§ 3.24 p.m.
§ The Parliamentary Under-Secretary of State, Northern Ireland Office (Lord Lyell)
My Lords, 1 beg to move that the House do now resolve itself into Committee on this Bill.
Moved, That the House do now resolve itself into Committee.—(Lord Lyell.)
On Question, Motion agreed to.
House in Committee accordingly.
[The LORD ABERDARE in the Chair.]
Clauses 1 to 5 agreed to.
Clause 6 [Breach of terms of declaration]:
Lord Prys-Davies moved Amendment No. 1:
Page 3, line II, after ("he") insert ("wilfully").
§ The noble Lord said: We now discuss the affairs of Northern Ireland and one-third of the Members in the Chamber departs. I offer no comment but the citizens of Northern Ireland may care to ponder, because we do not often burden the Chamber with the affairs of Northern Ireland at 3.25 in the afternoon.
§ The object of Amendment No. 1 is to provide councillors with a defence where a defence ought to be appropriate. We say that a councillor in Northern Ireland should not be in breach of the declaration against terrorism and excluded from office for five years unless he was "wilfully" in breach of the terms of his declaration.
§ In this Bill we are encroaching upon electoral law. It appears to us that to deprive the electorate of a freely elected representative of the people is a grave step to take, with the gravest consequences. If we are to retain confidence in Northern Ireland for the democratic system that step should not lightly be taken.
§ A councillor in any council chamber does not always use language with precision. He may speak in the heat of the moment or in an inflammatory situation. He may be responding quickly to a statement which he regards as being provocative. In our view it is not fair or reasonable that a councillor should be disqualified from office if he is merely in technical breach of the declaration.759
§ I recall that on Second Reading the noble Lord, Lord Lyell, felt that if we were to allow this defence the effectiveness of the Bill would be in issue. The noble Lord overlooked the political damage which could be caused by interfering with the electoral process without just cause. There is an ancient saying familiar to lawyers that a deed does not make a man guilty unless his mind is guilty. In criminal law mens rea or a guilty mind has to be established. It seems to us very odd indeed that we should have a lower standard of evidence in electoral law than in criminal law. I hope that the Minister will accept this reasonable amendment. I realise that it has not been canvassed in another place. If the Minister is unable to accept it I hope he will tell the Committee that he is prepared to reflect further before he rejects it.
§ 3.30 p.m.
§ Viscount Brookeborough
In supporting this amendment I cannot say a great deal more than the noble Lord, Lord Prys-Davies, has said. I feel that the word "wilfully" should be inserted to protect those who may have made a slip of the tongue or whose words may be taken out of context. That is a danger, especially as those who support violence will miss no opportunity of taking honest, law-abiding councillors or Assembly Members to court for any minor indiscretion. We should remember that their aim is to destroy democratic government by whatever means, which includes wasting the time of the judicial system. Therefore for a court to determine that a breach was made wilfully and not accidentally would be an important point. I commend this amendment to the Committee.
I have added my name to this amendment though I confess that I was in two minds about it. I believe that elected representatives should think before they speak and they should be held responsible for what they say. At the same time, having given it careful consideration, I believe that this is a proper amendment because errors can be made. I do not know whether any Member of the Committee apart from myself has actually sat in the Northern Ireland Assembly. If privileged so to do, Members of the Committee will have witnessed the way in which our fundamentalist friends have been carried away by their own oratory. It is possible for a slip of the tongue to be made.
I support this measure in general. For political reasons and to make it less draconian, I support the amendment as it has been tabled. I trust that the Committee will take the same view though the question of proof, whether it is wilful or not, is a more difficult one. Perhaps we can look at that later during the Committee stage.
§ Lord Monson
I support this amendment. I do not believe that people should be branded as terrorists for something which they may have said in a moment of anger and which they may regret later.
§ Lord Lyell
I believe it was the noble Lord, Lord Prys-Davies, who outlined the gist of his amendment at Second Reading. He presented his amendment in a very lucid and traditional way. I support him and 760 I have much sympathy for his opening comment that whenever any of us rise to speak on Northern Irish matters we tend to have a quiet pause while the Chamber settles itself. I concur with what he said in presenting his amendment.
As the Committee would expect, the noble Lord and other Members of the Committee who have spoken, including my noble friend Lord Brookeborough, have presented the case lucidly. I sympathise very much with the concern of those who have spoken about ensuring that the words and the actions of councillors are not deliberately twisted in any way that wrongly exposes them to action under the Bill. I was taken by the noble Lord, Lord Prys-Davies, stressing a technical breach of the declaration. I hope that I shall not go too far down the technical breach path in my opening remarks. Perhaps he will note whether I cover a technical breach or a graver one in the course of what I have to say.
I ask the noble Lord and others who have spoken to look at the protection that is already afforded to councillors in situations that are envisaged in the Bill by the noble Lord. Clause 6(2) states quite clearly:a person shall be taken to express support for, or approval of, any matter if his words or actions could reasonably be understood as expressing support for, or approval of, it.I stress the words "could reasonably be understood". Their effect is to ensure that a court in looking at any words or actions which allegedly would constitute a breach of the declaration will ask itself whether a reasonable man would have understood the words or actions as expressions of support or approval.
For better or worse that is an objective test of meaning. I believe that it provides protection against words that are being maliciously twisted, distorted or taken out of context. That goes some way to cover the point raised by the noble Lord in what he called a technical breach of the declaration. It is perfectly true that it is not necessary for the applicant to show that the words or actions were intended or as the noble Lord might suggest, willed—to express support, let alone approval.
The effect of the word "wilfully" in the amendment is in addition to showing how the reasonable man would understand the words or actions of the person who is alleged to have breached the declaration. The applicant must show that the person uttering those words intended them or the actions to have that meaning. I believe that these two tests are significant hurdles for any words or actions in this context to pass. To require both would be to tip the balance of advantage more in favour of the respondent than is desirable, and it would make the declaration difficult to enforce.
We touched on this at Second Reading. Councillors should—in the context of Northern Ireland I believe that they do—foresee the likely and the natural interpretation that will be placed upon words or actions. In Northern Ireland whether wilful, as the noble Lord would have it, or perhaps in a fit of temper (the noble Lord might have suggested a technical breach), ill-considered statements can be and are inflammatory as well as being dangerous. I do not believe that the Committee, or a court, would find 761 it difficult in those circumstances to ask councillors to think carefully before they speak or act.
When councillors are in council chambers in Northern Ireland they tend to behave just as councillors do anywhere else in the United Kingdom. But we believe that the protection given in Clause 6(2) covers the point and meets the question of the technical breach of a declaration with, as the noble Lord rightly points out, grave consequences upon the councillor.
I hope that that explanation will show to those Members of the Committee who have spoken and indeed those who have taken an interest in the amendment that the protection for councillors is more than adequate. We believe that the court will find no difficulty in assessing whether a councillor had or had not breached the declaration which he had solemnly signed and which would bite when he was successfully elected to serve as a councillor. The protection in subsection (2) of Clause 6 will meet the concerns expressed by the noble Lord, Lord Prys-Davies, and by those Members of the Committee who spoke in support of the amendment. I hope that the noble Lord will accept the points I have set out and will not feel it necessary to press the amendment.
§ Lord Prys-Davies
I thank the noble Lord for his response and in particular for drawing our attention to Clause 6 and the appropriate subsection. The subsection deals with an objective test of intention. There can be a subjective test of intention. We believe that in electoral law we should refer to a subjective test rather than an objective test of intention.
The Minister referred to enforcement of the declaration. I am gratified that he referred to enforcement proceedings because we shall come to that matter later in our discussions in Committee. This is where we believe the Bill is defective. Throughout our discussion I have referred, as have other Members of the Committee, to a technical breach, because we are concerned about a councillor speaking in the council chamber being moved impulsively to express a view which may be thought to be in breach of the declaration. I should like to impress upon the Government that councillors do not live in a perfect world. Councillors are often imperfect. They do not use language with great precision. A councillor in Northern Ireland who is provoked into expressing a view which may be considered to be technically in breach of the declaration should not be dragged before the courts.
We believe that the matter comes down to drawing a distinction between an objective test and a subjective test. I hope that the Government will bear in mind what has been said in our discussion on the clause. It is a matter to which we shall wish to return at a later stage. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
§ 3.45 p.m.
Lord Monson moved Amendment No. 2:
Page 3, line 13, after ("say") insert ("organised and potentially lethal").
The noble Lord said: With the leave of the Committee, I should like to speak at the same time to Amendments Nos. 6 and 7. I had always understood that it was considered generally undesirable to be excessively precise in a statute. If one is excessively precise one runs the risk of including something which ought to be excluded or excluding something which ought to be included. I am fairly confident that if the noble Lord, Lord Renton, whom I always consider to be the guru of immaculate drafting, were in his place today he would assent to this. That is why I gladly support the deletion of the words,
that is to say violence for political ends,
in Amendment No. 5, to be moved by the noble Lord, Lord Prys-Davies.
§ I would gladly have done the same if the noble Lord and the other noble Lords whose names are attached to the amendment had also sought the deletion of the identical words where they appear in Clause 6 and where they appear elsewhere in Schedule 2. Whether by accident or design they have not done so. Therefore at this stage of the Bill it is too late to do anything about it. If, contrary to our usual practice, we must have such a precise definition of what after all is a straightforward and obvious crime—we all know what terrorism means—for heaven's sake let it be a better definition than the one presently in the Bill.
§ As the noble Lord, Lord Prys-Davies, said at Second Reading, we do not want people who are effectively not doing much more than taking part in a glorified industrial dispute being stigmatised as terrorists. While there may be different views on the precise merits of the words employed in the amendment, the word "organised" does not imply that more than one person need be involved. The filofax, that brilliant creation of the marketing man's skill, will be known to the Committee. In its other guise it is known as a personal organiser. There is never a suggestion that one needs more than one person to do the organising.
§ "Organised" implies a certain degree of preparation and premeditation, although it goes slightly beyond premeditation, which is why I used the word "organised" instead. The words "potentially lethal" are self-explanatory. Violence involving firearms, explosives, knives, axes, and heavy blunt instruments would be caught if the amendment were agreed to, as would violence involving petrol bombs, a most lethal weapon. In fact all forms of arson would be caught, because even if a building is empty arson is a potential danger to the lives of the firemen seeking to put out the fire. Violence involving merely fists for example, a punch-up at an election meeting however undesirable such behaviour might be, would not be caught if the amendment were agreed to; nor would stone throwing in itself unless stones were thrown at the window of a house behind which a baby was sleeping in a cot. That is something to be heavily discouraged.
§ While I stand by my original contention that we ought not to have a definition because 'we all know precisely what terrorism means, if we are to have a definition, this wording strikes a reasonable balance 763 between ordinary political violence, which ought not to be branded as terrorism, however unwelcome it may be, and terrorist violence. I beg to move.
§ Lord Prys-Davies
It may be for the convenience of the Committee if I speak to Amendment No. 5. The noble Lord's amendment and Amendment No. 5 are addressed to the definition in the Bill of the word "terrorism"; but the definition of the word in the context of this Bill. During the Second Reading debate it emerged that this Chamber was simply not satisfied with the definition. The noble Lord, Lord Lyell, told Members of this place that the definition had been used in two other Acts of Parliament and it had not led to any difficulties. I do not challenge the judgment of the noble Lord, Lord Lye11; I am sure that it is correct. However, it does not follow that the definition is appropriate in the context of this Bill which deals with electoral law.
There are doubts and difficulties about the definition in the Bill. Indeed, they were referred to during the Second Reading debate and were touched upon today by the noble Lord, Lord Monson. It seems to me that if we are to have regard to the ordinary use of words, the definition is both too narrow and, at the same time, too wide. If that is correct, then the definition is unsatisfactory and there is something wrong with it.
In our view the definition is too wide because, for example, it would catch the marginal scene of the individual councillor in Northern Ireland who happens to speak in support of, say, force on the picket line on an industrial day of action, either against or for the Anglo-Irish Agreement. That, by any definition notwithstanding what the noble Lord, Lord Lyell, said on Second Reading—would be an action in pursuit of political ends.
Is it fair and reasonable that a councillor who spoke in the council chamber in support of such action should be stripped of his office and disqualified from holding such office for five years? I ask again: is that fair? Indeed, would not such disqualification in such circumstances be perceived by some people in Northern Ireland as a form of censorship—that is, if he is to be punished for expressing his view, even though the majority of the electorate would be fully in support of that view?
I am attracted by the amendment moved by the noble Lord, Lord Monson, although I only saw it a couple of hours ago. It would certainly ensure that such expressions of support— that is, support of a picket line, or force on a picket line would not be caught by the provisions of the Bill. However, I should like to reflect further on that amendment because it seems to me that it may also lead to further questions.
I am not sure that the amendment cures all the ills. For example, it may well be that the amendment —although I accept it as far as it goes—is also too narrow. Perhaps it is too narrow, if I may be permitted to say so, because it would not catch a bigoted councillor who expressly or impliedly advocates or supports the use of violence against Protestants or Catholics in the Province. I do not wish to dwell too much on that possible scenario. 764 However, it seems to me that the definition may not catch the bigoted councillor who would speak in such vein.
From these Benches, we are sure that the definition in the Bill is unsatisfactory. I accept that it would be difficult to draft a definition in the context of the Bill which would be entirely acceptable and which would not be too wide or too narrow. However, if the Minister is not prepared at this stage to accept the amendment moved by the noble Lord, Lord Monson, there is the amendment which we will subsequently be moving. The purpose of that amendment is really to leave it to the court to decide whether the words or conduct complained of amount to support for terrorism.
I have a feeling—I am speaking now in relation to the subsequent amendment—that a judge of the High Court would be a very shrewd and reflective man who would quickly recognise a declaration in support of terrorism if he saw one. Therefore I hope that the noble Lord, Lord Lyell, on behalf of the Government, can see his way clear to accept the need for redefinition of the word "terrorism", even though neither the noble Lord, Lord Monson, nor other Members of the Committee in a subsequent amendment have produced an ideal definition. We invite the noble Lord to say, "Yes, we will go back to the drawing board on the issue".
As usual we are greatly appreciative of the noble Lord, Lord Monson, for his thoughtfulness in having tabled the amendment. Indeed, I understand the reason behind it and I can understand his thinking. However, my concern is that the more we define the more the problems will be compounded for the courts. That is an issue upon which I should be interested to hear the qualified opinion of noble and learned Lords who sit on the judicial Benches, because I am no lawyer. However, 1 should be afraid that the more precise the definition, the more difficult the job of the courts would be. What we are aiming for is something which is not in dispute at all; it is just a question of how to make it work as effectively as possible.
§ Lord Fitt
It will be recognised by Members of the Committee that in Northern Ireland at present those who are opposed to this legislation have already predicted that it will not work and that it will be counter-productive. They have produced scores of reasons why the legislation should not be enacted. I take the view that it is doubtful whether this legislation will be as effective as I would like it to be. But, recognising the campaign of violence, and those who have been perpetrating that violence, I certainly will support any measures in the hope that they will prove to be effective.
As regards the amendment tabled by the noble Lord, Lord Monson, at which I have just glanced, it contains the words "organised and potentially lethal". I take the view that all acts of terrorism are potentially lethal. It is not just the person who pulls the trigger on a handgun or a rifle, or the person who throws a petrol bomb or the person who sets off an explosion by way of Semtex: one of the most lethal components of terrorism is intimidation.
765 Without intimidation in Northern Ireland there would be no campaign of violence; it is intimidation which forces people to hide terrorists, to give succour to terrorists and not to inform on them. I have looked through the Bill and I wonder if the Minister can say whether the Bill can be designed to include intimidation because, as I say, it is intimidation which has prolonged the whole course of the campaign of violence for 20 years now. I support the amendment moved by the noble Lord, Lord Monson, but I should like to hear the Minister say that intimidation will be included in "potentially lethal"violence.
§ 4 p.m.
§ Viscount Brookeborough
I support the idea that there should be some amendment to the definition of terrorism. I too should like to see the qualifying words removed. We have just heard from the noble Lord, Lord Fitt, that he wishes to have another aspect included in the definition. There may be many other cases which have terrorist implications.
I and those noble Lords who live in Northern Ireland find it difficult to understand why the word "terrorism" does not stand on its own two feet. From the terrorism that we have come across, we do not find that there is any ambiguity in the word. From the moment we start to qualify the word, we shall end with a book of qualifications. Even then, they will not be complete. We shall have to keep on bringing the definition back to the drawing board. I support the deletion of the words in the paragraph after the word "terrorism".
§ Lord Lyell
I am grateful to the noble Lord, Lord Monson, for introducing the amendment. It may be for the convenience of the noble Lord, Lord Monson, and of the noble Lord, Lord Prys-Davies, and his colleagues if I spoke just once. I am sure that the Committee will be grateful for that. I shall take the arguments in the order in which they were presented. I shall try first to cover the points raised by the noble Lord, Lord Monson. I am grateful for the attention that he has paid to the Bill and for the attractive way in which he moved the amendment. I can understand why he moved it. Everyone in this place, everyone in government and everyone else will support the brave people of Northern Ireland in their fight against violence. We deplore especially violence used for political ends, whether potentially lethal or not.
It does not take a High Court judge or a magistrate to understand what violence is. We all have a good idea of what it means. However, it is also set out in the Bill. I shall attempt to give our reasons for having the definition of "violence" as it is in the Bill.
Expressions of support for violence by elected representatives in Northern Ireland, which is at the nub of the Bill, need to be curtailed. Against that background, it is not possible to pick, choose or define different types of violence for political ends, which is what the noble Lord, Lord Monson, proposes in the amendment. The first of the amendments refers to potentially lethal" violence. I believe that I understand what he means by that, but I wonder whether it will be helpful if we accept the words "potentially lethal", let alone "organised".
766 The noble Lord, Lord Prys-Davies, said on Second Reading, and he has also said today, that all violence—from the picket line to that exercised by paramilitary bodies—is potentially lethal. We know that different people have different physical weaknesses of which they may be unaware. Someone may have a weak heart which will not stand up to the pushing and shoving that sometimes occurs on picket lines or the other types of dispute which were mentioned by the noble Lord, Lord Prys-Davies.
As the noble Lord, Lord Fitt, and my noble friend Lord Brookeborough will be aware, a fairly common and disgusting occurrence in Northern Ireland is what is popularly known as "knee-capping". We all too frequently read and hear of occasions where persons have been knee-capped. I shall give a broad definition of what takes place usually at night in Northern Ireland. It may take place in the country or in a quiet lower room of a house. As we understand it, someone is shot in the leg as punishment for some real or imagined wrong. As the noble Lord, Lord Fitt, put it, it is almost always done as an example of intimidation or as a threat. It is almost always carried out by paramilitary organisations.
Knee-capping, as it is technically known, is hardly likely to be fatal. I do not know whether there has been a death as a result of that type of injury alone. It must be accepted that it is a brutal form of intimidation, punishment and terrorism. Does the noble Lord believe that his amendment would be effective if a court were to take the view that kneecapping was not potentially lethal? Does he intend by his amendment that a bomb placed in an unfrequented spot, or one that may have been abandoned, with due warning, should be understood to be potentially lethal? Those are two occurrences which would give a court great difficultly. It would be extremely difficult to define whether they would be covered by the words "organised and potentially lethal".
Secondly, the noble Lord, Lord Monson, will recognise the difficultires that we believe would occur in cases of generalised support for acts of terrorism. In the Bill we are dealing with local government. One or two clauses cover a putative Assembly for Northern Ireland. We do not want local government in Northern Ireland to have to put up with the kind of comments that we all know can be made and about which we spoke on Second Reading, without giving those affected the means and recourse to do something about such comments addressed to them.
Praiseworthy though his amendments are, I hope that the noble Lord will see that they would present considerable difficulty to a court. We believe that the definition of violence contained in the Bill is sufficient to catch the offences which we believe should be placed before a court, if that is the will of any person who may be affected.
The noble Lord, Lord Prys-Davies, and other noble Lords spoke in support of the amendment tabled by the noble Lord, Lord Prys-Davies. As always, I was impressed by his eloquence. He has one major advantage over many of us in that he is a lawyer from Wales, which adds a distinct lustre and polish to his legal thoughts in the Committee. This 767 afternoon he was especially eloquent, and I believe that there appeared a touch of similarity with his previous argument.
I come back to the point that the court would have to decide on the merits of any case brought before it. Regarding the noble Lord's amendment, we believe that the purpose of the definition of "terrorism" in the Bill is to help candidates, and above all to ensure that the terms of the declaration in Schedule 2 to the Bill remain aligned with the enforcement provision in Clause 6(1)(a)(ii). That sounds complicated, but I think that Members of the Committee will be able to find the paragraph since it is the subject of the amendment. In it there is the phrase, "violence for political ends". There are similar but not identical definitions of "terrorism" in both the Prevention of Terrorism Act 1984 and the Northern Ireland (Emergency Provisions) Act 1978, Section 31 of the latter contains the definition:terrorism means the use of violence for political ends and includes any use of violence for the purpose of putting the public or any section of the public in fear".I propose to the Committee that that definition cannot be read straight into the Bill before us. We cannot, as I might suggest in my non-legal mind, take it like a suitcase from one measure to another. The Bill today is different in context. The main difference between the Bill before us and the Northern Ireland (Emergency Provisions) Act is that we believe that action should be taken in the civil court. The Northern Ireland (Emergency Provisions) Act is dealing almost entirely with criminal proceedings.
The definition in the Northern Ireland (Emergency Provisions) Act is similar. It has been on the statute book for nearly 11 years. To the best of our knowledge, this interpretation has never given rise to any difficulty. If the court has been asked to decide, it seems that it has been perfectly happy with that definition. In the light of experience with the 1978 Act in the courts, and the difficulty of the definition of "terrorism", I do not think that candidates, let alone the courts, will find it difficult to interpret the phrase in Clause 6(1)(a)(ii), "violence for political ends". The noble Lord and Members of the Committee will accept that there will be borderline cases, as there will be no matter how one attempts to define "terrorism". That would be a matter for the court, having regard to the circumstances in which utterances have been made or actions performed.
The noble Lord also drew attention recently and at Second Reading to borderline examples like the case of picket line violence. He had one other thought in mind, the disturbances such as we saw throughout the Province in late 1985 and early 1986, which happily have considerably diminished. But in such instances we believe that the court will exercise a degree of judgment which is well within its capabilities and capacity. It is not beyond the bounds of probability that councillors, let alone Assembly members, should exercise judgment. They will know how far they can go and what they can say. They will also know that they have solemnly signed the declaration which is designed to help them exercise their judgment.
768 I have tried to spell out to the Committee the definition of "terrorism" which we want in the Bill and the use to which this definition would be put in court. I do not believe that in practice the definition will be found wanting, let alone unworkable. It is as clear as it reasonably could be in the Bill for the purposes for which we seek it, I hope that that explanation will show that measures in the Bill will meet the concerns of the noble Lord, Lord Monson, as well as those of the noble Lords, Lord Prys-Davies, Lord Fitt and Lord Dunleath, together with my noble friend Lord Brookeborough.
§ 4.15 p.m.
§ Baroness Phillips
Before the noble Lord sits down, may I ask him whether the definition of "terrorism" has a different meaning in English legislation from that in Northern Ireland? Today the bomb at Bristol University was described in the press as "terrorism", but it was not political. It seemed to be something to do with animal rights. Does "terrorism" have a different definition according to the country in which it is perpetrated?
§ Lord Lyell
I think that the noble Baroness makes her own case. If she looks at the definition which I described in a rather complicated comment on Clause 6(1)(a)(ii), we describe acts of terrorism. We define the word as we do in the Act, so that when the court takes action under the Bill in the circumstances in which we see it taking action to preclude people, it will decide whether there has been a breach of the declaration signed by the councillor or the Assembly member. What has been either said or done would be caught or not caught by the definition we have given. I do not wish to go into what happened at Bristol, I am not sure what did happen. I understand that there was an explosion, but quite what the damage was and whether it might be described as "terrorism", I do not know. I hope not for the purposes of the Bill before us, which, as I am sure the noble Baroness accepts, is applicable to Northern Ireland and the Northern Irish circumstances. If there were a problem of this nature in councils in England and Wales, let alone Scotland, I am sure that measures would be brought before your Lordships' House to attempt to deal with it.
§ Lord Fitt
I understand the difficulty of the Minister and wish to accept the assurances which he has given. I hope I am wrong, but he seemed to be saying that knee-capping was not a particularly heinous offence and that it should not be alluded to in the same category as other terrorist offences.
When we look at the term "lethal", does that mean that the victim has to be dead? I wish to put on record during this debate that I know of a number of cases—many of them in my own constituency in Belfast—where the knee-capping went wrong. Knee-capping is not carried out by doctors or people with medical experience; it is carried out by thugs—some of the most vicious thugs that ever walked the earth of Ireland. I know of a number of cases where kneecapping went wrong and subsequently the victim had to have his leg amputated. For the victim that was lethal. I am trying to recall the names, I know of some people who died because the bullets went through a main artery during the course of knee-capping. 769 Therefore I think that knee-capping is a very serious part of the campaign of violence in Northern Ireland.
§ Lord Lyell
We all respect and accept everything which the noble Lord has said on a subject of which I do not say he has personal experience as regards his knees. However, his personal experience on the subject is far greater than mine or that of any other Members of the Committee. I hope that nothing I said in reply to the remarks of the noble Lord, Lord Monson, when proposing the amendment, suggested that knee-capping was anything other than a disgusting and foul offence, crippling people.
The noble Lord and the Committee will be aware that this punishment is hardly ever used against persons of my age or older—that is the most polite way I can think of to express it. It tends to be practised against young men. For all I know it may be practised against young women and girls too. It is practised against people who have for some reason offended the paramilitary organisations or who have stepped out of line in the code of conduct of those organisations.
Knee-capping is a disgusting and foul method of intimidation and punishment. I was not attempting to make the point that the noble Lord, Lord Monson, made. The noble Lord, Lord Fitt, may have an example of a knee-capping that led to death. But I tried to explain that in our understanding and in our conception of the understanding of a court, knee-capping would not be caught by the amendment.
§ Lord Prys-Davies
The Minister may have missed the point of the intervention of the noble Lord, Lord Fitt. We could introduce into the amendment the words "organised and physically damaging". Kneecapping is physically damaging. Would that be acceptable to the Government?
§ Lord Lyell
This situation is rather like Pandora's box. We now come to the word "organised". We should not take up more of the Committee's time in considering how one decides whether violence is organised and whether the violence in the minds of those who carried out an offence was subjective or objective. Certainly as regards terrorism we are about to prove why the definition in Clause 6(1)(a)(ii) is the best and correct one as we consider the definition will be needed in Northern Ireland, above all when it concerns councillors or members of the Assembly.
§ Lord Prys-Davies
But knee-capping surely implies a measure of organisation. It requires, first, that one identifies the candidate for knee-capping, and, secondly, that one assembles the forces necessary to knee-cap that person. That requires organisation and it comes within the definition of the noble Lord, Lord Monson, if the noble Lord is prepared to extend that definition to include the words "physically damaging conduct".
§ Lord Lyell
I do not want to go further on the word "organisation". The noble Lord is tempting me to go further down that road.
§ Lord Lyell
I must finish this point. The noble Lord is tempting me. No doubt he will tempt me again, but I must resist. I suggest to him that even if the words "physical violence" were appended to the amendment, that may present more difficulties as regards a court deciding whether violence was involved. We could cover intimidation which was mentioned by the noble Lord, Lord Fitt. But I shall take on board the point mentioned by the noble Lord.
§ Lord Monson
I am extremely grateful to all Members of the Committee who have spoken. I am particularly grateful to the noble Lord, Lord Fitt, for his second intervention. He was absolutely right to point out that arteries run through each knee. If an artery is hit by a bullet or one of the larger sized shotgun pellets, it is certainly potentially lethal. It is an absolute miracle that more people have not been killed by knee-capping, and I cannot believe that any court would not hold knee-capping to be a potentially lethal crime.
Furthermore, I suggest to the noble Lord, Lord Lyell, that the placing of a bomb in deserted premises is also potentially lethal. However deserted the premises may be, no terrorist can guarantee that someone may not be cycling or walking past that deserted building when the bomb goes off. Therefore, if I may say so, I do not think the objections that have been made are terribly sound.
I concede, as I think the noble Lord, Lord Prys-Davies, pointed out, that my words may not be wholly perfect. But I still maintain that they are a great deal better than the present wording. It is the greatest pity that neither the noble Lord, Lord Renton, nor the noble and learned Lord, Lord Hailsham of Saint Marylebone, nor any of the noble and learned Lords who normally sit on these Benches, is here today because it would have been very interesting to hear their views. The noble Viscount, Lord Brookeborough, and the noble Lords, Lord Dunleath and Lord Fitt, all reinforced the point I made at the beginning of my introduction, which was that the best course of all is to leave out a definition altogether. The more one tries to define terrorism, the more loopholes there will be and the more things will be embraced in that definition that really should not be embraced in it.
If the wording is left unaltered, the breaking of a single windowpane in the front door of someone who is a known supporter of the INLA or the UVF would be counted as terrorism, even if the house were empty. A councillor who said that the person inside the house jolly well deserved his fate would be caught by the Bill as it stands, although that is the spontaneous kind of remark that people often make in the heat of the moment.
There is often a certain amount of violence at election meetings: for example, people are pushed, shoved or punched in the chest. Sometimes the proverbial tomato is thrown or the proverbial salmonella-free egg. Such things happen at election meetings, even on the mainland. If, by leaving the 771 wording exactly as it stands, a councillor were to say that the people who did such things could not be blamed in the circumstances as they had been provoked, he would also be caught by the wording. I do not think that any of the actions I have enumerated would be thought of by the ordinary man in the street as terrorism. Juries of course are comprised of men and women in the street, but in Northern Ireland juries do not decide these matters.
My preference would be for a Division on Amendment No. 5. I always have thought that that amendment proposed the best course of all. If it is agreed to, we can then at the next stage of the Bill extend the principle to the other part of Schedule 2 where the same phrase appears and to Clause 60, which were accidentally overlooked by the noble Lord, Lord Prys-Davies. As many Members of the Committee have said from all sides of the Chamber, we all know what terrorism is and judges know what terrorism is. If we tried to define it, we could easily get something wrong somewhere. Therefore, let us leave out the definition altogether. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 6 agreed to.
Clause 7 [Application to the High Court]:
Lord Prys-Davies moved Amendment No. 3:
Page 4, line 4, leave out subsections (1) and (2) and insert—
("( ) The Attorney-General may apply to the High Court for a determination that a person has acted in breach of the terms of a declaration against terrorism made by him.").
§ The noble Lord said: The point was made by every speaker in the Second Reading debate that the declaration against terrorism is unlikely to be effective because the burden of initiating the proceedings is left to the individual. It is left to the individual councillor, the individual local elector or the council. The individual is unlikely to accept this heavy burden of initiating the proceedings because it carries a high risk of being exposed to the risk of violence or of death. He himself will become a victim of violence.
§ We say, and the Members of the Committee who live and work in Northern Ireland will say, that the responsibility for instituting those proceedings should be in the hands of a law officer. Theoretically that could mean in the hands of the Director of Public Prosecutions or the Attorney-General. They are the people who are best fitted to bring the action.
§ We understand from what Ministers have said in the other place that proceedings cannot be brought by the Director of Public Prosecutions because he is concerned only with criminal cases. That is their judgment. That is why we are left with the office of the Attorney-General. That is why we say in the amendment that the responsibility should lie with the Attorney-General.
§ However, one cannot win with the Government. They say that it would be inappropriate for the Attorney-General to be involved. Indeed the noble Lord, Lord Lyell, told the House in the Second Reading debate that if the Attorney-General were to 772 be involved in such proceedings that would be perceived as the British Government taking an overbearing attitude in relation to the internal affairs of the local councils in Northern Ireland and would lead to misunderstanding and false propaganda.
§ If the Government have a legitimate interest in putting an end to open declarations of support for terrorism in a council chamber they have a legitimate interest in enforcing the law. We should have thought that the enforcement of the provision is a valid objective.
Perhaps I may borrow the words of the Minister in the Second Reading debate. He said:
We believe enforcement must come first".—f Official Report, 9/2/89;col. 1741.]
The "we" are the Government. We would say that "we"—the Government—must take enforcement proceedings through one of the law officers. They should not pass the buck to the ordinary people of Northern Ireland. They should not abdicate their responsibility.
§ I accept that providing for the action to be brought by the Attorney-General does not solve all the problems. However, it will help tremendously in resolving many problems—I shall come to the difficulties that may arise. At least it will ensure that an action is instituted and proceedings are commenced.
§ Do the Government not see that there is a considerable difference between a councillor himself having to institute private proceedings and the council merely being summoned as a witness in an action instituted by a third party? The Ministers in the other place seemed to concentrate on who brings the action. Of course that is important, but it is equally important to consider what happens to the action after if has been commenced in the High Court in Northern Ireland.
§ I have indicated that there will be great difficulties in finding an applicant. However, assuming that one finds a private individual who is prepared to initiate the proceedings, what then? An applicant must be prepared not only to bring the action but also to proceed with it. I accept that if the applicant is to be a private individual he will be vulnerable to intimidation, as any witness would be. He would probably be more vulnerable than the witness. He would be more vulnerable because he is the one person who can decide to abandon the action.
§ We can anticipate that there will be incessant pressures on the individual who has been brave enough to start the action to abandon it. If a potential applicant can be encouraged, by intimidation, not to seek a determination then the case will not get off the ground. If intimidation can persuade the applicant not to proceed with the application which he has instituted then the application will get no further.
§ We think that there are difficulties with the enforcement proceedings because it will be difficult to find an applicant who will take the proceedings and who will be prepared to proceed with the action in the face of intimidation.
§ The Minister did not draw that distinction in the Second Reading debate. If an individual is brave 773 enough to face intimidation and the threat of violence and institutes proceedings, can the Minister tell the Committee what will happen to that action if, in the face of continuing and incessant pressure, the individual decides to abandon it? What happens then? Who will pay the costs he incurred in instituting those proceedings and the costs of any respondents?
§ In our view only a law officer will be beyond the reach of intimidation. It is only a law officer of the Crown who can ensure that if the evidence justifies proceedings, such proceedings are brought and continue to a hearing. I mention that second point because the Minister did not deal with that part of the proceedings in the Second Reading debate; nor did Ministers in another place.
§ We believe that the Bill is flawed because it leaves the burden on the individual. It passes the buck to the individual. We think that there is only one person who can take proceedings and that is a law officer of the Crown.
§ Lord Blease
I rise to support my noble friend. He has argued the case for the amendment very forcefully and logically, as he did with the previous amendments. I get the impression, and I am sure that other Members of the Committee also have the impression, that the Minister is labouring under great difficulty in relation not only to the principles of the Bill but also to how it will be implemented. He said that Clause 6 is very complicated. The Bill itself is complicated and flawed as my noble friend has already mentioned.
We come to what, in my view, is the nub of the proposed legislation; namely, the initiation of proceedings and the difficulties that will be experienced by working men, who are normally the people who stand in local government elections in Northern Ireland. There is not only the fact of intimidation and the cost of standing for election, but the individual's family and others would be involved in the related issues. There would be tremendous pressures from intimidation, family matters and particularly the cost of proceeding with the case in the way that would be expected.
The only point that I wish to add to what my noble friend has stated is that we think it completely wrong that the onus should be borne by councils, electors or councillors, not only because the intimidation risks are high but because we believe that the duty of the Attorney-General is to represent the public interest. It is not merely a question of the criminality that may be involved. The Attorney-General has acted and does act in connection with labour law by taking injunctions and he acts in contempt of court issues. My view—and I think that many people will agree with me—is that it is the role of the Attorney-General to represent the public interest. The public interest can be required in no more important matter than the issue of democracy and local representation.
My view is therefore that the responsiblity for enforcing the Government's legislation in this matter should be placed on the Attorney-General.
I am afraid that this brings us to the crunch amendment. The arguments were well 774 developed on Second Reading and again this afternoon by the noble Lord, Lord Prys-Davies, so I shall not go over them again. However, I must say that quite frankly I am surprised that Her Majesty's Government, having taken cognisance of the fact that we have courts without juries in Northern Ireland because of the risk of intimidation, which is a matter about which many of us are unhappy (we should like to see juries returned again, but we must be realistic about this), would put the onus to bring a civil case to the High Court on an individual, who is vulnerable to intimidation, violence and risk. Without repeating what has already been said, and speaking merely for myself, I must say that unless the noble Lord, Lord Lyell, can pull something pretty surprising out of the hat, I shall not be prepared to withdraw the amendment.
§ Lord Harris of Greenwich
Perhaps I may speak for the first time during this Committee stage to say that I agree with everything that has been said during this short debate on this amendment.
I am bound to say that I find the first two subsections of this clause quite the most extraordinary that I have read in any major government Bill while I have been a Member of this Chamber. As has been pointed out, they restrict those who can make the application to the High Court. The noble Lord, Lord Dunleath, has made the point that the reason we have Diplock courts in Northern Ireland is the risk of intimidation. But what does the noble Lord, Lord Lyell, think will happen to the first man who makes a complaint to the courts under this legislation? Does he think that there is no risk of intimidation? I should be extremely interested to hear him on this subject. It seems to me that the Government are involved in a massive inconsistency on this question.
We see from the Bill that the only people who can make the application to the court are the district council itself—which I think will be done in very much a minority of cases—a voter in that council area or a member of the council. Let us follow through some of the implications of that restriction. First, let us put ourselves in the position of the voter who is perhaps sitting in a meeting of the district council and hears a clear public expression of support for the IRA. He does not have adequate resources to go to the courts himself so he makes an applicaton for legal aid, which, as I understand from the comments of the junior Minister in the House of Commons, he can do. What does the noble Lord, Lord Lyell, think that the IRA will do while we have this amiable discussion as to whether the complainant can or cannot obtain legal aid? What does he think will happen?
The IRA will of course discover this state of affairs. The individual might be told that, unless he desists forthwith, he will be killed. The noble Lord, Lord Prys-Davies, asked the correct question: what happens if the first of these cases is discontinued for that reason? What are the implications for the other occasions when other people might be minded to make an application to the court? It will be cited by the IRA as a massive victory for it because it has intimidated a voter out of going to the courts. If the 775 individual persists, the risk is that he may be assassinated. That is not totally without precedent in the affairs of Northern Ireland; as we know, in the last 10 years three councillors have been assassinated and another has been seriously injured.
Let us then take the position of a member of the Royal Ulster Constabulary. He has no place in this legislation at all unless he is an elector of the district council concerned, which again seems a quite extraordinary restriction. Let us say that he hears Councillor X make a firm, unequivocal statement of support for the terrorist outrages of the IRA. He goes back to his police station and tells the duty sergeant that he has heard Councillor X make that statement. What is the first question that the sergeant will ask him? The sergeant will ask: "Are you an elector for the district council concerned? If not, you can take no action yourself, nor can anyone else". That seems to me to be astonishing. I should be grateful if the Minister would answer that question directly. What happens in such a case?
I believe that there is an urgent need to demonstrate that this piece of legislation is not just an exercise in public relations but is intended seriously. I can say that because my friends in the House of Commons voted with the Government on Second Reading. We believe that this is important. It is highly desirable. But we are not prepared to be associated with something which is merely a public relations exercise.
§ 4.45 p.m.
§ Lord Coleraine
Before I say anything about the amendment, I should like to attempt to put the record straight in one respect. It seemed to me as I was coming into the Chamber that I heard the noble Lord, Lord Prys-Davies, complaining moderately but complaining nonetheless—that a third of the Members in the Chamber were leaving and that this was what Northern Ireland business had to suffer from. As an English Member of this place, there are two things that I should say. First, it has always seemed to me normal that about a third of the Members in the Chamber leave after Question Time. Secondly, we have been discussing this business for an hour and a quarter and during most of that time it has seemed to me that we have had a reasonable attendance by Members from this side of the sea who have been listening attentively.
In saying that, I do not wish to suggest that the business of the Six Counties receives the attention at Westminster that it should, but I believe that the record should at least be put straight with regard to the point made by the noble Lord, to which my noble friend referred in replying to the first amendment.
I listened carefully to the Second Reading debate and to what noble Lords said this afternoon. I feel considerable sympathy with the amendment that the noble Lord put forward today. It seems to me that to do things in the way for which the Bill provides has certain disadvantages. It can hardly be conducive to harmony between the communities if applications must be made in the way that the clause provides.
My noble friend referred to this point when replying at the Second Reading debate. He said that 776 one of the reasons why the proceedings could not be dealt with by the DPP orthe Attorney-General was that this was a matter of electoral law; and that in matters of electoral law civil proceedings were normal. That may be so, but it seems to me that this is not a normal matter of electoral law. It is very much a question of public order and public administration. It seems very clear to me that this is a matter where one should certainly consider that it was for the Government to deal with and not for local citizens.
When one considers the Bill, in many ways it seems to be rigorously drafted. I can see the provisions of the Bill being manipulated by malign persons so that an application is made that inexorably could finish up before the Court of Human Rights. I do not wish to dwell upon that point, but it seems a potential disadvantage in the way that the Bill is framed.
I know that my noble friend has set his face against dealing with it in any other way than the Bill provides, and I understand the reason he does so. I certainly understand that in one sense these are good reasons. However, I ask him to think again about this matter even to the extent of saying that if he cannot allow the Attorney-General or the DPP to bring proceedings, could not provision be made so that proceedings could not be brought without the fiat or approval of the Attorney-General?
§ Viscount Brookeborough
In supporting this amendment, I hope that I shall not repeat what has already been said. However, I believe that this amendment deals with and would solve the problem of whether or not this Bill would be effective when passed.
It is a primary duty of government to protect and maintain the electoral process and also our democratic system of government in Northern Ireland. Her Majesty's Government must not abdicate responsibility for that by putting the onus on the law abiding citizens of Northern Ireland to carry out their function for them. The Government should put this right by bringing the Attorney-General into it, as in this amendment.
If the Minister believes that the Attorney-General cannot carry out this function, then what chance have the average citizens in Northern Ireland? It may sound all right in theory to the people of Great Britain; but please listen to those of us who know Northern Ireland, who live there, and under the present wording will have to help to enforce this declaration. We are not trying to wreck this Bill. We are only trying to make it more workable in practice.
There is one other point on which the success or otherwise of this Bill may have an effect. It is not only in the short term. One of the major problems that we have in Northern Ireland is to encourage talented, able young men and women to go into local government to gain political experience and thereby create a useful base for future democratic government in the Province. One cannot but sympathise with these people if they do not wish to become involved with, in some cases, people who have been convicted of terrorist offences and continue openly to support terrorism. This Bill not 777 only concerns itself with today's problem we are discussing in the Chamber, but if its aims are achieved it will have a great bearing on the quality of our politicians in the future. After all, the Government have included the Northern Ireland Assembly in the Bill. I support the amendment.
§ Lord Fitt
Without the provisions of Clause 7 in this Bill, it will not be worth the paper it is written on. Clause 7 is what this Bill is about. Without Clause 7, one may forget about the effectiveness of this Bill.
Underlying each and every one of these amendments is the problem of intimidation. We have spoken of it before on another amendment. Many Members of the Committee will be aware of reports in the press here over the past fortnight about the IRA taking a particular dislike to a family. That family was not informing on the IRA. It was not in direct confrontation with the IRA. It was not trying to bring the IRA before the courts. The family just did not like the IRA, and the IRA did not like the family. The IRA told 50 members of that family to get out of the country. At least 20 of them have arrived in Camden Town. They are being put up at the expense of local government in bed and breakfast places at the cost of £1,500 per week. That is only 20 of the family. The other 30 have still be included, and there may be more.
It is not the one person who lays a complaint against any member of Sinn Fein or any terrorist but his whole family which is involved. When the IRA intimidated this particular family by the name of Valliday, the Member of Parliament for that area quite rightly protested that the local authority in Camden should not be saddled with the enormous expense of housing people who were the victims of intimidation by the IRA.
Even in this case of intimidation what is the attitude of the present Government? That was a victory for the IRA—intimidating 50 people out of their homes and telling them to go to England, where the host country, the host local authority, would have to accept the responsibility. That is a family that has not laid any claim against any member of Sinn Fein or attempted to bring it before the courts. How much more serious it would be if the IRA were against someone whom it regarded as a potential enemy. First there would be the threat of assassination against the person concerned. There would be the threat of intimidation by knee-capping against other members of the family—all because the Government are proving cowardly.
I do not think that cowardice is a word that the Government should allow themselves to be labelled with in this attempt to make this Bill serious and to make this legislation effective. The people of Northern Ireland have suffered intimidation and threats over these past 20 years. If they are to be asked to accept the terms of this Bill, and to try to drive such people out of the local authority—indeed off the face of the earth in Northern Ireland—if they are to be asked to accept this responsibility, then the Government should help them. If the Government do not accept their responsibility under Clause 7, then I cannot see this Bill in any way being effective.
778 A noble Lord on the opposite Benches said that my noble friend Lord Prys-Davies had complained that there was not a great number of noble Lords in the Chamber. I know that this amendment may be forced to a Division. It would be a shame and a disgrace if people who have not listened to the terms of the debate in this Chamber were to go into the Lobbies and support the Government. The people in Northern Ireland will feel exactly as I do. I ask the Government to think very seriously about making the law officers of the Crown responsible for Clause 7 of this Bill.
§ Lord Monson
Perhaps I may briefly endorse everything that has been said so far about Clause 7. For the Government to put private citizens in danger in this way is positively immoral. Brave though most citizens of Northern Ireland are, very few have the death wish. Unless this clause is amended the Bill will not work.
§ 5 p.m.
The Viscount of Falkland
I should just like to endorse what the noble Viscount, Lord Brookeborough, and the noble Lord, Lord Fitt, have said. The point was raised on Second Reading by several noble Lords. It seems quite unreasonable of the Government not to give this potential legislation the kind of teeth which will make it work, rather than stirring up possible problems which will involve lots of people, as has been graphically described by the noble Lord, Lord Fitt. I am sure that all noble Lords who have listened will have taken that on board. I am also concerned about those who have not heard the arguments in the debate voting if this amendment is pressed to a Division, and am worried about the effect that that will have on opinion in Northern Ireland.
§ Lord Colnbrook
I did not think I would have to speak in this debate and perhaps I do not. I hope that I do not, because I so much agree with what has been said. I shall not repeat it and will ask my noble friend on the Front Bench to consider two points. First, he knows Northern Ireland very well but I do not think even he would claim to know it as well as those who live there, several of whom have spoken and have personal experience over many years, and perhaps all their lives, of what it is like. They know even better than he does and when they speak as they do their words carry much greater weight than mine or anybody else's. I hope that he will pay heed to them.
Secondly, if this Bill goes through as it is, it seems to me that there will be an open invitation to the IRA to say "Here is the British Parliament passing a Bill at the request of the Government of the day, making it an Act of Parliament, and we can destroy it. We can make sure that the Act does not work". All they have to do the first time anybody makes an application to the court is to shoot that chap and then there will not be any more. I do not think the Government ought to invite Parliament to pass a Bill which they know can be destroyed by the very people whom the Bill seeks to control. This does not seem to me to make any sense at all. So I very much hope that my noble friend will have listened to everything that has been said in 779 the debate and will, at the very least, say that he will look at it again and come back later in the proceedings of the Bill to say whether he can come to meet us.
§ Lord Lyell
Perhaps I should not follow on the lines of a beauty competition and start in reverse order. But nobody could have made a more eloquent contribution than my noble friend who, after all, has a great deal of knowledge of Northern Ireland—a good bit more than I have. I have listened with great interest to what he said as well as to what has been said by everybody else who has spoken.
In moving the amendment the noble Lord, Lord Prys-Davies, took me back to the comments that he and I made on Second Reading. He then went on to raise the question of intimidation, which was a common thread throughout the debate in every speech that was made. Of course intimidation is a subject which arouses great interest in your Lordships' House as well as in Northern Ireland. But I would at the outset ask noble Lords to consider subsections (1) and (2) of Clause 7 dealing with applicants, which are subject to the amendment of the noble Lord, Lord Prys-Davies.
I believe that I said on Second Reading—and I am not a lawyer—that the question of intimidation does not merely apply to applicants; it also applies to witnesses. I hope noble Lords will always bear in mind that intimidation will possibly be directed at applicants but it will certainly be directed at witnesses. This is germane to the point raised by the noble Lord, Lord Harris, in his contribution. We see Clause 7 and indeed the Bill as reflecting on statements by elected councillors and possible Assemblymen in Northern Ireland. I hope that that will at least clear up some of the thoughts in the minds of Members of the Committee.
I should like to cover the main thread of the arguments raised on this amendment. The principle of Clause 7 and of this part of the Bill deals with the question of who should bring an action for a breach of the declaration signed by a councillor. The subject has provoked very lively discussion in Committee here this afternoon as well as in another place. But the principle that we have employed throughout, both here and elsewhere, is that those who have a direct interest in the elected office concerned are the persons who should bring actions.
I hope that I can set at rest the mind of my noble friend Lord Brookeborough who raised the question of the electoral process. The Bill deals not with the electoral process but with the behaviour of those who have been successfully elected to councils or to an Assembly. Those who have a direct interest in the elected office concerned are the persons eligible to bring actions. This is a measure designed to help prevent abuses of elected office in local government that have been taking place in Northern Ireland. Such abuses have not always been widespread, but unfortunately when they take place they gain a great deal of unpleasant publicity and indeed can cause serious disorder in the councils.
I shall not go through all the arguments that I raised at Second Reading, which have been 780 mentioned again in part by those who have spoken, against involving the Attorney-General in actions for breach of the declaration. I beg my noble friend Lord Colnbrook to bear with me when I say that to give my right honourable and learned friend the Attorney-General the responsibility would not solve the problems that have arisen or that would exist. In fact, we believe that that would create a new problem.
As regards the Attorney-General taking responsibility for action against one particular party or group who we know are carrying out intimidation, I am sure the noble Lord, Lord Fitt, will accept that intimidation is not confined to one particular side of the fence or of the political spectrum in Northern Ireland. We believe in the circumstances that have been spelt out this afternoon that this step would, for better or worse, be seen, as my noble friend Lord Colnbrook put it, as a victory for the IRA. It certainly would be perceived as a parallel victory for them, in that they would sell it as interference by the Government in the internal affairs of councils.
The position of the Attorney-General in this context is very complex and I do not want to go along that avenue this afternoon. But certainly I stress that the Attorney-General has no means of monitoring expressions of support for terrorism made by councillors in Northern Ireland. That is a particularly germane issue, since all Members of the Committee said that the Attorney-General should take action. The noble Lord, Lord Blease, disagrees with me but I ask him to bear with me. Neither of us is a lawyer. The Attorney-General will not be present when these alleged breaches of the declaration are made.
The noble Lord shakes his head. I do not believe that the Attorney-General will be present at each and every council meeting. Therefore, the Attorney-General would have no locus standi in bringing the application. The question of intimidation, which has been quite fairly raised in this Committee, will apply to each and every witness.
I beg the noble Lord's pardon, but surely the Attorney-General takes many actions without having been present in person to witness the offence taking place.
§ Lord Lyell
He may if he wishes, but for the reasons that I have spelled out we do not believe that it is the correct course of action as regards this particular aspect for councillors who breach their declaration in the council chamber. I spelled that out at Second Reading; it has been spelled out by your Lordships' and I have spelled it out again today.
Apart from that, the point was raised by the noble Lord, Lord Harris, about what might be said by an aggrieved person attending a council meeting in Northern Ireland, and I think that this was also alluded to by my noble friend Lord Coleraine. I think that the noble Lord, Lord Harris, would accept that this breach is a civil matter. Therefore it is not a matter for the desk sergeant of the Royal Ulster Constabulary, as the noble Lord suggested. To my mind—and I think possibly to the mind of the noble Lord, Lord Harris—the only advice that the desk sergeant could give would be to say to an aggrieved person, "This is a breach of the civil law. You had best take this to a lawyer."
§ Lord Harris of Greenwich
Perhaps I may ask the noble Lord a question on that. As the noble Lord and the Committee will recall, the question I asked was this: a member of the Royal Ulster Constabulary hears an elected district councillor make a statement which is inconsistent with the statutory declaration that he has made. He makes a positive statement of enthusiastic backing for terrorist outrages committed by the IRA.
I asked the noble Lord what would happen if he then reported that to his sergeant and the sergeant's first question was, "Are you a resident of the district council concerned?" The noble Lord now appears to be suggesting that a police officer should in fact be quite unable to take any action within the police service itself to deal with what would be a scandalous situation.
§ Lord Lyell
My attention to the noble Lord's excellent remarks wandered slightly in that I did not appreciate that the person who had been at the council was another member of the Royal Ulster Constabulary. What I understood was that some person would go to the sergeant and say that there had been a breach. No, if a member of the Royal Ulster Constabulary fitted the categories in Clause 7(2) then he would have the right to take action, but it is not a matter for the criminal law; it is a matter for civil law. That is what is set out in the Bill before us. No criminal offence is involved.
The noble Lord, Lord Monson, suggested that the Government were in some way immoral. I suggest that we are certainly very far from that. With this Bill we are seeking to provide a remedy whereby persons who are aggrieved—and feel that they have been aggrieved—in the council chamber by another elected councillor have a remedy. Whether somebody feels that they wish to take that remedy is entirely up to them. The second stage is that an applicant may take a case to the court, but in the end it is for the court to decide whether or not the breach has occurred. We must be careful not to place ourselves in the position of the court.
I hope that I have dealt with intimidation. Of course we recognise the special position of Northern Ireland and how intimidation is perceived and indeed, as the noble Lord, Lord Fitt, pointed out, occurs. But perhaps I may conclude with what we believe are safeguards in the Bill for persons who would be aggrieved, and that is the persons we see categorised in Clause 7(2). We recognise that some potential applicants under the Bill will be concerned about the risk of intimidation. We have introduced the two safeguards.
The safeguards should alleviate—and I only say that because they cannot remove—the risk of intimidation. First, Clause 7 creates a large category of people empowered to bring actions. In the smallest district council in Northern Ireland over 10,400 electors are empowered to bring actions, as we lay out in the Bill. In Belfast over 200,000 electors would be empowered to do so. There is no upper limit to the number of persons whose names could be attached to an application under the Bill. If noble Lords believe that it is easy for one applicant to be a target for intimidation, it will be rather difficult for a putative 782 intimidator to intimidate thousands of people if they could take action, as they are entitled to, under the Bill.
Secondly, one public authority collectively—and that is the council itself—is empowered to bring actions. We believe that this is right, given that the council has an interest in the orderly conduct of its own business. But it has an interest in the orderly conduct of its own business. But it also means that if individuals are worried about intimidation, if there is a good case the council would be able to take action under this particular clause to seek a remedy for outrageous behaviour that all of us agree constitutes a serious breach of the declaration.
I have listened to the debate this afternoon. I have listened to those noble Lords who live in Northern Ireland and I have listened to the words of my noble friend Lord Colnbrook. In conclusion let me say that I shall undertake to reflect on what has been said, but I cannot give an undertaking that I can bring something forward at the next stage. 1 understand that there will be other avenues that I could discuss with those of your Lordships who are interested in anything that we could do, but I could not undertake to bring forward an amendment at the next stage.
§ 5.15 p.m.
§ Lord Harris of Greenwich
I do not think that any of us are expecting the noble Lord to give an absolute commitment this afternoon. He will have to consult his right honourable friend. However I very much hope that he will, as a result of those discussions and particularly in the light of the speech of the noble Lord, Lord Colnbrook, with his substantial experience of dealing with the terrorist situation in Northern Ireland, come forward with a far more satisfactory form of words at the next stage. If we can have any informal discussions in the meantime, I for one would certainly welcome them.
I do not want to go over yet again the speech that I made, but I must briefly point out that the noble Lord, Lord Lyell, is still not getting the point; the point of why the role of the police is so central. I understand that this is a civil matter, but of course the police are often involved in civil matters both in Great Britain and in Northern Ireland.
One could have a situation where, let us say, an elected Belfast councillor makes a statement in Londonderry which is heard only by the police and they are the only potential complainants, because as the Bill is drafted at the moment the only complainant can be either a councillor in Belfast or an elector in Belfast. However, the speech is made in Londonderry and is heard by a police officer. His only role in the matter, his only locus, is if he is himself an elector in Belfast, otherwise he cannot himself take any action to deal with the statement made by that elected councillor in warm support of the terrorist activities of the IRA.
I do not propose to go over the ground yet again, but it is essential that the noble Lord, Lord Lyell, takes this point. Without it, as the noble Lord, Lord Fitt, and indeed the noble Lord, Lord Colnbrook, said, there is the danger that this Bill, once passed, will never be successfully operated, and it is our desire to ensure that it is.
§ Lord Lyell
I take the points raised by the noble Lord, Lord Harris of Greenwich. Even if the amendment to which he has spoken were accepted, does he believe—does anyone here believe?—that it would make the Bill any more workable in Northern Ireland?
§ Lord Lyell
We have listened carefully to everything that has been said by noble Lords who live in Northern Ireland. I have listened carefully to my noble friend Lord Colnbrook. He did not dissent widely from my view that the amendment, if accepted, would not make the Bill workable. We certainly do not believe that it would.
I shall reflect on everything that has been said. If I can find some method of discussing anything further or of communicating with noble Lords at a later stage, I shall certainly do so. I think that Members of the Committee have been kind enough to accept that I cannot this afternoon undertake to bring anything forward at a later stage, but I shall certainly reflect.
§ Lord Prys-Davies
What worries me about the Minister's response is that this kind of amendment has been around the place for two or three months so the Government have had time to reflect. I am not convinced that further reflection will persuade the Government to support the amendment. Indeed, the Minister said at the end of his speech that he did not believe that the introduction of the office of the Attorney-General would make any difference at all. I am depressed when the Minister says, "Look, the Attorney-General cannot bring these proceedings because he was not in the council chamber when the councillor said this or that". The police are never present at the scene of the crime when the crime is committed. Someone has to go along to the police with a complaint, and the police act on that complaint.
The Government have introduced a novel obligation upon all councillors in Northern Ireland to sign a declaration that they will not support the use of violence for political ends; if they do, they will be stripped of office and denied office for the next five years. That is why—to take up a point made by my noble friend Lord Fitt—I thought the debate was very important. That is why I was a little saddened at the beginning that so many of your Lordships left the Chamber.
It is simply not good enough for the Government to introduce in abstract terms a declaration against terrorism, which we fully support and, it seems to me, all Members of the Committee support. The Government accept no responsibility whatsoever for enforcing that declaration. That is left to the poor individual at the bottom of the heap. People throughout the Province have no confidence that the declaration will be enforced although they want it to be enforced. That is the message from all the Northern Ireland peers present this afternoon and from the noble Lord, Lord Colnbrook, with all his experience as a Secretary of State for Northern Ireland.
784 It is simply not good enough for the Minister to say, "Look, how far can one get with the proceedings because the witnesses will be intimidated?" The Minister has not answered our point. If an applicant can be encouraged by intimidation not to seek a declaration, or if he can be intimidated by the threats of violence and possibly death not to proceed with his proceedings, then effectively those proceedings are dead. That is why I think that the Minister is misleading when he tells the Committee that it is witnesses who will be most vulnerable to intimidation. The person who will be most vulnerable is the private individual. There is only one individual who can be protected from intimidation: that is the Attorney-General of Great Britain.
The Government have had months to reflect upon the contents of the amendment. They have not listened. The message has been delivered this afternoon by the peers from Northern Ireland supported by Lord Colnbrook. I believe that noble Lords have a duty to Northern Ireland, and we have to discharge that duty. That is why I would ask that this matter be put to a vote.
§ Lord Elton
I should like to ask the noble Lord the Minister for clarification. I apologise for coming late to the debate. As I did so, I thought that I heard him say that he would take this away for consideration without any undertaking to make a change at the next stage, those being the normal words in such a circumstance. I should like clarification of whether that is the case.
§ Lord Harris of Greenwich
Perhaps I may follow up what the noble Lord, Lord Elton, has said. The Minister has made an offer that he will reflect on the matter between now and Report, discuss it with the Secretary of State and have informal discussions. I very much hope that there will not be a vote this afternoon.
§ Lord Prys-Davies
There was no undertaking by the Minister to have discussions with peers from Northern Ireland on these Benches. The undertaking, for what it is worth, is merely to reflect. All I say is that the Government have been reflecting for three or four months.
§ Lord Lyell
The noble Lord referred to "misleading" not in respect of the last point that I made but in regard to witnesses. Everything that I said about witnesses compared to applicants under Clause 7(2) I think stands. I believe that the noble Lord, Lord Harris of Greenwich, heard what I said. I gave an undertaking that I would reflect, but I did not, and I do not, give an undertaking that I shall bring forward an amendment at the next stage.
That is the view that I take. I leave the question of the amendment entirely to the noble Lord.
§ Lord Graham of Edmonton
When the Minister said that he will reflect and we understand that he is giving no undertaking at the moment—he appeared to us to pre-empt the possibility of bringing forward an amendment of his own or of any amendment being proposed in the light of 785 discussions. As my noble friend Lord Prys-Davies says, all that we have is an offer of a further period of reflection and a statement that what has been said from every Bench will be listened to but not acted upon. The Minister has invited these Benches to accept a pig in a poke.
What we want is not an undertaking—of course the Minister cannot do that—but a statement that he will enter into discussions with those peers who have shown that they have a genuine interest with the possibility, and no more than that, that an amendment will be proposed either collectively or by the Minister to meet the point of view that has been expressed. That is all that we ask of the Minister.
§ Lord Harris of Greenwich
I apologise for saying this a second time. In my view it would be quite impossible for the Committee to expect the Minister to give the undertaking for which we are pressing him. He would have to consult the Secretary of State for Northern Ireland. I agree with everything that the noble Lord, Lord Prys-Davies, said about the amendment having been hanging around for two or three months.
We want the Minister to report to the Secretary of State the strength of feeling on this question in all parts of the Chamber. As I understand it, the Minister has offered informal discussions. We can come back to this Report. I beg the Committee not to vote on the question now, given the Minister's undertaking.
§ 5.30 p.m.
§ Lord Prys-Davies
Can we persuade the Minister to give a further undertaking, to have discussions with Members of the Committee from Northern Ireland? I say only "discussions".
I have listened to the message which they have delivered to the Committee. I should be grateful if the Minister will give the assurance that there will be an opportunity for discussion with the peers from Northern Ireland before the department comes to a final view.
§ Lord Lyell
I gave an undertaking. I reiterate the fact that I shall respect and abide by that undertaking. I believe that the noble Lord, Lord Harris, grasped what I said. I am sure that the noble Lord, Lord Prys-Davies, did so, and I believe so did the noble Lord, Lord Graham. I shall abide by the undertaking but I leave the Question to the Committee.
§ Lord Graham of Edmonton
Does the undertaking include discussions? I want to hear the Minister say it.
§ Lord Harris of Greenwich
I should like to help the noble Lord, Lord Lyell, refresh his memory about what he said. I understood him to say that he would agree to informal discussions between now and 786 Report. On the basis of that agreement I do not believe that we should test the amendment.
§ Lord Prys-Davies
We are asking only for the Minister to clarify the undertaking and say whether it is as wide as that recalled by the noble Lord. Lord Harris.
§ Lord Harris of Greenwich
I hope that the Minister will now be good enough to say that my recollection is correct. If he is prepared to say that I suspect that the noble Lord, Lord Prys-Davies, will withdraw his amendment. It is very much in the interests of everyone. There is no advantage in partisan voting on Northern Ireland issues. We hope that the Minister will rise and say that my recollection is correct and the matter can be disposed of.
§ Lord Elton
Before my noble friend does so and the Committee rushes into a decision which may be precipitous, I should like to leave in Members' minds the fact that if no decision is taken now there will be time for reflection and possibly discussion. On the other hand, if a decision is taken now the matter is ended. The Committee is not accustomed to reversing its decisions at a later stage. Therefore, I advise the noble Lord, Lord Prys-Davies, that it may be precipitious to divide the Committee at this stage.
§ Lord Prys-Davies
As my noble friend says, it may well be the sixth time but I should like to have the assurance that the department will have discussions with Members from Northern Ireland. They will deliver the message from Northern Ireland. I am content to accept his undertaking if it is as wide as that.
§ Viscount Whitelaw
I wonder whether the House is becoming involved in a ridiculous tack, because my noble friend has said that he will take back the matter for further discussion with his Secretary of State.
In any form of life that I have lived in politics over many years I know that if there is time for discussion then there is time for discussion with a great many people and, of course, with people from Northern Ireland. The matter can be discussed with everyone. It makes no sense to suggest that one takes back an issue for discussion and then limits the number of people with whom one will discuss it. I do not understand what that means.
§ Lord Prys-Davies
We should accept an undertaking in the terms expressed by the noble 787 Viscount: that there will be discussions not only with the Secretary of State but with many other people.
§ Lord Fitt
My name is attached to the amendment. I came to the Committee this afternoon determined to go into the Lobby. I suspect that two of the most unhappy Members of the Committee are the two former Secretaries of State for Northern Ireland. They know exactly the problem of intimidation. Their presence in the Committee will indicate their concern and they have seen what has happened over the past five or 10 minutes.
I do not wish to go into the Lobby unnecessarily. If the Minister will give an indication, we can look at the issue again on Report if the matter is not to our satisfaction.
I leave the Minister with these words and I should like him to reflect seriously on the symbolism of the debate. For the past 18 years the IRA and other organisations have said that they are fighting a war for the freedom of Ireland. They have allocated to themselves the responsibility for freeing Ireland of British rule. We have said, as have this Government and a succession of Labour and Conservative Governments, "You are not fighting a war, you are criminals. You are carrying out criminal acts against the people of Northern Ireland in particular and against people in the United Kingdom as a whole". We are now saying that we shall ask the people in Northern Ireland to accept the responsibility of fighting off those criminals without the support of the Government. That is what the proposal means. We are asking the people of Northern Ireland to initiate proceedings which will put them at risk. At least one can say that the security forces acting on behalf of the Government are armed. They are armed in defence of the state. However, the person who may lay a complaint against the person who has breached the undertaking has no arms—at least we hope that he has none. Do not ask any person in Northern Ireland to accept a responsibility which you are unable to undertake.
§ Lord Prys-Davies
In the light of the wise words of the noble Viscount, Lord Whitelaw, and his interpretation of the Minister's undertaking and the way in which it will work in practice, I am content to rely on the undertaking. Therefore, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 7 agreed to.
Clause 8 [Disqualification in consequence of breach of declaration]:
[Amendment No. 4 not moved.]
Clause 8 agreed to.
Remaining clauses agreed to.
Schedule 1 agreed to.
Schedule 2 [Declaration against terrorism]:
[Amendments Nos. 5 to 7 not moved.]
Schedule 2 agreed to.
Remaining Schedule agreed to.
788 House resumed: Bill reported without amendments.