Extra-territorial Laws

Respecting other nations and peoples requires respect for their independence and sovereignty. This means limiting the occasions when our laws are applicable to activities outside the UK.  The converse is also true, that our constitution should outlaw the enforcement of certain foreign laws.

I suggest the following clause for the constitution:

'Except and to the extent set out further below:

'- Parliament is not permitted to enact laws purporting to have effect outside the territory of the [UK] unless and to the extent that this is justified and permitted by treaties or agreements with other nations.

- The Courts are not permitted to give extra-territorial effect to [UK] statutes unless those statutes explicitly provide for that effect and are not permitted to give extra territorial effect to the common law.

- [UK] public law enforcement agencies are not permitted to carry out investigations or other activities outside the [UK] unless and to the extent that this is justified and permitted by treaties or agreements with other nations.

- The converse is also prohibited, so that foreign law can have no effect in the [UK] unless and to the extent that the [UK] has agreed to give effect to that law by treaty or other agreement with the nations concerned and foreign public law enforcement agencies are prohibited from carrying out operations in the UK unless and to the extent permitted by treaties or other agreements between the UK and other nations.

- Notwithstanding the above provisions, Parliament shall have the power to legislate for and the Courts shall have jurisdiction to deal with criminal liability for and the prosecution of:

- - cases of genocide, war crimes and crimes against humanity wherever and by whoever they are committed in the world;

- - murder, manslaughter, terrorism, child-sex abuse and bribery and corruption by [UK] nationals and [UK] resident persons (including legal persons) wherever they are committed in the world.

edited on Apr 10, 2015 by Ian Smith

Ian Smith Apr 5, 2015

Dear All,

I am posting a quick comment here and in my other ideas.

Firstly, I want to say how much I have enjoyed seeing all of your contributions on this and other ideas and how impressed I am with the range of expertise and erudition which has filled these debates.

Secondly, I wish to put forward a couple of suggestions as to a way forward at this stage.  They are:

A.   I suggest that we all refrain from further voting until the ideas have been refined and represented and have then been debated for a while.  My thinking here is that we will want to see the reshaped ideas and see the comments on those refined ideas before we decide whether they are to be voted up or down,  I do not think that we should refrain from voting on comments but perhaps try not to vote too hastily on them.

B.  Now that the hurly burly of the "Hacking" phase (some of it quite savage) has passed, I hope and wish that we will adopt a more collaborative and less combative approach in our commentary, so that commentary is given a chance to be constructive and really do the job of refining the ideas in question.

C.  I would hope that we can refrain from attacking the very existence of the idea under discussion in this phase or the fact that it has successfully gone through to this phase against the wishes of those who voted it down.  I sincerely hope that the previous critics of an idea, will still respect that it found favour with the crowd and now help to refine the idea in this phase.

Thirdly, I will try my best not to introduce any more typos and mangled phrases! 

Best wishes for the holiday weekend!

Ian 

Ian Smith Apr 7, 2015

Dear All,

Before I draft a suggested clause for the constitution, I should be very grateful if you would let me have any further thoughts on this idea and in particular the form of a constitutional clause.

I would be very helpful to hear from you if you have strong views about whether we should allow criminalisation of activities carried out on foreign soil, expropriation or forfeiture of foreign property and so on.

Kind regards,

Ian

Tinahy Andriamasomanana Apr 9, 2015

Dear Ian, I agree with Laure. The clause for the constitution that you have proposed above is clear.

Regards, Tinahy

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Ian Smith Apr 9, 2015

Dear All,

I have just drafted up a suggested clause for this idea. 

Kind regards,

Ian

laure roux Apr 9, 2015

I think this is perfectly clear. Your last suggested provision is interesting as it gives a ground for contesting an international treaty or an EU provision. this last provision is really good in my opinion. I agree!

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Ian Smith Apr 9, 2015

Thanks Laure, in fact, I realised I should enhance the last paragraph a little more.  Kind regards, Ian

Rob G Apr 9, 2015

The only caveat I'd put on this is are there a few offences which are so heinous we would want to criminalise regardless of where they occurred - where they are committed by British citizens? Even where there aren't treaties? I'm thinking of things like War Crimes, murder, and child sex abuse. I'm not sure that's provided for by treaties - unlike, say, torture and bribery - but I'm not sure we really want to stop prosecuting them when the evidence exists here. (Even though murder is a common law offence, its extraterritorial scope is the creation of statute, from 1861.)

I'd not support seeking to apply British law across the world to the citizens of other countries, which is what I'd taken this idea to be about.

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Ian Smith Apr 9, 2015

Good thinking Rob, yes there was a famous Hong Kong murder case if I recall it correctly.  So, perhaps we could draft a couple of exceptions: universal jurisdiction for war crimes and jurisdiction over British nationals who commit murder and child abuse abroad.  Do you fancy having a go at drafting the sub-clause to post here?  Kind regards, Ian 

Rob G Apr 10, 2015

Ian, how's this for a first stab? There's a difference in style between "my" bits and"yours", but that's something that can be sorted when the content's agreed. (The heading doesn't really apply to points 5 and 6, but I ran out of inspiration!)

Jurisdiction of the Courts

1. The principle of universal jurisdiction shall apply in regard to crimes against humanity, genocide, war crimes, and any crimes for which this is provided for in an international treaty by which the United Kingdom is bound. An individual within the UK may be prosecuted for these offences regardless of her or his nationality, or the place or time of the alleged offence.

2. The courts of the United Kingdom shall have the ability to hear charges of the offences listed below where the accused is a British citizen or resident, regardless of the location in which the offence allegedly occurred.
i.    Murder  [Offences Against the Person Act 1861]
ii.   Manslaughter  [Offences Against the Person Act 1861]
iii.  Sexual offences against children [Sexual Offences Act 2003]
iv.   Terrorism  [Terrorism Acts 2000, 2006 :: inciting acts of life-threatening terrorism overseas; financing acts of terrorism overseas; terrorist bombing overseas; participating in, aiding or abetting acts of terrorism overseas]
v.    Bribery and corruption  [Bribery Act 2010; in part, this was passed to implement the OECD Anti-Bribery Convention, so may be caught by 3]
*** The CPS site indicates that this is a selective list, and refers to Archbold Criminal Pleading for the full list. Unfortunately, I don't have access to it, but I think this serves to illustrate the point ***

3. In all other cases, the courts of the United Kingdom shall only have the ability to hear charges where the offence allegedly occurred in the United Kingdom, unless a bilateral Treaty or multilateral international agreement to which both the United Kingdom and the country in which the offence allegedly occurred are state parties provides otherwise.

4. Only the courts of the United Kingdom shall have the ability to hear charges where the offence allegedly occurred in the United Kingdom, unless a bilateral Treaty or multilateral international agreement to which both the United Kingdom and the country seeking to try the offence are state parties so provides.

5. The law enforcement agencies of the United Kingdom are not permitted to carry out investigations or other activities outside the UK unless and to the extent that this is justified and permitted by treaties or agreements with other nations.

6. Foreign law enforcement agencies are prohibited from carrying out operations in the UK unless and to the extent permitted by treaties or other agreements between the UK and other nations.

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Ian Smith Apr 10, 2015

Rob, that was very helpful.  I have tried to keep the suggested clause as simple as possible and have edited it to bring in your contributions.  Kind regards, Ian

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