§ The Secretary of State for the Home Department (Mr. Jack Straw)
With permission, Madam Speaker, I should like to make a statement.
As the House will be aware, the provisions of the Prevention of Terrorism (Temporary Provisions) Act 1989 are subject to annual renewal by the affirmative resolution procedure. It has, however, recently come to my attention that, because of technical defects in the drafting of the 1998 and 1999 continuance orders, certain provisions in the 1989 Act have not been in force since 22 March 1998.
I therefore come before the House today to apologise for this regrettable error, for which I take responsibility. I also wish to explain what happened and to advise the House that I intend to revive the provisions, by order, as soon as practicable—subject of course to the approval of the House and the other place.
The provisions concerned are sections 16A, B and C, with schedule 6A and section 16D of the Act. These provisions apply only within Great Britain; there is separate legislation for Northern Ireland. Section 16A makes it an offence to possess articles for suspected terrorist purposes. Section 16B makes it unlawful to collect information likely to be useful for terrorist purposes. Together, they form part IVA of the Act.
Section 16C provides the power to impose a police cordon in connection with a terrorist investigation, with schedule 6A setting out the powers that may be exercised within a cordoned area. Section 16D imposes parking restrictions in a specified area. Together, they form part IVB of the prevention of terrorism Act.
The powers in sections 16A and 16B were brought into the PTA in 1994, and sections 16C and 16D were introduced in 1996. They continued in force each year until March 1998. It was then both my intention and my understanding—and, I believe, the understanding of the House—that those provisions had continued in force following the renewal debates in 1998 and 1999. However, that has turned out not to be the case.
Earlier continuance orders had referred collectively to parts I to V of the Act, a formulation which obviously includes parts IVA and IVB. It was, as a matter of policy, proposed by Ministers and agreed by Parliament that, in the 1998 and 1999 orders, part II, relating to exclusion orders, should not operate. The 1998 and 1999 continuance orders, following the omission of part II, therefore separately listed parts I, III, IV and V in a way which inadvertently did not include parts IVA and IVB. That drafting subtlety escaped the notice of the draftsmen, Ministers—including myself—the House and the legal profession at that time. It has come to light only as a result of an eagle-eyed author of an article in issue 19 of Criminal Law Week of 24 May 1999.
As soon as that article was drawn to my attention, I sought advice and, once the status of the sections was clarified, the police were advised not to rely on them. As I have already said, I very much regret that those provisions have not been in force since March 1998.
My information is that six people have been charged with offences under sections 16A and 16B since they came into force in 1995, but no convictions have so far followed in respect of offences alleged to have taken place 1172 either before or after March 1998. One person was on bail awaiting trial for offences under sections 16A and 16B which were alleged to have been committed after 22 March 1998. My right hon. and learned Friend the Attorney—General has told me that steps have been taken today to quash that indictment. Three other people are also currently on bail charged with offences under section 16A of the PTA, but those alleged offences occurred before 22 March 1998 and none of them relate to Irish terrorism.
Records on the use of section 16C—the power to raise a police cordon—are not held centrally, but I understand that the section has been used reasonably frequently in recent times. The Metropolitan police, for example, have used the provision 86 times since 22 March 1998. However, there have been no convictions under section 16C for breach of a police cordon during the period in which the provision has not been in force.
The ceasefires in Northern Ireland notwithstanding, we still face the threat of terrorism from many quarters. In those circumstances, I think that it is right that the earliest practicable opportunity is taken to revive these measures, so restoring what we all believed to be the status quo. I have therefore tabled a draft order today to bring sections 16A, B, C and D back into operation. That order will be subject to the affirmative resolution procedure so both Houses will have the opportunity to debate the revival of the provisions before they can be brought back into force. The debates will take place as soon as possible.
There is a separate but related point about sections 16A and 16B of the PTA, which arises in the case of Kebeline and others. That is a judicial review case which is scheduled to be heard by the Appellate Committee of the House of Lords on 19 July. The case turns on whether the Director of Public Prosecutions should continue to give his consent to prosecutions for offences under sections 16A and 16B if they are incompatible with the terms of the European convention on human rights.
The Government believe that these provisions, in their current form, are not incompatible with the ECHR and are an important part of the armoury in the fight against terrorism. In our view, it is entirely consistent with that position to seek their early revival, now that it has come to light that they are not currently in force. In adopting that course of action, the Government are not attempting to pre-empt, or in any way influence, the outcome of the appeal. We await their lordships' judgment with interest. However, in our opinion, that need not and must not stop us taking action to ensure that all measures required to counter terrorism are properly available to the police and to the courts.
§ Miss Ann Widdecombe (Maidstone and The Weald)
I thank the Secretary of State for his statement, for giving us early notice of it and for allowing us to see its text in good time. I welcome his apology and his assumption of responsibility for what happened.
May I clarify, however, that the effect of his statement is that, for more than a year, the possession of articles for suspected terrorist purposes and the collection of information for the purposes of terrorist activity have not been criminal offences? Could not that have had major implications for terrorist investigations?
The Secretary of State said that the error, which he described as a "drafting subtlety"—plain "error" is the right word—came to notice on 24 May. Why has it taken 1173 a month for the House to be informed? When was the error drawn to his attention and when did he advise the police not to rely on the existing provisions? Other than the one man already charged, have any potential charges been dropped as a result of advice to police not to rely on those provisions?
How serious were the alleged offences in the case of the man who was charged? As bail implies restrictions to liberty, do the Government now face a claim for compensation? Are other offences under investigation? I heard the night hon. Gentleman's statement about charges brought, but would other offences that are actually or potentially under investigation be prejudiced by the error? Am I right to think that the accused man, who has been on bail but will now have his indictment quashed, so no trial will take place, therefore faces no action and no penalty? Was that the thrust of what the Secretary of State said?
We shall, of course, support the order—assuming that it is correctly drafted—when it comes before the House. Similarly, we shall support the Government's view that the provisions are not incompatible with the ECHR.
Finally, we regret that the Government's inability to support our comprehensive prevention of terrorism Act has been at the root of causing this confusion.
§ Mr. Straw
I thank the right hon. Member for Maidstone and The Weald (Miss Widdecombe) for the tenor of her remarks and for her opening comments.
The right hon. Lady asked whether, as a result of the error, it follows that the provision in sections 16A and B, which the House had agreed should be in force for good reasons, was not in force. That is the case. She asked when the error was first brought to my attention: a few days after 24 May—I will seek to give her the exact date—and it was drawn to the attention of the Law Officers. I originally sought proper legal advice about it. She asked why it had taken some time to get that advice: because the matter was complicated. As I said, the error has had serious consequences, but it was, indeed, a drafting error, which was unnoticed by the draftsmen, Ministers, including myself, officials, all our legal advisers and hon. Members on both sides of the House. Moreover, it was not noticed by the legal advisers to the defendant, who, as far as I am aware, had not taken up that point in court. It was a complicated issue, although as is often the case with such matters, it now appears to fall easily in place. I decided that, because of the seriousness of the error, I should make an oral statement as soon as possible.
So far as I know—I shall write to the right hon. Lady and have this information placed on the record of the House if there is any change to what I am saying—there are no potential charges in prospect arising from investigations under the terms of the provision in the sections. I cannot give her precise details of the seriousness of the offences—as she knows, it is not appropriate for a Secretary of State to seek to interfere in the criminal process. Let me simply say that the charges were proceeded with on indictment and they therefore had a degree of seriousness attached to them.
The right hon. Lady asked me about compensation. This man was on bail. I understand that he had spent some months in custody before obtaining bail, and that the bail was subject to conditions. We therefore expect to receive 1174 a claim for compensation. I cannot comment on the outcome. We do not know what the result of a trial would have been, but, as the man has been released, what is certain is that no action and no penalty will follow.
§ Mr. A. J. Beith (Berwick-upon-Tweed)
We accept the Home Secretary's apology and the need to reintroduce the provisions, but does the right hon. Gentleman realise that mistakes of this kind are inherent in the piecemeal way in which we deal with prevention of terrorism legislation? Has he forgotten that the original 1996 provisions were rushed through the House in one day, with his support? We ought to pay much more careful attention to legislation on which the police depend to guard us against terrorism.
The provisions have been challenged on the basis of the ECHR. Does the right hon. Gentleman realise that, if he reintroduced them in a new statute, he would have to furnish the House with a formal certificate stating that those provisions complied with the convention? Is he in a position to sign such a certificate?
Given that the Home Office is beginning to chalk up rather too many mistakes that bring the right hon. Gentleman before the House, would he care to let us into the secret of what kind of message he is delivering as a result of being landed in it again?
§ Mr. Straw
I am grateful to the right hon. Gentleman for his opening remarks.
Sections 16A and 16B are the sections affecting the charges that have now had to be dropped. They relate to the Criminal Justice and Public Order Act 1994, not the Prevention of Terrorism (Additional Powers) Act 1996. That Act introduced changes in respect of sections 16C and 16D in part IVB of the Act, as opposed to part IVA, which relates to cordons and parking restrictions. As the measure is subject to annual review, I do not believe that the fact that the House supported the change in 1996—I supported it myself—has anything to do with it. This is a drafting error. I am sorry that it happened, and I have already apologised to the House.
The right hon. Gentleman did, however, raise an important issue: the need for major reform of PTA legislation. As the House knows, I made proposals in October 1997, which have been published in a consultative document. We have received responses, and we hope to produce legislation as soon as possible.
If primary legislation were involved, the right hon. Gentleman would be right to ask whether, in our judgment, a certificate was compatible with the ECHR; but our view, which we will argue powerfully before the Appellate Committee in the other place, is that sections 16A and 16B are compatible with the convention.
§ Mr. Tom King (Bridgwater)
I am sure the House accepts that a genuine mistake was made on this occasion. It is in keeping with the Home Secretary's attitude to the House that he felt it necessary to make a personal statement. That, however, is as far as my kindness will go. I want to pursue the questions raised by my right hon. Friend the Member for Maidstone and The Weald (Miss Widdecombe).
Am I right in thinking that it is currently not an offence to possess articles for suspected terrorist purposes, or to collect information that is likely to be useful for terrorist 1175 purposes? If that is so, does the Home Secretary agree that it underlines the sense of urgency that is currently necessary if this serious matter is to be dealt with?
The article appeared on 24 May, but when did the eagle-eyed author actually write it? When he prepared it, did he not do what many authors do when stumbling on something like this, and consult the Law Officers or the Home Office to check that he had got it right? When did information on the situation first become available in Government? If—as the right hon. Gentleman said, and as I certainly believe—the legislation is an important part of the armoury, why are we casually discussing it when—sometime, through the usual channels, depending on the business of the House—we might proceed to replace a serious omission in our defences against terrorism?
§ Mr. Straw
I made it quite clear that I regard the legislation as a serious part of the armoury. As it happens, it is not a part of the armoury that has been used all that often; it has been the basis of a charge on six occasions since it came into force, at the beginning of January 1995. It also happens that, so far, no convictions have followed. The right hon. Gentleman asked me about the author of the article in the criminal law journal. The article was unsigned, so I have no idea who the author was. Originally, the article was faxed to the Law Officers. I first learned of it on 26 May, when it was put in my box.
§ Mr. Straw
As I explained to the right hon. Member for Maidstone and The Weald (Miss Widdecombe), we had to take detailed advice on it.
Hindsight is a wonderful thing, but it was an error that had been missed not only by Ministers, including myself, parliamentary draftsmen and lawyers on both sides of the House, but by lawyers acting for the defendant. It turns out to have been a very important point, but it was also a relatively obscure one.
The urgency with which we proceed is a matter—the right hon. Friend the Member for Bridgwater (Mr. King) knows the procedures—for discussion in the usual channels, but I hope that the matter will be brought before the House as quickly as possible. I am grateful for the support publicly given by the right hon. Members for Maidstone and The Weald and for Berwick-upon-Tweed (Mr. Beith) for renewing the provisions.
The question whether I should use the urgency provisions within the PTA and bring the provision into force immediately has been raised. My judgment was that, given the nature of the error, it was important for the provision to be renewed by a positive and affirmative act of both Houses, and not under the urgency provisions.
§ Mr. Tam Dalyell (Linlithgow)
Forgive my puzzlement and being unable to contain my curiosity, but Home Secretaries do not normally come to give statements to the House of Commons as the result of faxed articles, apparently anonymous, to law journals. Someone somewhere must have prompted this. Is it not yet another argument for looking at the piecemeal way in which, year after year, the House has been asked to endorse prevention of terrorism measures spatchcocked 1176 together in a hurry? Is one wrong in suspecting that there really is a case now for going back to the drawing board and producing something properly?
§ Mr. Straw
As my hon. Friend has reason to know, the truth is suddenly sometimes an odd beast. I could hardly have made up how we found out about the matter, could I? The United Kingdom's greatest legal minds—and ministerial minds, great or otherwise—missed it, and learned of it from a fax and a criminal law journal. But there we are. The right hon. Member for Berwick-upon-Tweed asked what I said to people in the Home Office: I said that I have now become a fully paid-up member of the Home Secretary club. I see the right hon. and learned Member for Folkestone and Hythe (Mr. Howard) is smiling; he knows what I am saying. What can one say when things like this happen—[Interruption.] I am certainly not going to put them on the record.
On the specific and serious point made by my hon. Friend the Member for Linlithgow (Mr. Dalyell), I do not believe that the error was caused by the fact that the prevention of terrorism legislation has been built up over a period. One also cannot argue that the House's approval, after a couple of days, of sections 16C and 16D contributed to the error.
I accept, notwithstanding that point, that there is a strong case for bringing all the temporary legislation together in permanent legislation. We have made our intention to do that clear. Drafting—good drafting—is currently proceeding and we hope to bring legislation before the House as soon as possible.
§ Mr. Andrew Robathan (Blaby)
The right hon. Gentleman has been very candid with the House, but may we return to the question asked by my right hon. Friend the Member for Bridgwater (Mr. King)? Is it currently an offence to possess articles for suspected terrorist purposes and is it unlawful to collect information likely to be useful for terrorist purposes? The answers to those questions are pertinent. This error, and the urgency that has been lacking, is extraordinarily pertinent, because the right hon. Gentleman will know that last Thursday the IRA attempted to murder a former member and informer, one Martin McGartland. Will this error and the lack of urgency in rectifying it affect the investigation into that attempted murder in any way?
§ Mr. Straw
No, it is not an offence. It obviously follows that it cannot be an offence because the provisions are not in force. As it turns out, they have not been in force since March 1998. They will be brought back into force as soon as the House and the other place approves the order.
I ought to make it clear that, before early 1995, there were other provisions in the law for dealing with such alleged offences and they are still on the statute book. They are principally offences of conspiracy. One of the reasons why the right hon. and learned Member for Folkestone and Hythe introduced those offences was the 1177 difficulty in gaining convictions for conspiracy. As for the attempted murder of Mr. McGartland or anyone else, it would be wrong for me to comment on the detail of that investigation. Suffice it to say that in such an incident there are many other offences with which the perpetrator can be charged, including murder or attempted murder.
§ Mr. Peter Viggers (Gosport)
The House should be very reluctant to introduce retrospective legislation. The leading case for doing so was the necessity to legitimise the fire service during the second world war; otherwise, it would have been illegally run. If the Government were to come to the House and ask it to deny compensation to an individual who had been in custody when the House thought that an offence had been committed with which the individual was charged, they would find some sympathy in some parts of the House.
§ Mr. Straw
Retrospective legislation is rarely enacted and, as far as I know, never enacted in respect of criminal offences. It would be oppressive even in circumstances such as this.
As for compensation, I understand what the hon. Gentleman says, but we always have to ensure that the balance is in favour of the individual and the rights of that individual when we are dealing with matters of criminal justice. As I said, because this man was in custody for some period and then on bail, subject to conditions, for quite a long following period, he may apply for compensation and we anticipate an application. That application will be considered in the normal way.
Mr. Humfrey Manus (Woking)
The Home Secretary has confirmed that today, 23 June, it is not an offence to possess articles for suspected terrorist purposes. That is a very serious issue indeed. Given what we have said in the House this afternoon, what he has told us and what the rest of the world therefore knows, is it not of the greatest importance that the matter is remedied immediately, by which I mean not next week or the week after but within a matter of hours or, at worst, tomorrow? I am sure that 1178 there will be the most complete co-operation around the House if the Home Secretary introduces measures to remedy the position.
§ Mr. Straw
As I have said, this is a serious matter. Many other offences are still in force in the armoury of the law enforcement agencies for dealing with terrorist offences. I have made it clear that the provisions under sections 16A and 16B have never been used in connection with Irish terrorism, although the cordon powers, which supplement common law powers, have been used in the prevention of Irish terrorism. I hope to see the offences and the cordon provisions under sections 16C and 16D brought back into force as quickly as possible. As I said, we welcome the offer of co-operation from the Conservative and Liberal Democrat Opposition Front-Bench spokesmen and we look forward to co-operation with the usual channels as soon as possible.
§ Mr. Michael Howard (Folkestone and Hythe)
The House will understand that I have considerable sympathy for the Home Secretary given the predicament in which he finds himself, but I must return to the questions that have been asked by my right hon. and hon. Friends. This is not a controversial question. The need for such an offence is acknowledged on both sides of the House. The Home Secretary has acknowledged the seriousness of the current situation, in the absence of such an offence on the statute book. Will he reconsider the attitude that he has taken thus far about the need for urgency and the use of the urgency procedures to remedy the situation?
§ Mr. Straw
I am genuinely grateful to the right hon. and learned Gentleman for his sympathy. Although one hopes that some people might not hear this, we may have ended up in the same club. I accept the case for urgency and I have already explained that, given the seriousness of the error and the need for me to report it to the House, it was my judgment that it would have been inappropriate to use the urgency provisions in the Act to bring it straight back into force without the House having had an opportunity for debate. However, given what the right hon. and learned Gentleman has said, I will ask my hon. Friends, the business managers, to have urgent discussions about the matter.