HC Deb 28 November 1974 vol 882 cc875-97
Mr. Hooley

I beg to move Amendment No. 37, in page 4, line 40, leave out from 'frivolous' to end of line 4 on page 5 and insert: 'refer the matter to the Appeal Tribunal set up in accordance with the next following paragraph:— (5)(a) An appeal against an exclusion order may be made to an Appeal Tribunal consisting of three persons nominated for this purpose by the Lord Chancellor; (b) the tribunal may revoke or confirm the exclusion order; (c)the decision of the Tribunal shall be final and binding and subject to no further appeal; and (d) no further exclusion order may be made against a person whose appeal has been upheld by the Tribunal"'.

The Chairman

With this we are to take the following:

Amendment No. 55, in page 4, line 39, leave out from "shall" to end of line 4 on page 5, and insert: 'refer the matter to the Appeal Tribunal set up in accordance with the next following paragraph:— (5)(a) An appeal against an exclusion order may be made to an Appeal Tribunal consisting of three persons nominated for this purpose by the Lord Chancellor; (b) the tribunal may revoke or confirm the exclusion order; (c) the decision of the Tribunal shall be final and binding and subject to no further appeal; and (d) no further exclusion order may be made against a person whose appeal has been upheld by the Tribunal"'.

Amendment No. 67, in page 5, line 4, at end add: '(7) An appeal from the Secretary of State's decision shall lie on a point of law to the Divisional Court.' and New Clause 5—"Independent Tribunals "— 'The Secretary of State shall establish a tribunal independent of the police to review allegations of abuse by persons who have been detained under section 7 of this Act'.

I have agreed that if a separate Division is required on new Clause 5 it can be granted.

Mr. Hooley

I regard this as a matter of considerable substance because it provides for a formal appeal arrangement against any decision by the Secretary of State to exclude a person from Great Britain.

The Home Secretary made it clear earlier in the day that he felt that no formal provision for appeal should be made. I cannot share that view. The power of exclusion that we are writing into the Bill is not unprecedented in an absolute sense—I take the Home Secretary's point that a similar power was included in the 1939 Act—but it is virtually unprecedented in the social behaviour of this country, and it gives the Secretary of State power to deprive a person of his normal domicile and require him—or her—to reside 100, 200 or even 400 miles from his home, family, relatives and place of employment.

It is a sweeping and considerable power, and although I am sure it would be exercised by my right hon. Friend with great care there is, nevertheless, a fundamental principle in a democratic system of government that an appeal against actions by the executive should lie with some independent body. I cannot accept there is a genuine appeal or a genuine check on executive authority if the Minister making the original decision is the Minister to whom the person expelled must make representations if he wishes to have the order varied in any way.

I accept that it is the intention of my right hon. Friend to seek advice from another set of persons if representations are made to him that an exclusion order has been wrongly made, or made on insufficient grounds, or that the evidence laid before him was incorrect, or is found at a later stage to be incorrect, but I cannot accept that that is sufficient in a society in which we are accustomed to provide a check not on an arbitrary and unjust act—of which I should not accuse my right hon. Friend—but against error, against wrong information on which the original decision was based.

I cannot accept that the Home Secretary, who has such enormous responsibilities and such a tremendous weight of decisions to make in so many different spheres can adequately discharge the task of appeal as well as the original onerous task of taking these decisions to exclude a person from what, in effect, may well be his home country. It is therefore important to create an independent appeal body.

I do not have legal qualifications and it is possible that the form of tribunal set out in the amendment is not altogether the best solution, although I hope that my right hon. Friend will not argue that a body set up by the Lord Chancellor specifically for this purpose would be any less concerned with the security of the State and the abolition of terrorism than he is himself.

The members of the body would be persons of sufficient authority and sense of responsibility to command the confidence of the whole community, so that if they sought—it would be unusual—to set aside or revoke or over-rule a decision of his it would be only on the weightiest grounds and after thorough consideration of all the facts of the case.

So although my right hon. Friend may argue that in this matter his authority alone should prevail, both in terms of the initial decision and in terms of an appeal, that is not an argument which I would accept, nor one to weigh against the important principle of having some independent judgment over the power of the executive in relation to the liberty of the individual.

I am not talking about matters which will go through the courts. Those subject to an exclusion order will not be tried by a court and will have no right to appear before a court. There will be only the right of the Secretary of State to make an order and the arrangements whereby a person who feels an order to be unjust or improper can appeal to the person who made the order for a variation or revocation.

I accept that this is exceptional legislation to combat a ruthless guerrilla enemy, but I am not convinced that the House should pass such legislation without a safeguard of this kind. The amendment would not diminish the Secretary of State's power or that of the State to combat terrorism or to deal with the circumstances we have been discussing.

Mr. John Prescott (Kingston upon Hull, East)

I should like to direct my remarks to Amendment No. 55. It has been made amply clear tonight, especially by the agreement not to divide, that the Bill is essential, but there arc strong disagreements about aspects of it. The debate has illustrated that a number of our fears were well-founded.

5.0 a.m.

We are dealing in this clause with how to protect innocent people who may well be caught up in these extraordinary powers. We stress the concern that exists about the powers of arrest and detention, because those will probably be the first actions to be taken under the Bill when enacted. There were a number of amendments to Clause 7 which we would have liked to have brought to the Committee's attention, because there are serious misgivings about that provision also, but to remain in order I will speak to new Clause 5.

My hon. Friend the Member for Derby, North (Mr. Whitehead) has been vigilant for a long time in attempting to get private legislation through in this area. We present the House of Commons tonight with an opportunity to fit into the Bill a provision for an independent procedure.

Hon. Members will accept that the number of complaints about the activities of the police have been increasing. The number of convictions regarding certain police irregularities have increased. This should make us reflect that the police are human and they make mistakes. They are given considerable powers by Parliament to carry out responsibilities on our behalf. They are put in a privileged position.

We in Parliament must be concerned just as much with protecting subjects to whom the laws apply as we must be concerned with apprehending terrorists and deterring acts of terrorism.

The Home Secretary said on Second Reading that these powers are wide and extraordinary to deal with what was, perhaps, an extraordinary situation. In the Home Secretary's words, these powers are Draconian. They extend the powers of arrest without warrant and detention. In certain cases they allow arrest without warrant and detention on reasonable suspicion. Serious misgivings and doubts were expressed earlier about the consequences of Clause 1(6).

However, as I said before, the Bill is acceptable as a necessary measure, with the qualifications we wish to make. I, like other hon. Members, think that it is as if we are embarking on an escalator, that this is the first step on a tragic path that we seem to be embarked upon. We are dealing with the symptoms rather than the cause. This is not the appropriate occasion to develop this theme, except to say that, as we are embarked upon this exercise, we perhaps would have done better to give considerably more thought to the only available alternative, namely, the withdrawal of troops from Northern Ireland.

As we are not dealing with that question but only with what is in the Bill, we must bear in mind that we shall be making the IRA illegal, which means that its members will certainly go underground. We shall have to depend on obtaining considerably more information from informants, agents provocateurs, spies, people who are paid to provide information to the authorities and whose reliability cannot be automatically accepted.

Clause 1(6), which we hope will be withdrawn later tonight, makes it an offence to be in possession of certain literature or documents. Such a provision can be used by the police as a means of exercising pressure when attempting to apprehend terrorists, and this may have the result of an entirely innocent person being dealt with unjustly.

All the measures in the Bill, whether to do with screening, photographing, fingerprinting, apprehending or excluding, are dependent on the availability of secret information either to the Home Secretary in considering appeals against exclusion or to magistrates and the police in deciding whether to detain or arrest people. Most of these activities will be concentrated on the Irish Catholic community. That is inevitable, and because of that there is a greater risk of mistakes being made in their case. That is why we must be concerned about how the community might react if it feels a case is not being handled properly, if it feels that someone has been excluded wrongly or on wrong information, or if it feels that someone has been held by the police more times than is necessary. These things will cause irritation.

If there is a complaint against the police the police will conduct their own inquiry. That is unfortunate because complainants might feel that they will get no great satisfaction from such a system. Of course, that is not restricted only to this legislation. Every hon. Member must have considerable experience of constituents being dissatisfied with the way the police have conducted inquiries. My right hon. Friend the Home Secretary has accepted the need for an independent element in police inquiries and so we are not breaking new ground. As things stand there is a risk of inflaming a delicate situation.

Without going into too much detail, and as an example of what I mean, a report has been published today by Deputy Commissioner Starritt into the Lennon murder. That inquiry raised difficult problems for Parliament and the courts into which we shall have to look. The man who conducted that inquiry into the death of someone who was caught up with the IRA and who was involved with the delicate matters this Bill is designed to deal with—and I do not reflect on Mr. Starritt's integrity—was a Belfast Protestant who has brothers in the RUC and was in charge of the West End police station at which the police officer Challenor—who was accused of planting evidence—was stationed. I do not seek to cast doubts on Mr. Starritt in any way. but it is likely to be interpreted in a sensitive situation by the Catholic community—and there has been more than one example of it—as not being an independent inquiry, whatever we may feel about it.

The Commissioner who appointed the inquiry, appointed a man who has a number of problems in this sensitive area, and in order to avoid problems and not put the police in these difficulties there should be an independent element to deal with these matters. If that is not done the IRA will begin to exploit that bad feeling and will begin to grow in those areas in which it can operate. It happened in Ireland and there is no reason to believe it will not happen here. The IRA will argue that it alone can protect the Catholics in this country, and that is the beginning of a very difficult road indeed.

I have heard it said that the Catholics will welcome the Bill. I reflect that at one stage our troops were welcomed in Northern Ireland. It is crucial that our law is seen to be fair to all. It must be concerned to protect the innocent and provide a just complaints procedure.

Replying to my hon. Friend the Member for erby, North (Mr. White-head) on 30th July the Home Secretary said: It is my view that an effective independent element, commanding public confidence, must be brought into operation while a complaint is being dealt with—both before the decision is taken whether to bring disciplinary action and, in sufficiently serious cases, in the hearing of any disciplinary charge."—[OFFICIAL REPORT, 30th July, 1974: vol. 878, c. 144.] The argument is accepted. It is crucial that this legislation embodies this principle. To go forward with these extraordinary powers without bringing in extraordinary means of protection is wrong. It is not good enough for the Home Secretary to argue that he has to discuss this with the police—as he has been doing for almost a year. The principle is known. We can include it in the Bill and we should not do anything less than that.

Mr. Beith

I beg to move Amendment No. 67——

The Chairman

Order. The hon. Gentleman may speak to that amendment but he cannot move it. An amendment is already before the Committee.

Mr. Beith

I hope that the Home Secretary will address himself in this context to the issue of appeals generally. Many of us share the reservations expressed by the hon. Member for Sheffield, Heeley (Mr. Hooley) and feel that for the Committee to grant powers to the right hon. Gentleman on such a scale without providing an appeals mechanism would be a disservice both to the present situation and any future consideration of similar measures.

I ask the Home Secretary to look carefully at the kind of machinery which his hon. Friend suggested and at the more limited proposals I have in mind. I recognise, as he said, that executive decision is involved here and it is difficult to avoid the conclusion that the sort of procedure he envisages involves executive decision. I can understand his reluctance to entrust such a decision to a tribunal or quasi-judicial body. However, I ask him to consider that these reservations are held strongly and are the sort he would have expressed had he been on the back benches or speaking for the Opposition. They represent a case for considering whether he should have the discipline of a body to which to refer or whether he ought, at least in matters of law, to look to the Divisional Court to see whether he is acting within the law.

Mr. Whitehead

I wish to refer to new Clause 5 and to make a passing reference to the amendments to Clause 4. The new clause deals essentially with procedure under Clause 7, which we have yet to discuss, but which gives reason for considerable concern to my hon. Friends and myself. I hope my right hon. Friend will take seriously what has been said about the need for an independent review procedure. He will recollect that this has been increasingly accepted of latter days by the Police Federation and other police authorities as a means of seeing that there shall be conspicuous fairness in the implementation of the law and that the police shall not be seen to be judge and jury in their own case when dealing with complaints under, for example. Section 49 of the Police Act.

My right hon. Friend will recollect that this was the view of the minority report of the Royal Commission set up in 1959. More important, because of the community with which we are dealing in this Bill, it was the view of the Select Committee on Race Relations and Immigration, chaired by Mr. Deedes, the former Member for Ashford. That committee, which reported in 1972, having considered the extremely tense relations at that time between a certain section of the immigrant community and the police in this city above all recommended in Paragraph 333 that the Secretary of State take urgent steps to introduce a lay element into inquiries into complaints against the police, possibly by setting up independent tribunals to consider appeals by complainants or police officers dissatisfied with police inquiries into complaints. It seems that that is essential now that we are dealing with another immigrant community. It is essential if we are to adopt the measures which the police will be empowered to employ under Clauses 2, 3 and 4. If they are to use the powers of arrest and detention given to them under Clause 7 it is crucial that we have some form of independent procedure to which they can refer and in which they will have confidence.

5.15 a.m.

I now turn to Clause 4 and the amendments relating to it. Although I accept that my right hon. Friend must have the power of executive decision regarding the orders which he is making under Clause 4, the House needs to know much more about the right of appeal over and beyond the orders. Clause 4(4) says: Where representations are duly made under this section, the Secretary of State shall, unless he considers the grounds to be frivolous, refer the matter for the advice of one or more persons nominated by him. In the context of the amendments, what on earth does "frivolous" mean? How can there be a frivolous complaint about so serious a matter as an exclusion order? Who are the one or two persons who might be nominated by the Secretary of State and who might advise him upon these matters? I can see that it may be impossible to implement the amendments and to have an independent tribunal of three persons sitting in judgment to advise the Secretary of State. However, I remind the Secretary of State that most local authorities, looking back upon Regulation 18B in the Second World War and the implementation of Article 14B in the First World War, came to the conclusion that it would have been better if there had been some recourse to independent tribunals.

I hope that my right hon. Friend will be able to say that he is prepared to see parallel to the implementation of this legislation the introduction of the procedures which he promised me on the last day of the previous Parliament in the reply which was quoted by my hon. Friend the Member for Kingston upon Hull, East (Mr. Prescott). I understand that that cannot be done now, but it is essential that it shall be done in the term of this emergency legislation. It is no good our saying that we shall consider the need for these procedures again on review in six months. They must be set up now. The undertaking that I am looking for from my right hon. Friend is that he will set in motion the procedures for the setting up of the tribunals along the lines that he promised in July. If that is done I believe that we have some chance of making the procedures under this proposed legislation acceptable and seen conspicuously to be fair to the section of the immigrant community which will feel alienated and under suspicion as a result of the passing of this legislation.

Mr. Andrew F. Bennett (Stockport, North)

Everyone must hope that this legislation will stop further killings. However, we must all fear that it might well lead to injustice and produce new terrorists. I support the comments of my hon. Friend the Member for Sheffield. Heeley (Mr. Hooley) on Amendment No. 37 although I suggest that it is a little more logical to consider Amendment No. 55. If we are to ask an independent body to do the judging then surely the Home Secretary should not have to judge whether or not the representations are frivolous. I agree that it is extremely important that someone should not be making the orders and then judging whether they have made them fairly.

If anything in this legislation goes far beyond existing practice and erodes civil rights, it is Clause 7. The phrase A constable may arrest without warrant a person whom he reasonably suspects … must cause grave concern. It is a purely subjective judgment on the part of the constable and is most difficult to test. It would have been far better had the clause provided that a constable must have reasonable grounds to suspect somebody. That would provide something which could be tested and considered.

I should like to point out that Clause 7(1)(b) is not tied to Northern Ireland.

Terrorism to most people involves extremely violent acts, such as bombing, but the Bill provides a definition of "terrorism "which brings in the word "violence". However, there are many things which, though not terrorist activities, I regard as violent. I regard a large number of people shouting threateningly as "violent". If we accept the definition in the Bill, there are many other circumstances in which somebody could be accused of being a terrorist. Therefore. I suggest that sub-paragraph (b) is very dangerous since it goes further than the intentions of the legislation, which is to deal with the specific problem of Northern Ireland.

Clause 7(2) deals with the question of extending powers of arrest and of detaining people without their having to be brought before the courts. The major matter for concern in that respect is whether the Judges' Rules are adhered to. In recent years many people have been gravely concerned about adherence or otherwise to the Judges' Rules. The situation requires an independent body which would be able to oversee the situation and to see that the Judges' Rules are applied so that people may see that justice is done.

Finally, I am disturbed that the provisions of the Bill may overrule the provisions of the Children and Young Persons Act. It is extremely dangerous that we should be seeking to detain young people under the age of 17 for up to seven days. This is another area which requires a monitoring body to oversee the situation. Therefore, I hope that the new clause will be incorporated in the Bill to provide a safeguard against the erosion of civil liberties.

Mr. Bidwell

Although we all realise that we are here this morning discussing this measure because of the horror perpetrated in Birmingham, and although we all appreciate the necessity for a Bill of this nature in present circumstances, I must emphasise that we are giving enormous powers to policemen. We are giving those powers not just to the Home Secretary, but to police officers. We are well aware of much evidence in some quarters of police malpractices. That is why there has for a long time been an element of progressive thought that we should have some kind of inquiry system—as my hon. Friend the Member for Derby, North (Mr. Whitehead) said, so that the police are not seen as judge and jury in their own cause—beyond the present police system of investigating allegations of this kind themselves.

I am aware, too, of what my right hon. Friend said when we had our debate at the Parliamentary Labour Party meeting. I am well aware that in reply to this debaie he may say that he cannot accept that he can bring in this new machinery of investigation into allegations against the police consistently or in conformity with the Bill and that a little more time and study are needed.

Contrary to the belief that my hon. Friend the Member for Kingston upon Hull, East (Mr. Prescott) seemed to have at earlier stages of these events during the last few days, the police themselves, through their organisation the Police Federation, have expressed in principle acceptance of this extra machinery. We therefore live in anticipation and hope that it can be achieved.

The minimum terms that we can accept at this stage of the debate are that my right hon. Friend will be able to reply that he will accept the principle of a tribunal system which is outlined in part of the amendments that are now before us. Mistakes will be made; members of the police forces are human beings of variable qualities. We all know that our policemen are wonderful and that some are more wonderful than others. By the nature of the Bill, the police have to go into action as a result of extended powers based upon extended suspicion. Many would be apt to say that they are pretty well being given free rein and a free hand, such is the gravity of the situation arising from the Birmingham horror.

We shall be coming to the question of exclusion orders, which from the point of view of detention and other acts short of charge and trial is the extreme proposal of the Bill—that is, the ability to exclude from Great Britain at least anyone whom the Home Secretary thinks it is necessary to exclude and who apparently, if he has not had more than 20 years' residence here, is open to that exclusion.

In passing, although I did not join in the earlier debate I was prone to accept at least the idea of reciprocity, because I believe that in general terms these extra powers have to be taken because of the gravity of the situation. None of us, however, can come here with any glee or great welcome at what we are now doing. We are plunging greatly into the unknown.

In the case of internment, which is not yet proposed in Great Britain itself, there is a system of appeals. This takes me back a few years to the time when I visited Long Kesh and Crumlin Road Prison, at the time the all-party delegation went out there to investigate allegations of torture. I think it was in the 1969 period when internment was first put into effect. It was in my view a tragic mistake that many of those affected were not IRA men, but were on the periphery, people in favour of the republican cause. At that stage internment applied to Catholic workers and many Socialist opponents of the Unionist regime, driven into the area of terrorist activity, terrorist politics, which I have always deeply deplored.

I spent some time in the internment camp trying to talk many of those young people out of that kind of development. Even there, a system of appeal was in operation, but they would not take advantage of it. Many of them wrote to me at the time, and I passed their letters on to the Home Secretary. They considered that they were martyrs, but in the end many of them lodged appeals. I understand that there is a backlog of appeals.

5.30 a.m.

We accepted the principle of a system of appeals against the emergency powers there. The Bill can be said to provide the Great Britain version of emergency powers. Appeals to a tribunal machinery are indispensable here, though the wording of the amendments may not be perfect.

I say to the Ulster Unionists and others in the Conservative ranks in the House that the Bill could well extend to measures required not merely against what we consider to be the IRA but to counter-terrorism. There are elements of that the whole time. A petrol bomb was thrown at an Irish pub in my constituency in the London Borough of Ealing following the outrage in Birmingham. Another outrage could well lead to more such activities, unorganised and organised. We would expect my right hon. Friend the Home Secretary to place on his proscribed list any organisations concerned. He would have to do so.

However, I am optimistic, because we would not have in this country a polarised situation, in which terrorists can easily get away with it. That is why arrests have been made in connection with the Birmingham outrage. There will be greater vigilance by the populace.

I disagree with my right hon. Friend only in one respect. When he first proposed the Bill he used certain words which suggested that the whole heavy weight rested on the police. Certainly, a great burden rests on them, and mistakes will be made. But they will not succeed unless they have widespread community support. The community will have to be informers if the police are to succeed. If they go about the job in an arbitrary way, they will make mistakes, even with community support. That is why a tribunal machinery is necessary.

Miss Jo Richardson (Barking)

In the opinion of some of my hon. Friends and me, Amendment 55 is a slight improvement on Amendment 37, because it would exclude from subsection (4) the words: unless he "— the Secretary of State— considers the grounds to be frivolous". I am not a lawyer, I have no legal training, and it may well be that the word "frivolous" has a special legal meaning not known to me. However, I have asked a number of Members for their definition of the word and each has given a different answer. Therefore, to leave to one man the definition of what might be a frivolous complaint—a complaint of abuse—is not good enough, and we should like this provision to be taken out as well.

I see no reason why the Secretary of State should not look sympathetically on the amendments. He has said many times that he does not want to infringe more than is absolutely essential the rights of ordinary law-abiding citizens. The best way of ensuring that is to remove any idea that he may be prosecutor, judge and jury. It is true that Clause 4(4) provides that he will refer the matter for the advice of one or more persons nominated by him. But there is no indication of who those people will be. There is no indication whether they will be the same one or two people or in each case a different set of one or two people. Will they be friends? I assume that they will be people whose judgment the Secretary of State feels he can trust. But how much better it would be to have an independent tribunal to which all such cases could be referred whose members were nominated by the Lord Chancellor. That would be a simple way of dealing with the matter, and I hope that the Secretary of State will consider it sympathetically.

I wish to refer to new Clause 5. Many Members have said that there could well be abuses of Clause 7 by the police. The police are being given much wider powers in this Bill, such as the power of arrest without warrant, together with a considerable lengthening of the period of detention without charge. These provisions make many Members and many people outside very unhappy. As Members of Parliament, we have all had experience of cases concerning constituents in which we have complained about the attitude and behaviour of the police. I have always felt that it was not quite right that, when a complaint was made about police action, the police should investigate it. An independent tribunal should always look into the question of police actions.

I therefore hope that the Secretary of State will accept the new clause and that he will set a precedent by setting up an independent tribunal to which cases concerning police action can be referred. I trust that the Committee will consider these matters sympathetically.

Mr. Roy Jenkins

I have listened carefully to the speeches made by my hon. Friends and by the hon. Member for Berwick-upon-Tweed (Mr. Beith). The Committee will agree that we have managed to get along fairly well without too much disagreement, and I hope that we shall so proceed when we return to a point with which we must deal. However, I must leave the Committee under no misapprehension: I am not able to accept the amendment or the new clause.

I will deal first with the amendment. It seeks to introduce a judicial procedure into the making of exclusion orders. The position on exclusion orders is as follows. A person against whom an order is made is guaranteed under Clause 4(3) the right to make representations against it to the Secretary of State. He has 48 hours in which to exercise his right, and, under the provisions of the supplementary order, the exclusion order cannot be put into effect until the person concerned has had the opportunity to exercise this right. Unless the Secretary of State considers that the representations are made on frivolous grounds, he must refer them to advisers whom he nominates.

We perhaps use the expression "frivolous" rather loosely in a non-legal sense, but in a legal sense "frivolous or vexatious" means that there is plainly no substance in the grounds given in the representations. I am grateful to my right hon. and learned Friend the Attorney-General for that definition, which I find satisfactory.

I have carefully considered the sort of people whose advice I should seek. It is not right to announce names at this stage, but I shall, of course, announce them to the House. They are not intended to be secret names. The body will not deal with individual cases but will be a standing rather than an ad hoc body of people.

Why cannot that be done by means of a formal tribunal? In making exclusion orders matters of grave national security are involved. If the Bill is to be effective—and we have all gone to a lot of trouble to get it through—we cannot be inhibited from getting rid of terrorists by inability to use highly sensitive information. Advice must, therefore, be sought from people to whom secrets affecting national security can be entrusted. No doubt they could be provided by the Lord Chancellor. I do not think that he will be keen to provide them, and they can equally well be provided by me. Much more to the point, there can be no question of open proceedings or the public presentation of evidence.

At the same time, it is desirable in this field as in others that individual liberties are as far as possible safeguarded, and those to whom representations against exclusion orders are made must be men of reputation whose impartiality is beyond question. That I will endeavour to ensure.

Mr. John Watkinson (Gloucestershire, West)

Will my right hon. Friend explain the remarks he made this afternoon about legal representation? If he restricts the right of appeal in the Bill, will individuals be able to have legal assistance in drafting their grounds of appeal?

Mr. Jenkins

I will consider whether that can be done, but there cannot be judicial proceedings. There can be no question of open proceedings or the public presentation of evidence. I cannot give an absolute assurance that legal advice can be sought in drafting the grounds of appeal, but I will consider it.

Mr. Whitehead

Does not my right hon. Friend agree that a person arrested under an exclusion order according to Clause 7(1)(c) might well be held for 48 hours without access to legal advice? If so, how can he have access to legal advice in drawing up an appeal to the Secretary of State or his advisers?

Mr. Jenkins

I accept my hon. Friend's point. I see no reason why he should not have access to legal advice during this period. There are many areas of government in which the independent review of decisions taken on grounds of national security is a necessary safeguard against the infringement of the rights of the individual. The closest parallels are decisions taken on civil servants where there are risks to national security, and immigration decisions where national security calls for a person's exclusion.

Decisions are taken in those matters with a well-established machinery for obtaining independent advice, where the advisers are appointed exactly as I have described, but where it is necessary that the final decision should be taken by the Minister concerned in the light of. but not bound by, the advice given.

5.45 a.m.

I would not think it reasonable to tell the House that I was presenting an emergency Bill in order to deal with the gravest terrorist situation we have ever confronted and then to propose executive powers less powerful, less effective, than those which apply in cases in which I and every other Home Secretary have been able, wherever someone's entry is non-conducive to the public good, to make a decision, or those which are applied when civil servants are involved in matters of possible breach of national security. What is concerned here goes much more to the heart of our national life and danger to the structure of our society than the issues dealt with in that way. If these powers are to be effective at all, basically, I must retain as much executive power here over the matters I have mentioned.

New Clause 5 relates to detention, and similar arguments against a tribunal apply. It must be remembered that apart from the first 48 hours, when, broadly speaking, the police are in practice able to arrest and hold at present, the further five days beyond that is done by my authority and not by the authority of the police.

Therefore, if that is the exact subject of inquiry, it is, as it were—not that I object to it—an inquiry into me rather than into the police, and I do not think, therefore, that it pinpoints the question of independent investigation as far as the police are concerned.

Assuming that we accepted new Clause 5, I am not sure what the position would be. I have said firmly that I am in favour of such a proceeding as it proposes, but it is a complicated matter to approach. One wants to carry as much police opinion with one as one can, although I have said, independently of that factor, that I shall proceed in this direction, and more rapidly than has been done before. But the matter is very complicated and requires full-scale legislation. There can be no question of doing it without legislation, and new Clause 5 would not be a practical or appropriate method of proceeding.

I have assured the Police Federation and the public that this would be done by legislation and debated on the Floor of the House. If I were to accept new Clause 5, I do not think the Bill could go into operation until I had carried through detailed legislation to deal with this 10-year-old problem, which has perplexed the House for so long, and it cannot be suggested that we should sit all night to pass emergency legislation to deal with the grave situation we face, and then say that an important part of it should be held up while we go through a leisurely process of legislation, as we would be bound to in order to deal with a very great problem.

Mr. Whitehead

With repect to my my right hon. Friend, the point at issue is not whether this can be introduced now but whether it can be introduced within the lifetime of this emergency legislation. Although I can see that all these consultations have to be carred out, there have been two Home Office working parties on this matter in the political lifetime of three Home Secretaries. The matter has been extensively discussed.

Mr. Jenkins

1 was not satisfied with the result of the Home Office working party I inherited. Nor would my hon. Friend have been. I decided to introduce my own proposals, which I believe will be more satisfactory to my hon. Friends. I hope I will not be blamed for refusing to accept inherited proposals that I did not like.

I cannot give my hon. Friend any guarantee that this legislation will come into operation during the lifetime of this Bill. I shall need a few more months to get the legislation into shape. I shall then be anxious to proceed with it, but it must go through this House in the proper way. My hon. Friend knows that there is great pressure on Government legislative time. But I shall not object if, after the few months which I need to get it ready, he and other hon. Members press me about when legislation will be forthcoming. I shall be anxious to get on with it as quickly as possible. But there can be no question of pinning this emergency legislation to its being carried into effect.

I am anxious to meet as many issues as possible, but I must say firmly that I cannot meet them on either the amendment or the new clause.

Mr. Beith

I agree with much of what the right hon. Gentleman says, but has he seen fit to rule out the possibilities advanced in Amendment No. 67?

Mr. Jenkins

As regards Amendment No. 67, the arguments against having an appeal to the Divisional Court are the same as those applying to a special judicial tribunal. As the Bill stands, it will always be open to a person against whom an exclusion order is made to apply to the Divisional court for a prerogative order if he claims that the Secretary of State acted outside his powers. That is the position of the Bill. But, as regards bringing in the Divisional Court in any other sense, the objections would apply still more strongly than to the special judicial tribunal suggested in Amendment No. 37.

Mr. Prescott

When my right hon. Friend says that there would be complications, are they solely concerned with drafting the principle at the end of the period, and not just with consultation, which has been going on for a long time? If that is the sole issue, many of us feel that this is an integral part of this piece of legislation and that to advance without it would be a major disaster.

Mr. Jenkins

It is impossible not to advance without it. Assuming that I was able to say that the consultations were completed, I have told the various police bodies that we hope to come to an agreed solution and that they can have a few more months in which to consider. So I am committed there. But even if I had a scheme cut and dried. I should have to find time for it as a normal Home Office Bill. How I could make this emergency legislation dependent upon it, I cannot understand.

Mr. Hooley

I am disappointed that my right hon. Friend should have ruled out absolutely the principle of an independent appellate arrangements against a decision for exclusion. As indicated previously, this is virtually a new power which has not been exercised before. I do not see how we can get beyond the basic objection to the fact that the Minister who makes the initial decision is also responsible for the review.

I accept the arguments about security and confidentiality, but there is nothing in the amendment which requires the appeal tribunal to hear cases or to take evidence in public. The essential feature is that it shall be independent of the Minister making the original decision. I believe that my right hon. Friend and the Government will in due course regret the absence of an independent appeal tribunal. For obvious reasons, I do not press this as the only or the ideal form.

The Deputy Chairman

Does the hon. Gentleman desire leave to withdraw the amendment?

Mr. Hooley


Question put.That the amendment be made:—

The Committee divided: Ayes 51, Noes 218.

Division No. 17.1 AYES [5.58 a.m.
Atkinson, Norman Jackson, Miss Margaret (Lincoln) Richardson, Miss Jo
Bennett, Andrew (Stockport N) Jeger, Mrs Lena Roderick, Caerwyn
Buchan, Norman Kerr, Russell Rodgers, George (Chorley)
Canavan, Dennis Kilroy-Silk, Robert Rooker, J. W.
Clemitson, I. M. Kinnock, Nell Sedgemore, B.
Colquhoun, Mrs Maureen Lee, John Short, Mrs Renée (Wolv NE)
Cook, Robin F. (Edln C) Litterlck, Tom Sillars, James
Corbett, Robin Loyden, Eddie Skinner, Dennis
Cryer, Bob McNamara, Kevin Stallard, A. W.
Davies, Bryan (Enfleld N) Madden, Max Thomas, Ron (Bristol NW)
Delargy, Hugh Marshall, James (Leicester) Thorne, Stan (Preston)
Edge, Geoffrey Maynard, Miss Joan Watkinson, John
Flit, Gerard (Belfast) Mendelson, John Wise, Mrs Audrey
Flannery, Martin Mlkardo, Ian
Fletcher, Ted (Darlington) Miller, Mrs Millie (Redbridge) TELLERS FOR THE AYES:
Garrett, John (Norwich S) Newens, Stanley Mr, Frank Hooley and
Gould, Bryan Ovenden, John Mr. Sydney Bidwell
Koyle, Douglas (Nelson) Parry, Robert
Huckfield, Leslie Prescott, John
Anderson, Donald Eadle, Alex Lestor, Miss Joan (Eton & Slough)
Archer, Peter Edwards, Robert (Wolv SE) Lewis, Ron (Carlisle)
Armstrong, Ernest Ellis, John (Brlgg & Scun) Lomas, Kenneth
Ashley, Jack Ellis, Tom (Wrexham) Lyon, Alexander (York)
Atkins, Ronald (Preston N) English, Michael MacFarquhar, R.
Bagier, Gordon A. T. Ennals, David Mackenzie, Gregor
Barnett, Guy (Greenwich) Evans, Fred (Caerphllly) Maclennan, Robert
Bates, All Evans, loan L. (Aberdare) Macmillan, Rt Hn M. (Farnham)
Bean, Robert E. Evens, John (Newton) McMillan, Tom (Glasgow C.)
Beith, A. J. Ewing, Harry (Stirling) Magee, Bryan
Biggs-Davison, John Fernyhough, Rt Hon E. Mahon, Simon
Bishop, Edward Fitch, Alan (Wigan) Mallalieu, J. P. W.
Blenkinsop, Arthur Foot, Rt Hon Michael Marks, Ken
Booth, Albert Forrester, John Marquand, David
Boolhroyd, Miss Betty Fowler, Norman (Sutton C) Marshall, Dr Edmund (Goole)
Bottomley, Rt Hon Arthur Fraser, John (Lambeth, N) Mason, Rt Hon Roy
Boyden. James (Bish Auck) Freeson, Reginald Mates, Michael
Bray, Dr Jeremy George, Bruce Mayhew, Patrick
Brotherton, Michael Gilbert, Dr John Meacher, Michael
Brown, Hugh D. (Glasgow, Pr) Glnsburg, David Mellish, Rt Hon Robert
Brown, Robert C. (Newcastle) Glyn, Or Alan Millan, Bruce
Buchanan, Richard Golding, John Molloy, William
Butler, Mrs Joyce (Harlngey) Graham, Ted Molyneaux, James
Callaghan, Jim (Middleton & P) Grant, George (Morpeth) Morris, Alfred (Wythenshawe)
Campbell, Ian Grocott, Bruce Morris, Charles R. (Openshaw)
Cant, R. B. Hamling, William Morris, Rt Hon John (Aberavon)
Carmichael, Nel[...] Hardy, Peter Moyle, Roland
Carson, John Harper, Joseph Mulley, Rt Hon Frederick
Carter, Ray Harrison, Walter (Wakefleld) Murray, Ronald King
Cartwright, John Hatton, Frank Noble, Mike
Cocks, Michael (Bristol S) Havers, Sir Michael Oakes, Gordon
Cohen, Stanley Hayman, Mrs Helene Ogden, Eric
Coleman, Donald Heffer, Eric S. O'Halloran, Michael
Conlan, Bernard Horam, John O'Malley, Brian
Cox, Thomas (Wands, Toot) Howell, Denis (B'ham, Sm H) Orme, Rt Hn Stanley
Craig. Rt Hon W. (Belfast) Hughes, Rt Hon C. (Anglesey) Owen, Dr David
Cralgen, J. M. (Glasgow. M) Hughes, Robert (Aberdeen N) Paisley, Rev Ian
Crawshaw, Richard Hunter, Adam Palmer, Arthur
Cunningham, G. (Islington S) Irving, Rt Hon S. (Dartford) Park, George
Cunningham, Dr J. (Whiten) Jackson, Colin (Brighouse) Peart, Rt Hon Fred
Dalyell, Tarn Janner, Greville Pendry, Tom
Davidson, Arthur Jenkins, Hugh (Wandsworth) Perry, Ernest
Davies, Denzil (Llanelli) Jenkins, Rt Hon Roy (B'ham, St) Phipps, Dr Colin
Davies, Ifor (Gower) John, Brynmor Powell, Rt Hon J. Enoch
Davis, S. Clinton (Hackney C) Johnson, James (Kingston W) Prentice, Rt Hon Reg
Deakins, Eric Johnson, Walter (Derby S) Radice, Giles
Dean, Joseph (Leeds West) Jones, Barry (East Flint) Rees, Rt Hon Merlyn (Leeds S)
de Freitas, Rt Hon Sir Geoffrey Jones, Dan (Burnley) Rodgers, William (Teesside)
Dell, Rt Hon Edmund Jones, Alec (Rhondda) Roper, John
Dempsey, James Joseph, Rt Hon Sir Keith Ross, Rt Hon W. (Kilm'nock)
Dormand, Jack Judd, Frank Ross, William (Londonderry)
Douglas-Mann, Bruce Kaufman, Gerald Rowlands, Ted
Duffy, A. E. P. Kllfedder, James Ryman, John
Dunlop, J. Lamble, David Sandelson, Neville
Dunn, James A. Lamborn, Harry Selby, Harry
Dunnett, Jack Lamond, James Sheldon, Robert (Ashton-u-Lyne)
Dunwoody. Mrs. Gwyneth Lane, David Shore, Rt Hon Peter
Dykes, Hugh Le Marchant, Spencer Short, Rt Hon Edward (Newcastle C)
Silkin, Rt Hn John (Lewlsh) Tlerney, Sydney Whitlock, William
Silkin, Rt Hn S. C. (Southwk) Tinn, James Willay, Rl Hon Frederick
Silverman, Julius Tomlinson, John Williams, Alan (Swansea)
Small, William Urwin, T. W. Williams, Rt Hn Shirley (Hertford)
Smith, John (N Lanarkshire) Varley, Rt Hon Eric G. Williams, W. T. (Warrlngton)
Snape, Peter Wainwright, Edwin (Dearne V) Wilson, Alexander (Hamilton)
Spriggs, Leslie Walden, Brian (B'ham, L'dyw'd) Wilson, William (Coventry SE)
Stainton Keith Walker, Terry (Kingswood) Woodall, Alec
Stewart, Rt Hn Michael (H'smlth, F) Ward, Michael Woof, Robert
Stoddart, David Watkins, David Wrlgglesworth, Ian
Stott, Roger Weatherill, Bernard Young, David (Bolton E)
Stradling Thomas, J. Weetch, Ken
Strang, Gavin Wellbeloved, James TELLERS FOR THE NOES:
Summerskill, Hon Dr Shirley White, Frank R. (Bury) Mr. James Hamilton and
Taylor, Mrs Ann (Bolton W) White, James (Glasgow, P) Mr. Laurie Pavitt
Thomas, Mike (Newcastle) Whitehead, Phillip

Question accordingly negatived.

Question proposed,

That the clause stand part of the Bill.

Mr. Lane

It is clear from that vote that we agree with the Home Secretary about sticking to the procedure of advisers rather than a judicial tribunal. The timing of this procedure, however, is not entirely clear. A person served with a notice has 48 hours to make representations. Does that mean that he has to despatch his representations or that they have to reach the Home Secretary in that period? I think that it is the former, but that should be made clear.

My second question relates to the second stage of the procedure, the calling together of the advisers. Nothing is said, understandably, about the limits, but may we take it that the advisers will be expected to give their advice with all due speed? That would be right in fairness to the individual and the public.

Mr. Alexander W. Lyon

I can answer both questions in the affirmative.

Question put and agreed to.

Clause 4 ordered to stand part of the Bill.

Clause 5 ordered to stand part of the Bill

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