuring that conspiracies in England and Wales to commit a crime within the UK can be prosecuted in the most appropriate jurisdiction, for example, where most of the evidence relating to the conspiracy is to be found and where investigatory resources are focused. However, I have some sympathy with the argument of the hon. Gentleman. The exemption from the law in such matters raises complex and sensitive issues. There has been a change throughout the years in the way in which it is expressed, so there is the matter of how it should properly be expressed in the context of the current provision.

We need something that deals with the matter. We are planning a wider review of the laws on conspiracy and attempts, which the Law Commission is working on and will be reporting on later this year. We need to look at whether the existing provision remains the right one or whether things have moved on since Parliament enacted it. A different formulation might be preferable. We have not reached a final conclusion on that yet because the Law Commission is still on the work that we asked it to do. We believe that the task goes beyond the narrow remit that we have given ourselves under the clause to correct the anomaly that we have spotted.

I suggest to the hon. Gentleman that the future work on such matters that the Law Commission is conducting will provide a better context within which to deal with that very issue in the wider range of its appearances on another occasion. However, we cannot leave out a provision in respect of the security services from the clause, which is why it is so drafted.

Edward Garnier (Shadow Minister, Justice; Harborough, Conservative)

I am not asking the question aggressively. I just want to be clear. As proposed new section 1A(16) is drafted, it gives the Foreign Secretary immunity from prosecution if he arranges for a member of MI6 to assassinate someone overseas and gives the Home Secretary immunity if he or she conspires with a police officer or an officer of special branch to kill someone here. Have I misunderstood the breadth of the immunity?

Maria Eagle (Parliamentary Secretary, Government Equalities Office; Liverpool, Garston, Labour)

There is no doubt that the old way of expressing things is probably unacceptably wide in the current context. That is basically the point that the hon. Member for Cambridge was making by tabling his amendment. I said that I have a lot of sympathy with what he said, but because the Law Commission is working on the wider point in respect of conspiracies generally, we are not yet in a position to be clear about the best way to deal with such matters. The clause cannot proceed on to the statute book without some immunity. We understand the argument, and we want such a measure in place now, but we want the Law Commission, during its work, to look at it in a much wider sense. It will report later this year on how best we should handle the matter.

David Howarth (Cambridge, Liberal Democrat)

I am interested in what the Minister is saying. Will the Law Commission’s work cover precisely the point that I have been making about the Secret Intelligence Service and the future service? If so, I should be happy to let the matter drop.

Maria Eagle (Parliamentary Secretary, Government Equalities Office; Liverpool, Garston, Labour)

I am getting some strange signals—it is getting late, Mr. Gale. My understanding is that it is covering the whole range. It might help if I wrote to the hon. Gentleman, when we have all had time to clear our heads tomorrow morning, with a specific answer to that question. My understanding is that the work that is being done is wide enough to enable the Law Commission to deal with this. We are not in a position to deal with it today with the Bill, but we do not want to let this anomaly go ahead, which is why we are using the existing wording. I have accepted and do accept that it may be too wide and that it is something we may need to return to as soon as we have a settled view on the modern language we should be using in respect of all this. I hope that satisfies the hon. Gentleman.

David Howarth (Cambridge, Liberal Democrat)

On that basis, I beg to ask leave to withdraw the amendment.