§ 4.59 p.m.
§ Second Reading debate resumed.
§ Viscount Brookeborough
My Lords, before I get down to the meat of the business I should like to join other noble Lords in their congratulations to the noble Lord, Lord Henderson. I do not think that I have ever heard a tribute paid in better terms than the tribute by the noble Lord, Lord Shackleton, and I should like to endorse everything that he has said.
At the outset I should like to welcome the Bill. I agree with so many other noble Lords in their sadness that in this day and age we should be discussing the suspension of civil rights and not their extension. The facts are that criminal violence and international criminal violence have grown to such an extent that without some legislative action the prime right, as my noble friend the Minister said, the right to live, is in great danger. It is a balancing act. We can go too far, but we can go not quite far enough. If we do not go far enough, the population will lose confidence in the forces of law and order and then retaliate and take the law into their own hands. That is the balance we have to carry out.
This is the Prevention of Terrorism Bill. Other noble Lords have been using statistics. I believe that it is impossible for those statistics to tell us the truth, which is: as a result of the operation of the previous Act, how many acts of terrorism have been prevented? I believe that many have been prevented.
The Bill is part of the legal paraphernalia to aid the forces of law and order. It is because of that that I heard with dismay the hysterical complaints about the 917 visit of His Royal Highness the Duke of Edinburgh to Armagh barracks to the Grenadier Guards. These complaints were made by the Prime Minister of the Irish Republic and his great rival Mr. Haughey, and other Republicans in Northern Ireland joined in in condemning that visit.
The protests were in the tone and in terms which have given comfort to the IRA—the largest element of comfort or boost it has had since the escape from the Maze Prison. I do not know how many of your Lordships have seen the statements issued by the Government, but I thought that I would take all I could find to show that the Government have aided this comfort by failing to be clear about their position on this visit. On Friday the Northern Ireland Office said that it had no foreknowledge. On Saturday the Northern Ireland Office said that it was aware. On Sunday the Northern Ireland Office said that His Royal Highness was in the barracks for two hours. On Sunday Buckingham Palace said that His Royal Highness was there for 15 minutes. Lastly the MoD statement came out and I thought it crowned the whole lot. It said, "Prince Philip is rather a difficult fellow".
It is a serious point, but can we not stop apologising? The visit happened. The Irish Government had no right to speak, certainly nor did Mr. Haughey, and that should have been the end of it. But many people have been slandered. And I thought I should try to put into perspective for this House the conditions and the state of County Armagh which is where that battalion is operating and from which battalion eight men have been charged with serious crimes including murder. They have been charged as a result of a supergrass. When supergrasses put away Republicans then "supergrass" is a dirty word and should be condemned. I have yet to hear any Republican condemn the use of a supergrass for the eight men in the UDR.
At the outset I should make it absolutely clear that I condemn murder without equivocation or qualification whatsoever. There are certain Prelates in Northern Ireland who never condemn in the way that His Holiness the Pope did when he said, "Murder is murder" and that is that.
The first point I must make clear is that these eight men come from a battalion of about 600. They are innocent until they are proved guilty. I believe that the protestors are in contempt of court because, were the trial to be a jury trial, the defence in my view—I am not a lawyer—would be quite right to say that in front of a jury a fair trial would be impossible. I hope that the Attorney General might look at those who are within our jurisdiction. There are some who are not.
It is intolerable to have Dublin politicians interfering with United Kingdom justice. There are hundreds of honourable and brave soldiers in that UDR battalion. They should not be labelled "guilty" when they are not even suspected. Mr. Haughey, probably the future Prime Minister of the Irish Republic, called for the disbandment of the Ulster Defence Regiment, because there were few Roman Catholics in it. I should like to remind the House that when the UDR was first formed the proportion of Roman Catholics to Protestants—both 918 communities—was a satisfactory balance. But the Roman Catholics have been so murdered and so intimidated by the IRA that their numbers have become minimal. That has happened as a result of the IRA, whose foundation was laid by certain Southern politicians with the aid of a large sum of money.
The history of the Ulster Defence Regiment is something of which I am very proud. Some 32,000 Ulstermen have either served or are still serving in the Ulster Defence Regiment. Of course, they are not all angels, but what group of 32,000 Englishmen, Irishmen or Scotsmen would all be angels? Their record of service is unbelievable. The risks they have run on our behalf will never he repaid. On a recent agricultural visit I had the honour of taking some noble Lords round to meet some of those brave men in their isolated farmhouses and other places where they live. I invite any other noble Lords to come to Northern Ireland and I will take them round so that they too may appreciate the bravery of these men.
The particular climate in Armagh since that battalion started is no excuse for retaliation, if retaliation has occurred. But since 1969, 161 Protestants have been murdered in a deliberate attempt at genocide. If one multiplies the population in those two police areas up to that of London and then multiplies the murders, the rate would be running at 25,000 murders. That is the climate in which they are serving. Most of the murders originated and were carried out by people from across the border—Mr. Haughey's country and that of the Prime Minister of the Irish Republic.
This describes the atmosphere. If these eight soldiers are found guilty it is the Government's failure to protect that population which has led to the frustration which has caused the retaliation. Thereby, if they are found guilty, they are playing into the hands of the IRA and I condemn it absolutely. There is no excuse.
A great boost has been handed to the IRA because of the rivalry—that is all it is—between two politicians. Mr. Haughey is trying to take the carpet from under the Prime Minister of the Irish Republic and the Prime Minister of the Irish Republic has made a statement because he knew Mr. Haughey was going to try to take the trousers off him—and he did on television yesterday. But this rivalry is putting our lives at risk. It is totally unjustified and I protest against it. Like the noble Lord, I should like to express my complete confidence in the forces of the Crown as, I hope, would all in this House. I recognise that this Bill makes their task possible. Without it, it would be impossible.
§ 5.10 p.m.
§ Lord Hylton
My Lords, even after three Statements I think that we can all agree with the noble Lord, Lord Mishcon, when he says that terrorism is one of the greatest scourges of the modern era. Contrary to what is sometimes said, I suggest that it is seldom completely mindless or unthinking and is usually very coldly calculated. It is dangerous, in particular, because it inspires fear and panic and induces irrational behaviour, even sometimes in Governments. I think we have a duty to take measured and considered steps against terrorism. Our aim 919 should be to protect democratic law and order, with minimum harm to human rights and civil liberties. We need also to beware of the illusion that security measures alone may be able to resolve the problems of Northern Ireland, as some parties have sometimes suggested, although I know that it is not the Government's view.
I should like to welcome all the considerable improvements that this Bill incorporates over its predecessor. As to the proscription of organisations, I agree entirely with what was said earlier by the noble Lord, Lord Wigoder. The noble Earl, Lord Jellicoe, noted in his report and the noble Lord, Lord Elton, confirmed in his introduction of the Bill, the growth of international terrorism. I think it is by no means absolutely certain that present powers to protect very obvious targets such as Parliament itself, the Royal palaces and diplomatic premises are adequate. We might well consider whether protection could be improved either in this Bill or by other means.
Under the Bill, it is possible for a person to be detained for up to seven days. The Police and Criminal Evidence Bill lays down a maximum of four days' detention. Can Her Majesty's Government really justify the extra three days? I should like to see applications for detention of more than 48 hours decided by a judge in chambers. Such an application is similar to a bail hearing. Judges are experienced in these matters and, of course, are a good deal more available than the Secretary of State himself. As to access, I should like to see rights of access by a doctor—and, when possible, a doctor of the detainee's choice—after 24 hours and by a solicitor after 48 hours. This would follow the recommendations of the Bennett Committee.
Can the noble Lord the Minister say whether those who will be detained under this Bill will be covered by the access provisions of the Police and Criminal Evidence Bill? Those who are arrested under Prevention of Terrorism provisions in Great Britain will, I hope, he supplied with a written statement of their rights. Again, it would be good to have confirmation of this. This, too, would be in line with the Bennett recommendation (paragraph 91) and with the Home Office draft code of practice on the treatment of suspects, which came out in November 1982. Will Her Majesty's Government provide compensation if loss, rather than just brief inconvenience, is suffered by a person wrongly arrested and detained, for example, in cases of mistaken identity?
May I urge Her Majesty's Government to consider the various points that have been raised by the Standing Advisory Commission on Human Rights in Northern Ireland? The commission wanted the period of detention under Clause 13 to be very much shorter than that under Clause 12. They suggested a period of only four hours. This, I think, would be enough to establish the identity of the arrested person and is, in fact, the same period as has the Army in Northern Ireland for its arrests under Section 14 of the Emergency Provisions Act. I am sure that the Government will take very seriously the commission's points about discrimination against Northern Ireland residents legitimately travelling to and from the mainland. The commission is very well placed to 920 assess the impact of this and other points on community relations and their potential for arousing dislike, and even hatred, of the United Kingdom Government.
This Bill, it has been pointed out, perpetuates major restrictions on traditional liberties. It confers wide and sweeping powers on the Secretary of State and it was very little, although slightly, amended in another place. I had hoped that it would omit anything to do with exclusion orders, or at least confine them to persons who had already left either Great Britain or Northern Ireland. The Standing Commission described these orders as providing for internal exile and said that they could be punitive in effect. I take it from what the noble Lord the Minister has already said that the Secretary of State before making an order takes into account the likelihood of a man losing his job or his house and the probable impact on his wife and children, if any, along with all the other security factors. I should like to follow, again at this point, what the noble Lord, Lord Shackleton, said about compensation for persons who are excluded.
For these and other reasons your Lordships should examine the Bill most minutely and possibly amend it. I should like to follow the noble Lord, Lord Wigoder, in what he said about the scrutiny arrangement of the workings of this Bill. I should be very much happier if there could be a standing parliamentary committee, perhaps drawn from both Houses, to oversee this legislation and also the Emergency Provisions Acts. I think that such a committee would greatly improve the annual or six-monthly debates on renewal. The committee could receive complaints from individuals and could take evidence in camera. We already have two European conventions, one on human rights and one on terrorism. Like many others, I should like to see the former convention incorporated into English law. I should also like to see these conventions backed up by a European code on the treatment and interrogation of suspects.
§ 5.19 p.m.
§ Lord Gifford
My Lords, I am sorry I was not present to hear the opening speeches of this debate; and, because I was not, I will make my speech short. I wanted to express my feelings of opposition and concern that if this Bill, together with the Police and Criminal Evidence Bill in its present form, are passed through Parliament during this year, then together that will represent a victory for the most authoritarian elements in our society. What started as being a temporary emergency measure has become, as such measures so often do become, something permanent and normal, with, now, the legislation being renewed with little essential change in its most objectionable features. The more it becomes entrenched and the more it becomes used, the closer we become to abdicating the rule of law in matters of individual liberty and giving power to the Executive.
When a Government Minister, as under this Bill and its predecessor, unchecked by any court, can order the detention of a citizen for seven whole days; when a Government Minister, unchecked by any court, can order the banishment of a citizen to a particular part of the country in which he lives; when a Government Minister, unchecked by any court, can declare that an 921 organisation is to be banned; and when those measures, enacted for a temporary purpose, become a permanent part of our legislation, then the time is coming to say, "We are going too far". We are allowing ourselves to be deceived, by those who do not want to give up those powers, into believing that they are necessary for the prevention of crime. But the police have all kinds of powers now, irrespective of this legislation, for the prevention of crime, for the arrest of suspects, the searching of homes and the exclusion of undesirable aliens. These powers increasingly are being used not for the prevention of crime but for the control over those who are thought to be dissident.
§ Lord Somers
My Lords, might I interrupt the noble Lord for one moment? I am always astonished at the reluctance of certain people to prevent the criminal from going his own happy way. How about the law-abiding person? Are his rights of liberty to be sacrificed because the criminal must have his way?
§ Lord Gifford
My Lords, the difficulty with legislation of this kind is that more and more law-abiding people get sucked into detention under this. When criminals are suspected of being guilty of offences the law has, and always has had, a full measure of authority to arrest them, to charge them and to bring them to trial.
I would wish to make two protests over certain aspects of this Bill, and particularly of Part IV, which have a significance far beyond the conflict in Northern Ireland which was the genesis of this emergency legislation. The first is that we are being obliged to discuss the re-enactment, with some changes, of the provisions of Part IV, dealing with the arrest and detention of suspects quite separately from the Police and Criminal Evidence Bill. The Government are due to bring before us later this year a wide-ranging measure which is now being discussed in the other place. When it comes to this House, there will, I hope, be a very serious discussion about the limits of police powers and the extent to which police powers need to be increased, to the detriment of civil liberties.
The Government in their wisdom have put forward a pattern in the Bill that there are certain offences to be considered serious offences which justify detention of up to four days, subject to safeguards that the detained person must be brought before a court and must have access to a lawyer. Those provisions we shall debate: but we are now being asked to pass a measure dealing with what I suppose the Government are putting into a separate category of "super-serious offences" where the time limit is to be seven days, where there is to be no right of access to a lawyer and, still worse, there is to be no right of access to a court. The noble Earl, Lord Jellicoe, tried to frame his recommendations on the basis that the Police and Criminal Evidence Bill was going to be passed, but we have not passed it and we, should have the right to debate the whole question of police powers of arrest for serious crime in a package. I would ask that the whole of Part IV be taken out of this Bill and discussed in the context of the Bill to come before us later this year.
My second protest deals with the same part of the Bill and with the definition of those who are to be subject to the powers of arrest and detention of up to 922 seven days under Clause 12. The people who may be detained are those who are suspected of beingconcerned in the commission, preparation or instigation of acts of terrorism to which this Part of this Act applies".Further down we read that that means,acts of terrorism of any descriptionoccurring anywhere in the world unless they are related exclusively to the United Kingdom other than Northern Ireland. Later in Clause 14 we read that:'terrorism' means the use of violence for political endsTherefore, anyone who is suspected of even instigating the use of violence for political ends anywhere in the world and in any connection other than a purely English or British one is liable to arrest and detention under this Bill.
We live in a violent world. There are deep conflicts taking place around it. There are people of every political and social creed and description, engaged both as governments and not as governments, using violence for political ends. If I support, as I do, the right of the people of South Africa to take up arms against the intolerable régime of apartheid, am I instigating the use of violence for political ends? And if other noble Lords support the right of the people of Afghanistan to rebel against the rule of the Soviet-backed government, are they instigating the use of violence for political ends?
One can look around the world and see Saharans, Eritreans, Namibians, Salvadoreans, Palestinians and so on who are engaged, rightly or wrongly, in the use of violence for political ends, some of whom regularly and legitimately come to this country to explain why they are engaged in such acts. Are they all to be subject to arrest? Presumably not. Or are they to be subject to arrest only if their particular creed or form of struggle is offensive to Her Majesty's Government? That makes it still more arbitrary. This clause is dangerous, and I hope that in Committee we shall manage to limit it, at the very least, to offences or suspected offences which have a connection with Northern Ireland, which was, after all, the genesis of this legislation.
I have kept to the wider issues. I do not want it to be thought that I am happy with the other parts of the Bill which are limited to the affairs of Northern Ireland. I am not; and I hope to be able to take part in the Committee proceedings. But even if every clause relating to the affairs of Northern Ireland in this Bill was necessary, the Bill would have more fundamental and wider objections. It goes far wider than the threat of terrorism in Northern Ireland. It is, the more we keep it on the statute book, and, still more, the more we use it, a threat to our liberties.
§ 5.27 p.m.
§ Lord Donaldson of Kingsbridge
My Lords, it is always a pleasure to follow an hereditary Peer from what I may describe as the younger generation who has made by far the most radical speech of the day. I do not agree with a word of it so I shall not follow it in any sense, except that what I am going to say I hope will be largely on the other side. But, first, I must say with what pleasure I heard the admirable maiden speech of my noble friend—I must call him so—Lord Henderson of Brompton. It is, and has been, a tradition in this House that maiden speeches make 923 reference to literature of some kind or another, and we had a rich dividend from the noble Lord today. I should like to cap his comments about Milton's speech in the House of Commons in this way: it is a pity that Dr. Johnson did not overlap enough to report him in his Hansard-writing days, because he thought absolutely nothing of him, as the noble Lord will remember from his steady perusal of the lives of the poets. He made several important points but they are all really points we shall come to in Committee, so I will say no more than that his speech gave great pleasure to me and to everybody else in the House, and we look forward to hearing a great deal more from him.
I was shocked and depressed that the Labour Party in another place could not vote for a Second Reading of this Bill but found it necessary to move an amendment in a contrary sense. I was glad to see that most of my former ministerial colleagues in Northern Ireland were hestitant about this. Not one of them spoke in favour of it. Two of my favourites, I am sorry to say, voted in its favour, but neither of the two Secretaries of State with whom I was concerned, nor any of the others, seemed to have voted at all. No doubt they were diplomatically elsewhere.
I was a junior Minister in Northern Ireland when the original Bill was brought in in 1974. I welcomed it wholeheartedly then and I welcome it wholeheartedly now. The changes recommended by the noble Earl, Lord Jellicoe, approved this evening by the noble Lord, Lord Shackleton, and explained by the Minister, are sensible and I support them. I shall not go into them again. I am at a loss to understand the Labour Party's opposition but I absolutely accept the statement by the noble Lord, Lord Mishcon, that it was for good and honourable reasons. I accept that fully. I know how difficult it is in party politics not to have to support a certain number of things about which you are not at all sure, but it is very awkward indeed to support things which you ought, in my opinion, to be absolutely certain are wrong. However, that is the nearest I shall go to criticism. I was just very much upset by this and I think it was a very serious mistake. I think it is due to a complete lack of understanding of the sort of struggle and the ruthlessness of the struggle which is going on.
I remember the first speech that I ever made in your Lordships' House as a Northern Ireland Minister. It must have been early in the troubles—I suppose, March 1974. Several speakers said that they thought the new Labour Ministers there were giving too little support to the RUC and the military, and one said that the army was having to fight with one hand tied behind its back. I promised to look into this, and did so. Of course, it was my Secretary of State's business, not mine, but he said, "Go round to the local army commanders and see what they say" I did and I met with no complaints of political holding back. The army were always very understanding of the political position. They knew very well that the terrorists could succeed only if a fair group of the local population would give them safe shelter. They knew that too much harrassment worked against the decent people who deplored violence and who sheltered gunmen 924 only because they had relations among them or would be beaten up if they did not.
Even so, there was a lot of information gained from interviews and the number of knee-cappings in those early days shows that it is not only supergrasses who tell tales. There was constant information coming and constant punishment of people who gave it. It does not suggest to me that they gave it under very much pressure, but this is a matter about which it is very difficult to be certain. I certainly think that the noble and learned Lord, Lord Gardiner, when he complained of certain practices there, was right, though I must say that I travelled back in the aeroplane with a Brigadier—he has just got an important job somewhere else—who said. "I have never heard such rot in my life. I was tortured properly by the Japanese. What we are doing is kids' play". Still I think that the noble and learned Lord, Lord Gardiner, was absolutely right to see that we did not do it and I do not think it has been done since. It was a question of making people stand up in a certain position for a long time and things of that sort. It was very unsatisfactory and I am glad that we stopped it.
The security forces told me then, and they would tell your Lordships now, that they know almost every gunman by name and often his address over the border. It was, and is, extremely difficult to pin the crimes on people who had pretty certainly committed them, particularly when witnesses usually refused to appear in court to confirm their evidence and often got shot-up if they did; hence the Diplock courts.
I know very well that the mainland is not the same. The population here, thank goodness, is 99 per cent. totally hostile to the gunmen wherever they come from. But the IRA, the main enemy, is well organized, well fleeced with money and weapons, and I do not believe we can do less than give the police everything, in reason, that they ask for in their difficult and dangerous task of defending this country from terrorists. In Northern Ireland, it was true that too much searching, too much roughness on the part of the RUC gave great offence and it was gradually eased down, because it was absolutely essential not to lose the support of the ordinary population. When my Secretary of State gave up the detention system, by which people were sent into the Maze without trial, it was for that reason and it was with the total understanding of the army.
Nothing of that sort exists here. I do not believe for a moment that ill feeling is being worked up because certain people, a few hundreds, are stopped at the border. Five hours ago, just to make sure about this Bill, I rang up Sir Kenneth Newman, with whom I worked over there eight years ago and whom I greatly admired, and asked his views. He said simply, "The Bill is essential to our success".
We must not send them out with one hand tied behind their backs. It is, of course, a balance between the civil rights of the ordinary man and support of the police against the most ruthless gangsters. I believe that the ordinary British citizen, and a majority of the Irish citizens who live in this country, will be wholeheartedly in support of this Bill, which gives the police the support that they need to do their job, and would put up with the inconvenience of temporary detention and questioning without complaint in a 925 good cause. I have the same figures as the noble Lord, Lord Mishcon, quoted and I draw an absolutely opposite conclusion from them. There were 5,500 people detained in the eight years that the Act has been in force and 655 were charged, which is over one in 10. Of these 655,261 were excluded and 109 were charged under the Act. The rest of those 655 were charged with offences not under the Act. Of the 370—that is, 261 plus 109—who were excluded or charged under the Act, I think on[...]e can say that each one might have been a bomber. The only existing charge under the Act which is not of the most serious kind is under Clause 11; the question of information. It may have been that a great many of them were stopped for that reason, although it seems most unlikely. In any case, if you get 300 out of 5,000 and you think you have stopped 200 potential gunmen, then the price is extremely cheap and I draw exactly the opposite conclusion to that of my noble friend on the Labour Front Bench.
I do not believe that the ordinary citizen would grudge the inconvenience, which, as I think the noble Lord, Lord Shackleton, said, is usually an hour or two and not a day or two. It is only a day or two when there is something that needs a great deal of explanation. The only people who are likely to complain are those who have some connection with the IRA or with any other terrorist organisation which they are frightened may be exposed. When it is not exposed, which is very often the case, good luck to them. They go off and have another go. But if you think I mind because they are minding, I assure your Lordships that I do not and I hope the House does not either.
We support the Bill in its entirety and we shall have the chance in Committee to introduce any minor variations which may seem desirable. There are two clauses which need closely looking at. One is Clause 11, which we have talked about, and the other was mentioned by the noble Lord, Lord Gifford, and is the universal clause, which needs very careful examination. It is an agreeable and unusual position for me to be supporting the noble Lord on the Government Front Bench, but I am very happy to do so.
§ 5.40 p.m.
§ Lord Prys-Davies
My Lords, I believe that I owe the Minister an apology for not being in my place when he commenced his speech, but I had been obliged to keep a previously arranged appointment. Your Lordships will know that I am one of the most junior and least experienced Members of your Lordships' House, but I recall with gratitude the guidance which the noble Lord, Lord Henderson of Brompton, gave me about 12 months ago when I became a Member of your Lordships' House. Although I very much appreciate the historical references in his speech, I regret that on this occasion I am unable to accept the guidance which he has tendered.
The House is being asked to form a judgment on a difficult and important issue. The Minister and, indeed, all Members of your Lordships' House who have spoken this afternoon have properly acknowledged that the powers bestowed on the Secretary of State and the police by the Bill are exceptional. We have been reminded about how the Home Secretary who introduced the predecessor Act of 1974 described 926 his powers as draconian and unprecedented in peacetime. The powers are so abnormal that the legislation is to be subject to annual renewal and expressly limited in duration, but we recall that the 1974 Act was to last possibly for no more than six months. Subject to annual review, this legislation will endure for five years. Therefore, the legislation is becoming that much more permanent, though I, for my part, am grateful that the word "temporary" has been reintroduced into the title of the Bill.
I shall not go over the clauses. However, it is right that I should very briefly draw your Lordships' attention to three of the powers contained in the Bill. The noble Lord the Minister has referred to two of them. I wish to draw your Lordships' attention to these powers so that we may perceive how fundamental they are to the liberty of the subject and see, even if we do not always sympathise with it, the force of the criticism which has been levelled at them.
First, the Bill gives to the Home Secretary the unlimited power to ban any organisation which appears to him to be concerned with terrorism, but his belief as to the association is subjective, the proscription order is not made after an inquiry to which the organisation is a party and the Secretary of State's decision cannot be appealed against. The noble Earl, Lord Jellicoe, concluded that he would be loth to see any addition to the list of proscribed organisations, but we note that he did not go further and recommend the removal of this part of the existing legislation.
The second power to which I wish to refer is also contained in the predecessor Act. It is the unlimited power given to the Secretary of State, without cause assigned, to exclude a citizen from his domicile if it appears to the Minister to be expedient to do so in order to prevent an act of terrorism. The House should be reminded, if indeed it requires to be reminded, that until 1974 the power of banishment or exile had for centuries been unheard of in peacetime in our country. I shall not refer to the dissidents in the USSR, but I will refer to Article 24 of the Soviet Criminal Code which provides for exile and banishment as (this is my point) a form of punishment for a convicted person. But the article in the Soviet Criminal Code provides that exile is not to be applied to a convicted person who has not attained the age of 18, or to a pregnant woman, or to a woman with dependent children.
Thirdly, the Bill gives to the police the power to arrest without warrant a citizen if they reasonably suspect that he is or has been concerned with acts of terrorism. Moreover, such a person can be detained with the consent of the Minister for a period of up to seven days. During that very long week the most famous writ in England, the writ of habeas corpus, is not available to the detainee. Therefore, a brief reference to these powers brings us back to the point from which I started: that the Bill represents an extraordinary interference with the civil liberties of the subject.
Very substantial risks are inherent in a situation where there is a conflict between the interests of national security on the one hand and the basic liberties of the individual on the other. It is argued that if the powers contained in this Bill are not introduced, the executive could lose control of the situation. If, on the other hand, those powers are too severe or are 927 abused, such powers can be counter-productive. The noble Lord, Lord Fitt, who has great experience of the situation in Northern Ireland, has spoken of how counter-productive the legislation can be. The balance is a matter for Parliament. Usually Parliament gets the balance right but it may get it wrong.
It appears to be the accepted view—although the great Lord Atkin, had he been among us, would probably have questioned and challenged this view—that the exercise of the powers contained in the Bill, being powers to be exercised for the protection of the state, cannot be examined by a court of law. The noble Lord, Lord Henderson of Brompton, referred to this view. It is claimed that in this situation one cannot substitute the decision of the judges for the decision of the Minister. We are familiar with the reasoning: that the facts placed before the executive authority are confidential matters of public importance and should not be disclosed to a court of law. That reasoning was accepted in 1942, 40 years ago, during the crisis of the second world war. But Lord Atkin, dissenting in a powerful speech and using these words, to which I attach a great deal of importance, said:In this country, amid the clash of arms, the laws are not silent. They may be changed but they speak the same language in war as in peace. And it has always been one of the pillars of freedom and of the principles of liberty for which, on recent authority, we are now fighting that the judges are no respecters of persons and stand between the subject and any attempt at encroachments on his liberty by the executive".The accepted view, that a court cannot explore the mind of the executive authority, certainly applies in wartime, but should this be an unshakable view in peacetime? First things come first. Before the executive arms itself with such powers it must establish to the satisfaction of the Houses of Parliament, drawn from every class and corner, that this is absolutely necessary. Has that been established in connection with this Bill? Has that case been made out?
There is no unanimity in 1984 as to the need for granting such powers to the Executive. Certainly the noble Earl, Lord Jellicoe, in the light of the facts and reports which he carefully studied, found that the powers should not be dispensed with. That was also the judgment of the noble Lord, Lord Shackleton. The Government rely heavily on that guidance. But there is also an opposite view. It is argued by many individuals and organisations—and not only by the ever-vigilant National Council for Civil Liberties—that the noble Earl's conclusions are not conclusive of the matter.
There exists one powerful argument against reenacting the anti-terrorism legislation to which reference has not been made in your Lordships' House this afternoon. In 1974, the legislation itself had been shaped by conflict and fear. It could be argued that it has increased tension. We cannot undo history, but we need persistent efforts to relax the tension. It is a matter of judging the occasions when to stand firm and when to begin moving towards reconciliation. It is our belief—and I accept that it can be no more than a belief—that the non-re-enactment of the Act may lead to the gradual relaxation of tension. This, in turn, could lead to a breakthrough to a broader social order in Northern Ireland embodying justice and reasoning. 928 It behoves Parliament to seek to move beyond legislation shaped by conflict and confrontation and to seek broader solutions. We believe, rightly or wrongly, that the re-enactment of the 1976 legislation could be a step towards that end.
If, on balance—and we accept that the argument does go this way—it is considered proper in peacetime to renew that legislation, then Parliament must be constantly vigilant and alert to the possible abuse of these powers; bearing in mind that the possessor of those powers may not always realise that he is abusing them, and bearing in mind also that we cannot assume that a detainee will always receive fair treatment. We cannot overlook that there is, as always, a seamy side to life.
In January 1983 the noble Earl, Lord Jellicoe, made a large number of recommendations to help ensure that such powers were not abused. He made about a dozen recommendations which could be implemented by circular or administrative action. That was more than a year ago. I shall be grateful if the Minister will inform the House how many of the noble Earl's recommendations which did not have to wait upon legislation but which could have been implemented by circular or administrative action have been accepted but not yet implemented, and how many have been rejected.
As my noble friend Lord Mishcon has explained, the Committee will have to consider whether the Bill should include more safeguards for the citizen. Should the aggrieved citizen be given the right to make representations to a standing advisory committee, as I believe was provided for in wartime legislation? Again, should the Home Secretary be under a duty to publish a monthly report to Parliament as to the actions taken by him under the Act, as I believe was also provided for under wartime legislation? Our concern from these Benches will be to safeguard our people against the abuses of power. The abuse of power can in itself be a form of tyranny.
§ 5.55 p.m.
§ Lord Elton
My Lords, I have listened with the greatest of attention and respect to all that your Lordships have had to say. I should like to start by congratulating the noble Lord, Lord Henderson of Brompton (I cannot forebear from calling him "my noble friend" as well—why should I be left out of this?) on a remarkably concise and lucid maiden speech. I can assure the noble Lord that I shall never think of him as an isolated atoll. I can think of few people who are less of an island unto themselves alone than the noble Lord, Lord Henderson of Brompton. I shall, on the contrary, think of him as a principal adornment of the distinguished archipelago which has its place on the Cross-Benches of your Lordships' House.
I will try first to pick up a number of specific points which your Lordships have raised and will then return to general matters. I will say first to the noble Lord, Lord Henderson of Brompton, that we must obviously consider very carefully in Committee the case he has advanced for separate orders under Clause 17. But I am bound to tell your Lordships that the Government, having looked closely at this aspect, believe that the Bill contains adequate provisions for parliamentary review and that further changes will not be appropri- 929 ate. But our ears and eyes are not shut to what your Lordships may bring before us.
The noble Lord, Lord Shackleton, who has contributed notably to the progress of these issues since they first reached the statute book, referred to his recommendation about the welfare of persons held under the legislation in Great Britain and to my noble friend's recognition that its implementation had been patchy. This relates to the noble Lord's Recommendation 16. I am glad to be able to tell your Lordships that the draft code of practice on the treatment of suspects issued in conjunction with the Police and Criminal Evidence Bill includes in paragraph 8 the requirement that cells in use for detainees should be adequately lit, heated and ventilated, aired and cleaned every working day; and that bedding must be regularly cleaned and fit for use. The code lays down also other requirements for access to washing and toilet facilities, exercise, and the provision of replacement clothing. The draft code will apply in this respect to persons detained under the prevention of terrorism legislation in exactly the same way as to any other persons detained by the police.
§ Lord Shackleton
My Lords, if I may intervene at this point, there is a difference between somebody being held for a relatively short peiod of time and being held for seven days and given baked beans for his meal every day. Is there anything on diet? I hope that there can be some special provision for those who are detained under this particular Act.
§ Lord Elton
I would rather wait until Committee, my Lords, to give the noble Lord a more specific reply to his question. I accept entirely that there is a difference between being kept in a cell for seven hours and for seven days. My noble friend Lord Brookeborough raised a number of important matters. I am sure that he will forgive me if I do not follow him down some of the paths he tempted me with. I must confirm that those members of the Ulster Defence Regiment who face serious charges have not yet come to trial, so no judgment can be passed in this House or anywhere else. It is certainly true that the UDR as a whole has shown great courage and dedication in the fight against terrorism. The regiment has suffered nearly 140 deaths since 1970. That should be on the record, but I do not wish to go further.
I wish to thank the noble Lord, Lord Hylton, for giving notice of the points that he raised. He referred to the need for legislation of this kind to be subject to very close scrutiny. He suggested that a standing parliamentary committee should be charged with that work. The Government have accepted the recommendation of my noble friend Lord Jellicoe that this legislation should be of a limited life, and that is incorporated in subsection (3) of Clause 17. We believe that by providing for the Act to have a limited life, and for retaining the requirement for annual renewal—and bearing in mind my noble friend Lord Jellicoe's clear recommendation that a thorough review should precede any re-enactment—I hope your Lordships will accept that exceptional arrangements for close scrutiny have already been made. I do not believe that a specific body should be set up to keep an eye on the situation from day to day.
930 Like my noble friend Lord Jellicoe, Her Majesty's Government are well aware of the serious disruption which may be caused to the lives of those who are excluded under Part II of the Bill and to their families, to which a number of noble Lords referred. It was this consideration which led us to accept the recommendation that the period of ordinary residence in a part of the United Kingdom which exempts a British citizen from exclusion from that part should be reduced from 20 years to three years. I should also draw attention to Clauses 4(3) and 5(3), which require the Secretary of State to have regard, in deciding whether to make an exclusion order, to whether the person's connection with any other country or territory is such as to make it appropriate that such an order should be made. I can assure your Lordships that my right honourable friend does consider very carefully the implications of exclusion not only for the individual but also for his family.
The noble Lord, Lord Hylton, was concerned with compensation for improper detention. Here I have to direct his attention to Section 48 of the Police Act 1964. This section makes the Chief Constable liable in respect of torts committed by officers under his direction and control. Any damages or costs awarded against the Chief Constable are paid by the police authority. The police authority may, if it thinks fit, make a payment in settlement of a claim; any payment made is wholly a matter for the police authority concerned. In other words, there is a procedure for the compensation of those improperly detained. I can assure him and other noble Lords that Clause 52 of the Police and Criminal Evidence Bill, as drafted, gives persons arrested under the prevention of terrorism legislation an absolute right to see a solicitor 48 hours after their arrest. The Police and Criminal Evidence Bill draft code of practice on treatment of suspects provides that if a detainee requests a medical examination it must be carried out as soon as possible, either by a police surgeon or by a doctor of the detainee's choice. If a detainee makes an allegation of assault while in custody the police surgeon must be called immediately to examine him, and the detainee must be asked whether he wishes his own doctor to be called. Although the arrangements for detention of suspects in Northern Ireland provide for a medical officer to see detainees every 24 hours, the Government's view is that for Great Britain the arrangements I have just outlined provide sufficient safeguards both for the detainees and, I should add, for the police.
The noble Lord, Lord Hylton, drew our attention to the suggestion of the Northern Ireland Standing Advisory Committee on Human Rights that the initial period of detention should be four hours, in line with that permitted to the army in Northern Ireland under the emergency powers legislation. I think it is clear that this is not appropriate to a police operation. It would be impracticable for the police to seek authorisation for an extension after such a short time. It would in practice mean that the Secretary of State would have to base his decision whether or not to grant an extension on the same information or intelligence as the original arrest instead of being able to take into account any additional considerations which had come to light during the initial period of the detention.
931 The noble Lord, Lord Mishcon, asked about the position of a person who failed to give information about a third party because he could not do so without incriminating himself. Section 11 has been amended in pursuance of Recommendation 59 of my noble friend's report so that it is clear that the information in question must be about a third party. In the case to which the noble Lord, Lord Mishcon, referred there can be no general answer; it must depend on the facts and on the court's application of the defence of "without reasonable excuse" in the light of their understanding of the facts. I suspect there is a certain opacity in that which the noble Lord will want later to test.
As I said in my opening speech, I can tell the noble Lord, Lord Prys-Davies, that only four of the 59 recommendations made by my noble friend Lord Jellicoe and requiring actions are still under consideration. The remainder have been incorporated in this Bill and in the Police and Criminal Evidence Bill, or implemented by administrative means. That is not a bad score, if I may say so.
With the noble Lord, Lord Shackelton, I should also like to congratulate Lord Mishcon on what Lord Shackleton rightly said was a very skilful speech. In so far as he said that your Lordships would be wise to test the need for every provision in the Bill which diminishes by one iota the natural rights and freedoms of British citizens, I can have no quarrell with him. With Milton, Pitt and Henderson, whether in the House of Commons or out of it, I regard the term "necessity" with suspicion. I do not plead necessity; I plead duty. The duty of Government is to protect the rights of individual private citizens, and immeasurably the most precious of those rights is the right to stay alive. As the noble Lord, Lord Shackleton, rightly reminded us, the people who died outside Harrods were individuals, and they lost that right. If we were now to disarm ourselves of some of the powers to pursue and interdict those who murder and mutilate our fellow citizens, that would indeed be a very grave dereliction of duty by the Government. We are arguing about inescapable principle. There are people and there are organisations dedicated both to the overthrow of part of this state and to achieving it by slaughtering its citizens. Against that we must always arm ourselves; and the rights that we diminish are but a fraction of the right that we seek to preserve.
The noble Lord, Lord Gifford, deplored continued extension of special powers to deal with terrorism on the grounds that thereby they were becoming entrenched. He was echoed from his Front Bench. He maintained I think an almost total silence about the steady and quite remarkable process of curtailment of these admitted infringements of individual liberties. This is not entrenchment, it has always been subject to annual debate. It is now for the first time given an absolute limit of five years. All these constraints have been imposed not by a reluctant Government but by a Government which has actually commissioned the advice on which these contraints have been extended.
One of the paradoxes of democracy is that in order to defend its essential components from those who seek to destroy them entirely, it is from time to time necessary to constrain some of those components 932 themselves. Here there is a question of balance; for it is not much consolation to be free if, as a consequence, you are also dead. Noble Lords opposite can advocate constraints on the use of these powers with absolute propriety. But where they advise us to lay them down, I think that they have got it entirely wrong. It is not for us to put the lives of innocent fellow citizens in the balance against the theory of liberty and find them lighter in consideration. That is something to which we shall doubtless return at Committee. It must be fundamental to our whole treatment of this Bill. Parliament has to get it right—and, with the House of Commons, we are Parliament. To believe that non re-enactment would herald a movement to peace on our streets and in our towns would be to delude ourselves. I think that we must look at all the amendments put down to the powers in this Bill with that very much in mind, because we are not a tyrannical Government, nor do I see how we can be painted as such. Your Lordships have been good-tempered, lucid and short in your speeches. I have tried to emulate you in my reply.
§ On Question, Bill read a second time, and committed to a Committee of the Whole House.