§ 7.2 pm
§ Mr. Tony Benn (Chesterfield)
On a point of order, Mr. Deputy Speaker. I wish to raise a matter that has been put to the Speaker's Office, the Clerk and to the Home Secretary relating to the constitutional implications of today's debate. I make no comment about the merit of the order, which closes a loophole in the Prevention of Terrorism Act. Parliament can legislate to do what it likes, subject to two considerations which I put before you now. The first is that, under the Bill of Rights, the courts cannot question what we do. Secondly, we have a long tradition under the sub judice rule of not intervening in matters that are before the courts.
It so happens that the order pre-empts a matter that will come to the House of Lords in its judicial capacity on 19 July: whether the order and the Prevention of Terrorism Act are a contravention of the European convention on human rights to which we are bound by the Human Rights Act 1998. That was the view of the court of first instance and it was endorsed by the divisional court. The Lord Chief Justice said:It seems to me that on the face of it both sections undermine in a blatant and obvious way, the presumption of innocence.That is the law of the land until the House of Lords considers the matter and issues its judgment. Yesterday, obviously acting on advice, the Home Secretary said:The Government believe that these provisions, in their current form, are not incompatible with the ECHR".—[Official Report, 23 June 1999; Vol. 333, c. 1172.]The House is being asked today—this is why I raise the matter as a point of order and not on its merits—to disregard the Lord Chief Justice's judgment. The issue goes even wider than that, because the European Court might hear a case regarding the matter. This is new territory for the House of Commons: we have always respected our relations with the courts, but now there is a new court.
I appreciate that this is a difficult point. I simply suggest that there is a case for adjourning the debate until after 19 July to give Madam Speaker an opportunity to consider the constitutional implications of reaching a view about an order when it is contrary to the law of the land, subject to a House of Lords decision that has not yet been reached. I am grateful to you for listening to me, Mr. Deputy Speaker. It is an important question and I hope that you will consider my request.
§ Mr. Deputy Speaker (Sir Alan Haselhurst)
Madam Speaker is grateful to the right hon. Gentleman for giving notice of his intention to raise a point of order at this juncture. I have listened carefully to his comments. From his experience, he may recall that, so far as sub judice is concerned, our rule is that it does not apply to debates on legislation, including subordinate legislation. Therefore, we cannot be prevented from creating new legislation if that is the wish of the House.
As to the constitutionality, that must be a matter for debate rather than determination by the Chair. The House may wish to consider that issue in the course of the debate and decide accordingly.
§ 7.4 pm
§ The Secretary of State for the Home Department (Mr. Jack Straw)
I beg to move,That the draft Prevention of Terrorism (Temporary Provisions) Act 1989 (Revival of Parts IVA and IVB) Order 1999, which was laid before this House on 23rd June, be approved.I shall be as speedy as I can. When I wind up the debate, I shall try to respond to any points that I have not covered in my opening remarks. Yesterday, I explained the circumstances in which, regrettably, due to an error in the drafting of the 1998 and 1999 continuation orders, parts IVA and IVB of the Prevention of Terrorism (Temporary Provisions) Act 1989 had not been in force since 22 March 1998. Today, I am seeking to revive those provisions but only from the day when the order becomes operative, not retrospectively.
Yesterday, I was asked a number of questions by, among others, the right hon. Member for Bridgwater (Mr. King) and the right hon. and learned Member for Folkestone and Hythe (Mr. Howard) about the chronology of events that had taken place since the article first came to our attention. It may be helpful to the right hon. Gentleman, the right hon. and learned Gentleman and the House if I provide more detail.
The article was published in issue 19 of Criminal Law Week on 24 May. It was brought to my attention via a faxed copy of the article sent to us by the Attorney-General's office on 26 May. Advice on the argument in the article was sought initially from officials and legal advisers within the Home Office, and then from the Law Officers on 1 June.
I know that my right hon. and learned Friend the Attorney-General gave the matter extremely careful and detailed consideration. The final advice arrived from the Law Officers in the Home Office on 17 June. Officials provided me with detailed advice on 18 June, and the draft order reviving the provisions was laid yesterday, 23 June.
The matter may now seem straightforward—it turned out that part of the Prevention of Terrorism Act was inoperative—but it by no means seemed to be straightforward when the issue was first raised. Obviously, it was important to ascertain from the best legal advice available that what was suggested in one article in one law journal was likely to turn out to be an authoritative position.
I still do not know the author of the article, but plenty of articles that appear in law journals turn out not to be accurate. The right hon. and learned Member for Folkestone and Hythe is smiling. It is probably just as well that not all articles are authoritative, especially if one is the Home Secretary.
That is the chronology of events. We wanted to be sure about the position before seeking the approval of the House. Coming to the House yesterday, we were clear that the Act had been inoperative in respect of those parts, and we came to the House to remedy the matter.
The second issue that right hon. and hon. Members raised was whether I should have used the urgency procedures in section 27(7)(b) of the PTA in respect of reviving the provisions and immediately revived them, without coming before the House to seek retrospective approval. Of course I considered the matter carefully and took advice on the use of the urgency procedures, but those are used principally to deal with the need to revive provisions urgently because of a pending terrorist threat.
1384 The view that I took on advice was that it was difficult to argue that the present situation was the one anticipated by Parliament when it agreed to provide a Secretary of State with such urgency provisions. For that reason, I judged that the best approach was to come as quickly as possible to the House to make the position clear and to seek the House's co-operation in getting the changes through as quickly as possible.
I am extremely grateful to the right hon. Members for Bridgwater, for Maidstone and The Weald (Miss Widdecombe) and for Berwick-upon-Tweed (Mr. Beith), the right hon. and learned Member for Folkestone and Hythe for their suggestions about how we might deal with the matter speedily. We hope that it will go through this place speedily tonight and also through the other place tonight. If that happens, the order can become law tomorrow.
§ Mr. Chris Mullin (Sunderland, South)
I understand that Parliament has a perfect right to put the order through as speedily as we intend to do it, but I do not understand the need for it, given that the two subsections are not much used, that there is an appeal pending on 19 July and that the Lord Chief Justice has made clear his view thatBoth sections undermine in a blatant and obvious way the presumption of innocence.
§ Mr. Straw
I shall give my hon. Friend the best answer that I can. We are seeking to recreate the status quo ante without making the legislation retrospective. If this technical drafting error had not come to light—and therefore made this part of the Act inoperative until, we hope, tomorrow—the appeal would have proceeded in the normal way. There is no suggestion that a provision of primary legislation should be withdrawn merely by virtue of the fact that a divisional court has held a particular part of an Act to be incompatible with the provisions of the European convention. It is my judgment that we need to put this provision back on to the statute book as quickly as possible because it was, after all, Parliament's intention that it should never have been off the statute book.
Although my hon. Friend is right to say that these provisions are not used that frequently—certainly in terms of charges, and I shall come on to the numbers in a moment—they are important provisions. One never knows, particularly in this area of law, how many offences are being deterred by such provisions. It is impossible to tell, but we believe that some are being deterred. The converse is more certain to be the case.
The other point that I should like to make to my hon. Friend is the important constitutional point about the sovereignty of Parliament. The whole issue of the European convention arose acutely when we debated what became the Human Rights Act 1998. We could have approached the introduction of a Human Rights Bill into our constitution in two ways. One was to follow the procedures that some Commonwealth countries have followed, by which a supreme court is able to override the will of Parliament. The other approach, which has been adopted by other Commonwealth countries, is the reverse of that, whereby the supreme court is allowed to exercise an opinion about whether legislation is incompatible with some basic law, but whether any action is taken is a matter for Parliament to decide, not the courts.
1385 I happen to believe strongly in the sovereignty of Parliament, and I know that that view is shared by many right hon. and hon. Members on both sides. We decided very clearly that, under the scheme that we set down for the Human Rights Act 1998, it should never be possible for the Appellate Committee of the House of Lords to make a judgment overriding the decisions of this House and the other place in their legislative capacity. That would have transferred the sovereignty of decision making from Parliament to a supreme court. That arrangement applies in some constitutions—most notably in the United States—but it does not apply here.
The scheme that we adopted, which is set out in section 6 of the Human Rights Act 1998, is that it is open to the courts at any stage to declare primary legislation—which this is, by the way—incompatible with the convention, but what action is then taken is a matter for this House and the other place. Two alternative courses of action can be taken. A decision can be taken to legislate for the change either by the urgency procedures in the 1998 Act or in normal time. Alternatively, Parliament can decide not to change the legislation, and a final decision would rightly and properly be made on appeal by the injured party to the Strasbourg Court and the matter would again come back to Parliament.
That was clearly the opinion of Parliament, so if we were to take any other decision today, we would be acting against the clear wishes of Parliament as set out in the Human Rights Act 1998. I should add a technical but important detail. Section 6 of the Human Rights Act 1998, although passed, is not yet in force.
§ Mr. Tony Benn
I am grateful to the Home Secretary for the way in which he is tackling the matter, but may I put one or two points to him? The consequences of the loophole are threefold. Because there was a loophole, we had, as my right hon. Friend quite properly said, the unusual circumstances in which the Lord Chief Justice was able to make a declaration of law that this provision was incompatible with the European convention, even if it has not come into effect, and was a denial of the presumption of innocence, which does not depend just on the European court but is embedded in many centuries of British legal practice.
Secondly, I think that my right hon. Friend is right to suggest that, although such action is contrary to the European convention, the Government will want to proceed with it, because I am a great believer in the sovereignty of Parliament; but yesterday—this can be found in column 1172 of Hansard—he said that the Government's view was that such action was not incompatible with the convention.
My right hon. Friend must make up his mind. If the Lord Chief Justice says that such action is incompatible with the convention and he says that it is not, he is saying not that it is incompatible but that he does not care. This is a very important point, which will arise time and again as the convention comes into effect following the implementation of the Human Rights Act 1998. I hope that my right hon. Friend will take my 1386 arguments seriously. They relate not to the merit of the case, but to the clarity of Parliament's approach to legislation of this importance.
§ Mr. Straw
My right hon. Friend is right in saying that I asserted yesterday that the Government consider that sections 16A and 16B of the Prevention of Terrorism Act are not incompatible with the convention. I still believe that. I also made it clear beyond peradventure that, as it happens, the Lord Chief Justice takes a different view, and that view is clearly set out.
I drew the House's attention to the proceedings yesterday. We do not know what decision the Appellate Committee will reach. It may decide to share the view of the Lord Chief Justice in the divisional court, which is not the final Court of Appeal in regard to matters of this kind, or it may reach a different view. As I said yesterday, the Government have already made it clear to the other parties that we will argue strongly that sections 16A and 16B are compatible with the convention. Given that position, I do not believe for a moment that it would be appropriate for us, because of the chance that a particular part of the Act will turn out to be inoperative for 15 months, to allow those sections to remain inoperative for a further period. Moreover, that would set a constitutional precedent that I do not think my right hon. Friend the Member for Chesterfield (Mr. Benn) would approve in any other context.
§ Mr. Paul Stinchcombe (Wellingborough)
My right hon. Friend has described, accurately and helpfully, the procedures that will follow implementation of the Human Rights Act; but is he not pre-empting those procedures, and preventing them from being followed? Instead of waiting for the House of Lords to adjudicate on the legal matter, he is simply saying, "I disagree with the Lord Chief Justice."
§ Mr. Straw
No. The position is quite the reverse. Another section of the Act—I have had to refresh my memory about each section—makes it absolutely clear that a declaration of incompatibility does not affect the operability, or remaining in force, of any primary legislation.
The Act is not yet in force, and will not be in force until late next year, but let us work on the basis of its operation. Section 4(6) clearly states—this was Parliament's explicit will—A declaration under this section ('a declaration of incompatibility') … does not affect the validity, continuing operation or enforcement of the provision in respect of which it is given; and … is not binding on the parties to the proceedings in which it is made.That could not be clearer—and it was made clear in order to preserve the sovereignty of Parliament.
§ Mr. Stinchcombe
My point is this: all that would follow if my right hon. Friend accepted the court's judgment that the legislation was incompatible with the 1387 convention, but he is simply saying that he disagrees and preventing the House from passing legislation in the light of a determination of incompatibility.
§ Mr. Straw
My hon. Friend is making the most extraordinary point. No declaration of incompatibility has yet been made by the highest court in the land—leaving aside the fact that the Act is not yet in force, which is a subsidiary and quite important issue in the proceedings, as one of the points that we shall be asserting is that the courts have anticipated implementation of an Act.
Any party to proceedings is entitled, particularly pending appeal, to seek to preserve the status quo. In the specific proceedings, I am entitled to assert—on the best advice and my best judgment—that section 16A and section 16B are compatible with the convention, and I have done. However, even if the Appellate Committee were to decide that the provisions were incompatible with the convention, it would not render the provisions invalid or undermine their continuing operation. Other action may have to follow, and judgments would have to be made, but such a decision would not affect that.
By way of reassurance, I should say that, in his decision in the divisional court, although the Lord Chief Justice was very clear in his own mind that sections 16A and 16B were incompatible with the provisions of the European convention, he did not say that they should not be operated. He went on to say that the Director of Public Prosecutions should have to bear in mind questions of compatibility in bringing prosecutions—which is a rather more subtle conclusion to the argument.
§ Mr. Corbyn
I thank the Home Secretary for giving way now; obviously it would be helpful if we could deal with the issues as they arise.
As I understand it, the Law Lords will be considering the matter on 19 July. Will the Home Secretary explain why it is necessary for us to legislate now? Would it not be more appropriate, in normal constitutional terms, to leave the issue until after 19 July, when it may not be necessary for the House to debate the legislation at all?
§ Mr. Straw
As I sought to explain in answering the question of my hon. Friend the Member for Sunderland, South (Mr. Mullin), Parliament's will was that the provisions should be in force. They are not used all that often in prosecutions—although they have been used on one more occasion than I had thought that they were yesterday; I shall explain that to the House in a moment—but they are regarded as important. I therefore thought that it was important to bring them before the House as quickly as possible.
If the Appellate Committee of the House of Lords was the United Kingdom supreme court and its power overrode Parliament, the assumption made by 1388 my hon. Friend the Member for Wellingborough (Mr. Stinchcombe) would be a correct one. We would then be in a situation in which a constitutional court had declared that Parliament should not have done something that we had done and that the provision was inoperative for the future. However, that is not case.
I cannot pre-empt the Appellate Committee's judgment, or any decision made by my right hon. and learned Friend the Attorney-General and other Ministers, if the Appellate Committee decides that sections 16A and 16B are outwith the convention. However, as I said, one possibility—it is only a possibility—is that the Government may decide that we continue to believe that the sections are compatible and that we wish to argue it out before the court in Strasbourg. Even then, the matter would not be settled, and it could be some years before there was a decision by the institutions of the Council of Europe and any jurisprudential clarity on whether the sections were compatible with the convention.
Meanwhile, it has always been accepted by all signatories to the European convention that domestic law should remain operative, for reasons that the whole House will understand: simply the prospect of a final declaration by the Strasbourg Court could render inoperative all sorts of legislation that each domestic jurisdiction needs.
§ Mr. Tony Benn
The matter boils down to one question. Does the House know what it is doing today? The Home Secretary might say, "The measure is incompatible. The Lord Chief Justice says that it is incompatible and so does the appellate court, but I do not care because it is in the national interest." If he did, the House would know what it was doing. Alternatively, he could say that there was no issue of incompatibility. If he did, he would be going against the current law of the land as the Lord Chief Justice lays down the law until it is reversed.
The House is entitled to know the basis of the vote that my right hon. Friend asks us for tonight. Is he saying that the measure is incompatible and therefore there is no problem, or that it is not incompatible and he does not think that it matters? At least we ought to know what we are being asked to do.
§ Mr. Straw
I have sought to explain the matter. Without labouring the point, right hon. and hon. Members are being asked to approve or not to approve the draft order that I have laid before the House, which brings in parts IVA and IVB of the 1989 Act. They are being asked to do that and nothing else.
Although the issue of compatibility or incompatibility is relevant to the debate, it is not directly relevant to the judgment as to whether the order should or should not become law. I have tried to explain that to the best of my ability. I have never said to my right hon. Friend that I do not care whether or not the measure is incompatible. Of course I care whether law is compatible with the Human Rights Act 1998—I expect that the entire House does, but as I was the Minister who brought the Human Rights Act before the House, I care profoundly about it. The alternatives that my right hon. Friend put forward—that it is either compatible or incompatible and that I do not care—are not the only options. I do care about it and, with respect to the Lord Chief Justice and his colleagues in the divisional court, I take a different view. On the best legal 1389 advice, the Government take a different view and that will be argued before the Appellate Committee. Although that is related to the order, it is separate from it.
I have spoken at greater length than I had anticipated but I should like to place one or two additional points on the record. Yesterday, I said that my information was that six people had been charged with offences under sections 16A and 16B. Central records on these matters are not kept, but I now understand from the police that the total is in fact seven. The seventh case also related to international terrorism and was dropped before it came to court. It remains the case, as I said yesterday, that there have been no convictions so far under sections 16A or 16B.
I also explained that the individual whose indictment was quashed had been in custody for some months and that we could therefore expect to receive a claim for compensation. In one other of the total of seven cases charged under sections 16A and 16B, a man whose alleged offence was committed after 22 March 1998 spent some months in custody before proceedings were discontinued. It may well be that he, too, will claim compensation.
Let me deal briefly with the content of sections 16A and 16B of the PTA. Section 16A makes it unlawful to be in possession of articles in circumstances which give rise to suspicion that they are intended for terrorist purposes. It is a defence to prove that the articles concerned were not held for terrorist purposes. Section 16B makes it an offence to collect or record information that is likely to be of use to terrorists without lawful authority or reasonable excuse for doing so.
Although the provisions have not been used very much, I understand that experience of the equivalent provisions in Northern Ireland has been positive. Both Lord Lloyd in his inquiry into legislation against terrorism and John Rowe in his annual reports have commented on the usefulness of these provisions and recommended that they should be retained. The Government's consultation paper on permanent counter-terrorist legislation agrees.
§ Mr. Tom King (Bridgwater)
May I clear up one point? The Leader of the House told us last night that there were plenty of other powers and measures and these were not needed.
§ Mr. Straw
I fully understand and appreciate the right hon. Gentleman's anxiety, but, with the greatest respect, I did not take that to be the case from reading the Hansard report of the comments of my right hon. Friend the Leader of the House. Other provisions are available for similar conduct, including conspiracy. They do not completely overlap or there would be no point in these provisions. One reason why the right hon. and learned Member for Folkestone and Hythe introduced the Act was the difficulty of charging with conspiracy in some cases.
I have dealt with the appeal at length. Section 16C and schedule 6A give the police, subject to authorisation at superintendent level or above, the power to cordon off areas and restrict access in connection with a terrorist investigation and make it an offence not to obey police instructions. As I told the House yesterday, central records are not kept, but our information is that the Metropolitan 1390 police have used the powers 86 times since March 1998. The police have certain common law powers to impose cordons, on which they rely in non-terrorist cases, but section 16C provides a firm statutory basis for their actions.
Section 16D gives the police power to impose temporary parking restrictions on roads in response to a general threat to vulnerable targets such as Government buildings or financial centres. The police have some powers in that respect under common law, but the provision gives the reassurance of statutory underpinning. Lord Lloyd and John Rowe agreed that the powers under sections 16C and 16D were valuable and should be retained.
I apologised to the House yesterday for what has happened and I do so again. I am grateful to the Conservatives and the Liberal Democrats for their co-operation in bringing the order before the House. I hope that I have explained the circumstances, including the important aspect of the appeal to the Appellate Committee and the question of the convention, to the House's satisfaction. I shall respond to any other points when I wind up the debate.
§ Miss Ann Widdecombe (Maidstone and The Weald)
As I said yesterday, the Opposition will support the Government in their proposal to remedy the defects that they allowed to be created in March 1998. We also hope that we can maintain the position that the provisions of sections 16A and 16B are compatible with the Human Rights Act 1998.
I found the Home Secretary's explanation of the gap between 24 May, when the lacuna was first noticed—it was drawn to his attention two days later—and yesterday, when he did not show the most amazing urgency to put things right, wholly unacceptable given the seriousness of the legislation and some of the offences that might have been caught under the provisions. I do not want to labour the point because we dwelt on it at length yesterday, but I was hoping to hear a more satisfying explanation for the delay. There was a lamentable lack of urgency in the Home Office and on the part of Ministers in bringing the issue before the House and getting it sorted out. Given that it has now been brought before the House, I hope that we shall finally sort the issue out tonight.
I was going to refer to some of the points that have been made by Labour Members, not because I disagree with the Home Secretary's assessment of compatibility, but to test it. It is clearly in the interests of the House to be able to be confident in the assertions that Ministers make when we pass legislation. The Home Secretary has asserted continually tonight, as he did yesterday, that, in his view, the provisions were not incompatible with the Human Rights Act 1998. Although I have heard much assertion, I have heard little argument. For example, I have not heard the Home Secretary's reasons for the reverse in the burden of proof.
It is significant that, in opposition in 1994, the Labour party opposed sections 16A and 16B, and that the noble Lord Williams of Mostyn, now Minister of State, Home Office, and a former chairman of the Bar, gave as his reason for opposition at that time his assessment that the provisions of sections 16A and 16B violated ECHR considerations. I am not saying that I agree with that 1391 assessment—clearly, we did not at the time—but I should like the Home Secretary to put on the record, so that we may have some authoritative statement rather than assertion, why he considers that those contentions are not valid.
Last night, we were clearly told—I admire an interpretation of Hansard that could come to another view—that there was no urgency because other measures were on the statute book which would protect us should an offence arise under the provisions. The Home Secretary should now be frank with the House and say that what we were told was wrong, because he would not be here reintroducing the provisions if he believed that he already had adequate coverage under other parts of the Act.
We will support the Government in putting right the mess that they have made. It is not the first time that inattention to detail has resulted in problems for the right hon. Gentleman. It is not so long since a report was issued in which nobody had apparently noticed that the names of sensitive witnesses were still included. I would ask him, as a general question, although not without some sympathy, what he is doing to get a grip on the way that detail is handled in his Department.
§ Mr. Paul Stinchcombe (Wellingborough)
Thank you, Mr. Deputy Speaker, for allowing me to make a short contribution in this important debate. I declare at the outset an interest as a barrister who practised in human rights law before the election. I spoke in support of the renewal of the prevention of terrorism measures after my election, and on Second Reading of the Human Rights Act 1998.
When I spoke in the first of those debates, I had missed entirely two points that give rise to these proceedings today. I had not anticipated that any provisions had not been renewed and I certainly had not anticipated that it was arguable that those provisions were in breach of the ECHR and, therefore, in breach, in certain limited respects at least, of the Human Rights Act which we would shortly be introducing.
It is now clear that those provisions are arguably in breach of the ECHR, and it is also clear that the arguments are far from idle ones. They command the support of the Lord Chief Justice and, not just in muted terms, but in firm terms, he says that the provisions blatantly and obviously undermine the presumption of innocence. In so saying, he relies not just on his own judgment, but on authorities from abroad, including an authority from the Chief Justice of Canada and from a judge of the South African constitutional court.
Whether the Lord Chief Justice be right or wrong, in the face of that judgment, I find myself uncomfortable in coming to the House today and being asked to support the reintroduction of exactly the same provisions. I say that for these reasons. First, I have simply not had the benefit of the argument that the Lord Chief Justice had when he came to the conclusion that this was blatantly and obviously undermining the presumption of innocence. Secondly, an appeal is imminently to be heard in any event. Thirdly—a point that I raised by way of intervention—my right hon. Friend is today, before the appeal, coming to the House. He is not saying that he accepts that his measure is incompatible with the ECHR 1392 and asking us to legislate in any event. Rather, he is simply saying that he has heard a judge say that it is incompatible and that he disagrees. That is not the way forward and not the way that the Human Rights Act anticipated would be the way forward.
We could wait and avoid that situation. That would enable the Home Secretary to come to the House in a few weeks and say, "I was right all along. Our highest domestic court agrees with me." Alternatively, he could say, "I disagree with the highest court, but we have enacted to protect the sovereignty of Parliament by the Human Rights Act." As matters stand, I would find those positions infinitely more comfortable than the position I am in today.
§ Mr. A. J. Beith (Berwick-upon-Tweed)
The reason why my right hon. and hon. Friends and I feel that this matter could be brought before the House with a sense of urgency today is that Parliament's intention was frustrated by an error, and Parliament ought to have an immediate opportunity to restore the law to what it thought it had passed, without prejudice to the continuing argument over the compatibility of part of what we are passing tonight with the European convention on human rights.
I say "part of" what we are passing, because no one has challenged sections 16C and 16D in terms of their compatibility with the European convention. If the justification for action was an error, it would be slightly perverse not to restore the error as a whole. By restoring only part of it, on the grounds that certain provisions were in dispute in the courts in terms of their compatibility with the convention—although others were not—we would be selecting that part of the draftsman's error we were prepared to correct. That would not be a logical way of proceeding.
I say that without prejudice, in every sense of the words. It is without prejudice legally and, in more general layman's terms, without prejudice to the ultimate resolution of the question of compatibility by the case that is now proceeding in the courts. The Home Secretary did not complete the picture when he suggested what would happen if the Government continued to disagree on compatibility. After the issue has gone to Strasbourg, and if it is still found to be incompatible, there will then be created an obligation on Parliament not merely to consider defying Strasbourg by saying, "We do not like this and, in the national interest, we will not do it", but to pass legislation that becomes compliant. The end of this road is not potential defiance—we must seek compliance—but to follow a Strasbourg Court decision.
Those of us who are keen supporters of ECHR legislation hope that it will not often have to come to that. We hope that this House, on the basis of its initial consideration of proposed legislation, will not pass things that are not compliant, and that things that are found to be non-compliant will be changed fairly quickly. I shall refer to how we deal with that point in due course.
I raised with the Home Secretary yesterday a formal question, to which he gave an affirmative answer, about whether he would furnish a certificate of compatibility—as he would be obliged to do if this were primary legislation—if required to do so. He said that he would. I am bound to wonder what quality of advisers the right hon. Gentleman has if they can give that advice, when the 1393 Lord Chief Justice has said otherwise in relation to the two sections. However, the Home Secretary seems persuaded and—as the legal proceedings are not over—he and the Government are entitled to put their case. We shall be interested to see what that is.
This point raises the question of what we shall do with the certificates, when Ministers issue them for future Bills, if they come out in a form that is already in dispute with what the Lord Chief Justice thinks of the law. The Lord Chief Justice's opinion is not final, but he is obviously a high-powered legal adviser. The fact that the Home Office thinks differently gives me cause for concern. Tonight, we are trying to put the law back to where Parliament thought it had left it in terms of the court case to resolve the compatibility question.
The procedures tonight call to mind the high risk of error. The Home Secretary misunderstood my question to him yesterday. He thought that I was implying that this error had resulted from the hasty way in which some of the proposed legislation had been treated. That was not my point. My point was that we have so often legislated in this area with unseemly haste that we run a high risk of errors of this kind. If we can do that on occasions when legislation has been dealt with properly and at greater length, the risk of doing so when we legislate in a hurry must be high indeed.
I call to mind the 1996 measures that created the cordon provisions, which were rushed through in a day or so, and the Criminal Justice (Terrorism and Conspiracy) Act 1998, which was rushed through in a matter of days, even though its provisions extended far beyond the purposes of terrorism. In fact, they have created an area of law which is subject to annual review. As far as I am aware, the Home Secretary still has not announced a reviewing mechanism for those parts of the Act that are not terrorist related. That illustrates the danger of rushing into legislation.
Usually, there are powers that can be used, as the Home Secretary said, but the legislation being introduced is intended to provide the police and other authorities with a readier instrument to deal with a difficult situation. In my experience, the sense of urgency has not usually proved justified, but the powers have often proved useful.
The use of the cordon power on more than 80 occasions by the Metropolitan police suggests that there was some purpose in enacting it, and the difficulty that they were having with the possession of materials intended for terrorist purposes, scattered around lock-up garages in various outskirts of the capital, shows that there was a need for some of the other powers.
The right hon. Member for Bridgwater (Mr. King), whom I greatly respect and with whom I have often worked, is pushing the argument a bit far in suggesting that the Government were wholly irresponsible for allowing some days to pass while they sorted matters out. There were provisions on the statute book that could be used. Indeed, they were on the statute book for most of the time that the previous Government were in office, when they did not consider it necessary to introduce provisions in this precise form.
It is appropriate to restore the law to what it was, partly because of the usefulness of the provisions and partly because Parliament thought that they were there all along. 1394 If there were no means of challenging a possible incompatibility, I would not advise my right hon. and hon. Friends to support the motion, but there is a court procedure to be followed and the whole of the legislation is, rightly, under review.
Temporary provisions and occasional "recess Acts", enacted either on the very eve of a recess or in a recall, have had to be reviewed. They have been the subject of a consultative paper, in response to which there have been criticisms of sections 16A and 16B, which I hope that the Government are considering. I would like the Government to make it clear that the consultative process, the proposal phase of which was completed in March this year, will come to reasonably early fruition.
What we enact tonight will be on the statute book only until next March. When we are presented with a renewal decision at that time, we should know where we stand on the review and the enactment of permanent legislation.
Because of an error of which Parliament was unaware—I take some satisfaction from the fact that all the lawyers on all the Front Benches in both Houses failed to spot it—there has not been on the statute book a provision that Parliament thought that it had made. The problem that some of it is being contested in the courts for its compatibility with the European convention would not be resolved by our choosing not to correct a part of the error. I would rather that the powers remained in place and the legal challenge continued, with the review process proceeding apace, so that we can have carefully drafted permanent legislation at the earliest opportunity.
§ Mr. Chris Mullin (Sunderland, South)
I share the discomfort expressed by my hon. Friend the Member for Wellingborough (Mr. Stinchcombe) about the provisions. I entirely accept the Government's right to do what they are doing, but it runs against the spirit of the human rights legislation that we are in the process of enacting and gives an inauspicious signal for the future, especially when the Lord Chief Justice is opposed.
Others are also opposed. The right hon. Member for Maidstone and The Weald (Miss Widdecombe) mentioned the Home Office Minister, Lord Williams of Mostyn, who is a distinguished Queen's Counsel. In his previous incarnation as Labour home affairs spokesman in the House of Lords, he was very outspoken on this subject. He said that sections 16A and 16B werefar too harsh and draconianand said:If we condemn our citizens to the possibility of 10 years' imprisonment on the basis of reasonable suspicion … we are in serious danger of giving terrorism a victory that it would not otherwise achieve."—[Official Report, House of Lords, 7 June 1994; Vol. 555, c. 1208–09.]So it is not only the views of the Lord Chief Justice that we have to take into account, but those of someone who is now a Minister of State at the Home Office. Even if we do not take the Lord Chief Justice seriously, we should take Home Office Ministers seriously.
We should bear in mind the strong criticisms that have been made when we review this legislation. As the right hon. Member for Berwick-upon-Tweed (Mr. Beith) said, an overall review is being carried out and that may provide the opportunity to put it right. I feel very uneasy, as I know many others do, about doing away with the 1395 presumption of innocence, and I am unconvinced that it is necessary in the cause of fighting terrorism. I am as keen on catching terrorists as anyone else, and I have had better luck in finding them than some of those whose job it is, but I do not believe that 16A and 16B will do much to help. Finally, for the record, I ask the Home Secretary to confirm that, when the Government appeals on 19 July against the ruling by the Lord Chief Justice, they will appeal against both 16A and 16B.
§ Mr. Tom King (Bridgwater)
The title of the order—the Prevention of Terrorism (Temporary Provisions) Act 1989 (Revival of Parts IVA and IVB) Order—describes accurately the bizarre situation we are in. In case it is thought that I am being ungracious to the Home Secretary, I point out that I applaud the fact that we are here tonight. The action that we are taking is correct. It is very important that the order is approved, and I hope that it will be. I am also grateful to the Home Secretary for responding to the request that I made last night that we should give a timetable of events since the information first became available to the Government, and I shall have some questions to ask about that.
I shall not enter into the argument, which the hon. Member for Sunderland, South (Mr. Mullin) made, about whether we need the powers, because the Home Secretary has answered that, and we have the benefit of the report by Mr. Rowe to the Home Secretary as recently as February 1999, which made clear his views that the powers should be retained. Unfortunately, the comments made by the Leader of the House—in what I recognise was a difficult situation for her—did not do the House much credit, because this is a serious matter. Her answers were not especially helpful. The information that I have from the police is that the powers are important, for precisely the reason that the Home Secretary gave this evening.
The issue is not only how many people were charged and convicted, but how many were arrested under the power and what deterrent effect it has had. The Home Secretary is a lucky man, because those 86 cordons that were illegally imposed might have led to some difficult situations. There will be a bill to be paid in respect of those unlawfully detained, but it could have been much higher.
I listened carefully to the Home Secretary's comments about the timetable of events. I would be grateful if, when he winds up, he would clarify some points. The Home Office heard about the problem from the Law Officers' Department, which faxed a copy of the article to the Home Office on 26 May. When did the Law Officers first read that article? It took five days to decide to ask the Law Officers' advice and a further 16 to 17 days to get that advice.
I do not know whether the Law Officers regarded it as a serious matter or simply as part of the daily dross of their usual responsibilities, such as clearing up Home Office mistakes or clarifying problems in drafting. Perhaps they thought that that would work on it when they had the opportunity. However, we are entitled to an explanation as to why it took so long for them to do so.
We understand that the Home Office and parliamentary draftsmen will always be with us, and that, from time to time, they will make some pretty big howlers. My right 1396 hon. and learned Friend the Member for Folkestone and Hythe (Mr. Howard) has had to face some of the consequences of that possibility. One of the most important requirements of Ministers is to have good antennae and a good sense of smell, so that they can detect problems before they happen. I thought that the Home Secretary was the one Minister in this Government to have those qualities, so I am all the more surprised by what has happened.
I think back on my experience in government, under Margaret Thatcher. If I had had to tell her that we had forgotten to include two key elements in the prevention of terrorism legislation, and that, for a month, I had not wanted to press the Law Officers too hard because they had a lot on their plate, I can imagine her reaction only too easily. No Home Secretary under Margaret Thatcher would have survived it.
To avoid misrepresentation, I assure the Home Secretary that I am not calling for his resignation. However, I find the situation that has arisen absolutely incredible. I have had no satisfactory explanation as to why requirements considered essential by Parliament were accidentally omitted. The right hon. Member for Berwick—upon—Tweed (Mr. Beith) said that Parliament had wanted those requirements included in the legislation because they were a necessary bulwark against terrorism, but nothing was done for a month after their omission became known.
The Law Officers are not present just now. Perhaps they are seeking advice—a wise precaution, if I may say so. I fail to understand their response. Surely any responsible Minister would have sought urgent advice from them and would have expected it on his desk the following morning. The Home Secretary knows well both the House and the attitude of all opposition parties with regard to prevention of terrorism, but, last night, the Leader of the House suggested that it was possible that the opposition parties would have considered it an affront to Parliament if the Home Secretary had remedied the mistake at the earliest possible moment.
The Home Secretary discovered the answer to that proposition as soon as he made his statement yesterday. It was that the mistake had to be rectified straight away. In his statement today, the Home Secretary has failed to explain how what I have called "this dereliction of duty" occurred.
The Home Secretary is a very lucky man. The police regard the two powers involved as important instruments in the fight against terrorism. What would have happened if incidents such as those that occurred in Manchester or Warrington had taken place again? What would have happened if there had been another terrorist outrage in this country?
For example, some time ago, there was an attempt, involving many people, to close down the power system in the City of London by attacking electricity substations. Let us suppose that a similar case arose, and that people had been arrested on a strong suspicion of being on their way to commit that terrorist offence, given that they were in possession of material and articles appropriate to the act. Even in such circumstances, the Home Secretary would have been required to tell the House that those people had been released because of a recently discovered 1397 omission in the law whose rectification was still being considered. I suggest that such an admission would have had to be accompanied by his resignation.
§ Mr. Beith
The right hon. Gentleman goes a little over the top by implying that the police would have sat back, saying that there was nothing that they could do. The police would have used existing powers, albeit with the weakness of a lower chance of ultimate conviction and the likelihood of a lower sentence on conviction. However, the right hon. Gentleman is wrong to imply that the police would have done nothing if they had been in possession of the facts that he has outlined.
§ Mr. King
The right hon. Gentleman may take his answer from my right hon. Friend the Member for Maidstone and The Weald (Miss Widdecombe) and from the Home Secretary who said—as he implicitly did earlier—that the powers are necessary. With my experience of those matters, I know the difficulties of finding sufficient grounds for arrest, or of establishing charges against terrorists, and I know that the right hon. Gentleman understands the problems.
It is remarkable that we should have remained without the powers—accidentally but for a long time at first, and subsequently because of a failure to correct the error. The right hon. Gentleman earlier paid me a nice compliment, and I can return it by saying that he is honourable and genuine. He knows that, if there had been a major terrorist incident while the Home Office was aware that the powers were faulty, but while nothing had been done, there would have been a major political scandal.
I do not seek such scandal. I am too committed to fighting terrorism from any quarter. Democracy faces many difficulties in that fight, and we must be properly equipped. I am seriously worried by the way in which this matter has been handled. Whether the error lies with Ministers or with the Law Officers, it lies with the Government. We are owed an adequate explanation.
§ 8.3 pm
§ Mr. Michael Howard (Folkestone and Hythe)
My right hon. Friend the Member for Bridgwater (Mr. King) made several powerful points, with which I agree and which I shall not repeat. The Home Secretary told the House last night that the provisions are a serious part of the armoury against terrorism. As I was responsible for their introduction, the House will be unsurprised to hear that I agree. I welcome their restoration to the statute book, and I thank the Home Secretary for responding to my express invitation to reconsider the timetable that he had originally had in mind for putting the powers back where they belong and where they represent a serious weapon against terrorism.
I have one point to make about timing, which my right hon. Friend analysed in detail. I intend no excessive loyalty to my former Department in saying that, in the timetable provided by the Home Secretary, the 17 days that it took the Law Officers to respond to the Home Office request for advice shriek for our attention. That is an astonishing period, and I hope that the Home Secretary will discuss that point in his reply.
I listened with great interest to the points put to the Home Secretary by his right hon. and hon. Friends. Indeed, when he made a point of referring with some 1398 emphasis to the official Opposition, I was not at all sure whether he was using that term to distinguish us from the Liberal Democrats or from those behind him. Those points and the response that the Home Secretary made to them illustrate the constitutional mess that one gets into if one introduces the kind of legislation that the Home Secretary has introduced in the form of the Human Rights Act 1998. I regret to say that I believe that the country as a whole, and perhaps even the Government, will live to regret the day when they decided to put that legislation before the House.
Yesterday, I expressed some sympathy for the Home Secretary's predicament. I express further sympathy with him today for the disputes that have arisen between him and the judiciary. My sympathy will not do him any good at all, but he will understand that I very much feel for him as he makes his way. The Lord Chief Justice has ruled against him. He is now in the process of appealing to a higher court. It all has an incredibly familiar ring about it, but I am on the Home Secretary's side. It will not do him any good at all, but I wish him well in all those battles.
§ Audrey Wise (Preston)
I know that the right hon. and learned Gentleman is enjoying this enormously, but it might do no harm to remind him that some of us on the Labour Benches remember the considerable difficulties that he got into with the law on lots of occasions as Home Secretary. So, a little humility would not come amiss.
§ Mr. Howard
I rather thought that that was the point that I was making. I am sorry if it escaped the hon. Lady.
I welcome what the Home Secretary has done tonight. I welcome the fact that he has brought the legislation to the House. As he said last night, it is an important part of our armoury against terrorism. It is needed in the fight against terrorism, and vigilance continues to be necessary in the face of the threat of terrorism. That is why the House should pass the measure that the Home Secretary has brought before us.
§ 8.7 pm
§ Mr. Peter Brooke (Cities of London and Westminster)
I shall not rise to the level of my right hon. Friends who have preceded me in speaking from the Opposition Benches, but I will say a brief word. I can certainly declare an interest. For ministerial sins of omission and commission, I have never come remotely near being a member of the Home Secretary's club, although I have some vicarious experience. I remember my father's experiences and I certainly feel sympathy for the Home Secretary in the predicament in which he has found himself.
These are serious matters. There was a trivial example in yesterday's proceedings of how a slip of the tongue can get us into difficulties. The Home Secretary, in response to the right hon. Member for Berwick-upon-Tweed (Mr. Beith), said of the 1996 Act: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."—[Official Report, 23 June 1999; Vol. 333, c. 1174.]He clearly meant part IVB of the Act, which relates to cordons and parking restrictions, as opposed to part IVA, but the wording that he used eluded the eye of whichever 1399 member of his private office was sent to check the record. Therefore, we are left with a thing that is mildly misleading in the record.
In terms of sections 16A and 16B, I have a question about the police powers on the statute book that would have protected us during the period since 22 March 1998. I have searched both what the Home Secretary said yesterday and what the Leader of the House said yesterday evening and I cannot detect any precise reference. I realise that lawyers who have participated in the debate may know precisely what powers would have been substituted for sections 16A and 16B, but it would be helpful for the purposes of historians to have on the record what they would have been.
On sections 16C and 16D, there was an exchange at column 217 on 2 April 1996 in discussing the Prevention of Terrorism (Additional Powers) Act 1996 in which my right hon. and learned Friend the Member for Folkestone and Hythe (Mr. Howard) acknowledged to the hon. Member for North Antrim (Rev. Ian Paisley) that there were powers under common law on cordons and parking restrictions, and that the legislation that we were passing was simply intended to strengthen them.
I have an incidental question that seems relevant, given that the powers that we are reviving provide for 14 days initially, with a power for a 14-day extension for cordons and, I think, parking restrictions. It would be interesting to know the longest period for which the powers were required on the 86 occasions that the legislation has been used since 22 March.
I have a minor complaint that is not remotely worthy of a point of order. Events such as those with which we have been dealing in the past 24 hours highlight the utility of the library immediately behind me in the No Lobby, which contains Hansards and Bills. I make no complaint, and I do not know who has offended by removing them, but all the Bills for 1996 are absent from the No Lobby. I understand that the sessional index for 1996–97 has not yet been printed but those for 1994–95 and 1995–96 are absent. Although they are available in other parts of the Palace, it slows things down if we cannot make use of them in trying to research something in a short space of time. It is because of their absence that I ask the Home Secretary one remaining question on sections 16C and 16D, which are now Part IVB.
The hon. Member for Thurrock (Mr. Mackinlay), at the time of the 1996 Act, asked about the royal parks police. Section 5 of the 1996 Act, which we are renewing today, specifies that the ranks that can trigger a cordon asany police officer of or above the rank of commander of the metropolitan police, as respects the metropolitan police district".The same provision is made in respect of the City of London police and it also specifiesany police officer of or above the rank of assistant chief constable of a force maintained for any other police area".Those powers can be renewed by an officer ranked as a superintendent or higher. What rank in the royal parks police is necessary? Such parks are exactly the sort of place where such a cordon or parking restrictions might be required.
§ Mr. Straw
I will seek to answer the points that have been raised as best I can. I am grateful to the right hon. Member for Cities of London and Westminster 1400 (Mr. Brooke) for pointing out what appears to be a drafting subtlety in the Hansard record where A and B were transposed. That was a mocking point against myself, given the original description of the error that has led us here.
I shall go through the main points. First, the right hon. Members for Maidstone and The Weald (Miss Widdecombe) and for Bridgwater (Mr. King) asked about the time taken to bring the matter before the House. It is obviously a serious matter and we dealt with it as quickly as we could. Many articles make assertions. In the journal in question, the author of the article hit the bull's-eye but it is not a learned journal with the highest reputation. It is not avidly read on a wide scale, even by criminal law practitioners, so much so that the lawyers for the defendants in the case never took that point at all. Had they done so, the matter would probably have been resolved by the courts, rather than by this place.
§ Mr. Howard
Did the Home Secretary take the elementary precaution of checking that the editor of the publication is not one of his constituents?
§ Mr. Straw
I can guarantee that. I know all my constituents; they are engaged in higher occupations.
Many articles make many assertions. This article was drawn to the attention of the Law Officers; the member of that Department who read it made the judgment that it raised a serious point. It then came to the Home Office and my officials considered it with care. It was then considered by the Law Officers with great care. The right hon. Member for Bridgwater asked for details. For reasons that he will fully understand, such detail is not normally given about the work of the Law Officers. However, such was the care taken that the Law Officers consulted not one experienced counsel, but two separate counsel about the matter, because they—and we—wanted to be as certain as possible that the opinion that those parts of the Act were inoperative was accurate.
When issues arise, the Law Officers and departmental legal advisers may take an initial view and the matter goes to counsel for careful opinion. They might then arrive at a view that is different from that which was taken originally. There would then be nothing to bring before the House. That could easily have been true in this case. We had to achieve a balance—I think that the balance was right, but I understand the anxiety of the right hon. Member for Bridgwater—between dealing with the matter as quickly as possible and not dealing with it in haste and arriving at a judgment that turned out to be inaccurate. The House would not have thanked us if, on the basis of that article, we had rushed in with an inadequate consideration of what may be a very discrete issue, but one that is also rather complicated. It might have turned out that we had wasted everyone's time because we had acted on poor advice. I wanted to be certain that the advice that we received was robust. Having received that advice, we did everything necessary in order to come back to the House as quickly as possible.
Although I could have dealt with the matter in a written question, I was clear that it was of such importance that I should make an announcement to the House. The other factor that we had to take into account—it was a matter of one or two days—was ensuring that we were clear as to the decisions of the Director of Public Prosecutions in the case of the prosecution that would then be rendered otiose.
1401 My hon. Friend the Member for Wellingborough (Mr. Stinchcombe) and other hon. Members asked about the position of the European convention on human rights. The right hon. Member for Maidstone and The Weald asked me why we took a view that was different from that of the Lord Chief Justice.
§ Mr. Tom King
The Home Secretary has gone to some trouble to respond to my point and it is only courteous to say so. However, I do not think that I am the only Member of the House who finds his explanation quite unconvincing. It does not seem to advance us at all. Is it not correct that the point was that the renewal and the continuance related to parts I to V inclusive? However, when part II was deleted, the fact had to be mentioned that it was parts I, III, IV and V, but parts IVA and IVB also had to be mentioned. It was as complicated as that; I cannot understand why it took 16 days to work it out.
§ Mr. Straw
I am sorry that the right hon. Gentleman does not accept my explanation. I had no interest whatever in delaying the matter. I recognised the urgency of the matter and paid personal attention to it. I wanted the advice as quickly as possible. We received that advice as quickly as the Law Officers could produce it. However, I have also explained that, if it had been an obvious point, some of us might have spotted it. No one spotted it—not even the best legal brains in the House; not the Ministers responsible, including myself. No one spotted it—except the author of the article. I have done my best to satisfy the right hon. Gentleman. I am sorry that I did not succeed. We acted as fast as we could in the circumstances.
In the time available, I shall deal with some other points raised in the debate. One relates to the question of incompatibility and why I have come to my present view. However, before I deal with that point, I must pick up on the comments of the right hon. and learned Member for Folkestone and Hythe (Mr. Howard), who tweaked me about the fact that Home Secretaries occasionally take a different view from that of the courts. I did not particularly want to make this an ad hominem point, but I have the highest regard and respect for the Lord Chief Justice, Lord Bingham—and I am sure that my opinion is shared universally in the House.
The Lord Chief Justice would be the first to say that he is not the supreme court of the land, nor is he the sovereign Parliament. I can think of many occasions when he has come to a view that is different from that of the Secretary of State for the Home Department of the day, and an equal number of occasions when decisions of the court of appeal and the divisional court—in which the then Lord Chief Justice has sat—have been overturned by the Appellate Committee.
I can think of a current extradition case where the view of the divisional court was overturned by the Appellate Committee of the House of Lords, and the Appellate Committee then came to a different view from that of a previous Appellate Committee which heard the matter only a month or so before. These matters are not over until they are over.
I was asked for the reasons why we have come to the view that the provisions are compatible with the European convention on human rights. This should not be viewed 1402 by the Appellate Committee of the other place as a skeleton argument that will be advanced there; this is simply my explanation. There are many provisions in our law where the burden of proof is reversed. Article 6.2 of the convention does not prohibit absolutely a reversal of the burden of proof: it requires instead a balancing of the interests of the defendant and those of society. The jurisprudence of the European Court of Human Rights recognises that, where reasonable and justifiable, the state may impose a burden of proof on the defendant.
I remind all my hon. Friends who have practised in the lower courts that we often had to wrestle with this question when those whom we represented or prosecuted were charged with an offence under section 1 of the Prevention of Crime Act 1953. Those of us who once practised in those courts will remember that section 1(1) of the Act states:Any person who without lawful authority or reasonable excuse, the proof whereof shall lie on him, has with him in any public place any offensive weapon shall be guilty of an offence".That was a decision by Parliament that has stood the test of time. For good reasons—and in rather interesting parallel circumstances—it was decided that the burden of proof would rest with the defendant rather than with the prosecution.
My hon. Friend the Member for Sunderland, South (Mr. Mullin) asked whether, in the matter that will go before the Appellate Committee, section 16B will be appealable as well as section 16A. That has not been determined finally. In any event, the issue before the court amounts to the same thing. In practice, I am advised that it amounts to a distinction without a difference. The divisional court took no issue in respect of sections 16A and 16B.
The right hon. Member for Berwick-upon-Tweed (Mr. Beith) asked for some details about when we propose to introduce new legislation. It is likely that the present Prevention of Terrorism Act will have to be renewed next March. We will be very careful to ensure that the renewal orders are in order—although that is almost an invitation to the gods to ensure that they are not. It is probably an unwise promise to make—particularly from this Bench.
Without anticipating the Loyal Address, I have made it clear that it is our intention to lay legislation before the House and the other place to put on the statute book permanent counter-terrorist provisions, which will do away with the difficulties that the right hon. Member for Cities of London and Westminster (Mr. Brooke) faced in finding the various bits of legislation.
The right hon. Member for Bridgwater asked what would have happened if terrorist incidents had taken place and the provisions had not been in force. I have never disguised from the House the fact that I regarded the matter as an error with potentially serious consequences. However, it is important to put it into perspective. In the circumstances of a major terrorist incident, such as the right hon. Gentleman described, charges under sections 16A and B would be unlikely to arise. The charges would relate to causing explosions, conspiracy to cause explosions and so on.
With regard to the cordon powers, a point raised by other right hon. and hon. Members, until those powers were taken in the Prevention of Terrorism 1403 (Additional Powers) Act 1996, the police used certain common law powers, as I made clear yesterday, and they would have used those powers again.
With one exception—the issue of the royal parks police—I believe that I have answered each of the questions raised by right hon. and hon. Members. The police do not have powers under section 16D. Anti-terrorist police provision is provided by the Metropolitan police throughout the London parks. The royal parks are not a cordon-free zone. That was anticipated by the draftsmen.
§ Mr. Howard
I am puzzled by one of the Home Secretary's answers, but the fault may be mine. He said that other powers were available to the police during the period when, as we now know, the powers that we are debating this evening were not available to them, but surely the police thought that those powers were available to them? Therefore the police would have used not the other powers—less satisfactory, but available—but the powers in question.
If there had been the threat of a major terrorist attack or plans for such an attack, in the course of which the police would normally use these powers, and if the powers had been used in good faith by the police, not knowing that they were not valid, those planning the major terrorist attack would have had to be released. That is the point made by my right hon. Friend the Member for Bridgwater (Mr. King).
§ Mr. Straw
I do not disagree with the right hon. and learned Gentleman's point. I was responding to a rather different point that the right hon. Member for Bridgwater had made with regard to major terrorist incidents. I have never disguised the fact that, although the powers are not used often, the omission is serious. That is the reason for the debate. The right hon. and learned Gentleman knows, as the right hon. Member for Berwick-upon-Tweed pointed out, that there are many other powers on the statute book. This has been a bipartisan debate, but if the powers were essential when we required anti-terrorist legislation, why were they not on the statute book until—
§ Mr. Howard
There is a simple answer. The powers were put on the statute book because I asked the police 1404 whether they needed to have their armoury strengthened in order to counter terrorism more effectively. That is why they were put there.
§ Mr. Straw
I know that. I remember the debate and I supported the right hon. and learned Gentleman, with the usual active support from the Back Benches.
My last point concerns the Human Rights Act 1998. The debate has been an interesting excursion into the kind of issues that may arise under that Act. The right hon. and learned Gentleman said that the country would live to regret the day that it put the legislation on the statute book. The right hon. Member for Maidstone and The Weald said the same.
However, that was not the view of the official Opposition when the Act came through the House. On Third Reading, they said:Although we have opposed aspects of the Bill"—which were put in proper order as a result of a good Committee and Report stage on the Floor of the House—we now wish it well and hope that it will be implemented effectively, to the benefit of the citizenry as a whole."— [Official Report, 21 October 1998; Vol. 317, c. 1362.]On 21 October 1998, the Opposition wished the Human Rights Act well.
Perhaps that is another change of policy in a matter of a few months, not as a result of a change of leadership of the Conservative party, which as far as I recall has stayed the same, but a change of opinion among members on the Front Bench. We shall live and learn.
I thank the House for the way in which it has dealt with this issue.
§ Question put and agreed to.
That the draft Prevention of Terrorism (Temporary Provisions) Act 1989 (Revival of Parts IVA and IVB) Order 1999, which was laid before this House on 23rd June, be approved.