§ 5.39 p.m.
§ The Parliamentary Under-Secretary of State, Home Office (Lord Elton)
My Lords. I beg to move that the House do now resolve itself into Committee on this Bill.
§ Moved, That the House do now resolve itself into Committee.—(Lord Elton)
On Question, Motion agreed to.
§ House in Committee accordingly.
§ [The LORD JACQUES in the Chair.]
§ Clause 1 [Proscribed organizations]:
§ On Question, Whether Clause 1 shall stand part of the Bill?
§ Lord Mishcon
In passing from the peace of' the countryside to the horrors of the happenings in some of the cities throughout the world, as a preliminary I should like to make three points. The first one relates generally to all the amendments with which my noble friends and I are concerned. It is this: it must be accepted now at this stage of the Bill that an Act of this kind is necessary. All of us regret it. All of us regret the departure from our normal standards of criminal justice and the procedures which normally apply. But Parliament has spoken, and in those circumstances all of us in contributing to the Committee stage of this Bill and its later stages must accept that extraordinary legislation as a matter of principle is necessary. The only purpose of the amendments with which my noble 887 friends and I are concerned will be to see whether we can minimise the trespass upon those normal principles of our criminal law and procedure. Not one of the amendments is intended as a wrecking amendment to this Bill.
The second point I want to make is this. We have considered that Part II of the Bill is one of the exceptions to our normal law and procedure so extraordinary that the justification for it has not been made out, and therefore we have put down, as your Lordships will see on the Marshalled List before you, various requests, if that is the right word, that Clauses 3 to 9 do not stand part of the Bill. The sensible thing to do—and I have the advantage that the noble Lord the Minister is a most sensible and reasonable person, and I hope he thinks the same of me on the other side of the Dispatch Boxes—is to have one debate on the whole of Clauses 3 to 9, because the whole purpose of all that is before you in regard to Clauses 3 to 9 is that Part II should not be part of this Bill. Your Lordships will be relieved to hear that there will not be nine separate debates.
The last point I want to make is only so that I address your Lordships with, I hope, logic and clarity: it is that Clause 7 of the Bill gives certain minimal advantages to the person who is the subject of the exclusion order. From the point of view of tidiness, since I am asking that Clauses 3 to 9 do not stand part of the Bill, I have obviously had to include Clause 7. But if the Committee were to decide that Part II of the Bill remains, the last thing in the world I would want to do is to remove Clause 7 from the Bill. Your Lordships will understand that subject to the decision which is made upon Clause 3 of the Bill, I shall not be moving by any manner of means, if indeed the conclusion is that Part II stand part of the Bill, that, Clause 7 should be excluded.
May I now turn to the whole purpose of my address to your Lordships. It is, I suppose, best done by referring at once to the report of Lord Jellicoe which was entitled The Review of the Operation of the Prevention of Terrorism (Temporary Provisions) Act 1976, which was copiously referred to on the Second Reading of this Bill. I want to pay tribute to him at once. Nobody could have been more careful in trying to examine all the arguments that had to be advanced and considered in regard to the painful provisions of this Bill if the enactments were to be continued as it is now suggested, and he suggested, they should be.
§ Lord Elton
I am sorry to interrupt the noble Lord's flow and I hope it does not interrupt his continuity of ideas. I wonder whether he is now embarking on his case on Clause 3 stand part, on the whole of Part II? We have not disposed of Part I yet. It is a pure formality and will take seconds. We are addressing ourselves to the Question that Clause I stand part of the Bill. I think the noble Lord is beginning to make his case against Clause 3 stand part of the Bill. If I am wrong, I unreservedly apologise for interrupting the noble Lord.
§ Lord Mishcon
The noble Lord the Minister is absolutely right. Having explained to the Committee what my procedure will be when we come to it, I must 888 now wait until it is put to the Committee that Clause 3 stand part of the Bill. I am grateful to the noble Lord for stopping me when he did.
§ Lord Wigoder
Might I from these Benches express our total admiration of the noble Lord, Lord Mishcon, for the great skill with which he has disguised the simple fact that his colleagues in another place fought the whole of this Bill tooth and nail, and eventually voted against it on Third Reading, in a manner which we are bound to say was not conducive to the defeat of terrorism.
§ Lord Monson
May I make a Committee stage point on subsection (4) of Clause 1 of this Bill? Would the Minister be so kind as to explain why it is only organisations concerned in terrorism and connected with Northern Ireland which may be proscribed by the Secretary of State by order? What about terrorism connected with Scotland, Wales, or the Middle East, for example?
§ Lord Elton
It is I think right that I should address myself first to the consummately clear and concise introduction to this debate by the noble Lord. Lord Mishcon, which, as the noble Lord, Lord Wigoder, rightly observed, would appear to be a march starting from somewhere other than where his party was in another place some time ago. I welcome the fact that he now agrees that an Act of this sort is very regrettable but very necessary, because that is our position too. He has now said that his every effort and those of his colleagues will be bent to trying to minimise the trespass on the normal procedures of law. That is a proper function of this House, and one in which Her Majesty's Government have been extensively engaged in drafting the Bill now before your Lordships.
I am entirely content with the way of dealing with Part II that the noble Lord suggests. It is sensible to have one debate rolling up all the issues in it. I am glad to notice that even in that bath water the noble Lord discerns a small baby in Clause 7 which he would not want to throw out.
Turning to the noble Lord, Lord Monson, as to nationalism of other kinds than Irish nationalism, I can only say that experience so far has made it clear that they are neither as powerful nor as lethal as those towards which this Bill is directed. Here I can join with the noble Lord, Lord Mishcon, in saying that we wish to minimise the interference with the liberties of the individual subject as far as we can. These are British subjects and we do not think that they should at present be proscribed. As to the Middle East, of course they are not British subjects, and I fear that different considerations there apply which would make it inappropriate to include them in this legislation.
§ Lord Mishcon
I had hoped that I had not got to rise again before we got to the meat of the Committee stage. How unfortunate it is that, when we are deliberating serious matters of this kind, certain politicians have had to justify their existence by endeavouring to make political points. I thought I had made the position abundantly clear at Second Reading. I do not want to repeat to your Lordships my Second Reading speech. It would be completely unfeeling of me if I did.
889 I then spelt out the reasons which had actuated my right honourable and honourable friends in another place in thinking that it was about time, as a result of experience—terrorism not unfortunately having ceased and previous Acts not having done very much to minimise terrorism—that this incursion upon our normal law should cease. I said then that it was a view that was a perfectly honourable view to put forward.
What I said to the Committee on this occasion—and I made it abundantly clear—was that Parliament had spoken, because, not only in another place but in this place as a result of the debate, the principle was carried at Second Reading. In those circumstances, I, being the democrat that I am, and my noble friends, being the democrats that they are, accepted that the principle must now be that it is necessary to have such a Bill. If my noble friend Lord Wigoder gets pleasure out of making a party point, I am the last person in the world to deprive him of that pleasure and in those circumstances I shall now sit down and wait to get on, as I hope he will, with the real matters that concern your Lordships.
§ Clause 1 agreed to.
§ Clause 2 agreed to.
§ Clause 3 [Exclusion orders: general]:
§ On Question, Whether Clause 3 shall stand part of the Bill?
§ Lord Mishcon
And so we move to the real business of the Committee and its real duty tonight, which is to consider Part II of this Bill.
I was saying, before the noble Lord the Minister so thoughtfully caused me to realise that I was not procedurally correct, that the sensible thing for me to do, in my view, is to put the case against my argument so that I am being completely and absolutely fair in dealing with it. As I was saying before, one cannot think of doing better than quoting from the report of the noble Earl, Lord Jellicoe, whose review of the operation of the Prevention of Terrorism Act we considered very carefully at Second Reading. He was keen to look at all the arguments which were against the idea of continuing exclusion orders and exclusion provisions in the Bill which amounted to internal exile—a matter which is foreign to our law and to the whole of our tradition. I am reading from page 68 of his report, where he says this:It is difficult to generalise about these cases, but there are some points on which all those who have administered the system are unanimous, and with which, from my own examination, I agree. First, there have undoubtedly been cases where exclusion has rid Great Britain of dangerous terrorists. Second, in a number of cases—not necessarily the same—terrorists have found their effectiveness in general substantially impaired by the fact that they were no longer able to travel legally between Northern Ireland and the mainland, or between the Republic of Ireland and the United Kingdom as a whole. Third, although in a number of such cases there has been no room for doubt as to the terrorist sympathies and activities of those concerned, the form and sensitivity of the case against them has been such that no other means have been available of dealing with them. I am not saying that all successful applications for exclusion are illustrations of these three points".It is fair to say that the noble Earl, as one would expect of him, having considered the matter carefully, had decided that there were these three advantages and in those circumstances that Part II ought to be in this Bill and exclusion orders ought to remain.
890 Again I quote the noble Earl so that we may all see what he had in his mind and what, I say with respect, your Lordships ought to have in your minds. I quote from paragraph 175 on the same page:I have found consideration of the system of exclusion to be the most difficult part of my task. It is in many ways the most extreme of the Act's powers: in its effect on civil liberties, it is in my view more severe than any other power in the Act; in its procedure and principles it departs more thoroughly from the normal criminal process than any other part of the Act; it has aroused substantial resentment even among many, particularly in Northern Ireland, who support the aims and content of the remainder of the legislation; it has led to criticism of the United Kingdom in the international fora on human rights; its value is difficult to demonstrate in a convincing way, both for reasons of security and because it is the most essentially preventive part of the Act; and yet those ministers and police officers who have operated the system are convinced that exclusion has on occasion saved lives throughout the United Kingdom".I do not think that I could put the case better than the noble Earl did in those words. Therefore, one has to look against that background to see whether there can possibly be any justification for continuing with the process of exclusion orders. I would just mention the six terrible disadvantages that a person against whom this part of the Bill operates suffers. First, he has no right to know why the order has been made. Secondly, he has no right to know the evidence against him. Thirdly, he has no right to cross-examine anyone. Fourthly, he has no right of trial or formal hearing. Fifthly, when he does make representations—as he is entitled to do under the provisions of the Bill—he does not know what it is that he is making representations about except that he should not be excluded from his home, a home that he may have had for less than three years, which is the provision now in the Bill. He has no right to know on what basis the representations that he makes are successful or unsuccessful. Lastly, he has no right of appeal.
I suppose the first thing one has to do against all those six terrible disadvantages, quite apart from the complete distortion of a person's private and family life that an exclusion order may mean—an exclusion order that can go on for three years and then be renewed after the three years—is to consider what the figures are that one is dealing with. These are the figures since the 1974 Act came into force. I am sure the noble Lord the Minister will correct me if my figures are wrong, but I understand that there have been a total of 295 exclusion orders made in Great Britain, as a result of which 234 people have been removed from Britain to Northern Ireland, 37 of them being removed to the Republic of Ireland. Of the 234 people removed to Northern Ireland, only 52 have ever subsequently been charged with any offence. In Northern Ireland, seven people have been excluded from Britain and 17 from the United Kingdom as a whole. I am dealing now with a period of 10 years. Are we entitled to subject human beings to this sort of treatment—with the six disadvantages that I have spoken of, advantages which in our criminal law are accorded to the worst felons? Are we really entitled to do this with figures of this kind as to the total number of people involved up to date? Consideration of that figure shows what a small proportion has ever been charged with any offences at all. I repeat that it is 50-odd out of 270-odd.
One would have thought the evidence against anyone who had been subjected to an exclusion 891 order—and it was the Secretary of State who made it—would be so conclusive and so monumental that obviously some kind of charge would have been bound to follow. One wonders whether it would not be wise to say that if there is this evidence of contact with terrorism, surely it is even better to keep those people under observation rather than to exclude them to a part of the United Kingdom or to Northern Ireland, where one imagines that they would not be able to be in any communication at all with those with whom it is said they have been in association for terrorist activities.
I ought to end what I am saying to the Committee by quoting somebody whom your Lordships in recent months have come to know and respect as a Member of this House but for whom, I believe, your Lordships would have had an affection and admiration for him as a parliamentarian when he was in another place. I am talking of my noble friend, Lord Fitt. If ever there was a person who has been subjected to terrorist threats and who has behaved so courageously, it is the noble Lord. Lord Fitt. I am sorry that he is not in the Committee at this moment.
§ Lord Mishcon
I am so glad that the noble Lord is hearing what I have said about him. I hope that he will be able to take part in this debate. I had not realised that he was present. But, as I was saying, if ever anyone had suffered from threats of terrorists, he has; and if anyone has ever courageously opposed the terrorists, he has. And he has spoken time and time again—and, certainly, in the debate when a review of this legislation was suggested—and he has come out completely against this part of the Act. I hope that your Lordships will have the privilege and pleasure of hearing him in the course of this debate.
I do not think that I can usefully say any more except to repeat what I have said at the outset. This is not a matter—and I must say it in fairness—to which the noble Earl, Lord Jellicoe, did not give the most intense consideration. But there is no doubt about it at all that his description of the powers under this part of the Act shows that we are entitled to differ from him in his conclusions although in his premises this is the most terrible part that we have to inflict in regard to an invasion of civil liberties. We can take that for granted and we can accept it and it is no disrespect to him if we come to a different conclusion.
§ 6.4 p.m.
§ Lord Denning
I ask your Lordships to keep this clause in the Bill. I have had some experience of the conflict which arises from time to time in our society between the freedom of the individual, on the one hand, and our national security, on the other; by which I mean the security of the lives of ordinary law-abiding citizens. I experienced this conflict during the last war when we had the regulations under Regulation 18B on which the Secretary of State, if it appeared to him that a person should be of hostile associations, could be detained. It was my task in those years to be a legal adviser and I saw Sir Norman Birkett and other young rising King's Counsel of the 892 time. It was my task to be a legal adviser, to advise the Secretary of State whether a man should be interned or not. I remember there was a Nazi parson and we were afraid that he would shelter parachutists coming from Germany. I interviewed him and I decided and recommended to the Home Secretary that he should be detained. The Bishop of Ripon protested vigorously.
The inquiry which we had had to be secret, it had to be quite confidential; but we did put the case to him so that he could answer, put his views forward and we could understand and go through it. But we did put the case to him and we acted as much judicially as we possibly could, consistently with the security of the state. That was my experience in that war with Regulation 18B, with detention without trial, detention on suspicion, while doing everything we could to give the accused man or detained man a right to speak on his own behalf.
The next occasion was when I was a judge, and we had the case of Mark Hosenball. He had been in this country for many years. He had come from Ireland, had been at Trinity College, Dublin, but he was a United States citizen. The Secretary of State then decided that his presence here was not conducive to the public good, and he ordered Mark Hosenball to be excluded. It is quite true that there was an inquiry, I think it was a tribunal, and the case could not be put in full to Mark Hosenball for this reason. Once he was told the sources of the information, even if he was just told the information itself, he or others would be able to get at them, and injure—or may be worse—those sources of information. So the whole case could not be put to Mark Hosenball. There were great protests in some circles at the decision of the Secretary of State. It came before the Lord Chief Justice, (then Lord Widgery), and it came before us in the Court of Appeal and I hope and think that we decided rightly.
There are occasions in times of great emergency when the freedom of the individual—or, as I say, the requirement of natural justice—has to take second place to the security of the realm, to the security of the lives of ordinary people going about their business. There are such circumstances but only in time of great emergency. And a decision on it we held—and I think the noble and learned Lord, Lord Gardiner, and others always held—is not for the courts of law, it is not a judicial inquiry; it is for the Secretary of State who himself is answerable to Parlaiment for the exercise of these powers. The noble and learned Lord, Lord Gardiner, when he inquired into Northern Ireland affairs, came to that conclusion. So does my noble friend Lord Jellicoe, because it is not a judicial matter at all.
It is a matter for the security of the State. The Secretary of State has information that no tribunal could see—information from the police, information from intelligence sources, information of all kinds, which cannot be made known to that individual without risk to others. So, in those circumstances, the rules of natural justice have to be put aside for the moment, the freedom of the individual has to be put aside for the moment, because there is a higher interest at stake and that is the security of the state—or, as I would put it—the security of the lives of ordinary individuals.
893 We had the case before us of those Birmingham bombers, when they planted their bombs and killed, I think, 26 people and injured 79 more. They were caught by our police force and our detectives. They got on the train on the way north to get the boat; they were intercepted by our detectives just as they were going on to the boat to go to Northern Ireland. They were brought back and tried, as your Lordships will know.
So there they are, coming from Northern Ireland and committing outrages such as the one at Birmingham. Perhaps I may add at this point that this is not an out-of-date problem. We have had the Harrods bombing since and the police have said it was the work of the IRA. Are not the perils and the emergencies still with us? Is this not a case where the security of the lives of ordinary law-abiding citizens must be protected so far as we can? My noble friend Lord Jellicoe had far more information than we have. He had information from the police and intelligence services—far more than we have—as to the extent of the danger and the extent of the emergency. He comes to the conclusion (with reluctance, as he says) that, at all events for the time being, this power of exclusion should remain, subject to safeguard. And it is no mean safeguard. It is only stopping the individual from coming on a visit, if he is ordinarily resident there and comes on a visit.
But at any rate my noble friend comes to the conclusion that the situation is still so extreme that this power of exclusion and these emergency powers should remain, subject to the safeguard. Go to an adviser—he will be a lawyer; and I am sure that if you have a lawyer of distinction examining these cases he will do, so far as possible, everything that is just, and the exclusion order will only be maintained when it is proper to do so for the security of the state. In all these circumstances, I would go by the recommendations of my noble friend Lord Jellicoe, who thinks that this exclusion power should be retained, at all events for the time being. Let it be reviewed time after time if need be, but let it be retained for the moment.
§ Lord Wigoder
We on these Benches cannot support the noble Lord, Lord Mishcon, and his noble friends in their attempt to remove exclusion orders from the provisions of this Bill because, like the noble and learned Lord, Lord Denning, we believe that the findings of the noble Lord, Lord Shackleton, and the noble Earl, Lord Jellicoe, each in their turn, are really quite incontrovertible. That is to say, there have been occasions and there are likely to be more occasions where the power to make exclusion orders can serve to limit the effects of terrorism.
Having said that, may I say that of course we accept some of the hardships that are inevitably caused by the making of exclusion orders such as those described by the noble Lord, Lord Mishcon? We are very much aware of the personal difficulties that may arise for the individuals involved and also of the difficulties in community relations in Northern Ireland, and as between Northern Ireland and this country.
However, although we are driven to the conclusion that it is right that the power to make exclusion orders should continue, I want to add that we on these Benches are not entirely happy that the Government have followed the spirit of the report of the noble Earl, 894 Lord Jellicoe. I draw attention to two particular passages in that report. The first is at page 77, paragraph 200, where Lord Jellicoe says:I have concluded, albeit with some reluctance, that for the present at least a residual power to exclude must remain. I believe that the need for it is likely to decline still further, and that it should be allowed to lapse as soon as it is no longer considered strictly necessary".Then on page 69 the noble Earl, Lord Jellicoe, says this:My conclusion is that the power to exclude should remain available to the Secretary of State in extreme cases; that its severity should he mitigated in the way I suggest below"—that part has been accepted—and the possibility of abolishing it should be kept under regular review, without prejudice to the Act's other powers.I am doubtful whether the Bill, as drafted, really gives effect to the weight of those recommendations, because what we are asked to approve in the Bill is that in essence exclusion orders will be in force for a further period of five years, with no possibility of periodical review except for the passing of some order which it is quite beyond the power of either House to amend.
It is for that reason—and I do not want to anticipate any later debate—that various noble Lords, and particularly the noble Lord, Lord Henderson, and myself, have put down amendments. First, Nos. 12 and 13 would provide for a body which could review the working of this Act, particularly in relation to exclusion orders, and report annually to Parliament on the Act's operation. In the second place, our Amendments Nos. 9, 10 and 11 attempt to secure that the Government lay separate orders, certainly so far as Part II of this Bill is concerned, which would enable both Houses of Parliament to consider whether the powers of exclusion should be renewed or not.
I believe that the combination of those amendments is very much more in the spirit of Lord Jellicoe's recommendations than the Bill as it stands; and before there is any Division, if there is to be one on this matter, I should like to ask the noble Lord, Lord Elton, whether he is able to make any encouraging noises—and nobody is more skilled at doing so than he is—as to the reaction which will greet these amendments when they are moved at a later stage during the Committee proceedings. If encouraging noises are to be forthcoming, we on these Benches, without hesitation, would support the renewal of the power to make exclusion orders in Part II of this Bill. Unless some sort of encouragement is given, then without wanting in any way to adopt the stance adopted by the noble Lord, Lord Mishcon, I am bound to say that we shall have serious reservations as to whether the Government are carrying out the spirit of the recommendations of the noble Earl, Lord Jellicoe.
§ Lord Somers
I must confess that, when I looked through this list of amendments, I felt a sense of surprise that there seem to be so many in your Lordships' Committee who are anxious to preserve the rights and the comforts of the wrongdoer and who, in doing so, completely forget those of the law-abiding and innocent man.
I have listened with great respect, of course, to what the noble Lord, Lord Mishcon, says. I always do, because I know that he is no fanatic on this subject. He referred to interference with civil liberties. But how 895 about the interference with the civil liberties of the innocent person who is damaged by the criminal? How about all those innocent persons who lost their lives outside Harrods a short time ago, including one very brave policeman? I must pause here for a moment to say how very proud we should be of having one of the finest and bravest police forces in the world.
I quite agree with the noble Lord, Lord Mishcon, that, when possible, a man should know what he is being excluded for and why. I feel that is only fair, although sometimes it may not be possible. But the point is: do we really want to protect our innocent population or do we not? After all, when you put a man in prison you are interfering with his civil liberties, and the point of extreme importance to me is the protection of the law-abiding citizen, the preservation of peace and the well-being of the country.
§ 6.20 p.m.
§ Lord Fitt
I want to say at the outset that I lend my full support to my noble friend Lord Mischon in opposing these clauses and asking for these amendments to be accepted. In doing so, I do not think it is necessary for me to make clear, once again, my total and unremitting opposition to the IRA and all its consorts. Let me say at the beginning that I totally object to what has been said within the past 48 hours by an honourable lady Member of another place, that the IRA are freedom fighters. The IRA are nothing of the sort. They are the greatest scourge of terrorists and murderers that we have ever seen on the soil of Ireland.
But having said that, and as one who was born in 1926 in Northern Ireland, I have lived all my life under emergency legislation. The Civil Authorities (Special Powers) Act (Northern Ireland) was put on the statute book in 1922 and it was there for 50 years until it was taken off the statute book by the Conservative Government in 1972. One cannot say, that, throughout all those years, that Act was successful in preventing terrorism in Northern Ireland. I know how that Act was used against a minority population who happened to be in political opposition to a succession of Unionist governments, and those draconian powers were used on each and every occasion when it appeared that the Unionist party's domination in Northern Ireland was about to be challenged.
When that Act was taken off the statute book in 1972, it was replaced by the Prevention of Terrorism (Emergency Provisions) Act and I am the first to concede that it was necessary, in many ways, to have that type of legislation—though not in its totality, because I have had occasion in another place to oppose that Act when it came before Parliament. Again, I concede that the people who were responsible for the Prevention of Terrorism (Emergency Provisions) Act were the people who set off the dreadful bombs in Birmingham in 1974 and carried out that terrible atrocity. But may I say to the noble and learned Lord, Lord Denning, that the police were successful in apprehending and convicting those who were responsible for that dreadful murder, without that Act. It was only later on that that Act was put on the statute book, but the police were able to detain 896 those people who were trying to leave the country after the commission of that terrible murderous deed.
Not all those who were convicted came from Northern Ireland to commit that act. Some of them, much to their eternal shame, had actually been living in this country for some years, and yet found it possible to set off bombs in the city in which they had been living, which killed many people whom they must have known.
The most objectionable part of this legislation has always been the power of exclusion. One must remember that, when the Bill first came before Parliament, there was no provision for excluding people from Northern Ireland to Great Britain. It was only at the insistence of a Unionist Member of Parliament that that was then included. It was said that if it was right to exclude someone from England, Scotland or Wales to Northern Ireland, then it must also he right to exclude someone from Northern Ireland and, eventually, the Government of the day accepted that reasoning.
On exclusions, I have had to deal with a dozen cases on which I have made representations to a succession of Home Secretaries. I know that this is no answer to the problem, but if had thought for a single second that there was the slightest doubt that any of those people were involved, I should have had no hesitation in telling them: "No, I am not going to make representations on your behalf." Since the murderous troubles broke out in Northern Ireland, I have said that at the risk of losing elections. People came to my constituency surgery or advice centre and asked me to make representations on behalf of either themselves or their relatives, and if I had the slightest suspicion I said, "No, you have not convinced me that you are not involved in terrorism, and I shall not make any representations". I have lost votes by taking that attitude, but I have lost them in an honourable way, because I would not have wanted votes cast for me by people who in anyway supported terrorism in Northern Ireland. On the dozen or so cases about which I made representations to the Home Secretaries, I have yet to be convinced that those persons were in any way involved in terrorism.
If you agree about exclusion orders you must be consistent, and I agree with what the noble and learned Lord, Lord Denning, has said. He said that those who take the decision to exclude a person have at their disposal evidence which is not available to anyone else—from the police, from the arresting authority and from all the other people involved; and the Home Secretary himself must be convinced. We are told that the Home Secretary looks at the evidence placed before him and then signs his name to the granting of an exclusion order. I have always had doubts about whether the Home Secretary was able to look at all those individual cases.
But let us accept for the moment that the Home Secretary looks at all those individual cases and is convinced that there is reason to exclude a person. This happens in England, Scotland or Wales. That person is excluded to Northern Ireland where there is a real hotbed of terrorism; where it is known that there will be a larger pool in which the IRA can swim—I speak exclusively of the IRA—where he will be given 897 protection, when he would not be given protection in the more law-abiding parts of the United Kingdom.
So you are sending a potential terrorist from a law-abiding part of the United Kingdom into an area where he is liable to have many more friends, and where he will be given protection by the community which supports the political philosophy of the IRA. So you are making it more likely that he will engage in acts of terrorism in Northern Ireland. As one who has lived his lifetime in Northern Ireland it would be unfair, to say the least, and a washing of one's hands to say. "There is the possibility that he is committing acts of terrorism here and he may commit them in Belfast, but at least he will not be committing them here". That would be a very unfair attitude to take against any citizens of the United Kingdom.
Let me come to a notable case about which I am sure the noble and learned Lord, Lord Denning, will agree with me. A succession of Secretaries of State in Great Britain—I suppose on the recommendation of the Secretary of State for Northern Ireland and with evidence of the police in Northern Ireland—thought it was right to put an exclusion order on a Mr. Gerry Adams. They had all the evidence at their disposal, which has been referred to by the noble and learned Lord, Lord Denning. So there was justification in their minds for excluding Mr. Adams from Great Britain, on the grounds that he had been involved in propagating terrorism. Then Mr. Adams fought an election. By a combination of very unusual circumstances Mr. Adams was elected and became Member of Parliament for Belfast West. And the Home Secretary revoked the exclusion order. Was he entitled to do so?
Mr. Adams, a potential terrorist on 8th June and a danger to the security of this country, was found on 10th June when the votes were cast to have a majority and therefore to be no longer a danger to this country. I cannot accept that reasoning. Mr. Adams was a source of support then and still is a source of support to the IRA terrorist organisation. If it was right that he should have been excluded before that date by the Home Secretary it is right that he should be excluded now.
There are many ways in which you can support terrorism. It is supported not only by misguided young people who are sometimes led into acts of terrorism and set off bombs, fire rifles and get themselves killed—as happened only 48 hours ago in Northern Ireland. The present shooting war was begun by the IRA in 1969. Those two young men who lost their lives in a totally wrong way within the past 48 hours and who were, I accept, terrorists were only 10 or 11 years of age in 1969. It is an indication of the terrible history of Northern Ireland that when the civil rights agitation began in 1969 those two young men were schoolboys. They have now given their lives, rightly or wrongly, for the cause of IRA terrorism.
There are many ways in which IRA terrorism can be supported. There are people in this country who make speeches in support of Sinn Fein. There are elected Members of another place and some Members of this House who go to Sinn Fein meetings and tell the Sinn Feiners that they believe that the IRA is a patriotic army fighting for the freedom of Ireland. But those people cannot be excluded because they live in this 898 country. Newspapers are circulating in this country at the moments which, given that we accept the freedom of the press, are Irish based and intended to be circulated among the Irish community. I disagree with some of their editorials, which can only be tantamount to giving support to Sinn Fein. And those people are not subject to exclusion orders. You do not have to set off bombs or fire Armalite rifles; there are many ways in which you can give support to the IRA.
I go very firmly down the road of my noble friend Lord Mishcon who pointed out the six disadvantages or six disabilities which face anybody who is arrested and excluded. The whole system is absolutely contrary to every tenet of British justice as we have known it to exist in this country for over a thousand years. I know that exclusion orders are counter-productive. Having lived in Belfast throughout the past 10 tragic years and having listened to and read IRA propaganda, I know that they were always able to point at the exclusion orders. For the IRA this is one of the main facets of the Prevention of Terrorism (Emergency Provisions) Act. I found it difficult to argue against them on this point. Time and time again people in Northern Ireland who did not agree with the IRA challenged me to justify exclusion orders. All I could tell them was that I was unable to do so. I voted against exclusion orders every time they came before Parliament.
I realise that the atmosphere in which we are now debating exclusion orders is a million light years away from the scenes of murder and devastation that we have had to live with in Northern Ireland since the outbreak of this terrorist campaign. I can only say, with all the honesty at my command, that these exclusion orders are contrary to every concept of human justice. I believe that they are counter-productive and that they do not and will not have the intended effect.
§ 6.35 p.m.
§ Lord Harris of Greenwich
At the beginning of a relatively brief speech this afternoon, may I say that it gives me pleasure to follow the noble Lord, Lord Fitt, and to say that all of us, including those who do not agree with the conclusion which he has just expressed on this amendment, pay tribute to him for the high courage he has displayed in standing up against IRA terrorism in Northern Ireland. On an such occasion as this it is right to recognise that fact. When I was a Minister in the Home Office I remember having a discussion with the noble Lord about one of the exclusion order cases about which he has just spoken.
I accept at once what the noble Lord, Lord Mishcon, has said to us about the disabilities faced by a person who is made subject to an exclusion order. The six or seven examples he gave were entirely correct. There is no doubt whatever that a person who is subject to such an order faces the serious problems which he outlined. But he faced those problems in 1974 when a Labour Government introduced the Prevention of Terrorism (Emergency Provisions) Act. As the noble Lord, Lord Fitt, reminded us, it was introduced on that occasion as a result of the bombings in Birmingham when over 20 people lost their lives and many others were grievously injured. The Bill was put through both Houses of Parliament in five or six days and has remained on the statute hook ever since. It has been 899 the subject of two inquiries: one by the noble Lord, Lord Shackleton, and the other by the noble Earl, Lord Jellicoe.
It seems to me to be quite clear that certain results follow. First, I do not think that anybody who reads either of the reports can have any doubt that both noble Lords took the view that as a result of the exclusion power being on the statute book a number of people are alive today who otherwise would have been dead. As a Home Office Minister for five years, I have absolutely no doubt that that is correct. When I gave evidence to the noble Earl, Lord Jellicoe, I said that I believed that any decision by Parliament to withdraw these powers would undoubtedly lead to the risk of more innocent people losing their lives. As a junior Minister dealing with the police and general security questions, I saw the submissions made to the Home Secretary on exclusion order cases. Inevitably I devoted a substantial amount of time to analysing the evidence which was going to be put before the Home Secretary and making a recommendation as to whether he should or should not make an exclusion order.
Having said that, I agree very strongly indeed with what the noble and learned Lord, Lord Denning, said about the character of the evidence. If the people concerned were IRA terrorists we should of course have preferred to bring them to trial and get them convicted in an English court. But the evidence which we had in many of these cases left me in no doubt that although the person concerned was an IRA terrorist, it would not have enabled us to secure his conviction in an English court. That is why the Bill was introduced in the first place. The fact is that if it had been known to some of the people who have been subject to such orders what the character of the evidence was and the identity of some of the people who had brought these matters to the attention of the security authorities, then there is no doubt that those people would have been murdered. It is exactly that point which the House must face up to when discussing Clause 3.
I do not wish in any way to return to the point made by my noble friend Lord Wigoder a few moments ago about the attitude of the Opposition in another place; the point has been made and I entirely agree with what he said. If there were today a Labour Government, then following the bombing of Harrods I would find it incredible to believe that that Labour Government would not now be asking Parliament to renew these powers. I believe that we would be gravely deficient of our responsibilities were we not to give the Government the powers they are asking for today.
§ 6.40 p.m.
§ Lord Henderson of Brompton
May I say a brief word as my name has been mentioned by the noble Lord, Lord Wigoder, in connection with some amendments which the Alliance are moving in respect of Clause 17 concerning parliamentary control. I myself agree with the noble and learned Lord, as I said on Second Reading, and with the noble Lord, Lord Harris of Greenwich, who has just sat down, that much though one dislikes the orders in Part II, they must be continued for the time being. I will only pray in aid the words of Lord Jellicoe: 900those ministers and police officers who have operated the system are convinced that exclusion has on occasion saved lives throughout the United Kingdom".I myself cannot go against the evidence submitted at the outset of Chapter 9 of Lord Jellicoe's report, nor against his conclusion that:the power to exclude should remain available to the Secretary of State in extreme cases".On the other hand, Lord Jellicoe sets out most fairly in his report all the objections to exclusion orders, and in particular lie says that in his visits to Northern Ireland—and here I follow the noble Lord, Lord Fitt:I was impressed by the unanimity of view expressed to me on this point. Every political party"—I repeat, every political party—from which I received oral evidence—and these included Unionist and Republican parties—expressed the view that the power to exclude had been used so as to turn Northern Ireland into a 'terrorist dustbin'".Lord Jellicoe said also:it can have severe effects not only on the excluded person and family, but also on the population of Northern Ireland".That, I am sure, is what the noble Lord, Lord Fitt, had in mind.
One has to weigh up the balance, but I come down on the side of Lord Jellicoe and other noble Lords who have spoken in saying that if it is the opinion of the Ministers and the police officers who have to operate the system that exclusion has on occasion saved lives throughout the United Kingdom, then it must be right to allow exclusion orders to remain part of this Bill. I would ask the noble Lord, Lord Mishcon, and his colleagues if they will not agree to drop their outright opposition to the intentions of this part of the Bill and instead—and I do not wish to anticipate what I will be saying later—support my amendment, Amendment No. 11, which will provide not just one annual order but two; one annual order to approve the continuance of the Act, which will apply to the latter part of the Act, and a second order which will apply to the continuance or not of the provisions relating to exclusion.
If I may say so with great respect to the official Opposition, I do not believe that the Committee would be with them or that they would gain anything by dividing the Committee in seeking to remove Part II. On the other hand, I feel very strongly that the whole Committee would support special scrutiny annually of exclusion orders. I hope that the Committee will agree to that instead of the amendment which the noble Lord, Lord Mishcon, and his colleagues have proposed.
§ Lord Hylton
I believe we should be extremely discriminating in this matter of exclusion orders. I have some evidence which tends to show that the Royal Ulster Constabulary would perhaps be satisfied with a system of exclusion orders that operated only to exclude people who have already left their jurisdiction. It would therefore prevent people from returning and not expel them from where they are currently living.
I have not had a chance to put a similar question to English police forces but it is possible that some at least may be in agreement with their colleagues across the water. I believe it will be extremely helpful if the 901 Government can say tonight that they will at least consider some method of reducing the scope of exclusion orders, perhaps along the lines I have suggested.
The Earl of Enniskillen
I rise to say that I wish to support very sincerely the remarks made by the noble and learned Lord, Lord Denning. I say that in some distress, as I have a great deal of admiration for the noble Lord, Lord Fitt. Perhaps I may take this opportunity to welcome him, as I have not been able to do so before.
The noble and learned Lord, Lord Denning, said en passant that this order is by no means an out-of-date measure. How right; how right indeed! I have been out of touch for a very long time with the affairs of Northern Ireland, but it was a terrible distress for me, after I had been away for some six years, and only following events in the newspapers, to return to a debate in your Lordships' House; and, had I shut my eyes, I could have identified almost every speaker, and I could have written his speech before he had finished making it. That was years ago—and here we are.
I appreciate the kind of tone in which the noble Lord, Lord Fitt, has very properly explained to your Lordships this afternoon the terms of exclusion in Northern Ireland. They go hack in history and it is a connotation which unfortunately,' cannot he buried and which continues to spoil and despoil the hopes of establishing sanity. I would support every single measure against any individual which can help our people who are fighting this evil in Northern Ireland—be they civilians with no authority, be they the Ulster Defence Regiment who are doing their duty, be they our own troops whom we have sent over there to give support, he they our politicians, or anyone else who is trying to make something out of the monstrous mess into which the IRA have put us. I would support every single measure against an individual that would make it better for the vast majority of the people who want it so, and I am therefore very much in favour of repeating this legislation and shall always be in support of such measures, providing they do achieve their object.
The noble Lord, Lord Fitt, drew attention to Mr. Gerry Adam's case, excluded one day, unexcluded the next. That sort of play-acting—that is all I can call it—is intolerable under the circumstances that exist. If this order exists, it exists because it is necessary for it to exist and no one of your Lordships would have it otherwise. I am very surprised, because I did not know, that any such thing had occurred, that an exclusion order could he withdrawn just like that, and there were certainly, in my humble estimation, no grounds for so doing.
I do not wish to occupy your Lordships' time any further. I would like to support the noble and learned Lord, Lord Denning, in his view which I think was very clearly and adequately expressed.
§ Lord Prys-Davies
I, too, should like to respond to the contribution of the noble and learned Lord, Lord Denning. The Committee should remind itself that there are very few countries in the Western world whose citizens can be ordered to live in one part of the country but not another, and the exclusion order is 902 made, as was explained by my noble friend, without a vestige of legal process. Nevertheless, the noble and learned Lord, Lord Denning, for whom I, as a solicitor, have always had the greatest respect, argues strongly that the power to make an exclusion order should be retained, though he is careful to indicate that there ought to be a safeguard. But what safeguard is there in the Bill against the abuse of the exclusion-making process? There is none. The noble and learned Lord will say. "Go to the adviser, and the adviser will be a lawyer". I was an adviser under the wartime regulations. I would have every confidence if I could refer my case to Lord Denning, but the Bill does not provide for a lawyer to he made available as the adviser: so far as the Bill is concerned—and the Minister will correct me if I am wrong—a policeman could he an adviser. I make that point because the Prevention of Violence (Temporary Provisions) Act 1939 laid down that a policeman could not be an adviser. But there is nothing in the Bill to tell us who can be or who cannot be an adviser.
My noble friend Lord Mishcon pointed out the six disadvantages of a person against whom an exclusion order is made, but I believe that there is a seventh disadvantage which has not been referred to this evening. A person against whom an order is made will, even if he makes a representation to the adviser, he told nothing of the advice which has been tendered to the Minister; so that if the Minister overrules the objection, the person affected will not know whether the Secretary of State is acting in accordance with or against the advice. Those are the comments I am prompted to make after listening to the intervention of the noble and learned Lord, Lord Denning.
§ Viscount Massereene and Ferrard
The noble Lord who has just spoken said that as far as he knew there was no other country in Western Europe which had had exclusion orders; I understood the noble Lord to say something like that. But there is no other country in Western Europe that has to deal with the IRA. The nearest organisation, I suppose—it is not at all like the IRA though it is almost as ruthless—is the Red Brigades in Italy, but I understand they have been pretty well brought to hook now.
Though I have the greatest respect for the law, you cannot fight terrorists with the law. If you do that, as the noble and learned Lord, Lord Denning, said, you are putting innocent people's lives in jeopardy, and it is quite certain that, if we had not had this exclusion order there would, as a noble Lord said, have been many more innocent people murdered.
§ 6.55 p.m.
§ Lord Elton
The noble Lord, Lord Mishcon, who has temporarily fled the field, has had many answers to the questions he asked at the beginning of this debate. I must ask your Lordships to bear with me a moment if I dispose of one or two matters other than the central one he raised before I come to it. The noble Lord, Lord Wigoder, and the noble Lord, Lord Henderson of Brompton, invited me to, as it were, speak from inside a crystal ball with a muffled voice about what is to come later on on the Marshalled List. My answer, when we come to that will not be so stark and cut and dried that I can say it is either yes or no; I am not given 903 to favour the precise proposals on the list, but I am disposed to recognise the difficulties which they address and to seek some other means of achieving a resolution of the difficulties. If I have rightly surmised what the difficulties to which they are addressed are, I think the noble Lord will at least wish to take some time before he conies to the conclusion that all is lost, and he may in fact find that something has been gained.
I find it difficult always to discard large patches of speeches when other noble Lords have made them far more effectively than I can to start with. I think I ought merely to summarise, starting at the point where Lord Mishcon abandoned his quotation from the report of my noble friend Lord Jellicoe. His concluding words, very bravely, I thought, under the circumstances, wereThose Ministers and police officers who have operated the system arc convinced that exclusion has on occasion saved lives throughout the United Kingdom.".Many of your Lordships, like the noble Lord, Lord Henderson of Brompton, would think it was scarcely necessary to debate the matter further, but I accept that we are a careful watchdog and that we must.
I then look at the actual recommendations which my noble friend made, which the noble Lord, Lord Mishcon, did not quote, though he alluded to them. The first (Paragraph 176) says:I conclude, in effect, that the exclusion of some people under those powers has materially contributed to public safety in the United Kngdom and that his could not have been achieved through the normal criminal process.".The report goes on a little later, in Paragraph 178:My conclusion is that the power to exclude should remain available to the Secretary of State in extreme cases; that its severity should be mitigated in the way I suggest below—and I shall come on to that—and that the possibility of abolishing it should be kept under regular review without prejudice to the Act's other powers.".I shall come on to that when we debate the amendments in the names of Lord Wigoder and Lord Henderson of Brompton. I therefore think it does not need to be further stated—your Lordships will recall me to the Dispatch Box if it does and I shall come with alacrity—that these measures do save lives.
We then return to what the noble Lord, Lord Mishcon, rightly pointed out as being the central matter in our discussions; that is, not whether this legislation is needed but whether it goes further than needed. I now come to both the letter and the spirit of the proposals made by my noble friend Lord Jellicoe and to which various noble Lords have referred. Here I revert to a text which I hope your Lordships will not find too long because the issues are not that complicated.
At present exclusion orders have an indefinite life and they remain in force unless and until they are revoked by the Secretary of State. My noble friend recommended that such orders should have a limited life of three years, at the end of which period they would automatically lapse. We have accepted that recommendation and it is incorporated in Clause 3. If at the end of that period the police believe that the subject of the order is still involved in terrorism it will be up to them to make out a fresh case to the Secretary of State. He and my right honourable and learned 904 friend will only make another order if he is satisfied, on the basis of the intelligence available, that the criteria for making an order are fully met. The intelligence on which the first order was based will not be sufficient for this purpose.
Under the present Act a British citizen is exempt from exclusion from a part of the United Kingdom if either one of two conditions is met. He is exempt if he is already the subject of an order excluding him from the other part and he is exempt if he has been resident in the part from which he would otherwise be excluded for 20 years. My noble friend recommended that this period be reduced from 20 years to three. We have accepted this recommendation and it is incorporated in Clauses 4 and 5. I believe that that will considerably reduce the possibility of hardship to families who otherwise would have to uproot themselves from their long-established homes.
Clause 7 deals with the rights of a person who is made the subject of an exclusion order to make representations. My noble friend made a number of recommendations in this area. Those requiring legislative force are as follows. First, that the period during which the person is entitled to make representations should be increased from the present 96 hours to 7 days. We have accepted that recommendation and it is incorporated in Clause 7(4) of the Bill. The second is that the present restriction on a person's right to an interview with one of the Secretary of State's advisers, which means that there is no right to an interview if the person has already been removed, should be lifted. We have accepted that recommendation and Clause 7(8) provides for such interviews to he held in Great Britain, in Northern Ireland or in the Republic of Ireland. Moreover, in order to limit the time spent in custody, in Clause 7(5) an excluded person who agrees to he removed is given a period of 14 days from the date of his removal in which to make his representations.
Turning briefly to more general principles, it has been suggested that the powers of exclusion are unnecessary because they do no good. Some have even said that the tragedies of recent months show that the power to exclude is ineffective because it did not prevent those awful incidents. That has not been suggested here but it has been suggested elsewhere. The essentially preventive nature of the exclusion powers does I accept make it extremely difficult to judge their effectiveness. The system only comes into operation when there can be no question of a prosecution. Here, I am on common ground with the noble Lord. Lord Harris of Greenwich. That situation may arise through perfectly normal circumstances. But it does also happen that the intelligence on which cases are based is so sensitive that it cannot be exposed in court without endangering lives. It does also happen that a man, released after serving a sentence for explosives offences, makes it clear on his release that his determination to act is as strong as ever. Sometimes it becomes clear that to prosecute would prejudice the gathering of further intelligence from the same source. There, as the noble Lord, Lord Harris of Greenwich, made abundantly clear, lies the answer to the noble Lord. Lord Mishcon, who expressed surprise that so few who are excluding are subsequently charged. If they could have been charged they would 905 have been charged and exclusion would not have been necessary. It is only where circumstances change and a charge becomes possible after an exclusion order that it becomes appropriate or to he expected that a charge should be made.
My noble friend Lord Jellicoe carried out a painstaking examination of a large number of exclusion cases and spoke at length to those engaged in the operation of the system. He concluded that the power should remain. His conclusion was reluctant and regretful hut it was firm, and I believe that it was right. I almost said that it was unquestionably right but your Lordships have a duty to question everything in which you are in doubt and I hope I shall dispel your doubts on this. My noble friend Lord Jellicoe was in no doubt that there has been cases where exclusions had kept dangerous criminals out of Great Britain.
My noble friend also found that in a number of cases the operational effectiveness of individual terrorists was substantially impaired by being unable to travel freely to the areas from which they were excluded. Your Lordships know that we are dealing with serious men—hard men, as the noble Lord, Lord Fitt, would say from the breadth of his experience—and that we cannot trifle with them or the regulations under which we seek to control them. The judgments involved in deciding such cases are extremely difficult. They involve a careful weighing of police intelligence and other information but I can assure your Lordships of the care with which they are considered by my right honourable and learned friend the Secretary of State. What he is weighing against the risk of restricting the freedom of movement of one individual is the risk that if the restriction is not made another bomb will go off, as they have gone off, in Hyde Park, Regent's Park, or in the crowds shopping in a busy West End store. Those who argue against a power to make those restrictions need to argue also that the lives so lost are less valuable than the limited amount of freedom that the power permits him to remove. If your Lordships doubt the answer to that argument, ask the widows and orphans of those who have perished in spite of the exercise of those powers since 1976.
The third, and possibly the most difficult point considered by my noble friend Lord Jellicoe concerned those cases in which, although there is no doubt whatsoever about the terrorist sympathies or activities of the people concerned, the nature and sensitivity of the case against them is such that there is no other available means of dealing with them. Inevitably, in these cases we are asking Parliament and the public to take on trust the fact that such cases are extremely strong ones and that in some of them only the need to protect the sources of information prevents the police from bringing charges. For very obvious reasons I can give no examples of such cases at all; but your Lordships will accept that good intelligence is vital to the protection of the lives of innocent citizens. I do not believe that that is in question. Nor should we deny the Secretary of State the power to act on that intelligence to protect the public. I take no comfort from the fact that it is still necessary to ask for powers to infringe the traditional rights and liberties of British citizens; but the fundamental and absolutely essential right and liberty of the British citizen, as in any other country, is the right to stay alive. My noble friend Lord 906 Jellicoe was quoted by the noble Lord, Lord Mishcon, as I said at the beginning of my address, as saying that exclusion has on occasions saved lives throughout the United Kingdom.
I am deeply grateful for the support of the noble and learned Lord, Lord Denning, and the immense distinction which he brings to the point of view which we hold on this side of the House. As to the noble Lord, Lord Fitt, like the noble Earl, Lord Enniskillen, who I first met on the wettest day in the Province of Northern Ireland—and that is saving something!—I greatly admire the noble Lord, Lord Fitt, for his courage and forthrightness, but I must disagree with him. There is certainly an imbalance between the numbers of terrorists excluded from Great Britain and allowed to be in Northern Ireland and those excluded from Northern Ireland and allowed to be in Great Britain.
Look at it how you will, the sad and depressing fact is that there are more terrorists in Northern Ireland than in the rest of Great Britain. If the powers were not symmetrical they would be grossly unfair. What is more, we should have more dangerous people at large in parts of the country where they wished to create mayhem and kill people. That I think is sufficient answer.
The noble Lord, Lord Fitt, and my noble friend Lord Enniskillen both asked me about the case of Mr. Adams. The order against him was revoked because it was thought wrong that a Member of Parliament should be hindered or prevented from travelling freely within the United Kingdom. Whereas the Bill addresses itself to protecting the rights of the individual, we also have to remember that we have to protect the rights of Parliament. I believe that the decision was the right one—although I see that the noble Lord, Lord Mishcon, does not agree with me.
The central issue before us is this. There are powers here which are necessary to save lives. If we do not have these powers, more lives will he lost. Of that I am convinced—as I think most of your Lordships are, too. If we are not given the powers, the result will be more people either dead or maimed, and we have seen enough of that. For God's sake, please give us these powers.
§ 7.11 p.m.
§ Lord Mishcon
Everyone in this Committee will have respect for the last words of the noble Lord the Minister. Any Government having the responsibility in these troublous matters must obviously take decisions and hope that they will carry Parliament in them. I respect the point of' view that the noble Lord puts forward, but from this Dispatch Box I want to make one thing absolutely clear. There is no difference between the two parties in their abhorrence of terrorism or in the belief that where somebody has been convicted of the crime of terrorism he should be imprisoned for as long as public safety requires it and should have a very severe sentence indeed. There is no difference between us at all.
The noble Lord, Lord Somers, quite fairly put to me that sometimes one seems to hear in this House and in other places more sympathy for the criminal than for the person injured by that criminal. I would say to him 907 that that is not an apt description of somebody who is subject to this exclusion order. A criminal is a person who has been convicted of a crime; if any such person convicted of a crime of terrorism was before the courts, I repeat that I would hope that a proper custodial sentence was imposed in order to protect the public.
The problem in this case is that we are not dealing with people who been proved to be criminals: and we are dealing with a very human Secretary of State and a very human series of police officers. Those of us who have any experience in the law and possibly outside it know of the sorry number of cases where spiteful anonymous letters have been sent and spiteful evidence given about people which are subsequently proved to be false. The only way that can ever be tested is by thorough examination and cross-examination in a court of law.
Your Lordships will see the fallacy in the case. When the noble Lord the Minister replied to the criticism about Mr. Gerry Adams he said that these powers were necessary and should be enforced because they were in fact leading to the saving of life; and if they were not there life was endangered and one did not have the right to endanger life. If that exclusion order against Mr. Adams was made by the Home Secretary on the basis that he was endangering the lives of our citizens, what right had any Secretary of State to allow him to journey, from Ireland to the Houses of Parliament and to be in this country in order to endanger the lives of citizens? Does the Secretary of State feel that it is perfectly all right to accord the dignity and liberties to do these things to a Member of Parliament but not to Mr. A or Mr. B who does not happen to have the privilege of being a Member of Parliament?
I say these things not because the noble Lord the Minister was saying anything absurd or anything that was wrong. One merely sees the difficulties of all this business of exclusion orders, which are so remarkable and extraordinary from our point of view and from everything that we know, as the noble Lord, Lord Fitt, said, in our English law, going back with our record of justice over a period of one thousand years or more.
We have had a debate. We have done what we ought to do; this is the only wish of the Opposition. We have scrutinised these extraordinary powers and had a debate about them. It is quite obvious to me, having heard that debate, that although we have put our point of view with sincerity, it is not a point of view that will command the support of the majority of your Lordships' Committee. If that be so, we have done our duty and I do not intend to divide the House.
§ Clause 3 agreed to.
§ Clause 4 agreed to.
§ The Deputy Chairman of Committees (Baroness Wootton of Abinger)
The Question is that Clauses 5, 6 and 7 stand part of the Bill?
§ Clause 5 [Orders excluding persons from Northern Ireland]:
§ Clause 6 [Orders excluding persons from the United Kingdom]:908
§ Clause 7 [Right to make representations to Secretary of State etc.]:
§ On Question, Whether Clauses 5, 6 and 7 shall stand part of the Bill?
§ 7.17 p.m.
§ Lord Monson
I should like to ask the Minister a question about Clause 6(1)(a). Clause 6 is presumably directed against terrorists or former terrorists from the Irish Republic and possibly from other EEC countries whom immigration officers might otherwise find it difficult to ban because of the common travel area, or because of EEC freedom of movement regulations. However, if Clause 6(1)(a) remains unaltered, these terrorists or erstwhile terrorists can be excluded only if the terrorism in which they were involved was connected with Northern Ireland. Surely in this overcrowded island the Home Secretary should have the power to exclude any non-British citizen who has been involved with terrorism anywhere in the world.
§ Lord Elton
I regret that I am not entirely certain whether I have followed the noble Lord, Lord Monson, in his question. Clause 6 gives the Secretary of State power if he is satisfied that any person:is or has been concerned in the commission, preparation or instigation of acts of terrorism to which this Part of this Act applies".The noble Lord asks who these people are. We are in Part II of the Bill. These people are in fact those who commit acts of terrorism anywhere in the world. But if those who support me in these matters have heard the noble Lord better than I did, I think he is concerned about undesirable aliens arriving in this country. If that is the case, of course, we have the whole panoply of the immigration laws at our disposal and in that case nothing particular is needed.
§ Lord Monson
If I might help the noble Lord the Minister: as I understand it the Home Secretary in the normal way has no power to ban citizens from the common travel area, and he may have difficulty in banning the entry of citizens from other EC countries and possibly the Commonwealth. But it appears that the acts of terrorism referred to in Clause 6(1)(a) are only acts of terrorism to which this part of the Act applies—that is to say, acts of terrorism involved in Northern Ireland. What I am suggesting—not of course to be dealt with at this stage—is that perhaps the Minister would look at subsection (1)(a) again and consider deleting all the words in that subsection after the word "terrorism". That would mean that it would cover not just certain, but all acts of terrorism, wherever committed.
§ Lord Hylton
A concrete example perhaps of those with whom my noble friend is concerned might be, say, a Basque terrorist and whether he can be kept out, given the privileges of citizens of the EC.
§ Lord Shackleton
I hope that the noble Lord will not pay much attention to this proposal. It goes far wider than anything proposed in the Bill.
§ Lord Elton
The Home Secretary already has adequate powers to exclude people from the EC. I think that that is the reassurance that the noble Lord, 909 Lord Monson, requires. If he requires more, he will perhaps be kind enough to write to me, and I shall write to him.
§ Lord Monson
I shall, of course, write to the noble Lord if he is unable to satisfy me on this point: can the Home Secretary exclude from entry to this country someone from the Irish Republic who had been concerned with terrorism elsewhere in the world than in Northern Ireland?
§ Lord Mishcon
I wonder whether I might assist the Committee. If one turns to the explanatory memorandum on the front of the Bill it says:Part II enables the Secretary of State to exclude from Great Britain. Northern Ireland or the United Kingdom persons concerned in terrorism designed to influence public opinion or Government policy with respect to affairs in Northern Ireland".Part II appears from that summary to he limited to what I have read out. I was hastily looking through the provisions of Part II to see whether that was made clear. However, if that is the summary, I have no doubt that it is the situation.
§ Clauses 5 to 10 agreed to.
§ Clause 11 [Information about acts of terrorism]:
§ On Question, Whether Clause 11 shall stand part of the Bill?
§ Lord Wigoder
I desire to oppose the question that Clause 11 stand part of the Bill. It is the clause that provides that if a person has information that he knows or believes might be of material assistance in preventing the commission by another person of an act of terrorism he shall be guilty of a criminal offence. I draw attention to the wordsknows or believes might he of material assistance".This clause is perhaps the least significant of the powers given by the Bill. It is one that has repeatedly caused difficulty. I say that it is one of the least significant in its effect unless one is reduced to arguing that it is impossible to ascertain what its effect might be on people who have never been charged under the clause. Of the people who have been charged in Great Britain over the eight years from 1974 to 1982, nine were convicted of that offence. Most of them, I think, were convicted in one case, although I may he wrong about that. Certainly none of them committed an offence of any great gravity because none was sent to prison for more than a year, and only two were sent to prison at all.
In Northern Ireland, one would perhaps expect many more such offences to be committed. Over the same eight years, some 22 people were convicted. I have been unable to find—I am sure that it is due to my oversight—what happened to the 22 who were convicted. It does not appear to be contained in the tables in either the report of the noble Lord, Lord Shackleton, or that of the noble Earl, Lord Jellicoe. However, I would he surprised if any of them were sentenced to very long terms of imprisonment.
910 The creation of this offence in Clause 11 has given anxiety both to the noble Lord, Lord Shackleton, and to the noble Earl, Lord Jellicoe. The noble Lord, Lord Shackleton, in his report, very carefully argued, came down, on balance, against renewing the power in any further legislation. The noble Earl, Lord Jellicoe, in what was an equally carefully balanced argument, came down eventually just in favour of renewing this provision in any new legislation. I hope that it is not unfair to the noble Earl, Lord Jellicoe, to suggest that he was perhaps just a little confused by the fact that he seems to think at one stage that all that Clause 11 did, in effect, was to re-enact the common law of this country. On page 86 of his report, he says that among the consequential amendments to the Criminal Law Revision Committee's report of 1965 was the abolition of the offence of misprision of felony. The noble Earl's report adds:The principle of the offence was therefore identical to that of section 11, in that it required no more than knowledge of a particular state of affairs and concealment of information about that state of affairs".The noble Earl, Lord Jellicoe, was perhaps not placing sufficient emphasis on the fact that the common law offence of misprision of felony only applied to people who had knowledge that a felony had been committed whereas this clause extends that to make it a criminal offence to anyone who believes that he has information that might he of material assistance in relation to some offence yet to be committed. There is the fact that the noble Lord, Lord Shackleton, and the noble Earl, Lord Jellicoe, came down, on balance, on different sides.
There are, I think, four arguments against including this clause in the Bill. I can state them briefly and then cease my observations. First, it is now a matter of historical fact that this clause got into the original Bill as a result of a Back-Bench amendment. It was never proposed by any Government at any stage as being an essential power that they ought to have. Although I am happy to move what might be called Back-Bench amendments when I get the chance, it is perhaps fair to say that on legislation of this sort it is not really the safest, the most desirable and the most carefully considered way to proceed.
Secondly, there is the fact, as I have indicated, that there is no precedent in English law at all for an offence of this width. Thirdly, again as I have indicated, it is clearly of very little practical value on all the figures that we know in preventing terrorism. Fourthly, there is the fact that I regard this clause, the creation of such an offence, as being offensive to common sense. It is offensive particularly in the circumstances of individuals living in Northern Ireland to say that it should be a criminal offence if they fail to disclose to the police information which they think might be of material assistance that might lead to the arrest of their wives, their children or their next-door neighbours. It seems to me quite wrong. It seems to me a total infringement of civil liberties and to have no compensating virtues. In those circumstances, having regard to the chequered history of this clause, I hope that your Lordships will conclude, in due course, that it is not appropriate that this clause should be included in the Bill. I beg therefore to oppose the question that this clause stand part.
§ Lord Denning
May I also say a word about this clause. I hope that it will he retained. With all respect to the noble and learned Lord, Lord Wigoder, he has not got his common law right. We had a case in 1962 in this House in its judicial capacity when I presided—the case of Sykes and the Director of Public Prosecutions. It concerned that old offence called misprision of felony. That sounds very odd to us modern people but it really meant that if a man knew that a felony had been committed it was his duty to report the same to the proper authority. It goes back to the whole case of hue and cry. If someone knows that a man has been robbing another he raises the neighbourhood and a hue and cry. So if one knows that a man has committed a felony, one should report it to the proper authority.
The case that we dealt with is very apposite to our discussion this evening. It occurred in 1962. There was the theft of machine guns and ammunition from the Royal Air Force base in Norfolk. Where had they gone to? Who knew? Mr. Sykes in Manchester was found negotiating the sale of that ammunition and those firearms to a person who was purchasing for the IRA.
Mr. Sykes could not he charged with being an accomplice to the theft. There was no evidence that he was connected with the theft. He was only a contact man. He could not be prosecuted for being an accessory at all. The only offence known to the law was misprision of felony. It was his duty to have made it known to the police and the authorities that there were guns and ammunition in Manchester that he was trying to sell. The offence is still most valuable in the case of felonies which have been committed and about which the individual does not know. It is not to make him tell, but to punish him if he does not tell.
Let me give one more example. My learned friend said that it only applies when one knows that a felony has been committed. It is equally the law when one knows that it is about to he committed. Let us suppose that a man hears robbers planning a bank raid. Is he to keep quiet about it and not warn the police that a raid is about to take place so that they can intervene and stop it? If he does not tell them, it cannot be proved that he is an accomplice. But one can at least get him for misprision, or one ought to do so. So surely it is the duty of every man, if he hears and knows that a bank raid is going to be committed or if he hears and knows that a bomb is going to be planted in Hyde Park or the like, to tell the proper authorities? That is the object of such a clause as this, and to punish such a man if he does not do so because it is 10 to 1 that he is an accessory, but one cannot prove it.
So this offence should be retained. When one considers at length the history in that judgment of mine, your Lordships will find that for 700 years that has been the offence of this law—misprision of felony. It was only taken away in 1967 when we abolished the distinction between felonies and midemeanors. However, this House in its judicial capacity said clearly that the offence did exist. It has only been taken away by that side wind. It applies not only when one knows that a felony has been committed but even more important—and it goes back hundreds of years—when one knows that it is about to be committed. One must tell the police so that they know at once. That is why I say—going back to our old 912 common law and going hack to our old good sense—this is only repeating in specific regard to terrorist offences, the old common law. Therefore, I ask the Committee to uphold the clause.
§ Lord Wigoder
It is a very brave person who dares to stand up in your Lordships' House and query what the noble and learned Lord, Lord Denning, has said about the law; but obviously I did not make myself clear. I accept entirely that there was an offence of misprision of felony, that if a person knew that a felony had been committed it was his duty to report it to the police. What I was saying was that there is, so far as I know, no case in English law under which a person has been convicted on the basis simply that he knew that an offence may be committed in the future in which he was not to be in any way a participant, and failed to give information to the police. I accept, as the noble and learned Lord has said, that there may be a moral duty in those circumstances; but I do not think that there has ever been a legal duty.
§ Lord Denning
At the end of my speech in that case your Lordships will find my references hack to old Lambarde, 400 years ago and others since. So there is a case and an authority. It is important that if a man knows that it is going to be committed, it is his duty then to tell the police about it.
§ 7.35 p.m.
§ Lord Fitt
The more I listen to some of the comments in this House, the more I am convinced that this House is as far removed from Northern Ireland as the Sea of Tranquillity. Clause 11 just could not be made effective in Northern Ireland. There is so much intimidation of whole sections of the population both in the republican sector and in the loyalist sector, particularly in the City of Belfast. I ask the noble and learned Lord, Lord Denning, a specific question about a specific case, because we have heard him say that there is a duty to give information if one has such information at one's disposal.
I can recall that in 1974 or 1975 a very close friend of mine was driving along the Falls Road in Belfast, in the heart of a republican area. There was a traffic jam because the terrorist forces had deliberately played with the traffic lights. His car was stopped and three people jumped into his car wearing masks. One pulled out a revolver and said. "We are the Irish Republican Army and we are taking your car". He did not want them to take his car and he did a very courageous thing. He pulled one of the masks off one of the terrorists and he recognised the terrorist who also lived in the Falls Road, not very far from the district in which he lived himself. The terrorist told him, "Get out of this car, and if you tell anyone, you are finished". My friend got out of the car. He was absolutely terrified and in fear of his life. He did not go to the police. Whether it was his duty or not to go to the police, he did not do so because he was in fear of his life. It was obvious that the terrorists were going to use his car to carry out some illegal act, whether it even be murder or robbery. But the man who owned that car was not going to endanger his life or the life of his wife and family by going to the police.
913 It is all right talking in the atmosphere of this House about what is and is not one's duty. It is a matter of life and death. There must be hundreds if not thousands of people who are aware of—or believe they are aware of—some illegal act carried out by terrorists in Northern Ireland, but their lives are in danger. It is all very well from the atmosphere of this House or down the corridor to lay an obligation on those people and to say, "Never mind about the fact that you may be killed, that you may get"—in terrorist terminology—"a head job"; in other words, your brains blown out, or kneecapped, or your car burnt outside your door.
I remember another case and it is one about which I felt very bad indeed. A disabled person in Northern Ireland came to me and asked me to make representations so that he could be supplied with an invalid car. I made the representations. After a number of months I was successful and he was granted the use of an invalid car. Two or three days after he received the invalid car he was cooling up the New Lodge Road and he was stopped by terrorists. He knew them; they were not wearing masks. They asked him if he would transport arms and ammunition from one section of Belfast to another section of Belfast on the grounds that the Army or the police or the security forces would never believe that arms were being transported in an invalid car. This poor chap was so pleased that after a number of months I had been able to get him his car, that he refused point blank and he said he was not going to transport arms at all because he was delighted he had the car and he was frightened that he may, be stopped by the security forces. So they closed the door and they let him go. At a quarter past one the next morning a petrol bomb was thrown into his little invalid car, which was parked outside his home.
These arc the realities; these are the facts. Did anyone really expect that invalid to ring up the police and say, "I was stopped and asked to transport arms by a member of the IRA"?—because it was undoubtedly a member of the IRA. Those are the facts of life, and no matter how much we in this House may try to place the onus of responsibility on people to inform the security forces, at the end of the day people's lives and limbs are at stake, and I believe that it would be totally unjust to force such an obligation on them.
§ Lord Monson
I have great sympathy with what the noble Lord, Lord Fitt, has just said, but would not the cases which he described he covered by the words "without reasonable excuse" in subsection (1)(b) of this clause?
§ Lord Elton
When the noble and learned Lord, Lord Denning, contributes to our debates I have a certain feeling of superfluity about my presence here to deal with some of the major issues before your Lordships. I need not now go into the ancestry of misprision of felony or these powers, and I would not wish to get caught in the crossfire if I did. However, it is established that there is precedent, and I shall therefore take that as read and again consider the matter of the recommendations put to us and our reactions to them, which I think have made the provision in the Bill more acceptable to your 914 Lordships. In the process I hope that I shall also be able to say something to assuage the understandable anxiety of the noble Lord. Lord Fitt.
My noble friend made a thorough and detailed examination of the issues involved, extending to nearly seven closely reasoned pages. He concluded that the section in the Act was:of significant value to the police service but that the service could operate without it if required to do so.Secondly, he concluded that they should not be required to do so and that the value of the provisions was not out-weighed by the arguments of principle against it. Thirdly, he concluded that, subject to the implementation of his recommendations that are designed to guard against the possibility of abuse, it should remain part of the legislation.
In coming to those conclusions, my noble friend considered three areas of possible abuse. In paragraph 231 he dealt with the danger of unfair pressure being brought to hear by the police on, for example, the relative of a terrorist who happened to come into possession of information about terrorist acts even though not involved in such activities himself. The dilemma facing that person is that, if he passes his information to the police, he faces both the prospect of his relative being convicted and the possibility of reprisals, to which the noble Lord, Lord Fitt, has graphically alluded. But, if lie withholds the information, he then risks prosecution. My noble friend accepted that a person in this unfortunate position would be placed under great strain by the mere fact of the police bringing to his notice the provisions of Section 11. But he concluded that, even so, in extreme cases it could be justified, and he defined those cases as being ones in which the withholding of information might lead to death, serious injury or the escape of a terrorist offender. Most important, he said:it is vital that it is not used in a routine manner".He then recommended that the police throughout the United Kingdom should be advised by circular that Section 11 should be used only where they suspect that information is being withheld which could, if revealed, prevent acts of terrorism or lead to the apprehension of terrorist offenders.
It has been suggested that the recommendation does not fully reflect the care and consideration which led to it. Although chief officers of police were advised of this recommendation in a circular issued last August, the Government intend, in response to this criticism, to expand on the advice then given, so that it conveys the full sense of paragraph 23 I of my noble friend's report.
I accept that that is no consolation at all to the people to whom the noble Lord, Lord Fitt, referred, and I do not think that there is any consolation that we are able to extend to them. Some people are put in a position where they must risk either great danger or being in breach of the law. It is a matter for judgment when the law is brought to bear on those people, and it is our intention that we shall reinforce our advice to the police that that power shall be resorted to with the greatest of discretion. Of course, in Belfast the police are as aware as is the noble Lord. Lord Fitt, of the terrible stresses which this may produce and the fact that producing those stresses can on occasion be counter-productive and that there is therefore no 915 reason to use the power. But that does not mean that we do not need the power for use on other occasions.
In paragraph 232, my noble friend considered the applicability of the powers of arrest in Section 12 of the 1976 Act to persons suspected of an offence under Section 11. He concluded that reasonable suspicion of an offence under Section 11 should not be grounds for arrest or detention under Section 12 or under the equivalent port powers, and recommended accordingly. We accept these recommendations, and they are included in the Bill in respect of Clause 12 and will be incorporated in Article 5 of the supplemental order when it is made.
The noble Lord asked about the number of times this power has been used. I have a table which shows the number of persons charged under Section 11 of the Act and the outcome of the proceedings as at 31st December 1983. There were 14 people charged. One charge was not proceeded with, three persons were acquitted and 10 were found guilty, and, of those, eight received a suspended sentence and two received a sentence of one year or less. If my arithmetic is right, that makes up the full total of 10 convicted cases. I agree that it is a small number hut, with the greatest respect to the noble and learned Lord, Lord Denning, I do indeed accept that the purpose of the misprision of felony offence is not to make the individual tell but to punish him if he does not. However, of course, the knowledge of that punishment is sometimes sufficient to persuade him to tell, and it is because we think that that does happen on occasions that we wish to keep the power in the Bill.
Finally, my noble friend turned his attention to the question of self-incrimination, and I think that the noble Lord, Lord Fitt, will be interested in that too. He believed, and so recommended, that Section 11 should be amended to make it clear that the information which it is an offence to withhold related only to the conduct of a third party and not to that of the person being questioned. This recommendation is incorporated in Clause 11 by the inclusion of the words "any other person" in paragraphs (a) and (b). Thus it is now clear on the face of the Bill that it is not an offence for a person to refuse to incriminate himself.
I think that I have said enough to explain to your Lordships why we think this power is necessary. I hope that the noble Lord, Lord Fitt, will be reassured not only by what I have said but by the very rare occasions on which the power has been used, and that your Lordships will think it is reasonable to include it in the Bill.
§ Lord Shackleton
The noble Lord, Lord Elton, is aware that generally I have been supporting the Government over this Bill. The fact that I recommended the dropping of Section 11 in the earlier Act is not decisive for me because in the light of further evidence it is perfectly possible to change one's mind. I was very concerned that the noble Earl, Lord Jellicoe, had come down on the other side. I have re-read his arguments with great care—in fact, I have read them two or three times—and, if anything, they have strengthened my dislike of Clause 11. I should like to explain my reasons to the noble Lord.
916 The first is that the attempts of the noble Earl, Lord Jellicoe, to some extent, to modify or disarm the nature of this clause, though gallant, do not seem to me to be successful. The fact that the powers of detention under Clause 12 could no longer apply in this case does not seem to me to be decisive, because it is perfectly possible for the pressure to be applied in such a case. There is also this provision to amend Article 5 with the intention, as I understand it, by the noble Earl, Lord Jellicoe, that this should no longer be treated as a routine matter. I do not know what that means.
He suggests that it should only be where there is a threat of death, or there has been some act of violence. But in fact Section 11 refers to the preventing of an act of terrorism. That seems to me to be as clear a statement as you can have that it is in anticipation of a violent act, and I do not therefore believe that that further instruction that it should not be used in a routine way is decisive.
Perhaps the noble Lord can answer me on this: I understand that it is possible that these powers can be used in relation to the actions of journalists in seeking contact with terrorists. I do not welcome, and indeed have been shocked by, some of the appearances, some of the information, that journalists or television interviewers have achieved.
I fully accept that it is the duty of people to co-operate; to give any information they can. If this is so—and this is the inherent danger of this sort of legislation, which is why both Lord Jellicoe and I were so deeply worried about it, even though I believe it is necessary—there is the danger that the powers which appear to be related to people who have information, may even be involved indirectly, can be extended in a totally different way from that intended in the original legislation.
May I refer to some experience I have had in the past of dealing with terrorism in a situation in South Arabia. I realise that this is not in strict parallel, but at that time it was vital to me to make contact, in one way or another, with the terrorist leaders, and at the same time not make contact in a way that compromised the situation. It was undesirable, for instance, to arrange freedom of access. On that occasion—and this has not been published, but it is long ago now—it was the press who acted as my agents. They never published any of the information they had that could have compromised the negotiations which ultimately came about.
You may say that in this case I was representing authority; I was the law—I do not know whether the noble Baroness wishes to interrupt at this moment: I just want to make sure that I have the Minister's attention. It was a different situation, but I would find it objectionable if these powers were used in this way. Furthermore, and perhaps my major objection to this, the one aspect of this legislation which I would find objectionable is that it affects people who are innocent people.
My noble friend Lord Fitt has given examples. It may be that in some of those examples one could say there was reasonable excuse, but will it be accepted as a reasonable excuse? People can always use that argument. But these are people who are not 917 themselves necessarily involved in any way in terrorism, but it is imposing on them by law a responsibility which they already have as citizens. Therefore, after painful consideration, I have come to the conclusion, unless the Government can answer some of these points, that if my noble friends wish to divide the Committee on this I would feel bound to support them on this occasion.
§ Lord Monson
Could the Minister say whether, as a possible compromise, one could insert at the end of this clause. "No prosecution shall be brought under this section without the consent of the Director of Public Prosecutions", or the Northern Ireland equivalent? Would that be a possible safeguard that would merit support from all quarters of the Committee?
§ 7.54 p.m.
§ Lord Mishcon
I wonder whether it would be appropriate, when considering this amendment on which the name of my noble friend accompanies the names of the noble Lord, Lord Wigoder, and his noble friend, if one referred for a moment—and I promise not to be long—to what Lord Jellicoe actually said. Then I am going to follow on what my noble friend Lord Shackleton said in regard to what has in fact happened to journalists, or people much allied to the profession of journalism.
I think it is proper first of all to turn to page 84 of the report of paragraph 220. To summarise 220 he says that this has not been used very often. The conviction rate is about 50 per cent., but the question of rarity of use must not be the convincing argument, and he does not accept it as the convincing argument if it is of use.
Then at paragraph 222—and we heard before that it must he a matter that weighs very much with the Committee when you have complete police and security support for something, that that ought to be very much of a consideration—he frankly says:There was a wide range of responses from different police forces, some arguing that their task would be made substantially more difficult without section 11, and others in which the possibility of using the section in any form seems rarely to be considered".Then if you turn to page 87 he turns then to the right of silence in paragrah 227, and says that the section appears not to affect the right. Then asks for clarity in this area because, he says, the law in this state,may cause confusion, not to mention the possibility of abuse".May I in parenthesis deal with the point that the Minister made that the clause we are now considering makes it clear that you cannot be asked under this clause—and you cannot be convicted of an offence—if to do so would incriminate you yourself in giving the information. With great respect, this is not covered as the noble Earl, Lord Jellicoe, wanted to cover it. He mentions this on page 89, the very concluding words. He recommends in fact that,section 11, also, should be amended to make it clear that the information which it is an offence to withhold relates only to the conduct of third parties".All that this clause does is to talk in terms of information relating to third parties, but in no way at all does it meet the point which I ventured to raise on Second Reading. If you happen to have information which 918 relates to third parties and yourself as well, and you incriminate yourself by giving it, this is not covered by the present clause. In fact, it would appear to be an offence if indeed you do not reveal the information which incriminates other parties even though it incriminates yourself. That point has not been covered, and the clause is therefore objectionable even on the basis of Lord Jellicoe's point.
I wonder whether I may, with great deference, refer to the point made by the noble and learned Lord, Lord Denning, who told us, and he must be right—I do not say of course he is right; he must be right—when he says, with his great knowledge of the law, that misprision of felony ceased in 1967 by virtue of the peculiar chance, the fortuitous happening, of felonies and misdemeanours being merged, as it were, into one branch of the criminal law. We ought not to deal with that situation by a clause in a terrorism Bill. If it is right that we should have misprision of an offence, whatever it is, that ought to be done by a proper Bill and not sneaked into this clause. I know he will forgive me if I make that point.
Lastly, may I deal with the real point made by my noble friend Lord Shackleton. He dealt with the dangers of this clause being applied to journalists. He asked, with his usual courtesy, of the noble Lord the Minister that this matter should be clarified and that one should refer to any cases that may have involved journalists.
There is an unhappy history to this clause in regard to journalism and the media. This has been used in a way that no one ever felt when the clause was first passed. May I take your Lordships' recollection hack to July 1979. Your Lordships may remember that there was a BBC "Tonight" interview with a member of INLA—I nearly said ILEA, I am sorry—which provoked, and properly so, much controversial comment. The comment was that the BBC had lacked judgment and had shown not its usual good taste. There was a subsequent filming of an IRA roadblock by the "Panorama" team in October 1979 at Carrickmore which also produced a reaction that the BBC was acting wrongly.
Questions of good taste are matters for consideration and there can be two views. Alarmingly enough the Attorney-General took the matter in hand and reported the results of an investigation into these matters in another place on 1st August 1980. He said that he had decided not to prosecute the BBC under the old Section 11, which is the present Clause 11. He went on to say that he was,satisfied that the actions of the BBC staff were of a kind that would have constituted offences under section 11 of the 1976 Act".—[Official Report, Commons, 1/8/80; col. 2010.]We are doing something a little alarmingly when we get to this stage and allow the clause to be part of the Bill, if that is the interpretation.
The Attorney-General told another place later that he had informed the chairman of the BBC governors (who was Sir Michael Swann at that time) that:if similar incidents took place again, I would take a stricter view of what had happened and those who participated would he on warning that, subject to the evidence and circumstances of the case, they risk criminal proceedings under the Prevention of Terrorism (Temporary Provisions) Act".—[Official Reports, Commons, 1/8/80: col. 2012.]919 The media are in danger and journalists would appear to be in danger. This is in regard to a clause which has slipped into the previous Bills dealing with terrorism and is now before us. I once again say, with the deepest respect, that if we are considering matters of misprision of offences, of criminal offences, let us do it properly, let us debate it properly and let it not sneak in, to the danger of the media and other people who are perfectly innocent, by a clause in this Bill.
§ Lord Elton
May I start by saying that I should have acknowledged in my opening remarks the view of the noble Lord, Lord Shackleton, in the valuable report which he made on the legislation at an earlier stage. I freely acknowledge the value of that and I am grateful that he has told your Lordships the grounds for his opposition to this power in the Bill. I read his report with close attention, but it seemed to me that he felt so hostile to it in his bones that it was valuable to have him elaborate his hostility now.
As to the question of the press, I do not have much embarrassment in saying that the Government ought to have the power to act through the Law Officers where the activities of the press are such that they are seized of information which if given to the authorities would stop people from being killed who otherwise would be. I think the Government ought to have that power. I do not think that this is a question of a police state. The Government should have the power. We are not now talking about the effects of the media inciting violence—I have seen that in the Province myself. I have seen nothing on any form of media but people throwing petrol bombs at the forces of law and order on two or three acres of Belfast. We had an international pop festival in the city a mile or two away. We had a procession headed by the Lord Mayors of Belfast, Dublin, Wexford and other cities marching peacefully through the streets, watched by thousands, not two miles away. Need I go on? We had the final of the coarse fishing international on waters in the Province. We had a marathon. None of that was seen. All that was seen were the two or three acres. But that is not what this is addressed to. This is addressed to the journalist who is seized of knowledge that somebody is going to be killed and he does not give that knowledge to the authorities so that they may prevent that person from being killed. That seems to me a not unreasonable requirement and I make no apology for it.
Briefly on the right to silence, I thought I had made it clear that the references to another person in paragraphs (a) and (b) meant that it was not an offence for a person to refuse to give information which would incriminate himself.
§ Lord Mishcon
I can understand why the noble Lord the Minister did not follow me. It may be my fault for not being as clear as I should have been. It is the same point I raised on Second Reading so, to some extent. I gave him notice of it.
920 I am proposing the point of somebody being required to give information which relates to some other person and would incriminate that other person, but would also incriminate himself. The noble Earl, Lord Jellicoe, makes it absolutely clear in his report and his recommendation that legislation should make it abundantly plain that it was only when the information incriminated somebody else that the clause should apply. If there was any question of incriminating the person who was to give the information, it should not apply. He said that that should be clarified. I am pointing out as I did on Second Reading that that is not clarified in the clause. As it at present reads, a person would not be exempt from giving that information if it incriminated him as well as some other person.
§ Lord Elton
He was but he is very happy for an opportunity to digest advice with his eyes while he listens to questions with his ears.
I do not think that the noble Lord knows where he is living at the moment. It is inconceivable that there are not journalists and large numbers of people who know people who, under the Bill, might he prosecuted or convicted. I regard this as an undesirable development which will achieve awfully little except to frighten a few people off. It will not frighten many journalists. It may prevent a breach of taste and something which is objectionable to the British public. Then the whole panoply of the law comes in and the Attorney General threatens dire penalties. This is an undesirable conseqence of what was a well-intentioned clause, although I must again repeat what my noble friend has said. It was not in the original Act, and when I recommended against its use.—for it had not been used at all—almost immediately the police woke up and started making use of it. I still do not think that this clause is one that should remain in the Act.
§ Lord Elton
I am grateful to the noble Lord for that elaboration. There are points on which we have to disagree and I am pleased that this is one of them. I do not think that it is undesirable for members of the press to be under the same obligation to save life as anyone else, and this is what this is about. If one refuses to give information which saves life then one, in fact, contributes to loss of life. If I may revert to the noble Lord, Lord Mishcon. Clause 11 has been amended following Recommendation No 59 of my noble friend Lord Jellicoe to make it clear that the information in question must be about a third party. We are agreed on that. The noble Lord is anxious about where that pulls in information about the person who gives it. There can be no general answer to the noble Lord's question. It must depend, as I said on Second Reading, on the facts and the court's application of the defence of "without reasonable excuse" in the light of their understanding of the facts. Another consideration is that. in paragraph 232 of his report, my noble friend stressed that arrest under Section 12 is and should remain perfectly lawful where the person believed to he in possession of information about 921 terrorism is also himself suspected of terrorist involvement. That is about arrest.
I cannot do more to make clear what is intended by the Bill and I cannot usurp the function of the court in deciding what is a reasonable excuse. But we know that the courts do not expect people to incriminate themselves. The noble Lord, Lord Shackleton, the noble Lord, Lord Wigoder, and others regard this as a matter of very great importance. I believe that it is necessary that the powers should be used with the greatest restraint and I have to ask your Lordships to recollect the figures that I gave a moment ago, which show that only 14 people have been charged and 10 found guilty since this section came into force in 1976. I think that that is evidence of restraint. I can do no more to convince your Lordships. I believe that this is a measure which on occasion saves lives. That is what we are about. If your Lordships want to vote upon it I should like to vote upon it on those grounds.
§ 8.11 p.m.
§ Lord Wigoder
I should like to say at once that I accept that Clause 11 is a substantial improvement on its predecessor and the Government, I think, are entitled to credit for acting on the recommendations of the noble Earl, Lord Jellicoe, to that effect. I listened to your Lordships' observations with very great care. I want to make only one or two short comments. First, the points made about the press and the BBC I hope will not he misunderstood. I do not suppose for one minute that anyone was claiming that there should be a privileged position for journalists or broadcasters. The only point that was being made was that, if there is a section which obviously has an absurd consequence so far as they are concerned, then it must he an undesirable piece of legislation so far as the community as a whole is concerned.
The other observation on which I should welcome the noble Lord's assistance in writing at some stage before we proceed further with this Bill is this. I asked him what had happened to the 22 or so people who were convicted in Northern Ireland under this section. The figures that he gave, I think, were for the ones convicted in Great Britain; and they were the same as the figures that I gave originally. I should like to reflect carefully upon what has been said. I would propose, if I may, to return to this matter at a later stage. Perhaps it might be a stage upon which the noble and learned Lord, Lord Denning, might find himself with a pressing and urgent engagement elsewhere. At this moment, I would not seek to divide the Committee.
§ Clause 11 agreed to.
§ Clause 12 [Powers of arrest and detention]:
§ Lord Mishcon moved Amendment No. 1:
Page 10, line 28, at end insert—
("( ) No arrest by a constable is lawful unless the person arrested is informed of the ground for the arrest at the time of, or as soon as is practicable after, the arrest").
§ The noble Lord said: This amendment follows Clause 25(3) of the Police and Criminal Evidence Bill, which is before Parliament. One would have thought that it was sensible that it should apply equally to this Bill. I beg to move.922
§ Lord Elton
Under the common law, by virtue of the rule which is usually referred to, I understand, as Christie and Leachinsky, any person who is arrested is entitled to he informed, either at the time of the arrest or as soon as practicable after it, of the grounds of his arrest. That does not mean that he has to be given detailed reasons, for that would clearly be inappropriate, particularly where sensitive intelligence sources are involved. But he is enabled to hear the general grounds for the arrest. The principle embodied in this is an important one, as I am sure the noble Lord agrees, and we have taken the opportunity to codify it in legislation in Clause 25(3) of the Police and Criminal Evidence Bill. The purpose of that clause is to codify the common law on this point.
I am glad to assure your Lordships that it will apply to arrests under prevention of terrorism legislation in the same way as it applies to all other arrests under the general criminal law. I think it is more appropriate that that codification of the point which the noble Lord, Lord Mishcon, has so rightly said is of great importance should be in general legislation rather than in legislation that is both temporary in nature and limited in extent. That is why its proper place seems to us to be in the Police and Criminal Evidence Bill and not in this one. Given that the private citizen will receive exactly the protection that the noble Lord seeks for him by this means. I hope that the noble Lord will he content with what we propose.
§ Amendment, by leave, withdrawn.
Lord Prys-Davies moved Amendment No. 2:
Page 10, line 33, after the words ("any other description") insert the words ("committed in the United Kingdom").
The noble Lord said: Clause 12 is narrower than Section 12 of the 1976 Act because it excludes domestic terrorism not connected with Northern Ireland. It is our submission that it should he further specifically limited to acts of terrorism committed in the United Kingdom. I understand that, in practice, Section 12 of the 1976 Act has been so restricted by circular. When the noble Earl, Lord Jellicoe, was addressing himself in paragraphs 76 and 77 of the report to aspects of international terrorism, he had in mind, as I understand the paragraphs, the threat in Great Britain from that source. I accept that the words "threat in Great Britain" do not appear in the hold print in paragraph 77, but they appear in the opening paragraph of Paragraph 76. He says:
I discussed in Part I the increasing threat in Great Britain from terrorism totally unconnected with Northern Ireland".
But he said in paragraph 77 that it should be clear from reading the Bill and reading the clause that it was restricted and that the restriction should not be left to a circular from a Government department. Yet it appears to us that this is precisely what the Government propose. In our submission, it should not be possible to use the section against people living peacefully in this country who are not suspected of having committed any offence in this country. The section should apply only to acts of terrorism in this country.
§ Organisations concerned with the well-being of refugees in this country fear that the section as drawn may be used against innocent refugees. The amendment now before the Committee gives the assurance which is required by all those who fear the abuse of the section. I beg to move.
§ Lord Hylton
Your Lordships will no doubt have seen the letter which appeared in The Times this morning signed by the Bishops of Birmingham, Lichfield, Manchester and Southwark, which I think hears on this amendment. They in fact refer to Clause 12(2)(b), but I suspect that they got it wrong and that the noble Lord who moved the amendment has got it right. I share their concern and so, I think, do the British Refugee Council whose chairman, Sir Arthur Peterson, is a distinguished former civil servant whose work then lay mainly within the Home Office. The Vice-Chairman of the British Refugee Council is well known to your Lordships. He is Sir Leslie Kirkley, a former director of Oxfam. I hope that the Government will accept this amendment.
§ Lord Elton
Perhaps I should begin by addressing myself to the letter written by the two right reverend Prelates who are Members of your Lordships' House and who sadly cannot he with us. I think in fact that they were misguided in more than the reference number that they wrongly attributed to the paragraph in the Bill. Their letter said that the clause now before your Lordships is drawn so widely that anyone who had been involved in the liberation struggle anywhere at any time could well be held for detention for up to seven days. It goes on to say that Britain has a long history as a haven for refugees fleeing from their own countries where they may have suffered repression, torture or murder. This country has a long history of providing neutral territory for the peaceful resolution of conflicts through negotiations. The letter goes on to say that if the Bill had been in force at the time of the Lancaster House Conference the participants from Zimbabwe would have found themselves liable to arbitrary detention.
Of course, as your Lordships may remember, the power that we are talking about was on the statute book at that time but the Prime Minister of Zimbabwe was not detained under it. I think I can truncate a good deal of what I intended to say to your Lordships by saying that that power has now been slightly reduced under the Bill. If your Lordships compare the Bill with the print of the Act, you will see that the Bill is longer and the extensions are designed either to clarify the narrower scope than what was proposed in the original Bill appeared to he or, under subsection (3), to exclude certain forms of terrorism within the United Kingdom. Those are small reductions, but from that I hope your Lordships will draw two conclusions. The first is that the powers have been in existence in almost exactly the present form for a very long time and they have been only marginally reduced. Secondly, they have been curtailed in exactly the way that noble Lords want by exactly the device which we propose now to curtail the powers that we propose in the reenactment of these powers in this Bill.
I understand the purpose behind this amendment and I think that what is proposed, on the face of it, 924 looks a great deal simpler and more desirable than what we have got. But the fact is that there are pieces of legislation now on the statute book which do create offences worldwide and which we would not wish to remove from it because they are there under international conventions. I refer, for instance, to Acts against hijacking and about protected persons.
There are offences which can be committed by anybody anywhere in the world, which makes them arrestable under those Acts. We believe it is right that the powers of examination, and therefore the power of detention under the supervision of the Secretary of State, should be available to people suspected of those offences. I think it would look very odd in international law if we were to make this agreeable, attractively simple amendment, only to discover that we had deprived ourselves of a weapon against the worst forms of international terrorism—those which end up with perhaps 120 people lying dead in the smoking wreckage of a civil airliner—if we denied ourselves the same powers to fight that sort of terrorism as we have had to try to fight the terrorism which most closely affects us usually in this country—
§ Lord Shackleton
I must say that I am more confused now than I was before we started this. We are well aware that there are certain offences, such as murder, where the individual concerned can he brought hack and tried in this country. I remember quoting an example—and I think that a noble and learned Lord was there—that you could commit a murder in Antarctica and be brought home to be tried; hut if you committed rape you could not he brought home and tried. However, there are better lawyers than I on this.
The question I should like to put to the noble Lord is: why in fact is it thought necessary to give guidance to the police to ensure that the powers under Clause 12 are not used in relation to acts of terrorism unconnected with the affairs of Northern Ireland unless there is some prospect that a charge will he made before a United Kingdom court? Is it not the case—and I was referring also to the British Refugee Council—that under the Bill at the moment somebody who had been involved in an act of terrorism, whether it be in South Africa or in some other territory, could find this power being used against them? To that extent, how far would it strengthen the powers of the Home Office, which are already considerable?
§ Lord Elton
If the powers were unrestricted they could he used against any person committing an act of terrorism anywhere in the world. There are differing opinions in this country and sometimes quite strong views as to the relative virtues or vices of those who pursue them. There are organisations which use acts of violence in causes which are so respectable and so well regarded by Members of Parliament as well as by members of society at large that they would not wish a power at large to he used against those people. So what we intend in this Bill is to make those powers available only where a charge could be brought in the British courts.—
§ Lord Elton
Yes, I believe it is. If your Lordships will bear with me for a moment, perhaps I might readdress myself to the other point which I am not sure that I made clear earlier. I am not at all clear on the matter of rape, and I am sure that the noble Lord, following his long investigation of these matters knows much more about them than I do. But I am advised that there are offences under the Hijacking of Aircraft Act and the Internationally Protected Persons Act which might be tryable. However, what we wish to extend to them by means of this Bill is the right to interrogate for an extended period of five days, which is not otherwise available.
If we had the amendment as the noble Lord, Lord Prys-Davies, has it, then the power to extend the period of investigation and detention would not extend to anybody who was suspected of blowing up an aeroplane in Japan, Chile, Jamaica or anywhere else. They would have to be released after the normal period to be allowed under the Police and Criminal Evidence Bill, which is much shorter and more frequently renewable. All we are seeking to do is to embrace those small number of offences which are internationally agreed to be the worst, in which we are internationally committed by conventions that we have signed to do our best. We feel that involves giving this extension to them.
I was wrong about the reference to bringing before the courts to which the noble Lord referred a moment ago. The intention is that my right honourable and learned friend will send—in fact he has sent—a circular to chief officers of police.
All this sounds very tortuous and involved, and I fear that I am not explaining it very well. But that is not surprising, because ever since the legislation was introduced, and before, people have been trying to find a way to put these parameters on the face of the Bill, and every solution that has been found has either excluded something that was wanted to be included or included something that was wanted to be excluded. Given that we have been trying to do this for a number of years with a succession of people of considerable intellect, we have to accept that, if we are going to achieve what I hope your Lordships agree we should achieve, it has to be achieved by circular and not on the face of the Bill.
§ 8.31 p.m.
§ Lord Monson
Is it really the case that aircraft hijacking would be embraced by subsection (1) of Clause 12 as it stands, because subsection (5) of Clause 10 limits the acts of terrorism covered by this clause to acts of terrorism connected with Northern Ireland affairs? So unless the aircraft was hijacked by the IRA or the INLA, it would not be included in subsection (1)(b) of Clause 12.
§ Lord Hylton
Reference was made at Second Reading to the circular to be issued to police forces and 926 the noble Lord mentioned it again this evening. There are two difficulties with this circular. First, as it stands now, it will go only to police forces and not to immigration officers. That seems to be one weakness. Secondly, I believe I am right in saying that the circular will be binding on this Government, but not necessarily on subsequent Governments. That, again, appears to be another serious weakness and I hope that these problems can be overcome, at least by the next stage of this Bill.
§ Lord Shackleton
I am sorry, but I must go on pressing the Minister—this is the Committee stage. He is defending this power and resisting the proposals that it should be confined to offences committed in Great Britain, as I understand it, on the grounds that this is what the noble Earl, Lord Jellicoe, recommended. He did not recommend that; it was quite clear from the context. Perhaps the noble Lord can ask Lord Jellicoe. He was referring to the dangers of terrorist acts in Britain, not terrorist acts throughout the world. Whatever the merits of his case, this was not part of the Jellicoe recommendations and the Government ought not to excuse what they are doing by saying that somehow it is part of Jellicoe. With a power of this kind, as the noble Lord has made clear, we do not know what may happen with future Governments. It will be something that ought to be contained and constrained in the legislation.
§ Lord Elton
If I gave the impression that I was justifying this by Jellicoe. I apologise, because it goes beyond what Jellicoe recommended. I believe that the justification is entirely adequate. It is that these are very nasty offences indeed; that we are in treaty with numbers of other countries to make them offences under our law, as much as they may be under the law of the country where they are perpetrated and that means that they can be brought before our courts. If they are to be embraced in that system, given that the crime may have been committed, as the noble Lord said, in the Arctic or even further away, then it is not at all unreasonable to wish to be able to extend the period of investigtion and interrogation, while the person is detained for the greater period provided in this Bill than is provided in the existing Act.
The noble Lord, Lord Shackleton, need make no apology for returning to this charge as often as he likes. As he said, we are in the Committee stage. I know that our first two debates took the form of Second Reading debates, but this is supposed to be an informal exchange and it is right that we should thresh the matter out.
To recapitulate, I do not say that this is within Jellicoe; it is outwith Jellicoe. I do not seek to bring it in in any clandestine manner. I believe that it is a proper matter to legislate for and that this is a convenient vehicle. It is intended to give the extra time to interrogate in the sort of case I mentioned, Finally, the noble Lord, Lord Monson, will find the definition of the offence in Clause 14.
§ Lord Mishcon
I am wondering whether this matter deserves much more and deeper consideration than we can give it tonight. I wish to make this respectful suggestion to the noble Lord, the Minister. There is a 927 great deal of worry, as he very well knows, among reputable organisations representing the rights of refugees in this country, and I suppose that many of us have also received literature from the anti-apartheid movement, who fear the consequences of this clause in regard to acts which may be perpetrated abroad and which we would have wished did not happen. But some of us wonder what alternative there is in some countries, although we all abhor violence.
I wonder whether we are possibly moving into an area where we would find that, if we amended the Bill in this way, we were excluding acts of terrorism outside this country which we would want to deal with inside this country. That is the difficulty. It may be—I say no more than that—that there is a difference here between detention and arrest. After all, detention is for a limited period of time and might not be quite so alarming to the people concerned as the power of arrest. If we therefore considered the question of the power of detention and then, at a subsequent stage of the Bill, looked at the possibility of no arrest being possible after detention, and no charge being possible under this clause without the fiat of the Attorney-General or the Director of Public Prosecutions, we might in some measure be safeguarding the interests of the people whom we have in mind.
Undoubtedly, the difficulty at the moment is that we are considering acts outside the United Kingdom and are bringing in, merely because of an exceptional case, acts which we really would not want to happen by way of people being detained, arrested and charged. In those circumtances, I wonder whether the correct course is—if my noble friend agrees with me—to withdraw the amendment at this stage and to consider on all sides how we can meet the points which the noble Lord the Minister has made, which my noble friend Lord Prys-Davies has made and, very definitely, which my noble friend Lord Shackleton has made.
§ Lord Shackleton
Before my noble friend seeks to withdraw the amendment, if that is his intention, if we are to go more thoroughly into this matter—and it is clear that real difficulties exist—we may need to recommit in relation to this clause.
§ Lord Elton
I should not want to advise your Lordships on that procedural point at this stage. I think I should say that the Government have responded to the concern expressed, in your Lordships' House and elsewhere, by my right honourable and learned friend giving an assurance that the guidance about the use of the powers will be issued to the police by means of a circular to chief officers. That is the first point that I want to put on the record. They will be advised that the powers in respect of international terrorism should be used only where there is some prospect that a charge will be made before a United Kingdom court or that the person will be deported under the Immigration Act 1971. That is the second point that I want to put on the record.
We sought to draft an amendment to give effect to this assurance within the Bill, but, in the event, it proved impossible to do so without greatly weakening the thrust of the clause against international terrorism. We have therefore been forced to conclude that the 928 only way to protect the interests of the groups, to which I and other noble Lords have referred, is to proceed by circular. It is not the course advocated by my noble friend in paragraph 77, but he may well have had in mind the possibility that the existing practice of restricting powers which are otherwise entirely at large by circular could be adopted to deal with international as well as Northern Irish terrorism. The Bill goes much further than this.
The extent of the powers in Clause 12 is clearly stated. The restriction to be embodied in the circular is on a point considerably more limited than the one which has depended on the circular until now. The Government accept that this method of proceeding, limiting the use of statute by means of circular, is not wholly satisfactory, but we take comfort from the knowledge that it has worked, and worked well, in the context of prevention of terrorism legislation since 1976. We accept that in giving these acts of international terrorism no territorial restriction we have gone further than Lord Jellicoe had in mind—I freely acknowledge that—in his recommendation in 1977.
This amendment would go some way towards removing the anxieties of those who are concerned about their position, but it could be done only at the expense of removing from the scope of the clause people against whom we firmly believe that powers should be available. It is important that the United Kingdom should continue to take and should be seen to take a firm stand against terrorism in all its manifestations. Successive Governments have strongly supported, advocated and pursued a policy of close co-operation with other countries to stamp out international terrorism. It is for this reason that we attach so much significance not only to the extension of the powers in regard to international terrorism but also to the absence of the territorial restriction in Clause 12(2)(b).
There are a number of precedents for measures related to terrorism to have extra-territorial aspects. A series of Acts have been passed during the last decade or so which enshrine in United Kingdom law the provisions of international conventions designed to deal with specific manifestations of terrorism by making them offences in the United Kingdom wherever in the world they occur—for example, the Hijacking Act 1971 and the Protection of Aircraft Act 1973. They provided that it is an offence under United Kingdom law for any person of any nationality anywhere in the world to hijack an aircraft or deliberately to take measures which would result in the destruction of or damage to an aircraft or which would otherwise endanger its safety. Similarly, the Internationally Protected Persons Act 1978 provides that it is an offence for anyone—but I need not quote these examples in extenso. These measures, and others like them, show the importance which we attach to demonstrating our commitment to this international approach to terrorism. It would be wrong if by restricting the application of Clause 12 to acts of international terrorism committed in this country we lost the opportunity to show that our concern with terrorism is not limited to those of its manifestations which take place on our own soil or which directly affect our own subjects.
929 I hope we can dispose of this matter this evening because the timetable is under considerable pressure. I do not believe that those of your Lordships with other business would welcome our recommitting on another day, but it is not for me to advise your Lordships on that point. That is for the usual channels. However, I leave with your Lordships that thought. We are wedded to the availability of this power. We believe that it is properly restricted by use of circular. That may be a distasteful way of doing it but it is a way of doing it that has worked without complaint since 1976. And it is now 1984. I hope that I have succeeded in reassuring your Lordships. If I have not, I suppose we shall have to put it to the test.
§ Lord Shackleton
The noble Lord is now going entirely contrary to Jellicoe, who said that it should not be done by circular. That is precisely what the noble Lord is doing. Would not the noble Lord consider the possibility of incorporating in an order whatever is the requirement of the circular? It would mean a relatively small amendment to this clause. An order could be amended with a great deal less trouble. If it did not work satisfactorily, one could introduce a new order. Would the noble Lord give consideration to that point?
§ Lord Elton
It looks to me like light at the end of the tunnel, but others have been looking for it for so long that I cannot encourage the noble Lord to think that it is likely to be successful. However, I shall look at the noble Lord's suggestion to see if it would be a way out of your Lordships' difficulty.
§ Lord Mishcon
I believe it is appropriate for me to ask for the leave of the Committee to withdraw the amendment on the understanding, which I believe I have correctly, that this debate will be very carefully considered by the noble Lord the Minister—in particular the suggestion which my noble friend Lord Shackleton has just made and the rather inferior suggestion, compared with his, which I made earlier.
§ Amendment, by leave, withdrawn.
§ 8.45 p.m.
Lord Mishcon moved Amendment No. 3:
Page 10, line 39, at end insert ("where the initial arrest is lawful,")
§ The noble Lord said: Again I can deal very briefly with this amendment, linking it with Amendment No. 6. The sole purpose of the amendment is to ensure that, where an initial arrest under Clause 12 is unlawful, the mere fact that the Secretary of State has agreed to an extension does not render that detention lawful. I believe that there has been some correspondence on this matter with the Law Society, and it can be put very simply in the way that I have: habeas corpus is perfectly all right but would be absolutely useless in a case where the person concerned was merely asking whether the Secretary of State had rightly extended a perfectly lawful detention, because the matter is very much at the discretion of the Secretary of State. But the point should be open that the Secretary of State cannot extend an arrest which has unlawfully been made and so proved before a court. I beg to move.930
§ Lord Elton
If my answer is brief, I hope that the noble Lord, Lord Mishcon, will not think it disrespectful. It is a serious point. The first of these amendments would require the Secretary of State to decide whether or not a person's arrest had been lawful before extending for a period or periods specified by him a person's detention beyond the initial 48 hours. I should say, first, that a decision by the Secretary of State to extend the period of detention does not make lawful an arrest which was unlawful. More to the point, perhaps, a decision on the lawfulness or otherwise of an arrest must rest with the courts. It is to the courts that a person who feels himself to have been unlawfully arrested or detained should turn for redress, but the decision as to whether it was lawful or not cannot rest with the Secretary of State. Nor can he convert into lawful arrest what was before his action unlawful arrest.
§ Lord Mishcon
I am afraid that the noble Lord the Minister has not quite followed the point that was being made. Quite obviously, the Secretary of State cannot be expected, usually within a very short period of time, to decide whether or not an arrest is lawful. I wanted it only to be made clear by this amendment, as do others, that when this matter comes before the court, the court is not faced with a difficult argument that this Bill gives to the Secretary of State a power to extend something, even though the original arrest was not lawful. That was the point I was making—not that the Secretary of State has necessarily to make that decision. I wonder whether the noble Lord will consider that point between now and Report stage and let me know whether or not the amendment is acceptable, because of what I have said, or not acceptable, in which case I can decide whether or not to put it down again at Report stage.
§ Lord Elton
I am obliged to the noble Lord. I find that as the evening wears on. I need more and more frequently to be led by the hand through the thickets of argument. It is certainly not the intention of the Bill to create the suspicion that the Secretary of State might render something lawful that had been unlawful. I am advised that it does not. However, I shall read the noble Lord's illumination of his argument with care. If I find that it does illuminate it, obviously we shall, between us, have to find a remedy.
§ Amendment, by leave, withdrawn.
Lord Prys-Davies moved Amendment No. 4:
Page 11, line 1, leave out ("five") and insert ("two").
§ The noble Lord said: Clause 12 confers the power of arrest and I understand that it does so in order to attract the additional powers of detention under subsections (4) and (5). This is one of the unusual features of the clause. But a week in custody is a very long week and it is a grave interference with a citizen's liberty. During that week the person in custody will not know when, if at all, he will have access to independent legal advice. There is evidence that the longer a person is detained the more isolated he becomes. It is evident that it is the long isolation rather than any force or brutality which does the damage and which breaks people down. The lengthy detention of up to a week equips the police with a psychological advantage by giving them time to question, to probe, 931 and to reflect—and to return and cross-examine even more extensively. Questioned under those circumstances, a detainee may well produce information—but whether he yields up the truth is another matter. He may be prepared to say anything in exchange for his freedom. We submit in this amendment that the period should be reduced from the additional five days to two days. I beg to move.
§ Lord Elton
I quite understand that noble Lords opposite wish to ensure that, where the Government, and, through the Government, the police, are granted powers of detention that go beyond those normally available, they should only be used for the minimum period necessary. That is a very proper concern and one which we share.
We have in fact demonstrated that already by changes we have made in this Bill. At present, it is true, the Home Secretary can authorise detention for up to five days beyond the initital period of two days, and that is the same period as is in this Bill. But the difference between that Act and this Bill is this: under the Act, if the Home Secretary authorised an extension of less than five days then when that lesser period has run out he cannot, for whatever purpose, extend it. In consequence the authorities have been very reluctant to ask for anything less than the full 5 days and the Home Secretary has very rarely granted anything less than the full five days.
Under the Bill, on the other hand, we have been careful, in Clauses 12(4) and 12(5) to make it clear that he can authorise shorter periods and extend them if they prove not to have been long enough. My right honourable does intend to make full use of this increased flexibility, and the net result of that will be that many more persons who have been detained beyond the first 48 hours will be released in less than the extra five days that are now generally requested.—and that is one of the things which the noble Lord. Lord Prys-Davies, is seeking to achieve. It is against that background that I ask your Lordships to look at the noble Lord's amendment, which seeks to limit the extension beyond 48 hours to a further 48 hours in total. I have to say that I much regret that it simply is not enough. Two days or less will certainly suffice for many straightforward cases. The two days plus two days which he now proposes will doubtless suffice for a further number.
But I ask your Lordships to remember that not all the cases we deal with are straightforward and not all our customers are prepared to give any co-operation at all. By that, I mean that some will not even vouchsafe their identity. These are hard men, some of them schooled by terrorist organisations in not giving anything at all away. In such cases, they have to be identified, as often as not, by their fingerprints. That alone can absorb the whole of the first 24 hours' detention and in some cases are longer. Thereafter, any questions may be met by a wall of silence. Such a wall may well last indefinitely, but experience suggests that skilled interviewers can very often build up a relationship over a period of several days that will lead all but the most determined and hardened cases to yield at least sufficient information to justify their detention and enable the police to form a judgment as 932 to whether or not they should be excluded or otherwise proceded against in the public interest.
My noble friend Lord Jellicoe deals with this at paragraph 59, and everything he says there bears out the necessity of the full five-day period of extension to deal with difficult cases—cases that do offer mortal danger to some of our fellow citizens. In view of that, and of the much greater opportunity the Bill provides for shorter periods of extension in less difficult cases actually to be used—which is what the noble Lord is after—I hope he will agree to let us have the Bill as it is drafted.
§ Lord Prys-Davies
Certainly I will not press this amendment, but, having regard to the Minister's reply, I hope the Government will have regard to the observations of Lord Jellicoe that inadequate attention is paid in some offices to the welfare needs of persons who are held in custody for seven days. There is no provision for that in the Bill. Indeed, the Bill is silent in regard to safeguards relating to persons held in custody. With that comment, I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ Clause 12 agreed to.
§ Clause 13 [Control of entry and procedure for removal]:
§ Lord Prys-Davies moved Amendment No. 5:
Page 11 line 23, leave out paragraph (a) and insert—
("(a) The arrest by a constable of a person arriving in, or leaving, Great Britain or Northern Ireland on reasonable suspicion that he is
§ The noble Lord said: One of the unprecedented features of the 1976 Act was the setting up of security controls over travellers entering or leaving Great Britain and Northern Ireland. This provision is reintroduced by Clause 13.
§ The powers are in many ways wider than is realised at first because the detail is not in the Bill itself. The detail is provided not by the Bill itself but by delegated legislation. From reading the Bill, the security control may be carried out by constables, by immigration officers, and by certain officers of Customs and Excise. One part of the amendment will confine the exercise of this control to constables. Therefore, it would exclude immigrations and Customs and Excise officers as examining officers. But the other part of the amendment will replace the misnomer "examination of persons" with the more accurate word "arrest". This will limit that power to arrest on reasonable suspicion of involvement in terrorism or breach of an exclusion order. Under existing legislation that power of arrest can be exercised without any suspicion at all. I beg to move.
§ Lord Fitt
I am sure that the records at the Northern Ireland Office will confirm that over a period of years, almost every weekend during the football season I was making representations on behalf of people who had been arrested at ports of entry into Great Britain: 933 particularly Larne, Stranraer and Liverpool. Given the political history and political and religious divisions there are in Northern Ireland, it is fairly well recognised that the loyalist population in Northern Ireland would support Glasgow Rangers. They therefore travelled over at weekends to the ports of Larne or Stranraer. The Catholic population, on the other hand, were great Manchester United supporters and they would travel to Liverpool to see Manchester United play.
Again, even this Committee can identify certain areas in Northern Ireland—particularly in Belfast —with a particular political complexion. It is understood that area such as the New Lodge Road, Ballymuiphy, Divis Flats, and Falls Road are all places with a Republican identification; and Andersonstown has that identification, too. The Shankill Road and the East End of Belfast are identified more with Loyalists.
I have found that at weekends young people—and it is normally young people who make the journeys to see football teams of their choice—are arrested. I can only describe the arrests as being frivolous. I have experience of a number of cases of people who lived in Republican areas or in areas identified by the press as being Republican strongholds. There is no such thing as a Republican stronghold in the City of Belfast or anywhere else in Northern Ireland. Although there may be a lot of Republicans, the decent people living in that district are very resentful of being labelled as living in a Republican area. But it is my experience of the police at Liverpool and at Stranraer that once they had the name and address of these young people—many of them have long hair and wear dungarees, et cetera—they would detain them because they lived in a Republican area or a Loyalist area—not because they suspected them of being involved in any terrorist events; it is my submission that it was an information gathering exercise. After a person was arrested, either getting off the boats from Northern Ireland at the port of entry, or sometimes when coming hack after attending a match—it normally happened on a Friday evening or a Saturday morning—he was detained over the weekend.
Once they were detained the police station to which they were taken would get in touch with their relatives in Belfast, the relatives would get in touch with me and I would get in touch with the Northern Ireland Office (as it was then); they would then get in touch with the police. Then they would say, "There is nobody in the police headquarters to deal with this; they have all gone away for the weekend and we will have a look at it on Monday morning". I think that is totally unfair.
If there is the possibility that these people can be detained for information-gathering purposes, it should be possible to ascertain and ensure that there is someone in police headquarters in Northern Ireland who can give an answer on the telephone which would ensure earlier release than normally took place. I say to the Minister in all honesty that I have had a number of cases—I do not have the precise number with me at the moment. I am sure the Minister could look at the remarks I have made and then perhaps he could quantify the number of persons who were detained at these ports—Liverpool and Stranraer—to find out 934 how many were subsequently charged or served with exclusion orders.
I find there is no problem at all at Heathrow; the police there seem to be very careful whom they detain. A very few, a minority, of cases I have had related to Heathrow, but the vast majority of cases were of young people going to football matches arrested either on a Friday evening or a Saturday morning and held in the police station and interviewed or interrogated until Monday or Tuesday. I think that is very unfair, and I think steps should be taken to ensure that there is always adequate RUC staff available in Belfast so that when inquiries are made from Liverpool or Stranraer they are there to answer.
§ Lord Hylton
I am aware that the Standing Commission on Human Rights in Northern Ireland is concerned about people travelling to and from the two countries on perfectly lawful occasions, on lawful business. I did mention this at Second Reading. I would like to support this amendment because I believe it would give much greater certainty to the law. It would also, I suggest, make much more difficult the so-called fishing expeditiions for information where there is no reasonable suspicion that an offence has been committed.
§ Lord Elton
The effects of this amendment can be fairly simply described and would dramatically reduce the level of security which present and proposed legislation offer to the peaceful citizens of this country. The arrangements for the port controls are set out in the Prevention of Terrorism (Supplemental Temporary Provisions) Order which will be made by virtue of Clause 13. Except for the detailed changes recommended by Jellicoe, this will be drafted in exactly the same terms as the existing order. Your Lordships may find it useful to be reminded that that is printed in full as Annex B to the Jellicoe Report.
What the Bill at present proposes to do in this section and Schedule 3 is to give to certain authorities the power to examine individual travellers arriving in or leaving Great Britain or Northern Ireland in order to ascertain whether they are terrorists, whether they help terrorists or whether they are guilty of offences against exclusion orders.
The authorities in this context are the sort of people you would expect to find exercising control at ports of entry and to be interested in the threat posed against society by those who support political terrorism. They are set out in paragraph 1(1) of Schedule 3, and they are constables, immigration officers and officers of Customs and Excise serving as immigration officers under special arrangements.
I do absolutely understand the anxiety of noble Lords that this should not be used for what has now emotively come to be called a fishing expedition—the expression crops up on Bill after Bill. The power of these people to examine travellers are fundamental to the Bill. It is no good their standing staring at the great tide of passengers coming down the gangplank or into the departure lounge. They cannot detect a terrorist by extra-sensory perception. They have to be able to ask questions; otherwise they are entirely without power to protect us. They cannot tell by looking at somebody that that is the person who is going to be a threat; they 935 have to act on the skills and the experience that they have acquired in the course of doing their job. This is what the subsection does; it gives them power to ask questions, to make inquiries. If they cannot they are powerless to do their job and to defend the rest of society against terrorist incursion.
What the amendment would do is to strike that power out of the hands of all of them altogether and to replace it with a power, not to examine, but to arrest, which is granted not to all of them but only to the police—a power. Incidentally, that the police already have under Clause 12.
An examining officer is faced each time a boat or aircraft arrives or leaves with a large number of persons about whom he knows little or nothing, and he must decide in respect of every individual whether he wishes to detain that person, perhaps only to ask for identification, perhaps to ask for a letter addressed to him or a driving licence, or perhaps for more formal questioning. If his findings suggest a need for further examination the person may be detained under Article 10 of the supplemental order pending such examination.
In contrast, an arrest under Section 12 is made on the ground of reasonable suspicion which is a prerequisite of arrest, as the noble Lord, Lord PrysDavies, has rightly said. The distinction between the power of detention conferred by Article 10 and the power of arrest and detention in Clause 12 was succinctly made by Lord Jellicoe in paragraph 119 of his report:The [arrest powers] may be exercised only on a basis of reasonable suspicion … but anyone who has arrived in or is seeking to leave Great Britain … by ship or aircraft may be examined, and anyone liable to examination may be detained. Detention is lawful provided the initial examination is lawful, and there are far wider grounds for examination than for arrest under section 12.".I accept that my noble friend Lord Jellicoe was concerned about the breadth of this power and recommended that an examining officer should lose his power to examine and detain a passenger after 12 hours unless he had by that time formed a reasonable suspicion on one of the matters in Clause 12(1). The Government have acepted this and it will be incorporated into the new supplemental order to be made when the Bill becomes law, together with further administrative changes designed to bring the conditions of detention into line with those of detention under Clause 12. That follows a further recommendation made by my noble friend Lord Jellicoe in paragraph 142.
With that assurance, I turn from the amendment briefly to the noble Lord, Lord Fitt, who has a related concern. The best thing I can do is to look into what he said is going on in these ports, because it would appear that there is something that needs looking into, and it will be.
§ Lord Mishcon
Having regard to what the noble Lord the Minister said, which we would all like to consider. I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ [Amendment No. 6 not moved.]
§ Clause 13 agreed to.936
§ Clause 14 [Supplementary]:
§ 9.10 p.m.
Lord Henderson of Brompton moved Amendment No. 7:
Page 13, line 33, leave out ("or").
§ The noble Lord said: We now come to Part V of the Bill, which contains extremely important provisions about parliamentary control. I am sorry that it is so late; but in view of the emollient noises made by the Minister earlier today perhaps the discussion need not he too prolonged. The Bill has in any case quite substantial parliamentary safeguards in that it follows the model of the Armed Forces Acts: that is, it has a life of five years and is subject to annual renewal by affirmative resolution of both Houses. The question is: are those safeguards sufficiently stringent? I suggest that they are not, and certainly not if one compares them to the only other civil legislation of this sort that I know—at least, civil not in time of war. They fall far short of the provisions for parliamentary control in the Emergency Powers Act 1920. In some respects they even compare unfavourably with those in the Emergency Powers (Defence) Acts of 1939 and 1940.
§ There are two groups of amendments to this Part of the Bill. I shall speak to the first group of amendments; and, if it is for the convenience of the Committee, we might take Amendments Nos. 7 and 8 to Clause 14, and Amendments Nos. 12 and 13, to insert new clauses after Clause 17, together.
Amendment No. 8: Page 13, line 33, at end insert—
("( ) in the case of an order under section 17 below a Report has been laid before Parliament under section (Report by Commission) below at least one month before the draft of the order in paragraph (a) above is laid before each House of Parliament: or").
§ Amendment No. 13: After Clause 17, insert the following new clause—
§ ("Report by Commission.
§ . The Secretary of State shall appoint a Commission of Report three members of either House of Parliament who are Privy Councillors whose duty it shall be to monitor the operation of this Act and to report annually to both Houses of Parliament upon its working and effect.").
§ Briefly, the purpose of these amendments is the establishment of a commission consisting of three persons. In the case of the amendment of the noble Lord, Lord Wigoder, Amendment No. 12, they are to be of suitable qualifications and experience and in the case of my Amendment No. 13 they should be Members of either Houses of Parliament who are Privy Counsellors. The purpose of the commission is to monitor the operation of this Bill and to report annually to both Houses of Parliament on its working and effect. In addition, my Amendments Nos. 7 and 8 seek to provide that the annual report of the commission should be laid before Parliament at least one month before the order is laid before Parliament for affirmative resolution.
§ It clearly makes sense, I hope the Committee will agree, that if there is to be a report by a commission it should be laid in sufficient time for the debates on the affirmative resolution to be better informed, with up-to-date information about the working and effects of the Bill. I stress that to my mind this proposed commission is not—I repeat, not—a quango or anything approaching a quango. I envisage a 937 commission of three unpaid Privy Counsellors who are Members of either House and who would make a brief report to Parliament on the working and effect of the Bill for the preceding year. Their report would cover updated statistics as supplied, say, in Annex D of the Jellicoe Report. This would not require the setting up of an elaborate secretariat or infrastructure and so would cost relatively little money.
§ What would the advantage be? It would achieve two main objectives which I think the Government should welcome; that is, better informed debates in both Houses and assurance for those concerned with the protection of civil liberties that the extraordinary powers granted to the Executive under the Bill are being monitored by experienced parliamentarians.
§ The reasons behind these amendments are roughly these. First, as we have heard earlier today from the noble and learned Lord, Lord Denning, the Executive's extraordinary powers under this Act are not subject to due process of law, and clearly cannot be. The report of the committee of the noble and learned Lord, Lord Gardiner, clearly showed why judicial procedures are inappropriate. That is quoted in paragraph 192 of the Jellicoe Report.
Furthermore, the provisions of this Bill when enacted may not even be subject to judicial review. Although judicial review has been dramatically developed since Liversedge and Anderson, in ordinary legislation it may not operate in time of war or grave emergency. This is what Professor Wade says:
It is unlikely that this theoretical judicial control will be able to come into play"—
that is in time of war or grave emergency—
since the ingredient of policy is so large by comparison with the ingredient of ascertainable fact".
So one must count out the due process of law. One must perhaps count out also judicial review which we know has been highly developed in ordinary legislation but may not be available in emergency legislation, which of course this is.
§ The sole safeguard against abuse by the Executive falls on Parliament. The annual debates on the affirmative resolutions should be well founded, and each House would be better informed if it had a report on which to base its discussions and to reach its decisions. In my opinion, as the scrutiny is essentially a matter for Parliament, the commission should be composed of members of either House. Additionally, as this is a matter of security, it is appropriate that the members of the commision should be Privy Counsellors, as well as being parliamentarians. That is why, if I may say so, I prefer my amendment to the amendment of the noble Lord, Lord Wigoder.
The Jellicoe Report itself, by implication, reproaches Parliament for the inadequacy of its scrutiny. In paragraph 14 Lord Jellicoe states:
the renewal debates have not on the whole received the parliamentary time which they merit … in the Commons they tend to be held late at night and to last no more than ninety minutes … and in the Lords … can be even briefer and more perfunctory.
§ Now there is a new situation where, for the first time, the Opposition have not supported the Government on what has hitherto been all-party policy. That is quite an important new factor; and it 938 imposes an added duty on Parliament to provide for informed debate, so that Parliament can genuinely decide annually whether each, all or any of these extraordinary powers should be continued. This, I believe, might help towards the restoration of bipartisan or all-party policy. It would also allay the fears of civil libertarians. Finally, perhaps it might be agreeable to give a 50th birthday present to the National Council for Civil Liberties. For all these reasons, I beg to move.
§ Lord Wigoder
The proposal that there should be review on a regular basis by impartial people responsible to Parliament emanated from one of my honourable friends on the Liberal Bench in another place. If I may, I should like to put that fact on the record and support this group of amendments.
§ Lord Hylton
As I asked at Second Reading whether there could be either a Standing or a Select Committee to review these Acts, I should like very strongly to support the amendments of the noble Lord, Lord Henderson of Brompton. I am sure that his Amendment No. 8 is important in order to give a chance for a properly informed debate on the renewal of the Act. As to the proposal in his Amendment No. 13, I agree that it would be far superior either to a Select or a Standing Committee or to the formula put forward by the noble Lord, Lord Wigoder. I should like to support strongly what he said about the Privy Counsellor's oath and the possibility of giving Privy Counsellors confidential information that cannot be released to other people. Having said that, I should like to express the strongest possible hope that the Government will be able to accept this amendment and that, if they cannot, it will be pressed at a later stage.
§ Lord Fitt
I should like to add a word of support to the noble Lord, Lord Henderson, in his promulgation of this amendment. I do so having had experience of another place. The noble Lord, Lord Henderson, has mentioned the criticisms that normally we were discussing this type of legislation late at night for an hour or for one and a half hours. It is fully understandable to me that there are many people in the other place and, I am certain, many in this House who find discussion of this type of legislation distasteful. They do not like to be here because the measure impinges on what they consider to be dubious law. I am certain that this is why many noble Lords are not here to take part in the discussions.
It is not a matter of lengthening the time for debate. We have been discussing the legislation since just after 5 o'clock, and we shall probably continue for another hour. However, there are not too many noble Lords here to make a contribution. I feel that many of them are not here because they find the legislation distasteful and do not wish to make a contribution. That position could be improved if we adopted the suggestion of the noble Lord, Lord Henderson, that at all times, during the existence of this legislation, there were Members of another place or Members here whose sole duty it would be to monitor it. We could then be assured that, if an issue arose, those who were monitoring the legislation would be aware of its effect. This admirable 939 set of amendments should be taken on board by the Government.
§ Lord Mishcon
As one of many of your Lordships who, over the years, has had the support of the noble Lord, Lord Henderson, it is a great pleasure for me tonight to be able for a change to support him.
§ Lord Hylton
Before the Minister replies, may I throw in the suggestion that my noble friend's commission should be given in its terms of reference a further duty to report on the Northern Ireland (Emergency Provisions) Act. There is such an interlocking and interrelationship between this Bill and the Act that it could perform a valuable function by covering both.
§ 9.23 p.m.
§ Lord Elton
I hope that the noble Lord, Lord Hylton, will forgive me if I do not follow him outside the legislation we are looking at, although I see that what he proposes has attractions for at least one other noble Lord in the Chamber. The amendment seeks to achieve an increase in the means for parliamentary scrutiny of the working of this legislation. It is also intended to have the effect, which could well be beneficial, of ensuring that our annual debates on the legislation should be better informed than they have been in the past. My noble friend Lord Jellicoe addressed himself with some care to the question of Parliament's need to consider from time to time whether changing circumstances had resulted in a need to change the terms of the legislation and drew attention in the same passage to the fact that the renewal debates tend to be held late at night and to be allotted only a short time. I must say that the first of those prophecies is being more fully fulfilled this evening than I could have hoped. The last, on the other hand, is not.
I know that this is an issue that causes concern to your Lordships as well as to Members of another place and which the Government do not regard with unmixed satisfaction. I am not certain that the amendment now before us would be the best way to improve the position. I was relieved to hear the noble Lord, Lord Henderson of Brompton, say that what he had in mind was a brief report because what I had in mind was the scale of the other reports that have been required by statute. One was that of my noble friend Lord Jellicoe. They are, of course, considerable documents. Leaving aside his own time and trouble, devoted by my noble friend Lord Jellicoe, that report absorbed two-man years of support in the department and untold hours outside it from the police force and so on. But I rather understand from what the noble Lord says that he has in mind something more frequent but less thorough.
In considering the question of reviewing the legislation from time to time, my noble friend Lord Jellicoe looked at possible precedents and concluded that a procedure similar to the one which enables possible amendments to the Armed Forces Act could appropriately be applied to this legislation. At this point I should acknowledge that in his study of precedents my noble friend was greatly assisted by the 940 noble Lord, Lord Henderson, himself in a previous incarnation, who originally drew the provisions of the Armed Forces Act to his attention. The Government accepted this recommendation, and Clause 17(3) provides that the legislation shall have a life limited to five years. Under this procedure it will be for the Secretary of State of the day to decide, when the time comes, how a review of the Act's operation can best be arranged. The report made no firm recommendation about the form of such a review, and we do not feel that we could commit a future Government to a particular method without knowing what the circumstances might be in four years' time.
But your Lordships' anxiety about this Act is perfectly understandable. It touches on the liberty of the subject, and your Lordships are the proper watchdogs of that liberty and reflect an anxiety which is felt outside this House. Powers such as these should indeed be the subject of safeguards. Of course some safeguards do exist in the Bill as it is drafted—and they are not inconsiderable—and also outside the Bill at large. Examples are habeas corpus; the police complaints procedure (now the subject of examination elsewhere): and the access to advisers, which has been improved in our proposals over what it was previously. Moreover, the nature of the legislation is such that the Secretary of State must take a personal interest in it, and I can assure your Lordships that he will do so.
Finally, my noble friend Lord Jellicoe recommended that Ministers should take an active part in ascertaining how far the specific purposes for which an extension of detention was granted had been achieved, and should satisfy themselves that people are not detained under the Act for longer than is absolutely necessary. We have accepted that recommendation and it has been implemented by administrative means and it is now in force.
So there are safeguards, but I accept that your Lordships yourselves are the proper guardians and that your Lordships' should be properly informed when we come to consider a renewal. It is only right that those debates should be properly informed and not perfunctory, and the Government are therefore prepared to consider how best to provide Parliament with a more detailed annual analysis of the working of the Act in the period up to renewal, which would be the product of what the noble Lord suggests.
As noble Lords know, we publish a quarterly statistical bulletin, which gives details of the numbers of detentions, exclusions, charges and so on. It was last published on 3Ist January, and your Lordships may feel that it provides a useful basis upon which to build. I should be very grateful for suggestions, not only across the Table but perhaps through the post, as to how this could be changed, elaborated or pulled about to make it more helpful to your Lordships.
This is not the full panoply of the "three wise men" that your Lordships have variously proposed. I have genuine anxieties about that. There will obviously be a review. I do not think that I can give a guarantee by this Government, because this legislation will last beyond the longest moment that this Government can survive. But it is really not thinkable that there will not be a further review, as there always has been before, at the end of the time. I do not think that we can hind the 941 next Government as to the detail of how that is to be mounted, and that is not actually what your Lordships are seeking to do. What those noble Lords who have put their names to these amendments are seeking to do, is to have a type of invigilation from day to day, the detail of which is not clear, but the product of which would be material for use by your Lordships' House and another place.
I hesitate to criticise another place because I do not have the benefit of the noble Lord, Lord Fitt, of having being a Member of it, and convention requires me to regard it as perfect, as, of course I do. However, in your Lordships' Committee we require to inform ourselves properly so that we can properly decide what are properly regarded as exceedingly important issues. I have suggested to your Lordships the starting point for looking at how this might otherwise be done, and I hope your Lordships will regard that as a basis on which to reflect on this matter before the next stage.
§ Lord Henderson of Brompton
I must confess that those words are very disappointing. As far as I can gather, the Minister is offering no hope of a commission of three parliamentarians who are Privy Counsellors. He is simply saying that he will buff up the quarterly statistics. If that is all he is offering, it is exceedingly disappointing and I am sure that the noble Lords, Lord Fitt and Lord Wigoder, will also find it a disappointing reply. I do not think that it meets the case at all.
Of course, I am quite happy to withdraw the amendment at this stage, but from the support which I have received throughout the House, from the noble Lord, Lord Hylton, and others, I think that the Minister should inform his right honourable friend that the Committee wishes to have three parliamentarians who are Privy Counsellors who will monitor the workings of the Act and report to Parliament once a year in time for the annual renewals. Having said that—
§ Lord Elton
Before the noble Lord withdraws his amendment, may I say that I shall of course inform my right honourable friend not merely of the substance of what your Lordships have said, but also of the obvious way in which it has been received by your Lordships' Committee. I would not wish to commit the Government to the form of review which your Lordships have severally proposed.
942 I think that the noble Lord, Lord Henderson, is dismissing me as swiftly as he feels I was dismissing him by referring to what I suggested as merely "buffing up" the statistics. We have not actually arrived at the statistics or discussed how they might be acquired and validated. Your Lordships raised the point about the anxiety outside the Committee of this House: that there is a lack of confidence in the material on which your Lordships base your decisions. If I am right in that, the way in which the statistics are acquired is a matter of some importance. I am sure that the noble Lord, Lord Henderson, need not feel that I have treated his suggestions cavalierly—I am sure he did not wish to suggest that. I take them seriously and they will be brought to the attention of my right honourable friend in the context of the way in which they were presented and the support that they have received. However, I cannot guarantee that they will come back in the form which the noble Lord has suggested, and I do not think that your Lordships would expect me to give that guarantee.
§ Lord Hylton
I should like to submit that this is a very much more important matter than one of mere statistics. On Second Reading we saw how the same statistics could be quoted as meaning two completely different things. Tonight we are asking for a review by people who can receive confidential information, and who therefore then come to a view as to whether or not it is still necessary and essential to continue the Act either in whole or in part.
§ Lord Henderson of Brompton
I must not prolong this debate any more, but I strongly agree with the noble Lord, Lord Hylton. I envisage that the report of the three wise parliamentarians who are Privy Counsellors should be able to say whether or not they recommend that, for instance, Part II of the Act should still be in force after the end of the year in question. Having said that, I beg leave to withdraw this amendment, but without prejudice to tabling further amendments of the same kind on Report if the Government have nothing further to offer.
§ Amendment, by leave, withdrawn.
§ [Amendment No. 8 not moved.]
§ Clause 14 agreed to.
§ Clauses 15 and 16 agreed to.943
§ Clause 17 [Duration, expiry and revival of certain provisions]:
§ 9.35 p.m.
Lord Wigoder moved Amendment No. 9:
Page 14, line 23, leave out ("an order") and insert ("orders")
§ The noble Lord said: Might I, with your Lordships' leave, speak to Amendments Nos. 9, 10 and 11 at the same time. They all deal with precisely the same point.
Amendment No. 10: Page 14, line 37, at end insert—
("( ) No such order shall affect the provisions of more than one Part of this Act.")
Amendment No. 11: Page 14, line 37, at end insert—
("( ) There shall be two such orders affecting the provisions of Parts I, III, IV and V and of Part II of this Act respectively.")
§ The noble Lord the Minister said in his answer on the last group of amendments that in some way or another there must be a more detailed annual analysis provided for Parliament. I share the general disappointment at his reaction as to how that was to be produced, and as to what should be done not merely in the way of producing figures but of analysing whether the Act is working satisfactorily.
§ If there is to be a more detailed annual analysis presented to Parliament it is desirable that Parliament should have the opportunity of doing something about it. On the Bill as it stands at the moment this is not so. It is right to say that the Secretary of State has the power, if he wishes, under Clause 17 to abandon, or withdraw, any particular section of the Act; but if there is material to be debated and Parliament wishes to terminate the operation of one part of the Bill, there is no provision at all for that to happen.
§ The only way that the Act can be reconsidered annually is the procedure we are all so used to where an order is laid for the renewal of the whole Act. That means no amendment: that means one must take it, or leave it, as a whole. Very few of us would want to leave provisions of this nature as a whole. On the other hand there may well come a time when, as a result of the annual review, however it is produced, strong feeling develops in the Houses of Parliament that a part of this Bill, or perhaps more than one part, should not be renewed.
§ The purpose of these amendments is simply to provide, in one form or another—and I do not mind whether it is the formula I have used or the formula that the noble Lord, Lord Henderson, has used or some other formula—that instead of one order covering the whole Act being presented annually covering the whole Act there should be separate orders so that Parliament should, if it wished, come to a separate decision on each particular part of the Act.
§ That would be entirely in accord with what the noble Earl. Lord Jellicoe, said in a passage I quoted in an earlier debate. Namely, in relation to the exclusion part of the Act that the possibility of abolishing it should be kept under regular review without prejudice to the Act's other powers. One or other of the amendments that the noble Lord, Lord Henderson, and I have tabled would enable that to be achieved. I beg to move.944
§ Lord Henderson of Brompton
I should very much like to support what the noble Lord, Lord Wigoder, has said. As there was an extensive debate on Part II and the exclusion orders I can be more brief than I otherwise would have been. I can see that the Government might have some objection to the form of amendment proposed by the noble Lord, Lord Wigoder, in that it would have the effect of quintupling the time available in the House of Commons, and time is a scarce commodity in another place, whereas my rather more modest proposal would have the effect of only doubling the time from 90 minutes or so, to 180 minutes or so. To that extent I think that my amendment is perhaps more acceptable to the Government than Lord Wigoder's amendment; but I entirely agree with the general spirit of what the noble Lord, Lord Wigoder, said.
I would elaborate on the special reason for my singling out Part II exclusion orders but there clearly is no need to do so. The case is unanswerable, partly from Lord Jellicoe's own chapter on exclusion orders which was quite exceptional and read as a whole indicates that exclusion orders should clearly be the subject of a separate order distinct from the rest of the Act. I hope that the Government will take note of the feeling in this Committee on that subject and agree to that form of amendment.
§ Lord Mishcon
May I associate my noble friends with this amendment? The Committee will not be surprised, having heard the views that we put forward in regard to Part II, that we support this amendment fervently. May I take up one of the points made by the noble Lord, Lord Henderson, just now when he said that the objection to a separate order in regard to each part of the Bill was that it might mean that Parliament had to find rather more time than if there was the dissection of Parts III and IV and then Part II? I can only say at the conclusion of this debate on this important Bill that, if parliamentary programming cannot find time for four separate orders to deal with a Bill which so limits the rights of subject and so impinges upon our ordinary criminal law, then something is wrong with parliamentary priorities.
§ Lord Elton
Although this is a procedural point, it is an important one because it touches on the degree of supervision which your Lordships' House can give to the operation of a piece of legislation that is intended to be temporary and renewable, if necessary, in part rather than as a whole.
The device proposed under Amendments Nos. 9 and 10 carries with it a rather formidable difficulty of parliamentary handling which has been helpfully reduced, but by no means eliminated, by the proposals of the noble Lord, Lord Henderson of Brompton, in Amendment No. 11, as he has pointed out. Your Lordships will realise that, in amending the Bill to secure greater procedural control in your Lordships' House, we shall be affecting the procedures in another place as well. The implication for the other place of increasing the number of orders necessary to re-enact a piece of legislation would be very much greater than they would be for us in exactly the order of magnitude that the noble Lord, Lord Henderson, has pointed out.
945 Having said that, I must immediately say that I entirely understand and sympathise with the feeling of noble Lords that there is a real danger that, under existing procedures, when it comes to approving an important statutory order such as this, they are left with an extraordinarily small and completely frustrating amount of influence.
Orders can be accepted or negatived but they cannot be amended and this is in itself a considerable inhibition. It was a desire to be able to amend a proposal of the Government to renew the whole of the Act so as to allow them to renew only a part of it that gave rise to these debates in the first place. I say that I sympathise with the feeling of frustration because I have myself felt it when in opposition. And I think that what makes it real and unacceptable is when, for perhaps perfectly valid reasons, a renewal order for an important piece of legislation is presented, unamendable, to the House only a matter of hours or a few days before existing legislation lapses. In those circumstances your Lordships can understandably feel that any pretence that their advice is heeded must be hollow.
I therefore feel that we should take this anxiety on board, and I have sought to find a means to alleviate it. I hope it appeals to your Lordships. The central concern that your Lordships are expressing is a desire to be able to influence the Government, should they be susceptible to influence, to amend their proposals as they appear in a renewal order. The Government have the power to renew the powers in the Bill piecemeal. What your Lordships wish is an opportunity to tell the Government that they should so do and for the Government to have an opportunity to take that message on board and act on it if they are persuaded. I am, therefore, prepared to undertake that on any occasion when we lay an order to renew this piece of legislation, we shall do so in ample time for V our Lordships to be able to debate it at a date which will permit the Government, if they are moved to do so by the debate, to withdraw the order and to replace it with another drawn in the different terms in which your Lordships have persuaded them to draw it.
On reflection your Lordships will see why I cannot add the phrase which I should like to add that I can guarantee that the order will be debated at such an early time as the early laying permits but I understand that the date of the debate is agreed between the usual channels and therefore it would be wrong for me to commit, as it were, an agreement before an approach was made.
If your Lordships are content with that—I assume the usual channels would agree to bring the order in good time before the existing powers lapsed—your Lordships would have the debate and would be able to make it quite clear that the balance of opinion in the House was that either all or part of the order should be renewed. The Government would be apprised of the majority feeling in the House and would then be able, and have the time, to replace the order with another. It is not the same procedure as your Lordships are proposing, but in fact it gives the opportunity for exactly the same outcome. I commend that idea to your Lordships to consider. If you feel, as I do, that 946 procedural matters are intricate, it may be as well to consider it between now and Report and perhaps discuss the details further. It seems to me that there are grounds here where we could get round what I personally found intensely frustrating when I have been sitting on the other side of the House.
§ Lord Wigoder
I am grateful to the Minister for reflecting on the problem and coming forward with some tentative suggestion. I find it difficult to see quite how it would operate in practice and I find it difficult to see how, for example, if this House at this minute were debating the renewal of the order the Government could go away and say that there was a quite clear majority feeling in your Lordships' House that this or that particular section should or should not be removed. It would not be possible for us to vote on it or on any particular section. My immediate reaction is that, although I see the Government are trying to be helpful, this may well not be a very practical method of achievement. Having said that, I accept that these procedural matters are intricate. I am happy to think that my fellow proposer on one of these amendments is the noble Lord, Lord Henderson of Brompton, to whom I would have gone for advice on this matter even if he had not been the noble Lord, Lord Henderson of Brompton. I am content to try to reflect upon these matters as has been suggested and, for my part, to ask leave to withdraw until the next stage Amendments 9 and 10.
§ Amendment, by leave, withdrawn.
§ [Amendment No. 10 not inured.]
§ Lord Henderson of Brompton had given notice of his intention to move Amendment No. 11:
§ [Printed above.]
§ The noble Lord said: I do not propose to move this amendment in view of what has been said. But I should like to register my disappointment that the noble Lord, Lord Elton, has not seen fit to give any hope at all, so far as I can see, that separate orders might be introduced in respect of exclusion orders.
§ [Amendment No. 11 not moved.]
§ Clause 17 agreed to.
§ [Amendments Nos. 12 and 13 not moved.]
§ Clauses 18 and 19 agreed to.
§ Schedules 1 and 2 agreed to.
§ Schedule 3 [Supplemental provisions for sections 1 to 13]:
§ Lord Mishcon moved Amendment No. 14:
Page 20, line 36, at end insert—
("(4) Where a person is so detained, the constable shall, as soon as is practicable, make a written record of the time of the arrest and of the grounds for the arrest, a copy of which shall be given to the person detained.
(5) The Secretary of State shall include in the published statistics the total number of arrests under this paragraph and the time periods for which they were detained.")
The noble Lord said: I promise to be brief. I see that the Opposition Chief Whip, for the first time, has beamed upon me with a friendly smile. I can be as brief as this. Paragraph 145 of the Jellicoe Report reads:
Finally, I should mention the desirability of ensuring that accurate statistics are provided on this particularly important part of the law. At present, published statistics on the use of those powers are based on the number of detentions. As I explained in Chapter 6, detention is considered by most forces to begin at the point of further examination. But since this view is not universal and since the period of initial examination is not prescribed this does not necessarily give an accurate picture of the number of people 'held for examination' at the ports. I recommend that the published statistics should include figures on the number of people examined at the ports for more than one hour—that is, the number served with the first of the notices I recommend above".
§ It is quite obvious from that that the noble Earl, Lord Jellicoe, found the statistics relating to port powers quite inadequate because, while some police forces assume that the period of detention begins at the point of arrest, others do not record those held only for initial examination. I beg to move.
§ Lord Elton
I am not sure that I shall attract a similar beam myself from my noble friend. The first new sub-paragraph proposed in the amendment would introduce a requirement designed to apply to arrests under Clause 12 and to detainees under the supplemental order. The noble Lords are here concerned with issues of importance not only under the Bill but generally, and we feel they should be more generally applied than would be the case if they were simply inserted into this Bill. We have therefore addressed ourselves to this issue in the context of the Police and Criminal Evidence Bill, which is part of our general legislation on such matters, and I think your Lordships will agree that the arrangements set Out in the draft code of practice on the detention and treatment of suspects issued in conjunction with that Bill will go most of the way towards meeting the spirit of this amendment.
Paragraph 2.1 of the code deals with the duties of a custody officer at a police station in respect of a person who has been arrested but not yet charged. This requires him to inform the person detained of the grounds for detention and to record those grounds and the time when detention commences. There is no requirement for the arrested person to be given a copy of the grounds for his detention, but paragraph 2.3 of the draft code does provide that at the time of his release or at any time in the next 12 months he or his legal adviser must, on request, be given a copy of the custody record on which those grounds are entered.
I recognise that this does not go quite so far as the noble Lords have proposed, but I believe that it does meet the spirit of this part of their amendment so far as arrests under Clause 12 are concerned. Certain detentions under the supplemental order—those where the detainee is not in police custody but in the custody of an immigration officer or a customs officer—are not within the purview of the draft code of practice, which relates to persons in police custody. I can give an undertaking that we shall consider ways of bringing the treatment given to such people into line, so far as practicable, with that meted out to those who are in police custody.
948 I turn now to the second part of this amendment, sub-paragraph (5). This would require the Secretary of State to include in the published statistics the total number of arrests under paragraph 5 and the length of time for which the persons are detained. I take it that in tabling the amendment noble Lords were concerned to have statistics relating both to arrests and to detentions. I assume also that they have seen Tables 1 and 6 of the Quarterly Statistical Bulletin published by the Home Office, which contain respectively the total number of persons detained under the legislation at ports or elsewhere and, for persons who are not subsequently charged or excluded, the length of time for which they were detained. In future, in accordance with my noble friend's recommendation No. 32, the bulletin will also include details of the number of people examined at ports for longer than one hour, whether or not they were formally detained.
I am not certain what information the noble Lords are seeking beyond that which is already published, but I should be happy to consider the possibility of providing it. As there is no requirement in the Bill or elsewhere to publish statistics, a requirement to include certain details in those statistics would not fit into the Bill, but I am quite willing to look into what the noble Lords want by other means if the noble Lord, Lord Mishcon, would kindly give me a little more guidance as to exactly what it is.
§ Lord Mishcon
At the end of the Committee proceedings tonight we meet with the most co-operative, helpful and kindly terms that the noble Lord the Minister had used throughout the whole of our deliberations. It would therefore be churlish of me to do anything other than thank him for his undertaking and thank him also for the consideration which he says he will give to these various matters. Upon that basis, I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ Schedule 3 agreed to.
§ House resumed: Bill reported without amendment.