§ 4.42 p.m.
§ Consideration of amendments on Report resumed.
§ Clause 12 [Powers of arrest and detention]:
§ Lord Prys-Davies moved Amendment No. 2:
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: My Lords, there is an old saying that goes back to the early eighteenth century 385 that arrest may be called the beginning of imprisonment. It is the right of every citizen to be free of arrest unless there is in the constable or some other citizen the right to arrest him. It is almost without exception a condition of lawful arrest that the man arrested should be entitled to know why he is deprived of his freedom. This amendment therefore does not introduce any novel principle into our law. It merely proclaims the fundamental proposition that it is a condition of lawful arrest that the man arrested should be entitled to be told why he is deprived of his freedom.
§ At Committee stage the Minister accepted the principle and relied on the legislation which is embodied in the Police and Criminal Evidence Bill, but with great respect that piece of legislation has not been enacted. We heard in Committee how wide and extensive are the powers which are contained in the Bill, and in our submission the principle that the arrested person should be told the grounds for his arrest should therefore be embodied in this legislation. This important common law principle should never be far removed from the mind of the constable when exercising the very wide powers contained in the clause. I beg to move.
§ Lord Denning
My Lords, this is quite unnecessary. In 1947, in this House, Lord Simonds, afterwards Lord Chancellor, declared that when a man is arrested with or without a warrant he is entitled to know at once the reason why he has been arrested so that he can take as soon as may be the steps to release himself if he can. The principle is so undoubted that it would be a mistake to put it specially in this Bill. You know what our lawyers are! They will say that Parliament has thought it necessary to put it in here, and therefore there is no such general principle. Leave it to the general principle. The lawyers will have no difficulty about it. I should not trouble about inserting it into this Bill.
§ Lord Elton
My Lords, the noble Lord, Lord PrysDavies, will not need me to assure him of the effects of the common law. I think that I ought only to reassure the noble and learned Lord, Lord Denning, that we agree with him that the specific provision ought not to be in a Bill so narrow as this one. But, with the noble Lord, Lord Prys-Davies, we feel that the constable ought to have these things very much in mind. That is why we are seeking an opportunity in Police and Criminal Evidence Bill, which the noble Lord has rightly reminded me has not yet reached your Lordships. When it does so, the noble Lord will be able to satisfy himself as to this. That is why we are putting it in that Bill, which applies generally, as opposed to this one, which applies particularly. The actual requirement is very ancient, very strong and very well known.
§ Lord Shackleton
My Lords, could the noble Lord say in what way the constable would inform somebody arrested under this legislation? Could the noble Lord give an example of the ground for arrest?
§ Lord Elton
My Lords, any of the grounds provided by the legislation, which are to be found particularly in Clauses 12 and 13.
§ Lord Shackleton
My Lords, I know that this is not Committee stage but the noble Lord has not answered my question. Could he give an example of what would be said? Would the constable read out the Act?
§ Lord Elton
My Lords, it would be because he has reasonable grounds for suspecting a person to be guilty of an offence under Clauses 1, 9 or 10 of the Bill. No doubt he would go on to explain which of those was involved and, if he were a good constable, he would see that it was clearly understood.
§ On Question, amendment negatived.
§ The Deputy Speaker (Lord Alport)
My Lords, I am advised that if Amendment No. 3 is agreed to I shall not be able to call Amendment No. 4.
Lord Wigoder moved Amendment No. 3:
Page 10, line 33, leave out from ("description") to end of line 36 and insert ("either—
§ The noble Lord said: My Lords, I was going to say that the noble Lord, Lord Monson, had asked me whether, in his absence, I would move this amendment, but I think I see the noble Lord, Lord Hylton, rising to his feet, and if he has had the same request made to him I shall be very happy to sit down forthwith.
§ I want to make only one or two observations about this amendment. It may be that your Lordships will think that, after I have done that, about the most helpful course would be for the Minister to indicate his attitude to this amendment. I would then ask leave to withdraw it, and the observations of the noble Lord the Minister could be borne in mind when we come to deal with the more substantive group of amendments which immediately follows this one.
§ What the noble Lord, Lord Monson, had in mind in tabling this amendment was that it met the objections that had been raised to Clause 12(3) at Committee stage and, at the same time, it also met Lord Elton's point about our obligations under international conventions. What the noble Lord, Lord Monson, was trying to provide was an amendment that would cover terrorism falling within our major international obligations—the Tokyo Convention Act 1967, the Genocide Act 1969 and the Hijacking Act 1971. The noble Lord, Lord Monson, also indicated (and I can see the force of the point that he was trying to make) that his amendment would further have the beneficial effect of removing some of the small anomalies consequent upon Clause 12(3)(b) as it stands. I hope that I have indicated what was in Lord Monson's mind, and I would ask the noble Lord, Lord Elton, to deal with the point.
§ Lord Shackleton
My Lords, on a matter of procedure, I understand that it is the Minister's intention to refer to the amendment standing in my name and that of a number of other noble Lords; and, of course, I would reserve my right to speak to that. But if he is not going to refer to it then I shall not speak to this amendment at this stage.
§ Lord Elton
My Lords, I am grateful for that helpful intervention. As I understand the intentions of the noble Lord, Lord Wigoder (whom we are pleased to find in loco parentis to this amendment), it is not his intention to press it. I will explain why, if he had pressed it. I would have asked your Lordships to disagree with it. Maybe it would keep things tidier, therefore, if we reserved reference to the amendment of the noble Lord, Lord Shackleton, until we got to it, if that is satisfactory to him.
§ Lord Shackleton
My Lords, if I may say so to the noble Lord, the point is that if I had some idea of what might be the attitude of the Government I would not take up the time of your Lordships by arguing in support of this amendment.
§ Lord Elton
My Lords, if the noble Lord is asking me my attitude to the amendment in his name and that of other noble Lords, then I intend to be as helpful as it is possible to be. Without debating the whole thing, I cannot delimit the confines imposed on me by the effects of almost any remedy one seeks to apply to something that we wish to remedy. I shall be asking whether he feels that what I propose is good enough to let me struggle with it until the next stage. If that is sufficient to relieve the noble Lord's anxiety, I will proceed. If it is not, I think, with your Lordships' leave, I can always reply to any specific points later.
May I say that the noble Lord, Lord Monson, has joined the long and distinguished succession of people who have attempted to find a satisfactory means of limiting the powers at present at large in Clause 11 by some alteration to the drafting of the statute itself. In fact, his amendment provides an excellent demonstration of the difficulties which we have all encountered in the attempt. He seeks to embody in the Bill the assurance that we have sought to give by circular about the use of the powers against suspected international terrorists. I will deal first with that aspect and then say a little about why we are also resisting the extension of the powers to acts of domestic terrorism, which this amendment would involve.
As I explained, the circular which we propose would restrict the application of the powers to cases in which there is some prospect of a charge before United Kingdom courts or of the person being deported. There are two main categories of offences which have extra-territorial aspects and which may involve acts which constitute terrorism as defined in Clause 14(1). The first category is created by a series of United Kingdom statutes, which implement international conventions by creating extra-territorial jurisdiction for certain terrorism-related offences. There are seven of these, and not four as I believe I may have suggested during the Committee stage. They are: the Hijacking Act 1971; the Protection of Aircraft Act 1973; the Internationally Protected Persons Act 1973; the Suppression of Terrorism Act 1978; the Taking of Hostages Act 1982; the Nuclear Material (Offences) Act 1983 and the Tokyo Convention Act 1967 (which relates to piracy on the high seas).
The second category contains offences under United Kingdom law which operate extra-territorially in relation to certain classes of people. The most usual connection which makes people liable here for 388 offences committed outside the United Kingdom is the possession of British citizenship. Offences in this category which may be related to terrorism are: murder, acts involving explosives liable to endanger life or cause serious injury to property in the United Kingdom or the Republic of Ireland, perjury and offences under the Official Secrets Act and the Foreign Enlistment Act. Treasonable activities are punishable as regards all persons owing an allegiance to the Crown.
As your Lordships will recognise, the effect of the noble Lord's amendment would be to narrow the applicability of the Bill beyond what we are seeking to achieve. Of the offences I have just referred to, only piracy and hijacking would still be within their scope. Murder, explosives offences and assassination—to name but a few—would be excluded, and the possibility of arrest in cases where there is a prospect of deportation would be totally excluded.
I should now like to turn to the other element of this amendment, which would apply the powers of arrest and detention to domestic terrorism, which is what is meant by the words following "description" in line 33. During his review of the operation of the legislation, the noble Earl, Lord Jellicoe, considered whether, in view of the increasing threat in Great Britain from terrorism totally unconnected with Northern Ireland, the powers should be made available for use against international terrorists. He concluded that they should.
In making his recommendation in paragraph 77, he said that he had considered but rejected the idea that the powers should also be available for use against groups whose terrorist activity related to purely domestic matters, other than those connected with Northern Ireland. My noble friend's assessment was that nothing in the past history or likely future activity of terrorist groups indigenous to Great Britain persuaded him that the use of such exeptional powers against them would be necessary. The Government accepted this view, which is reflected in the drafting of Clause 12(3) (b); but of course we would be ready to reconsider it and come back to Parliament should the situation change.
I have tried to show why both elements of this amendment—the restriction on acts of international terrorism and the extension to acts of domestic terrorism—are not acceptable. I think I have probably now fulfilled what the noble Lord, Lord Wigoder, asked of me.
§ Lord Wigoder
My Lords, acting in loco parentis, I seem to have fostered rather a deviant child, and I beg leave to withdraw the amendment.
Amedment, by leave, withdrawn.
Lord Mishcon had given notice of his intention to move Amendment No. 4:
Page 10, line 33, after ("description") insert ("committed in the United Kingdom")
§ The noble Lord said: My Lords, the House will remember the interesting debate which took place largely upon the lines mentioned by the noble Lord the Minister during the debate on the last amendment concerning the restriction of offences covered by this 389 clause to ones committed in the United Kingdom. I put down this amendment standing in my name and that of my noble friend because at the time we felt that it was the proper amendment to propose. Since then we have seen Amendment No. 5, to which we have also subscribed our names. We take the view that this amendment, which appears first in the name of the noble Lord, Lord Shackleton, is one that in the circumstances, having regard to the debate, is rather more worthy of support than Amendment No. 4 at this stage. On this basis therefore I do not propose to move this amendment.
§ [Amendment No. 4 not moved.]
§ 4.56 p.m.
§ Lord Shackleton moved Amendment No. 5:
Page 10, line 36, at end insert—
(" (3A) The power of arrest conferred by subsection (1)(b) above in respect of an act of terrorism referred to in subsection (3) (b) above shall not be exercisable unless the Secretary of State has, by order made by statutory instrument, provided for a Code of Practice comprising such directions as appear to him to be appropriate for the guidance of constables in their use of the powers contained in this section.").
The noble Lord said: My Lords, I hope that this amendment will commend itself to all your Lordships. I should like to repeat again that I have consistently supported the Bill and have spoken in favour of the Second Reading. Certainly I very much welcomed the proposals of the noble Earl, Lord Jellicoe, except for Clause 11, which we have now disposed of. I should like to repeat to your Lordships what in fact the noble Earl, Lord Jellicoe, did not intend, so far as one can tell from his recommendations. Unfortunately he is in some distant part (which may be Australia or Siam) and therefore I have not been able to check that specific point and to discover what he had in mind. But this extension of the powers under Clause 12 seems to be without Lord Jellicoe's recommendation, and I think that the noble Lord agreed with that.
On several occasions the Government have said that this is narrowing the purposes of the Bill. The noble Earl, has stated as the noble Lord, Lord Elton, has said—and it was repeated in the exhaustive debates in the other place—that this power has always existed in the legislation, and they are now trying to define the limit more closely and more narrowly. If I may say so, this is very misleading. In another place the Minister of State said at col. 298 on 1st December 1983:
The then Labour Government made it clear by guidance that the powers should not be used against other than Northern Irish terrorism.
I went back to the originators of that Act, and it was quite clear to me that it was not intended to be so used. I therefore consulted my own report on the 1976 Act which I made to the Government of the day, and found there was no mention of this power. It may be thought that I was rather remiss not to have referred to it, but I was assured at the time that it would be quite inappropriate to use this particular section other than in relation to Northern Ireland, without its being explicitly covered in the legislation. It is said that it was included deliberately, but there is no evidence that the Government intended ever to use that power: nor is there any evidence on the part of the Conservative Government that they intended to do so.
§ It is important to get this straight, because the other place has been misled on this. I am quite certain that this is not an argument that should be used. It would be quite inappropriate to use these powers without further legislation to relate them to other acts of terrorism, as the Government have now done.
I shall not repeat all the arguments which we advanced at the Committee stage. The Government were sympathetic to the argument that it was quite inappropriate to extend it, except in a very limited way, and a very firm statement was made by a Minister in another place who said:
We will give guidance to the police to ensure that the powers in clause 12 are not used for acts of terrorism unconnected with the affairs of Northern Ireland unless there is some prospect that a charge will be made before a United Kingdom court, or the persons are to be deported under the Immigration Act 1971. For example, the position of members of South African nationalist movements living here will remain as it is now, after the Bill is enacted."—[Official Report, Commons, Standing Committee D, 1/12/83; col. 298].
I am not quite clear what is meant by "remain as it is now", because there is a certain suspicion about what is now being done. But it is quite clear, from talking to the Minister and hearing his speech, that he is anxious to limit these powers and is prepared to do so by giving guidance to the police.
§ In his report, the noble Earl, Lord Jellicoe, said that he was not contemplating a further extension to other terrorists outside, and I do not think we need to argue about that. I think there is no disagreement that there are some countries, whether it be Iran or other parts of the world, where it would be quite wrong to apply these powers if people took refuge in this country. Therefore, I am gratified that the Government should have recognised this difficulty. The problem has now arisen that they cannot find a suitable form of words to put into the Bill. Despite manful efforts—and I fully accept that they have tried—they have been unable to find a suitable form of words, for some of the reasons which the noble Lord gave when he dealt with the earlier amendment.
§ In order to get over this difficulty, I have proposed Amendment No. 5, which should be taken with Amendment No. 9.
Amendment No. 9: Page 13, line 22, at end insert—
("() No order under section 12(3A) above shall be made unless a draft of the order has been approved by resolution of each House of Parliament.").
§ This requires the Government by statutory instrument to publish a code; in effect, giving guidance to the police. Something of an assurance was given in another place that the circular would be made available, but we have heard no more of that. But the advantage is that it would then have statutory force. Whereas I fully accept the sincerity of the Government in this matter, I cannot speak for future Governments of any political hue. I wish to keep this on a non-party basis, although I might have views about where the threat might come from. Therefore, I hope that establishing a measure of parliamentary control over what is, admittedly, a difficult area is something that might commend itself to the Government.
§ Furthermore, it is fairly flexible. If they find that the code is unsatisfactory, all they need to do is issue a new order which would then have to come before Parliament. So, at least, Parliament would know what 391 were the instructions. It seems to me that this should make us all happy. It should make the Government happy, notwithstanding the fact that I understand that they have certain difficulties even in drafting the guidance. But this is the guidance which apparently is to be given to the police, and I find it impossible to believe that something which is too complicated to be put before your Lordships is perfectly all right to give to a policeman. I know that they are very intelligent, but between us we ought all to be able to understand it. This seems to be a proper constitutional approach to a difficult area.
§ I repeat again that the issue which we are discussing, the extension to terrorism outside the United Kingdom, is not one on which Lord Jellicoe made a recommendation. It has been made clear by my noble friend Lord Mishcon, the noble Lord, Lord Wigoder, and others that we see the difficulties and this seems to be an appropriate way to deal with the matter. I hope very much that we shall have a good response from the Government. If they do not like Amendment No. 9 which calls for affirmative resolution, because they say it might be too slow, then we can always look at the possibility of the negative procedure. But, at any rate, I hope that this amendment will now be acceptable.
§ It has strong support. I have had conversations with noble Lords in all parts of the House, who are inclined to see the force of what we are doing and that it will help the Government. I have the benefit of the support of the noble Lord, Lord Henderson of Brompton, the noble Lord, Lord Wigoder, and my noble friend Lord Mishcon, and I do not doubt that I could have got other support, including even support from Northern Irish noble Lords, because it is worth noting that the Member for Down, South, Mr. Enoch Powell, was also opposed to these provisions. I am now giving the Government the best of all possible worlds and I look hopefully to the Minister. My Lords, I beg to move.
§ 5.6 p.m.
§ Lord Henderson of Brompton
My Lords, I wonder whether I may rise to support what the noble Lord, Lord Shackleton, has said about these amendments, and I should like to welcome the words of the Minister when he said—I think it was about these amendments and some more amendments to come—that he hoped he would be able to be as helpful as it is possible to be. I can scarcely recollect more encouraging words than that in advance of the consideration of amendments.
I should like—because this is the first occasion that I am speaking on the Report stage—to say what underlies my support for this amendment and the reason why I am moving subsequent amendments. They all have this in common. As I made clear on Second Reading, I support the Bill subject to stringent safeguards. These safeguards must be parliamentary because, to use a shorthand, the judicature is, to all intents and purposes, rendered inoperable in respect of this legislation for a grave emergency. I briefly expatiated on that in Committee and to save time on Report I shall not do so now unless asked to. So that is the first consideration.
The second consideration is that I think the Government are to be greatly congratulated on the sensitivity with which they have handled this 392 legislation. First, the Jellicoe Report is notably liberal. They have followed it very largely, if not to the letter. In particular, there is a five-year term to this emergency legislation and it is to be renewable annually by affirmative instrument. Given the Government's liberal attitude, I should like to make just one political comment—and I know that a Cross-Bencher is naïve in estimating what are the motives of those who have allegiance to political parties. But I should like to recall, with regret, that the official Opposition voted against this legislation in another place and thus put an end to the bipartisan character of it, which has existed since at least 1974.
That does present a new situation and makes it incumbent upon the Government to go even further than they have, in the light of this new development, to reassure the Opposition and to try to restore bipartisanship so far as it is possible. In this connection, I was extremely glad to read the words of the Lord Privy Seal reported in The Times earlier this week—not about this legislation in particular but about Government measures in general.
The case for this amendment was admirably stated by the noble Lord, Lord Shackleton. He put his finger on a point of crucial importance. As he rightly said, here is a new power which has not hitherto been contained in this emergency legislation. It is a new power taken by the Government which both Houses, I believe, concede to be necessary—and it is necessary in view of the growth of international terrorism. But Parliament should not be content to give the Government a blank cheque.
The powers of arrest and detention in Clause 12 are formidable. If those relating to acts of terrorism under subsection (3)(b) are not to be subject to some code of practice to be laid before Parliament, then there is a dereliction of duty on the part of the Government and Parliament should insist that such a code of practice be laid. Whether or not it should be by positive resolution, as the noble Lord, Lord Shackleton, said, is surely a matter for negotiation.
As for the precise wording, I agree that the amendment may be defective. As the noble Lord has said, a number of Members of both Houses, as well as the Government, have had a shot at this. As so often, only the Bill team and the parliamentary draftsmen can correctly draft an amendment so as to fit the framework of the Bill and conform to accepted conventions and standards. The principle remains that the Government owe Parliament the duty of formulating for its consideration a code of practice for the guidance of constables in the exercise of these new powers.
It may be inappropriate, as in this draft, for the Secretary of State to give directions—I do not know. It may be preferable for the Secretary of State merely to provide guidance to constables in the code of practice. That is a detail of drafting which can be put right, and an amendment in proper form could be tabled at Third Reading.
All that is asked by the noble Lord, Lord Shackleton, and myself—and I hope the same goes for the noble Lords, Lord Wigoder and Lord Mishcon—is that at this stage the Government will indicate their 393 willingness to concede the principle behind the amendments. If they will do that, it will go a long way towards reassuring those who favour the Bill as well as those who do not favour the Bill. For that reason, I am happy to support the noble Lord, Lord Shackleton.
§ Lord Elton
My Lords, I am not at all surprised that a number of your Lordships have tabled or re-tabled amendments addressed to the powers against international terrorism contained in Clause 12. The change in this area is undoubtedly the most significant in the Bill. Indeed, it is the only one in which the powers have been, in practice, extended rather than restricted. I am glad, too, that it is not being objected to in principle that the powers should be available for use against suspected international terrorists.
I explained to your Lordships in Committee why the Government feel so strongly that the powers of arrest and detention should be applied not only in respect of acts of international terrorism committed in the United Kingdom but also to those committed elsewhere—subject, of course, to the assurance given by my right honourable friend the Home Secretary that he will issue guidance to the police restricting the use of the powers in international cases to those in which there was some prospect of the person concerned being charged before a United Kingdom court or of his being deported under the powers in the Immigration Act 1971. I pause to apologise to anybody reading Hansard. I had not realised that I had permitted myself a sentence of about nine lines in length without punctuation.
I am sure your Lordships would not wish me to appear carping about the details of an amendment whose heart is so clearly in the right place. I do not propose to say more on the comments made by the noble Lord, Lord Shackleton, concerning the disingenuity (if that is the right term) of my having said that this was a restriction of something which had always been at large. I do not want to take issue. If I overstated the case, then I regret it. We have so much in common that I would have no advantage in, nor desire to, mislead the House. Even if I had the desire I would not do so, and it would not do me any good, anyway.
I will touch only briefly on two elements which make for difficulty in practice, because there are two principles implicit here. Having given a power to the police, there is a difficulty in then saying, in effect, that the power is not to be used until Parliament has given further consideration to how it should be restricted, in that the power is granted by Parliament originally. The second difficulty is that for my right honourable friend the Home Secretary to give "directions" to the police as proposed is not in keeping with established relationships between him and the police, which are of both delicacy and importance.
I hope we are now clear on the assurance I have already given the House as to how the provisions in this clause will be used. The means by which in the past that assurance has been given—and, if we do not succeed in other attempts at this and the next stage, the means by which it will in future be delivered—is a circular of guidance. I will pause to confirm to the noble Lord, Lord Shackleton, that if we are reduced to 394 a circular of guidance it will of course be placed in the Libraries of both Houses, whereas hitherto it has been a confidential document.
However, your Lordships are parliamentarians and, understandably, do not like the will of Parliament as expressed in statute to be curtailed, even knowingly, by administrative means unless there is no alternative. That is a view which Her Majesty's Government entirely share. As I said in Committee, a great deal of intellectual work has already been expended in trying to get the substance of our assurance on the face of the Bill. In this we have been entirely without success because of the difficulties implicit in statutory definition. It was at that point in the argument that the noble Lord, Lord Shackleton, came helpfully forward with the idea that what could not be accommodated in statute might prove more tractable if dealt with in a statutory instrument. If it could be, it would still have the great merit of providing a parliamentary way of curtailing powers granted by Parliament—as the noble Lord, Lord Henderson of Brompton, has pointed out.
We see the attractions of such a solution. Whether it could easily be achieved is, I fear, doubtful, and I would not wish to mislead your Lordships on that. I am prepared to undertake categorically that we will between now and Third Reading make every possible effort to achieve by this means the incorporation of our assurance in material agreed by Parliament. In so doing, we shall have to consider the consequences of what is proposed and, in particular, whether it has unlooked for and damaging effects as well as those intended. I can tell your Lordships that we shall do our honest best and that I shall keep the noble Lord, Lord Shackleton, posted on the results. I hope he will give us the chance to do that.
Perhaps I do not need a peroration, but my appeal to the noble Lord is that we are at one with him in what he seeks to do. I am glad he recognises the sincerity we have applied in trying to solve the question our way, on the face of the Bill. We are now with equal, and I might even say with more urgent, vigour trying to see if we can achieve that by an order in the way the noble Lord is suggesting. That is more difficult than it looks on the face of it hut we shall do our level best to achieve that by Third Reading.
§ Lord Wigoder
My Lords, perhaps I may make one very obvious remark. I am sure the Government will wish to bear in mind that it is helpful to somebody who is charged with an offence to be able to say in court, "That is contrary to the terms of the statutory instrument". He has no defence whatever if he can say only that it is contrary to some circular.
§ 5.20 p.m.
§ Lord Mishcon
My Lords, I will make only one intervention because I believe the House will be much more keen to hear what my noble friend Lord Shackleton has to say. In the consideration of this matter, and as I said to the House that I was not moving Amendment No. 4 on behalf of my noble friends because I thought this amendment was preferable and the Opposition agreed with that view, I would merely like to make a comment on the two points made by the noble Lord the Minister. The first is that the Government saw a difficulty, if I understand him, 395 in providing here for an arrestable offence and saying that that arrestable offence created by an Act could not be exercised practically, so far as the police were concerned, until a statutory instrument had set out a code of practice. I would appreciate the normal difficulty of that arising in general law but I am sure the noble Lord the Minister will appreciate that the whole of the debate on this matter has been, as from Second Reading and on all sides of the House, the completely exceptional nature of the offences created under this Bill and the completely exceptional nature of the circumstances with which we have to deal.
The noble Lord the Minister, as I understood it, also found a difficulty in regard to dealing with the police in giving directions. He said that this was usually a matter of guidance. I want to make it clear that one of the reasons we thought this was such a good amendment was that although there are directions provided for under the statutory instrument, the directions are meant to be by way of guidance and are so described in this amendment. Therefore, I hope that the noble Lord the Minister will bear those points in mind. As my noble friend Lord Shackleton is in charge of this amendment, it is not for me to say anything more on behalf of my noble friends except that we are behind him in this amendment and leave it to him to decide what he should do, having heard the Minister.
§ Lord Shackleton
My Lords, I am grateful to the noble Lord the Minister who has clearly responded to appeals to solve a problem which worries us all, I am sure, irrespective of party. I am grateful to those who have supported me in this amendment: my noble friend Lord Misheon, the noble Lord, Lord Wigoder, and the noble Lord, Lord Henderson of Brompton. I am grateful also that the Government are supporting me in this amendment subject to being able to achieve what we want to achieve.
I should just like to emphasise—because I may have misunderstood what the noble Lord said—that there need be no delay in producing the necessary order. I do not know whether the Government have already prepared their guidance and that they have issued it and it is locked up in police stations ready to be made effective, but at the moment it would be inappropriate, until the Bill becomes an Act and comes into force, for this power to be used; if it is possible to draft the code in a form that is acceptable. I am grateful for the assurance that the instructions will be made available in the Library. Although I am sure there is some mysterious drafting difficulty which is beyond the comprehension of noble Lords like myself, I believe that the intention of the noble Lord is very satisfactory.
In the light of that, I think it would be the wish of your Lordships that I do not pursue this amendment at the present time. There are some other aspects of the matter which I had thought of dealing with; but since the matter will come up on Third Reading one way or another—either by an amendment from the Government or further amendment from your Lordships—I ask leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
Lord Mishcon moved Amendment No. 6:
Page 10, line 39, at end insert ("where the initial arrest is lawful,").
The noble Lord said: My Lords, in Committee the hour was late. It was a quarter to nine in the evening when I moved this amendment and the noble Lord the Minister was kind enough to answer me. I ventured to say that I had not made myself very clear to the noble Lord and he replied with his usual courtesy in the following terms:
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."—[Official Report, 23/2/84: col. 930.]
I must frankly tell your Lordships that I did not have the pleasure of hearing from the noble Lord the Minister in the meantime. I do not know whether to infer from that that on reading my argument he found no illumination at all and therefore no need to communicate with me; but I am sure he will explain in due course.
§ The point of this amendment is very simple. When a Secretary of State decides in his discretion that a period of detention ought to be extended there is not the slightest hope—I think I can say this in the presence of the noble and learned Lords, Lord Denning and Lord Simon of Glaisdale—of anyone so detained coming before the court successfully and saying that in his view the Secretary of State should not extend that detention. So, habeas corpus in those circumstances, if I may use a colloquialism, is a non-runner.
§ What we are trying to make clear in this exceptional piece of legislation is that if the original arrest is unlawful and the Secretary of State purports to extend the detention period even though it be unlawful then it is possible and clearly open to someone so detained to go before the court and say, "I am not arguing that the discretion of the Secretary of State was wrongly exercised because he was going upon matters which he should not have considered. My argument is that the extension is unlawful because the original arrest was unlawful." That may be a good argument at common law without the necessity of a statute but I am perfectly sure that your Lordships would want it written on the statute book even if it was otiose because it is always going to be argued before our courts, on behalf of the Crown or the Secretary of State, that this is very unusual legislation and that the courts ought not necessarily to go on ordinary principles of law by virtue of the fact that the Government are providing in this statute for exceptional cases and for exceptional powers. That is the reason, and the sole reason, for the amendment. I hope your Lordships—and indeed the noble Lord the Minister—will find it acceptable.
§ Lord Denning
My Lords, this is another opening for the lawyers to make trouble. I do not agree with this amendment at all. If the words:where the initial arrest is lawful",were put in, we should not know where we stood. It is simply confusing the matter. If a person is arrested lawfully under the clause and detained for 48 hours, then of course in a proper case it can be extended further. The extra words are quite unnecessary and would lead to confusion.
§ Lord Elton
My Lords, I have to say that after what the noble and learned Lord has said almost anything I can say would be otiose also. It is clearly wrong to write otiose words either onto the statute book or in Hansard. With all respect, I agree with the noble and learned Lord that if the arrest is unlawful then the Secretary of State has no power to order the extension. There is nothing that we can add to improve on that.
§ Lord Mishcon
My Lords, I tremble as I come to the Dispatch Box, the thunder claps having sounded and the lightning having come across your Lordships' House, as it does when the noble and learned Lord, Lord Denning, in any matter of law delivers a judgment—but sometimes of course your Lordships' House has seen fit to combat that thunder and that lightning and has reversed the noble and learned Lord's judgment in a court below.
I do not want to waste the time of the House. With great respect, the point is still a valid one in the sense that it is not clear upon the face of the Bill that an originally unlawful arrest cannot be extended by the Secretary of State without a challenge. The only answer to me is that it ought to be obvious to any lawyer. If I may say so, it was not obvious to the Law Society. It is not just a question of a humble member of that society thinking up this amendment. The Law Society has expressed its concern in regard to this clause and the wording of it, and I know has communicated that concern to the noble Lord the Minister.
However, I do not think I can usefully carry my argument very much further because this House, having heard the noble and learned Lord, is likely to take a view that if it has to choose between two lawyers it is safer if it chooses the noble and learned Lord, Lord Denning. In those circumstances, I merely sit down.
§ The Deputy Chairman of Committees (Baroness Wootton of A binger)
My Lords, does the noble Lord wish to withdraw his amendment?
§ On Question, amendment negatived.
§ Clause 13 [Control of entry and procedure for removal]:
§ [Amendments Nos. 7 and 8 not moved.]
§ Clause 14 [Supplementary]:
§ [Amendment No. 9 not moved.]
§ 5.33 p.m.
Lord Henderson of Brompton moved Amendment No. 10:
Page 13, line 33, leave out ("or").
§ The noble Lord said: My Lords, we now come to the second of the amendments which I am moving at this stage of the Bill to improve parliamentary control. I am joined in this amendment by the noble Lord, Lord Wigoder. I have to say that in Committee, although it was a thin House and late at night, this amendment or something like it had considerable support, not least I 398 am happy and proud to say from the noble Lord, Lord Fitt.
§ I should explain the purposes of these amendments, which go together. They are Amendments Nos. 10, 11 and 15.
Amendment No. 11: 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. 15: After Clause 17, insert the following new clause:
§ ("Report by Commission
§ . The Secretary of State shall appoint a Commission of 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.").
Together their purpose is threefold: first,
The Secretary of State shall appoint a Commission of three members of either House … who are Privy Councillors";
secondly, the duty of the three parliamentarians who are Privy Counsellors,
shall be to monitor the operation of this Act";
thirdly, the commission of three is,
to report annually to both Houses of Parliament upon its working and effect".
§ The amendments to Clause 14 stipulate that this report should be laid before Parliament at least one month before the annual orders for the continuation of this legislation are laid. May I examine each of these three parts of this group of amendments separately?
§ Under the first heading I have deliberately used the word "Commission" rather than the word "committee", although "committee" is the natural word to use in the parliamentary context. I think perhaps everyone who has thought about this agrees that a parliamentary committee is not the right body for this task for obvious reasons. For example, in the first instance a committee would have to be selected, which in itself poses difficulties. Secondly, it would have to sit in camera. Thirdly, it might be denied access to classified information that would be absolutely necessary for its successful function. I have concluded that the body should be a commission, and that suggests that it should be a prerogative body—that is, one appointed by the Crown.
§ Here I must confess that I find myself in somewhat of a dilemma. Is it constitutionally appropriate for Parliament to insist upon the appointment of a prerogative body by statute? If it is appropriate, then no doubt its terms of reference should be set out in that statute; but that is exceedingly difficult to do without, so to speak, inside information to which I do not have access. However, I am convinced that the principle is sound and that there should be a commission. Ideally it should consist of three parliamentarians—and not judges. I say that with due deference to the noble and learned Lords sitting on the Cross-Benches. As I have indicated on an earlier amendment, the judicature has probably been rendered largely inoperative under this legislation. In my view therefore the commission should consist of Privy Counsellors so that they can have access to classified information; and there should be three so that as much all-party confidence is generated as possible.399
Secondly, I should like to say a brief word about functions. I have used the word "monitor"—
monitor the operation of this Act and to report…upon its working and effect".
Again I must confess to some difficulty in drafting. I am hampered by lack of experience of the security services, and so on; so I and the noble Lord, Lord Wigoder, have opted for the word "monitor", which is a catch-all word. I think it well expresses the kind of function that would give public confidence. I have deliberately eschewed any suggestion that the commission should in any way act as an appeal body. There can be no appeal in any meaningful sense from the kind of executive actions and decisions that are made under this legislation.
§ What I wish to suggest by the word "monitor" is that the commission should have access to classified information but not—most certainly not—to individual cases; secondly, that the commission should have access to the Secretary of State and I hope the heads of the security services, and when they confer with the Secretary of State they can talk on Privy Council terms in absolute confidentiality. This, I should have thought, would be welcome to the Secretary of State, who has to take these hard decisions on his own in isolation, though of course on carefully submitted advice.
§ I hope that the noble Lord's encouraging remarks extend to this amendment as well as to the previous one. If the Government will consider this, I should like them also to consider seriously the proposal that the commission should be adequately supported—no vast infrastructure; I am not recommending that—for instance, by a senior counsel, someone trained by his profession to elicit and ascertain facts for the consideration of the commission.
§ Thirdly, there is the requirement for the commission to report annually in good time for the debates on the renewal orders. Surely that needs little elaboration. There is no question but that an annual report by three respected parliamentarians would not only generate confidence and allay fears but would lead to better-informed debates in both Houses of Parliament.
At present, all we have to go on are the quarterly statistics and any interpretation which the Minister might put on those statistics when he moves the order for approval. So unquestionably a presentation of the statistics covered by a report from an independent and respected body, well in advance of the annual debates, would lead to a better-informed and more sober annual assessment of this legislation and of the causes which give rise to it. I would hope that more time than has hitherto been allowed in another place would be devoted in future to these annual reviews, and in this House too, for there was an implied rebuke in the Jellicoe Report which both Houses should heed. This is what he said:
The renewal debates have not, on the whole, received the Parliamentary time which they merit.
§ When I mentioned this in Committee the noble Lord, Lord Fitt, fully acknowledged that this was his experience from another place, and he gave as his reason for this that Members of that House—and indeed of this—do not attend to talk of this subject 400 because it is so horrific, and in effect what he was saying is that human kind cannot bear very much reality. He knows too much of it himself, and I think we should respect what he says. I think for all of those reasons I have said enough to convince the House of the case for accepting at least the principle behind these amendments, and I therefore beg to move.
§ Lord Denning
My Lords, I should like to support this amendment. We must remember that this Bill is dealing with two conflicting interests: the freedom of the individual on the one hand, and the national security on the other hand. They are in conflict. It is only in times of great emergency that the Secretary of State is given power to interfere with the freedom of the individual—in this case by exclusion orders, detention and the rest.
The Secretary of State is only to be given that power to interfere with the freedom of the individual by Parliament. It is Parliament which is giving this power to the Secretary of State in this Bill, in this statute. If the Secretary of State is to be given such power by Parliament, surely Parliament should be able, in appropriate circumstances, to consider whether or not it should be extended. Better let it be considered every year, and better let Parliament be properly instructed whether these powers should be extended, and so on. How can Parliament do it unless it has a report of how these powers are being exercised and dealt with by the Secretary of State?
The whole object of this amendment, as I understand it, is to have a commission. I had, at one time, a good deal to do with inquiring into security matters. I should have thought a commission was extremely good. My noble friend Lord Henderson of Brompton said something about not having judges; but some of us Privy Counsellors who are retired could qualify. But at all events they should have suitable Privy Counsellors who will be able to inquire, not into actual details of individual cases but into how the Secretary of State is exercising his powers in this regard. That can only be done if they are monitored and a report is made to Parliament from time to time so that we can see that these exceptional powers have been well exercised. I would support the amendment.
§ 5.46 p.m.
§ Lord Wigoder
My Lords, I am delighted to see that normal service has now been resumed and that I am able enthusiastically to support what the noble and learned Lord, Lord Denning, has said. It is clear that vast powers are being given at the potential expense of the individual. It is clear that those powers, for the most part, cannot, by their nature, be subject to judicial review. I think everyone is agreed that it is clear that Parliament must therefore review the operation of those powers on an annual basis. So far, there has been no dispute between anybody in your Lordships' House. The real question is how is Parliament to get the raw material from which it can make accurate judgments every year as to which powers, or whether all the powers or none of the powers, should in fact be renewed.
I do not think it is sufficient for the noble Lord the Minister to indicate, as he did at Committee stage, that 401 full statistical reports will be made available to Members of Parliament before these reviews take place. It is not really the statistics that are required, although they are very important. What is required is a review available to Members of Parliament as to the spirit in which the Act is being operated. A great deal is going to depend on that.
How are exclusion orders in fact being carried out? Is there being undue hardship in marginal cases? What is happening under Clause 11? What sort of people are being prosecuted, and why? Indeed, as we have discovered before, it is high time that there was some information about the exercise of that power in Northern Ireland. Who are being detained at ports? Why are they being detained? Is it really only because they have got long hair—in which case I should regard myself as tolerably safe. Are the conditions at the ports in which people are being detained satisfactory? What is happening under Clause 12 where it looks as though there may be either a statutory instrument containing a code of practice or a circular of guidance?
What both Houses will want to know is: in what spirit is that code of practice or the guidance circular being complied with? That is not going to emerge from a statistical survey that will simply tell us how many people have or have not been prosecuted in the course of the year.
Finally, there is the question of detention. We want to know not merely how many people have been detained and how many people have been charged as a result; we want to be satisfied that the conditions in which they have been detained have been such as the House would find acceptable. Those are the sorts of matters that would lead me to believe that the type of statistical review produced by a government department simply will not suffice. That is the raw material, but it needs clothing. The only way it can be clothed I believe is by some form of independent commission of people of the calibre set out in Amendment No. 15, in Lord Henderson's amendment, and I hope it will commend itself to the Government and to your Lordships' House.
§ Lord Shackleton
My Lords, I had thought my name was going down in support of this amendment but I see the noble Lord, Lord Wigoder, is back in his place there. Perhaps that is just as well because I have some reservations about it. I should like to explain them to the House, although at the end of the day I hope that the Minister will seek to meet, in some effective way, what the noble Lord, Lord Henderson of Brompton, has asked for.
First, let me relieve the mind of the noble and learned Lord, Lord Denning. The reason why the noble Lord, Lord Henderson, has suggested that the commission should not include judges—and I do not think that he quite made this absolutely clear—is that it is extremely important that it should not in any way be thought to be a judicial procedure. This has been one of the problems all the way through the discussions. Indeed, during my review it was suggested that when people exercised their right of appeal against an exclusion order the matter should go to a judge. It is important that it is not a judicial procedure; nor will this particular commission be a judicial procedure.
402 It may be that a retired judge—and now some judges are compelled to retire earlier than others—might be appropriate. The Privy Counsellor does not necessarily have to be a parliamentarian. Although Privy Counsellors in your Lordships' House do not leave Parliament, Privy Counsellors in another place do sometimes inadvertently leave Parliament, or even retire from it. Therefore, I would widen the proposal to that extent.
My concern is that if the members of the commission are to do their job properly, they will have a great deal of work to do. Having had the advantage, or disadvantage, of carrying out the earlier inquiry—previous to the inquiry of the noble Earl, Lord Jellicoe; and I am sure that he would agree with me—I know that to review the operation of the legislation (which is what the noble Earl and then I myself were called upon to do) is a very big task. I think the problem will be how the procedure can be limited, and yet remain effective. I would defend the value of the statistics. Indeed, one of my earlier recommendations was concerned with the absence of statistics. But even the statistics alone will need a great deal of examination. There will, for instance, be the statistics on the length of time that people are held at the ports.
I think it likely that, whether it consists of three members or fewer, the commission will have to undertake a degree of sampling and will need to look at particular areas. I very much take the point that the noble Lord, Lord Wigoder, made about the conditions of detention. This is an area on which I commented adversely, and an area in which the noble Earl, Lord Jellicoe, said that there had been virtually no improvement. I can only say that if one was detained in a cell at Stranraer, it would not be very long before one was in a state of acute nervous uncertainty; it is a most uncomfortable place. In fact, people are not detained there for long; I think that they are shoved off to Dumfries, or somewhere like that. Nonetheless, I would hope that there would be some supervision of that.
I hope that, despite my concern about the size of the task, the Government will find a way to meet this point if, as my noble friend has made clear, the objective is to make the legislation, if not more acceptable then likely to relieve some of the anxieties; and the Government are very anxious to do that. For that reason I support the noble Lord, Lord Henderson of Brompton, and I hope that the Government will go some way to meet this proposal.
§ Lord Fitt
My Lords, I hope that there will be very many more occasions when I shall find myself in such total agreement with the sentiments expressed by the noble and learned Lord, Lord Denning, in his support of the amendment. As has been said on a number of occasions by a succession of Secretaries of State at the Home Office, this is the most draconian legislation that has been put on the statute book—for understandable reasons. As has been said, it can be used the wrong way; it can mean a very serious invasion into all the rights of all the citizens of this country—not only Irish people, but English, Scots and Welsh people, too. In those circumstances, I think that everyone in the whole country, both inside and outside 403 of these Houses of Parliament, would welcome this further safeguard.
I see a little difficulty. How do we arrive at a membership of three? Could there be four or five members on the commission? Coming from Northern Ireland, and having represented a Northern Ireland constituency, I am certain that within Northern Ireland there will be people who will say that there should be a Northern Ireland voice on the commission, if it is to be set up. If that view were acceded to, we should find that Northern Ireland Privy Counsellors were all connected with only one side of the religious and political community of Northern Ireland. So that in itself might cause some slight friction. However, even at the risk of that happening—whether or not there was a Northern Ireland person on the commission, and whoever were the members of the commission—I believe that it would be regarded as a very big step in stifling many of the criticisms which are made against this legislation.
I am quite certain that many of your Lordships will have read in the Library the recent annual report of the Northern Ireland Standing Advisory Commission on Human Rights. That body has some very harsh things to say about emergency legislation in Northern Ireland. It was set up by the first Conservative Government which came to power after direct rule was introduced in the 'seventies, and it is indeed appointed by the Government. I think the Minister would agree that the personnel who at present comprise the Northern Ireland Standing Advisory Corn mission are (as were their predecessors) people of some quality; otherwise, they would never have been appointed. If those people express reservations about the operation of either the prevention of terrorism legislation or the emergency powers legislation, I think that those reservations should be given some consideration.
If a commission such as is proposed by the noble Lord, Lord Henderson, is set up—and I am totally in support of his proposal—then perhaps in the course of the year, while it is in the process of drawing up its own report, it could have discussions with the Standing Advisory Commission. The members of the commission would be there on the spot to monitor cases of the type in which undoubtedly people believe there has been an infringement of human rights. I believe that this is a very reasonable amendment and I sincerely hope that the Minister will find himself able to accept it. I am quite certain that if he can do so it will do a great deal to remove much of the odium that is attached to this particular emergency legislation.
§ Lord Hylton
My Lords, I supported this amendment at the Committee stage and I want to do so again this evening. I do so mainly for two reasons. The operation of this legislation and its continuance or otherwise has a considerable impact on community relations in not only Northern Ireland but also Britain. For that reason we need to have a properly informed parliamentary review of it annually, and the amendment is a most important proposal for getting that informed review.
Secondly, as we have frequently heard, this legislation has had two reviews. The related and 404 cognate Act in Northern Ireland (the Emergency Provisions Act) has already had one review and a second review is at present in process. I suspect that there have been delays in starting the reviews because it is understandably difficult to find a suitable person free at the moment when it is desired to have a review. He is then appointed, and he finds it a very difficult, complex and delicate task to carry out his review, and so we are unable to have results at all frequently. I believe that that situation would be greatly improved by having a standing and permanent commission.
§ Lord Prys-Davies
My Lords, very briefly, from these Benches, we support the principle embodied in the amendment. We have seen, time after time, that the exercise of the extensive powers that are conferred upon the Secretary of State depend upon his subjective decision. The Secretary of State is not answerable to the courts for the way in which he exercises the powers, so that the courts cannot inquire into his mind. He is answerable to Parliament. It is right and proper that Parliament should be equipped to review the way in which he has exercised the extensive powers conferred upon him by the Bill. Therefore, from these Benches, we support the principle embodied in the amendment.
§ 6.1 p.m.
§ Lord Elton
My Lords, a number of noble Lords have argued persuasively and eloquently both this evening and at Committee stage that it would assist both Houses of Parliament if, each year, when they came to consider a continuation order, they had access to a report about the working of the Act in the past year on the basis of which to consider the case for continuation. There are inevitably concerns in this situation about sensitive security information. We also have to bear in mind that the Act places direct responsibilities, notably in respect of extension and exclusion orders, upon the Secretary of State. Each holder of that office, let us not forget, is personally answerable to Parliament for the way that he exercises those powers. Those factors were reflected in the arguments that I used in the past to resist amendments on this point.
I am bound to say that I was also concerned that amendments on this subject did not spell out the purposes of the commission. I strongly suspect that those putting forward the amendments have not wanted to do so. They did not want to limit the role of the proposed commission to aspects of the Act specified in advance, quite understandably, but wanted the commission to adapt its role to the circumstances that arose and changed during the life of the Act. I understand that concern and, if I have understood it aright, a degree of informality and a lack of constraint on the role of such a commission might be a positive advantage.
Before I come to what I propose in response to these amendments, I should, I think, remind your Lordships of an existing safeguard. The Bill already includes a provision ensuring that the Act will lapse unless continued year by year by a continuation order, and will last for up to a maximum of only five years. That order provides the main opportunity for Parliamentary scrutiny of the need to continue these exceptional powers. The points that I have to make on 405 these amendments are addressed to the effectiveness of that scrutiny. They will, I believe, help to improve it. In that way, they will help to reinforce the confidence of the House and the country in the care given to these exceptional provisions which the noble Lord, Lord Henderson, rightly seeks.
I ought, I suppose, also to remind your Lordships of an undertaking that I gave in Committee to which we shall return, I do not doubt, on a later amendment, as to the timely nature of the debates on that renewal. That was my first undertaking. My second undertaking is a new one. There was a general feeling, expressed particularly by the noble Lord, Lord Henderson, that Parliament would value an independent scrutiny of the operation of the Act once a year to inform our consideration of continuation orders. He has summarised the objectives in his amendments and I have already explained briefly that his amendments would, in the Government's view, be insufficiently precise in defining the role of the proposed commission. But that role might in any case need to be adapted to changing circumstances. Rigidity would be a disadvantage.
The Government are concerned about the scale of the recent proposal. To have three commissioners looks very much like some sort of tribunal. That is not, I think, what anyone had in mind. I shall say more about that aspect in a moment. It widens the number of people having access to sensitive security information. That is not a problem in the sense that those concerned could not be trusted, but we should all regret if, on the margin, people whose safety might be threatened—police informers, for example—believed, however mistakenly, that their information risked disclosure.
For these reasons and those adduced ably by the noble Lord, Lord Fitt, our conclusion was that it would be right to undertake to appoint a single person for this task. He would have to be a person whose reputation would lend authority to his conclusions, because some of the information which led him to his conclusions would not be published. To give him the widest possible role and to allow him to adopt whatever procedure seemed to him convenient, his appointment would rest upon this undertaking to the House. I would propose that it should not be set out in amendments to the Bill and, if noble Lords supporting these amendments were to accept the Government's firm undertaking on this point, I hope that they would feel able to withdraw the amendments.
Without attempting to curtail his role, I shall describe what he would do and how he might do it. First, he would not be an appellate authority. It would not be his task to say that the extension of the detention of Mr. Smith was wrong but that of Mr. Jones was right. It would be his task to look at the use made of the powers under the Act. To consider, for example, whether he saw emerging any change in the pattern of their use which required to be drawn to the attention of Parliament. To enable him to see such a pattern and to contain his workload, we envisage that he should carry out his work in a concentrated period once a year to provide a snapshot of the use made of the powers.
406 To pursue his lines of inquiry he would, as necessary, have access to relevant papers, including those relating to exclusions and extensions, although in the latter case, as I have emphasised, his task would not be to judge individual cases but to examine the overall use made of the powers. He would have access to ministerial correspondence related to complaints about, or recommendations for, improvements in the working of the Act. He should have any opportunity he requires for discussions with officials as well as Ministers about any question he might have relating to this material or the statistics recording the use made of the Act. It would be up to him to ask for any reasonable administrative help, and the Government undertake to see that reasonable needs are met.
§ Lord Henderson of Brompton
My Lords, when the noble Lord says that he should have access to any reasonable administrative support, would that extend to someone outside the department—for instance, a counsel learned in the law, a senior counsel, as I suggested?
§ Lord Elton
My Lords, I am engaged in giving an undertaking to Parliament in wording that has been very carefully thought about. If the noble Lord will forgive me, I would rather not elaborate, although he may wish to ask me a question afterwards or it may arise in some other way. With your Lordships' indulgence I shall contine—
§ Lord Shackleton
My Lords, if I may intervene, although I have no right to speak because I have already spoken on this matter, I should like to say that a member of the department would, in my judgment, be a very suitable person. Having had the experience, like the noble Earl, Lord Jellicoe, of being served by members of the department, one had complete independence and complete integrity.
§ Lord Elton
My Lords, I am grateful for that intervention. It would be important that his report should be published—and published in good time before the House considered a continuation order. We would expect that he would need to consult fully with the Secretaries of State concerned before preparing his report. His report might, for example, take the form of a published exchange of correspondence between him and the Home Secretary but covering, of course, the interests of all three Secretaries of State concerned. If he chose to do so, points of security sensitivity could be covered in unpublished correspondence, although, given that his report would not be reviewing or identifying individual cases, I would expect that this precaution should not often be necessary.
Your Lordships are bound to ask who this great man should be. I shall not be able to answer that question this evening, as I am sure your Lordships will understand. But I have emphasised that his task would not be a judicial or an appellate one and I do not therefore expect that he would be a judge. We shall take our consideration of this matter forward urgently if the undertaking finds favour with your Lordships. Given the nature of the task, the important consideration is his public standing as a person who will command confidence not only in Parliament but in the country.
407 This proposal has been the subject of much careful thought. It constitutes the offer of a binding undertaking of no little importance. It will provide the extra dimension of reassurance that so many of your Lordships are looking for. It represents, I believe, the most that can be done in practicable terms and it is put forward in the most practicable way. I hope that it will commend itself to your Lordships and to the noble Lords whose amendment we are discussing, and that they will be prepared to accept it in place of them.
§ Lord Wigoder
Before the noble Lord sits down, can he say whether this individual would have access to detainees?
§ Lord Elton
My Lords, I would rather not answer that question without notice. I do see the relevance of what the noble Lord asks. I am well aware of the dangers of leaping to conclusions that seem to be obvious, and I think I must merely take that question on board.
§ Lord Denning
My Lords, I should like to welcome the suggestion and say that the Minister has followed a good precedent because there was something very like it some 20 years ago when the Profumo inquiry was held. It was very like it except that a judge conducted the inquiry on that occasion.
§ Lord Mishcon
My Lords, I am sure the noble and learned Lord, Lord Denning, was asking the leave of the House when he spoke again, but he is always welcome—
§ Lord Shackleton
My Lords, if I may interrupt my noble friend, it is not possible for the House to give leave other than to the mover, who may wish to speak again, or to the noble Lord the Minister.
§ Baroness Trumpington
My Lords, I recognise that but out of courtesy I gave way and let the noble and learned Lord continue.
§ Lord Mishcon
My Lords, if I may say so, whether the noble and learned Lord, Lord Denning, speaks in order or whether he does not, his voice is always welcome.
From these Benches I would certainly wish to welcome what the noble Lord the Minister has announced to this House tonight. Again, it is not for me to say whether the movers of this resolution are or are not content with what has been said because my name is not attached to this Motion, although my noble friend Lord Prys-Davies has already said we support the principle. Certainly, from these Benches we welcome very much what the noble Lord the Minister has said.
§ Lord Henderson of Brompton
My Lords, for that very handsome undertaking by the Minister, which I feel sure is welcomed by all sides of the House—the noble and learned Lord, Lord Denning, the noble Lord, Lord Fitt, and the noble Lord, Lord Mishcon, for the Opposition, have each indicated that it is satisfactory so far as they are concerned, and I gather from nods on the Liberal Benches that it is acceptable 408 to the noble Lord, Lord Wigoder; and also to the noble Lord, Lord Shackleton—I offer the Minister my thanks. His undertaking will be widely welcomed and give great reassurance not only in Parliament but throughout the country. I beg leave to withdraw this amendment.
§ Amendment, by leave, withdrawn.
§ [Amendment No. 11 not moved.]
§ 6.13 p.m.
Lord Henderson of Brompton moved Amendment No. 12:
Page 13, line 34, leave out paragraph (b).
The noble Lord said: My Lords, I should like to move No. 12. This is a probing amendment. I think that in order to indicate to the House what it is that I wish to probe the Government about I need to read subsection (10) of Clause 14. Subsection (10) says:
No order under section 1 above"—
that is about the proscription of organizations—
or under section 17 below"—
that is about duration, expiry and revival—
shall be made unless—(a) a draft of the order has been approved by resolution of each House of Parliament"—
I do not object to that at all—
and these are the words in question—
it is declared in the order that it appears to the Secretary of State that by reason of urgency it is necessary to make the order without a draft having been so approved".
I can understand the necessity for paragraph (b)—which I have just read out—in the case of Section 1 orders which relate to the proscription of organisations, but I cannot myself—though I have tried hard—envisage the circumstances in which paragraph (b) may be necessarily invoked in respect of Section 17 orders;—that is the annual renewal, revival or duration orders. I confess I would have missed this point altogether had not the noble Lord, Lord Elton, in Committee gone out of his way to say—and this was an earlier, and a very welcome, undertaking:
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 your 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."—[Official Report, 23/2/84; col. 945.]
That was another very handsome undertaking given by the noble Lord the Minister, and I should like to take this opportunity of thanking him for that. But if that undertaking is to have any validity, it surely must mean that the Government would never invoke paragraph (b) of subsection (10) of Clause 14, which is the subject of this probing amendment.
§ So I am asking the Government to consider excluding the operation of paragraph (b) from Section 17 orders. If, on the other hand, they will not agree to do that, the House is at least owed an explanation of the circumstances in which paragraph (b) might be invoked in respect of Section 17 orders. I await the answer of the Minister with interest. I beg to move.
§ Lord Elton
My Lords, I am grateful to the noble Lord, Lord Henderson of Brompton, for enabling me 409 to provide the explanation which, as he rightly says, I owe to the House. The procedure to which this amendment is addressed—known as the urgency procedure—enables an order, which under normal circumstances would be subject to the affirmative resolution procedure and which would not come into force until approved by both Houses, to be made immediately if the Secretary of State declares that this is necessary by reason of urgency. In such cases the order still has to be approved by your Lordships' House, and by another place, either within 40 days of being made or, if Parliament were not sitting at the time, within 40 days of its return. I can think of a number of circumstances in which this procedure might indeed need to be invoked.
An order under Section 1 proscribing in Great Britain an organisation concerned with Northern Ireland terrorism might be urgently needed during the Summer Recess if a previously unknown or apparently harmless group mounted a concerted bombing attack on the mainland. If such a campaign began in August, I am sure it would be wrong for the making of an order to he delayed until October. Similarly, if a general election were unexpectedly called when renewal was imminent, and a renewal order could not be debated before Parliament was prorogued the Secretary of State would have to make an order under this procedure.
I ought, I think, to have referred to that when I was giving the undertaking. There are circumstances, which one can imagine, when in fact it would be impracticable or impossible to honour the undertaking because one was overtaken by a dissolution. It would be a very unhappy coincidence of dates if that were to happen, but I ought nonetheless to have foreseen it and I regret that I did not. In either case that I have mentioned the order would cease to have effect unless both Houses had approved it within 40 days of their return. So it would be perfectly simple to remedy the matter thereafter.
I recognise that this amendment reflects the noble Lord's very understandable concern that Parliament should be closely involved with every aspect of this legislation; legislation which we are all only too well aware contains provisions which in other circumstances we would regard as objectionable. But the urgency procedure has two safeguards built into it. The Secretary of State must be satisfied of the urgent need for an order, and Parliament must approve that order if its life is to be of a useful length at all.
§ Lord Shackleton
My Lords, I think that my noble friend has conceded the point on Clause 1—the clause which relates to proscription. I do not know whether the noble Lord can give any other examples apart from an election. Again, I think that this is slightly undesirable. It is a very wide, blanket power. In effect, the Act can be, as it were, re-enacted by order if Parliament is not sitting. Normally, as the noble Lord knows, at the time of a general election there is a quick rush of legislation through Parliament. Your Lordships have to work particularly hard, and I do not doubt that Parliament would approve it or, equally, might not wish to do so, whereupon the Minister would wait until Parliament had been dissolved. It is 410 obviously a safe precaution. There may be many other examples. I do not know whether the noble Lord can give those examples. My inclination—if my noble friend does not wish to take the matter to a Division tonight—is for my noble friend to reserve his ammunition and perhaps ask the Government if they can give some further information, perhaps in the course of this debate, if the noble Lord's active friend can supply him with some additional answers.
§ Lord Elton
My Lords, the activity and nobility of my friend is never in question and, as always, it has proved effective. I am not sure how many examples I can, under those circumstances, produce, but I can produce one. For instance, if part of the Act had been allowed to lapse and then it was urgently needed—owing to a change back to former circumstances—I understand that to reactivate that part of the Act this procedure would be required. I wish to reassure your Lordships that there are no sinister intentions; your Lordships will wish to reassure me that you do not impute any to me, but that my successors may be lesser men; and so we go on. I hope that I have at least explained to your Lordships why there is a need for a provision of this sort.
The noble Lord, Lord Shackleton, suggests that maybe it goes wider than necessary. I dare say, given a little more time, I might be able to produce other reasons as to why a certain degree of width is needed—
§ Lord Shackleton
My Lords, it is not the noble Lord we are worried about; we are worried about his successors.
§ Lord Elton
My Lords, I was waiting for that piece of flattery, and I am grateful for it. But I am afraid I can say no more at this stage.
§ Lord Henderson of Brompton
My Lords, I am very grateful to the noble Lord the Minister for his explanation, and I should very much like to consider it. My instant reaction is that it is moderately—but only moderately—satisfactory. I wonder whether, somehow or other, between now and Third Reading it might be possible for the noble Lord to consider whether this paragraph might be more restricted. Of course, I have conceded that it is necessary in respect of Clause 1 orders; but if it were possible between now and Third Reading to restrict it to the very few cases where it would be impossible or impracticable to lay a renewal order for the reactivation of a part which had been allowed to lapse, it would certainly give me some reassurance. I wonder whether the noble Lord would be kind enough to give an indication.
§ Lord Elton
My Lords, if your Lordships would be kind enough to allow me to speak more than I should at this stage, I should like to say that, of course, between stages I always consider what noble Lords have said, anyway. I would remind the noble Lord that before Third Reading there is some very urgent work to be done by the same people as will be considering this matter as regards a form of statutory instrument, and so on, to which we would probably attach slightly more importance than we would to this. We will look 411 at it again, but not to the extent that it might prejudice that work.
§ Lord Henderson of Brompton
My Lords, I am most grateful to the noble Lord for what he has said, and I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ Clause 17 [Duration, expiry and revival of certain provisions]:
§ 6.24 p.m.
Lord Henderson of Brompton moved Amendment No. 13:
Page 14, line 23, leave out ("an order") and insert ("orders")
The noble Lord said: My Lords, I apologise for getting to my feet once again, but I think that it would be the wish of the noble Lord, Lord Wigoder, and probably the noble Lord, Lord Fitt, that I move Amendment No. 13 and speak also to Amendment No. 14:
Amendment No. 14: 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.")
§ In Committee, which lasted some four and a half hours, a substantial amount of time was taken up by the discussion of Part II, exclusion orders. That discussion was initiated by the Opposition Front Bench. The Committee did, indeed, crawl over the exclusion order provisions. At the end of the day, rather late at night and with only a handful present, the noble Lord, Lord Wigoder, moved an amendment to the effect that there should be five separate orders for approval annually for each Part of the Act. My amendment was slightly less ambitious, and this is the one that I am repeating today. It is one to which the noble Lord, Lord Wigoder, has attached his name. It provides for separate orders for the continuance of Part II, on the one hand, and the remainder of the Act, on the other hand. I know that the drafting is defective, but it does have the merit of simplicity. If the principle is accepted, it should be possible to draft a suitable amendment to be moved on Third Reading, modelled on the wording of Clause 17(2).
§ In Committee the Minister did not like either my amendment or the amendment of the noble Lord. Lord Wigoder. However, he preferred mine if only because it had the effect of merely doubling the time taken in the House of Commons on the annual orders; whereas the amendment of the noble Lord, Lord Wigoder, would have quintupled that amount of time.
§ The essence of the case for singling out exclusion orders for special treatment annually is to be found in the Jellicoe Report itself, in chapters 8 and 9. As I said on Second Reading, the noble Earl, Lord Jellicoe, was particularly cautious about Part II, and in chapter 9 of his report he revealed especially his great concern for civil liberty. He opened the chapter with a very remarkable set of words. In order to save time during this Report stage, I shall not read out those words. They are already written into the record because the noble Lord, Lord Mishcon, himself read them out carefully and slowly. Therefore, I should like to take them as read. However, they were very careful words, 412 and they are enough in themselves to justify, in my view, a separate annual order for Part II.
But in addition the noble Earl, Lord Jellicoe, went on the say in paragraph 178:
I believe the need for it"—
that is, the exclusion order—
to have declined markedly
since the mid-1970s. That is dramatically supported by the statistical tables. That, in turn, led the noble Earl, Lord Jellicoe, to recommend:
that the possibility of abolishing it"—
that is, the Part II exclusion order—
should be kept under regular review, without prejudice to the Act's other powers".
Again I suggest to the House that that is a powerful argument for a separate affirmative resolution for exclusion orders. Indeed, the noble Earl, Lord Jellicoe, said:
In sum, I believe that it should be one of the first powers in the Act to be repealed; but that the time for this is not yet".
As I said in Committee, the noble Earl, Lord Jellicoe, most fairly set out at length the case against exclusion orders, although he came down in favour of them. In his visits to Northern Ireland he was impressed by the unanimity of view. This is what he said:
Every political party from which I can receive oral evidence—and these included both 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' ".
it can have severe effects not only on the excluded person and his family, but also on the population of Northern Ireland".
In paragraph 185 he agreed that exclusion can cause financial hardship and emotional suffering to the family of the excluded person. He said, rightly:
Exclusion is not a punishment, in the sense that this is not the intention with which it is imposed. But in such cases it can have the effect on the subject and his family of a punishment of very considerable severity".
So I hope that no one will argue that exclusion is not effectively a punishment. Indeed, exclusion is only a euphemism for "banishment", which is a word which sends a shiver up the spine.
I have two more arguments for singling out exclusion orders for special treatment and they are both derived from the Jellicoe Report: first, the need for Parliament to scrutinise especially the operation of the new three-year rule. This is what Lord Jellicoe said:
It is an administrative question how fast this can be achieved; but I would hope that within a year of introducing 'three-year' exclusion, no 'old' exclusion orders more than three years old would remain in force".
This wants watching by Parliament—and I suggest it wants annual watching by Parliament.
Secondly, Lord Jellicoe says—and this is early on in his report:
it seems plain that exceptional legislation will be—at best—ineffective if it is operated against the will of the public. The most important assistance which the police can have in the fight against terrorism is not special powers but the support of the public. It is vital that such powers do not unnecessarily alienate—either in their essence or in their operation—any section of the law-abiding population in Great Britain or in Northern Ireland".
Those are wise words. Recalling the unanimous opposition of all political parties to exclusion in Northern Ireland, I maintain that the case for a separate affirmative instrument for exclusion is made so that public opinion can be annually expressed and judgment made in Parliament as to the necessity for its continuance.
§ Having said that, I must say in all fairness to the noble Lord the Minister that the Government's handsome undertaking in regard to the appointment of a single commissioner, for which I think the whole House is deeply grateful, has made the case for separate orders for exclusion slightly less imperative than it was. I put it no higher than that. Nonetheless, it remains a formidable case, and therefore I beg to move.
§ Lord Wigoder
My Lords, I do not think that it is necessary to add to what the noble Lord, Lord Henderson, has said about the importance of exclusion orders; nor about the desirability that, on annual review, Parliament should have the power to come to a separate decision on Part II exclusion orders from its decision as to renewing the rest of the Act. I do not think it is necessary to add anything to what the noble Lord, Lord Henderson, has said, first, because of the way in which he put the matter, and, secondly, because it seemed to me that at the Committee stage the noble Lord the Minister very graciously conceded that it was desirable on renewal in an appropriate case for the Houses of Parliament to have the opportunity to come to separate decisions on separate parts of the Act. The only matter that divided us at the Committee stage was the question of what is the best machinery for achieving this desirable end.
The machinery proposed by the noble Lord, Lord Henderson, is simple in the extreme. It is that instead of having one order to renew the whole Act, which has to be dealt with en bloc, there should be two separate orders, one to deal with Part II exclusion orders, and the other to deal with the rest of the Act. That seems to be extremely simple and extremely effective. The only criticism that could be offered was not a very compelling one; it was that in some odd way if we debate Part II in one debate and the rest of the Act in another debate, our debates will last twice as long as if we debated the whole Act, including Part II, at the one time. I think that there is a logical fallacy about that and I must confess that I do not find it very persuasive or attractive as an argument.
On the contrary, having a separate debate on Part II from the debate on the rest of the Act might very well serve to concentrate people's minds and prevent the debate from wandering over a very wide area. Therefore, the amendment of the noble Lord, Lord Henderson, which I am very happy to support, would achieve the end which everybody wants to see achieved with the minimum of difficulty.
As I understand it, the alternative proposal which the Government put forward in Committee was an undertaking that the order to renew the whole Act would be laid well in advance of the necessary time, so that the Government could test the temperature of the debate in the two Houses of Parliament. If it appeared that there was feeling that particular parts of the Act 414 should not be renewed, then the Government would withdraw the order that they had laid and proceed to modify it, and re-lay it as a different order, excluding from it such parts as it appeared the House did not want to renew. By comparison with the proposal of the noble Lord, Lord Henderson, that seems to me to be the most cumbersome of procedures. I find it difficult to understand how it can seriously be said that, on a matter of this importance, it is possible to take the temperature of the House without a vote and in the course of what may be a rambling debate on a very large number of sections of an Act which is being renewed.
I was almost driven to the conclusion last time that the Government were resolved to resist the amendment of the noble Lord, Lord Henderson, and instead to promote their own undertaking out of a sort of determination in no circumstances to have a single word of this Bill amended in Committee in your Lordships' House. I do not believe that that is so, but I ask the noble Lord the Minister to agree, as I am sure he will today, that it is still desirable, as it was at the Committee stage, that the machinery should exist for a separate consideration of Part II of this Bill, and that in those circumstances the proposal of the noble Lord, Lord Henderson, is a very much more practicable one than the one to which he resorted last time.
§ Lord Elton
My Lords, as I made clear during our debate on similar amendments in Committee, I entirely understand and sympathise with the feeling of frustration that your Lordships may suffer when the only options open to your Lordships are to agree or to negative an order in toto. It was this feeling which led me to offer an undertaking that the draft renewal order would, in normal circumstances, be laid before your Lordships in ample time for debate at a date which would permit the Government to withdraw the order and amend it to take account of the views expressed, if they were moved to do so. The amended version would then be considered in another place and by your Lordships in the usual way.
I have discussed the views expressed by your Lordships in Committee with my right honourable and learned friend the Home Secretary, and I can assure your Lordships that he too fully sympathises with the motives which have led the noble Lords to table this amendment, and indeed to re-table it. He has given this firm assurance. First, that unless in the particular circumstances there are overriding reasons against so doing—and we have just discussed a couple—your Lordships will always be given an opportunity to consider the draft order at least one month before the date of renewal; and, secondly, that he will consider very seriously how many points made in the debate might be incorporated in a revised order.
I mentioned the words:Unless in particular circumstances there are overriding reasons against so doing"—not as a sinister escape hatch, but for the reasons which I gave in an earlier exchange on the previous amendment. That undertaking is as far as the Government can go towards meeting the spirit of the amendment because there is a very real technical difficulty with the amendment, and I hope that your Lordships will bear with me while I try to explain it.
415 The separate parts of the Bill are to some extent interdependent. As with other legislation, the parts are there only for administrative convenience, and reflect convenient divisions within the Bill. But it would be wrong to conclude that these divisions represent independent and unrelated provisions. If this amendment were accepted the Government of the day could find itself in a situation in which, having decided after careful consideration that the whole of the Act should be renewed, one House rejected one of the orders, say, that relating to Parts I, III, IV and V, but not that relating to Part II. But the result would be that Part II could not be given full effect without other parts of the Bill being in force as well. It might also happen that one House would reject one order and the other House the other. I am sure your Lordships can imagine the constitutional chaos that this would cause.
I am not of course saying to your Lordships that the Bill is an indivisible whole—if it were, the provision in Clause 17(2) for "all or any" of its provisions to be renewed would be inoperable—but I am saying that it cannot be divided on a rigid basis, sliced down a straight line through the statute at a particular point.
The provision in Clause 17(2) is a flexible one, which enables a Home Secretary to decide, in the light of the circumstances at the time, whether he wishes to renew each provision of the Act or whether one or more can be allowed to lapse. This decision can be made on a section by section basis, or even subsection by subsection; and I can assure your Lordships that it is by no means a foregone conclusion that every section will be renewed. We will consider very seriously, year by year, whether each measure is still justified by the climate of the day, and it will still be open to your Lordships, and to the Members of another place, to challenge that decision by rejecting the renewal order, so forcing the Government to bring before you one which reflects your wishes.
Your Lordships have undertakings that except under circumstances that make it impossible, your Lordships will have an ample opportunity to debate the Act. Your Lordships have an undertaking that the Secretary of State will consider with great care which points from such a debate might be included in a revised order. Your Lordships have an undertaking that the debate will be conducted in the light of the report of the person we shall proceed to appoint following our debate on Amendments Nos. 10 and 11. The noble Lord was kind enough to say what I had intended to point out to your Lordships, that that cast a different light on the need for supervision in the way that is now proposed. I hope that your Lordships, with those three substantial undertakings, will feel that you have done your job as constitutional watchdogs for the liberties of the private citizen and will be content without this further device.
§ 6.43 p.m.
§ Lord Howie of Troon
My Lords, surely these undertakings are not substantial at all. The fact is that the House can debate the Act, but we knew that anyway. There is nothing new in that. The assurances given that the points made in the debate will be considered by the Government, and possibly some of them might end up in changes in the Act, may be. But 416 there is nothing new in that. Surely that happens in any debate anyway. That is not an assurance of any value.
I am not at all convinced by that part of the Minister's argument. He is merely telling us what we already knew. I think that the amendment of the noble Lord, Lord Henderson of Brompton, has substantial strength in it and the Government should think a good deal harder before they try to fob us off with assurances which are not assurances at all.
§ Lord Elton
My Lords, by your Lordships' leave, I do not think that these are flimsy or insubstantial undertakings at all. They have been made after grave discussion among the very large number of people concerned. They have been given in crystal clear terms which cannot be retreated from and which I have stuck closely to in the earlier debates, as the noble Lord, Lord Howie of Troon, may have observed. They do constitute putting in your Lordships' hands the influence which your Lordships properly seek. I do not think that I can go further. I am in danger of embarking on an impassioned Committee stage appeal to the House, sitting down on interruption and leaping up and speaking by leave many times, but I think you will find on reading Hansard that I have said what seems to me enough to convince your Lordships of the justice of our position.
§ Lord Henderson of Brompton
My Lords, though I am grateful for the support of the noble Lord, Lord Howie of Troon, I take a different view about the value of the Minister's undertakings, to which I attach very considerable importance. There are three strands. There is the undertaking which the noble Lord gave in Committee. There is the undertaking which the noble Lord the Minister gave on an earlier amendment about the commissioner. I think that is by far the most important of all the undertakings—as far as I can see that commissioner will be able if he thinks fit in his annual report, to say, for example, that in his opinion (after he has carefully examined all the evidence) the exclusion orders should lapse. Parliament will have had the guidance of that commissioner's report. With great respect Lord Howie of Troon I think this is a considerable undertaking for which we should be extremely grateful.
Thirdly, the noble Minister's undertaking in Committee has been reinforced again just now by an undertaking he has given on behalf of the Secretary of State. For these three reasons I should be prepared to withdraw the amendment, though not for the real technical objections. I do not regard them as having any validity at all. The noble Earl, Lord Jellicoe, said that exclusion orders should be one of the first powers in the Act to be repealed. I feel quite sure that there is machinery in Section 17 to be able to repeal the exclusion order machinery. If there is not, I shall be extremely disturbed. If the Act can be unpicked so that exclusion orders can be repealed, it must be possible to contrive an order for approval which could apply solely to exclusion orders. But that is only by the way. I have accepted and I hope the House will have accepted these substantial assurances, and I therefore beg leave to withdraw this amendment.
§ Amendment, by leave, withdrawn.
§ [Amendment Nos. 14 and 15 not moved.]417
§ Schedule 3 [Supplemental Provisions for Sections 1 to 13]:
Lord Prys-Davies moved Amendment No. 16:
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: My Lords, we canvassed support for this amendment late in the day in Committee stage. This amendment refers to the detention under Clauses 12 and 13. In reply to the first part of the amendment, the Minister referred to the draft code of practice in the course of preparation under the Police and Criminal Evidence Bill. But that is no more than a draft code and, to repeat a point made earlier, the legislation has not been enacted.
§ These powers are so exceptional that we consider that the requirements of the first part of the amendment ought to be embodied in legislation. Similarly, on the second part of the amendment, when replying in Committee the Minister drew the Committee's attention to the fact that there is no requirement in the Bill to publish statistics. But if the Bill were to contain that requirement, that would be one means of ensuring that we were achieving the object of the first part of the amendment.
§ I remind the House that this amendment is based on paragraph 145 of the Jellicoe Report where the noble Earl, Lord Jellicoe, drew our attention to the inadequacy of the statistics. I beg to move.
§ Lord Hylton
My Lords, may I take the opportunity to ask the Minister whether he could respond in some way to the letter sent to him by the Standing Advisory Commission on Human Rights dated 29th February? The letter dealt with port powers, which is not precisely the subject of the amendment but I think it is analogous. I wonder if he could be helpful on that.
§ Lord Elton
My Lords, at this late stage and with another Bill waiting behind I think that I must stick to the amendment on the Marshalled List, if the noble Lord will forgive me, and reply to the letter in the normal way.
Clause 12 gives a constable the power to arrest without warrant, and detain for up to 48 hours, a person whom he has reasonable grounds to suspect of involvement in terrorism; that is to say, the ground of such an arrest is reasonable suspicion. The power to detain conferred in the supplemental order is a part of the system of port controls set up to control travel between Great Britain and the island of Ireland. Clause 13, under which the supplemental order is made, gives the Secretary of State power to provide for the examination of people arriving in, or leaving, Great Britain or Northern Ireland to determine whether they appear to be, or to have been, involved in terrorism.
Accordingly, the power to detain at the port currently embodied in Article 10 of the Prevention of Terrorism (Supplemental Temporary Provisions) Order enables an examining officer to detain a person 418 pending his examination, or pending further examination.
My noble friend Lord Jellicoe recommended that the power to examine and detain should be lost after 12 hours unless the examining officer by then has formed a reasonable suspicion of involvement, and this change will be implemented in the new supplemental order. That does not affect the technical distinction between arrest and detention. There is a power to arrest in the supplemental order, in Article 11, but it is appropriate only in cases where a person liable to examination has evaded the control point and left the port area. In such a case, he may be arrested and brought back to be examined.
The first new sub-paragraph proposed in this amendment introduces a requirement designed, I think, to apply both to arrests under Clause 12 and to detentions under the supplemental order. I hope that my somewhat long-winded explanation will have made it clear that the references to arrests in the subparagraph have the effect of making it more appropriate to arrests under Clause 12 and arrests under Article 11, if any. As I said in Committee, in respect of Clause 12 the arrangements set out in the draft code of practice on the detention and treatment of suspects issued in conjunction with the Police and Criminal Evidence Bill will go most of the way towards meeting the spirit of the amendment.
Paragraph 2.1 of the code deals with the duties of a custodial 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 immediate requirement for the arrested person to be given a copy of the grounds for his detention but paragraph 2.3 of the draft code provides that at the time of his release, or at any time within the next 12 months, he or his legal adviser shall, on request, be given a copy of the custody record on which these grounds are entered. I realise that that does not go absolutely as far as the noble Lord proposes, but I believe that it meets the spirit of this part of their amendment as far as arrests under Clause 12 are concerned.
I also explained that certain detentions under the supplemental order—that is, those where the detainee is not detained by the police but by an immigration officer—would not come within the purview of the draft code of practice which relates only to persons in police custody. I can only repeat the undertaking which I have already given that we will consider ways of bringing the information given to persons detained under it into line with that of persons detained in police custody.
I turn now briefly to the second part of the amendment, subparagraph (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 were detained. I take it that in tabling the amendment the noble Lord was concerned to have statistics relating to both arrests and detentions. I assume also that he has 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 419 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, the bulletin will, in accordance with Lord Jellicoe's recommendation No. 32, also include details of the number of people examined at ports for longer than one hour and whether or not they were formally detained—and I think that this is a point on which the noble Lord was expressing concern.
As I said in Committee, I would be happy to consider the possibility of providing any further information requested by noble Lords in the statistical tables, but it would not be appropriate to insert a reference to the public statistics in the Bill proposed, as I said earlier. I have given two undertakings in connection with these amendments; to consider introducing a form of custody records for detainees under the supplemental order, and to consider the possibility of providing any statistics beyond those already published which noble Lords may request. On that basis, I hope that the noble Lord will feel content.
§ Lord Prys-Davies
My Lords, in the light of the undertakings which the noble Lord has given, I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ Lord Ponsonby of Shulbrede
My Lords, there is the matter of the Motor Vehicles (Variation of Speed Limits) Regulations 1984.
§ Lord Denham
My Lords, as the Merchant Shipping Bill comes after that, the Committee stage of the Housing and Building Control Bill will come after both. I must confess to the noble Lord the Opposition Chief Whip that I myself spotted that point and nearly had the same reaction.
§ On Question, Motion agreed to.
§ Lord Ponsonby of Shulbrede
My Lords, before we start the consideration of the regulations, I wonder whether the noble Lord the Chief Whip could give an indication that we will not re-commence the Committee stage of the Housing and Building Control Bill before 7.45 p.m.?