Lords amendment: No. 19, after clause 117, to insert the following new clause—Defences—
.—(1) Subsection (2) applies where in accordance with a provision mentioned in subsection (5) it is a defence for a person charged with an offence to prove a particular matter.
(2) If the person adduces evidence which is sufficient to raise an issue with respect to the matter the court or jury shall assume that the defence is satisfied unless the prosecution proves beyond reasonable doubt that it is not.
(3) Subsection (4) applies where in accordance with a provision mentioned in subsection (5) a court—
(4) If evidence is adduced which is sufficient to raise an issue with respect to the matter mentioned in subsection (3)(a) or (b) the court shall treat it as proved unless the prosecution disproves it beyond reasonable doubt.
(5) The provisions in respect of which subsections (2) and (4) apply are—
§ Mr. Charles Clarke
I beg to move, That this House agrees with the Lords in the said amendment.
The amendment deals with anxieties that have been raised in this House and in another place about several of the Bill's statutory defences. The Government's view is that the Bill was already compatible with the European convention on human rights when it left this House. However, in order to provide reassurance whenever possible, we have tabled the amendment, which is not intended to alter the effect of the relevant provisions, but simply to set out in the Bill what we believe would be the effect of the provisions as originally drafted.
§ Mr. Simon Hughes
On a small point of order, Mr. Deputy Speaker. I am not mortally offended, but the Annunciator shows that a Mr. K. Hughes of Doncaster, North spoke between 17.43 and 17.45. I do not believe that he did. [Interruption.] The Labour Deputy Chief Whip indicates to me that he would be troubled to hear that he had spoken. Colleagues on the Labour Benches appear surprised that he has spoken. As it was one of my briefest contributions, I would not want it attributed to someone else.
§ Mr. Deputy Speaker
The Annunciator is now correct. That shows the power of the Chair to effect such changes very rapidly.
§ Mr. Hughes
There are many places that I might want to represent, but Doncaster would be one of the more controversial options, which I am glad that I do not have to consider.
The Minister introduced amendment No. 19 briefly, but I am sure that he acknowledges that it is an extremely important change—the other most important change that was made to the Bill in another place. We held much debate on burden of proof on Second Reading, in Committee, on Report and on Third Reading. The amendment was tabled in another place after great anxiety had been expressed inside and outside the House about the original proposal on burden of proof. At last, the amendment changes the original proposition of reverse 662 burden of proof. It will now be sufficient for a defendant to raise an issue; after that, the prosecution will again have to prove matters beyond reasonable doubt.
The amendment is highly significant in criminal law terms. It is important because it returns to grave offences the consideration that it is for the prosecution to prove, not for the defence to disprove. I understand the argument that it may be appropriate to ask the defence at least to put something on the table to return the burden of proof to the prosecution. That is not inappropriate in the context of terrorist legislation.
The amendment is also important because there was controversy about whether the original proposals were compatible with the European convention on human rights. The Government claimed that they were, but strong legal advice from outside the House suggested that they might not have been. We will, thankfully, not have to test that because the Government have made a concession.
I want to make another point, which is more question than observation. In the context of burden of proof, we asked about all the clauses under which specific arrangements for Northern Ireland would continue. I should be grateful if the Minister of State, Home Office, or the Minister of State, Northern Ireland Office—to give him a walk-on part—through his colleague in the Home Office would tell us the latest timetable for the Government's plans to phase out the Northern Ireland provisions.
The Minister was courteous and helpful in Committee, and he outlined the Government's plan. Clauses 65 to 113 remain controversial. Under them, extra powers are still granted for Northern Ireland. Those powers are given an extended life, but the Government did not intend them to exist indefinitely. I ask about that because in some clauses the evidential burden will not revert to the normal position under English law. Amendment No. 19 will do that for other provisions.
Controversial clauses remain on the so-called Omagh provisions, although I understand that they have never been used. They were introduced almost two years ago when the House was recalled after the Omagh bombings. Again, it would be helpful if the Minister could tell us whether I am right in thinking that they have not been used. Although those controversial provisions remain, the burden of proof matter has been dealt with and a less controversial form of words has been used.
We welcome that change; it represents a significant improvement, and many people have been encouraged by the fact that the Government have been willing to listen and have agreed to make a similar change in other Bills, including the Regulation of Investigatory Powers Bill. We hope that the Northern Ireland provisions will be phased out speedily, as has been suggested, and that the Bill will become more clearly compatible with the European convention on human rights so that the rights of the individual are defended while the interests of the state are safeguarded.
§ Mr. Lidington
I confess that I am somewhat puzzled about the importance of the amendment. I thought that I heard the Minister say that it was designed to clarify the Bill, yet the hon. Member for Southwark, North and Bermondsey (Mr. Hughes) says that it represents an important shift in the evidential requirements of the legislation. Perhaps that matter could have been sorted 663 out at the appropriate Cabinet Sub-Committee before this debate. I hope that the Minister will spell out exactly the Government's view.
As a fully paid-up member of the non-lawyer tendency of the House, I am always grateful for the occasional interpolation of plain English into legislation. The amendment is helpful in making plain the assurance that the Minister repeatedly gave in Committee about the importance of the statutory defences included in the Bill. I hope that he will be able to tell us whether the amendment marks a shift in the evidential balance, or whether it is no more than an important clarification.
§ Mr. Charles Clarke
I have enjoyed these exchanges. The whole House, the whole country and, possibly, the whole world will know that this is a listening Government who listen to all proposals, and I am grateful to hon. Members for acknowledging that.
The powers under the Omagh provisions have not been used to date, but it is important that they remain as powers that can counter the terrorist threat. The Irish Government recently renewed their equivalent powers for 12 months. The hon. Member for Southwark, North and Bermondsey (Mr. Hughes) referred to the timetable. The situation is reviewed annually. The Government intend that the power should end as soon as the security situation allows, but such matters are security dependent and we must see how the situation develops. There is a time limit of five years, after which the powers will return to the House. I hope that that clarifies the specific points.
On the claims and counterclaims, which I always appreciate, about the importance and constitutional significance of the amendment, I shall repeat what I said earlier. It is the Government's view that the Bill was already compatible with the European convention on human rights when it left the House, although we saw the expensive and powerful legal opinions that were circulated that stated that the Bill was not. We are always interested in counsels' opinions, but we had our own views and certified that the Bill was, in our view, compatible with the ECHR.
In the light of the Kebeline case, we accepted that it would be helpful to make express provision for the burden placed on the defendant under the Kebeline provision to be evidential rather than persuasive. The new provision will apply not only to the Kebeline offence itself under clause 57, but to similar provisions in clauses 12(2)(a), 39(5)(a), 54, 58, 77 and 103, together with their equivalents in the transitional Northern Ireland (Emergency Provisions) Act 1996, which is retained under schedule 1.
I emphasise that the amendment is not intended to alter the effect of the provisions; it merely states what we believe would have been their effect as originally drafted. We want to clarify how we think the courts will interpret the provisions. That is reasonable, given that the aim is to produce as wide a consensus as possible for important legislation of this kind, and we were delighted to do so. I commend the amendment to the House.
§ Lords amendment agreed to.
§ Lords amendments Nos. 20 to 24 agreed to.