HC Deb 29 June 1993 vol 227 cc898-903

'.—(1) Section 57 of the Northern Ireland (Emergency Provisions) Act 1991 shall be amended as follows—

(a) The following subsection shall be substituted for subsection (4)—

"(4) This section applies for the purpose of terrorist investigations, that is to say investigations into—

  1. (a) the activities of an organisation concerned in the commission of acts of terrorism, or
  2. (b) without prejudice to the generality of paragraph (a) the commission, preparation or instigation of acts of terrorism to which section 14 of the Prevention of Terrorism (Temporary Provisions) Act 1989 applies, or
  3. (c) any other act which appears to have been done in furtherance of or in connection with such acts of terrorism, including any act which appears to constitute an offence under sections, 2, 9, 10 or 11 or Part III of the Northern Ireland (Emergency Provisions) Act 1991, or
  4. (d) without prejudice to paragraph (c) above, the resources of a proscribed organisation, or
  5. (e) funds which may he applied or used for the commission of, or in furtherance of or in connection with, acts of terrorism connected with the affairs of Northern Ireland, or
  6. (f) the proceeds of the commission of such acts of terrorism or of activities engaged in in furtherance of or in connection with such acts.
  7. (b) In subsection (5) for the references to paragraphs (a) and (c) there shall be substituted references to paragraphs (d) and (f) respectively.".
  8. (c) The following subsection shall be added—

"(6) Persons authorised under this section in respect of investigations that fall within subsection (4)(a) to (c) shall be persons who hold or have held judicial office in any part of the United Kingdom or who are—

  1. (a) a person who has a ten year general qualification within the meaning of section 71 of the Courts and Legal Services Act 1990; or
  2. (b) an advocate or solicitor in Scotland of at least ten years standing; or
  3. (c) a member of the Bar of Northern Ireland or a solicitor of the Supreme Court of Northern Ireland of at least ten years standing.".

(2) In paragraph 5 of Schedule 5 to the Northern Ireland (Emergency Provisions) Act 1991 all the words after "paragraph 2" shall be deleted and there shall be inserted "shall be admissible in evidence and such admissibility shall not in itself be a reasonable excuse within the meaning of paragraph 4( 1 )".'.—[ Mr. Trimble.]

Brought up, and read the First time.

Mr. Trimble

I beg to move, That the clause be read a Second time.

Perhaps I should explain why I have adopted a slightly different position in the Chamber. That reflects not a change in political allegiance but my need for some lumbar support.

The new clause stems from a speech made by the Chief Constable of the Royal Ulster Constabulary on 27 May when he introduced his fifth annual report. In that speech, he mentioned changes in the law that he considered to be desirable for the police to be effective in dealing with the terrorist problem that we face not just in Northern Ireland but elsewhere in the United Kingdom. He listed seven changes to the law that he considered to be desirable. My right hon. Friend the Member for Lagan Valley (Mr. Molyneaux) put them on record in a debate in the House a couple of weeks ago.

In Committee, I tabled two new clauses to give effect to two of the provisions mentioned by the Chief Constable. At the end of a brief debate, I expressed the hope that we would have an opportunity for a further, wider debate on the issue in the House.

I have not pursued the more radical of the two new clauses because I acknowledge that it is a radical proposal that needs to be subject to more debate and further refinement. The draft that I produced in Committee represented a stab at the matter. I have, however, retabled an amended version of the second, more modest proposal. That amended version is the result of advice that I have received from the RUC. I particularly commend the new clause, as currently drafted, because it has benefited from advice and refinement.

The new clause would amend section 57 of and schedule 5 to the Northern Ireland (Emergency Provisions) Act 1991. It is appropriate to take the opportunity offered by the Bill to do just that. I was surprised when the Minister said in Committee that the Bill was not the appropriate vehicle for such a change. The Bill makes massive changes to the Northern Ireland (Emergency Provisions) Act and in effect rewrites the whole of part VII, so I do not understand the Minister's argument that it is not a suitable or effective vehicle for change. The Bill makes substantial changes to anti-terrorist law as it applies not just to Northern Ireland but beyond. It is therefore appropriate that we consider this further change.

Section 57 and schedule 5 of the emergency provisions legislation empower the Secretary of State for Northern Ireland to appoint "authorised investigators", who can require people to attend particular places, answer questions and produce documents. The provision offers a measure of protection, in that information covered by professional legal privilege or a duty of confidentiality arising from banking business does not have to be produced. However, other documents must be produced and other questions answered.

Failure to answer by a person being questioned under that section and schedule is an offence. Making an inaccurate or misleading answer, or destroying documents, are further offences. The latter offence carries a penalty of up to seven years imprisonment, whereas the former carries a penalty of only five years imprisonment.

8.30 pm

I have gone through the existing provision to point out that it is substantial and makes significant inroads into what is known as the right to silence. The Government put that provision on the statute book in 1991. The new clause simply extends the range of circumstances to which the existing power under the 1991 Act apply, but it does so in a curious way. The significant inroad into the right to silence applies to offences relating to financing terrorism. I am proposing an extension of that to more serious offences.

I could understand an objection to the new clause if it extended an existing inroad into the right to silence from serious to less serious offences, as people might then be concerned about eroding a defendant's perceived right. But that is not what the new clause does; rather, it applies the section to more serious offences.

In Committee, I suggested to the Minister that, in some respects, it was an anomaly that we have a power to appoint investigators to require people to answer questions and produce documents with regard to minor terrorist offences but have no such power with regard to serious terrorist offences. I was sorry that he did not respond to that point in Committee.

I have slightly modified the drafting of the new clause and provided an additional safeguard. An existing safeguard with regard to the operation of authorised investigators is that their code of practice provides for the tape recording of interviews in the presence of solicitors. Because the provision would be operated in a wider range of circumstances, it is appropriate to offer further safeguards restricting those eligible for appointment as authorised investigators to persons who hold or have held judicial office, or to lawyers of at least 10 years standing. That would help to make the provision safe against any challenge under the European convention on human rights.

A further change, although not by way of a safeguard, is to amend paragraph 5 of schedule 5, under which answers given to an authorised investigator are not normally permissible in evidence. Cases have already arisen in which that restriction has prevented the institution of proceedings. It seems strange that the legislation impels people to answer questions but that their answers are not admissible in evidence. The whole point of requiring people to answer questions is to provide information relating to breaches in the law and that information should therefore be admissible in evidence. That is provided for in the new clause.

I hope that the Minister can give a different slant on the matter this evening because in Committee his remarks related mainly to the more radical of my proposals, which I am not pursuing at present. He referred to maintaining the character and reputation of the criminal justice system in Northern Ireland and the support of sensible and decent people. He also spoke about sustaining the judicial function and ensuring that a perception would not diminish it.

Does the Minister consider that section 57 and schedule 5 to the 1991 Act undermine the judicial function of the legal system in Northern Ireland? Do they undermine the character and reputation of the criminal justice system in the hearts and minds of ordinary, sensible, decent people? I do not think that they do and I do not see how the Minister could argue that the 1991 Act does that. The new clause simply extends the existing provision to deal with more serious offences. It removes an anomaly, which is an appropriate thing to do.

Last week, in the debate on the renewal of direct rule, and a couple of weeks earlier in the debate on the renewal of the emergency provisions and prevention of terrorism legislation, the Secretary of State for Northern Ireland quoted the same passage from the Chief Constable's speech of 27 May when he presented his annual report. In that passage, the Chief Constable purported to refute the widespread belief that the police are in some way shackled. The Secretary of State quoted that denial with evident satisfaction and went on to assert that the Royal Ulster Constabulary is given every resource that it needs and has asked for in order to fight terrorism.

In the light of what the Chief Constable said then and what has happened since, the remarks of the Secretary of State are not accurate, because the Chief Constable asked for specific changes to be made and went to the extent of saying to the public, a month ago, that he had been denied those changes. He asked for changes that have not yet been granted. That is remarkable, as he said that the matter had been delayed and blocked within the Northern Ireland Office.

In Committee, the Minister linked that delay to the expected report of the royal commission, which we understand is coming soon. Although the royal commission report may be relevant to the more radical of my proposals, it is no reason for dealing with a provision that takes existing legislation, to which the Minister cannot reasonably object, and applies it to other circumstances. On that basis, I hope that the Minister can give me a better, more reasoned reply than he gave me last week.

Mr. Maclean

I listened with great care to the remarks of the hon. Member for Upper Bann (Mr. Trimble) and I am grateful for the customary courteous manner in which he presented his arguement, although I must confess that I was slightly alarmed to see him on the Bolsover Bench.

The hon. Gentleman has again taken the opportunity of our consideration of the Bill to propose changes. Although, as he says, he has not proposed his more radical solutions, they are still of great significance to the criminal law in Northern Ireland.

The new clause, like those that the hon. Gentleman proposed in Committee, would have a significant impact on the right to silence of a person suspected of committing a terrorist offence in Northern Ireland. The new clause achieves that effect by extending to all terrorist crime the authorised investigator powers currently available under section 57 of the Northern Ireland (Emergency Provisions) Act 1991 in respect of investigations into terrorist finances, and by allowing a statement made by a person in response to a requirement imposed by an authorised investigator to be then used in evidence against that person in any prosecution, which I understand is not the case at the moment.

The hon. Gentleman asked me whether or not the measure would undermine the criminal justice system in Northern Ireland. That requires more consideration than we have been able to give it in the weeks since the Bill left Committee or in the few days that we have had to consider the hon. Gentleman's proposals. As I said then, and as I say now to the hon. Gentleman and his hon. Friends who are present tonight, the Government and the RUC keep the effectiveness of the law in combating terrorism continually under review, and the suggestions made reasonably by the Chief Constable are currently receiving not just full but urgent consideration.

I checked the Hansard report of our debate in Committee and the hon. Gentleman asked me whether those suggestions were receiving urgent consideration. Yes, they are. The Government are determined to ensure that all reasonable measures are in place to assist the prevention and investigation of terrorist crime, but we have to balance that against the need to maintain the character and the reputation of the criminal justice system in Northern Ireland and the support of the people of Northern Ireland for it. Therefore, the Government do not believe that it would be sensible to use the Bill to legislate on such issues.

I can assure the House that my right hon. and learned Friend the Secretary of State for Northern Ireland is giving the proposals the closest attention, but, given the nature of the threat posed by terrorist crime, I honestly believe that changes in the criminal law in Northern Ireland can be made only with great care and after full consideration. Even if I thought that the hon. Gentleman's proposals were excellent, I would not wish to take them on board after just a few days' consideration of them here, but would wait until it was possible to give them full and proper consideration with all the appropriate authorities in Northern Ireland.

It is true that the royal commission is about to report. I must say to the hon. Gentleman in all honesty that that is not an excuse that I plucked from mid-air for not wishing to take further action on the right to silence. I understand that the royal commission will be making recommendations on that matter. Again, the Government will wish to consider them seriously, and if we wish to make any changes to the right to silence, either here or as it further affects the law in Northern Ireland, it is best to wait for what the royal commission has to say.

I am grateful to the hon. Gentleman for the constructive contribution that he made to the debate tonight, as he did in Committee. I assure him that the Government are prepared to make changes to the legislation against terrorism when such changes are shown to be necessary and desirable. Part IV, which strengthens the law against terrorist finances, is clear evidence of that. However, hasty action in the area covered by the new clause would not be wise.

The principles behind the clause must be carefully examined and, as I hope I have managed to explain, the Bill is not a suitable vehicle for that, especially when we are expecting the royal commission's report and when my right hon. and learned Friend the Secretary of State for Northern Ireland is having full and urgent discussions on the Chief Constable's proposals. In view of those assurances, I would ask the hon. Gentleman if he would care to withdraw his motion.

8.45 pm
Mr. Trimble

The Minister has in effect repeated what he said in Committee, only with more emphasis. He has used basically the same argument and the same phrases.

Let me briefly comment on just a few points. The changes are necessary. I am sorry if I did not put the argument to show their necessity. I refer hon. Members who happen to read or listen to my speech tonight to the Hansard report of the Committee proceedings, where I gave some examples of why they are necessary. They are made necessary by the existing situation and the way in which terrorists are trained to withstand interrogation and normal questioning. Their necessity is shown by the fact that the Chief Constable of the RUC decided to go public on this issue, and that is quite unusual.

I should correct one point: the proposed measures are not simply changes to the law in Northern Ireland. Although section 57 of the Northern Ireland (Emergency Provisions) Act has to start in Northern Ireland by an appointment by the Secretary of State for Northern Ireland, it extends throughout the United Kingdom. It is one of the few provisions of which we approve in that respect because there is a need for a common legal basis to operate thoughout the United Kingdom and it is one of the grounds on which my right hon. and hon. Friends and I support the recent comments by the right hon. Member for Old Bexley and Sidcup (Sir E. Heath) when he called for the need to tackle the present problem on a United Kingdom basis. We were glad that such an integrationist argument was put by the architect of direct rule. The provisions extend throughout the United Kingdom, and it is necessary that they be reinforced.

The Minister said that it has been only a week since the Bill concluded its Committee stage and that we had had only a few days to consider the proposals in Committee. However, a month ago, the Chief Constable went public and the matter had been on the go before that; it is not as if the Minister had been given only nine or 10 days to consider the new clause.

The proposals have been under consideration for months and the impression that we have received in Northern Ireland is that the Northern Ireland Office has been sitting on them. Perhaps the Minister has become aware of them only in the past fortnight, but that is a reflection on the way in which the Government have been operating and the lack of co-ordination between the Home Office and the Northern Ireland Office, and that reinforces the arguments made by the right hon. Member for Old Bexley and Sidcup.

Having said that, the Minister said in Committee that the proposals were a bit premature, to which I added the gloss they might be a little premature, but not much. Perhaps after consideration of the royal commission's report and after consultation with other bodies, it will be necessary for the Minister to put forward proposals that may not be exactly the same but are on similar lines. He will have to do that soon. I will ease the U-turn he will then make by not compelling him to vote tonight against something that he will have to support before long. On that basis, I beg to ask leave to withdraw the motion.

Motion and clause, by leave, withdrawn.

Forward to