Prevention of Terrorism (Temporary Provisions) Bill

HL Deb 28 February 1989 vol 504 cc944-99

3.15 p.m.

Earl Ferrers

My Lords, I beg to move that the House do now resolve itself into Committee on this Bill.

Moved, That the House do now resolve itself into Committee.—(Earl Ferrers.)

On Question, Motion agreed to.

House in Committee accordingly.

[The LORD ABERDARE in the Chair.]

Clauses 1 to 3 agreed to.

Clause 4 [Exclusion orders: general]:

On Question, Whether Clause 4 shall stand part of the Bill?

Lord Mishcon

In case the Committee feels that I am in an especially negative frame of mind this afternoon, perhaps I should point out that there is only one way to try to dispose of part of a Bill. I was advised that one cannot put down a Motion which disposes of that part of the Bill; one has to put down a Motion that each and every clause in that part should not stand part of the Bill. The Committee will therefore be relieved to know that with the Committee's leave I shall be speaking to all the Questions as to whether Clauses 4, 5, 6, 7 and 8 shall stand part of the Bill in one speech.

Part II, as the Committee will realise, relates to exclusion orders. I suppose that I should take as my text Article 2.1 of the Fourth Protocol to the European Convention on Human Rights. If the Committee is not aware of it already, we have not signed that fourth protocol. My suspicion is that we have not signed it because of the very matter that I wish to bring to the Committee's attention; namely, the question of exclusion orders.

Article 2.1 of the protocol reads: Everybody lawfully within the territory of a state shall within that territory have the right to liberty of movement and freedom to choose his residence". As the Committee will appreciate, the rights of a Minister, after consideration, to make an exclusion order defeats the very principle of that elementary right.

The Committee would not expect me to convince it if I were adopting merely a political stance on behalf of the party which on this matter I have the honour to represent. I do not intend to quote one word said by any politician who sits on these Benches or on similar Benches in another place. I intend to quote the utterances of those appointed by the Government to look completely independently into the question of exclusion orders. All have carried out detailed examination of the papers relating to those who have had exclusion orders made against them; they have gone into the whole question and taken evidence from the authorities upon whom we rely to deal with matters of terrorism, especially in regard to Ireland. I now tell the Committee what has been the conclusion of those people advising the Government completely independently.

We start with the noble Earl, Lord Jellicoe. The noble Earl held a prominent position in this place. He had the respect of all parties. In 1982, at the beginning of this matter, reviewing the question of exclusion orders, the noble Earl said that he was rather doubtful—I am paraphrasing, but, I believe, perfectly fairly—about the worth of exclusion orders when set alongside civil liberties to which they did a great deal of harm. On balance, he thought at that stage that the orders should be allowed. However, he said that if anything were to be deleted in the Act the principle of the exclusion orders and the orders themselves ought to be considered first.

A name known with great respect in this Chamber is that of Sir Cyril Philips because of the way in which he combined in one lifetime a reputation for good judicial judgment with a very capable judicial mind. On an independent government assessment which was sought from Sir Cyril, he recommended in 1985 that exclusion orders should go.

I now turn to recent history. The noble Viscount, Lord Colville, sits with great distinction on the Government Benches. Whenever he contributes to our deliberations he is listened to with great respect. I should have expected the Front Bench of the Government of which he has been a member in the past to extend that respect when they asked him on two successive occasions to report on the workings of the Act. I ask noble Lords' leave to quote from what the noble Viscount said. He speaks in very specific terms in his latest report—not the previous one but the one considered recently by noble Lords.

The report was presented to Parliament by the Secretary of State in December 1987, and perhaps Members of the Committee will forgive me if I read every word that is valid in connection with what I am asking the Committee and the Government to agree to. Page 39 of the report says: Exclusion orders can divide families, make it difficult to seek a job and difficult too to get away from former terrorist associates. These restrictions are only feasible because there is a stretch of sea between Ireland and Great Britain. It cannot be envisaged that such a power could be exercised against Scottish or Welsh separatists however terroristic their activities. It cannot be used against naturalised or British-born citizens from other countries who become caught up with disputes from overseas and resort to terrorism in Britain. Moreover when a republican terrorist is excluded to Ireland the event is turned into useful propaganda. It should not be forgotten that one of the aims of terrorism is to lead a Government to introduce repressive measures; the unpopularity thus caused can be exploited further to excite criticism and turmoil as part of a vicious circle The number of orders is now greatly reduced. 1 obtained the impression that the authorities in Northern Ireland would not encounter problems of any substance if exclusion orders were to disappear; although by contrast orders excluding people to the Province do add to the heavy load already borne by the RUC and the armed forces". On the next page, page 40, there is an assessment with which I need not trouble the Committee. I am sure noble Lords will accept from me that the noble Viscount then renews his recommendation, which he made in his previous report, that exclusion orders should not form part of the Act and the Bill now before the Committee.

I said that I would not invoke anyone but a government adviser. 1 have quoted the noble Earl, Lord Jellicoe, who, back in 1983, felt that exclusion orders ought to be the first to go, though he was doubtful about stopping them at that stage. I quoted Sir Cyril Philips, who was asked by the Government to assess. I quoted the noble Viscount, Lord Colville, who was asked by the Government to go into detail in these matters. He has twice recommended that exclusion orders should go.

What is the point of a government seeking an analytical examination of the situation and asking for advice if then on occasion after occasion they refuse to accept it? I ask the Committee to accept that advice when I propose that Part II should not stand part of this Bill.

Lord Mason of Barnsley

In his opening remarks my noble friend Lord Mishcon decided to propose that Clauses 4, 5, 6, 7 and 8 should not stand part of the Bill. It may therefore be in order if I speak specifically on the proposal that Clause 5 should stand part of the Bill. No doubt the Committee will remember that I supported the Government on Second Reading of the Bill, and I rise to give the Government support on Clause 5.

There exists in the clause the power to grant orders excluding persons from Great Britain. I believe that this aspect of our legal armoury is essential if we are to have some control over the movements and activities of suspected terrorists and their allies. I also believe that through diligence, patience and skill, backed by the prevention of terrorism Acts and in particular by provisions such as those in this clause, special branch officers and the Scotland Yard antiterrorist squads have saved scores of lives on the mainland. Our security services, which embrace the police, special branch officers and specialist antiterrorist teams, are under considerable strain at the moment. Apart from the new threat by Moslem extremists, those fanatical so-called warriors of God and the crazed, extreme animal rights activists—both groups now seem intent on bombings and murder—the Provisional IRA appears also to be intent on another bombing campaign in Britain.

In recent months, one active service unit was apprehended while surveying the property and movements of the Secretary of State for Northern Ireland. There was the discovery of the London bomb factory in Clapham last December; the active service unit that was disturbed and scattered when their look-out was startled by a car thief; the bombing of Inglis barracks at Mill Hill last August; the bombing of the Parachute Regiment's Shropshire headquarters in February this year; and the discovery of a cache of Semtex explosive in a reservoir at Stoke Newington this week. This was not in the past year or two years but within the past four or five months.

It is quite obvious that in spite of vigilance at ports and airports terrorists are succeeding in slipping the net. When one bears in mind the thousands of Irish visitors to our shores, attending football matches, race meetings, boxing and other sporting events, as well as visiting friends and relatives, the job of weeding out a suspect with a view to exclusion is itself a mammoth task. The terrorist mingles with these groups, diverting on the mainland to awaken sleepers here and there, check safe houses, organise an active service unit, and assemble arms and explosives. All the time there is some terrorist activity by Irish terrorist groups and their friends in this country, so constant surveillance is required. The right to exclude a person suspected of aiding and abetting any form of terrorist activities is a vital arm in the campaign against terrorism.

I recognise that there is bound to be some intrusion into the private lives of many Irish citizens and often British citizens too. These operations of checking, detaining and questioning suspects cause nuisance and inconvenience. I am also concerned that the job is done by the investigating officers without incurring the wrath of civilians by being overzealous. I am concerned that they should as far as possible carry out their duties carefully, politely and responsibly.

However, I think it is important to understand that there are occasions when a group of mostly innocent travellers are held at a port. They may be used as a shroud by the security forces because there is a suspect within their midst; or the security forces may without the suspect's knowledge use the screen of innocents and allow the suspect supposedly to slip the net and thereafter keep tabs on him in the hope that an active service unit may be detected or that the suspect may lead them to the sleepers, or indeed to their cache of arms and explosives.

The use of the exclusion order is based on intelligence rather than evidence. It is that intelligence that determines whether the Home Office and the Home Secretary are satisfied that the person apprehended is or has been concerned in the commission, preparation or instigation of acts of terrorism or has attempted to enter Great Britain for such purposes. If the intelligence shows that the suspect is or has been involved in those areas, action is taken. Although the results are unquantifiable, it is likely that many lives in Britain have been saved as a result of intelligence.

Although I am aware that this legislation incurs a diminution of our freedom and liberty, I am also satisfied that for the greater well-being of the majority of our citizens this maintenance of exclusion orders remains a key element in our campaign against the terrorists. In my opinion the Irish terrorists are fresh bent on another wave of terrorist type bombings and murder in Britain. The recent evidence of Provisional IRA activity and the catalogue of events I have outlined leave me in no doubt of that.

There is need for everyone to be more vigilant. The terrorists are here and they are determined. They have suffered some frustrations, but their fanatical belief in their cause to force the British security forces out of Northern Ireland with a view to a Marxist militant takeover of both the north and the south of Ireland remains undiminished. We have to provide a wide variety of legal weapons to enable our security forces to quell this continuing terrorist menace. This clause on exclusion orders, Clause 5, which enables suspicious characters to be excluded from our country is but one of our weapons. It is an important one and it has my backing.

3.30 p.m.

Lord Colnbrook

The noble Lord, Lord Mishcon, quite understandably based his case on a lawyer's argument. That was understandable because he is a lawyer. From that point of view I can understand absolutely what he said. The noble Lord invoked the assistance of two other people to support his case. Both of those people were lawyers too. From the standpoint of a lawyer I can understand his argument absolutely. But I am not a lawyer, and I want the Committee to consider this matter from a layman's point of view for a moment.

The Bill is entitled the Prevention of Terrorism (Temporary Provisions) Bill. The idea is to prevent terrorism rather than to catch the terrorists after they have committed some offence, although that is also desirable. But the idea of the Bill is to try to prevent terrorism. One cannot say, if one is trying to prevent terrorism, that it is necessary to wait until a villain has done something and then catch him. We want to try to stop him doing it in the first place. This Bill is one of the ways in which I believe terrorists can be prevented, or at any rate hindered, from carrying out their designs.

The measures in the Bill certainly involve some restriction of liberty. But I do not think that is entirely unknown to us. Here I am venturing on to legal ground and I am open to correction by almost anyone in the Committee. But I think I am right in saying that an accused person brought before a court who is granted bail can sometimes be granted bail on condition that he lives in a particular place or does not visit a particular place. One may say that that person is an accused person. He is, but he is no more than that. He is innocent until he is proved guilty. A policeman may think he is guilty, but until he is proved guilty he is innocent. That is the case in the Bill.

A policeman or a member of the security forces may have good reason to think that Mr. A or Mr. B wishes to carry out terrorist activities. Nevertheless, that person is not guilty. All I am saying is that such a provision is not entirely new in our practice. I direct the attention of the Committee to a provision in Schedule 2 which affects these clauses. Under that provision anyone who is the recipient of an exclusion order has the right of appeal. Admittedly his right of appeal is to the same person who made the order, the Secretary of State, but that right exists and the recipient of an order can seek an interview with the Secretary of State or the official nominated by the Secretary of State and make his case. I have no doubt that the recipient of the order can invoke the assistance of his Member of Parliament. No doubt he would do so if he thought that was reasonable.

So anyone against whom an exclusion order is made has the right to bring the matter forward publicly and complain about it. The Secretary of State is answerable finally, as all Secretaries of State are, to Parliament for what he does. There can be no doubt in the minds of Members of the Committee that there will be occasions when it is perfectly clear that somebody is setting out to commit a terrorist offence. I think particularly of a man who has already been imprisoned for a period of time and who has spent the term of his sentence saying that as soon as he gets out of prison he will commit the same offence again. That phenomenon has occurred on many occasions. When that person gets out of prison he will pick up his old contacts and start to behave in a way which would lead any reasonable man to assume that he meant what he said.

Surely, faced with that kind of activity, where a man says that he is going to come over here and blow up a barracks, this Chamber or anything else, it is sensible to try to stop him. I believe this measure is helpful in that regard. It is not used very widely as far as I am aware. I certainly never used it very widely. I used it only when I was absolutely certain that what I was trying to do would help to stop a crime. If that is what we are about, I believe this is the way to do it.

Lord Harris of Greenwich

I very much share the view of the noble Lord who has just spoken, as I made clear on Second Reading. I agree entirely with what the noble Lord, Lord Mishcon, said, as I am sure all of us do; namely, that the possession of this power in the hands of the Executive constitutes in some cases an infringement of the civil liberties of some people. It would be foolish to deny that.

But we have to consider when debating this measure the character of the terrorist threat. We are well aware in the light of recent events such as the discovery of the bomb factory in south London referred to by the noble Lord, Lord Mason, the attack on the barracks of the 2nd Battalion of the Parachute Regiment and the bomb at Mill Hill, of the fearsome character of the threat to which people in this country, many of them entirely innocent, can be subjected by the Provisional IRA. So that is the character of the threat.

The noble Lord, Lord Mishcon, then went on to say that a number of reports had been submitted to the Government by those who had been asked to undertake them. The noble Lord, Lord Mishcon, referred to the noble Earl, Lord Jellicoe. and rightly said that he recommended the continuance of the power to exclude, although what the noble Lord said in terms of the qualifications entered into by the noble Earl was also absolutely right. The noble Lord, Lord Mishcon, was also correct in saying that Sir Cyril Philips and the noble Viscount, Lord Colville of Culross, had recommended in favour of dropping this power. That is also totally true. But all I can say, with great respect to those two very distinguished gentlemen, is that I disagree with them. I believe that it is wholly right and desirable to maintain this power. I think that because, as I indicated on Second Reading, I agree with the fairly obvious proposition that it is far better to bring terrorists before the courts on specific charges. If they are then convicted, they will be sent to prison for a very substantial period of time.

As the noble Lord has just said, there is another group of people about whom there is criminal intelligence information which makes it quite obvious that they are in Great Britain to carry out terrorist acts. The question therefore arises as to whether we wait to see whether they carry out those terrorist acts. I do not believe that we should or can. I believe that it is quite right for this country, subjected as it is to the threat of massive terrorist violence by the IRA, to continue with this power.

For more than four years I was involved in the examination of exclusion order cases. I know the threat posed by a number of people who were subject to exclusion orders. It is my view that if they had remained in Great Britain they would have carried out terrorist attacks and killed many innocent men, women and children in this country. It was quite clear to me that in those particular cases the power was essential in order to save human life. That being so, I very much support the Government on this question.

Lord Fitt

I have been a bitter opponent of the IRA since it began its latest campaign in 1970. All sections of the IRA have brought nothing but shame, disgrace and terror to Ireland and on occasion to this country. Yesterday afternoon in Belfast one of my closest friends, a retired RUC officer, was foully murdered by a time bomb in his car. I have no reason at all to say anything which might in the slightest help the IRA or hinder action to be taken against it. However, throughout all my years in another part of this building in my opposition to the IRA I always had reservations about exclusion orders, but not for the reasons which have been enunciated here this afternoon.

The noble Lord, Lord Mason, said—and quite rightly so—that the Government should retain the power to exclude terrorists from our country. That is a key phrase: "our country". We have been told repeatedly that Northern Ireland is part of the United Kingdom and that is why the IRA is waging war. I have always resented the fact that people who were suspected of being about to commit a terrorist crime in England, Scotland or Wales could be sent back to Northern Ireland where, as we have seen, it is far more likely that they would be able to commit a crime. The vast majority of the murders and crimes of violence which have taken place have occurred within the six counties of Northern Ireland.

The police in Northern Ireland, the RUC, must have doubts about some of the people who are at present roaming free on the streets of Northern Ireland. Would it be possible under the legislation to exclude them from Northern Ireland and send them to other parts of the United Kingdom? If that were to happen on any scale I am sure that bitter opposition would be voiced in England, Scotland and Wales. I suspect that some of the people who have been excluded from Britain and sent back to Belfast have been engaged in crimes of murder and violence in Northern Ireland.

I should like to see some mechanism, however draconian it might be, however many protests might be raised against it and however many threats might be made that the case would be taken to the European Court of Human Rights, to ensure that someone who is suspected of being about to commit a crime of violence in London is detained in London and not sent back to Belfast. I am not sure what mechanism could be devised but, as someone who has lived through 20 years of the tragedy of Northern Ireland and seen many of my friends lose their lives and many more injured, I feel that Northern Ireland should be placed on exactly the same footing as other parts of the United Kingdom.

Suspected terrorists arrested here are sent back to Northern Ireland. I hesitate to use the term, but it is one that is being used in Northern Ireland: Northern Ireland is used as a dumping ground. There are far too many terrorists in Northern Ireland already and people who are suspected of terrorism in this country should not be sent there to add to that number.

My protest against the exclusion order is not because I do not want to see such people arrested. I want them arrested and detained in this country, whatever protests may emanate from the so-called libertarians. I do not want to see suspected terrorists, or those who may be about to commit a crime, sent back to Northern Ireland.

3.45 p.m.

Earl Ferrers

The Committee will be grateful to the noble Lord, Lord Mishcon, for saying at the outset that his generous contribution to the Marshalled List is merely a device to omit Part II of the Bill, which deals with exclusion orders.

It is right that those powers should be examined with particular care because the arguments are finely balanced. The powers represent a curtailment of freedom of movement, and nobody likes that. The noble Lord referred to the recommendation of my noble friend Lord Colville of Culross that the weapon of exclusion should now be surrendered. The noble Lord asked what was the point of asking for advice if one did not accept it. As he knows full well, in the profession which he follows people sometimes ask for advice but they have the right to reach their own conclusions as to whether to accept it. I believe that the noble Lord, Lord Harris, put the matter very well. He said that he understood the reasoning of the noble Viscount, Lord Colville of Culross, but did not accept it. That is also the government view.

When a respected observer of this legislation makes such a recommendation it is right to pause to consider whether it is proper to retain the power. The Government have weighed the matter very carefully. I would not disagree with some of the objections in principle to exclusion which were raised by my noble friend in his report, and indeed by the noble Lord, Lord Mishcon. Exclusion is a crude and unattractive expedient to have to use. However, our objective is to prevent terrorism. My noble friend Lord Colnbrook put that point very well when he said that this is a prevention of terrorism Bill; it is not a Bill aimed at catching terrorists. If we are serious about the prevention of terrorism there are difficult decisions which have to be faced. The Government believe that exclusion has considerable value in terms of disrupting terrorist operations. I was glad that the noble Lord, Lord Mason, agreed.

I have no doubt that the power has saved many innocent lives over the years. We should be failing in our duty to protect our citizens from terrorism if we abandoned it. The exceptional threat to public safety from Northern Irish terrorism has been demonstrated time and time again, most recently in the discovery of the bomb factory at Battersea before Christmas and the attack on the barracks at Shrewsbury only last week. Against that background it is our belief that restrictions on the movement of a comparatively small number of people are wholly justified. The noble Lord, Lord Mason, said that when these attacks occur it is evident that some people have slipped through the net. I think that he was right. We have to try to ensure that the net is such that as few people as possible slip through it. The Government have a duty to adopt adequate measures to combat terrorism.

Obviously, it is difficult to demonstrate openly the effectiveness of exclusion because of the sensitivity of the information on which exclusion decisions are based. But my noble friend Lord Colville is at pains to emphasise in all his reports that my right honourable friend does not use his powers in an arbitrary and ill considered fashion. There is no question of a person being excluded on the grounds of his or her political views and activities. That sort of information simply does not appear on the applications that the police submit because they know that it is not relevant. The Secretary of State would ignore it. A decision to exclude is based solely on the grounds set out in Clauses 5, 6 and 7—principally, that the Secretary of State is satisfied that the person, is or has been concerned in the commission, preparation or instigation of acts of terrorism connected with the affairs of Northern Ireland.

Exclusion is not a punitive measure; it is in a very real sense preventive. When we debated the exclusion power at Second Reading, I gave noble Lords a specific example of a person who was excluded just before Christmas. Intelligence indicated clearly that the person was deeply involved in terrorist activities. My right honourable friend the Home Secretary was satisfied of a potentially grave threat to our security if no action had been taken.

To take a different type of case, the power is sometimes used against a person who has served a long prison sentence on the mainland following conviction for a serious terrorist offence. In my judgment, if such a person continues, while in prison, to display quite openly his belief in violence and his intentions to become involved again, it would be irresponsible to take the risk of allowing him to move freely on the mainland.

The noble Lord, Lord Mason, said that the exclusion orders were a vital arm in the campaign against terrorism. I believe that he is right. It is sometimes argued that people of the kind I have described should be followed to the point at which they can be charged with a criminal offence. This is unrealistic. It is enormously costly to keep constant surveillance on people who are themselves trained to evade it, and it is an extremely risky approach when people's lives are at stake. We cannot wait until there is a victim before taking action. The surveillance option would put an intolerable strain on the police and could not guarantee the prevention of acts of terrorism. It is because the exclusion power has prevented acts of terrorism that, in the present circumstances, I believe that its continuation is vital. It is the Government's view that these clauses should stand part of the Bill.

The noble Lord, Lord Fitt, was concerned about sending people back to Northern Ireland. He described it as the "dumping" of terrorists in Northern Ireland. The noble Lord has had a great deal of experience of that country. I respect his views on the matter. But the IRA is always particularly anxious to create havoc on the mainland. Over the years, we have seen a succession of attempts by the Provisionals to cause major atrocities on this side of the Irish Sea in the vain hope that that will undermine our resolve to defeat terrorism.

The value of exclusion is that it prevents the committed terrorist from moving to the mainland with that aim in view. It does not by itself make much difference to the problems that are faced day in and day out by the security forces in Northern Ireland. They must of course deal with the main threat from the terrorists in Northern Ireland itself, and that threat unfortunately continues, whether or not the occasional active service unit has been able to slip into Great Britain to carry out some special mission. The Royal Ulster Constabulary does not oppose exclusion. It is well aware of the difficulties faced by the police here in countering an unknown enemy. In the Province, by contrast, it knows where the danger lies and can so often take steps to contain it.

I understand that in the past few years orders excluding people from Great Britain have only rarely been made in respect of people who have lived here for more than a few months. In fact, those people who are returned to Northern Ireland are being returned to their homes.

I do not wish to minimise the harshness of the power, and I have not sought to do so. It does restrict the right to free movement, but is not used to send people into exile. I understand the reason why the noble Lord, Lord Mishcon, tabled the amendments to leave out these clauses. I hope that he will see that, even if he takes a different view temporarily, there are strong arguments to encourage the Committee to retain these clauses in the Bill. I hope that it will see fit to do so.

Lord Mishcon

One could not ask for a more gracious or detailed reply. I hope however that the Minister will accept from me that a question of very definite principle arises here. The principle is not one of defending the people of our country against terrorism; that principle is shared in all parts of this Chamber, as it would be in any civilised assembly.

Perhaps I may turn to the comments of the noble Lord, Lord Colnbrook, whose experience in these matters, known to all Members of the Committee, is treated with great respect. It is not a question of the lawyer looking with a legal eye, as it were, upon matters of this kind which are an invasion of civil liberties. Of course, the lawyer looks at the matter; but so does the layman who wishes to protect civil liberties.

When the noble Viscount, Lord Colville of Culross, looked at these matters—the same was true with Sir Cyril Philips and with the noble Earl, Lord Jellicoe—it was not with the narrow legal vision of the lawyer looking to see whether habeas corpus could be invoked. They all considered the legal and political implications involved. Perhaps I may remind the noble Lord, Lord Colnbrook, of what was said by the lawyer, the noble Viscount, Lord Colville of Culross. He referred to the unpopularity that such measures cause which, can be exploited further to excite criticism". Having obviously referred in the remainder of the report to the authorities that he has seen—politically seen—he says: 1 obtained the impression that the authorities in Northern Ireland would not encounter problems of any substance if exclusion orders were to disappear". Then, talking about the job of the police and the authorities, he goes on to say, not as a lawyer, but as a politician, that, by contrast orders excluding people to the Province do add to the heavy load already borne by the RUC and the armed forces". In his recommendation he comes to the conclusion that for good reasons—not just ordinary legal reasons—exclusion orders should go for the sake of those who are trying to enforce law and order and of those who do not wish to give instruments of propaganda to those to whom we do not wish to give any advantages at all. The noble Viscount, Lord Colville, also refers to our good international name as one of the reasons why he believes exclusion orders should go.

The Minister says perfectly correctly that lawyers should be accustomed to giving advice that is not accepted: I can tell the noble Earl that it has been my experience on many occasions that the client was so well advised as not to listen to what I told him to do. I assure the Minister that this is not a question of a government listening to advice given by one person on one occasion. Its repetition time after time over the last few years means that the Government—and, if I may say so, the Committee—should listen to the voice of experience, the voice of the analyst who was asked to do a job, and the voice of someone who on two occasions has had his report and findings put before this Chamber and who deserves to have them given the consideration that I hope the Committee will give when I now press the matter to a Division.

4 p.m.

On Question, Whether Clause 4 shall stand part of the Bill?

Their Lordships divided: Contents, 193; Not-Contents, 55.

DIVISION NO. 1
CONTENTS
Abinger, L.	Cathcart, E.
Addington, L.	Chelmer, L.
Airey of Abingdon, B.	Chelwood, L.
Aldington, L.	Cholmondeley, M.
Allen of Abbeydale, L.	Cockfield, L.
Allenby of Megiddo, V.	Coleraine, L.
Alport, L.	Colnbrook, L.
Amherst, E.	Constantine of Stanmore, L.
Ampthill, L.	Cottesloe, L.
Arran, E.	Cross, V.
Ashbourne, L.	Cullen of Ashbourne, L.
Attlee, E.	Dacre of Glanton, L.
Auckland, L.	Davidson, V. [Teller.]
Aylestone, L.	De Freyne, L.
Balfour, E.	Denham, L. [Teller.]
Bauer, L.	Dundee, E.
Belhaven and Stenton, L.	Eccles, V.
Beloff, L.	Effingham, E.
Belstead, L.	Elibank, L.
Bessborough, E.	Ellenborough, L.
Birdwood, L.	Elliot of Harwood, B.
Blatch, B.	Elliott of Morpeth, L.
Bonham-Carter, L.	Erne, E.
Borthwick, L.	Ezra, L.
Boyd-Carpenter, L.	Fanshawe of Richmond, L.
Brabazon of Tara, L.	Ferrers, E.
Brightman, L.	Fortescue, E.
Broadbridge, L.	Fraser of Carmyllie, L.
Brougham and Vaux, L.	Fraser of Kilmorack, L.
Bruce-Gardyne, L.	Gainford. L.
Caccia, L.	Gisborough, L.
Caithness, E.	Gladwyn, L.
Caldecote, V.	Gray of Contin, L.
Campbell of Alloway, L.	Greenhill of Harrow, L.
Campbell of Croy, L.	Grey, E.
Carnegy of Lour, B.	Grimthorpe, L.
Carver, L.	Haig, E.

Hailsham of Saint Marylebone, L.	Oppenheim-Barnes, B.
	Orkney, E.
Halsbury, E.	Oxfuird, V.
Hampton, L.	Peel, E.
Hanworth, V.	Pender, L.
Harris of Greenwich, L.	Penrhyn, L.
Henderson of Brompton, L.	Peyton of Yeovil, L.
Henley, L.	Porritt, L.
Hesketh, L.	Raglan, L.
Hirshfield, L.	Rankeillour, L.
Hives, L.	Rathcreedan, L.
Home of the Hirsel, L.	Rayleigh, L.
Hood, V.	Reay, L.
Hooper, B.	Ritchie of Dundee, L.
Howe, E.	Robson of Kiddington, B.
Hunter of Newington, L.	Rochester, L.
Hutchinson of Lullington, L	Rodney, L.
Hylton-Foster, B.	Roskill, L.
Ironside, L.	Rugby, L.
Jenkin of Roding, L.	Sainsbury, L.
Jenkins of Hillhead, L.	St. Davids, V.
Kaberry of Adel, L.	Saltoun of Abernethy, Ly.
Killearn, L.	Sanderson of Bowden, L.
Kimball, L.	Seear, B.
Kimberley, E.	Seebohm, L.
Kinloss, Ly.	Selkirk, E.
Lauderdale, E.	Sempill, Ly.
Lawrence, L	Shackleton, L.
Liverpool, E.	Shannon, E.
Lloyd of Hampstead, L.	Simon of Glaisdale, L.
Lloyd of Kilgerran, L.	Skelmersdale, L.
Long, V.	Slim, V.
Lovat, L.	Somers, L.
Lucas of Chilworth, L.	Stedman, B.
Luke, L.	Stodart of Leaston, L.
Lyall, L.	Strange, B.
McAlpine of West Green, L.	Strathcarron, L.
Mackay of Clashfern, L.	Strathclyde, L.
Macleod of Borve, B.	Strathcona and Mount Royal, L.
McNair, L.
Mais, L.	Strathspey, L.
Malmesbury, E.	Sudeley, L.
Mancroft, L.	Swinton, E.
Margadale, L.	Taylor of Gryfe, L.
Marley, L.	Terrington, L.
Mason of Barnsley, L.	Thomas of Gwydir, L.
Massereene and Ferrard, V.	Thurlow, L.
Maude of Stratford-upon-Avon, L.	Trafford, L.
	Tranmire, L.
Mayhew, L.	Trefgarne, L.
Merrivale, L.	Trenchard, V.
Mersey, V.	Trumpington, B.
Middleton, L.	Vaux of Harrowden, L.
Morris, L.	Warnock, B.
Mottistone, L.	Westbury, L.
Mowbray and Stourton, L.	Whaddon, L.
Munster, E.	Winstanley, L.
Nathan, L.	Wolfson, L.
Nelson, E.	Young, B.
Nugent of Guildford, L.	Young of Graffham, L.
Ogmore, L.

NOT-CONTENTS
Ardwick, L.	Galpern, L.
Birk, B.	Graham of Edmonton, L. [Teller.]
Boston of Faversham, L.
Bottomley, L.	Hatch of Lusby, L.
Bruce of Donington, L.	Irvine of Lairg, L.
Campbell of Eskan, L.	Irving of Dartford, L.
Carmichael of Kelvingrove, L.	Jeger, B.
Carter, L.	John-Mackie, L.
Cledwyn of Penrhos, L.	Kagan, L.
David, B.	Kilbracken, L.
Dean of Beswick, L.	Kirkhill, L.
Dormand of Easington, L.	Leatherland, L.
Elwyn-Jones, L.	Listowel, E.
Ennals, L.	Llewelyn Davies of Hastoe, B.
Ewart-Biggs, B.	Lockwood, B.
Fitt, L.	Longford, E.
Gallacher, L.	Mclntosh of Haringey, L.

Mason of Barnsley, L.	Rea, L.
Mishcon, L.	Serota, B.
Molloy, L.	Shepherd, L.
Mulley, L.	Stallard, L.
Nicol, B.	Stewart of Fulham, L.
Oram, L.	Stoddart of Swindon, L.
Paget of Northampton, L.	Taylor of Blackburn, L.
Peston, L.	Taylor of Mansfield, L.
Pitt of Hampstead, L.	Underhill, L.
Ponsonby of Shulbrede, L. [Teller.]	Wallace of Coslany, L.
	Williams of Elvel, L.
Prys-Davies, L.

Resolved in the affirmative, and Clause 4 agreed to accordingly.

Clauses 5 to 10 agreed to.

Clause 11 [Assisting in retention or control of terrorist funds]:

4.10 p.m.

Lord Mishcon moved Amendment No. 1: Page 7, line I I, after ("of') insert ("knowing or suspecting them to be terrorist funds").

The noble Lord said: With permission, I shall take Amendment No. 2 with this amendment. I am addressing the Committee on the question of crimes associated with the control of terrorist funds. There is no division in the Committee on the necessity, indeed the wisdom, of dealing with terrorist funds under the Bill with the object of seeing that they are forfeited if they are shown to be terrorist funds. However, an extraordinary position is created by Clause 11, and I refer the Committee to it. It deals with a vital principle of criminal law and turns it on its head. If I limited my arguments to that, the Committee might say that it deserves to be stood on its head because we are dealing with an extraordinary matter. I propose to tell the Committee how in a similar situation fairly recently the Government were persuaded to deal with the matter without turning the law on its head.

I refer the Committee to Clause 11(1). The Committee will read that, A person is guilty of an offence if"- I am reading it as the Bill now stands he enters into or is otherwise concerned in an arrangement whereby the retention or control by or on behalf of another person of terrorist funds is facilitated, whether by concealment, removal from the jurisdiction, transfer to nominees or otherwise". The Committee may conceive that people such as banks can be misled into carrying out one of those things mentioned in Clause 11(1) without the knowledge of guilt.

Where does the onus of proof lie in relation to an offence of that nature? I refer the Committee to subsection (2), which states: In proceedings against a person for an offence under this section it is a defence to prove that he did not know and had no reasonable cause to suspect that the arrangement related to terrorist funds". The Committee will see that the onus goes away from the prosecution on to the defence, which has to prove that the defendant did not know and had no reasonable cause to suspect that the arrangement related to terrorist funds. That is an onus that I seek to remove in the proper way, I hope the Committee will agree, by inserting in the first line of subsection (1) after the word "if" the words "knowing or suspecting them to be terrorist funds" and deleting subsection (2).

I said that I hoped I might not need to continue the argument on where the onus ought to lie, though in putting that argument before the Committee 1 am sure there will be sympathetic ears when l say that we must not lightly alter the whole burden of the principles of our criminal law which lie upon the prosecution to prove matters beyond reasonable doubt. We are dealing here with very serious crimes. I said earlier that on a similar matter the Government had been persuaded that this was the wrong formula. The formula that I humbly put before the Committee is the correct one, using the exact words that I have used. That similar matter was on the occasion of the Drug Trafficking Offences Act 1986. The Committee may remember that when that Bill was before noble Lords we dealt with the forfeiture of drug moneys and drug profits. With complete unity we decided on all sides of this Chamber, again as we have decided here, that funds should be forfeited. But when we dealt with people who were handling those moneys or assisting we were very careful to see that the onus lay in the proper quarters.

This was not without argument. There was a protest at the original words, which were similar to the words now in this Bill. The protest was made from another place and by other people; namely, a Member of Parliament and the British Bankers Association, which authorised me to say that it too wants this amendment badly. They protested under the Drug Trafficking Offences Act. Then a letter dated 15th May 1986 came from Mr. David Mellor, who was then Parliamentary Under-Secretary of State at the Home Office. This is what he said in answer to the protest: Having reconsidered the matter at length, I came to the conclusion that the objective test could be removed, as you suggest, provided that suspicion is retained as an ingredient of the mens rca. Under this formulation the prosecution will have to prove that the defendant knew or suspected that the person he was assisting was or had been a drug trafficker; it will not be sufficient to show that he ought to have known or suspected".

The Committee will appreciate that this is exactly what the present Bill does. It says that it will be sufficient to show that he ought to have known or suspected. Given that we are removing the objective test, I think there is a strong case for retaining suspicion instead of belief as the threshold of criminality: this makes it clear that a person cannot escape conviction by turning a blind eye once his suspicions are aroused. It will remain a defence, of course, for the defendant to prove on the balance of probabilities that he did not know or suspect that the transaction related to the proceeds of drug trafficking, or that he did not know or suspect that the effect of the arrangement would be to assist the trafficker to retain the benefit of such proceeds". Exactly the same argument took place on the Drug Trafficking Offences Bill. The Government then agreed after argument and following representations by the Law Society and by the British Bankers' Association among others that the words should not be as they occur in the Bill now. The amendment was made to comply in exactly the same way with the formula that I have put forward. The same plea comes to the Committee from the British Bankers' Association to adopt the wording of the amendment and from the Law Society and many other people who would otherwise be oppressed by the present wording of the Bill. I beg to move.

Earl Ferrers

The amendment of the noble Lord, Lord Mishcon, on the face of it seems very reasonable and his explanation of it makes it seem even more reasonable. I understand why he has tabled it. He said that the Bill as drafted turns the law on its head.

There are two issues which we have to consider here: first, what one might call the nature of the mental element which is required in Clause 11; and secondly, whether the burden of proving that mental element should be on the prosecution or on the defence. I shall deal, if I may, with each of these questions separately.

I recognise that the inclusion of the objective test of "having reasonable cause to suspect" departs from the wording in both Section 10(2) of the 1984 Act and Section 24 of the Drug Trafficking Offences Act 1986 and it does so deliberately.

The noble Lord, Lord Mishcon, quoted from a letter from Mr. Mellor, a Minister of State at the Home Office some years ago, in defence of his argument, which he was perfectly entitled to do. However, these circumstances are different. Dealing with terrorism is a very particular and special case which requires particular and special methods.

The 1984 Act and the Drug Trafficking Offences Act 1986 contain a subjective test of "knowing or suspecting". It is not without very careful thought that we have concluded that there is a need to go further, if a serious attempt is to be made to tackle the finances of terrorist organisations. The parallel with the laundering of drug money is not entirely apt. I believe that terrorism is different. We have to take account of the special circumstances of Northern Irish terrorism and the climate of fear which terrorism creates and which the terrorists aim to generate. Much of the IRA's fund-raising is open for all to see. We have all heard of the building site extortions but, as I said at Second Reading, there are other forms of racketeering too, some of them equally blatant: the control of pubs and clubs, the pirating of videotapes, the manipulation of estate agencies. It is well known in the Province where the Provisionals' money comes from.

It was against this background that we believed it would be frankly inadequate to allow a person to protest that he did not "know" what was going on or that he did not "suspect" the money was for terrorist use. Someone who is caught up in a financial transaction which is assisting the terrorists will frequently have a very good idea of what is going on. The pressure on him to deny that he knew or suspected anything untoward may be very great.

1 do not for one moment wish to underestimate what it means for the ordinary law-abiding person to go to the enforcement authorities with information. But unless people come forward, the rackets cannot be broken. We must ensure that it is in a person's interest to act where there is reason to do so. Members of the Committee will appreciate that, unless we have a test of "reasonable cause to suspect", it will be all too easy for a person to turn a blind eye, knowing that it would be extremely difficult for the prosecution to prove that he actually suspected terrorist involvement. How can you prove what is going on in another person's mind?

Those arguments apply to the banks, to solicitors and to other professional people as well as to the wider public. As the Committee knows, the Government have been generally assured of the cooperation of the financial community in London and in Belfast for the measures which we wish to take. My right honourable friend and I are enormously grateful for their positive response. I know that the banks themselves recognise that they have a duty to satisfy themselves about the sorts of people with whom they deal.

If a bank has doubts about a transaction or a particular customer, the police should be informed so that further investigations can be carried out and, if necessary, a restraint order sought against the money or the property concerned, pending the bringing of charges. The test of "having reasonable cause to suspect" in fact reflects in the legislation the standards which the banks have set for themselves. Of course we do not want to see prosecutions in cases of genuine carelessness or ignorance on the part of junior staff. We believe that a person who acts in good faith is adequately protected in Clause 11(2), in which it is a defence: that he did not know and had no reasonable cause to suspect". I believe that that is a reasonable defence.

With regard to the burden of proof, which the noble Lord, Lord Mishcon, engagingly described as turning the law on its head, I recognise that in Clause 9 the burden of proof is on the prosecution, but the Clause 11 offence is different because it is further removed from the actual terrorist activity for which funds are to be used. The offence here is not that money is being made available to the terrorist, which is outlawed under Clause 9, but that it is being looked after for him. We commonly use the expression laundering to describe this sort of activity. The money is placed where it cannot easily be connected with the criminal activity from which it is derived or for which it will be used. The traces are deliberately and carefully covered up. The money might, for example, be invested in an otherwise perfectly legitimate company—an estate agency, a club or a hotel. This is bound to create difficulties for the prosecution in proving that the defendant knew or that he had reasonable cause to suspect that the arrangement related to terrorist funds. But it will be relatively easy for the defendant, if he is innocent, to show that he had no reason to know or suspect that he was caught up in an arrangement which was benefiting terrorists.

I understand that there are genuine concerns about how these provisions will work in practice. It is, as I have said, not our intention to see law-abiding members of the general public or the financial community prosecuted for inadvertence. But we have had to cast the offence in fairly strong terms in order to ensure that those who knowingly assist the terrorists are not able to hide behind a pretence of ignorance. That is an important provision and I hope that the Committee will see the force of that requirement.

The Earl of Selkirk

I have listened with great care to what my noble friend said and I appreciate the difficulties into which he may have to enter in testing what people do or do not know. Many of us have passed examinations with greater or lesser success and in them we show what we know. However, perhaps I may ask him how one tests what someone does not know.

In subsection (2) one has to prove what one does not know. To me that seems not only impossible but also unreasonable. I ask my noble friend to look carefully at this. Of course we want people to examine closely what they are entitled to do.

This provision applies to banks, to stockbrokers, to accountants and perhaps to lawyers. It applies to a great range of people, any of whom may be subject to examination to find out what he does or does not know. I believe that that is a very unreasonable proposition to put forward. I understand what my noble friend said, but can he not find something rather more sensible to put into that clause instead of trying to test what someone does not know, which is impossible? I find that very difficult to understand. A person has to prove that he did not know something. How is he to do that? I ask my noble friend to think very carefully to see whether he cannot find something in this context which is fairer and easier to work.

Earl Ferrers

Of course I shall take great notice of what my noble friend says. The point about this subsection is that it is a defence for someone to prove that he did not know. If one is accused of something but did not have the slightest idea that what one was doing was having a certain effect, it is a defence to say, "I did not know". This is a distinction from the person who is accused of doing something and has as his defence that he had no reasonable cause to know. If you can say, "I had no reasonable cause to know that", you can get away with things.

The reason why we wish to keep these words is that it is a perfectly legitimate defence for a person accused of, for instance, dealing with money which is going to terrorists to say, "I did not know that that was happening". That is very different from a person being able to say, "I was not aware that that was happening and therefore I am innocent". If you can prove to the court that you did not know at all, that is a reasonable defence. Certainly I will look at my noble friend's point, but I do not see on the face of it that it creates that much of a problem.

4.30 p.m.

Lord Boyd-Carpenter

As between the two noble Earls, I found myself in agreement with the Minister and I think my noble friend Lord Selkirk, very conscientiously, has somewhat exaggerated the difficulty of proving the lack of knowledge which is required by the subsection. As I understand it, someone who desired to rest on this defence would go into the witness box and say on oath that he did not know. He would then be cross-examined and there would be put to him various circumstances which the prosecution might thick should have made him known or suspect. He would reply and indicate whether he knew of those circumstances or whether he interpreted them differently.

This is something that happens very regularly in the courts and it does not seem to give rise to any great difficulty. He would simply have to satisfy the jury that his defence that he did not know was genuine. I hope my noble friend will leave the subsection as it stands. With the enormous difficulty there obviously is in tracing these funds, some such provision as this is necessary.

Lord Campbell of Alloway

Very briefly, I was going to make the same point as my noble friend the Minister and to suggest respectfully that he leaves the clause as it stands. But there is one aspect which ought to be brought out. He has to prove that he did not know. All right, that is the burden. But what is the standard of proof? The standard of proof is not that he has to prove beyond all reasonable doubt. That is the burden on the Crown. All that the defence has to prove is that on the balance of probabilities, the civil burden, he did not know. As I see it, there are no problems and in the very special circumstances no manifest injustice. For those reasons, I join forces with my noble friend Lord Boyd-Carpenter in suggesting that there are no serious problems with this clause.

Lord Nathan

May I emphasise, in supporting the amendment, the other words to which the noble Lord, Lord Campbell of Alloway, did riot refer and which worry me most? The words are "no reasonable cause to suspect". It is not that he did not suspect. The burden of proof there is the same as the burden of proof relating to not knowing. But this introduction of the words "no reasonable cause" strikes me as an entirely new element.

That leads me to the only other point that I should like to mention. Is it really suggested that there is a suitable distinction between drug trafficking and money derived from it and money derived from terrorism? I listened with great attention to what the noble Earl the Minister said and of course I respect his view with regard to terrorism. But I doubt whether we or the public appreciate a difference of such importance between the provisions of the Drug Trafficking Offences Act and the Bill now before us. The two want to go in parallel and the distinction which the Minister seeks to make between the two I found rather unconvincing.

Lord Campbell of Alloway

With the greatest respect to him, the point made by the noble Lord, Lord Nathan, is wholly misconceived. There is no problem at all. The defence has to prove either that he did not know or that he had no reasonable cause to suspect. In either event, the standard of that proof is that on the balance of probabilities such was the case, and again I respectfully suggest that the clause is proper in the circumstances as drafted.

Viscount Caldecote

Perhaps this is a case where the details should be left to the very eminent legal Members of your Lordships' House. But may I ask the Minister what I might call a common sense question? Is it not a fact that if the Bill remains as it is drafted it gives a greater incentive to financial institutions to inquire in cases where they might be committing an offence to make sure that they are not gong to commit an offence when a new account is opened or something like that? If the amendment is passed, will it not remove incentives to financial institutions to take great care that they are not involved in an offence and thereby helping terrorists?

Earl Ferrers

I wonder whether I might answer that point first. My noble friend Lord Caldecote is quite right. It is an imposition on the banks—inevitably it is—not in order to create difficulties for the banks but in order to be able to get hold of funds which are used for terrorism. In order to do that the Bill places obligations upon the banks greater than they have at the moment. I can understand it if the banks feel that they do not particularly want to accept those obligations—if that is what they do feel. But if the result of this is that banks tighten up their procedures and, as a result of that, terrorists' funds are found, that can only be commendable. That is the reason why my noble friend Lord Caldecote is right.

To come back to the amendment moved by the noble Lord, Lord Mishcon, if you insert the words "knowing or suspecting them to be terrorist funds", anyone can say, "I did not know that they were terrorist funds", and be free of the obligation. I did not wish to imply to my noble friend Lord Selkirk, or indeed to anyone else, that it was my desire to take his advice and change the wording. What I meant to intimate was that I will certainly consider what he said in case I had not understood it correctly. It is my view that the words are correct for the reasons which my noble friends Lord Boyd-Carpenter and Lord Campbell suggested, because in proceedings against a person for an offence it is a defence to prove that he did not know and had no reasonable cause to suspect. That ought to be plenty of protection for the innocent person not to be convicted.

My noble friend Lord Nathan said that he did not accept the argument about drug trafficking and terrorism being very different. There is one significant distinction and that is that the Drug Trafficking Offences Act is already in place. What we are seeking to do now is to make the provisions of the Bill stronger than that for the reasons which I have given and because terrorism is particularly offensive due to the fear, the distress and the damage which it causes.

Lord Harris of Greenwich

There is much fear and distress as regards drug trafficking too. I agree with the noble Earl in his attitude to the terms of this amendment, but I am bound to say that I agree with the substance of what the noble Lord, Lord Nathan, said, although I come to a different conclusion.

I very much regretted, and still regret, that the Drug Trafficking Offences Act did not go a great deal further, as some of us advocated at the time. The noble and learned Lord, Lord Denning, and I attempted to persuade the Government to make that Act more rigorous, but the Government declined, no doubt as a result of advice which they received from the Treasury and the joint stock banks. However, it certainly would not lead me to the conclusion that therefore we should oppose this particular proposition.

Let us consider the situation. Someone goes to another person and asks him to look after, keep, harbour—call it what you will—the sum of £10,000 in cash. Subsequently that person is arrested on a charge under this clause of the Bill. It does not seem to me unreasonable, given the problem with which we are confronted in Northern Ireland, to make that defendant prove to the satisfaction of the court that he did not know and had no reasonable cause to suspect that the arrangement related to terrorist funds.

I would be extremely nervous if this amendment were to be carried because I believe that it would weaken the Bill considerably. Therefore, I hope that the noble Lord, Lord Mishcon, will not press the amendment. As I have indicated, speaking for myself I cannot support it.

The Earl of Selkirk

I should like to draw my noble friend's attention to this point. It is a question of crime. The proof therefore has to be beyond reasonable doubt, not a balance of probability. If the noble Lord made this the balance of probability, that would be more sensible. Perhaps, as the noble Lord said, he will look at this point in due course.

Frankly, it is extremely difficult to prove what someone does not know. There can be an examination but it is extremely hard to prove. The man is guilty until it is shown that he does not know. I believe that that is practically impossible to prove.

Lord Trafford

Surely the argument here is not so much a legal one, which seems to be agreed; namely that there is a difference between the Drug Trafficking Offences Act and this Bill. I share the view of the noble Lord, Lord Harris, that it is a pity that the measure is not in the Drug Trafficking Offences Act, for the same reason that it is an equally unpleasant and offensive activity.

Surely, it is a practical matter. It seems to me that if the amendment is carried there is a considerable possibility that certain types of offender will not be brought to justice. For example, I refer to the protection rackets. Under the Bill it may be difficult for a man subjected to a protection racket to say that he did not know, but it might be much easier for him to escape if the burden of proof in those circumstances rests with the prosecution.

I would be the first to agree with the noble Lord, Lord Mishcon, that when one turns the normal principles of criminal law upside down, one should take great care. It is right and proper that Parliament should consider that at great length, which we have been doing and I do not wish to prolong the debate. However, it seems that in two particular categories—there may be others, but drugs in particular and certainly this one—there are groups of people who would escape justice. There are groups of people who would not come forward. There would be groups of people who would be, if you like, acquitted unless the clause as it stands goes through. There would be far too much escaping. The teeth of this part of the Bill would have been drawn; although I understand all the theoretical arguments which have been put forward against it.

4.45 p.m.

Earl Ferrers

Perhaps I may make one short intervention. My noble friend Lord Selkirk again expressed his concern about the defence. He was concerned that the defence has to be beyond reasonable doubt and how could one know; and that this is a criminal law with which we are dealing. My noble friend Lord Campbell of Alloway said that the defence was the balance of probabilities.

My advice is that my noble friend is right, and that it is the balance of probabilities as opposed to a defence that it is beyond reasonable doubt. It is an argument for the defence to show that it is the balance of probability.

Lord Mishcon

It is with some sorrow that I rise to answer the debate, especially in regard to the arguments advanced by the Minister. I heard with deep regret—and I say this frankly—the observations of the noble Lord opposite who took the view that it did not seem to matter in regard to criminal law if one reversed the process; that it was perfectly easy and why should a person not go into the witness box and prove his innocence. I wonder how far the noble Lord, Lord Boyd-Carpenter, would go with that argument. I ask the noble Lord to believe that I say with sincerity that I was surprised to hear him make those observations with his legal background, of which I am sure he is properly proud.

I said when we were dealing with the Drug Trafficking Offences Act, and I say it now, that I went along with the provisions of that Act, and was happy to do so on behalf of the Opposition. But I said (I used words in 1986 that I have reminded myself of and, indeed, the British Bankers' Association reminded me) that we must be very careful that, in upsetting a principle which is sacred in our law—and—we are dealing with criminals, as has been pointed out-—we do not use it as a precedent.

What we have here is a precedent that was unusual in the Act as it went forward. We are now adding to that precedent in a way which is contrary to our principle that it is the prosecution's job to prove a criminal offence.

The Minister endevoured to differentiate between the two types of vicious funds—I call both vicious funds as I see no difference between the two—and I thought he was trying to prove to the Committee that in regard to terrorist funds everybody jolly well knew the tricks they were up to and the way in which such funds are concealed. I did not understand that in contrast to drug trafficking. The drug traffickers are among the most cunning people imaginable, and a wretched crowd they are. I did not know that terrorists were more subtle than drug traffickers in regard to the funds they collected and administered.

I am thinking not of the shady person dealing as an agent or arranger, or whatever he may be, but of the bank clerks and what the banks and other people are supposed to do. It is all very well for the noble Lord, Lord Harris—I am sure he did not mean it unkindly—to agree with the observation made by the noble Lord opposite, who also made the point with all sincerity, that we should make them all a jolly sight more careful.

The banks in this country—I say this from theseBenches—do not consist of criminals; nor do they consist of bank clerks who are as wise as the noble Lord. Many of them are humble folk. What are they supposed to do under the provision that we now have? The view is put forward that they ought to have suspected and that they have to prove they did not know. A perfectly respectable bank clerk is to be told "You go into the witness box. You allowed this arrangement to take place. You prove to the satisfaction of the jury that you did not know or did not have reasonable cause to suspect'''. It is that person I have in mind. It is because of that possibility that our criminal law contains the principle that it does. It is not an academic question but a question of justice. I say this from these Benches-do not consist of criminals; nor do they consist of bank clerks who are as wise as the noble Lord. Many of them are humble folk. What are they supposed to do under the provision that we now have? The view is put forward that they ought to have suspected and that they have to prove they did not know. A perfectly respectable bank clerk is to be told "You go into the witness box. You allowed this arrangement to take place. You prove to the satisfaction of the jury that you did not know or did not have reasonable cause to suspect'''. It is that person I have in mind. It is because of that possibility that our criminal law contains the principle that it does. It is not an academic question but a question of justice.

I cannot understand the Minister's argument when he says that it is so darned obvious—if I may be forgiven that expression—that everybody knows how these people use their funds. If it is so obvious the prosecution will have a very easy task. All it has to say is this. "Look at these facts that we prove. It must have been obvious and it must have been done knowingly". That is the evidence of the prosecution, and those are the circumstances. Surely he must have known". I say in my own positive and subjective statement, "knowing or suspecting them". If all this is so obvious, no judge is going to rule that the defendant has no case to answer. He will have to go into the witness box. But at least the prosecution will have shown that the defendant should have known and suspected with that onus on him.

Once we begin altering the criminal law in that way with one exception after the other—first, drug offences and now an even more severe onus as regards terrorist funds—where will we end up? As I said before, it is not just people whom the Committee would expect to argue on academic grounds. It is not just the Law Society or the Bar. These are associations of bankers who have said that it puts an impossible burden on them. They say, "what are we supposed to do by way of arrangements with all our branches and bank clerks?"

I have already tested once the opinion of the Committee. I do not wish to lose the Committee's patience, when I may have to do it again. I merely ask the Minister to consider what has been said in this debate. Will he also remember what his colleague said, not years ago but only in 1986; namely, why he agreed that the wording had to be altered in the way I have suggested. In his consideration of the matter he may be kind enough to communicate with me on his final decision before the Report stage. I shall then know whether I should put this matter before the Chamber again at the Report stage. In the meantime, with the leave of the Committee, I withdraw my amendment.

Amendment, by leave, withdrawn.

[Amendment No. 2 not moved.]

Clause 11 agreed to.

Clauses 12 and 13 agreed to.

Clause 14 [Arrest and detention of suspected persons]:

Lord Mishcon moved Amendment No. 3: Page 9, line 35, leave out ("The Secretary of State") and insert ("A justice of the peace (or in the case of Scotland a justice of the peace or a sheriff) on the application of a constable and on being satisfied that it is proper to do so").

The noble Lord said: We have come to an important amendment and I hope that the Committee will not be impatient at again hearing my voice moving it. At Second Reading we dealt with the problem of what one may call in shorthand the Brogan case. Perhaps I may remind Members of the Committee what that was about.

There is a provision in the Bill that after 48 hours, by an executive act someone arrested and not yet charged can be detained up to a further five days. The case of Brogan was looked at by the court that looks after human rights. We are a signatory to that convention. The court recognised the very special circumstances in which we try to operate against terrorism. It did not say that it was wrong in any circumstances that the period of detention should be extended without a charge being brought for that length of time. It said that it should not be by an executive act, but by a judicial act.

There is the right to derogate from the convention in certain circumstances: perhaps I may again use shorthand; I do not believe that it is an inaccurate statement. The right of derogation exists where the member country signing the convention can show that there is a danger to the whole population of the state that signs it. I therefore speak with some hesitation about the desirability of derogation only because it seems to be an announcement to organisations that we rightly hold in absolute hatred that the result of their operations has been to put the whole population of our country in some fear and terror. That does not seem to be a very desirable situation. I can well understand that we may have to derogate.

There is a difficulty as regards this matter and I am the first to understand it. Normally if one goes before a judicial authority the difficulty is that the detaining power (the police) have to give reasons, which are open to the other side, as to why they want the period of detention prolonged without a charge being preferred. I am not saying that I entirely support it, but I can well understand the argument on behalf of the Government that that is an undesirable burden to put on the police as the detaining authority. In giving the reasons for further detention in order to examine somebody, matters may well be revealed which the security of the nation would dictate should not be revealed.

In this amendment I have tried not to go that far. I appreciate that the Brogan decision and the wording of the convention may mean not just that the matter has to go before some judicial authority but that there should be the right of the detainee to go before that authority either himself or through his lawyer and argue the matter, and be given the reasons for the further detention. I am taking it for granted at the Committee stage that that may be right in order to meet all the requirements of the convention.

In order to escape from the morass that that might lead us into by way of debate I decided—it is the creature of my own humble mind—to put an amendment before the Committee so that in view of the unhappy situation we are in because of the Brogan case, all the issues can be properly debated. I have said "Look, before that extension is granted you have to go before a justice of the peace". That would be the case in the United Kingdom except for Scotland where it would be a justice of the peace or a sheriff.

The application will be made by a constable or someone of superior rank and the justice of the peace has to be satisfied on what he learns from the police officer that it is proper to grant the extension applied for. I have said it before, but I realise at once that the answer may be that it does not completely comply with the requirements of the convention. It may not completely satisfy Brogan. But we shall have introduced a judicial process as against an executive one, without the disadvantage of the detainee having the right to go before a justice of the peace or to know the grounds. We shall have introduced a judicial process whereby the justice of the peace must be satisfied that it is a proper thing to do.

If we derogate then from the convention, at least it is shown that we have done our best to comply with the spirit of the convention without walking into the dangers, into which we would have to walk in the special circumstances of Ireland and terrorism generally, of having to divulge to the detainee the grounds on which we have made that application.

The purpose of the amendment is to test the ground and to try to be helpful by making a sensible suggestion which puts us in a proper and justifiable position before the European Court. It may evoke other thoughts which in the course of the proceedings on the Bill may help us to get over Brogan. I beg to move.

5 p.m.

Lord Colnbrook

The noble Lord was good enough to say that he put forward the amendment knowing that it would not meet all the requirements which he believes ought to be met. I think he is right on that point. However, before coming to that, I should like to point out that there are two things wrong with the amendment. First, he suggests that the extension order, as it is generally known, should be signed by a justice of the peace rather than by the Secretary of State. I cannot believe that that is a good idea.

My wife is a justice of the peace. She is sitting as a justice at this moment. I do not think that she would consider herself to be the right person to give the executive order to detain someone in these circumstances for five days. I am sure that the same applies to other justices of the peace. They cannot know as much about the police and the counter-terrorist activities of the security forces as the Secretary of State can know. Imagine a justice of the peace being confronted by a constable—I shall come to the constable in a moment—who says, "Please sign this order to let me keep Mr X in custody for another five days". The justice would not know what to do. I am sure that on reflection the noble Lord will agree that a justice of the peace is not the right mechanism for this purpose.

Secondly, I should like to draw his attention to another matter. The amendment refers to "a constable". When it fell to me on occasions to sign extension orders, I would never do so at the request of a constable. If my memory serves me right, I insisted that an application was made by someone of the rank of chief superintendent or above. I am not saying anything against constables—they are fine people—but I do not believe it is right that a constable should make the decision that someone be detained for more than the 48 hours. The constable should seek permission so to do.

The reasoning is quite simple. First, a chief superintendent or higher ranking police officer has a great deal more experience than a constable. Secondly, the Secretary of State—and now I draw on my experience—will know the chief superintendent, the assistant commissioner, the assistant chief constable, the chief constable or whoever it may be, and will be able to judge for himself whether or not that application and the reason given is good. Not all police officers are the same. Some may be more inclined to say, "We have this man. Let's try to keep him in a little longer to see whether we can get something out of him. We shall try to make up some reasons that the Secretary of State will accept". One gets to know that; so one probes more deeply into the reasons. One can send for the man's superiors and ask them to come and argue the case. One cannot do that with a constable, and on reflection I do not believe that the noble Lord will feel that this is precisely the right wording.

Perhaps I may come briefly to the difficulty caused by the judgment of the European Court of Human Rights. In this respect I confess that I do not know the answer. The Government have said that they need time. My noble friend said this at Second Reading, and it was said in another place. Time continues to go by, and I do not think that they have arrived at a conclusion yet. I am sorry to have to tell the Committee that I cannot advise on what precisely that conclusion ought to be. But the time cannot be allowed to run on indefinitely. We shall find ourselves in considerable difficulty with other countries, let alone with the court itself, if we are not able to bring forward within a reasonable period some compromise—because compromise it must be—which will satisfy all parties.

We have a problem. The Bill, I hope, will become law next month. If it does not, we shall have a gap which we cannot afford to have. From what I have heard so far in the debate we may not have solved the problem within that time. The Bill will become an Act as it is presently drafted. If my noble friend and his colleagues in the Government are not able to produce an alternative form of words to meet this difficulty before the Bill goes on to the statute book, I hope we can be given an undertaking that when they have that form of words they will bring forward amending legislation. If they do not, the wording will remain on the statute book forever because the Bill has no expiry date. It can be renewed only by Order in Council which cannot alter the wording. I hope my noble friend will give an undertaking to bring forward amending legislation as soon as possible. In the meantime, the wording should stay as it is.

Lord Harris of Greenwich

The Committee is indebted to the noble Lord, Lord Mishcon, for raising the issue. As I and others indicated at Second Reading, the judgment of the European Court is a matter of the highest importance. I agree with everything the noble Lord has just said. I recognise the Government's problems in coming to a decision. There are some formidable difficulties. We are in the unhappy position that we have either to accept or reject the Bill. At the very least I would hope that if the Government cannot give an undertaking that the Secretary of State will come to a decision on the matter before the Bill leaves this Chamber—I suspect the answer to that question will be that he cannot—the noble Earl will be able to give an absolute and categoric assurance that before the Summer Recess the Secretary of State will make a Statement in Parliament to make clear the Government's decision on the matter. That is the least we should ask for.

I agree with what the noble Lord, Lord Colnbrook, has just said. I am sure the noble Lord, Lord Mishcon, will recognise that, when one has a bash at trying to get the matter right by means of an amendment of this character, difficult issues are involved. I am doubtful whether, if a police officer arrived on the doorstep of a county magistrate in Wiltshire and asked him for his agreement to extend the detention beyond 48 hours, the justice of the peace would have the faintest idea what to do. While I do not believe the terms of the amendment are right, the issue which the noble Lord has raised is fundamental. I hope that the noble Earl, Lord Ferrers, will be able to help us in the matter.

Lord Campbell of Alloway

The amendment introduced by the noble Lord, Lord Mishcon, raises a crucial point for discussion. As I happen to agree with everything my noble friend Lord Colnbrook has said, I can be very brief.

First, the amendment raises practical difficulties of implementation which means that in its present form it would not be acceptable for the reasons given by my noble friend. But the principle behind the amendment, as my noble friend pointed out, has to be seized by the Government. Some form of judicial process has to be injected in order that there should be conformity with the judgment of the European Court of Human Rights so as to enable Her Majesty's Government to comply with treaty obligations as interpreted by that designated court. It is a delicate problem for this reason. Of all the signatory states to the convention which have ratified, the United Kingdom is the only state that has no written constitution and no administrative court in which misuse or abuse of power on the part of the Executive—the Secretary of State—may be reviewed.

As Members of the Committee will know, the Court of Human Rights will not entertain jurisdiction unless and until all the vested procedures have been exhausted. The reason this is part of a much bigger problem—the problem raised by the noble Lord, Lord Mishcon—and the reason there are so many cases before the European Court of Human Rights to which the United Kingdom Government are responding is that there is no administrative court to act as a sieve or a filter. Moreover, the particular case in point, which gives rise to the decision in the amendment, would have been caught in such a filter.

It is not to the point to say that we do not accept the merits of the judgment, or that we are dissatisfied with our domestic regime, because that produces a situation which is wholly unacceptable. Indeed, there are only two options. One is for Her Majesty's Government to refuse to accept the decision and negotiate a protocol of derogation—which must surely be, as I am sure my noble friend Lord Colnbrook will agree, a measure of the last resort which offends against all international comity. The other is to accept the decision and arrange our procedures in conformity with the reasoning of the judgment. Therefore, as my noble friend Lord Colnbrook said, it is a matter—clearly it may be difficult to achieve in the drafting of the Bill—which must be done either in this Bill or in some other form of legislative structure, be it an order, a regulation, or whatever.

5.15 p.m.

Lord Fitt

This clause, allied as it is to the Brogan case, has received tremendous publicity in Ireland. It did so because it is of tremendous propaganda value to the men of violence. There are two interested elements in relation to the clause. The first is the civil libertarians. They are people who are genuinely and sincerely concerned about the freedom of the individual. They want to restrict the powers of the Executive in relation to the detention of an individual for a long time. I can quite understand that those people are sincerely motivated in attempting to restrict the Executive's power on the detention of an individual.

However, there is another element which is exploiting the Brogan case both here and in Europe. They are people who are actually engaged in violence. It is obviously in the interests of paramilitary organisations to restrict detention to the bare minimum of time. In fact, if they could get away with it, they would not want any of their members detained for longer than five minutes, because the longer detention goes on the greater is the possibility that the person detained and being questioned will admit to having taken part in a crime.

In the final analysis the people who make the arrest and detention in the first place are the police; in other words, the arresting authorities. A former Secretary of State for Northern Ireland has said that he was faced on occasions with the situation of having to grant a further five days' detention at the end of two days. I do not think that he or any Secretary of State for Northern Ireland, given the evidence of the police when they say that they wish to have an extension of five days, would say, "No, you can't have it". I cannot see any Secretary of State saying that to the police.

In the same way, I could not see a judge, especially a JP who is not terribly aware of all the provisions contained in the Prevention of Terrorism (Temporary Provisions) Act, when faced with a policeman who has given him the evidence and said, "We have interrogated this individual; we are not quite happy about the response we are getting and we want to have another five days", saying in reply, "No, you can't have it".

Lord Colnbrook

The noble Lord referred to me and said that he could not see me or anyone else, on being faced with a request for an extension, saying, "No, you can't have it". I must tell him that I did.

Lord Fitt

I should like to know on just how many occasions that happens. I am quite certain that in the vast majority of cases the Secretary of State, when faced with the evidence of the arresting authorities, the police, would not want to go against their wishes. Indeed, the wording in the amendment is, "a constable". A constable is part of the arresting authority in this case.

I can see the difficulty the Government are placed in because the IRA and other paramilitary organisations will make the maximum propaganda issue out of this matter. They will shout about the freedom of the individual and the European Court of Human Rights and all the rights which are attached to the individual from international organisations. Yet those same paramilitary organisations are breaking every rule in the book and are contravening every law that was ever made for the protection of the individual.

As I see it, the arresting authority feels justified in making the arrest in the first place which leads to the original two days' detention. I am quite certain, though I do not want to see this clause or the Bill remain for one second longer than necessary, that if the police authorities feel it is necessary to ask the Secretary of State for an extension of five days—irrespective of the hullabaloo and criticisms which will come from those organisations in support of the men of violence—the Government should retain the powers.

Lord Boyd-Carpenter

I hope that the Government will concentrate on getting this Bill right as an instrument for tackling Irish terrorism. Surely that is what we are about. It must be the case, first, that there are occasions when it is necessary to hold a terrorist for more than two days. Secondly, it is surely becoming increasingly plain that you will be putting an impossible task on justices of the peace in asking them to be the authority determining that provision. Therefore I hope that the Government will concentrate on getting the Bill right from a practical and effective point of view and will not allow themselves to be unduly distracted by the gyrations of the European Court of Human Rights.

I think that perhaps some Members of the Committee seem to attach to the European Court of Human Rights a degree of respect and reverence which the great majority of our fellow countrymen do not share. Indeed, to some of us it seems to be operating in rather an unreal vacuum and it appears that it is not composed of people who understand the practical necessities of a government faced with what is in fact a war.

The noble Lord, Lord Mishcon, said that he would not like us to include a derogation because that would carry with it implications that we were being endangered; but the IRA declared itself to be at war with us. It is a warlike situation. The noble Lord, Lord Mishcon, will recall the old principle silent leges enim inter arma. Inter arma, one hopes optimistically, silent the European Court. That body must appreciate that the British Government face a real and difficult task. It would not help the credit of that court, its reputation or standing, in this country or elsewhere, if it were to appear to get into the position that it did not mind handicapping Her Majesty's Government in the fierce struggle in which they are engaged.

I say with respect to my noble friend the Minister that it is important at this stage not to let ourselves be distracted by those outside matters, but to concentrate on achieving an effective bit of machinery to enable the detention of those who need to be detained on security grounds to be effected. It is obvious that the Secretary of State is the only proper authority. Only he has the knowledge, sometimes the information derived from security sources, to know whether the person detained is a person who is of serious menace and in respect of whom other matters may be revealed by research. Only the Secretary of State can know that, and I hope that we will leave the Bill as it is.

Earl Ferrers

The amendment touches on a delicate and sensitive area, and one which has been recognised by all Members of the Committee. I am grateful to the Committee for the understanding that it has displayed about the position in which we find ourselves over the judgment of the European Court of Human Rights. I shall resist the temptation of following the somewhat untoward remarks made by my noble friend Lord Boyd-Carpenter about the European Court and people's views upon it. If a judgment is made, we wish, as a government, to see that we can accord with that judgment, provided that it also meets the other difficulties in which we find ourselves.

Lord Boyd-Carpenter

Exactly.

Earl Ferrers

The noble Lord, Lord Mishcon, said that the amendment, as he gently put it, was the product of his humble mind. It was a useful amendment upon which we could discuss this difficult problem. I do not expect that the noble Lord will seek to import the amendment into the Bill. I hope that he will not because it raises all sorts of questions. My noble friend Lord Colnbrook put his finger on the pulse when he asked how a justice of the peace would know about the security service. He said that if a justice of the peace were asked to give such an agreement, he would not know what to do. The point is also raised as to whether the justice of the peace is the right level of judicial officer to be asked to carry out that task.

Clearly we want to find a way around the problem. If it requires amending legislation, amending legislation will have to be brought in. That will depend upon our eventual conclusions. The noble Lord, Lord Harris of Greenwich, asked whether I could give an assurance that my right honourable friend would make a Statement before the Summer Recess. He would not, of course, expect me to give such an assurance now, but I shall certainly see that my right honourable friend is made aware of the noble Lord's views.

The amendment goes to the heart of the debate on how the Government should respond to the judgment of the European Court of Human Rights. Many Members of the Committee have, understandably, expressed concern about the length of time taken for the Government to come forward with a considered response to that judgment. I understand that concern.

We should have liked to be in a position to bring forward our response during the Bill's passage, preferably in ample time to consider any proposed amendments to the Bill. My right honourable friend said in another place that the matter is extremely complex. He pointed out that our system of criminal justice is different from those in other European countries which are parties to the convention. There is much talk about an examining magistrate, but that is not a concept which we can import simply into our system. In those countries where there is an examining magistrate, he or she is part of the investigative system and operates in a way which is radically different from the way in which our magistrates work.

In the general run of criminal cases in the United Kingdom, detention before charge is authorised by a magistrate. It is only in the exceptional circumstances which surround terrorist crime that the executive authorises continued detention. No other European county faces indigenous terrorism on a scale anywhere approaching that which we have in the United Kingdom. There is a further complication to consider: we have in the United Kingdom not one jurisdiction but three jurisdictions with their own traditions and practices. In one of those jurisdictions, the judiciary is already under severe pressure.

Those difficulties, and the need for appropriate procedures to deal with terrorist suspects, were recognised by the European Court at Strasbourg; but as my right honourable friend has made clear, it is our wish to arrive at a judicial mechanism, if one can be worked out. I can assure the Committee that we are working hard to achieve that end. Any mechanism at which we arrive will have to be tested against two criteria. The first is whether it will be acceptable at Strasbourg. Secondly, and just as important, is whether it will be effective in bringing 'terrorists to justice. The power of arrest and detention under the Bill are central to our attempts to combat terrorism. That is the point which my noble friend Lord Boyd-Carpenter was concerned that we should not forget.

We should not adopt any procedure which would put at risk the ability of the police to carry out their investigations into terrorist crime. Until we have an opportunity to complete our deliberations and consultations, it would be premature for me to offer a considered view on the scheme proposed by the noble Lord, Lord Miscon. I hope that he will understand the reasons for that. The debate has illustrated the difficulties which face the Government in trying to find a judicial solution to the problem of extended detention. It has been instructive to hear the Committee's views. I assure the Committee that they will be carefully noted before any decision is reached.

Until we have reached a final view, it would not be right to change the procedures in the Bill for extending detention. Any proposals which we make may differ a little, a great deal, or not at all, from those proposed by the noble Lord, Lord Mishcon. That is not the point. The point is that the Committee should not take a final view on any judicial scheme for extending detention until it has heard the Government's considered response to the Brogan judgment. The judgment raises serious and difficult questions. We are addressing them as quickly as we reasonably can. I hope that the Committee will agree that it would be best not to make a premature decision, which circumstances might later lead us to regret, but to await a considered view.

The noble Lord, Lord Mishcon, was concerned that if we did not make up our minds fairly soon, it would be necessary to have a derogation. In fact one was made on 23rd December, and of course it lasts until the conditions change.

5.30 p.m.

Lord Mishcon

When I said that this amendment was a product of my humble mind, I ought really to have quoted the favourite phrase of a noble and learned friend of mine, a much respected Member of your Lordships' House. I should have said that it was a product of what I am pleased to call my mind. It was done deliberately in order that Brogan could be discussed. It was right that we should discuss it; perhaps we ought to discuss it at further stages of the Bill.

As the Minister will recollect, his right honourable friend on Second Reading in another place said that the situation would be dealt with before the Bill left the other place. It was only in the final stages of the Committee proceedings in the other place, I believe, that that view was altered. It was decided that this could not be done before the Bill left the other place.

We must give consideration to the subject, as the noble Lord, Lord Fitt, rightly said. It is a matter which is being used for propaganda purposes to rather distressing effect in Northern Ireland and elsewhere, and we must deal with it. However, if I may say so to the noble Lord, Lord Boyd-Carpenter, I do not think we can deal with it in quite the "flippant"—if I may use that word—way in which he dealt with the judgments of the European Court. We have a habit in this country, as I understand it, that when we agree to be bound by what a referee decides—whether it is on the football ground or in a court of justice—we accept the judgment that is given. I shall give way to the noble Lord, I promise, in a moment when I have finished the sentence. I think that the noble Lord will, in his usual gracious manner, concede that when the court dealt with the matter of Brogan it said quite specifically that it realised the grave problems that faced the United Kingdom. I said in my opening speech that the court made it abundantly clear that it was not in any way censuring the United Kingdom for having this power and that power. However it reminded the United Kingdom of the judicial process which had to be exercised. I give way to the noble Lord.

Lord Boyd-Carpenter

I am grateful to the noble Lord for giving way. He referred to the EuropeanCourt of Human Rights—

Lord Mishcon

Court of Justice.

Lord Boyd-Carpenter

—or the Court of Justice as the referee and said that it was wrong to be "flippant" about it. However, the noble Lord must face the fact that that court has not had a very successful record. There are many serious-minded people in this country who are very disappointed with it.

Lord Mishcon

It may be perfectly all right for the noble Lord, Lord Boyd-Carpenter, to differ from me on these matters. That is obviously his right. I would warn him however that he also differed from his noble friend Lord Colnbrook. I was castigated by the noble Lord for talking about joining hands with the Government in the war against terrorism. I was told that I dare not use the word "war"; that it was a dreadful word to use; and that we were not at war with the IRA. The noble Lord, Lord Boyd-Carpenter, must have heard the noble Lord, Lord Colnbrook call this a war in which we were engaged.

Lord Boyd-Carpenter

Will the noble Lord allow me to intervene? I specifically said that the IRA claimed to be at war with us.

Lord Mishcon

If the noble Lord will read Hansard tomorrow he will find, with his usual fairness, that he talked about our being "at war" with them.

Lord Boyd-Carpenter

I do not wish to continue the discussion with the noble Lord. If people say that they are at war with you, then you are at war with them. We cannot have two completely different views on the subject. The noble Lord is for once in his life on a thoroughly bad point.

Lord Mishcon

If I am on a bad point, will the noble Lord kindly tell his noble friend Lord Colnbrook not to rebuke me in future for saying that because they were at war with us, we were at war with them. I was told by the noble Lord, Lord Colnbrook, with all his experience as a previous Secretary of State dealing with these matters, that I must not say that. If I accept the rebuke from the noble Lord, Lord Colnbrook, then I believe that the noble Lord, Lord Boyd-Carpenter, ought to accept the rebuke in the same gracious way.

Lord Boyd-Carpenter

I hope that the noble Lord will for once be happy with the fact that he and I agree. I do not know what is worrying him.

Lord Mishcon

I always worry when I agree with the noble Lord, Lord Boyd-Carpenter. I am convinced that I must be on a bad point. To be serious—and this is a very serious matter—I agree entirely with the noble Lord, Lord Harris, about the need to try to clarify the matter from the point of view of our national reputation and how we stand in Northern Ireland and generally. We must solve the problem. I know that the Minister will pass on the comments made in this debate to his right honourable friend, with a view to seeing whether at least a government proposal in regard to these matters can be properly debated before the Bill leaves the House.

It is on that basis and without in any way regretting that the amendment has come before the Committee, because it is vital that these matters should be discussed, that I ask leave of the Committee to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 14 agreed to.

Clauses 15 and 16 agreed to.

Clause 17 [Investigation of terrorist activities]:

Lord Mishcon moved Amendment No. 4:

Page I I, line 43, at end insert—

("( ) Nothing in subsection (2)(a) above shall preclude a lawyer from making a disclosure for the purpose of seeking his client's instructions or giving him legal advice.").

The noble Lord said: I shall endeavour to be as brief as I possibly can. The amendment provides, as the Committee will see, that a lawyer, when making a disclosure solely for the purpose of seeking his client's instructions or giving him legal advice, does not fall foul of Clause 17 which makes it a crime if someone; knowing or having reasonable cause to suspect that the investigation is taking place, makes any disclosure which is likely to prejudice the investigation.

One can easily see the difficulties of a lawyer in regard to advising his client in these circumstances. The same doubt was expressed about whether or not it would be a reasonable excuse for a solicitor to advance that he was taking his client's instructions when Section 31 of the Drug Trafficking Offences Act was examined. The matter came before the court in the case of Regina v. Central Criminal Court ex parte Francis and Francis. There Mr. Justice Webster observed: A solicitor-client relationship must constitute a reasonable excuse, I would have thought. As long as a judge says he would have thought something, there must be some little doubt about it. The amendment makes the position abundantly clear. I beg to move.

Earl Ferrers

This is quite a difficult question to resolve. I understand the concern the noble Lord, Lord Mishcon, has about the special relationship of confidentiality and trust which rightly exists between a solicitor and his client. I am conscious of the need to protect the traditional character of that relationship. It would of course be undesirable if a solicitor were unable to represent his client's interests effectively, or if people as a result were reluctant to seek legal advice. At the same time we have to weigh the consequences for the machinery of justice. We must ensure that the criminal law can be properly enforced in the way in which Parliament intended. So there are two important principles we need to keep in mind. But I do not think that they are necessarily in contradiction in this case.

The amendment would have the effect that if a solicitor made a disclosure likely to prejudice a terrorist investigation he would not be committing an offence if the disclosure were for the purpose of seeking his client's instructions or giving him advice. The circumstances would typically be where for instance a warrant or order had been issued under Schedule 7 in relation to documents held by the solicitor and he wished to take his client's instructions on whether the order should be contested.

It is not self-evident that the client would always need to be consulted. The documents are held by the solicitor and the production order relates to him, not to his client. Therefore, he has a duty to contest it, if he believes it conflicts with his client's legal privilege. But he may well be able to determine for himself, from his knowledge of the documents and his previous dealings with his client in relation to them, whether the documents are in fact privileged.

The noble Lord, Lord Mishcon, referred to the case of Francis and Francis. In that case the solicitor proceeded to challenge the production order without first seeking the client's instructions. Perhaps that is what one would expect in relation to documents which are prima facie legally privileged. I do not say that there will not be cases where it is perfectly reasonable for the solicitor to consult his client. But, if that is so, the solicitor would have available to him the defence of reasonable excuse, as stated in Clause 17(3)(b). In the Francis case, once it reached your Lordships' House for decision—after all, that is the highest court in the land—the noble and learned Lord, Lord Griffiths, noted that the Law Society had expressed anxiety about potential difficulties for solicitors under the similar provisions in the Drug Trafficking Offences Act 1986. He agreed with the view that was taken in the case by Mr. Justice Webster in the Divisional Court, that a solicitor-client relationship must constitute reasonable excuse in proceedings for the disclosure offence. The noble and learned Lord, Lord Griffiths, said that he did not therefore think that the honest solicitor should have any cause for concern.

I know what the noble Lord, Lord Mishcon, will now say. He will question why, if the defence of reasonable excuse were available, we should not go the whole hog and exempt solicitors from the provisions altogether in the way he has proposed. The reasons for not following that course are the following. In the first place, I do not think that measure is necessary. Secondly, if solicitors, as a matter of course, consult their clients, terrorists would be alerted and investigations could be seriously frustrated. Where the client was indeed a terrorist, or closely connected with a terrorist, it would give him time to cover his tracks before the police could effectively move in. Vital documentary evidence could very easily disappear and potential prosecutions for serious offences would be lost.

The consequences for the new initiative against terrorist finances could be particularly serious because documentary evidence will be so crucial in these cases. Therefore, I do not believe it would be right to allow a solicitor to make what could well be a damaging disclosure without first asking himself whether he has a very good reason for doing so. As I have said, if such a reason exists, it seems sufficiently clear from the Francis case that a solicitor could rely on the defence of reasonable excuse. It can safely be left to the courts to decide whether, in all the circumstances of a particular case, the defence is made out.

This is a somewhat complicated question. I am sorry to have replied at some length. I understand the intentions which lie behind the amendment, but I believe it could do a surprising amount of mischief. In our view the Bill already gives sufficient protection to the solicitor who acts reasonably and in good faith. I hope that the Committee will agree that the Bill is best left as it is.

Lord Mishcon

I am most grateful to the noble Earl for what he has said. I should make one thing quite clear: when the case of Francis and Francis came to the House of Lords, and to this Chamber when it was sitting in a judicial capacity, the noble and learned Lord, Lord Griffiths, was the only one to comment on the effect of Section 31. Therefore, it was not a judgment of the court. He merely commented on it and he was the only judge who did so. Therefore, there is no authoritative judgment of this Chamber. That is why the Law Society is rather keen to have this matter cleared up.

I shall read with great care, as they deserve to be read, the remarks made by the Minister. In the meantime, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 17 agreed to.

5.45 p.m.

Clause 18 [Information about acts of terrorism]:

Lord Mishcon moved Amendment No. 5:

Page 12, line 25, at end insert— ("( ) A person shall not under this section be required to disclose any information which he would be entitled to refuse to disclose on grounds of legal professional privilege in proceedings in the High Court.").

The noble Lord said: On a somewhat similar basis, I put this amendment before the Committee. It seeks to ensure that a solicitor is not obliged to disclose privileged information. That is terribly important because the clause we are considering—Clause 18—makes it an offence to fail to provide information about acts of terrorism "without reasonable excuse". Again the words "without reasonable excuse" are used.

The issue which arises is that the right of an alleged terrorist to seek legal advice might be rendered of no effect if a solicitor was under a duty to disclose under Clause 18. The alleged terrorist would be reluctant to seek legal advice if he knew that his solicitor was obliged to disclose relevant information.

The Law Society believes that a solicitor should not be obliged by Clause 18 to disclose privileged information. I am not quite sure whether the Minister informed the society in another place or by correspondence of the following fact. He told the society that he thinks it is right that no criminal penalty should attach to a failure to disclose information which is legally privileged. But he took the view that it was not necessary to amend the clause, as it already achieves the desired effect by reason of the reasonable excuse provision. The noble Earl referred to that matter when I moved the previous amendment. On the contrary the Law Society, after a lot of consideration, believes that the matter should be put beyond doubt by the adoption of the proposed amendment. I beg to move.

Earl Ferrers

We are once again in this difficult and technical area of legal privilege and the relationship between a solicitor and his client. But I think the issue is rather different from the one we discussed in relation to Clause 17. It must be considered quite separately and on its own merits.

The amendment which the noble Lord, Lord Mishcon, moves seeks to protect from disclosure, under the clause, any information which is legally privileged and would not therefore have to be disclosed in "proceedings in the High Court." A solicitor would not, therefore, be committing the offence if he withheld from the police any information about Northern Irish terrorism which he had acquired in the course of communications with his client. It may be helpful to the Committee to distinguish the two types of information which are covered by this clause. First, there is information which may prevent acts of terrorism. Secondly, there is information which may help bring a terrorist to justice. I believe different considerations arise in each case.

If a solicitor is consulted by his client about his plans to carry out a terrorist attack, it must be right for that information to be passed on to the authorities. It could very well save lives. But information of that kind would not be legally privileged. It would lose its privilege by virtue of the client's criminal purpose. That has long been an important element of the rules on legal privilege. It is reflected in the definition of the term in Section 10 of the Police and Criminal Evidence Act 1984.

Let us now look at the second class of information—information which may secure the apprehension, prosecution or conviction of a person for terrorist offences. That is the kind of information which a solicitor working in the criminal law cannot avoid acquiring. We rightly value the cardinal privilege of our system of law that any accused person has a right to legal advice and representation, whether he is innocent or guilty. Frankly that right would not be worth very much if a solicitor was required to pass any incriminating information which he may have on to the other side. That is why the rules on legal privilege have evolved in the way they have. There is now very considerable protection in both common law and statute law to ensure that such information does not have to be made available to the police or be produced in court. I do not believe that a person accused of a terrorist offence, no matter how serious, should be denied that protection. I do not think that there is very much difference of principle between what the noble Lord, Lord Mishcon, seeks to achieve and what we have in mind.

I do not believe that the clause requires amendment in the way that the noble Lord suggests. The clause provides that an offence is committed where a person fails to disclose information without reasonable excuse. In my view, a solicitor would have reasonable excuse for not disclosing legally privileged information. The consent of the Attorney-General would be needed before proceedings were instituted. I cannot believe that solicitors need have any fear of being prosecuted where privileged information is concerned. I hope that that will satisfy the concerns of the noble Lord, Lord Mishcon.

Lord Mishcon

I know that the noble Earl has given consideration to the matter. He has largely repeated what I said the Minister told the Law Society. This is an important matter for solicitors. Once again, I should like to consider what the noble Earl has said. In the meantime, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 18 agreed to.

Clauses 19 to 21 agreed to.

Clause 22 [Restricted remission for persons sentenced for scheduled offences]:

Lord Mishcon moved Amendment No. 6:

Page 15, line 32, at end insert— ("(7) A person who has been subject to reduced remission under this section shall be eligible for release on parole under section 60 of the Criminal Justice Act 1967, as amended by Schedule 8 of this Act.").

The noble Lord said: I shall endeavour to be brief. With the permission of the Committee, in moving Amendment No. 6 I propose to speak also to Amendment No. 34. Having said that I intend to be brief, I ought to say that this is a very important amendment which incorporates a principle which I hope will commend itself to the Committee.

In his Second Reading speech the noble Earl dealt with the question of bringing the period of remission for good behaviour in Northern Ireland in line with that in England and Wales. He said that remission of 30 per cent. applied in England and Wales while 50 per cent. applied in Northern Ireland and that he thought it would be agreed that it was right the situation should be equalised and that 30 per cent. remission should also apply in Northern Ireland.

It so happens that on 14th April 1986 I put down a Question for Written Answer in your Lordships' House to ask Her Majesty's Government: Why prisoners in England and Wales receive 30 per cent. remission of sentence for good behaviour whereas prisoners in Northern Ireland, convicted of identical offences, receive 50 per cent. remission of sentence". The Minister at that time, the noble Lord, Lord Glenarthur, replied as follows: The difference between the rate of remission for industry and good conduct in Northern Ireland and the rate in England and Wales reflects the separate criminal justice systems within the constituent parts of the United Kingdom and the absence of a parole scheme in Northern Ireland". —[Official Report, 22/4/86; Col. 1147.]

At that time I put down the Question for Written Answer on the basis that we could perhaps solve some of the problems of our crowded prisons by having the same percentage in England and Wales—namely 50 per cent.—as in Northern Ireland. The Answer made it clear that remission was greater in Northern Ireland because there was no parole system there. My amendment proposes that since we are equalising the situation in Northern Ireland and England and Wales, which is perfectly acceptable and just, we must also introduce a parole system into Northern Ireland, even for scheduled offences. Amendments Nos. 6 and 34 set up a parole system identical to the one that we have in this country. That would provide equality and justice.

I do not believe that a long speech will make that issue any clearer. I beg to move.

Lord Lyell

The noble Lord, Lord Mishcon, has set out his case with great clarity and, as he promised, with commendable brevity. I admit that I was not aware of his Question for Written Answer of April 1986. I was somewhat apprehensive that I might have replied, but I did not recall that such a Question had crossed my desk. I was therefore delighted when the noble Lord confirmed that that was a matter dealt with by my noble friend Lord Glenarthur.

I am sure that the Committee will be interested in the two amendments proposing a parole system for Northern Ireland in all respects identical to that in the rest of the United Kingdom. The noble Lord's right honourable friend moved an almost identical amendment in another place. However, I must stress that there are one or two major difficulties with the principle of parole as well as in relation to the special and difficult circumstances of Northern Ireland. That combination of factors makes it impractical to institute a system of parole for the time being, certainly on the lines proposed by the noble Lord, Lord Mishcon. Until parole was introduced in England and Wales in 1967 Northern Ireland had the same remission arrangements as England and Wales. Perhaps the noble Lord will not quibble about 3 per cent., but I understand that the figure is one-third. By the time parole was set up in Great Britain, civil unrest and terrorism had intervened in Northern Ireland.

In the 1970s there was great concern about the lack of opportunities for parole in Northern Ireland. I should like to refer to a speech that was made from this Dispatch Box on 17th February 1976, introducing the Treatment of Offenders (Northern Ireland) Order 1976. The noble Lord, Lord Donaldson of Kingsbridge, commented: The parole scheme, as it operates in Great Britain, would not be appropriate for Northern Ireland, for many practical reasons. The essential features of the Great Britain scheme—indeterminate release dates, detailed reporting, decisions by the Executive on the recommendation of an independent board, and in particular, statutory supervision on release—are impractical in current circumstances in Northern Ireland".— [Official Report, 17/2/76; col. 355.] I have to say to the noble Lord and to the Committee that, regrettably, that must remain our view today. It was the view expressed to the noble Lord's honourable friend Mr Peter Archer in Committee in the other place. Mr Archer admitted that he had been persuaded by the recommendations of the National Association of Probation Officers and the Committee on the Administration of Justice that this method of restoring the symmetry with England and Wales would be inappropriate in Northern Ireland.

Two reasons were given by the noble Lord, Lord Donaldson, in 1976. The first dealt with the difficulties of making assessments of prisoners in the compounds. I shall not weary the Committee with the matter as that particular era has passed. But the second reason given by the noble Lord and the Labour Government in 1976 was the problem for probation officers—it was a major difficulty—of supervising the release of terrorist prisoners. That is still to the fore of our reasons for not being able to adopt this system of parole in Northern Ireland today. As I am sure the noble Lords, Lord Mishcon and Lord Harris of Greenwich, and all Committee Members, will recognise, the effectiveness of parole is based on the idea of the supervision of the parolee—that is, the subject of parole—in the community.

The work that the probation service currently does with paramilitary prisoners is based on their voluntary co-operation which I understand usually occurs while they are in detention in the prison. That voluntary co-operation would not necessarily be forthcoming once a prisoner was released. Any probation officer seeking to enforce parole supervision would then be at some considerable risk. Certainly, there would be side risks and serious results for the other work of the probation service if it were drawn into compulsory supervision of parolees. I believe that that aspect is central to our entire principle of parole in Great Britain.

The Government's view is that the problem of compulsory supervision of parolees means that the whole system of parole remains impractical in Northern Ireland for the present. Parole itself may be impractical, but we remain committed to prisoners in Northern Ireland having a broad measure of parity in the opportunities for early release compared with prisoners in the rest of the United Kingdom. That is the motivation behind Clause 22. That motivation seeks to bring the treatment of terrorist-type prisoners in Northern Ireland back into line with how they are treated elsewhere for the purposes of remission as well as parole.

I think it wise to remind the Committee that since 1983 it has been the policy of successive Home Secretaries to refuse parole, other than perhaps for a few months at the end of their sentence, to those serving more than five years for crimes of violence or drug trafficking. Crimes of violence clearly include most offences connected with terrorism. A terrorist sentenced for such a crime in Great Britain and receiving a sentence of more than five years would generally be denied parole and would have to serve two-thirds of this sentence in custody. In Northern Ireland, a similar terrorist committing the same crime and receiving the same sentence would, until now, have been required to serve only one half of his sentence in custody.

I think the Committee will agree that such a difference in treatment cannot be right. Far from treating terrorism more harshly than elsewhere, this clause ends the current anomaly by which Northern Ireland treats terrorist prisoners more leniently than elsewhere. We believe that this should improve the deterrent value of imprisonment and make it clear to the terrorist that there is a severe penalty if he is caught. In addition, the public will be provided with much needed extra protection from those who commit terrorist-type crimes.

It is with no small regret that I say to the noble Lord, Lord Mishcon, that a parole system is still no more practical today in Northern Ireland than it was when his noble friend Lord Donaldson made those comments and introduced the measure almost 13 years ago. But the different rates of remission introduced by Clause 22 bring a necessary, if perhaps broad, differential into the system. There is something called the assessment. The assessment of individual prisoners—

Lord Mishcon

I wonder whether the noble Lord will think me—

Lord Lyell

I am just coming to the end; I have two more sentences. The assessment of individual prisoners, together with the supervision of parolees in the community, are at the heart of the parole system. These measures are not practical in Northern Ireland. But we shall now at least reflect the serious view that we and the whole community take of terrorist crime without increasing the severity of imprisonment for other criminals.

Lord Mishcon

I do not know whether the noble Lord has finished his address to the Committee. My only reason for interrupting was to help by saying that what he had advanced so far was sufficient reason for me to ask the Committee to withdraw the amendment.

Amendment, by leave, withdrawn.

6 p.m.

On Question, Whether Clause 22 shall stand part of the Bill?

Lord Harris of Greenwich

I wish to make a few observations on this proposal. A few moments ago, the noble Lord, Lord Mishcon, said that one of the arguments in favour of what he was then putting forward was that it would in some respects put the criminal law in England and Wales and Northern Ireland on a similar basis. But this clause does no such thing. It operates only in relation to people who have been convicted of what are described as "scheduled offences"; it does not apply to anyone else.

In my view there are some serious questions to be asked about that general approach. In future, the sentencing judge will know that if he convicts someone of a scheduled offence, that person will serve a different sentence from a person to whom he gives an equivalent sentence for a non-scheduled offence. I should like the noble Lord, Lord Lye11, to justify that approach. A few moments ago he said that successive Home Secretaries had treated a particular category of offences differently from other categories of offence as regards parole. However, I do not think that he indicated by what he said that he was aware of what had been recommended in the report of the noble Lord, Lord Carlisle of Bucklow, and his committee on the parole system of England and Wales. Admittedly, they related their observations to the question of parole, but they could have done so just as easily to the question of remission.

I do not know whether the noble Lord has the report with him. Paragraph 190 states that, we are satisfied that the restricted policy for those sentenced to more than 5 years for offences involving sex, drug trafficking, violence or arson is flawed in principle and harmful in practice". It went on to say that, to differentiate in a rigid way between those who receive identical sentences for different types of offence is to our mind unacceptable; if a judge weighing all the relevant circumstances has imposed a particular sentence it is not for the Home Office or the Parole Board to treat it differently depending on what offence it was for". In terms of remission that is precisely what we are now being asked to do.

I remind the Committee of those on the parole committee of the noble Lord, Lord Carlisle. Apart from other members, the committee included Mr. Justice Popplewell, Sir David West-Russell and Mr. Peter Wright, Chief Constable of South Yorkshire and president of the Association of Chief Police Officers—not a committee of liberal minded softies, if I may say so, but a very experienced committee containing among its members some very distinguished lawyers.

I wish to ask this: why the five-year break? On the basis of what the noble Lord, Lord Lye11, has just said, it appears to me that he is founding his argument on the 1983 approach of Mr. Brittan, an approach which has been specifically rejected unanimously by a Home Office committee of inquiry. I should be very grateful if he would now assist us in this matter and clear up this apparent inconsistency of approach.

Lord Lyell

The noble Lord has asked me to try to clear up an inconsistency. I shall attempt to do so. However, there may be one or two grey and foggy areas as a result of the review, by my noble friend. As the noble Lord, Lord Harris, will know, this review by my noble friend Lord Carlisle was limited to the remission and parole arrangements in England and Wales. As a Scot, I must take care, but I understand that a similar review is still under way with regard to Scotland. That leaves us with Northern Ireland.

The absence of parole—which I may have spelt out at greater length in my two sentences than perhaps I might have done; and I apologise to the noble Lord, Lord Mishcon—means that Northern Ireland has to have a different system from that of the rest of the United Kingdom, though I accept from the noble Lord, Lord Harris, that some degree of parity is clearly very desirable. We have the Carlisle review. We have taken it on board. Certainly we shall note very carefully the comments which my right honourable friend the Home Secretary is currently receiving in this review. If as a result changes are made in England and Wales, we shall certainly look carefully at their implications for Northern Ireland. However, the noble Lord, Lord Harris, will accept that not all these recommendations will necessarily be applicable.

I have already explained at considerable length the introduction of parole and how it will present very serious difficulties for the foreseeable future. I am sure the noble Lord will understand that the Government accept that there is good sense in maintaining a broad parity. Indeed, the proposals today in Clauses 22 and 23 are designed to achieve that. We shall look at any changes in the rest of the United Kingdom—that will include Scotland—in that light. However, I should stress that the committee of my noble friend Lord Carlisle had available information on the current practice in Northern Ireland. Indeed, it recommended aspects of that—which I think the noble Lord will find in the glamorous little red book—for England and Wales.

However, on longer-term offenders—and my noble friend Lord Carlisle called the longer-term offenders those serving more than four years—the review recommended that they should not become eligible for release until one-half of their sentence had been served and automatically released only at two-thirds. Certainly the proposals that I have already set out in Clause 22, and discussed with the noble Lord, Lord Mishcon, in Committee earlier, do not cut across that. They preserve one-half of remission for some long-term offenders but they require the later release of the terrorist.

Perhaps I may amplify that. Our purpose in differentiating between scheduled offences—which I am sure will be familiar to the noble Lord, Lord Harris, and to the Committee—and other offences which have merited a sentence of longer than four years (and indeed they are caught by the review of my noble friend) is to direct these measures in the Bill at those who cause a very great threat to society throughout the United Kingdom; and in particular in Northern Ireland at those who are involved in terrorism. We feel that it is wrong for their effect to be wider in these measures than is strictly necessary.

The threat from terrorism, as well as the suffering and grief caused, is such that we are determined that specific measures to deter and punish those involved in terrorism and in crime of that nature are justified. It would not be right for me or any Member of the Committee to propose a reduction in remission for all crimes when our real concern is with the serious terrorist offences. Those are the provisions applied in Clause 22 of the Bill.

However, we shall stand by the principle that once in prison there will be no distinction in the treatment or regime between those convicted of terrorist crimes and those sentenced for non-terrorist crimes. There will be no return to the situation in the 1970s of special categories, because in every respect except remission prisoners will continue to be subject to the same rules, rights and obligations.

6.15 p.m.

Lord Fitt

Yesterday afternoon in Belfast I lost yet another friend. A retired police officer was blown to smithereens in his car at 2 o'clock. I find it very hard to sit here this afternoon, having spoken to the family this morning, and listen to the concern being expressed about prisoners.

I agree with the Minister that any attempt to equate circumstances between England, Scotland, Wales and Northern Ireland in relation to terrorism, and to the way that prisoners are treated, must be totally fallacious because conditions in Northern Ireland do not lend themselves to any type of parole system. One cannot have a parole system in relation to released terrorists because most of the terrorists in Northern Ireland live in areas which are in the grip of either Republican or Loyalist paramilitaries. There is no question that any probation officer, in any circumstances, could go into, any of those areas—be they Republican or Loyalist—and try to enforce a probation order.

It should have been said that the reason there has been 50 per cent. remission for scheduled offences is that in 1976, a Labour Government—in their attempt to do away with the then paramilitary situation that existed in the prisons with the special category prisoners in the compound system—arrived at a deal. Whether it was done by meetings, by television or the press, the 50 per cent. remission was arrived at in an attempt to make Republican prisoners—as the majority of them were at that time—accept the abolition of special category.

We all know that even after the 50 per cent. concession was made it had no effect on the attitude of the Republican prisoners to acts of terrorism. Leading on from that into 1976, 1977 and 1978, we had the H-block controversy and the blanket strike—the dirty strike, as it was called—leading on to the hunger strike. Therefore the fact that 50 per cent. remission was given by the Labour Government in 1976 did not influence in any way paramilitary thinking in Northern Ireland.

I have said before—and I say it in this Committee—that I am a total opponent of capital punishment. I do not believe in capital punishment whether it be carried out by the judicial system of the country, or by terrorists, as they did yesterday afternoon. However, having taken that stand I believe that the maximum sentence must be inflicted and the least remission given to people who have been convicted of carrying out these awful offences. I certainly support the Government on this matter. I may stand alone even on these Benches, and certainly within places in Northern Ireland. I believe that terrorists in Northern Ireland should be hit with the full penalties that the law can inflict. No mercy should be shown by the Government to terrorists who show absolutely no mercy to their victims.

Lord Harris of Greenwich

Yes, but a terrorist convicted in England and Wales is treated in precisely the same way as any other prisoner. That is the issue. We are not now discussing parole. That was the subject of the previous amendment proposed by the noble Lord, Lord Mishcon. We are talking about a totally separate question. I have been asking the Government how they justify their approach on remission in the light of the clear statement of policy of a committee presided over by the noble Lord, Lord Carlisle of Bucklow, consisting of a High Court judge, a Crown Court judge and so on, which specifically said—I remind the Committee of one passage—that it would be wrong to differentiate rigidly between those who receive identical sentences for different types of offence. That is the issue.

This seems to me to raise formidable problems. I shall not press the matter today, but as we are to debate the report of the noble Lord, Lord Carlisle—at least I hope we are, if the Government can make arrangements so to do—I felt it right to raise this matter of principle today. I do not believe it is right for us to proceed on this matter without comment when major issues of principle are involved.

Lord Blease

The Minister has given a clear, full and historical analysis. Perhaps, however, he can clear up one matter. I do not think it was intentional, but he said that there was no parole in Northern Ireland. There is an effective probation board in Northern Ireland that does parole work in the normal form as practised throughout England, Scotland and Wales. The parole system cannot be effective in the paramilitary situation. That is the point I should like to have cleared up.

Lord Lyell

If I misled the noble Lord or the Committee in suggesting that there was no parole, perhaps I should say that there is not effective parole for released prisoners who have served a sentence for terrorist and scheduled offences. I should make that clear now. All the fairly lengthy remarks that I directed at the noble Lord, Lord Mishcon, I am sure will be taken on board.

Clause 22 agreed to.

Clause 23 [Conviction of scheduled offence during period of remission]:

Lord Lyell moved Amendment No. 7: Page 16, leave out lines 35 and 36.

The noble Lord said: This is a technical amendment which tidies up the clause removing from subsection (6) the definition of "enactment". The definition became redundant when the only reference to enactment in the clause fell by a government amendment in Committee in another place. No part of the clause now uses the term "enactment" so the definition is no longer required. For that reason I beg to move.

On Question, amendment agreed to.

Clause 23, as amended, agreed to.

Clauses 24 to 26 agreed to.

Clause 27 [Commencement and duration]

Lord Mishcon moved Amendment No. 8: Page 18, line 29, after ("that") insert (", subject to subsection (7)(c) below,").

The noble Lord said: With the Committee's permission I take Amendment No. 9 together with Amendment No. 8. I remind the Committee that when we were dealing with exclusion orders there was a division of the Committee on that matter. Therefore, for the time being, that is part of the Bill. The Minister said quite specifically that he regarded it as a special matter. I understood that to mean special in the sense that it was a distinct principle apart from other matters dealt with in the Bill.

Although the words "temporary provisions" appear in the title of the Bill, this is supposed to be an enactment which will not be subject to the previous procedure. It will go on the statute book and remain there subject to annual review by way of a statutory instrument to come before both Houses of Parliament. If that statutory instrument comes before the House as one order there is no possibility of amending it, as we all know. One votes either for it or against it in another place. In this place we have a tradition of not opposing statutory instruments except on special occasions. There have been a few such occasions, but they are very rare.

The amendment suggests that when we have an annual review by statutory instrument there shall be two statutory instruments. One is to deal with the renewal of Part II, if that be the recommendation of the Government, and Part II or a section of it is still extant. We have an opportunity of discussing that and voting accordingly on the issue of exclusion orders. I shall not repeat everything that has been said about exclusion orders by those whose reports I have already quoted to the Committee. Separately from that, there will be a statutory instrument to deal with all the other provisions of the Bill in relation to renewal. I beg to move.

Lord Henderson of Brompton

I support the noble Lord, Lord Mishcon, in calling for a separate annual affirmative resolution for a statutory instrument to review, quite separately from the main provisions of the Bill, Part II relating to exclusion. I should like to make clear that I believe the power should be retained for the time being. I voted with the Government on the Question that Clause 4 stand part of the Bill. It is not in any way to be inconsistent with my voting that I support the amendment. In the noble Earl's opening speech on Second Reading, he said: My noble friend Lord Colville concluded that it"— that is the power of exclusion should be discontinued, but your Lordships will recall that, in the last major review of the legislation, my noble friend Lord Jellicoe recommended that the power should be kept".—[Official Report, 13/2/1989; col. 13.] He was balancing the views of two of. his noble friends, thus saying what a delicate and difficult question this was to decide.

However, in his report the noble Earl, Lord Jellicoe, made further comments of some significance. If the noble Earl had read on, he would have found that his noble friend Lord Jellicoe had said that there were three recommendations, the third of which was that the possibility of abolishing the power should be kept under regular review without prejudice to the Act's other powers. It is that view to which I wish to draw the attention of the Committee and which I fervently endorse. The noble Earl, Lord Jellicoe, ended that part of his report by saying that the power of exclusion should be one of the first powers in the Act to be repealed. I believe that to be the case. The recommendation of the noble Earl, Lord Jellicoe, that Part II should be kept regularly under review in my view can only be effected by means of a separate statutory instrument for the renewal of the powers of Part II subject to affirmative resolution.

It is true that there are already powers in the Bill in Clause 27(6)(b) which enable the Secretary of State to make an order to provide that Part II shall cease to be in force. However, successive Secretaries of State will always be inclined to hang on to powers indefinitely after the real need for them has ceased. I am sure that it is within the memory of many of us that that happened after the last war. After 1945 emergency powers continued unnecessarily for a very long time. I believe that that was partly due to the fact that there was no good opportunity for Parliament to resist their continuance after the emergency was over or the necessity for their continuation ceased. Therefore, on that analogy I regard it as essential that the parliamentary procedure proposed by the noble Lord, Lord Mishcon, should be inserted in the Bill.

Why are we so anxious about Part II? All the arguments were rehearsed in the debate on Clause 4 stand part. I do not wish to go over them except to emphasise once again that we are particularly concerned about the exclusion powers because they are extra judicial. There is no judicial process and no effective appeal to a court or tribunal. That alone is enough to make those powers especially disagreeable except in the case of dire emergency. I do not disagree that the emergency is dire and that these powers should continue at present.

As we heard from the noble Lord, Lord Fitt, these powers are extremely offensive to those who live in Northern Ireland. It may well be true, as the noble Earl, Lord Ferrers, said, that to his knowledge if those powers had not existed, terrorist crimes would have been committed and lives might have been lost. However, how is one to know that that happy state of affairs has not made the number of terrorist crimes in Northern Ireland greater? I ask the noble Earl that question. The figures for terrorist acts in Northern Ireland are horrific. They may be all the greater because of the exclusion powers. That cannot be a satisfactory state of affairs in Northern Ireland and I believe that that is felt deeply in the Province even by those who are wholly wedded to the powers which the Government are taking in the Bill.

This must be a matter of judgment. I am not in the Northern Ireland Office and I am not a Minister who has access to that sensitive information, and I must respect the views of those who have such access. Even so, this very unpleasant legislation in Part II must be balanced against the public view. If the public view in Northern Ireland and in the rest of the United Kingdom is such that powers of this sort are found to be intolerable, I believe that that factor must be weighed very carefully against the continuation of the powers. I do not put it any higher than that.

In view of the opinion of the noble Earl, Lord Jellicoe, that this power should be one of the first to be repealed, in view of Sir Cyril Philips' report in 1986 in which he very much endorsed most of what the noble Earl, Lord Jellicoe, said and made more recommendations of his own to circumscribe the use of this power, and in view of the recommendation of the noble Viscount, Lord Colville, who came out firmly in favour of the discontinuance of these powers, I should have thought that it is not asking very much of the Government on this occasion to consider with favour this very modest proposal of the noble Lord, Lord Mishcon, or something very like it.

6.30 p.m.

Lord Fitt

In the past when we have discussed this legislation the noble Lord, Lord Henderson, has shown a very reasoned, compassionate and sympathetic view to those who would be caught within the ambit of this Bill. He has done so yet again this afternoon. As in the past, I totally agree with him that a means could be found to have a closer look, in isolation from the other parts of the Bill, at that part of the Bill which causes most concern to civil libertarians and those people really concerned about the liberty of the subject both here and in Northern Ireland.

In my earlier remarks I mentioned that I resented the fact that people could be excluded from Britain to Northern Ireland on the grounds that they may be a danger to this country. That was said by a Member of the Committee. However, they are excluded to Northern Ireland where they may be an even greater danger.

As regards something said by the noble Lord, Lord Henderson, could we have figures—and they must be available—of the number of people excluded from this country who were subsequently convicted of terrorist offences in Northern Ireland? There may be many more. There may be many people who were excluded from Britain, who went to Northern Ireland, engaged in terrorist offences and were never apprehended by the police. However, it might be interesting to find out whether there were people excluded from this part of the United Kingdom to Northern Ireland who were perhaps subsequently charged with murder—the most serious crime in the criminal calendar.

As regards exclusion orders, I believe that my noble friends Lord Mishcon and Lord Henderson have made a reasonable case to the Government that, without any derogation of duty or any lessening of the impact of this terrorist legislation, they could agree to look at Part II in isolation from the rest of the Bill.

Earl Ferrers

The first debate we had this afternoon on Clause 4 stand part demonstrated the sensitivity and importance of the exclusion orders. I believe that all that Members of the Committee have said on this amendment reinforces that view. The noble Lord, Lord Henderson of Brompton, expressed his concern about the effect of the orders and his general dislike of them although he supported them. I cannot give the noble Lord, Lord Fitt, the answer to his question; namely, how many people have been excluded from the United Kingdom and subsequently charged with offences in Northern Ireland. If those figures are available then I shall let him know.

It is right that these exclusion orders should be soundly examined year by year because I accept, as I explained at the beginning, that these are exceptional powers which need to be given careful scrutiny and justification. As I understand it, the noble Lord, Lord Mishcon, seeks to find a way by which Parliament considers and rejects, if it feels necessary, the controversial exclusion powers without voting against the continuation of the rest of the Act.

This is not the first time that the question of renewing the various parts of the Bill separately has been raised. It was thoroughly aired during the debates at Committee and Report stages of the Bill which became the 1984 Act. When the matter was raised by the noble Lord, Lord Henderson of Brompton, my noble friend Lord Elton, the then Minister, said in response that, unless there were overriding reasons for not doing so, your Lordships would always be given an opportunity to discuss the draft order at least one month before the date of renewal; and that the Home Secretary would then consider very seriously how points made in the debate could be incorporated in a revised order. The noble Lord, Lord Henderson of Brompton, said that he was assured by those undertakings and withdrew the amendment.

We have kept to that undertaking to lay in draft the renewal orders in time for debate about one month before the Act is due for renewal. These debates have taken place in each of the years since the 1984 Act came into force and all the temporary provisions have been duly renewed. But on each occasion the need for each of these important powers has been expressly considered. If it had become clear that one particular part of the Act was no longer necessary, then I have no doubt that my right honourable friend the Home Secretary would have responded with a revised order.

We have in fact considered what the effect in practice would be of the amendment of the noble Lord, Lord Mishcon. Being a helpful kind of fellow, I asked my officials whether they could try out their hands to see what would be needed. Being helpful kinds of fellows—or in this case fellowesses—they did their best. It seems to me that we would have two very complicated orders, each of which would have to disentangle those points which are solely concerned with exclusion. This is not just a question of saying "Part II should continue", because Clauses 19 and 20, and Schedules 3 and 5 all contain provisions relevant to exclusion. Each of these would have to be disentangled and appropriate provision made.

In our exercise which we carried out we found that this is the sort of thing that might appear in such a statutory instrument; but the noble Lord, Lord Mishcon, will realise that this is only a first shot. An order dealing with parts of the Bill other than exclusion would provide something along the lines of the following: The following provisions of the Prevention of Terrorism (Temporary Provisions) Act 1989 shall continue in force for a period of 12 months beginning with 22nd March 1990: (a) Sections 1 to 3, 9 to 13, 14 (except subsections (I)(c) and (3)), 15 to 18, 19 (except in so far as it applies to offences under section 8 or to orders, notices or directions made or given under sections 5, 6 or 7 or Schedule 2), 20(l) (except in so far as it applies to words 'used in Part 11 or Schedule 2), (2) (except in so far as it applies to powers conferred under or by virtue of Part II or Schedule 2), (3) (except as regards the references to Part II and Schedule 2) and (4) (except in so far as it applies to such references in Part 11 or Schedule 2) and 27(6)(c); and (b)…". and so we go on. Then the order would have to deal with each of the schedules in similar fashion.

Lord Henderson of Brompton

May I intervene?

Earl Ferrers

May I just finish? The order dealing with exclusion would proceed similarly.

Lord Henderson of Brompton

It is very kind of the noble Earl to give way. I feel sure it would be within the capacity of a skilful draftsman to express this in a much less complicated way. Perhaps I may ask him to look at subsection (6) of Clause 27 which states: The Secretary of State may by order by statutory instrument provide— (b) that all or any of those provisions which are for the time being in force shall cease to be in force". If that is already in the Bill, and if the Secretary of State wished to take out of the Bill some part of it, then the same complication which the noble Earl has so elaborately expounded would apply in that case. If the Government are prepared to do that as the Bill is already drafted, why should they not be prepared to do it for the exclusion of those parts of the Bill which relate to Part II?

Earl Ferrers

The impatience of the noble Lord, Lord Henderson, runs away with him. I was just coming to that matter. The noble Lord, Lord Henderson, said that he was quite sure that a skilful parliamentary draftsman would make the words much easier. My simple understanding of these things is that when a matter which is quite simple is given to a parliamentary draftsman, he usually makes it very complicated; and to suggest that there shall be, as the noble Lord, Lord Mishcon, would say, the law turning itself on its head—in this case the parliamentary draftsman turning himself on his head—and making something which is quite complicated very simple, is a new concept but we live always in hope.

The noble Lord, Lord Henderson, said that if we wished at some time to remove Part II, the Secretary of State has powers to do so. That is perfectly true and that is the point to which I was coming. If it proves necessary that this should be done, then of course we shall have to go through the motions of putting these very complicated orders through. But I really think it is undesirable to go through these difficulties only to continue them.

If it were decided to dispense with some part or parts of the Act, we would have to do this and we would then have to accept a complex order. But I should have thought that your Lordships are not noted for a lack of inventiveness or for rigidity, and if it were your Lordships' wish to deal with a particular part of the Act at renewal in a certain way, I should have thought your Lordships could find a way of doing so.

For example, a resolution could be tabled calling for the deletion of one part of the Act and that could be voted on. It could be debated on the same day as the order and in advance of it. If the resolution were accepted by the House, the Government would have to withdraw the order, consider the position and represent it in a manner which was likely to receive the approval of Parliament. There is nothing new in that. I remember well what your Lordships did—I possibly have the advantage of the noble Lord, Lord Mishcon, in this, which is a curious state of affairs to be in—about the decision not to proceed with plans to site the third London airport at Stansted. That was a debate on the plans which would have been the subject of an affirmative resolution. But it followed a debate on a Motion for Papers in your Lordships' House on 11th December 1967, and it was dropped because your Lordships voted against: it. I should have thought that that was the simplest and the neatest way in which to deal with this quite tricky problem.

Lord Mishcon

I have heard of various reasons expressed in your Lordships' House for not protecting or for protecting vital civil liberties. I have never heard before an explanation given on behalf of the Government that there should be some stoppage upon the ability of the House to deal with a vital question of that kind because it produced some difficulties in draftsmanship.

I know the noble Earl well enough to know that he would not wish to use a complicated statement as to clauses that might have to be amended in a certain way as a device for dealing with a matter of principle of this kind, which he himself has described as one of very vital principle; namely, that of the exclusion orders.

Quite obviously, as the noble Lord, Lord Henderson, said, if the Minister wishes to avail himself of the opportunity of ridding the Bill of exclusion orders, I think he can do so under Clause 27 and will do so. I am sure that the question of consideration of the complicated draftsmanship that might be involved, as the noble Lord, Lord Henderson, said, would have been in the mind of the original draftsman when he gave the Minister that power.

I cannot see, in the seriousness of this situation and the need to deal separately on the recommendation of all the people we have listened to or whose reports we have heard and which have been quoted, that it is at all right to talk in terms of difficulty of draftsmanship as being a reason why a separate statutory instrument should not be before the House, and indeed I ask the Committee to express a view.

Earl Ferrers

Before the noble Lord puts this amendment to a vote, if he wishes to, with the greatest respect he has not adressed his mind to the fact that your Lordships' House has the ability, as both Houses have, to criticise and say that they do not like one part of the statutory instrument by tabling a Motion and voting on it. That being so, the Government would be bound by that. I suggest to the noble Lord that that is a far more tidy way than the way he suggests.

Lord Mishcon

It is perfectly well known—and the Minister realises it—that tabling a Motion is extremely difficult, especially in this Chamber and if the other place has expressed a view. The noble Earl knows the conventions as well as I do. In the circumstances, while I have listened to what he had to say—I listened with respect but I cannot say that I listened with understanding or sympathy—I now ask the Committee to express a view.

6.51 p.m.

On Question, Whether the said amendment (No. 8) shall be agreed to?

Their Lordships divided: Contents, 41; Not-Contents, 97.

DIVISION NO. 2
CONTENTS
Barnett, L.	Irvine of Lairg, L.
Birk, B.	Jay, L.
Blackstone, B.	Kilbracken, L.
Brooks of Tremorfa, L.	Kirkhill, L.
Carter, L.	Llewelyn-Davies of Hastoe, B.
Cledwyn of Penrhos, L.	Lockwood, B.
Craigavon, V.	McGregor of Durris, L.
Davies of Penrhys, L.	Mishcon, L.
Dean of Beswick, L.	Nicol, B. [Teller.]
Dormand of Easington, L.	Northfield, L.
Elwyn-Jones, L.	Oram, L.
Ewart-Biggs, B.	Ponsonby of Shulbrede, L. [Teller.]
Fisher of Rednal, B.
Fitt, L.	Prys-Davies, L.
Gallacher, L.d	Serota, B.
Galpern, L.	Shackleton, L.
Graham of Edmonton, L.	Shepherd, L.
Greenway, L.	Stewart of Fulham, L.
Hatch of Lusby, L.	Taylor of Mansfield, L.
Henderson of Brompton, L.	Underhill, L.
Howie of Troon, L.	White, B.
NOT CONTENTS
Abinger, L.	Ellenborough, L.
Aldenham, L.	Elliott of Morpeth, L.
Ampthill, L.	Ezra, L.
Arran, E.	Faithfull, B.
Balfour, E.	Falkland, V.
Bauer, L.	Ferrers, E.
Belstead, L.	Fortescue, E.
Bessborough, E.	Fraser of Carmyllie, L.
Bethell, L.	Gainsborough, E.
Borthwick, L.	Grey, E.
Boyd-Carpenter, L.	Grimond, L.
Brabazon of Tara, L.	Hailsham of
Bramall, L.	Saint Marylebone, L.
Caithness, E.	Hampton, L.
Carnegy of Lour, B.	Hanworth, V.
Carnock, L.	Harris of Greenwich, L.
Colraine, L.	Henley, L.
Colnbrook, L.	Hesketh, L.
Constantine of Stanmore, L	Hives, L.
Craigmyle, L.	Home of the Hirsel, L.
Cullen of Ashbourne, L.	Hooper, B.
Davidson, V. [Teller.]	Hylton-Foster, B.
Denham, L. [Teller.]	Jenkin of Roding, L.
Dundee, E.	Jenkins of Hillhead, L.

Kaberry of Adel, L.	Rayleigh, L.
Kinnoull, E.	Reay, L.
Lauderdale, E.	Rees, L.
Lindsey and Abingdon, E.	Ritchie of Dundee, L.
Liverpool, E.	Rochdale, V.
Long, V.	Saltoun of Abernethy, Ly
Lucas of Chilworth, L.	Sanderson of Bowden, L.
Lyell, L.	Selkirk, E.
Mackay of Clashfern, L.	Skelmersdale, L.
McNair, L.	Strathclyde, L.
Malmesbury, E.	Strathcona and
Mancroft, L.	Mount Royal, L.
Margadale, L.	Sudeley, L.
Marley, L.	Swinfen, L.
Maude of	Swinton, E.
Stratford-upon-Avon, L.	Thurlow, L.
Merrivale, L.	Torrington, V.
Mottistone, L.	Trafford, L.
Mowbray and Stourton, L.	Tranmire, L.
Nelson, E.	Trefgarne, L.
Nugent of Guildford, L.	Trumpington, B.
Orkney, E.	Vaux of Harrowden, L.
Perry of Walton, L.	Whaddon, L.
Peyton of Yeovil, L.	Windlesham, L.
Plummer of St. Marylebone, L.	Winstanley, L.
Radnor, E.	Young, B.

Resolved in the negative, and amendment disagreed to accordingly.

6.59 p.m.

[Amendment No. 9 not moved.]

Clause 27 agreed to.

Clause 28 [Short title and extent]:

Earl Ferrers moved Amendment No. 10: Page 19, line 41, after ("(e)") insert ("subject to paragraph (a) above").

The noble Lord said: This amendment is consequential on a change to the Bill made on Report in another place. I beg to move.

On Question, amendment agreed to.

On Question, Whether Clause 28, as amended, shall stand part of the Bill?

Lord Henderson of Brompton

I should like very briefly to thank the Government for including the words "Temporary Provisions" in the Short Title of the Bill. I believe that that was against the advice of the noble Earl, Lord Jellicoe, and his report and also against the advice of the noble Viscount, Lord Colville. Though the Act will not last for four or five years but indefinitely, subject to affirmative resolution, I am sure that it is right to include those words to mark its exceptional nature.

Clause 28, as amended, agreed to.

Schedule I agreed to.

Schedule 2 [Exclusion Orders]:

Earl Ferrers moved Amendment No. 11: Page 23, line 17, leave out ("knowingly") and insert ("without reasonable excuse").

The noble Earl said: This is a technical amendment. Under Schedule 2 paragraph 6(8) it is an offence for a person to fail knowingly to comply with directions given to him to remove a person who is subject to an exclusion order. We think that "knowingly" is the wrong term to use in connection with failing to comply with directions. In a similar provision under the Immigration Act 1971 the offence is failing "without reasonable excuse" to comply with directions with respect to the removal of a person from the United Kingdom. The amendment puts the offence in this Bill on the same terms as in the Immigration Act. I beg to move.

On Question, amendment agreed to.

Schedule 2, as amended, agreed to.

Schedule 3 [Supervision of Detention and Examination Powers

Earl Ferrers moved Amendment No. 12: Page 25, line 24, leave out from ("be") to ("and") in line 25 and insert ("reviewed by a review officer not later than twelve hours after the beginning of the examination").

The noble Earl said: Perhaps I may speak to Amendments Nos. 12, 13, 14, 18, 19, 20, 29 and 30, all of which are linked together. Under the Bill as drafted, there is no upper limit on the length of time a person can be examined at a port under Schedule 5, paragraph 2, although after 12 hours the examining officer must of course, under subparagraph (4), have reasonable grounds for suspecting the involvement of the person being examined in the commission, preparation or instigation of acts of terrorism. A person can be detained pending his examination and when this happens he may be detained for up to 48 hours or up to a further five days, if the Secretary of State authorises continued detention, from the time the examination started.

We believe that it should be clear on the face of the Bill that an examination cannot last indefinitely. The amendments limit the period of examination, where a person is not detained, to 24 hours. There are also consequential amendments which, in particular, provide under Schedule 3 for one review only of the examination. Since the examination is to be limited to 24 hours, this seems entirely sensible and is broadly in line with the remaining provisions of Schedule 3 governing frequency of review. I beg to move.

On Question, amendment agreed to.

Earl Ferrers moved Amendment No. 13: Page 25, leave out lines 27 to 31.

Qn Question, amendment agreed to. Earl Ferrers moved Amendment No. 14: Page 25, line 32, leave out ("On any such review").

On Question, amendment agreed to.

Earl Ferrers moved Amendment No. 15: Page 26, line 13, leave out ("has committed an offence consisting of or involving") and insert ("is or has been concerned in").

The noble Earl said: I should like to speak to Amendments Nos. 15, 16 and 17, all of which are linked together. Schedule 3 paragraph 3 contains new provisions for the review by senior police officers of the need for continued detention during the first 48 hours of detention under Clause 14 or Schedule 5. We are here implementing one of the recommendations of my noble friend Lord Colville. We were not satisfied that, as drafted, the Bill fully covered the various reasons why a detention should be allowed to continue. These three amendments put the matter right. I beg to move.

On Question, amendment agreed to.

Earl Ferrers moved Amendment No. 16: Page 26, line 25, leave out ("or").

On Question, amendment agreed to.

Earl Ferrers moved Amendment No. 17:

Page 26, line 29, at end insert ("; or (d) if he is satisfied as to the matters specified in sub-paragraph (5) below. (5) The matters referred to in sub-paragraph (4)(d) above are— (a) that the continued detention of the person in question is necessary— (i) pending a decision whether to apply to the Secretary of State for an exclusion order to be made in respect of him or for notice of intention to deport under the Immigration Act 1971 to be served on him; or (ii) pending the making of such an application; and (b) that consideration of that question is being undertaken, or preparation of the application is being proceeded with, diligently and expeditiously.").

On Question, amendment agreed to.

Earl Ferrers moved Amendment Nos. 18, 19 and 20: Page 26, line 35, leave out from ("or") to ("paragraph") in line 36 and insert ("in the case of a review under"). Page 26, line 38, leave out ("later") and insert ("other"). Page 26, line 43, leave out ("2(2)") and insert ("2(1)").

The noble Earl said: Amendments Nos. 18, 19 and 20 are all consequential on Amendment No. 12, to which the Committee has agreed. I beg to move these amendments en bloc.

On Question, amendments agreed to.

Schedule 3, as amended, agreed to.

Schedule 4 [Forfeiture Orders]:

Earl Ferrers moved Amendment No. 21: Page 33, line 12, after ("it") insert ("(and paragraph 2 above applies accordingly)").

The noble Earl said: Perhaps I may speak to Amendments Nos. 21, 22, 26 and 2 7 all of which are linked together. These are technical amendments. Amendments Nos. 21 and 22 are designed to ensure that the procedures in England and Wales for enforcing a forfeiture order made elsewhere in the United Kingdom or islands operate as if the order had been made in England and Wales. Amendments Nos. 26 and 27 make comparable provisions for Northern Ireland. I beg to move.

On Question, amendment agreed to.

Earl Ferrers moved Amendment No. 22: Page 33, line 14, after ("(5)") insert ("After making any payment required by virtue of paragraph 1(1)(d) or 2 above, the balance or).

On Question, amendment agreed to.

Earl Ferrers moved Amendment No. 23: Page 34, line 41, leave out from ("force") to end of line 43 and insert ("so long as an appeal is pending against the order or against the conviction on which it was made; and for this purpose where an appeal is competent but has not been brought it shall be treated as pending until the expiry of a period of 14 days from the date when the order was made.").

The noble Earl said: This amendment is necessary to take account of Scots law and practice. There are in Scotland certain forms of appeal which are subject to no time limit. The Bill as drafted could mean that in Scotland a forfeiture order might never come into force. The amendment cures that. I beg to move.

On Question, amendment agreed to.

Earl Ferrers moved Amendment No. 24:

Page 34, line 51, at end insert— ("(6) In this paragraph references to the proceeds of the sale, disposal or realisation of property are references to the proceeds after deduction of the costs of sale, disposal or realisation.").

The noble Earl said: This is a technical amendment to bring the provisions in Scotland into line with those proposed for England and Wales at paragraph 1(6) of the schedule. I beg to move.

On Question, amendment agreed to.

Earl Ferrers moved Amendment No. 25: Page 39, line 12, at end insert ("and paragraphs 11(4) to (6) and 12 above apply accordingly.").

The noble Earl said: The Bill as drafted empowers the Court of Session to deal with a forfeiture order made in England and Wales or Northern Ireland, which has been registered in the Court of Session, as if it were an order made in Scotland. This amendment has the same intention as Amendment No. 21. I beg to move.

On Question, amendment agreed to.

Earl Ferrers moved Amendments Nos. 26 and 27: Page 45, line 4, after ("it") insert ("(and paragraph 22 above applies accordingly)"). Page 45, line 7, after ("(5)") insert ("After making any payment required by virtue of paragraph 21(1)(d) or 22 above, the balance of).

The noble Earl said: Amendments Nos. 26 and 27 were taken with Amendment No. 21, to which the Committee agreed. Therefore I beg to move these amendments en bloc.

On Question, amendments agreed to.

Earl Ferrers moved Amendment No. 28: Page 46, line 15, at end insert—