HL Deb 15 March 1984 vol 449 cc862-77

3.29 p.m.

Read a third time.

Clause 12 [Powers of arrest and detention]:

Lord Shackleton moved Amendment No. 1:

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 guidance as appears to him to be appropriate for constables in their use of the powers contained in this section.")

The noble Lord said: My Lords, I beg to move Amendment No. 1, and I suggest to your Lordships that it would be convenient if we deal also with Amendment No. 2. Amendment No. 2: Page 13, line 27, after ("section") insert ("12(3A) or").

First, I should like to say how glad I am to see the noble Earl, Lord Jellicoe, here. I maligned him when I last spoke because I said that I thought that he was either in Siam or in Australia; but I understand that he has been in Mozambique. I would think that the name of the noble Earl, Lord Jellicoe, has been used several thousand times—almost wholly with approval—in connection with his admirable report. I endorse nearly everything that he said. I would only give him a word of warning. When I produced my report on antiterrorism some years ago I was rather tabbed with that title. Subsequently, I reported on the Falklands, and I can only suggest that if the noble Earl wants to get away from terrorism—in due course he might produce a report on the Falklands.

I have been a supporter of the Government's legislation, and like the noble Earl—and I do not think that any of us would expect him to take part in today's debate—I am deeply aware of thie dangers of legislation of this sort. Like me, on balance, the noble Earl came to the conclusion that this legislation was necessary. There are aspects of it which I do not like and there are probably aspects which the noble Earl does not like. Nonetheless, the Bill has gone through and now, on Third Reading, it would be quite inappropriate to debate it.

However, the Government and my noble friends are in agreement in every respect except in relation to the desirability of legislation. As I understand it, the noble Earl, Lord Jellicoe, recommended that anti-terrorist legislation should be applied in Britain or in relation to terrorist acts or threats which took place in Britain. He excluded what might be called non-British terrorism; he made it as narrow as possible. The Government have chosen to amend the Bill in such a way that it can apply to terrorists who come here from any part of the world. At first glance one might say that that is reasonable enough, for terrorism is evil and we wish to play our part in restricting it throughout the world. I do not believe that that was in the mind of the noble Earl, Lord Jellicoe. The Government have agreed that in this respect they have gone beyond the original Jellicoe recommendations.

Furthermore, in another place the argument was used by the Minister—and I am sorry to have to go through all this again, but some noble Lords may not appreciate the issue—that, in effect, we are narrowing the provisions of the Bill because the original Act did not confine Clause 12, about which we are talking, purely to Irish terrorism. I repeat: when I carried out my study I considered whether there ought to be some amendment, but I was assured that, even though the clause was there, it would be quite inappropriate—indeed, improper—to use it without parliamentary authority. The Government have accepted, and the noble Lord, Lord Elton, has accepted, that, although one can argue about the wording of the original Act, nonetheless this is an extension.

At this point I only need to read what the noble Lord, Lord Elton, said at the Report stage, because he and I are completely at one on this. He said that the Government were at one with us in what we seek to do. Then he said: 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"—(Official Report, 8/3/84; col. 394.)

I should like to take this opportunity to say that I am exceedingly grateful to the noble Lord, Lord Elton, not only for the care and courtesy with which he has argued his case—and he has some other awkward ones to deal with in your Lordships' House—but for the effort that he has made to try to meet the requirement, which was set out in the earlier amendment and which is now set out in a modified form in this amendment, that the power to exercise control over terrorist acts committed abroad and not in this country should be carried out by statute. The Government intend to do it by issuing a circular. Earlier, the noble Earl, Lord Jellicoe, had said that matters of this sort were much better dealt with by statute or in parliamentary form than by circular.

Therefore, in order to restrict this we have tabled an amendment. The fear has been expressed by a number of very responsible bodies—not only by the National Council for Civil Liberties, but by the anti-apartheid movement and the National British Refugee Organisation—that those who may be engaged in other countries in what might be called terrorism there could be picked up under this Bill unless in some way it is restricted. The Government have made it perfectly clear that there is no question of this being applied in the case of those involved in anti-apartheid activities. Perhaps I may give an example. Mr. Sam Nujoma, whom I happen to know, who is the leader of SWAPO, has been to this country and has seen the Foreign Secretary—and, as he was due to see the Foreign Secretary, there was no argument about letting him in—but he was unable to go to Germany because of the threat of legal action there. This country has always been a haven for refugees, although we have to control their entry. The concern is that people who might be fleeing from oppressive governments—and I stress that there is no difference between the Government's attitude and my attitude on this—might not know whether they can come here safely or whether they will be picked up.

The Government have said that they will give effect to this; that unless there is the prospect of an arrestable offence or deportation, they will ensure that the powers are not exercised in this way, and that they will issue a circular to the police. What the noble Lord, Lord Elton, sought, as I did, was some way in which to get this into the statute. It would, of course, have been much better to indicate in the Bill itself the extent of these powers. We accept that certain offences are already capable of being tried in British courts, including hijacking and piracy, and even a certain power of conspiracy has recently been enacted. All these exist, and one accepts them.

However, my concern and the concern of noble Lords—and this is a matter on which the House of Lords has a particularly good record—is that those powers and how they are to be exercised should be under parliamentary control. This is what we sought to achieve. At the Report stage I moved an amendment which would have required the Government to seek parliamentary approval to a statutory instrument under the affirmative procedure, which would make them publish the guidance that they were issuing to the police. This seemed quite a reasonable proposition; and to anyone except some very skilled draftsmen and lawyers—and again I pay tribute to the draftsmen—on the face of it, this would seem to be suitable.

On the previous occasion I suggested that the word "direction" should be used in the amendment and that the Government should publish the direction. Objection was taken to that on the ground that the Secretary of State ought not to give directions to the police. I accept that. Therefore, I have now amended it to "guidance". It was also pointed out that the Government might wish to move quickly and ought not to have to wait to obtain the approval of the House. Therefore, in the second amendment I have altered my original proposal to provide for the negative procedure so that there need be no delay in a recess. I do not know, and I await with interest, what arguments the Government can adduce as to why this should not be incorporated by means of the amendment which I now wish your Lordships to consider.

I suspect that one of the reasons is that the Government do not want this to go back to another place. They do not want to have further arguments there. I am quite sure that the business managers do not want to see it in another place. But we are not constrained in this way, and I would hope that even at this stage, unless the Government can give some very binding reason, your Lordships will accept this amendment, and that it will be sent to another place where they will be able to consider it and accept it, or amend it. I beg to move.

3.41 p.m.

Lord Elton

My Lords, it might be sensible, since my position differs somewhat from that of the noble Lord, Lord Shackleton, if I were to speak now so that your Lordships can judge for yourselves—and so that he in fact can judge—between what he has said and what I shall be saying on behalf of the Government. I hope that the result of that may in fact be a meeting of minds.

We return to a familiar problem and a problem that is no less difficult because it is familiar. Our concerns were very wide at the beginning of our debates. Discussion has brought us to the kernel of the matter. I will not retrace the paths by which we have come to this point. It is enough to know that your Lordships have accepted the necessity for this Bill, and you have accepted, in particular, the necessity for the powers of arrest and detention which it provides. You have accepted them in part because of undertakings the Government have given about the way in which the working of this Act will be overseen.

There remains, however, one anxiety. It is a real and proper anxiety and one which I entirely understand. It is an anxiety that arises from the drafting of Clause 12. The effect of that drafting is to give to the police a power of arrest and detention that is wider than the use that it is intended to make of it. Some of your Lordships felt, and they had my entire sympathy, that Parliament should not grant powers that it did not intend should be used.

Again, I will not retrace the paths of argument. It is enough to know that your Lordships have accepted that it is necessary to draft the powers as wide as this, unwelcome though that must in some respects remain. The ground over which we have been going since Report concerns not the formulation of the powers but the formulation of the restraints upon how the powers are used. The intention—and again there is no difference between us on this—is to see that these powers are not used to arrest people whom we could not see a prospect of either charging in a court of the United Kingdom or of deporting.

The concern of the noble Lord, Lord Shackleton—which he has lucidly explained—is to see that curtailment established, if only indirectly, on the face of the Bill. He had an amendment to that purpose on the Marshalled List at Report, to which he has just referred, and we debated it with some care. It was an amendment in which I saw some serious difficulty, but its aim was to require the Government, in statute, to pursue exactly the course I had proposed we should pursue without the benefit of statute. There seemed to be tantalisingly little between us and I undertook therefore to bend my very best efforts, and those of our advisers, to devising some means of drafting an acceptable amendment.

We did so, and we did so—as the noble Lord, Lord Shackleton, was kind and generous enough to acknowledge—in no mean spirit. We did so to the exclusion of much other pressing work, but we came always to one inescapable difficulty. There are others, which are perhaps of less consequence, but the chief is this. The Secretary of State for Home Affairs has no power to direct either chief officers of police or constables of any rank in operational matters. I know that the noble Lord has helpfully struck the word "directions" out of his amendment. At Report stage the code of practice which they proposed was to "comprise such directions as appear" to the Secretary of State to be appropriate. Today it is to "comprise such guidance as appears to him to be appropriate". I can well understand that to a layman's eye, and even to eyes so sharp and experienced as those of the noble Lord, Lord Shackleton, and the sure and practised lawyers' eyes such as the noble Lord, Lord Mishcon, and the noble Lord, Lord Wigoder, whose name appears on the Marshalled List, and the experienced eye of the noble Lord, Lord Henderson, as well, that may seem a sufficient distancing of the Secretary of State from a claim to determine what a constable shall and shall not do in operational matters. Sadly, that is not so. What the amendment would do would be to give express statutory effect to the notion of guidance by the Secretary of State directly to the police about the criteria for the exercise of a power of arrest. In some matters, even that would be proper. In disciplinary matters, for instance, where the Home Secretary is the appellate authority, it is proper for him to issue guidance and it can be recognised in statute. But this matter is an operational matter and we touch here on a constitutional issue of very considerable importance.

If the Secretary of State is empowered by statute to issue guidance to the police, the courts can test their observance of that guidance and quite quickly you will find that the guidance acquires the force of direction. That would be unfortunate in this matter, the matter of the limitation on the use of arrest. But it would be of even greater concern in a wider context because this would be to begin to place the power to control the operations of police forces everywhere in the hands of central government. If we were to take that fundamental step it would surely only be proper to do so in response to an issue more serious even, and wider in its effects on British citizens, than the one now before us. I hope your Lordships do see the sensitivity of this. I hope you will also accept that when I found our way barred by this consideration I again returned, and led officials to return, to seeking other ways than the noble Lord's to get the limitation of these powers on to the face of the Bill. And again, in spite of much effort, we failed.

We have honoured our undertaking to search for a way to do this in the Bill. I genuinely regret that we have not succeeded. I am not, however, entirely empty handed. I and the Government want your Lordships to be satisfied that these powers will not be used otherwise than we have said they will be used and I should like to repeat, and to enlarge on, the commitment I gave, with the full authority of my right honourable friend the Home Secretary, last week. The commitment is that the circular incorporating the guidance will be published. Arrangements will be made to make the circular available in the Library of each House. As an earnest of our intentions I can read to you today from the paragraph in which that guidance will be embodied the two extracts which bear most closely on the concerns expressed both in your Lordships' House and in another place.

The extract begins: In the case of acts of international terrorism committed or to be committed outside the United Kingdom, the powers should be used only when it appears that there is some prospect of a charge before United Kingdom courts or of the person concerned being deported. That is to say that the powers should not be used unless either deportation is in prospect or it is thought that the involvement of the person concerned in such acts constitutes an offence under United Kingdom law. This restriction is likely to mean that although the powers may be freely used in connection with acts of international terrorism committed in the United Kingdom, their use will rarely be justified in connection with acts of international terrorism committed outside the United Kingdom". The second extract begins: In cases where there is no reason to suspect that the involvement of a particular person in acts of terrorism outside the United Kingdom might render him liable to being charged here for an offence or an ancillary offence such as conspiracy, an arrest under section 12 should not be made unless the person in question is a non-British citizen and there is some prospect of his being deported on the grounds that his presence here is not conducive to the public good". That is the end of the extract.

These extracts, which are amplified within the same paragraph by details of the acts which may, if committed abroad, render persons liable to proceedings in the United Kingdom, are the core of the guidance which will be given. The circular, I repeat, will be published and any substantive revision or replacement of it will be published also.

The next question is how will Parliament be sure that this guidance is being observed? We propose that the commissioner who is to be appointed by the Secretary of State, following the notable intervention of the noble Lord, Lord Henderson of Brompton, and his supporters at an earlier stage, to monitor the operation of the legislation, and who will, as I told your Lordships, have access to individual cases, should be asked to pay particular attention to the use of the powers of arrest and detention in respect of international terrorism and to include specific reference to this in his report.

This will be a very powerful safeguard. If the commissioner were to find that the guidance was being ignored or was not working effectively, and that the use of the powers was going wider than the Home Secretary envisaged, this would be a most serious matter, and the Home Secretary would have to consider very carefully what further action he should take. And so, no doubt, would your Lordships have your interest closely engaged. In fact, our experience with the circular which restricted the use of the powers in the 1976 Act to Northern Ireland terrorism strongly suggests that there will be no such problem. Nevertheless, the scrutiny by the commissioner which I have suggested, and which I am prepared to undertake to provide for, could act as a valuable safeguard to ensure that the guidance has the intended effect.

I hope your Lordships will agree that the publication of the guidance, and of any subsequent guidance on the use of the powers—to which my right honourable friend is firmly committed—and the specific remit for the commissioner would, taken together, ensure a proper degree of parliamentary scrutiny for those powers and one that would be comparable to that which would be provided by the amendments now before you. I hope that your Lordships will understand why the Government have come to the conclusion that to proceed as the amendment proposes would have undesirable consequences which could, whatever the consequences for this Bill, severely distort and prejudice the traditional and delicately-balanced relationships between the Home Secretary and the police.

We have come to this point through the patient and thoughtfully persistent work of the noble Lord, Lord Shackleton, and with the support of several Members of your Lordships' House. We should be grateful to them for ensuring that the Government will exercise, and will enable Parliament to exercise, a proper supervision of an unusual Act.

I do hope that your Lordships will be content with what I can offer and will not seek to impose in a Division that which I cannot offer, and which I firmly believe would be contrary to the best interests of the British people.

3.45 p.m.

Lord Denning

My Lords, I hope your Lordships will reject the amendment, especially in view of what has been said by my noble friend Lord Elton on behalf of the Government, because here we have a constitutional point. In 1963 the Court of Appeal had to consider the relations between the Secretary of State and the Commissioner of the Police in regard to a case brought by Mr. Blackburn. It was there stated that the police must be independent of the Executive. The Secretary of State has no authority whatever to direct the police to make an arrest; otherwise it might in some time, not in this, be used for simply political ends.

The power of arrest is the independent responsibility of the chief officer of the police and the people with him. It is not the responsibility of the Government and it would be quite unconstitutional for any proceedings to be taken by way of direction or anything of the kind to the police by the Secretary of State.

As I see it, the amendment does not mention directions. It mentions guidance, but in a code of practice which is to be issued by the Secretary of State as to the way in which it appears to him that the powers of arrest should be exercised. In no time that will not merely be a code of guidance, it will, in practice, be a code of directions which the police will feel it necessary for them to observe.

I have seen many codes—for example, the Highway Code and the industrial employment code—and with all these codes once one gets lawyers on to drafting them they get much too legalistic, much too abstruse, so that one does not understand where one is going. That is not the right thing for ordinary constables and police officers to have to go by.

A code of guidance is a guide which can be issued in simple language. Let us take for example the problem of what is an "act of a political nature". Are we to consider those who come from Libya or Arabia or whatever? Guidance surely should be given upon that, but only guidance. What is "reasonable cause to suspect"? Is one to consider what action a terrorist has taken, whether he has a gun or an armoury a few yards away? One cannot give explicit directions to the police or any more guidance than that they are to do what is reasonable in the circumstances of the case.

In all our powers of arrest, in all our history, the common law entrusted the constable with the power of arrest if he had reasonable cause to believe that a felony had been committed. He had to decide himself whether it was a felony or a misdemeanour. Then, in the 1967 Act, the constable was given power of arrest if he had reasonable cause to suspect that an "arrestable offence" had been committed. He has to find out what is an arrestable offence. It is usually something for which a sentence of more than five years may be imposed.

These are not matters for directions by the Secretary of State or, as I would suggest, for guidance in a code of practice, but guidance, as was so helpfully explained by my noble friend Lord Elton, by the Minister in a circular not binding on the police but giving guidance which they will observe. I hope that would meet the constitutional point and the position which is needed. It is necessary to have the power of arrest for these international terrorists who are beginning to be a threat to us ourselves. We should not allow ourselves to provide a haven for international terrorists. I oppose the amendment.

Lord Mishcon

My Lords, I am sure that your Lordships would recognise that any amendment—especially in regard to this painful Bill that we have to deal with—that is supported by my noble friend Lord Shackleton deserves the rapt attention of your Lordships. I say this not only because all of us know the regard in which his report on this Bill was greeted by your Lordships' House and, indeed, nationally, but also because your Lordships will know, as he himself said, that he has supported the enactment of this Bill. He has supported the major part of its provisions and has merely sought to amend this one. I know that your Lordships will have listened to him with great attention and would want good reason not to follow the line that he has sought to take in this amendment.

We also recognise with equal respect in your Lordships' House, and especially in regard to this measure, the name of the noble Earl, Lord Jellicoe. Throughout, the noble Lord the Minister has echoed the recommendations of the noble Earl, has paid tribute to them and has said how these recommendations, with very little variation, have been incorporated in the Bill before your Lordships.

I turn to the recommendation of the noble Earl in his report. I need quote only from one sentence following upon that in which he dealt with the question of international terrorism. He recommended clearly in relation to international terrorism where the conspiracy and the act were perpetrated within our own shores, although a conspiracy outside these shores to do something inside these shores would also be caught by our normal criminal law.

The noble Earl was most careful about incorporating a recommendation about international terrorism forming part of this Bill. I am reading from page 27, paragraph 77: I make no firm recommendation as to the appropriate means of achieving this change, but my strong preference is for the proper extent of the section to be clear on its face and not"— I emphasise the word "not"; it is my own emphasis indicated by my tone of voice— and not, as at present, left for restriction by government circular. In any case, such a change should not be made without explicit parliamentary authority. The re-enactment of this legislation, which I recommended in Part I, would be an appropriate opportunity'. That ends the quotation from the noble Earl's report. He says two things. He says: "If you deal with this matter of international terrorism, then do it on the face of the Bill so that we all know where we are. And do not do it by circular". That is exactly what this amendment says. And it says, "Take advantage of the opportunity of a re-enactment Bill to do that very job!" That is the course that he recommended. That is exactly what this amendment seeks to do.

Against this, one hears the sympathetic voice of the noble Lord the Minister, sympathetic to the idea, wanting to carry it into practice but finding himself against what he believes to be—and one treats that with respect—a constitutional difficulty. Then all the weight of the noble and learned Lord, Lord Denning, has been used. He is an ardent supporter of this Bill. He has supported every single clause and has resisted every single amendment—and he is quite entitled to do so. So you have the powerful voice of the noble and learned Lord, Lord Denning. And far be it from a humble member of the same profession to differ from him unless that person feels with some confidence that he has good reason.

I am afraid that I did not follow the noble and learned Lord in his reasoning He depicted the constable who ought to be allowed free rein to decide on his own evidence whether to make an arrest. If I may say so with the deepest respect, it was a most unrealistic observation in regard to the matter which we are now considering. That poor chief constable can hardly decide for himself on whether or not it is proper to make an arrest without guidance in regard to an act—and this is really what we are talking about in this amendment; and only what we are talking about—of international terrorism committed abroad. He cannot see anything of that and one does not know therefore how that is applicable.

Then the noble and learned Lord said that the police must be free to carry out their powers of arrest without let or hindrance—indeed, without influence from the Executive. I appreciate that point—and your Lordships will do so—in regard to our general criminal law; although there may have to be exceptions to that rule. Again, this is not this case; because—and this is really the answer to the noble Lord the Minister, as well—it is proposed to issue a circular (and I quote the noble Lord the Minister this afternoon) which will say that an arrest should not be made. I quote his words. They are not: "Please exercise your discretion and unless you think that it is extremely harmful or unjust make the arrest: but if you do think so, don't make it!" The circular will say that an arrest should not be made.

Whether that constitutes a directive or not I leave to your Lordships' discretion; but Heaven help the police officer, one would have thought, when before him there is a circular (which I have no doubt he will keep permanently in his waistcoat pocket when he is carrying out his duty) from the Home Office and from the Home Secretary which says that an arrest should not be made. Heaven help him if he makes it!

This is a guidance matter, so the noble Lord the Minister says, which will be carried in a circular. Either that is constitutionally wrong because the Home Secretary should not be saying, "An arrest should not be made", or it is constitutionally in order. If it is constitutionally in order in a circular which gives guidance, where, I ask the noble and learned Lord, is the difference between a circular and a code of practice which can be headed (if all of us want it so) "Circular"; and, underneath, "Code of Practice"? It is still a circular. And it is still something which is an advisory matter as to how the practice should be carried out.

Either we shirk our responsibility, a responsibility which is a very realistic one, and we are—and I do not use the word offensively—"fobbed off' with some rather elitist constitutional argument; or we carry out our duty—and it is the last opportunity that we have to do it—of amending this clause in the way which carries out Government policy, which makes it clear. Just before I conclude, I ask your Lordships to have in mind the sort of people we are protecting. It may very well be that in your Lordships' minds at this moment is the thought that there is some abstruse point here and, really, if there is somebody who is guilty of international terrorism as defined in this Bill and he does come to our shores, do we really want him? Should he not be arrested and indeed deported? Please, why is all this fuss being made?

This is a very difficult world in which we live, and in some parts of that world they have not got the rights that you and I have in order to try and defeat an unjust government. There is not a ballot box or, if there is a ballot box, they are not allowed to put a vote in it because of their colour. All of us hate violence but all of us know that at some time or another human beings who are fighting for a cause where they have no other alternative are driven to violence. It is, indeed, the anti-apartheid movement, among others, who are pleading for this amendment to be passed. They have written to me, and I have no doubt that they have written to others of your Lordships. They have done so because of the danger that exists that unless this is on the face of the Bill at least in the way that this amendment proposes there can be a tap on the shoulder, an arrest and detention, and possibly deportation, because of an offence which they have allegedly committed in regard to what is defined as international terrorism which has nothing to do with your Lordships, nothing to do with our country, nothing to do with an attack on our Government. We owe them a duty at this moment, and if I may say so my noble friend and those who have supported this amendment have tried to bring this duty to your Lordships' attention on this the last occasion upon which we can do it.

Lord Donaldson of Kingsbridge

My Lords, on behalf of my noble friend Lord Wigoder, whose name is on the amendment, may I say from these Benches that we have always regarded this as one of the most difficult and most important issues of this Bill. We have no hesitation in supporting the amendment which has been very clearly and, if I may say so, at considerable length expounded by both noble Lords, Lord Shackleton and Lord Mishcon. I shall say no more than that. We are behind them in their wish to deal with this very difficult problem.

4.10 p.m.

Lord Campbell of Alloway

My Lords, I shall be very brief. I came with an entirely open mind to listen to the noble Lord, Lord Shackleton, not only because of the faith that I have in his judgment but because of the respect that I have for his knowledge of this subject. I also have faith in the judgment of all other noble Lords who have set their names to this paper. This is an operational matter of constitutional importance upon which, not only for the reasons given by the noble and learned Lord, Lord Denning, but also for the reasons given by my noble friend Lord Elton, surely it is proper to rely upon ministerial assurances in this exceptional instance both as regards the issue of circulars and as to the system of monitoring. Why?—because it is operational, because the circumstances are wholly exceptional, because it is concerned with security, because men's lives are at stake. In this context the point made by the noble Lord, Lord Mishcon—and I do not see it from his point of view—was made very well, but there is the obverse of the coin. It goes both ways, does it not? For those short reasons I would oppose this amendment.

Lord Henderson of Brompton

My Lords, dare I say a brief word about this amendment, to which my name is attached? I must congratulate the noble Lord, Lord Shackleton, for having worried at this like a terrier from Second Reading to Third Reading. The reason he has done so is because this is a most important matter. International terrorism is a matter of the utmost importance, and this is an entirely new provision in the Bill. The reason why the noble Lord, Lord Shackleton, took so long in opening the proceedings today was, if I could encapsulate it in one phrase, because one man's terrorist is another man's freedom fighter. There you have the problem, and that is why we are so exercised about it and have been pressing the Minister so hard.

But we must have regard to what the Minister has said today and try to see whether or not his assurance is sufficient for us to be able to ask the House not to divide. I must confess that, like the noble and learned Lord, Lord Denning, I was impressed by the constitutional point; and I do not need to elaborate on that. I was not quite so impressed with the argument about the circular. Of course it is very important that this circular should be printed and perhaps published as a Command Paper. Perhaps the noble Lord would say how he proposes the circular should be published; and he might also like to tell us what circulation it would have. That might influence the House, if they knew that it was not just going to lie on the Table of either House or in the Libraries, but that it would be freely available to all who were interested.

The point which perhaps weighs with me more than any other is that which the noble Lord made about the commissioner. This is the one major concession we have extracted from the Minister—or perhaps I should say that he has vouchsafed to us. I do not know how he would care to put it; but I am very much impressed by this parliamentary safeguard. This means that these Clause 12 powers will be scrutinised by both Houses closely when they come to the affirmative resolution; and, as the Minister said, there will be a special part of the commissioner's report devoted to the use of these Clause 12 powers. If that really is the case, I personally think that is a sufficiently powerful argument for this amendment not to be pressed to a Division.

The Lord President of the Council (Viscount Whitelaw)

My Lords. I do not wish to intervene on the issue itself because my noble friend Lord Elton has made the position perfectly clear. Indeed, I have been closely associated with him, as the noble Lord, Lord Shackleton, will know, in some of the discussions on this Bill because I was particularly anxious to make sure that it was correct for your Lordships.

Perhaps the only point I would make in answer to the noble Lord, Lord Henderson, is that the circular will be made freely available. I have just asked my noble friend Lord Elton about that. I wish to intervene on a different aspect, about which I feel strongly, because I think your Lordships should have this point to consider before deciding whether to divide on this amendment.

The noble Lord, Lord Shackleton, said that perhaps the Government were holding back and not accepting an amendment of this sort because they did not wish this Bill to go back with an amendment which would have to be considered in another place. I think it would be very proper for me to say—and the noble Lord, Lord Shackleton, having been one of my distinguished predecessors, will surely appreciate this—that I could not accept that doctrine in any way as Leader of this House. If this House decides to send a Bill back to another place with an amendment, that is what this House will do. I would stand up for its absolute right to do so. Therefore, if your Lordships decide to do that—and I shall seek very hard to persuade you, so far as one vote is concerned, not to do so—that will be your Lordships' right and I would stand up for that right in every way. I quite understand why the noble Lord, Lord Shackleton, said what he did, but I hope no one will think that what he said is any part of the Government's business; nor anything which I, as Leader of this House, would take any part in whatsoever.

Lord Shackleton

My Lords, I am quite sure that the noble Viscount would defend the House of Lords, but I am quite certain that the business managers in another place do not want to see this Bill back there. The noble Viscount's enthusiastic indignation in defence of this House is very encouraging but I do not know whether he operates with the same influence in another place. Perhaps he can ask the chairman of the 1922 Committee on that matter.

I should like to make this remark with the utmost friendliness. I believe that what the noble Lord, Lord Mishcon, said to the noble and learned Lord, Lord Denning, is the crux of the matter. I do not see the precise difference between a circular (especially in the form of words that has been given to us) and whether or not it is in the statute. The difficulty is that the Government should have defined the limitations actually in the clause. They resisted attempts to do that because of the difficulty of drafting, and I imagine that is why we are in this situation. It is not a difficulty we have created: it is a difficulty the Government have created.

Let me deal with the constitutional point, because there is also a matter of parliamentary decency in this matter. We are doing something without Parliament's powers. The noble Lord, Lord Henderson, said that since there had been a concession which does not obtain in the Act with regard to a single commissioner, this took care of it. It precisely does not take care of it. We are not talking about this Government but about future Governments. It is arguable that this is a temporary provisions Bill, but, as the noble Earl, Lord Jellicoe, made clear, it is very unlikely to be temporary, although it will come again in five years' time. Then I hope that Government will put it into the main body of the Bill.

I see grave objections that, under an Act of Parliament, a circular is to be issued by the Home Office as an instruction to the police (whether or not, as the noble Lord said, it will amount to an instruction) and this is going to be done without Parliamentary control of any kind. I must say to your Lordships that we are not legislating with regard to the present Government. I entirely accept the sincerity of the Government in this matter, but we are legislating also for the future and there are a lot of people who are very concerned about this point. There is no chance of this being upset in the Commons. Only your Lordships, who have a reputation for standing up for liberal issues, are prepared to put this into the Bill. If the Government do not like the amendment, they still have time, even though they plan Royal Assent next Thursday, to get this into some sort of statutory form. There is no difference other than the fact that parliamentary control is not there.

I hope, therefore, that your Lordships will accept the parliamentary point and not the inwardness of the constitutional argument. I totally fail to see the difference between what the Government are doing and what I ask them to do. I hope that the Government will now accept that they ought not to give this sort of power without exercising control. Therefore, I shall divide the House.

4.20 p.m.

On Question Whether the said Amendment (No. 1) shall be agreed to?

Their Lordships divided: Contents, 93; Not-Contents, 142.

DIVISION NO. 1
CONTENTS
Airedale, L. Listowel, E.
Ardwick, L. Llewelyn-Davies of Hastoe, B.
Attlee, E.
Aylestone, L. Lloyd of Hampstead, L.
Barnett, L. Lloyd of Kilgerran, L.
Beaumont of Whitley, L. Longford, E.
Beswick, L. Lovell-Davies, L.
Birk, B. McIntosh of Haringey, L.
Bishopston, L. McNair, L.
Bottomley, L. Masham of Ilton, B.
Brimelow, L. Mayhew, L.
Brockway, L. Mishcon, L.
Brooks of Tremorfa, L. Molloy, L.
Burton of Coventry, B. Mulley, L.
Caradon, L. Nathan, L.
Cledwyn of Penrhos, L. Nicol, B.
Cooper of Stockton Heath, L. Oram, L.
David, B. Peart, L.
Dean of Beswick, L. Phillips, B.
Diamond, L. Ponsonby of Shulbrede, L. [Teller.]
Donaldson of Kingsbridge, L.
Elwyn-Jones, L. Reilly, L.
Ennals, L. Roberthall, L.
Ewart-Biggs, B. Rochester, Bp.
Ezra, L. Rochester, L.
Fisher of Rednal, B. Ross of Marnock, L.
Fitt, L. Sainsbury, L.
Gaitskell, B. Seear, B.
Gallacher, L. Sefton of Garston, L.
Gladwyn, L. Serota, B.
Graham of Edmonton, L. Shackleton, L.
Hale, L. Shinwell, L.
Hall, V. Stallard, L.
Hampton, L. Stedman, B.
Hanworth, V. Stewart of Alvechurch, B.
Hooson, L. Stewart of Fulham, L.
Houghton of Sowerby, L. Stoddart of Swindon, L.
Hughes, L. Stone, L.
Hunt, L. Strabolgi, L.
Irving of Dartford, L. Strauss, L.
Jacques, L. Tavlor of Blackburn, L.
Jeger, B. Underhill, L.
Jenkins of Putney, L. Wells-Pestell, L.
John-Mackie, L. White, B.
Kaldor, L. Wigoder, L. [Teller.]
Kearton, L. Winterbottom, L.
Kilmarnock, L. Wootton of Abinger, B.
Leatherland, L.
NOT-CONTENTS
Alexander of Tunis, E. Auckland, L.
Allen of Abbeydale, L. Avon, E.
Ampthill, L. Bauer, L.
Belhaven and Stenton, L. Kinnaird, L.
Bellwin, L. Kitchener, E.
Beloff, L. Lane-Fox, B.
Belstead, L. Lauderdale, E.
Bessborough, E. Lawrence, L.
Blake, L. Lindsey and Abingdon, E.
Bolton, L. Long, V.
Boyd-Carpenter, L. Lucas of Chilworth, L.
Caccia, L. Lyell, L.
Caithness, E. McAlpine of West Green, L
Campbell of Alloway, L. McFadzean, L.
Carnegy of Lour, B. Macleod of Borve, B.
Cathcart, E. Mancroft, L.
Chelmer, L. Marley, L.
Clitheroe, L. Massereene and Ferrard, V.
Cobbold, L. Maude of Stratford-upon-Avon, L.
Cockfield, L.
Coleraine, L. Merrivale, L.
Cork and Orrery, E. Middleton, L.
Cottesloe, L. Monson, L.
Craigton, L. Mottistone, L.
Cullen of Ashbourne, L. Moyne, L.
Daventry, V. Murton of Lindisfarne, L.
De Freyne, L. Northchurch, B.
Denham, L. [Teller.] Nugent of Guildford, L.
Denning, L. O'Brien of Lothbury, L.
Donegall, M. Orkney, E.
Drumalbyn, L. Orr-Ewing, L.
Effingham, E. Pender, L.
Ellenborough, L. Plunket, L.
Elliot of Harwood, B. Porritt, L.
Elton, L. Portland, D.
Ely, M. Rankeillour, L.
Enniskillen, E. Renton, L.
Erroll, E. Richardson, L.
Fanshaw of Richmond, L. Rochdale, V.
Ferrers, E. St. Davids, V.
Fortescue, E. Sandford, L.
Fraser of Kilmorack, L. Sandys, L.
Gainford, L. Savile, L.
Gardner of Parkes, B. Seebohm, L.
Gibson-Watt, L. Sempill, Ly.
Gisborough, L. Shannon, E.
Glanusk, L. Shaughnessy, L.
Glenarthur, L. Simon of Glaisdale, L.
Gormanston, V. Skelmersdale, L.
Gowrie, E. Somers, L.
Granville of Eye, L. Stamp, L.
Gray, L. Strathcarron, L.
Gray of Contin, L. Strathspey, L.
Greenway, L. Suffield, L.
Gridley, L. Swansea, L.
Hailsham of Saint Marylebone, L. Swinton, E. [Teller.]
Terrington, L.
Halsbury, E. Teviot, L.
Hankey, L. Thomas of Swynnerton, L.
Harvington, L. Tonypandy, V.
Hawke, L. Tranmire, L.
Hayter, L. Trenchard, V.
Henderson of Brompton, L. Trumpington, B.
Henley, L. Tweedsmuir, L.
Hives, L. Ullswater, V.
Holderness, L. Vaizey, L.
Home of the Hirsel, L. Vaux of Harrowden, L.
Homsby-Smith, B. Vickers, B.
Hylton Foster, B. Vivian, L.
Ilchester, E. Westbury, L.
Inglewood, L. Whitelaw, V.
Killearn, L. Wise, L.

Resolved in the negative, and amendment disagreed to accordingly.

The Lord Chancellor (Lord Hailsham of Saint Marylebone)

My Lords, does the noble Lord move Amendment No.2?

Lord Shackleton

My Lords, I must apologise. There was too much movement for me to hear. The noble and learned Lord will be happy to hear that, in view of the success of the whipping on the other side, I am not moving Amendment No. 2.

[Amendment No. 2 not moved.]