RELEASE ON LICENCE OF PERSONS SUBJECT TO RESTRICTED REMISSION (Hansard, 30 October 1995)

§ Mr. Worthington
I welcome the Secretary of State to the salt mines of the Committee stage. It must be a long time since he was down here with us in Committee. I am grateful to him for his response to the points that I raised on clause 1. I should like to take some of them a little further.
I was pleased to hear that there were to be no conditions to the licence. In a sense, that is not true because the condition is that prisoners will lose their licence if they are involved in behaviour that presents a risk to the safety of others or if they are likely to commit further offences, but it would be contentious, difficult and unacceptable if people on licence had to turn up at RUC stations or had restrictions on their liberty.
I welcome what the Secretary of State said about serious offences, which would be extremely important if there were any challenge. He said that revocation of the licence would apply only for serious offences. I assume that that would be especially important in terms of serious scheduled offences, although to some extent I recognise the difficulty of including scheduled offences.
On Second Reading drugs and the involvement of paramilitaries were mentioned. If a layman knew that someone was involved in drugs but could not prove it to the satisfaction of the court it would be tempting to use the route of revoking the licence rather than assembling evidence. We shall have to watch that and think about the matter. I hope that it is possible to amend the Bill in some way either here or in the Lords to convey what the Secretary of State said about serious offences. However, 69 from a reading of clause 1(4)(a) and (b) I appreciate the difficulties. It seems that as the Bill has been printed it will not be changed. The points that we made about that clause were sensible and the subparagraphs should be in a different order.
We welcome the Secretary of State's remarks about judicial review. He recognises that he is not simply operating on his own, that the judiciary is watching over his shoulder and that he has to justify his behaviour. But, with respect, it is bad law and bad politics for a Secretary of State to take all these powers to himself and, inevitably, to rely upon restricted sources of information on which he would then make a judgment and say to people, "You can appeal to me." In political terms it is difficult for a judgment, once made, to be reversed.
The Secretary of State should think again about looking for an intermediate body. Perhaps at this moment he cannot think what the intermediary would be, but he is about to announce the setting up of a review body to look at the emergency legislation in general. A sensible part of the remit of that body could be to examine the necessity of distancing the Secretary of State from some parts of the process. I do not think that a Secretary of State of whatever political party should be in at every stage in the process. As a matter of routine, the people affected by the law should recognise that they will be able to appeal to a body that has not already made a judgment upon them. I hope the Secretary of State can assure me that the review body will be asked to look at this matter.
In the context of clause 1, I asked about legal assistance and the Secretary of State said he thought that he had answered me by saying that if there was a judicial review, legal aid would undoubtedly be available. But I am thinking about the stage before a judicial review when a person has had his licence revoked and wants to make representations to the Secretary of State. What legal assistance would that person receive to enable him to make such representations? If legal assistance is available only for a judicial review one would immediately be tempted to go for that. At the moment a person may have his licence revoked and lose his liberty—hardly anything could be more serious—and he has no guaranteed access to a lawyer. That seems inadequate and I await the Secretary of State's response.

§ Mr. Soley
I should like to build on the arguments put by my hon. Friend the Member for Clydebank and Milngavie (Mr. Worthington). I suspect that it is too late for significant changes to the Bill. That is one of the dangers of fast-track legislation and my hon. Friend's recommendation that a relevant body should look at the issue is a good idea.
I certainly support the notion of legal aid being available. If a person who is to be tried for an offence that is likely to lead to five years or more in prison is allowed legal aid it is odd that he should be denied it for a matter that could return him to prison for the full period of his sentence. In some circumstances the term could be life and it is hard to argue that such a person should not be granted legal aid.
7.15 pm
The substantive point is the difficulty surrounding the withdrawal of a licence. If someone who is subject to a licence wanders the streets with a loaded Armalite he will be recalled and there will be no doubt about it. But there 70 are many reasons for thinking that the matter will rarely be as clear cut as that. The security forces may say to the Secretary of State, whoever he may be, that Mr. A is regularly associating with another person. In the context of Northern Ireland the other person may even be a relative. They may say, "We know that this person is involved in punishment beatings or perhaps the planning of another campaign of violence by a splinter group." Although that person may be a relative or a friend, will the Secretary of State recall the person on licence?
If the security forces recommend recall and if the Secretary of State has to give reasons in writing—to which he is committed, which is right—the second stage of the operation will be when the Secretary of State says, "I am recalling you because you are associating with people who we have reason to believe are connected with the planning of paramilitary offences or some other serious offence." I make it clear that I am not too worried about the offences being scheduled or wider because I understand that they may sometimes be wider.
If a person is recalled because he is associating with another over a period of time and because there is reasonable suspicion, the Secretary of State can be challenged. I am not a lawyer and the Secretary of State will know more about these matters than I do, but I suspect that he could be challenged by judicial review, and that the issue could go all the way to the European court. I doubt whether the Government would win, although I may be wrong. Recall under licence—even in the traditional setting here, where there is a parole board and probation officers and intermediaries—is difficult and leads to all sorts of dubious interpretations that are difficult to work out. Without a body, other than that of the security forces, between the Secretary of State and the person who is being recalled, the Secretary of State may well lose.

§ Sir Patrick Mayhew
I am grateful to the hon. Member for Clydebank and Milngavie (Mr. Worthington) for his welcome for the absence of conditions attaching to a licence. He welcomed my assurance that we intend to use revocation where there is an expectation or likelihood of serious offences being committed. He asked whether some way could be found for the Bill to be amended here or in the Lords to make that clear. I am afraid that I cannot give any commitment about that in another place. In any event, it is not necessary to do so. The assurance that I have given is binding and can be relied on in any judicial review proceedings to which it is relevant. I am therefore afraid that I cannot be helpful in that regard.
The hon. Member for Clydebank and Milngavie welcomed my assurances about the availability of judicial review, but he made the point, which I understand very well, that it is difficult, or perceived to be difficult, for those working in an Executive capacity to reverse their own judgments. He asked me to think again about an intermediary body. He made the interesting suggestion that the review of the emergency provisions legislation might provide the means by which the matter could receive fuller consideration. I think that it might very well receive fuller consideration from the reviewer. It is a helpful suggestion that should be drawn to his attention. We should be very happy to give that undertaking, but, at the moment, I cannot take the undertaking any further along the lines that the hon. Gentleman wishes.
71 The hon. Member for Hammersmith (Mr. Soley) mentioned legal aid. The hon. Member for Clydebank and Milngavie was talking about legal aid in drawing up the representations against the revocation of the offenders' licence. I wonder whether we are not getting into a slightly artificial position. The Bill states that the licence can be revoked only if the Secretary of State is prepared to give particulars in writing to the effect that it appears to him that the person's continued liberty would present a risk to the safety of others or that he is likely to commit further offences". I have now undertaken to restrict that to "serious" offences as a matter of practice.
The offender—the recalled person, or licensee—is going to be presented with those reasons in writing. It is for him to know whether there is a justifiable, factual basis for those reasons and it is for him above all others to say whether there is substance in them. It is not a matter on which, it seems to me, he will be assisted by legal advice. It is a matter that he and he alone is best able to deal with and can do so without the benefit of legal advice.
Where legal advice becomes important is when the licensee is conducting an application for judicial review. In that instance, as I have said, the legal aid scheme will provide it. I think that that is a satisfactory explanation of the Government's attitude to the proposal. I am afraid that I can give no further undertaking.