Elected Authorities (Northern Ireland) Bill

HL Deb 06 March 1989 vol 504 cc1318-48

6.39 p.m.

Report received.

Clause 7 [Application to the High Court]:

Lord Prys-Davies moved Amendment No. 1:

Page 4, line 7, leave out subsection (2) and insert— ("(2) The persons referred to in subsection (1) above are—

1. (a) in relation to a member of a district council-
1. (i) the district council,
2. (ii) any person who would be entitled to vote at an election to any council in Northern Ireland held on the date of the application,
3. (iii) any other member of that council, and
4. (iv) the Attorney General, and
2. (b) in relation to a member of the Northern Ireland Assembly-
1. (i) any person who would be entitled to vote at an election to the Assembly held on the date of the application, and
2. (ii) any other member of the Assembly, and
3. (iii) the Attorney General.").

The noble Lord said: My Lords, in moving this amendment it may be for the convenience of the Committee if I also speak to Amendments Nos. 2 and 3

Under the Bill it is left to individual councillors or electors for the district, or to the council itself, to bring court proceedings against a councillor for a determination that he has breached his declaration against supporting terrorism.

We believe that it is unreasonable and dangerous to place the burden of enforcement on individual citizens because this could place them in a position where their lives and those of their families are endangered.

The purpose of this amendment is to enable the Attorney General, who would be beyond the reach of intimidation, to be one of the parties who can bring the High Court action. Amendment No. I would also make it possible for any person who is entitled to vote at an election to any council in Northern Ireland to bring proceedings.

There was considerable sympathy in Committee with the underlying principle of this amendment. We were particularly gratified that it was supported by an impressive speech made by the noble Lord, Lord Colnbrook. The Minister undertook to reflect on what has been said during the debate. Last week a number of us had discussions with the Minister and his colleague Mr. Needham, but, I regret to say, to no avail. I express some disappointment, particularly as the noble Lord, Lord Colnbrook had indicated his support for the amendment which was before the Committee, that the Government have been unable to meet the concerns which were expressed in Committee.

If there is one thing that we have learned over the last 20 years, it is that people in Northern Ireland are exposed to fear and intimidation. This fact was referred to by a High Court judge in the Crown Court in Belfast only last week. That is why the jury system has ceased to function in respect of terrorist offences. Nevertheless, the Government appear to believe that individuals will stand up to intimidation and bring proceedings under this Bill. We acknowledge the courage shown by the people of Northern Ireland, but we are not confident that they will stand up to intimidation and bring proceedings under this Bill.s

Lord Prior

The noble Lord has stressed the point about individuals. I wonder whether it would not be more realistic in Northern Ireland terms to say that it would be very unlikely that an individual would bring such an accusation, but more likely that a group of people would bring an accusation. As I understand it there is nothing in the Bill as drafted to prevent a group of people, members of the locality where the council sits, from bringing such an accusation if they wish to do so.

Lord Prys-Davies

My Lords, although I have referred to the individual, I accept that there is nothing in the Bill to prevent a number of individuals from bringing an action. We had discussions with the department to see to what extent one could have had, as it were, a class action, where five or 10 or more could bring proceedings. However, subject to what the Minister will say to your Lordships' Committee, the department was unable to accept that suggestion. Therefore, it seems to me that we are concerned with the individual applicant, although there may be more than one application.

We are not confident that the Government are interested in enforcing the declaration. They have adopted a casual attitude towards its enforcement. This emerges clearly from the words of the noble Lord, Lord Lyell, when he told the Committee: Whether somebody feels that they wish to take that remedy is entirely up to them".—[Official Report. 23/2/89; col. 718.] When the Minister explained to the Committee that a complaint of a breach of a declaration should be placed before the court, he said: If that is the will of any person who may be affected".—[Official Report, 23/2/89; col. 765.] Although Ministers have constantly stressed that the declaration involves a vital point of principle, it is surprising that the Government do not consider that they have a direct interest in enforcing the declaration. Accordingly, when it comes to enforcement, there will be complete inactivity on the part of the Government. We are saying that the Government also have a direct interest in ensuring that the democratic process is not undermined by violence or threats of violence, and that they have an interest in ensuring the orderly conduct of a council at meetings. It is for that reason and the fear that individuals may be exposed to intimidation that we say that the Attorney General should be in a position to take enforcement proceedings if no one else is prepared to do so.

We are also saying in the first amendment that every citizen in Northern Ireland has an interest in stamping out declarations made by councillors in support of violence. That is why we should like to give the right to bring proceedings to any person who would be entitled to vote at an election to any council in Northern Ireland.

When the Attorney-General proposition was put to Ministers, it seemed that the Government were shifting their ground. We were told that the Attorney-General should not be involved at any price because it would be interpreted by people in Northern Ireland as an interference by the Government in the internal affairs of councils. We should have thought that that is an interference which can be fully justified. In any event, if that argument had any merit, it has not prevented the Government from introducing into council affairs the declaration which is contained in this Bill, a declaration which has already been condemned by Sinn Fein as a British-inspired intervention to prevent Sinn Fein councillors from representing its electorate. We fear that the Government lack the will effectively to stamp out open declarations by councillors of their support for terrorism. If they had summoned up the will to do so. it would not be enough to pass a Bill requiring councillors to sign a declaration unless it was effectively backed by enforcement proceedings. The Government seem to us to cling to the hope that signing the declaration will resolve the problem. That appeared to me to be the hope of the noble Lord, Lord Lyell, when he told Members of the Committee: They"— meaning the councillors— will also know that they have solemnly signed the declaration which is designed to help them exercise their judgment".—[Official Report, 23/2/89; col. 767.] It is virtually certain that some councillors will not perceive the piece of paper which they have signed to be a solemn declaration. Indeed, it is certainly not an oath. As I said, they will not perceive it to be a solemn declaration. It is virtually certain that some of those people who sign the declaration will do so with no intention whatever of abiding by it. So. they having signed it, cynically, it is safe to assume that there will be breaches of the declaration. That will be so if it is thought that they will get away with it—if it is thought that it is not enforceable.

Unless the Government are prepared to strengthen the enforcement procedure by making it possible in particular for the Attorney-General to institute the proceedings, especially where no other party is prepared to take the action because it fears intimidation, we say that the declaration will turn out to be hollow. Hollow declarations will not help to resolve the problems of Northern Ireland. I beg to move.

The Deputy Speaker (Lord Cullen of Ashbourne)

My Lords, if Amendment No. 1 is agreed to I cannot call Amendments Nos. 2 and 3.

Lord Prior

My Lords, I must say that my experience of Northern Ireland is that nothing is absolutely sure or unsure. One can never be quite certain how anything will work. Certainly for an Englishman to assess the likely consequences of a certain measure in Northern Ireland is an extraordinarily dangerous thing to do.

I have read the previous debate and I apologise for the fact that I was not here during the Committee stage. I have read the speech made by my noble friend Lord Colnbrook and other speeches made by noble Lords on the opposite Benches. I have thought most seriously about the whole issue of intimidation. However, I have had to put against the seriousness with which one always listens to the arguments about intimidation the equally serious arguments of whether one considers that the Attorney-General is any more likely a figure in Northern Ireland to be regarded as a reliable man in this context. After all, he is a long way away; he will not know all the facts and they will have to be given to him. Moreover, he is up to a point a politician, but, more important, he is a member of the Government. None of those aspects will necessarily endear him to the people who are concerned in an application to the High Court.

I have come to the conclusion that the Government are right to stay where they are and not accept the amendments. I do not think it is fair to say that the Government arc not serious about such matters because they have come under considerable criticism in certain areas for introducing these measures in the first place. It is absolutely clear that the Government earnestly wish to see that the declarations made by councillors are honest declarations. If they are not, and such people still support terrorism, they must be dealt with. Therefore to that extent I think that the Government need to he, and should be, supported.

I turn now to the actual arguments, of which there are two. The first concerns the Attorney-General. As I have already said, he is a politician and a member of the Government. Any action brought by the Attorney-General would certainly be perceived as being political. It certainly would be perceived as being intervention by the Government in the affairs of councils. Moreover, it is equally true that the nationalists in particular would resent such action; and if they resented it that would undoubtedly increase the sympathy and support for the councillor concerned and a great deal of propaganda would be made out of it by the nationalists as a result.

The Attorney-General operates a long way from the district councils. He would therefore be bound to depend upon information given to him by other people. I have no doubt that some of that information would be inspired by malice. Indeed, it is almost inevitable that that would happen. In such circumstances I do not think that the Attorney-General can win: he is political if he acts, or, if he fails to act to enforce the law, he will have problems for failing to do so.

The other amendment would allow anyone entitled to vote at an election to any council in Northern Ireland—not just the council concerned, but any council—to apply to the High Court. That creates an absolute mare's nest. I can imagine that a member of a council or a person in Northern Ireland, together perhaps with a few others, would seek to raise the problems of a councillor in another district. I should have thought that such a provision was asking for trouble. There will certainly be enough people in each district who will wish to raise the issue of a particular councillor's loyalty without having to get members of a council or electors in another area to do so. Therefore that provision is quite unnecessary and could be disastrous in stirring the whole matter up.

The councils are very closely fought. Of the 26 councils, 18 are unionist and eight are nationalist or evenly balanced. In five councils the loss of a single seat could change the complexion of the council and in three others it would take two seats. My view is that the intimidation can largely be overcome by electors applying in groups. I do not think that an elector has to apply individually. Indeed, there is nothing in the Bill which says that they must apply individually; so they can apply in groups of, say, 10, 20, 30 or 40. They can apply together. Moreover, the more who apply together the less likelihood there is of intimidation. However, if one person applied I think that there would, or could, be intimidation. But I would not expect that situation to arise. I think that one would find that there would be quite a large number who would apply together. That would help to get over the intimidation problem.

I know that the noble Lord, Lord Fitt, took the view that there would be intimidation. No one can rule that out in the Northern Ireland context. However, I do not think that one will avoid problems on this legislation simply by the inclusion of the Attorney-General; nor do I think one will avoid problems by saying that any elector will be allowed to bring a case. My view is that we should give the legislation a chance. The Government are sincere in what they are seeking to do. I do not necessarily say that we always get it right, either in this Chamber or in another place, on the subject of Northern Ireland, but I think it is worth giving this a try.

I hope that your Lordships will give the Government, who have thought very seriously about the matter both there and in another place, a chance. Certainly in another place they were able to explain their point of view, especially in Committee. In view of that I hope that the Government will not give way on these amendments.

7 p.m.

Viscount Brookeborough

My Lords, II should like first to take up a point made by my noble friend Lord Prior who talked about the acceptability of the Attorney-General. He seemed worried about how the Attorney-General would he perceived by those in breach of the declaration. The people of Northern Ireland believe that those who are in breach of the declaration are those who without doubt support terrorism. Their view of the Attorney-General will not change whether he is in London, Northern Ireland or the council chamber.

I put my name to the amendment because I see its acceptance as the minimum change necessary for this part of the Bill to be effective. In the earlier stages of the Bill Her Majesty's Government made the mistake of not making the offence a criminal one. Sadly, that opportunity has now been lost and I feel that the Government will regret the legislation's lack of effectiveness.

It cannot be insignificant that on Second Reading and in Committee every speaker proposed the reinforcing of the Bill, first, by making the offence a criminal one and using the DPP; and, secondly, when that failed by proposing the Attorney-General's introduction into the equation. The Government may not wish to introduce the latter. All I can say is that they should have given more thought to the criminality of the offence in the first place.

We are, after all, talking about support, by word or deed, for terrorism. Sadly, we are beyond that point. The amendment is a last ditch effort to give the Bill effective teeth. To refuse to do that, seems to me, and many in Northern Ireland, to show a severe lack of resolve by the Government. It is not a wrecking amendment. We must be aware of the feeling which will be portrayed outside Westminster, especially in Northern Ireland, should we have a Division tonight. It would be seen as a disunited front in Parliament's determination to defeat and reduce support for terrorism.

Whatever happens tonight the outside world must be clearly shown that your Lordships' House is united behind the Bill's intentions. The intention is to write into the Bill a system which will be effective in the last analysis. The Government's view seems to he that the introduction of the Attorney-General will be unnecessary as the person or persons already specified in Clause 7 will happily take the matter to court. As an individual specified in the clause, although I hope that the Government are correct, I sincerely believe that they are being naive. If by chance the Government are correct, the Attorney-General will not have to act because those at present specified will have already done so. If, as I perceive, they are wrong then, as it stands, the proposed legislation will clearly show the law to be a fool.

By the introduction of the Attorney-General, the amendment merely seeks to give the Bill, and the Government, a safety net or a last ditch fail safe. As it stands, the Bill can only add to the frustration and agony of a province which cannot help but feel that the Government lack the determination to make their legislation effective.

Lord Prior

That is grossly unfair.

Viscount Brookeborough

My Lords, in addition the Government are yet again asking the people of Northern Ireland to do something that they are not prepared to do. For example, they rightly refuse to sit down and do business with pro-terrorist organisations, but they expect democratically elected councillors to do so. They now say, "Here is another matter we will not, or cannot, take action on; but we will sec how you all fare. With your experience and fear of the judicial system, go to the person specified, spend all your time and, more importantly, put your lives on the line in an attempt to make the legislation work. We will stand on the sidelines and record the amount of intimidation and the number of knee jobs and head jobs, or whatever price you have to pay."

I beg your Lordships to believe that this is not a detached individual view of someone who wishes to undermine the intentions of the proposed legislation; I reflect the views of the vast majority of my fellow citizens in Northern Ireland.

I have also spoken to solicitors who feel that they might be unwise, or, at the very least, would be uneasy about putting themselves and their families at risk by taking up cases of breaches of the declaration. It is all very well to sit in your Lordships' House with the belief that in a normal law-abiding society such people can defeat terrorism on their own; Northern Ireland does not fall into that category, which is why I support the intention of the proposed legislation; and, secondly, appeal to your Lordships' House to add the necessary additional power of the Attorney-General to make it function.

Lord Elton

My Lords, I readily understand the concern which the noble Lord, Lord Prys-Davies, and his supporters and my noble friend Lord Brookeborough feel for the safety of people bringing an action under this clause. I confess to having a great admiration for people who have the courage to take prominent parts in public life of this nature in Northern Ireland.

The noble Lord's argument when introducing a similar amendment at an earlier stage, echoed by his introduction of the amendment at this stage, rested principally on the fact that an action had to be brought by an individual. That was his impression, and I understand that he has had that impression confirmed by advice. I too have taken advice, and it is different from the advice that he received. No doubt my noble friend the Minister will be the umpire; but if one refers to Section 6(c) of the Interpretation Act 1978 one will discover that in any statute the singular embraces the plural. Therefore "any person" which in conversation means one person means in law what is often seen on by-law notices—"any person or persons". It is plain to me that the Bill does not put those people at the type of risk that the noble Lord is concerned about.

If that were the noble Lord's only reason for placing the amendment on the Table, it would not seem to be valid and therefore worth proceeding with. However, he may have other reasons for wishing to proceed with the amendment, beyond that which all of us have, which is to do for God's sake anything helpful in that terrible situation. When one is in that mood, it is important to see that one acts not out of desperation but out of wisdom. We must consider rather more closely the Attorney-General's proposed role.

The general idea of Westminster overturning elections in Belfast or Armagh is striking enough in principle but would be a great deal more dramatic in practice. That belief arises from two factors. The first is the present composition of the 26 elected councils in the Province referred to by my noble friend Lord Prior. The control of three of them depends upon a majority of two seats only, and the control of five rests upon a majority of just one seat.

The second factor is Northern Ireland's electoral system. Noble Lords from other parts of the United Kingdom may need to be reminded that it is not the first-past-the-post system with which we are familiar here; it is the single transferable vote system of PR for which the noble Lord, Lord Harris of Greenwich, will again declare his admiration in a moment or two, if he runs true to form.

The result of that system is that a by-election called to fill a vacancy caused by the departure of a member of one political party is often bound to result in the return of a member of another political party. In at least five constituencies and possibly eight, therefore, the amendment would make it impossible for the Attorney-General to demonstrate his impartiality. The rest of the Province and indeed a good deal of the rest of the world would be watching to see what he did in each of them. What would the watchers think they saw? If for instance an action against a member of the Nationalist party with a majority of one would result in the election of a Unionist and the Attorney-General brought it, he would be accused of acting, and he would be believed by many of the opposite persuasion to be acting, on behalf of the Unionists.

If the result of bringing an action against a member of the Unionist party with a Unionist majority of one would result in the election of a Nationalist and the Attorney-General did not take the action, exactly the same conclusion would be reached. If in each of those cases he took the opposite course, he would naturally be seen by others in the community as, in some sinister way, acting not with justice but in pursuit of some imaginary secret agenda hatched under the Anglo-Irish Agreement. Both factions have their terrorist wings and both factions would take every conceivable advantage of that situation. The only question remaining would be which of the various terrorist organisations would profit most from this juicy propaganda gift.

Therefore, I have to conclude that logic, appearance and emotion, all three, combine to show that either of the formats of the amendment which the noble Lord has put before us, far from strengthening the Bill and democracy, would undermine its principal purpose. It would turn the provision from a modest measure of support for democracy to a powerful engine for discrediting it. As the Bill stands, I believe it brings a very small but real improvement to the conduct of local politics in Northern Ireland within possible grasp. As the amendment would leave it, I think it would be a generous gift to those who wish to discredit the elections. I hope that I have made it clear that although I speak with reluctance in the debate I speak with conviction. I share the aims of others in the House to do, for God's sake, anything we can to help. I do not think this would help at all.

7.15 p.m.

Lord Fitt

My Lords, the noble Lord, Lord Prior, in prefacing his remarks, said that it was difficult for an Englishman to forecast whether any election in Northern Ireland would be a success or a failure. That has been adequately illustrated this evening. The noble Lord, Lord Prior, said that he did not think that the amendment was necessary. It would not in any way enhance the provisions of the Bill. He is a former Secretary of State for Northern Ireland and I listened to him with great interest.

However, the noble Lord's predecessor as Secretary of State for Northern Ireland, the noble Lord, Lord Colnbrook, told us an entirely different story. As another Englishman, he takes an entirely different view. During the Committee stage, the noble Lord said: Secondly, if this Bill goes through as it is, it seems to me that there will be an open invitation to the IRA to say, 'Here is the British Parliament passing a Bill at the request of the Government of the day, making it an Act of Parliament, and we can destroy it. We can make sure that the Act does not work.' All they have to do the first time anybody makes an application to the court is to shoot that chap and then there will not he any more. I do not think the Government ought to invite Parliament to pass a Bill which they know can be destroyed by the very people whom the Bill seeks to control".—[Official Report, 23/2/89; col. 778] Two former Secretaries of State for Northern Ireland have expressed views.

Lord Elton

My Lords, will the noble Lord permit me to intervene? I know from conversation with the noble Lord, Lord Colnbrook, that he was then under the impression, as I was, that any application to the court would have to be made by a solitary, lonely figure. I think that alters the case.

Lord Fitt

My Lords, I should have thought that the noble Lord, Lord Colnbrook, would have been here this evening to add his voice to the objections which he so forcibly expressed on a previous occasion.

I am not an Englishman, I think that can be accepted. I have lived most of my adult life in Northern Ireland. 1 was a member of the Belfast City Council for nearly a quarter of a century. I fought 22 elections in Northern Ireland and won 19 of them. I cannot be said to be unaware of the feelings of the people of Northern Ireland. Only today took part in a phone-in programme being broadcast in Belfast on which I expressed the reservations which I express here tonight. It was a programme called "Talk Back". The noble Lord, Lord Prior, will be aware of it. The overwhelming majority of responses were fully in support of the amendment. That is how the people in Northern Ireland see it. I am quite certain that the noble Viscount, Lord Brookeborough, will confirm that.

Let us take away a good deal of the waffle on the matter. The noble Lord, Lord Prior, has spoken as an Englishman. Is it not interesting or informative that all the speakers from Northern Ireland represented in the House are in support of the amendment and of the inclusion of the Attorney-General? I cannot understand the reasoning of speakers who support the Government that the involvement of the Attorney-General would be seen as unnecessary interference in local government.

We shall be renewing the 1973 Northern Ireland Act in a few months' time. Under that Act every single facet of life is under the control of the Government. There would be no local government in Northern Ireland, were it not for the 1973 Act; there would be no PR legislation or PR for electoral purposes were it not for that Act. Every single facet of everyday life is under the control of this Government by way of direct rule.

Why, all of a sudden, should we say, "Well, we don't want to involve the Attorney-General any more"? The Attorney-General is already deeply involved, not only in Ireland but in Northern Ireland. It is the Attorney-General who makes applications to the Government of the Republic to have Patrick Ryan brought back here. It is the officers of the Attorney-General who are in Dublin this very day asking for the return of a person to Northern Ireland, a Mr. Finucane.

It has been said that the Attorney-General is far away from Northern Ireland. But he is far away from Cardiff; he is far away from Liverpool. He is only an hour away by plane, if we bring distance into the matter. The Attorney-General acts in this country on the advice of the arresting authority, the witnesses, the people who will give evidence in court. The Attorney-General does not have to be on Fermanagh County Council or in Belfast City Hall or on any other local authority. His officers will be there and the printed word will be used.

If a breach of the declaration takes place and it is reported in the local press, then everyone in Northern Ireland will be aware of it. Why are the Government so hesitant about involving the Attorney-General? It has been said this evening and previously that one person need not necessarily act on his own in making the application. It could be 10, 20. 30 or 40 people. First, the one, or 10, or 20, or 30 would have to go to a solicitor. That is the only way in which civil proceedings can be begun in the case. The first action the solicitor would take would be to take down one or two names or five, 10 or 20. Then an application would be made to the court. When the case came to court, those names would have to be made public. It would not be necessary for the IRA or any other paramilitary organisation to intimidate 20, 30 or 40 people. All the IRA has to do is to intimidate one and the rest would back out.

Perhaps we can imagine the situation where a case is taken by 10, 20, 30 or 40 people. During the course of the proceedings one of the signatories may not actually be killed; but he is beaten up or his house is wrecked by a petrol bomb thrown into it. What will the other 29, 39 or 49 do? They will naturally run away. That is why we have the Diplock courts in Northern Ireland. Juries were intimidated and they could not be given protection by the security forces. That was why the Government had to resort to single judge courts. There will be intimidation. The most powerful weapon in the hands of the IRA and other paramilitaries has been intimidation. We know about Semtex, machine guns and all the other military hardware that the paramilitaries have. But if they did not have the weapon of intimidation, all the other weapons would be of no use.

It is intimidation which enables the IRA, as has been said in another place, to have at its disposal almost £4 million of illegal money in Northern Ireland. That was referred to in another place in relation to another Bill. It is intimidation which allows the IRA to demand protection money from businesses in Northern Ireland. I ask the noble Lord, Lord Prior, to consider how many businessmen there are in Nothern Ireland. He must know of the dozens upon dozens of businessmen in Northern Ireland at the moment who are paying money every week, every month or every year to the IRA or Loyalist paramilitaries because they are frightened for their lives. The Government know about that and are bringing measures under the Prevention of Terrorism (Temporary Provisions) Bill to prevent it.

Lord Prior

My Lords, I am following the argument of the noble Lord very carefully. One accepts of course that there is intimidation in Northern Ireland. On the other hand, there is an extraordinary number of very brave and honourable people who are not intimidated. The noble Lord, Lord Fitt, is one of them. He has never been intimidated. Some members of the Ulster Defence Regiment have never been intimidated. There are Catholic policemen serving with the Royal Ulster Constabulary who have never been intimidated. I do not believe that the fear of intimidation in this particular case is as high as it is in a number of other cases, particularly with businessmen who experience a loss of profits through intimidation. But I believe that in Northern Ireland there will always be a sufficient number of people who, despite possible intimidation, will stand up for what they believe to be right. I have always thought that was one of the strongest points in favour of the people of Northern Ireland.

Lord Fitt

My Lords, that is too great an onus to put on the back of anyone in Northern Ireland. We cannot merely stand here and say there are very brave people in Northern Ireland and that we hope they will put themselves at an even greater risk than they have experienced hitherto. I think that is very unfair. I no longer live in Northern Ireland. I was intimidated out of it. I live in England because the IRA burnt my home and everything in it. That body would have been glad if I had formed part of the contents of my home at that time.

The IRA has engaged repeatedly in intimidation. Noble Lords who have had any connection with Northern Ireland will recall that it was a Labour Government I believe who brought out the new theme of the Ulsterisation of the security forces. That meant that the security forces would be composed mostly of members of the UDR and the RUC. That was interpreted in Northern Ireland as the British Government saying that they did not care how many UDR and RUC men were killed, so long as British soldiers were not killed. I was in Northern Ireland at that time. I remember making speeches protesting against that measure.

The noble Lord, Lord Prior, has experience of these matters. In 1982 when I was still a Member of Parliament, the noble Lord, who was a Member of another place too, very courageously in my view tried to introduce an initiative into Northern Ireland—that was the assembly Act 1982. The noble Lord tried his best. I think it is on record that of all the Northern Ireland Members of Parliament at the time I was the only one who gave him my full support. That was a year after the hunger strikes. In 1982 at the assembly elections Sinn Fein, living as it was on the previous year's terrible emotional torment that had engulfed Northern Ireland, succeeded in getting five men elected to the Northern Ireland Assembly. Once they were elected, they refused to have anything to do with the initiative. They said they did not want an assembly or any structured share in Northern Ireland created by a British Government. They said they wanted the British out.

Much to its shame the SDLP—the party I had founded and formerly led—agreed with that. It refused to recognise the Northern Ireland Assembly which had been so painstakingly set up by the noble Lord, Lord Prior. The noble Lord will also agree with me that in this legislation, as it stands, the SDLP will under no circumstances ever lay a complaint against Sinn Fein. We can wipe that from our minds. The SDLP will not lay any complaints against Sinn Fein because Sinn Fein and the SDLP are from the same tribe. They come from the one political side of the political divide in Northern Ireland. As the noble Lord, Lord Prior, has quite rightly said, their PR is in elections. People will go to elections to vote for Sinn Fein and they will give their second, third or fourth preference to the IRA or to the SDLP. Some people will give their first preference to the SDLP, but their second, third or fourth preference to Sinn Fein.

The only people who will take action against someone who is in breach of this measure will be members of the Protestant, Loyalist or Unionist community for want of a better word. They are already targets. The Protestant community in Northern Ireland has faced a campaign of genocide since 1970 and 1971. 1 am not a Protestant, a Loyalist or a Unionist, but I have every sympathy with the terrible tragedy that that community has faced over the past 20 years. To ask that community to go through that experience yet again and to put itself at risk again is to add further to its burden.

I remember in 1969 trying to pilot a Bill through the old Stormont Parliament. It was entitled the Incitement to Hatred Bill. It was a Bill just such as this. There was not a great deal of teeth in it. I tried to give it teeth. The Government was then under Terence O'Neill, who is now the noble Lord, Lord O'Neill of the Maine. Under the Bill one prosecution took place and then it was found wanting. It was never used again. It would be a real tragedy if this Bill were to reach the statute book only to find that the IRA laughed, sneered and jeered at it.

In another part of this building there are those with whom I completely disagree. When legislation such as this is brought forward, they engage in my view in their own political attitudes rather than trying to ensure peace in Northern Ireland. Every speaker from this side of the House has wanted to help the Government. They have wanted to defeat the men of violence. I am certainly trying to do everything I can to make life more difficult for all the paramilitary organisations in Northern Ireland.

I have tried my damnedest to understand why the Government are so reluctant to include the Attorney-General in this legislation. The Attorney-General travels on aircraft with bodyguards. When he goes to Dublin, he takes his Special Branch officers with him and he is met by Special Branch officers in the Irish Republic. When he goes to Northern Ireland, he is met by Special Branch officers. He is given 24 hours-a-day protection whilst he is there. That protection would not be available to someone who may be seething with anger at the activities of a Sinn Fein councillor, for example, who was in breach of this legislation. But that complainant cannot say that he will lay a complaint against the Sinn Fein councillor so long as 24 hour-a-day protection, such as is given to the Attorney-General, is provided to the complainant. We, on this side of the House, are trying to help the Government by means of this amendment. We are trying to help the people of Northern Ireland. I do not think it would be in the interests of the Government or of the people of Northern Ireland if the Government were to reject this amendment.

7.30 p.m.

Lord Harris of Greenwich

My Lords, shall speak as briefly as possible because I suspect that the House would like to reach a conclusion on this matter. I listened with great respect to the noble Lord, Lord Prior. He said that he had considered the matter very carefully but had come to a conclusion which was contrary to that reached by his noble friend Lord Colnbrook. He said a number of things with which I agree entirely.

There are indeed many gallant people in Northern Ireland. He instanced a number: Catholics in the Royal Ulster Constabulary, members of the UDR, many retired police officers who choose to spend their retirement in Northern Ireland knowing that they will have no form of adequate protection.

However, I came to a contrary conclusion. As the noble Lord, Lord Fitt, has just pointed out, we are asking a number of people to volunteer to take a course of action which could easily lead to their assassination. The question arises as to whether as members of this House we feel it is responsible to do so. I for one do not. I think that it is unfortunate that we are discussing this matter in a relatively thinly attended House, but that is inevitable given the time of the evening. It could well be, as the noble Lord, Lord Colnbrook, said last week, that the first person who makes an application to the courts may lose his life.

I accept that the legislation enables groups of people to make applications. That was one of the matters which the noble Lord, Lord Prys-Davies, and I discussed with the Ministers in the Northern Ireland Office. The noble Lord suggested that there may be something to be said for insisting on class actions in which five or ten people would be required to make a complaint. However, some of the problems involved in the joint application which is favoured by the noble Lord, Lord Prior—and I believe by the noble Lord, Lord Elton—are spelt out in a letter which I have received from the noble Lord, Lord Lyell. I am sure that I would have his permission to quote from that letter. He said: The object of the proposal advanced yesterday would be to reduce the risk of intimidation still further, by ensuring that electors are compelled (rather than, as at present, permitted) to bring actions only in groups. Paradoxically, however, the requirement of a minimum number of applicants seems to make the task of the would-be intimidator easier, rather than more difficult. He needs only to intimidate one of the group of 10 for the action to fall". Later the Minister makes a point which is even more relevant to what the noble Lord, Lord Prior said. In the other place Mr. Needham devoted a fair amount of time and attention to the question of legal aid. The applicant who wishes to go to the High Court, unless he has very substantial resources, will want to make an application for legal aid. If there are a number of people making the application the problem will be significant.

In his letter to me the noble Lord, Lord Lyell, said: We attach also considerable importance to the availability of legal aid for actions brought by electors. I am advised that legal aid would not be available for the kind of action which we are considering, unless each individual applicant met the criteria. This circumstance seems most unlikely to arise, and the effect of the proposal would be to make legal aid, in practice, unavailable for actions brought by electors". That demonstrates some of the problems inherent in the collective approach.

We consideredthe matter after our meeting with Ministers. In the light of what we had been told by Mr. Needham and the noble Lord we decided not to proceed with an amendment of that kind.

I find some of the arguments which have been deployed against the first of the amendments moved by the noble Lord, Lord Prys-Davies, rather thin. The amendment does not require the Attorney-General alone to bring the action, it simply adds him to the list of people who can bring the action. What conceivable objection is there to that? I have not heard a single argument deployed in this debate which in any way answers that particular point.

Lord Elton

My Lords, can the noble Lord tell me what will happen if, as he predicts, nobody is willing to make a collective objection? Will not the Attorney-General be in exactly the position which I described in my brief (but I hope clear) speech, thus demonstrating it would seem to observers that he could not be impartial?

Lord Harris of Greenwich

My Lords, I did not predict that no one would use the legislation. It may be that they will and it may be that they will not. It would be foolish for me to do so. The noble Lord, Lord Prior, made the point—and I agree that it is extremely difficult to predict precisely what will happen. All I am saying is that the risks involved in bringing the action will be very substantial.

If a person makes a witness statement to the department of the Attorney-General they run the risk of being a witness in a High Court case. However, different issues are involved if they are appearing as a witness rather than as the plaintiff in the action. That is a point which in my view has not been answered in the debate.

Lord Elton

Can the noble Lord explain the difference between intimidation so that there are no witnesses to support the action—

Lord Harris of Greenwich

With great respect, most Members of the House will be aware of the very substantial difference between a person making a statement to the authorities which causes the Attorney-General to take proceedings and being the plaintiff in the proceedings themselves. They will have to go through the whole process of making application for legal aid with all the delays that will result giving the terrorist organisations longer to plan their response, and more time to intimidate.

I will conclude by saying that I do not think that any of us can predict with certainty what will follow the passage of this legislation. However, in what I concede is a difficult matter of judgment, I believe that this legislation stands a better prospect of success with the inclusion of the amendment we are now debating. It gives any elector the opportunity to bring proceedings rather than simply an elector in a district council area, which is far too narrow a provision. It also gives the district council the opportunity of bringing the proceedings and adding the Attorney-General to the action.

I very much hope that, in the light of what has been said today and at Committee stage when, I remind the House, every single Northern Ireland peer who spoke supported the position we are adopting in the amendment, the House will agree to it.

Lord Blease

My Lords, I think that we must go back to what the Bill originally attempted to achieve; namely, to bring about the democratic processes of representation in local government in Northern Ireland. For a number of years, sadly, the situation has deteriorated deplorably.

I listened with interest and great respect to the noble Lord, Lord Prior, the noble Lord, Lord Elton, with his ministerial experience in Northern Ireland, and also to the noble Lord, Lord Harris, who served at the Home Office with a marginal interest in Northern Ireland affairs. I have taken into consideration the remarks of the noble Lord, Lord Elton, about what the noble Lord, Lord Colnbrook, had to say on 23rd February, when he said: I do not think that the Government ought to invite Parliament to pass a Bill which they know can be destroyed by the very people whom the Bill seeks to control".—[Official Report, 23/2/89; col. 778.1] At the same time I have listened with interest to the reservations expressed by noble Lords. I must go back to the position which I adopted at Second Reading and Committee stage. I was also one of the noble Lords who were invited to meet the Minister and his honourable friend Mr. Richard Needham.

It appears to me that the main point at issue at this stage is the involvement of the Attorney-General in the proceedings. The noble Lord, Lord Harris, said that the arguments adduced have been thin. Quite honestly, I would concur with that and add the phrase "very disappointing". When we met the Minister and his honourable friend we felt that, although they were reasonable and courteous in their approach, their arguments were repetitious. They came forward with nothing new and we have heard those arguments repeated in the House this evening.

Despite the debates in this House and in another place and the consultations that have taken place, Ministers have not faced up to the crucial issues of effective enforcement and the inevitable implications of intimidation. I noted the remarks of the noble Lord, Lord Fitt, and return to the remarks of the noble Lord, Lord Prior. He is quite right. He said that there were brave men and women in Northern Ireland. Those who represent the UDR, the police, the law and ordinary people going about their work and seeking to be public representatives are brave people, but none of them wants to put their families or their grandchildren on the line. That is where this issue comes in. Many of those people will go out tomorrow and face up to terrorist issues, but they will not pledge their families to such destruction. That is the issue with which we are faced this evening.

I should like to think that I would applaud in some degree the Government's good intentions in attempting to provide some redress to those who have to sit in council chambers beside people who have refused to condemn murder and terrorism. At the same time, I must say that I, like other noble Lords, am sadly bemused by the blinkered attitudes of the Government, who have had to cope with the widespread ramifications of violence and terrorism. They are familiar with the blunt end of terrorism. They know the problems that they face when travelling backwards and forwards. Ministers know what it is like to go to bed at night when there are decisions to be made.

The point is that, instead of the state undertaking some element of the prosecuting measures against the offending elected representatives, the Government have offloaded their responsibility to ordinary citizens on to councillors. They are offloading their responsibility as a state. I do not blame the Minister or any individual Minister. I simply say that the Government have a collective responsibility in this matter. The cost in terms of litigation and the risk to life have been mentioned, as well as the human suffering which will be borne totally by individuals, and perhaps by some ratepayers, rather than by the state whose duty it is to protect law-abiding citizens and to represent the public interest. That is the duty of the Attorney-General.

I say, without any sense of vindictiveness towards the Minister or his ministerial colleagues, that the Bill as presented to the House and in its present form demeans democracy rather than enhances the democratic processes. I shall be brief. During our consultations with the Minister and his honourable friend, Mr. Richard Needham, mention was made of an opinion poll which was carried out on Friday, 2nd September. It asked: Do you think that all elected politicians, including local councillors, should have to publicly reject violence before being allowed to take up office or not? One could predict the outcome of that poll. We are all against violence. Those people who were approached, whether in their homes or on the street, would naturally have reacted to the question, but it did not explain to them how they would have to bear the brunt of the implementation of this legislation. That survey does not reflect the feedback that I receive from councillors and other people in public life in Northern Ireland regarding the implementation of the Bill. What I say has been echoed not only by my noble friend Lord Prys-Davies but also by the noble Viscount, Lord Brookeborough, who has faced up to this in no uncertain way as a citizen and resident of Northern Ireland.

The issue of the Attorney-General is the main question. We have gone down the road of asking, first, what the declaration will do for local government. When the declaration is violated in some way, a High Court action might be taken but after that brave men and women will lake action. After that, there will be an election on proportional representation. The terrorists would perhaps feel that they should not risk violating the declaration because of the possibility of court action and of losing the seat as a result of proportional representation. That is the thin argument that is presented to us. We have not worked out how a High Court action will be taken or what will be involved. Nor have we mentioned the position of local government officers who are expected to advise on such issues. They are certainly timorous of legislation that will put them in a serious situation as the servants of local government in Northern Ireland.

In that situation, the Attorney-General is asked to do no more, and, I hope, no less than he is expected to as regards other issues concerning human rights and upholding the law thoughout the United Kingdom. He may be a politician and a member of the Government. He acts in that manner in trade union matters. He acts in certain civil cases by attempting to look at the public interest in matters of this nature. I believe that all that is required is this third element in the prosecuting procedures and the Attorney-General is very necessary in that respect.

7.45 p.m.

The Earl of Romney

My Lords, perhaps I may ask the Minister whether, if he feels that he cannot concede the amendment, he will take it back. He must have heard the persuasive arguments of noble Lords opposite and of our noble friends. He must see that it would be very sad for Northern Ireland if the people could see how many noble Lords vote against the amendment, as I am sure many will. Perhaps I may ask him to think again. There will be another chance to bring up this matter and I hope that he will have relented by then, if he has not done so already.

The Parliamentary Under-Secretary of State, Northern Ireland Office (Lord Lyell)

My Lords, I am very grateful, as I am sure are all noble Lords, for the contributions that we have had to this evening's debate, especially that from the noble Lord, Lord Prys-Davies, who introduced the case for his amendment.

Since this matter was discussed in Committee on 23rd February, my colleagues and I have undertaken what I hope your Lordships would concede has been a full and, I hope, courteous round of consultation. I believe that we have had a good discussion of the issues, but to my regret the arguments that we advanced have, for various reasons, failed to convince the noble Lords, Lord Prys-Davies and Lord Harris of Greenwich, and other noble Lords who have taken part in the debate. By the same token, without disrespect to those noble Lords who came to see us, the arguments that were advanced failed equally to convince myself and my honourable friends. Perhaps I may first address the question that lies at the core of the argument at Second Reading, and was discussed exhaustively at Committee. I hope that my noble friend Lord Romney will take heart that we have heard a great deal of the same arguments at an earlier stage this evening. I am sure that my noble friend will accept that I undertook to consult my right honourable friend and my other ministerial colleagues. It is in the light of those consultations that I shall have some remarks to make this evening.

First, perhaps I may address the central question of the position of the Attorney-General. In any legislation of this nature of course a large element of judgment is involved. But we believe, as we always have, ever since we started the consultation process that has led to the Bill before your Lordships—and that has taken place over four years, and I stress that to every one of your Lordships this evening—that this Bill is the result of nearly four years of consultation with councillors and persons all over Northern Ireland who are involved in local democracy. Certainly we believe that to involve the Attorney-General in actions under the Bill that we are discussing this evening—and the objectives of the Bill are a good bit narrower than some of the objectives that have been mentioned, notably by the noble Lord, Lord Blease, and by my noble friend Lord Brookeborough—in practice would be close to dangerous. Secondly, it would not serve the objective of the Bill. Thirdly, it certainly would not make the declaration easier to enforce.

Let us consider the position of the Attorney-General. In spite of the visions of the noble Lord, Lord Fitt, of air journeys to Liverpool, or anywhere else, he has no capacity to monitor the day-to-day behaviour of councillors; and that is what we have in the Bill today. The Attorney-General would have to rely upon information about breaches of the terms of the declaration which is before your Lordships in Clause 6 which would be laid by others. In effect people who heard or saw breaches would have to apply to the Attorney for an action to be brought. How is the Attorney-General to reply? First, as I have said, he is far removed from the council chambers of Northern Ireland. Secondly, he cannot employ the Royal Ulster Constabulary, let alone the staff of the Director of Public Prosecutions, to investigate, since the breach, under the Bill this evening, is not a criminal offence. In short, he is not well placed to be the judge of whether the cases are strong or weak. Yet a decision has to be reached. I believe that there are very serious flaws in whatever decision would be reached.

First, if the Attorney-General being a politician and a Member of the Government, decides to bring an action under the terms of the amendment, he immediately opens himself to the charge that he is acting from political motives. That was brought out by my noble friend Lord Prior and my noble friend Lord Elton. On the other hand, if the Attorney believes that the evidence before him is weak and that no case should be brought, he would be criticised for failing to enforce the law. The possible case would be weakened before it was ever considered by the court. That is the thrust and main element, and the main enforcement in the Bill that we have before us this evening.

Whatever decision he takes, his standing—and more importantly the standing of his office—will be affected. The perceived impartiality of the Attorney-General— in spite of everything we have heard about intimidation and everything else in Northern Ireland—is crucial to public confidence in the administration of justice. We believe that it is wholly wrong to create a mechanism which would encourage challenges, however unjustified. For better or worse, this is exactly what we believe all the amendments would do.

Let us dwell for a moment on the nature of the problem which the Attorney would have to face. Let us look at one effect—and indeed it was pointed out very briefly by my noble friend Lord Elton—of the voting system in Northern Ireland. Were a sitting councillor to be disqualified or removed by the terms of the breach of declaration, a by-election for that single seat will often produce a different result from the result in the local election that took place under the normal rules every four years. I am sure that noble Lords who know Northern Ireland can imagine what would happen if a national councillor who has triumphed in the local election is disqualified as a result of action being taken under the Bill. A Unionist takes his place and there is a Unionist majority on the council. Just imagine that scenario, and the involvement of the Attorney-General.

My noble friend Lord Elton covered the point of the political complexion in the councils and the narrowness of some of the majorities in control of councils in Northern Ireland. I believe he said that eight—and he is quite right—are controlled by a majority of one seat. However, the noble Lord,Lord Blease, made play tonight and at an earlier stage of what he called the duty of the Attorney-General. Can we all recall the objective of the Bill before us this evening? It is to provide responsible councillors and electors with a recourse against expressions which cause offence to them, and possibly to many others, and which disrupt local government.

I stress once again to your Lordships, and earnestly, that it is not the purpose of the Bill to prevent all expressions of support for terrorism by anyone and in all circumstances. For that purpose a criminal offence applying to everyone, not just councillors and Assembly members, would be required. We consider, especially in line with the Bill tonight, that to create such an offence would go too far. In the circumstances we believe it right that an action should be brought, not by the Attorney, but by those who have a direct interest in the behaviour of the elected representatives concerned. I believe that noble Lords will see that set out in Clause 7.

The second main pillar of the debate this evening, at Second Reading and at an earlier stage has been the constant threat of intimidation. I believe that all noble Lords who have spoken have expressed concern about the possibility that applicants under the Bill will be intimidated. Intimidation, let alone intimidation of witnesses, is a problem in criminal cases associated with terrorism in Northern Ireland. However, in such cases—and serious criminal cases—paramilitary organisations use intimidation to protect their members against long prison sentences. It remains to be seen, accepting that sanctions for breach of declaration under the Bill before us this evening do not involve imprisonment, whether the incentive to intimidate will remain.

It has been argued by noble Lords that making the Attorney responsible for the actions will provide protection for the applicants. This seems to be a constant thread through the argument. It misses two central points. I have made both points at Second Reading, and at an earlier stage. I shall be making them again this evening. I wonder whether the noble Lord, Lord Harris, is not dancing on the head of a pin this evening when it comes to the question of intimidation of witnesses and applicants. Even if it were the Attorney-General who brings the case, witnesses would remain vulnerable. If, as some noble Lords argue, paramilitary organisations are able to halt cases by intimidating applicants, exactly the same argument must apply to witnesses, since witnesses, under whatever scheme is brought forward in the Bill, will have to appear in the High Court. On the argument that all witnesses and applicants would be subject to, let alone buckle under, intimidation, no case would stand up—even one which was brought with the aid of the Attorney-General.

Secondly, someone will have to lay information before the Attorney and ask him to bring an action. In such a case the complainant will be just as vulnerable to intimidation as any applicant. In essence, he is an applicant except that the application is made in the first instance to the Attorney rather than direct to the court. This too was a very strong argument. In such circumstances the introduction of the Attorney would merely be an additional hurdle, while providing little or no real protection to the complainant.

In preparing the Bill of course the Government reflected on the possibility—we had nearly four years to do so—that potential applicants or witnesses might fear intimidation. That is why we built two safeguards into the Bill. First, one public authority—the council itself—is empowered to bring actions. That is an important and valid longstop for councillors or electors concerned about intimidation. That is at the heart of many of the arguments this evening.

Secondly, the Bill provides for actions to be brought, in the words of Clause 7(1) by "any one or more" of the persons specified. My noble friend Lord Elton pointed out that according to interpretation the singular embraces the plural. In Clause 7(2) we have made that quite clear. It is open to electors or councillors who are concerned about the possibility of intimidation—we have heard the word consistently this evening—to group together and to reduce what risk exists.

I believe that the noble Lord, Lord Prys-Davies, accepts the value of that provision. Electors or councillors who ban together not only reduce fear of intimidation; they spread the cost, and increase the likelihood that the action will be sustained, even if one or two councillors or electors, for whatever reason, drop out from the group bringing the action. It is an important measure of protection for councillors and electors; and it increases the effectiveness of the enforcement mechanism as a whole.

There is one other item that I should like to cover, especially in relation to the remarks concerning criminality made by my noble friend Lord Brookeborough. He wished to see a criminal offence in the Bill. If that failed one could then bring a civil action, as we envisage in the Bill. The noble Lord, Lord Fitt, mentioned the Incitement to Hatred Act. Statements which breach the declaration may also be criminal offences under public order law, most notably in Article 9 of the Public Order (Northern Ireland) Order 1987 which deals specifically with incitement to hatred. If statements caught by the Bill in breach of Clause 6 amounted to incitement, of course it is open to the police as well as to the Director of Public Prosecutions to mount criminal cases in the normal way. But it would be necessary to prove the making of the statement, probably by oral testimony, of a reliable witness.

If any person anywhere in Northern Ireland is witness to expression of support for or approval of terrorism, of course he can offer himself or he can be called as a witness in an action brought by someone who has an interest. I believe that that protection, as well as the provisions of Clause 7(1), which provides that any person or persons or group may come together to bring an action, will answer many of the questions raised at earlier stages by your Lordships.

I hope that in the light of the case I have set out at length tonight, on a previous occasion as well as in discussions and at Second Reading, the noble Lord, Lord Prys-Davies, can accept the valid points we make. The noble Lord has suggested—I hope that I quote his words accurately—that the Government are taking a casual attitude to the Bill. That is not exactly accurate, after nearly four years of intensive consultation with councillors and persons involved in local government and interested in it throughout Northern Ireland. That could not possibly be described as casual let alone naive, which was the word used by my noble friend Lord Brookeborough. I do not think that we have come to a naive decision after four years of discussion.

I stress again to the noble Lord, Lord Blease, that the Bill is a result of four years of intensive discussion with many people known to him as well as to the noble Lord, Lord Fitt, all over Northern Ireland. I have spelt out at considerable length tonight, at Second Reading and at Committee stage why we believe the involvement of the Attorney-General will not help the objectives of the Bill, let alone help to resolve the problem of intimidation of applicants and witnesses. I beg your Lordships not to accept the amendment.

Lord Prys-Davies

My Lords, I should like to thank noble Lords who have spoken in support of the amendment. Although the noble Lord, Lord Prior, has been unable to support the amendment, we always listen with great respect to what he has to say because we very much appreciate the contribution he made to Northern Ireland when he held the office of Secretary of State.

There is some common ground between the noble Lord, Lord Prior, and ourselves. He acknowledged that it was a matter of judgment whether or not the declaration could be enforced and therefore whether this part of the Bill is workable. He said, echoing the words of the noble Lord, Lord Lyell, at Committee stage or perhaps Second Reading, that doing the best we can for better or for worse let us give the declaration an opportunity. Let us see what effect it will have.

We have also listened to the Members of your Lordships' House who live in Northern Ireland or who have had long experience of the affairs of Northern Ireland. Their advice very clearly is that the Government are underestimating the risks of intimidation. If we can see that there is in this possible critical flaw in the machinery contained in the Bill, that people will not be prepared to take the enforcement proceedings because they fear intimidation, surely it is for the House to seek to strengthen the enforcement procedure. That is our case. We seek to strengthen the enforcement procedure by making it possible for the Attorney-General to bring the action.

The noble Lord, Lord Harris, made it clear that the Attorney-General would not be asked to take all the proceedings; but if the other persons named in the clause are not prepared to take the proceedings because they fear intimidation, then the Attorney-General is in the position to take the proceedings. He would be beyond the reach of intimidation.

We believe that the declaration can be of value in Northern Ireland, provided that the enforcement procedure is workable. By involving the Attorney-General we believe that it would be workable. That is the argument we presented at Second Reading and in Committee, but I have sought to deploy another argument in the House this evening. We say that by involving the Attorney-General it would be a clear acknowledgment and a clear signal that the Government consider that they have an interest in the ordinary conduct of council business. That is why I described the reference of the noble Lord, Lord Lyell, to the enforcement procedure as being casual.

In Committee the noble Lord, Lord Lyell, said that it is up to the individual to decide whether to take that remedy. It appears to us that on that basis we can say that the Government are adopting a casual attitude towards the enforcement of proceedings. However, if the Attorney-General were to take the proceedings, it would be a clear signal to the men of Ireland, and to the councillors who support the men of Ireland, that the Government consider they have an interest in the ordinary conduct of council business in Northern Ireland.

However, if the Government are determined not to become involved in the enforcement—and that is the message which comes from the Government Benches this evening—it should come as no surprise to them if the declaration, although it holds a central place in the Bill, is perceived by the people of Northern Ireland as being empty rhetoric.

For those two reasons we must ask that the amendment be pressed to a Division.

8.11 p.m.

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

Their Lordships divided: Contents, 52; Not-Contents, 67.

DIVISION NO. 2
CONTENTS
Addington, L.	Kirkhill, L.
Airedale, L.	Kirkwood, L.
Blackstone, B.	Lloyd of Kilgerran, L.
Blease, L.	Macaulay of Bragar, L.
Bonham-Carter, L.	Mclntosh of Haringey, L.
Brookeborough, V.	McNair, L.
Carter, L.	Mason of Barnsley, L.
Cledwyn of Penrhos, L.	Meston, L.
Cocks of Hartcliflfe, L.	Monson, L.
David, B.	Moran, L.
Dean of Beswick, L.	Mulley, L.
Dormand of Easington, L.	Murray of Epping Forest, L
Ennals, L.	Nicol, B. [Teller.]
Evans of Claughton, L.	Ogmore, L.
Falkland, V. [Teller.]	O'Neill of the Maine, L.
Fitt, L.	Prys-Davies, L.
Gallacher, L.	Ritchie of Dundee, L.
Gladwyn, L.	Romney, E.
Graham of Edmonton, L.	Ross of Newport, L.
Hampton, L.	Stoddart of Swindon, L.
Harris of Greenwich, L.	Whaddon, L.
Hatch of Lusby, L.	Wigoder, L.
Hooson, L.	Williams of Elvel, L.
Jeger, B.	Winstanley, L.
John-Mackie, L.	Wise, L.
Kilbracken. L.	Wyatt of Weeford, L.

NOT-CONTENTS
Allenby of Megiddo, V.	Harmar-Nicholls, L.
Arran, E.	Henley, L.
Astor, V.	Hesketh, L.
Bauer, L.	Hives, L.
Belstead, L.	Holderness, L.
Bethell, L.	Joseph, L.
Blatch, B.	Kaberry of Adel, L.
Brabazon of Tara, L.	Kimball, L.
Brougham and Vaux, L.	Kinloss, Ly.
Buckmasler, V.	Lawrence, L.
Butterworth, L.	Liverpool, E.
Carnock, L.	Long, V.
Chelwood, L.	Lyell, L.
Coleraine, L.	Macleod of Borve, B.
Craigmyle, L.	Mancroft, L.
Cross, V.	Margadale, L.
Davidson, V. [Teller.]	Mersey, V.
Denham, L. [Teller.]	Morris, L.
Denman, L.	Mountevans, L.
Dundee, E.	Mowbray and Stourton, L.
Elliott of Morpeth, L.	Murton of Lindisfarne, L.
Elton, L.	Napier of Ettrick, L.
Faithfull, B.	Oxfuird, V.
Ferrers, E.	Pender, L.
Fraser of Carmylie	Prior, L.
Gisborough, L.	Quinton, L.
Gray, L.	Reay, L.
Gridley, L.	Renton, L.
Hailsham of Saint Marylebone, L.	Rippon of Hexham, L.
	Sanderson of Bowden, L.

Skelmersdale, L.	Thomas of Swynnerton, L.
Strathclyde, L.	Trefgarne, L.
Swinton, E.	Trumpington, B.
Thomas of Gwydir, L	Wynford, L.

Resolved in the negative, and amendment disagreed to accordingly.

8.19 p.m.

[Amendments Nos. 2 and 3 not moved.]

Clause 8 [Disqualification in consequence of breach of declaration]:

Lord Prys-Davies moved Amendment No. 4:

Page 5, line 1, leave out subsections (1) and (2) and insert— ("( ) A person who is determined by the High Court to have acted in breach of the terms of a declaration against terrorism made by him is disqualified for membership of a district council or of a Northern Ireland Assembly for a maximum period of five years as determined by the Court beginning with the date of determination.").

The noble Lord said: My Lords, as the Bill stands nothing less than five years' disqualification will suffice if a determination is made by the High Court that a councillor is in breach of his declaration.

The purpose of the amendment is to give the court a discretion to reduce the period of five years by reference to mitigating circumstances. A councillor will have no ground for complaint about disqualification where he has set out intentionally and wilfully to breach the declaration. We say that in those circumstances he fully deserves the disqualification. However, many of us find it strange and unfair that an unintentional breach of the declaration—a chance remark or an impulsive response in a provocative situation—should lead automatically to the same penalty and the same period of disqualification as that imposed for a wilful breach of the declaration.

The Bill fails to draw that distinction. We believe that the Bill is blunt and unfair in not doing so. We believe that in time it will be perceived by the people of Northern Ireland as unfair. We accept that mitigating circumstances should not be a defence to the proceedings but they should be relevant in deciding the period of disqualification. This amendment allows the court to take into account the mitigating circumstances in deciding the period of disqualification. I beg to move.

Lord Lyell

My Lords, I am grateful to the noble Lord, Lord Prys-Davies, who, as we have come to expect, moved his amendment succinctly, briefly and clearly. In the course of the Second Reading debate, the noble Lord suggested that bluntness and simplicity were not necessarily virtues as far as the declaration was concerned. As regards the disqualification period for a breach of the declaration against terrorism, I would suggest that the bluntness and simplicity of the present clause are preferable to the degree of refinement which this amendment seeks to introduce. In taking a fixed five-year disqualification as the appropriate period, the Bill is largely following the existing law on disqualification for council office, both in Northern Ireland and in Great Britain.

Under the Local Government Act Northern Ireland 1972, at present a councillor is disqualified for five years from the date of conviction if he is sentenced to three months' imprisonment or more for any offence. This Bill replaces that with a period of five years from the date of release.

A person is also disqualified for five years if he is convicted of acting as a councillor while disqualified, whatever the sentence imposed. He is disqualified for five years if a local government auditor certifies that a sum of more than £2,000 is due from him, and the loss or deficiency was caused by his wilful misconduct. If he has been found personally guilty by an election court of a corrupt practice, he is barred from holding public office for five years.

If someone has been made bankrupt, or has reached a composition or arrangement with his creditors, his disqualification continues for five years from the issue of a certificate of conformity, or from the date on which the terms of the deed of composition or arrangement have been fully implemented.

There is nothing magical or talismanic about the figure of five years. But a disqualification period of five years has the advantage that a councillor or Assembly member who breaches the declaration is disqualified for the life of the current council or Assembly and is prevented from standing at the next general election to those bodies. The Government believe very firmly that this is the appropriate sanction for someone who breaches his declaration, and that it should apply automatically.

As the Bill stands, the High Court will be required to decide whether a councillor's words or actions could reasonably be understood as expressing support for, or approval of, proscribed organisations, or acts of terrorism connected with the affairs of Northern Ireland. There might be a conflict of evidence. But the issue for the court is essentially a simple one; whether or not the declaration has been breached.

The amendment moved by the noble Lord goes beyond this. It requires a court to decide whether the breach is serious or not; and to select an appropriate disqualification penalty. I am not a lawyer nor have I ever taken part in any matters of law, but I would not say that that is impossible for the courts. I am not saying this would be impossible for the courts to do so. But it does place them in the difficult., potentially invidious, position of having to judge the degree of seriousness in any particular words or actions. It is not clear from the amendment what criteria they would employ.

In effect, if the court has to take a decision as to whether the words or expressions used were serious and what the appropriate sanction should be, that would be a particularly difficult judgment and, for all the reasons we discussed in an earlier amendment, would be tantamount to a political judgment. I believe that it is best to avoid putting the courts in that position. In the circumstances, I hope that the noble Lord will accept that it is common ground between us that we wish to see that the court takes cognisance of what is said in the council chamber but we believe that the sanction of disqualification for five years is appropriate. I hope that the noble Lord, Lord Prys-Davies, will accept the case which has been set out that the Bill should remain as it is before us.

Lord Harris of Greenwich

My Lords, perhaps I may ask a question so that I am clear on this point. An application is made that a councillor should be disqualified from a particular named local authority. What is the position if he has residence in another part of Northern Ireland in an area with a different district council? Does the first disqualification bar him from all local government elections or only those to the named district council?

Lord Lyell

My Lords, with the leave of the House, perhaps I may reply briefly. If the councillor is found guilty by the court of being in breach of the declaration and is disqualified, then I understand that under Clause 8 the councillor is barred from standing again for that council, for any council office and also for the Assembly. That applies throughout Northern Ireland. At this stage I do not wish to become involved in what might happen if he came to Great Britain. I believe that Great Britain is beyond the parameters of the Bill.

Lord Prys-Davies

My Lords, I confess that I am disappointed by the Minister's response. Merely to refer the House to a period of disqualification for wilful misconduct is not an appropriate precedent to be followed in the Bill. The point we are trying to make is that one case will differ from another in gravity; that is bound to be so. It should be taken care of by variation in the disqualification period. I do not believe that this is the time for blunt and simple solutions to the problems of Northern Ireland. I am sorry that the Minister has been unable to accept the amendment which I and those who support me believe is very sensible. I should like to test the opinion of the House on the merits of the amendment.

8.30 p.m.

On Question, Whether the said amendment (No. 4) shall be agreed to?

Their Lordships divided: Contents, 36; Not-Contents, 49.

DIVISION NO. 3
CONTENTS
Addington, L.	Jeger, B.
Airedale, L.	Kilbracken, L.
Blackstone, B.	Kirkhill, L.
Blease, L.	Macaulay of Bragar, L.
Brookeborough, V.	McNair, L.
Carter, L.	Monson, L.
Cledwyn of Penrhos, L.	Moran, L.
Cocks of Hartcliffe, L.	Mulley, L.
David, B.	Murray of Epping Forest, L
Dean of Beswick, L. [Teller.]	Nicol, B.
Dormand of Easington, L.	Ogmore, L.
Ennals, L.	O'Neill of the Maine, L.
Fitt, L.	Prys-Davies, L.
Gallacher, L.	Romney, E.
Graham of Edmonton, L.[Teller.]	Stoddart of Swindon, L.
	Whaddon, L.
Hampton, L.	Williams of Elvel, L.
Harris of Greenwich, L.	Winstanley, L.
Hatch of Lusby, L.

NOT-CONTENTS
Ampthill, L.	Henley, L.
Arran, E.	Hesketh, L.
Bauer, L.	Hives, L.
Belstead, L.	Kimball, L.
Blatch, B.	Liverpool, E.
Brabazon of Tara, L.	Long, V.
Brougham and Vaux, L.	Lyell, L.
Butterworth, L.	Mackay of Clashfern, L.
Carnock. L.	Macleod of Borve, B.
Coleraine, L.	Morris, L.
Craigmyle, L.	Mountevans, L.
Davidson, V. [Teller.]	Mowbray and Stourton, L
Denham, L. [Teller.]	Murton of Lindisfarne, L.
Dundee, E.	Napier and Ettrick, L.
Elliot of Harwood, B.	Oxfuird, V.
Elliott of Morpeth, L.	Reay, L.
Elton, L.	Renton, L.
Faithfull, B.	Sanderson of Bowden, L.
Ferrers, E.	Skelmersdale, L.
Gisborough, L.	Strathclyde, L.
Gray, L.	Thomas of Gwydir, L.
Hailsham of Saint Marylebone, L.	Thomas of Swynnerton, L.
	Trefgarne, L.
Harmar-Nicholls, L.	Trumpington, B.
Hayter, L.	Wynford, L.

Resolved in the negative, and amendment disagreed to accordingly.

8.38 p.m.

Schedule 2 [Declaration against terrorism]:

Lord Prys-Davies moved Amendment No. 5:

ge 11, line 10, leave out ("(that is to say, violence for political ends)").

The noble Lord said: My Lords, the word "terrorism" is defined in the Bill as "violence for political ends". In our view the definition in the context of this Bill is not helpful. The purpose of the amendment is to remove that definition from the Bill. In our view the definition is unsatisfactory for at least three reasons: it is too wide; paradoxically, it is too restrictive; and it lacks flexibility.

It was pointed out on Second Reading, and also in Committee, that a councillor who took part in an industrial demonstration, in favour of or against the Anglo-Irish Agreement, which happened to involve assault and battery on the picket line could be caught by the definition. Therefore, I asked the Minister whether the councillor would be in breach of his declaration. He gave this answer: The decision would be entirely up to the court".—[Official Report, 9/2/89; col. 1740.] Given the definition, I agree with the Minister that that must be a matter for the court, but surely it was never intended that such conduct could be perceived as being support for terrorism. Surely that cannot be within the contemplation of the Government.

In Committee, the noble Lord, Lord Monson, made the very valid point that political violence should not be, and is not, the equivalent of terrorist violence. The definition in the Bill fails to draw that vital distinction. On the other hand the definition is probably too restrictive. For example, does it encompass a councillor who expresses support for violence which has been used against Catholic or Protestant mourners at a funeral? That is not an impossible scene in Northern Ireland. Where does one draw the line between religious and political ends? If we are seeking to define terrorism, should one draw that line. Again, if a councillor speaks in support of an individual offender who has committed a scheduled offence and who has escaped from longterm custody, in those circumstances is that councillor expressing support for violence for political ends or merely expressing, as he sees it, a perceived humanitarian view?

I raise these three or four questions because they provide food for thought. We submit that probably the definition lacks flexibility. In Committee the noble Lord, Lord Lyell, said, that it is not possible to pick, choose or define different types of violence for political ends. He almost said what we are saying about the definition of terrorism, that it is not helpful to seek to pick, choose or define different types of terrorism. The noble Viscount, Lord Brookeborough, said in Committee and at Second Reading that terrorism is terrorism and people recognise it when they see it. Therefore we believe that a definition will not help the courts and it will not help to make this Bill workable. I beg to move.

Lord Monson

My Lords, I strongly urge the House to accept this amendment for the reasons advanced so cogently by the noble Lord, Lord Prys-Davies, tonight, and for the reasons put foward by so many members of the Committee of all political persuasions and none at the Committee stage of this Bill when we were discussing an amendment of my own that related to the definition of the word "terrorism".

The noble Lord, Lord Lyell, argued last time round that to include what most of us consider to be an unnecessary and, more importantly, unsatisfactory definition of the word "terrorism" is justified on the grounds that the word "terrorism" is also defined, albeit at much greater length, in the Prevention of Terrorism Act 1984, and in the Northern Ireland (Emergency Provisions) Act 1978. Three wrongs do not make a right. The Minister went on to argue in the Official Report at col. 767 that the court would have to decide on the merits of any case brought before it. A few moments later he said: the court will exercise a degree of judgment which is well within its capabilities and capacity". By putting into this Bill a superfluous and rigid definition of terrorism that includes matters that should be excluded and that excludes those that should be included, you are going to make the court's task more difficult. That is particularly regrettable as both the court and the public know perfectly well what terrorism is and do not need to have it spelt out for them—least of all when the definition to be included in the Bill is an imperfect one as I contend it is.

I mentioned the dangers of including matters that should be excluded, and excluding those that should be included. At political meetings in the United Kingdom tomatoes, eggs and other missiles have been thrown for at least 157 years; namely, since the Reform Bill 1832 and possibly for a great deal longer than that. We had better steer clear of the subject of eggs because that is rather a delicate matter for the Government at this moment. If the Bill remains unaltered, to throw a tomato in an election meeting will automatically be deemed a terrorist offence. It constitutes violence for political ends in Northern Ireland though not in England, Scotland or Wales.

Conversely, intimidation is not included. When we discussed this matter in Committee the noble Lord. Lord Fitt, drew our attention to this fact and he has mentioned the word "intimidation" most forcefully again tonight. If an 80 year-old lady is threatened with death for revealing the presence of an Armalite rifle stashed beneath the floorboards of her house or flat, this will not be deemed to be terrorism for the purpose of the Bill. This omission seems to many of us to be most regrettable. I contend that the majority of people in this country would hold that to threaten somebody with death or injury for political purposes constitutes a terrorist act.

I do not believe that the noble Lord, Lord Prys-Davies, got to this point. I feel I should explain that because we thought that Amendments Nos. 1 to 3 inclusive should take priority, we have done nothing at this stage about the same unsatisfactory definition where it appears in Clause 6. If the principle of this amendment is established and these two amendments are agreed to this evening (as I trust they will be), then Clause 6 can be brought into line at Third Reading.

8.45 p.m.

Lord Moran

My Lords, I propose to speak very briefly, having put my name to this amendment, because I believe that a declaration of this kind should be simple, clear and unambiguous. If our amendment is accepted, as I hope it will be, Part B of the two forms will be absolutely clear. I do not believe that there is anyone in these islands who can be in doubt about what acts of terrorism mean when connected with the affairs of Northern Ireland. The declaration simply requires someone to say, if elected, I will not by word or deed express support for, or approval of," that. I believe that the words, (that is to say, violence for political ends) are quite unnecessary. If anything they make the declaration less clear and more ambiguous. Therefore I hope very much that the Government will agree to delete those words as it has been proposed.

Lord Blease

My Lords, I support this amendment for the reason of ambiguity, but also because in my view the sub-paragraph is seriously flawed in the sense that it gives a reasoned purpose and objectivity to terrorism hat is without foundation in principle. No terrorism that I am aware of in Northern Ireland is designed for political purposes. It is designed for genocide, hatred and sectarian reasons. You give terrorism a sense of purpose or political objectivity as is understood by the phrase "for political ends". Will the Minister please explain to me what the political ends are? I am in agreement that the sub-paragraph should be amended accordingly.

Viscount Brookeborough

My Lords, my support for this amendment or a similar one at the Committee stage remains. I fully supported it for the reasons given then.

Lord Lyell

My Lords, while I am grateful to the noble Lord, Lord Prys-Davies, for moving this amendment and to the noble Lord, Lord Monson, I believe that there is an air of déjà vu. As I explained in Committee when we were discussing a similar amendment, there are similar though not identical definitions of terrorism, as the noble Lord, Lord Monson, explained, both in the Prevention of Terrorism Act 1984 and the Northern Ireland (Emergency Provisions) Act 1978.

I explained then and I reiterate tonight that these definitions cannot be read across into the Bill. The definition in the Bill is self-contained.

I stress to the noble Lord, Lord Monson, that we are discussing the behaviour of councillors, not some of the more interesting examples that he mentioned. I have no doubt that the court would be able to decide whether or not the throwing of a tomato, an egg, or similar agricultural produce, as a missile would be, for the purposes of regulating the behaviour of councillors, violence for political ends as defined in Clause 6.

The definitions are similar. We do not believe that either candidates or the courts—and this is the nub of the problem—will find the definition in the Bill difficult to interpret. There will be borderline cases. The noble Lord, Lord Monson, is not alone in presenting these examples. There would be borderline cases no matter how one defined terrorism. This ground was covered at Second Reading and the noble Lord, Lord Prys-Davies, raised it at Committee stage. All of us know perfectly well what terrorism is. We think that there is a case for leaving the word undefined. The amendments do not achieve that aim.

The noble Lord, Lord Monson, pointed out in Committee that the definition of terrorism also appears in Clause 6; yet I note that there is no amendment to remove it. The amendment refers exclusively to Schedule 2. I remind your Lordships that it is Clause 6, not Schedule 2, which defines when a breach occurs. Thus, the two amendments before us would not prevent the courts interpreting the word "terrorism" as we recommend in Clause 6(1)(a)(ii).

The only effect of the amendments would be to introduce a gap between the declaration in Schedule 2 and the enforcement provision, which is what bites, in Clause 6. I think your Lordships will agree that that would be a nonsense, let alone undesirable. We believe there is merit in giving candidates a steer as to what constitutes terrorism. We are dealing tonight with election of candidates for council office, let alone an Assembly seat, and the declaration that they will have to sign before they are allowed to stand as candidates. The alternative would be to leave them entirely without guidance. This would be the worst of all possible outcomes.

The noble Lord, Lord Prys-Davies, at Second Reading raised the question of civil disturbance, strikes and perhaps violence on picket lines. I said at Second Reading and I repeat tonight that the courts would have to decide whether or not that particular act of violence was committed in pursuit of political ends and, if it was, whether the councillor or member of the Assembly had expressed support for that violence. The court would look at each and every case to see whether whatever had been said or done met what is in Schedule 2 as well as the provision in Clause 6 which makes the enforcement of Schedule 2 possible. Clearly, the court could take into account some, although not necessarily all, forms of civil disorder. It would be a matter for the court in each and every case. I do not think that we or anyone else should pre-empt the decision of the court. The Bill sets a steer for candidates standing for election to a local council or the Assembly so that they know what they are signing and what they have to avoid in signing the declaration. For that reason I hope that your Lordships will reject the two amendments and leave the Bill as it stands.

Lord Monson

My Lords, the noble Lord has not replied to my charge that the Government's definition of terrorism in the Bill excludes any question of intimidation. Earlier this evening I spoke to a noble Lord who was a most distinguished QC. He confirmed my supposition as a layman that intimidation, however grave, is not itself an act of violence. That is a most serious omission in the definition as the Bill stands.

Lord Lyell

My Lords, I think that the court would take that into account in each and every case because the description is set out both in Clause 6 and, in two cases, in Schedule 2.

Lord Prys-Davies

My Lords, I am grateful to all noble Lords who have spoken in support of the amendment. I am particularly grateful to the noble Lord, Lord Monson, for pointing out that in the event of this amendment being acceptable to the House, we will have to return to remove the definition from every clause in the Bill, wherever it appears.

The Minister has sought to answer our case by claiming that there will always be borderline cases. However, by seeking to define the concept of terrorism, do the Government not see that they are creating more borderline cases? By leaving the matter to the court to adjudicate in the light of the definition, do the Government not see that a fetter is placed on the court? We believe that the definition is likely to prove troublesome for the three reasons which we have given. It is too wide; it is too restrictive; and it lacks flexibility.

The definition which the Government have produced is totally inadequate for a key concept such as terrorism. We would leave it to the court to recognise a declaration in support of terrorism whenever it sees it. We believe that that is a duty which we can leave with confidence to the court to discharge.

We are disappointed by the Minister's response. We will have to consider whether to come back with this amendment at a later stage in the passage of the Bill in your Lordships' House. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 6 not moved.]

House adjourned at three minutes before nine o'clock.