HC Deb 06 March 1991 vol 187 cc400-8

12 midnight

Mr. McNamara

I beg to move amendment No. 6, in page 19, leave out lines 10 to 13.

Madam Deputy Speaker

With this, it will be convenient to take the following amendments: No. 1, in page 19, line 10, leave out ', at any level,'.

No. 11, in page 19, line 10, after 'the' insert 'criminal'.

No. 2, in page 19, line 10, leave out 'an' and insert 'a proscribed'.

No. 3, in page 19, line 11, leave out 'which is concerned in' and insert 'with regard to'.

No. 12, in page 19, line 13, leave out 'imprisonment for life' and insert 'imprisonment for a term not exceeding ten years'.

Government amendment No. 33.

Mr. McNamara

Clause 27 was introduced by the Government, rather strangely, during the final stages in Committee. It creates a new offence of directing the activities of an organisation which is concerned in the commission of acts of terrorism", the punishment for which shall be life imprisonment.

There are several objections to this clause. It creates a new offence, but fails to define it. The concept of directing is totally unknown in existing law. Concepts such as permitting, allowing, suffering and controlling all exist and have a definite meaning, but there is no such precision in this clause.

It is also noteworthy that the draft criminal code drawn up by the Law Commission in 1989 does not refer to the concept of directing anyone in the commission of any crime. Given that lack of precision and definition, the Government are likely to argue—as they did in Committee —that the courts will provide the necessary definition. Such an argument amounts to claiming that good judges in Northern Ireland will rescue us from bad law passed by the House of Commons.

Not only does the clause lack precision; it is unnecessary. It is already illegal to take part in the preparation, instigation or commission of acts of terrorism. The definition is already wide enough to encompass any behaviour that could legitimately be considered to direct the activities of an organisation involved in terrorism. Furthermore, the clause is, to a degree, dishonest. Its practical effect would be to make virtually every member of a proscribed organisation liable to a life sentence. As such persons would inevitably be involved in directing activities at some level, almost any involvement in any such organisation would make them so liable. If the Government intend to increase the penalties —there may or may not be an argument for that—they should say so openly, arid do it directly rather than through the back door.

It can be argued that the failure to keep sentences proportionate to crimes poses an additional danger for the security forces, as there would be little difference between the consequences of less severe crimes and those of murder. The provision of the new offence would have strange, almost absurd, consequences. It relates not to the direction of terrorist activities, but to the direction of organisations concerned in such activities. Anyone responsible for bringing about a decision to cease terrorist activities would be liable to life imprisonment. People who engaged in conversations with terrorist organisations with the aim of persuading them to lay down their arms and pursue their goals democratically would be penalised by the clause.

Clause 27 is not tied to the present emergency, in that it does not confine itself to terrorist activities engaged in by proscribed organisations, or to terrorism connected with the affairs of Northern Ireland. It seems to be an example of the consequences of an error known to the Central Intelligence Agency as "blowback". "Blowback" occurs when official propaganda feeds back into official policy-making—when people act on the belief that their own propaganda is necessarily true. The theory behind it is that of the godfather hypothesis, which posits the existence of a directorate that plans, but does not carry out, acts of terrorism. Apart from the fact that anyone so involved is already guilty of a wide range of criminal offences, everything that is known about terrorism in Northern Ireland suggests that the credibility of the paramilitary leaders among their supporters depends on their being, or having been, personally implicated in specific acts of terrorism. A surprising number of them have been found by the courts to be involved in specific crimes.

We cannot accept clause 27. The Government have not said that they are prepared to accept any of the amendments. Amendment No. 1, which was tabled by Ulster Unionist Members, seeks to make clause 27 more specific. It removes the phrase, "at any level", thereby restricting its scope to the leaders of proscribed organisations. If they push it to a vote, we shall vote for it.

Amendment No. 2 would ensure that the clause applies only to organisations that have been proscribed, so that leading an organisation that may be involved in violent incidents does not lead to conviction unless it has been proscribed. I am not too happy with the amendment because a front organisation may condemn some acts of violence while sponsoring terrorist activity or benefiting from it. The amendment will need more careful consideration.

Amendment No. 3 makes the clause more specific by restricting guilt to those involved in the direction of terrorist activities. The legal activities of the organisation would not be covered. My hon. Friends in the SDLP have tabled an amendment to achieve a similar purpose, and I should have thought that it would recommend itself to the Government.

In amendment No. 12, my hon. Friends in the SDLP seek to change the blanket charge or the indeterminate or mandatory life sentence to up to 10 years' imprisonment. Given the vagueness of the clause and the possibility of conviction under it for varying responsibilities for paramilitary campaigns, preserving judicial discretion would allow for sentences to be proportionate to the offence.

Clause 27, which has no parallel in criminal legislation, introduces a dangerous new concept. In Committee, the Government said that it is necessary, yet members of the various terrorist organisations are already caught by the Northern Ireland (Emergency Provisions) Act 1973 and the Prevention of Terrorism (Temporary Provisions) Act 1989. By creating a new offence to pretend that they are doing something about the godfathers, the Government are not helping the fight against terrorism. The new clauses that we discussed earlier contained sensible provisions, but clause 27, which seems to be an emotional spasm, should not be in the Bill.

Mr. Mallon

I should like to speak specifically to amendments Nos. 1 and 12, which were tabled by SDLP Members.

Amendment No. 1 inserts "criminal" before the word "activities".

Mr. Trimble

That is amendment No. 11.

Mr. Mallon

Amendment No. 11.

Under clause 27, any person who directs the activities of an organisation which is concerned in the commission of acts of terrorism is guilty of an offence. The clause is open to an interpretation that could be quite erroneous. Someone could direct several activities within an organization—an organisation that supports and is involved in terrorism—that are not terrorist acts and that could not be considered criminal acts. The clause must be clearly defined, or it will rightly be described as loose, imprecise and bad legislation.

In Committee, it was suggested that we shall rely on good judges to protect the accused from bad law. I described clause 27 as resembling something that had been written on the back of an envelope by someone on his way home on the Underground—if the Underground had not been disrupted by someone who had been directing the activities of an organisation involved in terrorism.

The purpose of amendment No. 12 is to try to soften the notion that somehow such activity merits a life sentence. The clause invites the judge to consider a life sentence. The Minister of State will argue that it would be nonsense for a judge not to use his discretion. If discretion is being left to the judge, that should be defined in the legislation. It is for that reason that we tabled the amendments.

12.15 am
Mr. Trimble

When the clause was discussed in Committee, we said that we could see merit in its general objective, but we were concerned about the width of its terms. In Committee, I put a number of questions to the Minister of State on the point. In the light of his answers, we decided to table amendments to put on record our reservations, doubts and unhappiness about some aspects of the clause. I should like to speak to those briefly.

Reference has been made to amendment No. 1, which would delete the phrase "at any level". As the hon. Member for Kingston upon Hull, North (Mr. McNamara) said, the object is to tighten the legislation. If it inflicts life imprisonment on the person who directs the activities of the organisation at any level, it will sweep up people who are engaged in low-level activity. We think that life imprisonment may not be appropriate when members of a proscribed organisation pay heavy penalties simply through membership, and any criminal activity that can be proved will carry its own penalty.

The object of the clause is to give a special additional heavy penalty in the shape of life imprisonment to people who are, as is said, the godfathers. The godfathers are not the small fry. We can see merit in the legislation, because it is reasonable to believe that there are circumstances in which persons who are not members of proscribed organisations are directing their activities. I take the point made by the hon. Member for Kingston upon Hull, North, but in some cases they are former active members of proscribed organisations who have moved on to other activities which are not formally proscribed but none the less, from that position of relative safety, they still direct terrorist activities. It is right that severe penalties should be available for them. I should like to think that they would be used, but we will wait and see.

In Committee I asked the Minister of State why the clause was not directed specifically to proscribed organisations. He said that he did not want to refer to proscribed organisations because of the width of the power to proscribe. In clause 28(3), the Secretary of State may proscribe an organisation if it appears to him to be concerned in terrorism or in promoting or encouraging it. The Minister of State said that he did not want to cover all those organisations. He did not want to cover organisations that were simply promoting or encouraging terrorism; he wanted to focus on organisations which were concerned in terrorism. The spirit of his reply was that "proscribed" was too wide, that he wanted a narrower focus.

In framing the amendments, I tried to get the best of both worlds by referring to proscribed organisations and then by making it clear that the offence would apply not just to directing any activity of a proscribed organisation but to directing the terrorist activities of proscribed organisations. I think that in those circumstances life imprisonment is not inappropriate.

With regard to other organisations which are not proscribed, there are two answers—either the organisation should be proscribed or the criminal or terrorist activities themselves could be brought in. The clause would bring in other organisations not proscribed where it might not be appropriate.

In Committee the hon. Member for Kingston upon Hull, North gave an example. He referred to the Animal Liberation Front as an example of an organisation which has been engaged—or there is reason to believe that it has been engaged—in activities which would come within the definition of terrorist activities. In this clause, a person who directs any activity, whether criminal or non-criminal, within a body such as the Animal Liberation Front could be exposed to life imprisonment. We felt that was perhaps a little too draconian.

If we are to have a penalty of this nature, it is appropriate that it be more narrowly focused. We tabled the amendments to put our position on record and I hope that the Government will consider the matter further.

Dr. Mawhinney

Several important amendments have been tabled to the clause, and several hon. Members have spoken to them. I will do my best to meet the standard that I set myself at the beginning of the proceedings to be as concise as possible but to do justice to the arguments made.

The hon. Member for Kingston upon Hull, North (Mr. McNamara) does not like clause 27. He did not like it in Committee, and he does not like it today. He has the virtue of consistency and we all admire him for that. I like clause 27. We have the same consistency and it seems that we shall have difficulty in achieving a meeting of minds on the subject. I ask the hon. Gentleman to consider the ordinary, common-sense meaning of this simple clause. A significant feature of all the amendments is that they focus on individual words.

Clause 27 is short and needs to be taken in the round. The word "directing" has its ordinary common-sense meaning. The hon. Member for Kingston upon Hull, North does not like the word "direct"—he wants it to be defined—but if the House defined "direct" the courts would still have to reach a judgment about what the words meant. It seems much better that they should have to interpret a simple sentence with its common-sense meaning rather than complicated definitions of the word "direct", which they would still have to interpret. I am sure that the hon. Gentleman has looked up the definition in the Concise Oxford Dictionary. The meaning of the word "direct" is clear and straightforward.

Amendment No. 1 is designed to remove the phrase "at any level". I advise the House that that phrase was included deliberately in the provision. Indeed, the hon. Member for Upper Bann (Mr. Trimble) acknowledged that I made that clear in Committee. The phrase was included to make it clear that anyone who directs the activities of one of the organisations, whether at headquarters, regional or local level, is equally open to prosecution.

The hon. Member for Kingston upon Hull, North suggested that the clause was not necessary because those involved in terrorist organisations could always be got for something else. But some of them cannot be got for something else. That is precisely why the clause has been inserted in the Bill.

As I said in Committee, the expression "at any level" was chosen to give specific recognition to the types of structure that terrorist organisations adopt. I am slightly surprised at the hon. Member for Upper Bann. I should have thought that, with his knowledge, he would have recognised that the structures of terrorist organisations gave the phrase "at any level" genuine meaning. The hon. Member for Kingston upon Hull, North has never accepted that concept, either in Committee or today, but I should have thought that the hon. Member for Upper Bann would recognise it.

Mr. Trimble

Perhaps in my haste to make progress I passed over that point when I should have dealt with it in detail. I remember the points that the Minister made in Committee. He referred to cell-like structures, and so on. I formed the opinion then—and I am still of the opinion now—that the Bill would catch people directing cells of terrorist organisations if it simply used the phrase "directing the activities". I believe that "at any level" is still too wide.

Mr. Mawhinney

I thank the hon. Gentleman for explaining his view. I am afraid that we shall have to agree to disagree. It is gratifying that he recognises that there are structures which make the inclusion of the words "at any level" arguably defensible, even if he is not persuaded by the argument.

As the hon. Member for Newry and Armagh (Mr. Mallon) said, the purpose of amendment No. 11 is to narrow the scope of the offence. It would apply to those directing the criminal activities of organisations concerned in the commission of acts of terrorism. Of course, I accept that in certain circumstances some of the activities of terrorist organisations may not be overtly criminal—that is to say, they may not, in themselves, be breaches of the criminal law. For example, activities which may be directed by a person holding the position of quartermaster may not in themselves be criminal activities. It is not a criminal offence to purchase or acquire items such as gloves, balaclavas, overalls, two-way radios or walkie-talkies. On the other hand, we can have no doubt about the purpose behind the quartermaster's direction that such items should be acquired. I therefore suggest to the House that it is right that those against whom there is evidence of the direction of such activities, even when those activities may not in themselves be unlawful, should be open to prosecution.

With regard to amendments Nos. 2 and 3, it may interest the hon. Member for Upper Bann to know that when the clause was being drafted our initial inclination —in line with the hon. Gentleman's own thinking—was to define the offence in terms of proscribed organisations. Clearly, it was—and is—our expectation that, in practice, it is against the leaders of those organisations which are currently proscribed, at whatever level, that the offence will be used. It became apparent, however, that there could be potential complications in using that definition. As hon. Members will recall, clause 28(3) empowers the Secretary of State to add to the list of proscribed organisations any organisation that appears to him to be concerned in terrorism or in promoting or encouraging it. The use of the definition "proscribed organisation" for this offence would have opened up the theoretical possibility that those who might be directing the activities of organisations which had been proscribed only for promoting or encouraging terrorism, rather than because they were concerned in terrorism, would be open to prosecution for this serious offence. That is not a situation that we wish to see arise.

I see difficulties also in respect of amendment No.3. It is clear that, as the amendment is drafted the offence applies to anyone involved in directing the activities of terrorist organisations without seeking to put limits on the types of activities concerned. The point here is that every organisation is composed to some extent of different groups with different specialisations. In addition to those who actually plan and carry out acts of terrorism, there are those who perform other functions such as intelligence-gathering, recruitment and quartermastering which are vital to the existence of the organisations. It is therefore right that those responsible for those various functions should be subject to prosecution for the offence if there is evidence of their directing role, although in individual cases that role may well not be such as to justify the maximum penalty.

Mr. Trimble

I understand what the Minister is saying about activities other than those of a directly terrorist nature—gathering information, for instance—but he must realise that the cooks and bottlewashers are included.

Mr. Mawhinney

If cooks and bottlewashers are members of terrorist organisations, it is possible that we are gathering them in.

Amendment No. 3, however, appears to limit the application of the offence solely to those directing the activities of these organisations with regard to actual acts of terrorism. Not only would that represent an unacceptable narrowing of the offence, but it would place an additional heavy burden on the prosecution to demonstrate that that was precisely the suspect's role within the organisation's command.

The purpose of amendment No. 12 is straightforward —it would reduce the maximum penalty for the offence from life imprisonment to 10 years. The Government cannot support that amendment. As hon. Members know, the offence is aimed at those who direct the activities of terrorist organisations, and it simply would not be credible for those in control of such organisations to be subject to a lesser maximum penalty than their subordinates. Rank and file members of those organisations are liable to sentences of life imprisonment where serious offences are committed, and it is right that those who are responsible for directing such activities should be subject to no less a penalty.

The purpose of Government amendment No. 33 is to add the offence in clause 27 to the list of scheduled offences in schedule 1. It would clearly be inappropriate for the offence to be dealt with before juries, and the amendment will ensure that cases will be dealt with in accordance with the procedures in part I of the Bill.

For all those reasons, I invite the House to resist amendments Nos. 6, 1, 11, 2, 3 and 12, but to accept Government amendment No. 33.

12.30 am
Mr. McNamara

It is not my intention to keep the House long, but the Minister of State has confirmed the point that we made earlier—he is boxed in by his own propaganda. He accused me of being consistent. On this issue, I am consistently right and he is consistently wrong and has dug a big pit for himself. He started by saying that everyone knew what "directing" meant. I asked him what he meant, and he replied that it would be foolish to define it. The Bill contains clauses that consist of nothing but definitions, so everything will be defined except the major new offence.

The Minister said that we needed the new offence because there would be occasions when the people involved would not otherwise be, to use his charming and immortal word, "got". He did not give an example of what he meant, but he then said that he had thought of one and talked about quartermasters who, when sending out people to collect items such as balaclavas and two-way radios, would be directing. They would be caught under clause 30 on obtaining possession of items intended for terrorist purposes.

The Minister gave a list of other examples. He rightly said that it would be wrong for people who direct terrorism to be given more lenient prison sentences than those who carry out the crimes. But there are offences, including being an accessory to a crime and conspiracy, that cover every example given by the Minister. Someone felt that the Government had to appear to be tough. The proposal is nothing but an emotional spasm, and we should get rid of it.

Question put, That the amendment be made:—

The House divided: Ayes 18, Noes 123.

Division No. 91] [12.32 am
Barnes, Harry (Derbyshire NE) Mallon, Seamus
Canavan, Dennis Marshall, Jim (Leicester S)
Corbyn, Jeremy Meale, Alan
Cryer, Bob Nellist, Dave
Cunliffe, Lawrence Skinner, Dennis
Dixon, Don Strang, Gavin
Foster, Derek Turner, Dennis
Godman, Dr Norman A.
Lewis, Terry Tellers for the Ayes:
McGrady, Eddie Mr. Frank Haynes and Mr. Thomas McAvoy.
McNamara, Kevin
Alison, Rt Hon Michael Hunter, Andrew
Amess, David Irvine, Michael
Amos, Alan Janman, Tim
Arbuthnot, James Jones, Gwilym (Cardiff N)
Arnold, Jacques (Gravesham) Kilfedder, James
Arnold, Sir Thomas King, Roger (B'ham N'thfield)
Ashby, David Kirkhope, Timothy
Baker, Nicholas (Dorset N) Kirkwood, Archy
Beggs, Roy Knight, Greg (Derby North)
Bennett, Nicholas (Pembroke) Knowles, Michael
Bevan, David Gilroy Leigh, Edward (Gainsbor'gh)
Bowden, Gerald (Dulwich) Lester, Jim (Broxtowe)
Brandon-Bravo, Martin Lilley, Rt Hon Peter
Brazier, Julian Lord, Michael
Brooke, Rt Hon Peter Lyell, Rt Hon Sir Nicholas
Brown, Michael (Brigg & Cl't's) McCrea, Rev William
Campbell, Menzies (Fife NE) MacGregor, Rt Hon John
Chapman, Sydney Maclean, David
Chope, Christopher McLoughlin, Patrick
Cope, Rt Hon John Malins, Humfrey
Davis, David (Boothferry) Mawhinney, Dr Brian
Day, Stephen Maxwell-Hyslop, Robin
Fallon, Michael Mayhew, Rt Hon Sir Patrick
Favell, Tony Miller, Sir Hal
Forsyth, Michael (Stirling) Mitchell, Andrew (Gedling)
Forsythe, Clifford (Antrim S) Mitchell, Sir David
Forth, Eric Moate, Roger
Franks, Cecil Molyneaux, Rt Hon James
Freeman, Roger Monro, Sir Hector
Gale, Roger Morrison, Sir Charles
Goodhart, Sir Philip Mudd, David
Goodlad, Alastair Needham, Richard
Gorman, Mrs Teresa Neubert, Sir Michael
Greenway, John (Ryedale) Nicholson, David (Taunton)
Gregory, Conal Norris, Steve
Hague, William Paice, James
Hannam, John Paisley, Rev Ian
Harris, David Patnick, Irvine
Hawkins, Christopher Pawsey, James
Hayes, Jerry Porter, Barry (Wirral S)
Heathcoat-Amory, David Roberts, Sir Wyn (Conwy)
Howarth, G. (Cannock & B'wd) Robinson, Peter (Belfast E)
Hughes, Robert G. (Harrow W) Ross, William (Londonderry E)
Rowe, Andrew Tracey, Richard
Sackville, Hon Tom Trimble, David
Sayeed, Jonathan Twinn, Dr Ian
Shelton, Sir William Viggers, Peter
Smith, Tim (Beaconsfield) Walker, A. Cecil (Belfast N)
Smyth, Rev Martin (Belfast S) Wallace, James
Soames, Hon Nicholas Waller, Gary
Speller, Tony Ward, John
Spicer, Sir Jim (Dorset W) Wardle, Charles (Bexhill)
Stanbrook, Ivor Watts, John
Stanley, Rt Hon Sir John Wells, Bowen
Stern, Michael Wheeler, Sir John
Stevens, Lewis Widdecombe, Ann
Stewart, Andy (Sherwood) Wood, Timothy
Summerson, Hugo Yeo, Tim
Taylor, Ian (Esher) Young, Sir George (Acton)
Taylor, John M (Solihull)
Taylor, Matthew (Truro) Tellers for the Noes:
Thompson, D. (Calder Valley) Mr. Tim Boswell and Mr. Neil Hamilton.
Thompson, Patrick (Norwich N)
Thurnham, Peter

Question accordingly negatived.

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