HL Deb 13 December 1999 vol 608 cc1-20GC

Monday, 13th December 1999.

The Committee met at half past three of the clock.

[The Deputy Chairman of Committees (Lord Ampthill) in the Chair.]

The Deputy Chairman of Committees (Lord Ampthill)

We begin our proceedings today with the Nuclear Safeguards Bill. Before I put the Question that the Title be postponed, it may be helpful to remind your Lordships of the procedure for today's Committee stage. Except in one important respect, our proceedings will be exactly as in a normal Committee of the Whole House. We shall go through the Bill clause by clause; noble Lords will speak standing; all noble Lords are free to attend and participate; and the proceedings will be recorded in Hansard. The one difference is that the House has agreed that there shall be no Divisions in the Grand Committee. Any issue on which agreement cannot be reached should be considered again at the Report stage when, if necessary, a Division may be called. Unless, therefore, an amendment is likely to be agreed to, it should be withdrawn.

I should explain what will happen if there is a Division in the Chamber while we are sitting. The Committee will adjourn as soon as the Division bells ring and will resume after 10 minutes.

Title postponed.

Clauses 1 and 2 agreed to.

Clause 3 [Identifying persons who have information]:

Lord Mackay of Ardbrecknish moved Amendment No. 1: Page 3, leave out lines 9 to 11 and insert ("have a duty to publish a statement of the fact that they have been made in such manner as will bring them to t he attention of persons affected by them").

The noble Lord said: I beg to move Amendment No. 1 and speak also to Amendment No. 2. Those two amendments effectively try to flesh out subsections (5) and (6) of this clause. Basically, given the seriousness of these issues and indeed, the punishment for infringing them—about which I do not complain because they are serious issues; people could be fined or imprisoned—it seems that we should go a little further in relation to the Secretary of State's duty to publish. We should do more than merely, arrange for a statement of the fact that they [the regulations] have been made to be published in such manner, and so on.

I suggest that we should be a good deal firmer than that and provide at there should be a duty to publish a statement of the fact that the regulations have been made, and to bring them to the attention of the persons affected by them.

Secondly, if a person is charged, a reasonable defence for him to offer would be that the Secretary of State had failed in his duty. Will the Minister explain how the Government envisage that those regulations would be made known to the people who are interested in them? Will it be through advertisements in the press or trade journals? How will it be done? We should spend a few moments just ensuring that any regulations produced by the Government are known to the people who are affected by them.

As the Bill is currently drafted, to "arrange for a statement" seems rather weak and it would be far better to impose a duty on the Secretary of State. I beg to move.

Lord McIntosh of Haringey

The rationale behind Clause 3(5) is to ensure that if any regulations are made under this clause, they are publicised in such a way that the persons to whom they apply will know about them. I shall answer immediately the question raised by the noble Lord about how they are publicised. By analogy, I am taking the Chemical Weapons Act 1996, which will be important for a reason that the noble Lord will recognise shortly.

The regulations which have been made under that provision are publicised by giving notice of their existence without full text in The Times, Daily Telegraph, the Financial Times, and the London Gazette. Individual copies of the regulations are sent to all relevant trade associations and we envisage that we shall do very much the same thing under the regulations under Clause 3 of the Bill.

The important point I want to make is that the wording is exactly the same as the corresponding provision in Section 23(3) of the Chemical Weapons Act 1996. When the noble and learned Lord, Lord Fraser of Carmyllie, introduced his measure in 1996—I am sorry that he is not in his place in the Chamber—he will recall that he said at col. 1368 on 30th January 1996, I therefore make no apology for the inclusion in this Bill of the new powers and regulations necessary to enable the Government to honour the United Kingdom's obligations under the covenant".—[Official Report, 30/1/96; col. 1368] Exactly the same argument applies in this case. The whole purpose of regulations under this clause is to get persons in the categories specified in the regulations to identify themselves to the Department of Trade and Industry Safeguards Office. This would not be achieved if the regulations were not widely known about, so in that sense the noble Lord is pushing at an open door. However, the reason for having such regulations in the first place is so that the Safeguards Office can find out about persons, whether individuals, companies or other bodies, who would not otherwise be known to the office. The Safeguards Office knows which category of people it needs to know about but it will not necessarily know the identity of each person in the category, and it is to them that the regulations are directed. Let me say that I see no distinction in the wording between "duty" and "shall arrange"; they both have the same effect.

It follows that as such regulations would be aimed at persons about whom the Secretary of State does not know, he could also not know where they are or exactly what forms of publicity are certain to come to their notice. The first amendment would place on the Secretary of State a duty which it will be impossible for him to be sure of fulfilling, and would require him to ensure that the regulations will come to the attention of everyone affected by them. However, as he will not know who will be affected by the regulations, the most he can do is work out what methods of publicity are likely to come to the attention of persons, which is what the Bill says. He cannot realistically be obliged to ensure that everyone affected by the regulation knows about them.

Subsection (5) as drafted, therefore, goes as far as it is realistic to go. It places a duty on the Secretary of State to ensure that the regulations are likely to be known about by anyone affected by them. Amendment No. 2 goes further and it would mean that no one could be convicted of failing to comply with regulations under the clause unless the regulations had been publicised by subsection (5). However, if subsection (5) is amended as Amendment No. 1 provides, it would have the effect that no one would have to comply with the regulations unless they had been brought to the attention of everyone affected by them. That would entirely undermine the regulations. Even a person who was aware of them could not be convicted if they had not come to the notice of someone else, however hard the Secretary of State had tried to give them wide publicity among the types of persons concerned. Therefore, I am afraid that I am unable to accept the amendments.

Lord Mackay of Ardbrecknish

I thank the Minister and, although he has not accepted the amendments—not to my surprise I may say—at least he has fleshed out what the Government see as their obligations under subsection (5). I am interested that "shall arrange" and "duty" are the same and I may store that away in my mind for the future. I should have thought that "shall arrange" is a little less weighty than "duty". However, I am pleased to hear how the Government will advertise the existence of these regulations. That is certainly worth putting on record. Perhaps I should also say that I am grateful to the Minister for publishing the draft regulations, as he did on the day of Second Reading. Thus he managed to shoot at least one of my foxes, quite adequately I thought. He will be pleased to hear that I shall not be doing a great deal of changing to the regulations, because they are quite technical and complicated as, indeed, is this field. I am, therefore, satisfied that this probe has established from the Minister how he intends to publicise these matters and they seem perfectly satisfactory to me. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 2 not moved.]

Clause 3 agreed to.

Clause 4 agreed to.

Clause 5 [Rights of access etc. for Agency inspectors]

Lord Mackay of Ardbrecknish moved Amendment No. 3: Page 5, line 6, leave out ("An Agency inspector may.") and insert ("If a justice of the peace is satisfied, on information on oath, that it is reasonable and necessary in accordance with the Additional Protocol for an Agency inspector to do so, he may issue a warrant authorising an Agency inspector to,").

The noble Lord said: With this amendment I will speak to Amendments Nos. 4, 8 and 11. I raised this matter at Second Reading. The Government answered it, and I understood the answer. I am also grateful to the noble Lord, Lord McIntosh of Haringey, for his letter in explanation. However, I am still a little concerned and I have therefore put down this amendment in order to further explore the matter. I will come to what I suspect will be the Minister's answer shortly.

In this country we are keen, and no one in opposition was keener than the noble Lord, Lord McIntosh of Haringey, to ensure that officialdom cannot go charging around, entering premises and entering homes, without some form of legal authorisation. Indeed, in Clause 4 of this Bill, as I said at Second Reading, officials of the Department of Trade and Industry may search premises for documents, including entering somebody's home. Increasingly, with e-commerce and the Internet, and material of this nature, some of which will be intellectual property and not actually bits of gear, I can see that the home may well be the place where the information exists, perhaps on a computer. Therefore, entering someone's home may well be the way to make sure that the Bill, as it stands, is actually obeyed.

Under Clause 4, however, before our own "home grown" officials can do so they must go to a justice of the peace, who they must satisfy on oath that they have a good case for entering premises, including houses, and searching for documents. That is a fundamental protection which is built into most of our legal position in this country.

However, in Clause 5 the officers of the international agency can go where they like without any regard to having to go to a justice of the peace to obtain a warrant. Indeed, it seems to me that if the Secretary of State's representative does not want to bother going to a JP, all he has to do is to persuade the agency's man or woman to go with him to take the lead. He can then enter the premises without having to bother a justice of the peace.

The Minister—and I understand this—in his defence both in the House and in the letter he sent to the noble Lord, Lord Wallace, and to me, pointed out that similar provisions were made under two previous Acts. I have no doubt that we shall hear about that, and I have no doubt that the words of my noble and learned friend, Lord Fraser of Carmyllie, will be quoted back to me. These words come from Section 25 of the Chemical Weapons Act 1996, for inspections under the Chemical Weapons Convention. No doubt the Minister will also tell me, as he did in the letter, that under Section 13 of the Landmines Act 1998, under the Ottawa Convention, such inspections can equally be done without a warrant.

It seems to me that we now have three international treaties, and agents of these international bodies—three in number—will be allowed to enter premises, search and do these other things, without having to go to a justice of the peace. I wonder how many more international agencies will come along, with objectives with which we all agree, who will want exactly the same powers in our country. I begin to be rather worried. I wonder whether, when we passed the Chemical Weapons Act 1996, and agreed to this to begin with, we would have been quite so happy. Would my noble and learned friend have been quite so happy if he had realised that, within four years, there would have been three such Acts on the statute book, and three such international bodies able to do things inside this country, to citizens of this country, which we do not allow our own people to do, for the same objectives? It seems to me that it is at least worth pausing in the Committee, and not just accepting the Minister's well-argued letter at its face value, and asking ourselves, are we quite sure? I know precedent is one of the great factors in the law and in Parliament, but sometimes we have to say: "Wait a minute, when we started on this road did we realise we would end up with so many cases of this nature?". That is the first thing we must ask ourselves.

This is the third Act to give an agency powers, as I said, to do things which officials of our own Government would not be able to do. The Minister said in his letter—and also in the House—that to accept the insertion of the words I want and to require a justice of the pcace to sign a warrant, would be a breach of the protocol we have already agreed.

The Minister said in his letter that, Agency inspectors must have a right of complementary access to confirm the completeness and accuracy of the information provided, subject only to the conditions provided for in the Additional Protocol itself". If "complementary access" means anything, is it not the complementary access we already have? And is not that access dependent on obtaining a justice's warrant? I do not see the problem, if it comes to it, of giving them complementary access.

The Minister goes on in the letter: There is no scope under the Protocol for further limits or conditions to be imposed on such access, so the UK is bound to ensure in its implementation of the Protocol that Agency inspectors' rights of access are subject to no further conditions or limits. A requirement to obtain a warrant would be a further condition, and so would appear in itself to amount to a breach of the Additional Protocol.

I did notice the words, it would appear in itself to amount to a breach". Perhaps the Minister would like to think a little about this one before he answers in exactly the same vein.

Many of the countries which signed the treaty do not have the same respect for civil liberties as we do in this country, and if I am being a little pernickety about this, I think we have a long tradition of being pernickety. When the Minister was the Opposition spokesman on Home Office matters he was, quite rightly, somewhat pernickety about civil liberties. I hope he is not going to say that I did not previously respect them nearly as much as I do now, in Opposition.

We all have a duty to be mindful and, if that is the best assurance the noble Lord can give me, it would at least help me, the next time we have an international treaty of this kind, if we say to some of our friends that we have a little problem in our country; that we need a justice of the peace warrant before our own people can enter premises and so forth and therefore feel that we ought to have a justice of the peace warrant for people from their agency before they enter our premises.

I know it sounds as though I am somehow not happy with the objectives of this Act. But that is not the case at all. I understand why we need it; I understand why it is important; but, equally, the rule of law in our own country is important. I therefore ask the Government to contemplate what they will say the fourth, fifth or sixth time we come across a Bill like this. Will it be, "precedent, precedent, precedent"?

We may end up with a whole army of international inspectors who are able to do things in this country which we would never allow officials of our Government to do. I respect the officials of our Government every bit as much as I respect the international agency's people. One cannot be described as "slightly suspect" and the other "above reproach". All officials are slightly suspect and ought to go through the same hoops.

If we are to have much more of this, we shall have to consider the way in which we agree to these protocols in this country. Some of the fundamental laws which affect all of us as citizens must not be ignored for what, though it may well be a greater good, is not a greater good that should ignore our laws and the way in which we proceed inside our country. I beg to move.

3.45 p.m.

Lord Wallace of Saltaire

I have a great deal of sympathy with what the noble Lord, Lord Mackay of Ardbrecknish, said on this matter. The civil liberties implications are difficult and clearly this is an area which will be expanded further. However, officials of this Government working for the UN operate under similar powers in Iraq and elsewhere. That is part of the problem That is part of the problem of what I understand to be reciprocity rather than complementarity. If we want international agencies to be able to operate in other countries under conditions which are not always to the benefit or convenience of their own regimes, we have to accept that some of our obligations and prized domestic concerns will be invaded.

I find myself very uncomfortable with this, and I should therefore like to ask the Minister about American responses to this. It seems to me that American practice— and I have read the Supreme Court practice on the limits of international law overriding American domestic law—are much more restrictive than ours. In trying to balance those two desirable but incompatible objectives, there are some major issues to which, as the noble Lord, Lord Mackay of Ardbrecknish says, we shall have to return.

Lord McIntosh of Haringey

When we were in Opposition, I was proud of succeeding in securing the inclusion into the Police Bill, as it then was, of a provision that the police could not carry out intrusive surveillance—bugging—of domestic premises other than with a judicial warrant from a county court judge. He is quite right in saying that I am, then and now, and he is, now but possibly not then, extremely protective indeed of personal liberty in that way.

I hope to be able to persuade him that in this case, it is not just reasons of precedent but very practical reasons which make it necessary for us to enact the Bill as drafted, and to give the powers which are given here to inspectors of the International Atomic Energy Authority.

The amendments would require the inspectors to exercise the rights which the Additional Protocol requires to be given to them dependent on obtaining a warrant from a magistrate. We say that it would almost certainly place the UK in breach of the Additional Protocol, not because we do not believe it will, but because it has never been tested in the courts, so we are being particularly cautious about that. It seems fairly clear that there would indeed be a breach. For that reason alone, it is not acceptable to the Government. It would indeed be out of line with the precedents, but in any case it is not necessary.

As regards a breach of the Additional Protocol, the access for inspectors to premises for the limited purpose allowed by the Additional Protocol is one of the key obligations placed by the protocol on the United Kingdom. That does not mean, as the noble Lord suggests, that the inspectors can go where they like. They can go only to the location listed in the Additional Protocol and they may do only what the Additional Protocol allows. To take the noble Lord's example, the DTI could not ask an IEAA inspector to go anywhere else for the DTI, nor could an inspector be asked to carry out the types of search which the department is allowed to undertake under Clause 4 or indeed Clause 8, but I shall return to that when we consider Amendment No. 5.

The right of inspection exists exactly for the reasons given by the noble Lord, Lord Wallace of Saltaire. It is necessary, perhaps not so much in this country; but the inspectors should have unfettered access in all the countries whether they are nuclear or non-nuclear weapons countries. Of course, that is particularly true of Iraq.

UNSCOM, which was set up in Iraq under the United Nations Security Council Resolution 687 of 1991, has seen a history of Saddam Hussein and his regime seeking to frustrate the activities of the inspectors who were charged with eliminating the weapons of mass destruction, biological, chemical and nuclear weapons, long-term missiles, and setting up a long-term monitoring system. Time after time, as the inspectors arrive at the front door—be it a warehouse, a factory or one of Saddam Hussein's presidential palaces—they are delayed in conversation while the lorries leave by the back door.

That is exactly what would happen if the inspectors had to go to a British justice of the peace in order to get authorisation. We do not believe that in practice that will happen in this country. However, in order for inspection to work effectively in Iraq, and possibly in other countries, it is essential that we commit ourselves to exactly the same conditions as the other countries about whose motives and activities we have a great deal more suspicion. That is the basis on which the Additional Protocol has been set up. That is the basis on which nuclear weapon states are put on an equal footing with non-nuclear weapon states. There is simply no scope under the Additional Protocol or the safeguards agreement for further limits or conditions to be imposed on this access.

We are bound to ensure that it is implemented without further conditions or limits. That means that, apart from the issue of delay, if the warrant went to a magistrate who either denied the application or varied it in any way, we should certainly then be immediately in breach of the protocol. The noble Lord will not be surprised if I remind him that the Chemical Weapons Act, to which he referred and which he describes as being a poor precedent—the precedents are building up—was enacted as was the Landmines Act 1998 with exactly the same provisions. It was enacted after UNSCOM had been set up and after a great deal of bad experience with obstruction by the Saddam Hussein regime. Indeed, the Nuclear Safeguards and Electricity (Finance) Act 1978, which implements the 1976 Safeguards Agreement, would have the peculiar effect that these are the same inspectors; and for some things they would not have required judicial authorisation whereas for others they would. That really cannot be sensible. I hope that I have made it clear, without going into a great deal more detail—I am capable of doing so—that these amendments would be undesirable.

Lord Wallace of Saltaire

Before the Minister sits down, perhaps I may ask him to let me know by Report stage what the United States and France are doing in terms of ratification of the Additional Protocol.

Lord McIntosh of Haringey

The US will provide information and access to all relevant locations, subject to exclusions for national security only. So called "managed access" will be employed where necessary. That seems to deserve a letter to the noble Lord.

Lord Mackay of Ardbrecknish

I am grateful to the Minister. Without flattering him too much, I know that he takes these issues of individual rights very seriously indeed. I fully appreciate that other countries—and Iraq is the classic example—frustrate the inspectors. However, because Iraq frustrates the inspectors, I wonder whether for the third time we should be setting up and allowing an international agency to do things which we would not allow any of our own agencies to do?

As regards the example of the lorries going out the back door, my understanding and knowledge is that, if an official asks a justice for a warrant, the person on the warrant to be served does not know that the official has gone for a warrant. That is certainly the case when police come for a warrant: they have not already told the person, "We are going down the road to contact a justice of the peace in order to get a warrant to come and search your house".

Lord McIntosh of Haringey

I accept that. I accept, too, that the argument for delay is perhaps overstated. I was thinking of the case of a leak of information, which I accept could be rare. The more important point is this. If the justice denies a warrant or imposes conditions on it, those two facts themselves are in contravention of the protocol.

4 p.m.

Lord Mackay of Ardbrecknish

I understand that and I understand the international point. I am sure that occasionally police officers feel that they have been frustrated when a justice of the peace does not give them a warrant or qualifies it in some way, when they think they are in deep pursuit of people involved in criminality. That is merely one of the hoops through which we in this country like authority to go. However, I shall not continue with this matter. The Minister kindly wrote to me and I understand the point he makes. It does not resolve my concern that in a year or two's time, we might be back here on another Bill dealing with another international agency and dealing with the same issue again; and because it has been allowed on three occasions, we shall decide that it is all right.

It is just something about which we should be very careful in future. If other people—other countries—do not have a rule of law, it does not mean that we should lessen our regard for our rule of law. The fact that in this country we allow unfettered access to those inspectors will not make too much difference to Saddam Hussein's view and I doubt that anybody thinks it will do. He may pray that in aid if we say that he has to go a justice of the peace but that is rather different from the kind of chicanery he gets up to.

However, I have now given this matter an airing, which seemed only right. On reading the Bill, one notices the distinct ion made between our own, home-grown officials and officials of this agency and the issue was certainly worth exploring. I am grateful to the Minister both for his letter and for his explanation. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 4 not moved.]

Lord Mackay of Ardbrecknish moved Amendment No. 5: Page 5, line 26, at end insert— ("( ) No Agency inspector shall, by virtue of this section, search a person of the opposite sex.").

The noble Lord said: This is a probing amendment in which I am again comparing Clause 4 with Clause 5. In Clause 4, for our own inspections, especially in relation to searching a person of the opposite sex, Clause 4(7) provides that: No constable shall, by virtue of subsection (6)(b), search a person of the opposite sex". I am, therefore, wondering why there is not a similar provision in Clause 5 relating to the agency inspectors. We surely cannot have a male inspector—if he has to—searching a woman or, probably less sensitively, vice versa. If it is good enough for one clause then it should also be in the other clause which deals with agency inspectors. I beg to move.

Lord McIntosh of Haringey

There is a simple answer: the Bill does not give the agency inspectors the power to search individuals in the first place.

Lord Mackay of Ardbrecknish

There is nothing like a simple answer to satisfy a questioner! I am grateful to the Minister for that and I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Mackay of Ardbrecknish moved Amendment No. 6: Page 5, line 27, leave out ("may") and insert ("must").

The noble Lord said: In a way, this is a fall-hack position if the Government do not—as indeed they did not—accept the need for a search warrant for the agency inspectors. My amendment suggests that those inspectors must be accompanied by an authorised officer—that is, one of our own officials—unless the Secretary of State says so. That should prevent agents of an international agency entering and searching premises and individuals without anybody present who understands the need for warrants and the tradition of personal freedom in this country. If the Government think that "may" is sufficient, there is surely nothing in principle to prevent "must", with a provision for any special circumstances; namely that the Secretary of State can authorise a situation in which they need not have a home-grown official with them. I beg to move.

Lord McIntosh of Haringey

There are a number of reasons why we do not consider this amendment desirable. The Bill permits an authorised officer to accompany an agency inspector but does not require it. It does not specify when an authorised officer should attend, leaving it in practice to the DTI safeguards officer to decide whether and when it is necessary or appropriate to send someone to accompany an inspector. The Bill has been drafted in this way for a number of very good reasons.

First, if the Bill were in the terms proposed by the amendment, the UK would risk being in breach of the Additional Protocol. I apologise for using the phrase again but the noble Lord now knows why we say "likely" or "at risk".

Article 4(f) provides that the UK's right to have agency inspectors accompanied must not delay or impede inspectors in exercise of their functions; and an inspector could be impeded or delayed if he or she could not act without an authorised officer being present, or if the inspector had to wait for a ruling from the Secretary of State before being able to proceed alone.

One can also see the scope for abuse if other states included such provisions. The authorities in a regime which was concealing nuclear activity—and I suppose I refer to Iraq again but I imagine there are others; North Korea, for example, or Cuba at times—could defeat the object of an inspection by requiring inspectors to wait until a state official arrived or some government minister had given a dispensation. Again, the experience with the IAEA Action Team in Iraq shows that this is a real concern. We must not include provisions in our legislation which could be copied by other countries which might use them to undermine the safeguard system, and that indeed was the answer I hoped I had made to the previous group of amendments.

In any case, it would be unnecessarily inflexible to require an authorised officer to be present on every occasion when an agency inspector proposes to exercise the rights given by Clause 5. The number of visits which will be performed under the Additional Protocol is not known but there are likely to be few, and in practice Safeguard Office officials are likely to attend many of these visits. However, in some circumstances it would only be practical to allow visits to proceed without an authorised officer present. The protocol allows in extreme cases that visits be called with two hours' notice or less. If an authorised officer were required to be present it is difficult to see how these extreme cases would work. The authorised officer might be delayed, he might be ill or called to an emergency elsewhere, or be caught up in an accident, and that would hold up the whole inspection.

The noble Lord may point to Amendment No. 7 and say that the Secretary of State could always dispense with that, but under the examples I have given it could well be impossible to obtain a direction from the Secretary of State in anything like an appropriate timescale. We would land up with the Secretary of State giving specific rulings in ordinary cases, in other words where no accompaniment by an authorised officer was required, and not being involved in emergency cases of the kind that I have described. That seems the wrong way round, and I hope the noble Lord will recognise that these amendments would be undesirable.

Lord Mackay of Ardbrecknish

Again, I am grateful to the Minister. He has answered one of the questions which was forming in my mind. I am paraphrasing, so I hope I am right, but by and large officials of the department's inspectorate would accompany the agency's inspectors. That would be the norm. I may have lifted this wrongly from what the Minister said, but I did not say they would be with them every time; I said by and large they will be with them, and therefore the protection will be there most of the time.

Lord McIntosh of Haringey

I want only to be precise. I did not say "most of the time", I said "many of the inspectors". I would not like to mislead the noble Lord.

Lord MacKay of Ardbrecknish

I was paraphrasing. I managed just to write down "Send somebody to accompany" as the noble Lord was speaking, but I had the impression that at least on a number of occasions there would be a joint exercise to ensure that nothing untoward is happening. In those circumstances I understand why in certain circumstances the agency needs to go on its own, and I also understand that that reaches across to other countries, who might say, "If they can do it in Britain we can do it here, and you will have to wait 10 days before an agency inspector comes". I do not believe that would ever happen in this country but I understand the point, and I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 7 and 8 not moved.]

Lord Mackay of Ardbrecknish moved Amendment No. 9: Page 5, line 38, at end insert— ("( ) For the purposes of subsection (6) a certificate authorising entry by an Agency inspector shall be in a form published in regulations and of which due notification has been given in accordance with section 3 (5).").

The noble Lord said: This is a simple amendment which almost seems to be asking about regulation and wanting more regulation, or asking how it will be done. I am asking that the certificate giving notification should be in a form that will be recognised by people who know about these matters.

I am sure the Minister knows that there are many regulations that actually set out the form in which a certificate will appear. We have almost a blank form in which the names of the people involved are not filled in, but the surrounding print is filled in and we know exactly what the form is. When someone who knows about these matters—and one presumes that the recipient of such a certificate will know about them—receives a certificate that person will be able to see at a glance that it is indeed in the form in which the certificate should be. I wonder whether we should say that the format of the certificate will in fact be published in regulation. I am sure the Minister will give me some succour on this point. It is well worth just asking how the format of the certificate is to be made known. I beg to move.

Lord McIntosh of Haringey

I hope we have a straightforward misunderstanding here. This is not a certificate to allow entry to any premises in any circumstances. An agency inspector does not need such a certificate it order to be able to exercise the rights of entry given under Clause 5. The only purpose of this certificate is to enable the Secretary of State to resolve definitively any dispute about whether a person is or is not an agency inspector, if such a dispute ever arises in court proceedings. As you can imagine, it could well be a de fence in court proceedings if it is asked: "Is this person, or is he not, an agency inspector?" If you did not have a certificate by the Secretary of State, you might end up producing witnesses as to identity and all sorts of delay and complication in the court proceedings themselves, which would be quite unnecessary, whereas the Secretary of State, who knows, could give a certificate which would settle the issue conclusively. It would only be given when it was brought into question in court, and not before.

As to the form of the certificate, we do not yet know, because it has never been tried, what form the courts would demand of such a certificate. It is not like regulations, where it is desirable for the purposes of the general public, for there to be an agreed format. This is something the courts will determine for themselves in due course.

Lord Mackay of Ardbrecknish

I am grateful to the Minister. As he rightly said, I rather misunderstood the purpose of the certificate. I now understand and I am grateful for his answer. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Mackay of Ardbrecknish moved Amendment No. 10: Page5, line 47, at end insert— ("( ) For the purposes of subsection (7) above, it shall be a defence if the actions of any Agency inspector, in entering or searching premises or persons, infringe the European Convention on Human Rights.").

The noble Lord said: This is the last amendment I have. The Minister, as is now the practice, has certified somewhere in this Bill that it obeys the European Convention. However, it is just conceivable that the Minister or, more importantly, his advisors, may have missed something, and that in fact a court may take a contrary view. For example, I do not suspect that the Scottish Executive, or indeed the Westminster Government before the Scottish Executive was set up, thought for a moment that a court would find that temporary sheriffs would be in breach and create all the chaos that has been caused in Scottish courts; although at least some people have benefited, because 10 permanent ones have just been created who might not otherwise have been created quite so speedily.

We ought to make clear on the face of the Bill that a breach of the human rights legislation would in fact be a defence. The Human Rights Act is a whole new ball game and I suspect some pretty surprising conclusions will arise, such as the Scottish court case. I suspect there will be some in England, unless the Lord Advocate marks an appeal and the Appeal Court in Scotland finds that temporary justice, temporary sheriffs, temporary judges are perfectly consistent with the Human Rights convention. We shall have some surprising things. There may even be some surprising things in this Bill. I wonder whether these words should be added for the avoidance of doubt.

4.15 p.m.

Lord McIntosh of Haringey

As the noble Lord will imagine, I am very much in sympathy with the motivation behind the amendment. I have cheeky and serious answers. The cheeky answer is that technically speaking the IAEA is not a party to the European Convention on Human Rights. Therefore the IAEA and its inspectors could not breach a measure to which they are not formally subject. I do not propose to rely on that argument; it would kill the amendment formally. However, I think that the noble Lord deserves a more serious answer than that.

We are confident that the rights given to agency inspectors by Clause 5 are consistent with Article 8 of the convention, on the right to respect for private and family life, home and correspondence, to the extent that these rights may be exercised in relation to premises within the scope of that article.

Article 8 of the convention is, as I understand it, principally concerned with domestic premises, and it is unlikely—though I concede it is not impossible—that the rights under Clause 5 would actually ever be exercised in relation to domestic premises. We are talking here about nuclear weapons, and I do not think that many of them are produced in back bedrooms.

We are confident that these rights are consistent with Article 1 of the first protocol to the convention on peaceful enjoyment of possessions. However, if an inspector acted in a way which was—to use a neutral phrase—inconsistent with the rights protected in the convention, that could be taken into account by the courts in deciding whether an offence under the Bill had been committed by someone else, if the inspector's actions were relevant to the conduct of a person charged with such an offence.

For example, if an agency inspector's actions were inconsistent with a person's right under the ECHR, that could be relevant to whether the inspector was indeed acting in exercise of a power under Clause 5 for the purposes of an offence under Clause 7, or to whether the person charged with the offence under Clause 5(7)(b) or (c) had a "reasonable excuse" for failing to comply with the request of an agency inspector, authorised officer or constable, or for interfering with things placed on land by an agency inspector. The defence of reasonable excuse is already set out in paragraphs (b) and (c).

Under Clause 5 as drafted an action by an inspector which was inconsistent with the ECHR could, and should, provide a defence to such a prosecution only if that particular action were relevant to the subject matter of the charge. Amendment No. 10 tabled would give anyone prosecuted under Clause 5(7) a defence if there had been any breach of the convention, even if the breach were entirely unconnected with the subject matter of the prosecution. I cannot believe that the noble Lord intended that when he drafted the amendment.

Finally, the amendment would cause confusion about the relevance of the European Convention on Human Rights to other offences by this Bill, and possibly even its relevance to offences under other legislation. One does not state in every piece of legislation that it is not in contravention of the European convention. As the noble Lord rightly said, I have signed a certificate to that effect, which is on the front page of the Bill. That is meant to cover all the provisions of the Bill. The noble Lord is perhaps familiar with the maximum legal interpretation: that to include the one implies exclusion of the others.

If we did so for Clause 5(7) alone, the implication would be that breaches of the ECHR could not be taken into account in deciding whether offences had been committed under other provisions of the Bill. We do not want that kind of confusion. There is no need to insert an express reference to the principles of the ECHR in every offence provision in the statute book. It is much better to let the courts decide on normal general principles when and how far the European Convention on Human Rights is relevant to whether any given offence has been committed under Clause 5(7) or other offences provisions in the Bill or elsewhere. I hope that the noble Lord will not seek to press his amendment.

Lord Mackay of Ardbrecknish

I shall not press the amendment. However, it has brought forward an interesting point. The AEA—I shall call it the agency otherwise I will get into a fankle—is not bound by the ECHR and yet the qualification to the Bill is that the provisions of the Bill are compatible with convention rights.

I will draw the attention of some of my legal friends to this interesting little argument, but, as throughout the Committee, I am grateful to the noble Lord for his explanation; it certainly has been quite illuminating. I am not sure whether we go anywhere else with the amendments but I understand that it is an important Bill to try to prevent the proliferation of nuclear weapons around the world. Any amendments I have put forward this afternoon have certainly not been meant to inhibit that in any way, but they have been made to ensure that what we are doing is consistent with the normal practice in our country.

Lord McIntosh of Haringey

Before the noble Lord, Lord Mackay of Ardbrecknish, concludes his remarks, may I take this opportunity to acknowledge that nothing the noble Lord has said or put in his amendments is in any way designed to inhibit the effective control of nuclear weapons. I recognise that point.

Lord Mackay of Ardbrecknish

I am grateful to the Minister for that recognition. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 5 agreed to.

Clause 6 agreed to.

Remaining clauses agreed to.

Title agreed to.

Bill reported without amendment.

The Deputy Chairman of Committees

That concludes the Committee's proceedings on the Bill.

The Committee adjourned at twenty-three minutes past four o'clock.

  1. Official Report of the Grand Committee on the
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    1. Crown Prosecution Service Inspectorate Bill [H.L.] 1,088 words