PART IV

HL Deb 13 May 1991 vol 528 cc1362-415

OFFENCES CHARGED FOLLOWING TERRORIST FUNDS INVESTIGATIONS

Any offence, other than a summary offence, which an officer of the Royal Ulster Constabulary not below the rank of superintendent certifies is charged in consequence of a terrorist funds investigation, unless the Attorney General for Northern Ireland certifies that it is not to be treated as a scheduled offence; and in this Part of this Schedule—

1. (a) "summary offence" means an offence which, if committed by an adult, is punishable only on summary conviction; and
2. (b) "a terrorist funds investigation" means an investigation for the purposes of which a person has been authorised under section 57 of this Act to exercise the powers conferred by Schedule 5 to this Act.").

The noble Lord said: The amendment was spoken to with Amendment No. 1. I beg to move.

On Question, amendment agreed to.

Schedule 1, as amended, agreed to.

Clauses 2 to 9 agreed to.

Clause 10 [Mode of trial on indictment of scheduled offences]:

Lord Prys-Davies moved Amendment No. 5: Page 8, line 18, at end insert: ("() For the purpose of this section, the court shall be comprised of two or more judges.").

The noble Lord said: The obvious objective of the amendment is to substitute a multi-judge court for the single judge who sits alone without a jury in the Diplock courts which are the courts which try terrorist or scheduled offences in Northern Ireland. I should make it clear that such trials constitute just under 30 per cent. and no more of all the indictable cases in Northern Ireland.

The amendment cannot claim the attributes of novelty. It has been the subject of argument ever since the Diplock courts were established. The fact that we are tabling the amendment is evidence that even after the passage of time the doubts have not been dispelled. The argument will not go away.

The amendment is fully supported by the Standing Advisory Commission on Human Rights in Northern Ireland; that is the Government's own commission. It is supported by the Committee on the Administration of Justice in Northern Ireland. The view of the Government of the Republic of Ireland is that a multi-judge court would greatly strengthen confidence in the administration of justice among members of the nationalist community in the Province.

I readily accept that the issue is one of perception. I am the first to pay tribute to members of the judiciary in Northern Ireland. Their quality and standards are of the highest order. Their commitment and courage are unquestioned. We owe them a great debt of gratitude. However, in a Diplock court the judge sits alone, without a jury. He must act as both judge and jury. He may hear evidence or submissions which at a later stage he must dismiss from his mind. There is no allegation or claim that the judges have failed to discharge that difficult task. Yet it is unacceptable that they should be put in that position. It is also unacceptable that the situation should lead to a lack of confidence in the administration of justice.

When a similar amendment was before another place the Solicitor-General acknowledged that a court system which lacked a jury trial for this kind of offence was only second best. The words "second best" were used by the Solicitor-General. We add that the system fails to command full confidence in some quarters of the Province because it is second best.

In theory the best solution to the problem would be a return to jury trial. However, on behalf of Members on these Benches I accept that it is too early to return to the jury system because of the risks of intimidation and perverse verdicts. Therefore, we believe that the only other solution is to introduce a multi-judge court. That solution has been widely canvassed since the establishment of the Diplock courts and it has been supported by many people in the Province.

I have no doubt that the noble Lord, Lord Belstead, will tell the Committee that the amendment may be good in theory but there will be several practical difficulties in its implementation. I accept that he has a point. The Province has a population of only 1.5 million and therefore it does not have the necessary number of judges to staff a multi judge court. Even if it were possible recruitment from the senior Bar would deplete its membership. I understand that to be the main argument against the amendment and I accept that it has force. There are other administrative arguments but it has been shown that they can be overcome.

I shall be interested to learn from the Minister how many cases are heard annually in the Diplock courts. How many of the defendants then proceed to appeal to the three-judge court of appeal? In Northern Ireland there is an automatic right of appeal on fact or on law from a Diplock court to a three-judge court of appeal. If there are difficulties in manning the multi-judge court with High Court or even county court judges, are there good reasons why a judge should not sit with lay assessors? What are the valid objections to that solution?

I should also be interested to know whether there are any valid objections to mainland judges serving in Northern Ireland. Is there any reason why they should not go to the Province on a tour of duty? The Minister may say that that would be exceptional. That is right but, after all, we are dealing with exceptional circumstances. We are talking about an emergency; that word is in the title of the Bill.

I have summarised the case. The arguments have been well canvassed on previous occasions. I look forward with great interest to the Minister's reply. I beg to move.

Lord Holme of Cheltenham

I support the amendment. I echo the comments of the noble Lord, Lord Prys-Davies. It is difficult to make original comments about the subject because it has been well explored in this Chamber and in another place. The fact that the arguments against the Diplock courts are not original does not mean that they do not have considerable force. It is a clicheé that justice must not only be done but it must be seen to be done. While we have the single-judge courts there will exist an anxiety in the Republic of Ireland and in other countries about the quality of British justice in Northern Ireland.

We all agree that the two main problems with a Diplock court are, first, that it is a clear departure from the generally acceptable standards of justice. The right of trial by jury has long been held sacrosanct in common law. Secondly, there is a risk that judges will become case hardened and unable to approach the evidence in a fresh manner as is expected of a jury. I too pay tribute to our hard-pressed judges. No one could possibly doubt the integrity with which they conduct their difficult business. However, that does not mean that Parliament should not concern itself with the long-term issues as well as the immediate short-term issues.

I understand the problem of numbers. The Northern Irish judiciary is not large and demands for three or even two judges per case would create considerable logistical problems. If judges from England were introduced it could be argued that they would not have sufficient familiarity with the local scene. I suggest that there would be merit in considering the proposal mentioned by the noble Lord, Lord Prys-Davies; that is, using local senior barristers and solicitors alongside judges at least in order to evaluate the evidence. A judge sitting with two other legal minds might provide protection against the dangers of one person alone making the decision. I commend to the Minister the suggestion that senior lawyers sitting solely as triers of the facts will be a useful half-way house between the present system and the eventual return to the normal jury trial. Simply standing pat on a system that is increasingly unacceptable to fair justice and to world opinion is not good enough.

Lord Fitt

In 1973 when the original Northern Ireland (Emergency Provisions) Bill was going through its Committee stage in another place I moved an amendment to provide that there should be three judges, as was the case in the Republic of Ireland, or that there should be lay assessors. My proposal was to increase in the number of personnel in the courts. I tabled such an amendment because I was bitterly opposed to the IRA and all its machinations.

At that time in 1973 my home, my family and myself were under vicious attack by the IRA because I was regarded as not being a nationalist and as being too pro-British and so on. It is hardly likely that I would have moved an amendment to increase the number of judges if I had thought that that would in any way help the men of violence, help their cause or make it more difficult for the judiciary to deal with such cases.

I moved that amendment in 1973. All these years later, I still believe that if there were to be an increase in the number of judges it would intimidate those in Northern Ireland who constantly claim that British justice is not fair and is weighted against the nationalist or Catholic population.

On occasions, the Republic has been under attack but the system there has three judges. The argument was put forward here on Second Reading by my noble friend Lord Prys-Davies and in reply to a debate on internment the Minister called forth the experiences of the people in the Republic. He said that internment was still on the statute book in the Republic and could be reinstated at any time. He called forth that argument because of objections that were being made against any possible reintroduction of internment in Northern Ireland.

If the Minister called forth the experience of the Republic in that case, then he should accept the experience in this case. In the Republic, the system uses three judges. The reason for three is to make clear that on serious terrorist charges a defendant is given every protection which he merits under the law. I believe that if there were to be two judges or an increase in lay assessors and personnel, then the perception among the nationalist population in Northern Ireland would be that the Government were bending over backwards to ensure that justice was done in accordance with all the standards we have had for centuries in this country.

I do not wish to help, excuse or make matters easy for the terrorists. I do not criticise for the sake of criticising. I believe that if the amendment is carried it will help the whole administration of justice in Northern Ireland and do away with the many criticisms made by the nationalist population in Northern Ireland.

3.30 p.m.

Lord Colnbrook

I do not believe that the case for the amendment has been made out. To use the words of the noble Lord, Lord Prys-Davies, the argument seems to rest on the basis that to accept the amendment would strengthen confidence. He went on to speak about a matter of perception, as did the noble Lord, Lord Fitt. I do not believe that there is the lack of confidence which noble Lords speak about. When I was in Northern Ireland some years ago I heard many complaints about different matters but not about the Diplock courts. It was quite remarkable: I had expected that there would be such complaints. I found an acceptance that the Diplock courts as constituted—that is, with a single judge—worked. I am not talking only about the unionist population but about the whole population.

I believe—and perhaps my noble friend will confirm this when he replies to the debate—that what I say is borne out by events. The noble Lord, Lord Prys-Davies, made reference to the number of appeals. I understand that there are fewer appeals from the Diplock courts than there are from courts with juries. As the noble Lord said, an appeal is automatic. One can appeal against verdict or sentence without seeking permission to do so, but people do not appeal. Why is that? It can only be because there is confidence that justice is being done.

If the amendment is adopted, there must be more judges. As already mentioned, that would be difficult. I do not believe that it would be an advantage. Presumably, the existing judges in Northern Ireland are the best available within the legal profession in the Province. If more were to be recruited, they would not be as good. Presumably, the best are there already.

Since the operation of the law depends so much on the expertise and skill of the judges, we must do nothing to diminish that expertise, knowledge and excellence. I do not know what lay assessors are. If they are laymen, I cannot think that they will do much good as judges without any training. Therefore, unless I have misunderstood the term "lay assessor", which I probably have, I disregard that.

I do not believe that the case for making an alteration in the system which demonstrably works well has been made out. I shall oppose the amendment.

Lord Elton

I support my noble friend. The two noble Lords who spoke in support of the amendment went out of their way to say that there is no discontent as regards the delivery of justice. They praised the system in the way that it works. Nevertheless, they argue that there is a perception that three judges may be fairer than two and that that would be seen to be the case both in the community and abroad.

The first comment which they made seems to show that there is no pragmatic need for the change. The second matter is answered by the fact that any defendant who feels that he has not received justice from one judge may appeal to three judges. A much more convincing argument is needed if we are to speak of a substantial change with substantial resource requirements or the introduction of new standards of justice such as would be associated either with lay assessors or, indeed, judges not familiar with the Northern Irish scene because they are drawn from British courts.

Lord Lyell

I should like to ask my noble friend for some information. I believe that he will have the figures available. I listened carefully to the noble Lords, Lord Prys-Davies, Lord Fitt and Lord Holme, and to my two noble friends. Of course, an accused found guilty by a Diplock court has an automatic right of appeal to a three-judge court of appeal as is the case elsewhere in the United Kingdom. My recollection is that the number of appeals from Diplock courts which found in favour of an accused was within 1 per cent. either way of any case brought anywhere else in the United Kingdom under the normal jury trial system. Therefore, unless there has been a very dramatic change since I left the Province 18 months ago, it seems to me that everything said by my noble friends proves that the present system in Northern Ireland is working. It gives an accused person the same rights that would be enjoyed elsewhere in the United Kingdom under the present system of justice. Perhaps my noble friend is able to give me the figures.

Lord Howie of Troon

I should like to refer to one argument raised by a noble Lord opposite who seemed to suggest that the existing body of judges in Northern Ireland was the ultimate body. Unless I misunderstood him, he said that to make an increase would in some way diminish it or, make it less valid or good. That strikes me as an extraordinary argument. I believe that to be a strong argument for the amendment although I am sure that there are other arguments. If an existing judge retires, he is replaced, presumably from the existing reservoir of lawyers in Northern Ireland. That would not weaken the judiciary there. I am inclined to support the amendment.

Lord Belstead

As the noble Lord, Lord Prys-Davies, said when moving the amendment, it does not have the merit of novelty. Nonetheless, the noble Lord spoke persuasively and neither he nor the noble Lord on the Liberal Front Bench suggested that such courts, in helping to compensate for the absence of a jury, would improve the standard of justice.

Perhaps I may briefly address myself to that point before turning to the arguments put forward. Apart from the lack of any criticism by those who have reviewed the Diplock courts on behalf of the Government in recent years, there are powerful safeguards contained in the procedures. The safeguards are, first, the requirement upon the court to provide a written judgment stating the reasons for a conviction; secondly, my noble friend Lord Lyell was absolutely right in pointing out that there is an unfettered right of appeal to the three-judge Court of Appeal against sentence or conviction on any ground. Taken together, those safeguards ensure that the Court of Appeal can effectively scrutinise in detail and assess the reasons for a conviction.

In opening, the noble Lord, Lord Prys-Davies, very fairly paid tribute to the judiciary in Northern Ireland. However, he said that these courts were simply not right in principle and therefore change would improve confidence. I believe the noble Lord conceded that the necessity for Diplock courts rested to some extent on practicalities. Three of my noble friends on this side of the House who have served in Northern Ireland spoke on the amendment. They were my noble friend Lord Colnbrook, a former Secretary of State, and my noble friends Lord Elton and Lord Lyell. All three said that they were suspicious of the amendment. The reason is that practicalities loom large in this matter. My noble friend Lord Colville, lists a number of objections to the change being sought which were made by the present Lord Chief Justice and other judges. Those objections have real force. There would need to be an enhanced panel of judges and it is by no means certain that sufficient suitable candidates would be available or indeed would allow their names to go forward.

Perhaps I may remind the noble Lord, Lord Howie of Troon, that my noble friend Lord Colville, in his report, said that there is no greater ease in finding candidates for the Bench than six years ago, one of the most serious deterrents being the prospect of an armed guard for a judge and his family into the foreseeable future. There is therefore a very real Northern Ireland dimension in the matter. Given the number of cases heard before the Diplock courts, multi-judge courts would be likely to create major problems as regards allocation and listing of cases.

If the noble Lord, Lord Fitt, will forgive me for saying so, comparing the three-judge courts in the Republic of Ireland with single judge courts in Northern Ireland is not comparing like with like. The weight of work on the Diplock courts in Northern Ireland must be infinitely greater than the weight of work on the three-judge courts in the Republic. I ask the Committee to look carefully at what a number of the distinguished reviewers of the emergency legislation said on the issue. Sir George Baker gave exhaustive consideration to the question in 1984 but came down against any change. My noble friend Lord Colville sets out some of the practical difficulties, as I said.

In paragraph 9.1 of his report, my noble friend makes clear that he has no criticism of the performance of the single judge, no jury, Diplock courts. The Government agree with my noble friend on that point. Nonetheless the noble Lord, Lord Holme, referred to the perceptions that there are of the standards of justice. He made the point that these courts would publicly persuade people of their high standards of justice if they were reformed in this way. There is no reason to doubt the standard of justice dispensed by judges sitting alone. There is no evidence to suggest that the present system has led to a lowering of standards. In addition, the rate of acquittals in Diplock courts for those contesting the charges laid against them is broadly similar to non-terrorist cases.

Perhaps I may answer one question raised by my noble friend Lord Colnbrook. Of those who plead not guilty the acquittal rate is the same as in ordinary courts and successful appeals from the Diplock courts run at a similar rate, in proportionate terms, to the ordinary appeal courts.

I believe we can all agree on one point; that is, that the necessity for having special courts continues to exist. However, much as we regret that necessity I ask the Committee not to accept the amendment. I do so not wishing to appear complacent, not wishing to appear to be stubbornly saying that the Government will not look at any alternative, but believing that we are obtaining a high standard of justice from these courts and that it would be wrong not to recognise that.

3.45 p.m.

Lord Prys-Davies

I am grateful to all those who have spoken in support of the amendment. I am grateful also to the Minister for his fair answer. His words will be studied with great care.

The noble Lord, Lord Colnbrook—I respect his great experience in Northern Ireland—said that we had not made out a case for the amendment. I must answer that criticism. It would be wrong for me to bring a case before the Committee if there was no basis for it. In a sense it has been made out for me by the Solicitor General in another place, who said that the system is a second-best system. We assert that all the citizens of the United Kingdom are entitled to the best system of justice.

Lord Skelmersdale

Before the noble Lord leaves that point would not he accept that any system without a jury must be second best, but that it is necessary in these particular and tragic cases?

Lord Prys-Davies

We sought to suggest that there was a solution and the solution would be the multi-judge court; either a single judge sitting with assessors or judges from the mainland serving a tour of duty in the Province.

The second leg on which we rest our case is the perception that exists in certain parts of Northern Ireland—I do not say that it is true for every quarter—that the system does not command confidence. Reference was made to the report of the noble Viscount, Lord Colville. The noble Viscount devoted a whole chapter of his report to the issue. He thought that it merited consideration and we find his conclusion in paragraph 9.7, which reads: I prefer to make no recommendation, since there are political aspects which are well outside my terms of reference". He acknowledged that there was a problem but his terms of reference did not allow him to come down decisively on one side or the other.

As I said, we are grateful to the Minister for his very fair reply to the points raised. I can only take the amendment away, have a good think about it and decide whether or not to come back at a later stage. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 10 agreed to.

Clauses 11 to 18 agreed to.

Clause 19 [Power to search for munitions, radio transmitters and scanning receivers]:

Lord Belstead moved Amendment No. 6: Page 13, line 23, leave out from beginning to ("any") in line 25 and insert: ("(3) If it is necessary for the purpose of effectively carrying out a search—

1. (a) a member of Her Majesty's forces or constable exercising the powers conferred by subsection (1) above may be accompanied by other persons; and
2. (b)").

The noble Lord said: Clause 19(3) of the Bill creates a new power to enable civilian specialists to accompany searches of premises, including dwelling houses, or other places for munitions or transmitters. The specialists may include forensic scientists, scenes of crime officers and police photographers. Several safeguards already exist in the application of the provision. Thus, anyone accompanying a search of a dwelling house must be individually authorised to do so. The search damage report form, a copy of which is handed to the householder on completion of the search, must contain information about those conducting the search, including their names and professional rank.

When this provision was considered in another place, concern was expressed that the provision was too widely drafted and could enable almost anyone to be authorised to accompany a search. The basic criticism was that, as drafted, the provision did not require an individual's presence to be both justifiable and/or necessary. The Government have reflected on the issue, and we have concluded that it would be right to provide on the face of the Bill that other persons may only accompany a search, or be authorised to accompany a house search, if it is necessary for the purpose of effectively carrying out the search. The amendment would, therefore, require a person's presence to be both justifiable and necessary. I hope that the Committee feels that this is a good safeguard to put into the Bill. I beg to move.

Lord Prys-Davies

We welcome the amendment. It reflects the concern previously expressed by the Opposition about the lack of definition in the original clause. However, the amendment makes it clear that civilian specialists are only to be present at searches if their presence is necessary for the purpose of effectively carrying out a search". That is firmly and clearly stated. It is to be welcomed. I hope that the new provision will work well in practice.

On Question, amendment agreed to.

Lord Belstead moved Amendment No. 7: Page 14, line 22, at end insert: ("(7A) Where a member of Her Majesty's forces or a constable carries out a search under subsection (1) or (2) above he shall, unless it is not practicable to do so, make a written record of the search which shall specify—

1. (a) the address of the premises, or a description of the place, which is searched;
2. (b) the date and time of the search;
3. (c) any damage caused in the course of the search; and
4. (d) anything seized in the course of the search.

(7B) Such a record shall also include the name (if known) of any person appearing to the person making the record to be the occupier of the premises or other place searched; but—

1. (a) a person may not be detained to find out his name; and
2. (b) if the person making the record does not know the name of a person appearing to him to be the occupier of the premises or other place searched, he shall include in the record a note otherwise describing him.

(7C) Such a record shall identify the person by whom the search is carried out—

1. (a) in the case of a constable, by reference to his police number; and
2. (b) in the case of a member of Her Majesty's forces, by reference to his service number, rank and regiment.

(7D) Where a record of a search is made under this section a copy of the record shall be supplied to any person appearing to the person making the record to be the occupier of the premises or other place searched.").

The noble Lord said: The purpose of this amendment is to place a duty on the police and armed forces to make a written record, subject to practicability, when they carry out searches of premises, including dwelling houses, or other places under the powers in Clause 19. I hope that the Committee will feel that this is an important new safeguard. The record to be made is included in the amendment which is before the Committee. I beg to move.

Lord Prys-Davies

We also welcome this amendment. I shall be grateful if the Minister can help us about two matters. First, why is there no reference to a time limit in subsection 7(D)? When will the record be made? How long will the occupier of the premises which have been searched have to wait before he receives a copy of the written record? I remind the Minister that where a similar record is made under Clause 26(6), it is a written record and it has to be made at once or as soon as practicable. We draw attention to the fact that there is no time limit in subsection 7(D) of the proposed amendment. Perhaps the Minister can explain why that is so. Has the matter just been overlooked?

The second issue that needs clarification is this: when this amendment is in place, together with Amendment No. 17 to which we shall come, records will have to be kept of premises searched, vehicles which have been removed to be searched, and of documents which have been searched. Why is the principle not also extended so that we have a record of individuals who have been searched? I mention that because repeated searching of the same individuals is a source of much controversy and grievance. That was recently the subject of comment by the Primate of All Ireland. I referred to that matter in my speech at Second Reading. Perhaps the noble Lord can explain why the provision has not been extended to include individuals.

Lord Fitt

I strongly reinforce the questions raised by my noble friend Lord Prys-Davies. The Minister may recall that in 1970 there was what became known as the Falls Road curfew. Shots were fired at the security forces at the end of June of that year. In consequence a whole district was cordoned off by the security forces and almost every house in the area was searched. Not only were the houses searched but they were wrecked. I remember the occasion very vividly. I was the Member of Parliament representing that area. The curfew lasted for four days before things returned to normal. I went to hundreds of little homes in the area and saw how badly they had been wrecked and vandalized.

One does not have to take my word for it because since then a number of reports and investigations have been carried out into what happened during those four days. That is why I said to the Minister at Second Reading that it is of the utmost importance that when searches have to be carried out they are done with a great deal of thought for the people who live in the houses. When the army first went into Northern Ireland the IRA did not have very much support in the nationalist areas. It was the practice of the IRA to ring the security forces and tell them in an anonymous phone call that it had seen arms being moved in and out of different houses.

I saw that taking place in the Kashmir Road in Belfast. I am quite certain that in that area, whatever support the IRA may have had at that time, it was minimal. It realised that it had minimum support in that area. The IRA telephoned the Springfield Road police station and the message was consequently relayed to the army. Information was given that arms were to be found in the Kashmir Road. I was there on the Wednesday afternoon when the army came in and cordoned off the road, dragged people about in a very nasty way, wrecked their furniture and their little homes. One has to understand people living in such circumstances. One has to understand the highly emotional atmosphere in which the searches were taking place. The little homes were being wrecked. In fact the IRA has composed songs about it. The incident has gone into Irish folklore. There is a version of an Irish song, which contains the line, Cromwell's men are here again. One can understand the political propaganda that can be made by the subversive forces in Northern Ireland if searches are not carried out in a proper way.

My noble friend Lord Prys-Davies has asked what "practicable" means. Are we asking those who are carrying out the search to make the report immediately after or will it be made the next day or the day after that? How long will be the time lapse? The longer the time lapse between the search of a house and the issuing of the report into the circumstances of that search, the longer the emotional time. People's nerves are on edge. In that situation they are easy prey for the para-military organisations who will perhaps exaggerate out of all proportion the circumstances under which the search took place. I urge the Minister that when it is necessary to make a report about a search it should be made in the shortest possible time. Moreover, when the search is made, it should be carried out in a way that will not leave a question mark over the actions of the security forces.

4 p.m.

Viscount Brookeborough

I support the proposal that searches should be well documented. That must be done so as to avoid the PR problems that occur when buildings are searched. However, I should like to ask the noble Lord, Lord Prys-Davies, how in practical terms he reckons he can bring in the provision for documentation as regards individuals who are searched. I should like to know the level of search he has in mind. For example, is he talking about a frisk and search that many of us get in Northern Ireland three or four times a day in the city centre, whenever we go into government buildings or into the airport? If he is talking about that level of search, immense practical problems would arise. In fact the task would be totally impossible.

The law-abiding people in Northern Ireland do not mind being searched. They are happy about the amount of searching which takes place because it provides them with security. If we adopt the suggestion, what would happen in the case of someone who happens to have five search documents on his person which he has received during the past week. He is then stopped by members of the security forces who express the desire to search him and he says, "Hey, hold on, boys. I have five of these already"? That is exactly the sort of situation for which the terrorists are waiting. What will that person be carrying on the fifth and sixth time he goes through the process? I cannot support the proposal.

Lord Renton

I do not know whether it is the Government's intention, but the clause does not appear to deal with the search of an individual. If one looks at the amendment, it refers to a search carried out, under subsection (1) or (2)". Moreover, if one looks at subsection (1), it will be seen that it is a question of "the place" being searched. Therefore, although there are legal provisions which deal with the search of individuals, this particular clause does not seem to have that intention.

As to the timing, if there is a genuine fear about that aspect, it is a matter which can easily be put right by analogy with the statements which have to be taken from people in custody. Such statements have to be taken at the time of the interview or as soon as practicable thereafter. I should have thought that a simple phrase such as the latter could be added to this subsection in order to allay those fears.

Lord Belstead

My noble friend is quite right; we are not talking about the searching of persons at present. However, there has been an exchange between the noble Lord, Lord Prys-Davies, who raised the issue, and my noble friend Lord Brookeborough. In fact, I do not believe that I can better what my noble friend said on that point.

So far as concerns a written record being made, the noble Lord, Lord Prys-Davies, has every reason to ask when this would be handed over. The answer is as soon as possible. However, I should like to consider what my noble friend and the noble Lord, Lord Prys-Davies, have said and perhaps write to both of them.

Finally, I must stress that I take seriously the remarks made by the noble Lord, Lord Fitt, based on his personal experience, about the damage which can be done to property and to relations in the course of a search. It is no answer for me to say that Clause 62 provides for compensation in such circumstances, although that is the case. I believe that we should acknowledge the fact that a balance must somehow be found, bearing in mind that people become more and more ingenious at finding places in houses where things can be stored.

Only this morning a former part-time RUC officer was murdered in Armagh City by a booby trap device under his car. As I listened to the exchange on this amendment it led me to think that, if we were talking about a house where such a murderous device was being constructed, we would believe that the security forces have the right, morally and legally, to try to find that dreadful thing. Yet we are, nevertheless, driven back to what the noble Lord, Lord Fitt, said. We must be careful. We must try to deal sensibly with both sides of the community in Northern Ireland. It is for that very reason that we have tabled amendments today to bring additional safeguards into the Bill.

Lord Prys-Davies

We deeply regret the fact that another police officer has been murdered today in the course of his duty. Of course, nothing we have said challenges the right to conduct a search. The amendment is concerned with a record of the search.

In reply to the noble Viscount, Lord Brookeborough, to whom I always listen with great respect because he lives in the Province in the dangerous border counties, I accept that there would be difficulties in seeking to apply this clause to vehicles which are stopped at checkpoints. However, I am concerned about the individuals who are stopped and taken away to be searched. It seems to me that it would be possible to keep a record merely of the place where the search was undertaken, its date and time, the type of search and those involved in conducting it. I believe that those are the particulars which the noble Viscount was seeking to obtain from me.

As regards the Minister's reply, I very much welcome what he said. As I understand the position, he and his advisers will possibly look again at subsection (7)(b).

On Question, amendment agreed to.

Clause 19, as amended, agreed to.

Clauses 20 and 21 agreed to.

Clause 22 [Examination of documents]:

Lord Prys-Davies moved Amendment No. 8: Page 15, line 34, leave out from ("search") to the end of line 36 and insert ("which he reasonably suspects may contain any such information as is mentioned in section 31(1) (a) or (b) below so far as is reasonably required to ascertain whether it contains any such information.").

The noble Lord said: As it stands, Clause 22 gives the police and the security forces the power to examine any documents which are found in the course of a search of premises. They have the power to examine them in order to ascertain whether they contain any of the information referred to in Clause 31(1) (a) and (b). The power in that clause applies to, (a) a constable or member of Her Majesty's forces; (b) any person holding judicial office; (c) any officer of any court; (d) any person employed for the whole of his time in the prison service in Northern Ireland", and any other person who might fall within any of those categories. We accept that there may be circumstances in which it is reasonable and necessary that the security forces should be able to examine such documents. However, what is worrying about the clause as it stands is that it contains no safeguard against abuse. The power of searching or examining a document can be exercised at random. That could be a breach of privacy. Moreover, if the power is exercised at random—speculatively, so to speak—it could damage the relationship between the security forces and those in the communities in which they operate. The object of the amendment is to seek to limit the exercise of that power so that it becomes exercisable only if and when the soldier or constable has grounds for suspecting that a document contains within it Clause 31 material.

I readily accept that the wording of the amendment may be imperfect. Indeed, it is extremely difficult to achieve the correct wording. However, the object is clear: we should introduce the test of a reasonable suspicion that a document contains Clause 31 information. We suggest that the key to the application of this power should be a reasonable basis of suspicion.

I should also like to take this opportunity to focus attention on subsection (3). This is in response to an effort made in another place to protect the privacy and confidentiality of documents which enjoy legal privilege. That is the significance of subsection (3). However, we note that that protection is not extended to the papers of a doctor, or of a priest in relation to a member of his congregation. There we have the relationship of trust. We have a relationship of trust between a client and a solicitor, between a doctor and his patient and between a priest and a member of his congregation. Neither are the papers of a journalist protected. I wonder whether the Minister can explain why the clause should not extend to those categories.

We have another worry about subsection (3). We fear that it will be very difficult to operate. The difficulty is that the nature of a document can only be established in the course of it being examined. How will a soldier, who is inevitably a layman in these matters, be able to judge whether a document attracts legal privilege? Will not this be entirely outside his experience? Is it realistic in the real world to believe that the soldier can draw a line between what is privileged and what is not privileged?

Perhaps I can put two specific questions to the Minister so that we can see how this subsection will operate. First, will a soldier be authorised to accept a statement or a claim by a barrister or a solicitor that the papers enjoy legal privilege? Does he accept that statement from the solicitor or the barrister? I assume of course that the soldier is satisfied that the person concerned is a barrister or a solicitor. Similarly, will the soldier, in the same kind of circumstances, accept the statement if it is made by the barrister's clerk or by the solicitor's clerk?

On 8th November, when the Bill was introduced, the Northern Ireland Office issued a press notice on government security policy. It claimed in paragraph (d) on page 3 of that notice that it would strike a balance between the needs of the security forces and the need to provide appropriate safeguards for the individual.

I should be grateful if the Minister could indicate to me where in the clause there is a safeguard for an innocent individual who protests that his papers ought not to be examined; who protests, for example, that his diary ought not to be examined. Is there a single safeguard in this clause which would protect the innocent individual? It must be our main function as an Opposition to ensure that, where new powers are given, there is at least an adequate safeguard for the innocent who may be caught up in the net of that power. I beg to move.

4.15 p.m.

Lord Belstead

The noble Lord, Lord Prys-Davies, has spoken to a very important clause in the Bill. What the noble Lord has said has been serious and he has expressed his anxieties. One of the terrorist's most vital weapons is intelligence and the collection of information. Without such information terrorists very often could not target their attacks against particular individuals or places. At present the security forces are at a very extraordinary disadvantage. While it is an offence to possess information which is likely to be useful to terrorists—indeed, all of us in public life know what I mean when I say information of a targeting kind, such as people's addresses and car registration numbers—there is no related power to examine material found during the course of a search to ascertain whether it contains such information. Therefore, the purpose of the new power in Clause 22 is to enable the police and armed forces to examine documents found in the course of a search so far as is reasonably required for ascertaining whether those documents contain any information likely to be useful to terrorists.

The Committee will wish to be reminded that the police already have powers under the police and criminal evidence legislation to seize documents which they have reasonable grounds for believing are evidence of an offence. However, for reasons I have begun to explain, we believe that we should go slightly further in the emergency powers. The fact remains that, as the law currently stands, it works very much in the terrorist's favour. We think it would be wrong to pass over any reasonable means of enhancing the security forces' ability to obtain evidential material as well as to deter and disrupt terrorist operations.

The noble Lord, Lord Prys-Davies, said that there were no safeguards in the clause. Clause 22 only allows documents to be examined so far as is reasonably required for ascertaining whether they contain information likely to be useful to terrorists. There can be no photocopying, and a complete record must be made of the examination and an identification of the person who has carried it out. In addition to that, documents with legal privilege are exempted. The noble Lord put a direct question to me. He asked whether a soldier will accept a statement from a lawyer that the document which he has found is a legal document. I can only answer that the clause quite clearly says that the security forces must have reasonable cause for believing it to be a legal document. There has to be a balance between trying to make sure and respecting legal privilege.

One thing I should like to say is that it is most certainly the intention of the Chief Constable of the Royal Ulster Constabulary and the General Officer Commanding Northern Ireland to issue detailed force instructions to the police and armed forces about the exercise of these powers. It is important that I say that this afternoon.

We are dealing with an important issue. I ask the Committee to imagine for a moment a situation where four men are stopped at a checkpoint in Northern Ireland. The police become suspicious but there are no grounds to detain the men. However, during the search some papers are discovered in the vehicle. Under this clause those papers can be examined so far as is reasonably required to see if they contain information which is mentioned in Clause 31; namely, targeting information about the police, soldiers, the judiciary or the prison service or for planning a terrorist attack of any kind. On this occasion it so happens that the papers which are found in the vehicle do contain just that kind of information. That is the way that lives are saved in a terrorist situation. However, with the very best of intentions the amendment which the noble Lord has put down could prevent that from happening. With the best of intentions the noble Lord asks why there are not wider exceptions in the clause. The answer is that if there were wider exceptions the clause would be unworkable. Provided that the clause is administered properly and sensitively—I have given an undertaking to the Committee, and the GOC and the Chief Constable will be giving advice to the men and women under their command—it could save lives in the future.

Lord Renton

If we were to examine the laws of any country, democracy or dictatorship, a well-developed country or a backward country, we should find that the police were given, by authority of Parliament, if there is one, power to do whatever is necessary to prevent or detect crime, especially terrorism. The fact that we go into this enormous amount of detail to ensure that not one police officer or soldier oversteps by half in inch what Parliament considers to be right shows what a wonderful democracy we are.

The Lord Bishop of Salisbury

The amendment relates to a document that is reasonably suspected of containing information. If I were a terrorist, I should put my information in a book that no one would reasonably suspect, and so all books would immediately become books one reasonably suspected. I feel that it is the amendment that is unworkable.

Viscount Brookeborough

The words with which I take issue are "reasonable suspicion". If there were reasonable suspicion—depending upon how reasonable it was—some people would not now be wandering the streets. The problem may arise when a soldier who stops someone and wishes to search for papers his to justify the fact that his suspicions were reasonable. I do not accept that those words should be used. Apart from anything else, terrorists are well known to use people who were previously above suspicion, or not known to the security forces, to carry messages, documents and information.

I agree with the noble Lord, Lord Prys-Davies, that the greatest problem might arise in relation to soldiers. Policemen are aware of the law to a much greater extent. The abuse that might take place may be caused more often by the soldiers. When talking about abuse, it is important to note that I am sure that no British soldier goes out on the streets with the intent to abuse any Acts which may be in force. The abuse would be unintentional. But without a code of practice or some other supporting legislation, soldiers might far too easily unintentionally abuse the power merely because they were trying to do their job. The code of practice could be similar to the yellow card which exists in Northern Ireland. The yellow card is used by soldiers before opening fire. They have to say, "Halt or I fire".

If a soldier sees documents in a car perhaps he should have to say to the owner of the documents or the car driver, "Are there any documents in this pile which are of a legal nature?" Should the person say that there are no such documents, the soldier should be allowed to search them if he feels that he should. However should the person say that there are legal documents, the soldier could ask for them to be removed from the pile and search the remainder. If he wished to look at the documents to prove whether they were legal, he could call a policeman to do so. The benefit of such a procedure would be that it would put the onus on the driver to avoid the problem before it arises rather than to leave it to arise. The soldier would then have to go to court to justify what he had done. It would help put the matter right if such a code of practice were put forward.

Lord Havers

The noble Lord, Lord Prys-Davies, spoke about priests and journalists. It must be made clear that neither of those two categories of people have privilege. It would be wrong to believe that any document made by a journalist or a priest was protected.

Lord Fitt

The clause extends what was said in earlier debates. It is an attempt to give innocent people the greatest protection while ensuring that we apprehend law breakers and terrorists. I have practical experience of such matters from the years I lived in Belfast.

Premises are also mentioned in the clause. When a house is searched in Belfast, or anywhere else in Northern Ireland for that matter, we understand that the search will be carried out by the army, with a member of the RUC present. My noble friend Lord Prys-Davies rightly said that the young soldier who takes part in the search would have no idea of what was a privileged document or a terrorist document because he would not be trained in such aspects. A policeman may be different. He is from Northern Ireland and will be much more aware of what is happening in the community.

The young soldier may lift up a document and say, "I think that this is connected with the advance of terrorism". Will the RUC member be able to tell that young soldier—after all we are told that the army is in Northern Ireland in support of the police—"Look, I know that that document has nothing to do with terrorism and we are not taking the matter any further"? Such a situation is possible.

I say to the noble Viscount, Lord Brookeborough, that soldiers can be biased. Belfast is not far removed in geography or history from Glasgow and Liverpool. I remember in the early 1970s when there was a Scottish regiment in the New Lodge Road area of Belfast. A riot took place in that area. It was well documented on television, and the pictures are still available. Some soldiers in that Scottish regiment dealt with the alleged rioters far more enthusiastically than was justified. Other members of the same regiment became involved with their colleagues in an attempt to prevent them from using excessive force on the young people involved in the riot. That example indicates in a practical way that all members of the British army, given their history, where they were born, and perhaps their religion, are not unbiased.

When a young soldier joins the British army he does not fill in a questionnaire which asks whether he is unbiased in respect of all Northern Ireland affairs. There are no criteria which would enable that young soldier to fill in such a questionnaire. The question arises as to who will take part in the search. Will it be two or three young private soldiers and a policeman, or two or three young private soldiers and a corporal or a lance corporal? From whom will the young private soldier take his orders in such circumstances? Does he take them from the corporal, the lance corporal or the RUC man? Even the corporal and the lance corporal may have no experience of the type of documents about which we are speaking. Will the RUC man involved in the search take the prime position in those circumstances?

Lord Belstead

Before the noble Lord, Lord Prys-Davies, decides what he wishes to do with the amendment, perhaps I may thank my noble friend Lord Brookeborough for suggesting a code of practice. We envisage force instructions coming from the GOC in Northern Ireland and the RUC Chief Constable. That is probably the road down which we shall go. We shall do very much what my noble friend recommended—the men and women on the ground will have instructions as to how to put this difficult but potentially valuable clause into effect. I do not wish to follow the noble Lord, Lord Fitt, in the arguments that he expressed except to say that it is the Government's policy that the army should support the police whenever possible in Northern Ireland.

4.30 p.m.

Lord Prys-Davies

I am grateful to those who have taken part in discussion of the amendment. I did not, of course, intend to suggest that subsection (3) should be extended ad infinitum. I had in mind the four categories which I named. However, I take the point made by the noble and learned Lord, Lord Havers, that in law the papers of a priest and of a journalist are not protected. I still say that the clause offers no protection against abuse. The Minister referred to subsection (5) which requires a soldier or a constable to make a written record of an examination and to hand it over to the person whose papers are being examined. However, that offers no protection against the power being abused. The notion that subsection (5), valuable though it is, protects privacy is simply not on.

I accept that the amendment may be difficult to operate. Indeed on Second Reading I ventured to suggest that the clause might not be amendable. I likened it to the poll tax; that is, to something that one cannot amend. There has been criticism of the wording of the amendment. We may well have to reconsider whether we can produce an improved version. The Minister said in his closing remarks that a soldier will also require guidance on how the clause will apply.

The noble Viscount, Lord Brookeborough, made a helpful suggestion. He developed the point made by the Minister that the army and the RUC intend to issue guidance to soldiers and policemen respectively. However, the noble Viscount went further and suggested that a code of practice might be appropriate. I hope that the Minister and those who advise him can give that suggestion from their own Back-Benches further consideration. We would be pleased to support the recommendation because the clause is difficult. It is difficult too to design an amendment which is workable or which indicates the need for guidance. I believe that such a measure contained in a code of practice would very much enhance the guidance that the Minister has in mind. I do not propose to take the matter further today. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Prys-Davies moved Amendment No. 9: Page 15, line 40, at end insert: ("Provided that where any document is so removed the owner or person in control of it shall be given a written receipt for it.").

The noble Lord said: I hope that the object of the amendment is clear. It seems to us that the record of examination provided for by subsection (5) of the clause does not cover the point that a receipt should be given at the time that documents are removed. Under the terms of subsection (5) the written record of an examination may be made at a later stage. However, subsection (5) is activated when papers are removed. We should have thought that members of the security forces should issue a receipt for the papers at that stage. I beg to move.

Lord Hylton

As this is the first time I have spoken on the Bill, I wish to say that in my view the careful and detailed consideration we are giving to it today is absolutely necessary. Such consideration is necessary not only for this Bill but for a good deal of the other legislation concerning Northern Ireland. We are grateful for this opportunity to give full consideration to the Bill and hope for similar opportunities on other matters in the future.

The Bill states that any document or record may be removed. That provision could cover the only copy of a thesis or the manuscript of a book. It could cover a person's love letters or a whole variety of commercial documents which may be the sole copies in existence and therefore unique. That is why I suggest strongly that it is important that a written receipt should be given at the time of removing the documents.

I appreciate that a person who is compiling information for the purposes of terrorism is quite likely to hide his lists in other documents so that a person searching for that information may have to spend some time sieving through documents to find it. I hope the Government will feel able to accept the amendment.

Lord Blease

I hope the Minister will indicate whether it is present practice for a receipt to be given for any items or documents that are removed, even when a search is conducted in the street. Is it not a fact that information has been tabulated which makes it reasonably easy to ascertain dates and the types of documents and material that have been removed? I support the points that my noble friend has made. I believe that the code of practice that is being drawn up will require a more sophisticated receipt to be given.

Lord Elton

In anticipating that the answer to the first point of the noble Lord, Lord Blease, will be "yes", I merely wish to ask the noble Lord, Lord Prys-Davies, to clear up one doubt I have. Amendment No. 9 states: Provided that where any document is so removed". Should the amendment not state: Provided that when any document is so removed"? I thought his argument concerned the latter provision.

Viscount Brookeborough

I feel that the amendment is unnecessary. I have spoken to several people in Northern Ireland including policemen and solicitors. They point out that anything that is taken from anyone in the street constitutes an "act of theft" unless a receipt is made out. Therefore, as far as I am aware, a receipt is made out for any item that is removed, whether it is a document or any other item.

Lord Skelmersdale

I have a slight difficulty with the amendment. Clearly the spirit of it is absolutely spot on. A receipt should be given where it is possible to serve one. However, as we discussed earlier, there are occasions when the armed forces or the police enter unoccupied buildings. How does one serve a receipt in those circumstances? Is it not asking for trouble to do so? Where the security forces enter an unoccupied building and serve a receipt, the first thing that will happen is that the counter terrorists among the terrorists—irrespective of whether they are republican or loyalist—will become involved. They will gain as much—I suggest, more—information from the receipt than from the building being searched. I should be interested to know whether the noble Lord will reconsider the drafting of the amendment. Subject to anything my noble friend on the Front Bench may say, I have a feeling there is a germ of sense in all this.

Lord Belstead

I ask the Committee to consider carefully Clause 22(6) which sets out the details which the written record must contain in this case. Incidentally, the written record will constitute a detailed receipt where documents are removed and retained for examination. The Standing Advisory Commission on Human Rights considered that to be an important point when it was raised in the period of consultation that took place after the Bill had commenced its passage in another place.

Perhaps I may continue with that point. As your Lordships will see from subsection (6), the written record must specify a description of the document or record. Therefore, as I read that, there must be a description of each document or record. In any case where a document is removed for examination the record must state the date and time when it was taken, and the inclusion of those details in the record is mandatory. As the clause also requires the police and armed forces to provide a copy of the record to any individual whose documents are examined or removed for examination, the record itself will constitute a very detailed receipt, as I said at the outset.

I do not want to be pigheaded about the matter and to disagree on something on which I believe we ought to find some accommodation. However, as there is a requirement to provide the record as soon as is practicable and to provide a copy to the owner I believe that we are talking about a situation in which there will be not only a receipt but a very detailed receipt.

So as to bring this exchange to an end I should like to consider what all of your Lordships have said on the amendment and see whether any rethink is necessary. I ask your Lordships at the same time to consider what I have said on behalf of the Government. Subsection (6) is important here. I think that it constitutes the receipt which the noble Lord, Lord Prys-Davies, is after. On that basis, subject to anything that the noble Lord may wish to say, perhaps we may end this particular exchange.

Lord Renton

Before the noble Lord, Lord Prys-Davies, replies he may wish to have his attention invited to subsection (9) which states that the document or record may not be retained for more than 48 hours.

Lord Prys-Davies

I am grateful to the Minister for his sympathetic response to the amendment. As I see it, the process under Clause 22 will be a two-stage process: stage one, the documents are removed from the premises; stage two, the documents are examined. When one arrives at stage two the record will he prepared and it will be served under subsection (8). However, that leaves stage one untouched. In our view when the documents are removed there ought to be a receipt for the documents. It will not be as full as the record under subsection (5). There are two stages and as I read it the record deals only with the examination of the documents. Certainly at that stage the record is a very full document, but there should also be a receipt at stage one.

The noble Lord, Lord Skelmersdale, asked upon whom one will serve the receipt. It will be served upon the same person as one would serve the written record in accordance with subsection (8).

I shall not detain the Committee any longer on this point. The Minister has said that he will consider what has been said. I hope that he will see his way to insert a receipt in this clause. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

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

Lord Renton

I have one point which I think should be raised in relation to subsection (4) of Clause 22. It reads: Where a document or record is examined under this section it shall not be photographed or copied". It may well be that that very document discloses an offence which has already been committed. It surprises me that the police are not entitled, even using powers under this clause which deals with the examination of documents, to have the document copied if it may constitute an offence in itself or be very strong evidence of an offence. Perhaps my noble friend will consider that point.

Lord Belstead

I shall certainly consider what my noble friend Lord Renton has said. My noble friend is a distinguished lawyer and I am not a lawyer. It occurs to me that with the prohibition on photocopying in this particular clause, when the documents were returned they would be returned with interest. Presumably the police would accompany the documents and consult the malefactor. Perhaps I may look at what my noble friend has said.

On Question, Clause 22 agreed to.

Clause 23 [Power to stop and question]:

4.45 p.m.

Lord Belstead moved Amendment No. 10: Page 17, line 5, leave out ("and question any person") and insert ("any person for so long as is necessary in order to question him").

The noble Lord said: The amendment is intended as a minor clarification of the existing powers to stop and question. In another place concern was expressed that in some instances that power was effectively used as a power to detain persons for longer than was necessary to question them about the matters in subsection (1). The amendment is designed to ensure that the clause is not regarded as a power to detain for longer than is necessary to establish those matters. It is intended as a modest safeguard and I hope that the Committee will feel that it is right to support it. I beg to move.

Lord Prys-Davies

We believe that this is a wise amendment and we hope that it will work well in practice.

Lord Blease

Perhaps I may briefly, without embellishment, draw attention to the fact that in relation to the previous clause the Minister laid great stress on the word "reasonable". The series of amendments in the name of my noble friend Lord Prys-Davies, with which we shall deal next, also deal with the question of reasonableness. Will the Minister kindly consider again the insertion of the word "reasonably" so that the amendment reads: any person for so long as is reasonably necessary in order to question him"? I could cite numerous instances of people being detained for a street search for much longer than was necessary, although I was not present. I believe that the addition of the word "reasonably" here would add to the legislation.

Lord Belstead

I hesitate to cross swords with the noble Lord, who can forget more about Northern Ireland than I shall ever learn. However, it occurs to me that there are people who are stopped and questioned who are quite ready to make use of the legal system if they possibly can because they hold no particular friendship for the security forces. If we inserted the word "reasonably" it would be as long as a piece of string. It would give opportunities for such people to bring to the attention of the courts the question of whether stopping and questioning had been reasonable on a particular occasion.

In Amendment No. 10 we intend to bring forward what I hope is a safeguard. Of course I shall look again at what the noble Lord has said but on this occasion I shall not offer to write to the noble Lord. I hope that he will not think that I am discourteous in saying that. If the noble Lord wants to press the matter perhaps we can discuss it outside the Chamber. That is my reaction off the cuff to what the noble Lord has suggested.

Lord Blease

I thank the Minister for that reply.

On Question, amendment agreed to.

Clause 23, as amended, agreed to.

Clause 24 [General powers of entry and interference with the rights of property and with highways]:

Lord Prys-Davies moved Amendment No. 11: Page 17, line 20, after ("he") insert ("reasonably").

The noble Lord said: In moving Amendment No. 11 perhaps I may speak also to Amendments Nos. 12, 13 and 14. Once again the object of these four amendments is to ensure that the powers are always exercised subject to the criterion of reasonableness. I do not propose to detain the Committee long on these amendments, but I believe that it is particularly important that a test of reasonableness should apply to Clause 24(1), which goes to the heart of family life.

There can be no greater intervention by the state in the life of the family than to give a soldier or a constable the right to march into one's home. On the mainland we do well to remind ourselves that those powers are exercisable without a justice's warrant. In view of the emphasis to which I referred contained in the Northern Ireland Office press notice of 8th November on the need to provide appropriate safeguards for individuals and the emphasis contained in the Minister's speech on Second Reading, we believe that it is unsatisfactory that the powers in the clause are not specifically subject to the criterion of reasonableness. I do not think that I can add to what I have said. I beg to move.

Lord Renton

With respect to the noble Lord, I should not have thought that his amendment was necessary. My noble friend may disagree with me, but in the circumstances of the paramount need for the preservation of peace and the maintenance of order, if a constable decides that it is necessary to enter he will probably make a decision at once. He cannot scratch his head too much. I should have thought that to insert the word "reasonably" adds nothing to "necessary" and might impair the effectiveness of the clause.

Lord Hylton

I hesitate to clash swords with the noble Lord, Lord Renton, but as I read the clause it would enable the security forces to take possession of a house and possibly to exclude the owner from it completely. It even goes on to say that he may cause any property to be destroyed or moved. There might be a case for improving the field of fire in a particular place, but it is pretty tough on the person whose property is destroyed or moved. There is a strong case for the amendment.

Lord Belstead

The noble Lord, Lord Hylton, spoke as though these were new powers. I do not seek to justify them on this ground alone, but it is worth making the point that the powers have been on the statute book since 1978, when the Government of noble Lords opposite were in office, and have been carried over from years before then. I say that simply as a matter of fact. I also admit that it is clearly essential that proper thought should be given to the effects of police and army operations on local residents who fall within the scope of Clause 24.

However, there are two safeguards on the powers. First, compensation is payable under Clause 62 where private property is interfered with or real or personal property is taken, occupied, destroyed or damaged. Secondly, any order made by my right honourable friend the Secretary of State under Clause 24(2) conferring authority on the security forces to carry out certain specified acts is susceptible to judicial reviews. Therefore, if the authorisation which the Secretary of State gives is arbitrary or wholly unreasonable, there remains a means of redress for the ordinary citizen. I realise that that would be post hoc—but this brings me to the point made by my noble friend Lord Renton; namely, if you are a constable, can you agonise in your mind whether you should reasonably take a decision under Clause 24? With his great experience, my noble friend was quite right to say that it would be less than reasonable to insert that word when in some cases a split-second decision must be taken.

The Committee will forgive me if I add one other point. If we were to insert a criterion of reasonableness into the clause, there is a danger that a variety of civil cases might virtually be invited, challenging the reasonableness of actions in a whole variety of routine anti-terrorist operations. I am sorry, but it has to be said that it is a feature of the situation in Northern Ireland that those sympathetic to terrorist organisations seek to exploit the legal system to undermine the legitimate operations of the security forces. We must bear in mind that, by their nature, these are emergency powers which are frequently exercised in areas where there may be a significant degree of hostility to the security forces in carrying out their operations. That is a rather jarring note to introduce, but I feel that I must mention it because I know from the short time that I have worked in Northern Ireland what I have just said is true.

Lord Renton

Perhaps I may add a postscript. Discussions in court on the word "reasonableness" are unending, and that is just what they would be in these circumstances.

Lord Prys-Davies

The insertion of the word "reasonably" into the clause would ensure that those who exorcise the powers might think twice. Instant decision s have left their scars on Northern Ireland and I should not have thought that that was an argument for resisting the amendment. I have approached the powers in Clause 24 from the standpoint of an innocent citizen who believes that the soldier or constable is acting unreasonably. If we failed to raise that issue in the Chamber, we should fail in our duty to the ordinary people of Northern Ireland. I do not propose to press the amendment to a Division, but we may consider whether we should return to it at a later stage. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 12 to 14 not moved.]

Clause 24 agreed to.

Clause 25 [Power of Secretary of State to direct the closure, etc. of roads]:

Lord Prys-Davies moved Amendment No. 15: Page 18, line 12, after ("may") insert ("if he considers it reasonably necessary for the preservation of the peace and the maintenance of order").

The noble Lord said: We fully accept that there are circumstances in which it is right that some public roads have to be closed on security grounds and at short notice. The closure will block both access and escape routes for terrorist units. We also accept that the border is a dangerous land for the armed forces and the police. Some people say that there should be even more stringent measures to seal the border, but we must also bear in mind that a highway exists to serve a living community and will often have served a community for generations. Its closure may therefore cause severe disruption to people living and working in the vicinity. It may have severe social and economic consequences, so in deciding whether to close the border crossing one must weigh the social and economic considerations against the security considerations.

I should have thought that, when the security considerations are convincing, no reasonable person would object to the closure, but when they are not convincing or apparently not convincing the closure may be counter-productive. It would be counterproductive because it would involve in particular the risk of confrontation between local people and security forces and between farmers and soldiers and may lead to the construction of bypass works. Clause 25(2) makes it an offence to execute bypass works, but I doubt whether that solves the problem.

What is missing from the clause is a right to ask the court to review a road closure decision to ensure that the decision is reasonable in the circumstances. The amendment seeks to make the decision subject to judicial review. That power would go a long way to reduce tension and resentment at a road closure decision. If it is available to people who are affected by the decision, they will be able to do something about it. They will be able to apply for leave for judicial review. If people have no legal remedy available to them it is not entirely surprising that they should build bypass works. I beg to move.

5 p.m.

Lord Belstead

I should like to reflect on the concerns of the noble Lord in moving Amendment No. 15. I understand what the noble Lord is driving at, though I must admit I am not a lawyer and he is. I want to try to meet the noble Lord. The only point in my mind at the moment is whether one can have a draft which talks about something being "reasonably necessary". For instance, it can be said that it is necessary for a bicycle to have two wheels but is it reasonably necessary? A person who has fallen off a bicycle may well say it is reasonably necessary—and a lot of other things besides—but in law is it possible to say something is reasonably necessary? I should like to think about that and take advice. Having had a think about it, it may be possible to have a word with the noble Lord, but at the moment I am not in a position to say I accept what the noble Lord is driving at, partly because I am worried about the drafting but also because I should like to consider it a little further, having just heard the noble Lord across the Dispatch Box. I give the commitment that I will come back and have a word with the noble Lord about the matter if that is what he wishes. If, on that basis, the noble Lord would like to leave it that would be my wish.

Lord Hylton

Perhaps the noble Lord would like to consider whether the word "reasonably" might come two words earlier in the amendment.

Lord Blease

I am sure that my noble friend will reply in the affirmative to what the noble Minister has said. I should like to add a few comments to what has been said. This is a highly politically-charged area. We are considering here a situation of no-go and border areas where over night people put up road blocks to protect themselves from those marauding around intent on evil. This matter is very complex in its application, highly political and may be hard to remedy. In my view, there needs to be some form of co-operation with the Republic in the administration of these border areas. Whether that is done by local government or central government in the Republic is another question.

However, I fully support my noble friend who has drawn attention to a particular problem in respect of roads.

Lord Fitt

I too believe the Minister has been very reasonable in his response. I certainly support what has been said by my noble friend Lord Blease. This issue is a highly political and emotional one. The closure of a border road evokes centuries of Irish history. The people living in that area believe that that road traverses the land of Ireland, and it will be in the interest of the IRA to say that a foreign power has closed that part of Ireland to the people who live there.

I have said in an earlier debate that sometimes house searches can be in the interests of terrorists because such searches will enlist support for them. The same thing can happen on a border road. The criterion for the closure of a border road is that either a shooting incident has taken place or bombs have been found adjacent to it. But it may be in the interests of the subversive organisation's propaganda to have that border road closed. It knows very well that farmers living on either side of the road in Northern Ireland and in the Republic regard it as essential to the everyday work taking place on their farms. I am sure that when the Minister looks again at the legalities of this matter he can take into consideration that it may be in the interests of terrorists to have a certain border road closed knowing very well that it is going to create a highly emotive issue. Every aspect of the closure of such roads should be taken into consideration when the Minister returns to reply.

Viscount Brookeborough

I endorse everything that has been said in relation to this amendment. I simply add that the sooner we get the border sorted out as far as regards its administration in a military, police and security sense, the better. At the moment it is perhaps the biggest PR problem we have, at least that is so near the border where I live. The answer lies not simply with the UK Government getting on with the Government of the Republic of Ireland and perhaps having border posts and joint operations; it also lies with the Government in getting down to studying the problem, sorting it out and—I am sorry to say— putting more money into improving border crossing points so the delays we have already heard about do not occur.

Lord Belstead

In order to ensure that I have not given the wrong impression in my response to the noble Lord, Lord Prys-Davies, I should make the point that, although I understand what the noble Lord, Lord Fitt, has said, there are circumstances when security considerations generally are so compelling that a road needs to be closed. Therefore, surely it is right in logic as well as in security terms to consider border closures. In responding to the noble Lord, Lord Prys-Davies, I want to make sure that the wording on the face of the Bill is as fair as possible.

While on my feet, perhaps I may just recall a matter about which my noble friend Lord Brookeborough would be more eloquent than I. We are talking about people's lives. Following the attack on the Derryard vehicle check point, the terrorists left five or six soldiers dead. They went away across a border road which, only a few weeks ago, when the Derryard permanent vehicle check point was closed, was among those which were closed. On the other hand, as many Members who know Northern Ireland will remind me, Northern Ireland lives have been lost. People living near the border have been murdered and the murderers have used border crossing points in order to escape. This is a major headache not only to us but to the Government of the Republic. Therefore, I feel I must say that, in referring to these things, we are talking of people's lives, not just the hard word "security".

Lord Prys-Davies

I agree with the Minister that very often we are talking about people's lives. I referred to the fact that closure blocked access and escape routes for terrorist units. My noble friend Lord Fitt made the valuable point that many of the campaigns to reopen border roads were inspired by paramilitary organisations because they were presented with a grievance to exploit. If this amendment were carried it would not prevent the Secretary of State from immediately closing the highway if he was satisfied that it was necessary in the interests of security. But it would give people the satisfaction of knowing that the decision was subject to judicial review.

The Minister has treated the amendment with sympathy. I acknowledge that the wording may once again be imperfect. I am content to leave the matter with him in the hope that we can produce a satisfactory formula between now and Report stage. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Prys-Davies moved Amendment No. 16: Page 18, line 35, leave out ("(the proof of which lies on him)").

The noble Lord said: Clause 25 creates five new offences in the context of road closures. Each offence is punishable by a fine or up to six months' imprisonment. The amendment draws attention to one of those offences—the last mentioned in the clause. It is referred to in subsection (3): A person is guilty of an offence if within 200 yards of any road closure works …without lawful authority or reasonable excuse (the proof of which lies on him) he has in his possession or under his control any materials or equipment suitable for executing bypass works".

The offence covers any material or equipment which is suitable for executing bypass works. It therefore covers almost every variety of farming machinery and equipment, ranging from a tractor to a spade, which is in a farmer's possession for entirely innocent reasons. Our difficulty is compounded by the fact that the clause places the duty on the person who is in possession of the article to prove lawful possession of it. The amendment ensures that the burden of proof lies on the prosecution and not on the defence. I hope that this small but important amendment is acceptable to the Committee. I beg to move.

Lord Belstead

I am afraid that on this occasion there is a gulf between the Government and the Opposition. It follows from what I sought to say to the Committee on the previous amendment. We are talking about issues of life and death. The purpose of the new offences provided by this clause is primarily deterrence. It is not our wish to see a large number of prosecutions arising from the new provisions, but it is our wish that those who make determined efforts, often using substantial resources and heavy equipment, to reopen legitimately closed crossings should cease their efforts. It is also right that where there are grounds to believe that a person may be seeking to attempt to interfere with a closure or create a bypass around it, that person should be obliged to explain his or her actions and account for any equipment or materials in his or her possession in the vicinity of the closure.

I ask the Committee not to accept the amendment. The onus is placed on the person charged with the offence s o as to ensure that he or she gives a proper explanation of why the equipment is possessed and the reason for its presence in the area at that particular time. I believe that that is the only reasonable way to have a prospect of prosecutions that have a chance of succeeding. Once people know that there is that prospect, they will not do such things. To go back to my earlier words, we shall find that there will not be a lot of prosecutions because the offences will have had a deterrent effect. I have to say that I believe that the deterrent effect would be removed were the amendment to be agreed to.

5.15 p.m.

Lord Lyell

Perhaps my noble friend can help me. I am not too familiar with the exact waterflow and drainage problems in Armagh. I believe that I shall be supported by my noble friend Lord Brookeborough when I say that, so far as concerns County Fermanagh and large parts of County Tyrone, along the border one would find very few farms indeed—probably they could be counted on the fingers of both hands—where there would not be farm machinery, diggers, drainers and machinery of the type described by the noble Lord, Lord Prys-Davies. That would be true of any farm in the area.

Virtually every farmer and person has reasonable excuse to use such machines and carry out the operations set out in the clause. I do not see any problem in differentiating between legitimate use of such machinery and what I would call strange machinery which rings alarm bells in the mind of anybody familiar with that part of border, let alone the security forces. I do not see any major difficulty in the clause or its operation, particularly in that sector of the border, because the Committee will be aware that inhabitants of County Fermanagh are said to have webbed feet, although I deny it.

Lord Hylton

I put to the Government that subsection (3) of the clause would probably be satisfactory if it were to read something like: execute or permit the execution of works". It is bypass works with which we are concerned rather than the possession of any materials or any equipment, which could include bricks, blocks, hardcore, ditch culverts and a wide variety of items which are normally found on farms.

Lord Elton

I should like to join discussion on what are bound to be mostly hypothetical questions by drawing the Committee's attention to the 200-yard radius to which this measure applies. It is clear that we are not talking about vast areas of the Province being sterilised. We are talking about a very short distance from a crossing point. Certainly many farmers have to hand dumpers, bulldozer blades and so on. They also have tipping trailers, full perhaps of hardcore or logs, which could be used very swiftly to create a temporary crossing point. It seems a not unreasonable request that where a part of their land lies within 200 yards of a crossing point, they should explain why it is necessary to have those materials and all that equipment so close to it. It is not unreasonable that they should know that that is required and that the proof should be upon them at the time of use. I understand that one is not supposed to go shooting game without a game licence. I do not think that one ought to go with this sort of equipment without that sort of proof.

Baroness Phillips

I put in a plea on the importance of who gets the blame. If we are not careful the terrorists will benefit. The point has been emphasised by many Members of the Committee. The situation may not be totally analogous but on Friday I was informed that one can no longer park a car at Paddington. The rather ominous phrase was "It will be clamped." If the car were to contain a bomb, the most stupid thing to do would be to clamp it. The bomb would be certain to go off where the car stood. The point is that the restriction causes a lot of inconvenience, especially for the disabled. British Rail does not make any concession, asserting, "That is the law and that is what we have to do".

I listened carefully to the appeals from noble Lords who know the areas well. My anger here is against British Rail and not the people who have made it necessary for the cars to be removed. That is the situation in this country. We have to be careful that the message is clear: when inconvenience is caused to people who have to go about their business or pleasure one must blame the right people. That consideration applies whether one talks about Northern Ireland or England and Wales. I have considered the position carefully. I know that I cannot blame British Rail. It may be rather stupid in the way in which it operates the restriction, but that is a different matter.

I can imagine a similar situation applying to roads. I am sure that the Government will request a good PR company to put the message over clearly when the legislation finally becomes law.

Lord Holme of Cheltenham

The Minister earlier welcomed an intervention which referred to the difficulty of using the term "reasonable" in courts. It was stated that it tended to produce lengthy debate. The amendment proposes to shift the burden of proof in a way that is not normally applicable in common law and in British courts, yet at the same time the accused person has to provide a reasonable excuse. Do not precisely the same objections apply to this provision as were welcomed by the Minister when they related to the other side of the argument?

Viscount Brookeborough

It is very reasonable for the person to have to prove why he has equipment so close to the Border. We refer to places where it is conceivable that the Border could be opened if certain equipment was used and filling was placed into ditches, rivers and so on.

I have experience of such a situation. It is not difficult to tell whether the farmer is draining his field or is about to open a border crossing. It is clear to any reasonable person. There is no problem. We are not talking about stopping every single farmer the moment he drives within 200 metres of every border and saying, "Hold on. What are you doing now? Are you about to cut your hay or are you cutting a path in order to get a terrorist or a car over that crossing?"

One is not only referring to opening such areas, but to places that have been closed and blocked with concrete. One is not talking of a man with a shovel pottering across his field to open a ditch that is blocked, but to fairly major works. We heard a moment ago about the crossing point nearest to Derryard. It was recently closed. A military patrol which was reasonably close to it was meant to watch the crossing point, not to react to anyone there, but to call in others. People appeared in order to reopen the crossing. The military patrol informed others of what was going on. Then, within 10 minutes, 10 tonnes of concrete were emptied from a large drum, and the crossing was reopened.

We are dealing with people's lives. We are considering soldiers killed at Derryard and mortar bombs brought into Newtown Butler. Terrorists come into Northern Ireland, and when someone is killed they can drive away across the Border. We know that the Republic of Ireland cannot provide the security that we are able to provide on our side. Where straight roads cross the Border they have been used not only for entry but, more importantly, for people to get away. Before the border checkpoints and border closures were brought in in 1980 in South-East Fermanagh we had one person killed every six weeks. By "we" I refer to Roman Catholic and Protestant soft targets.

As the Minister said earlier, we are talking of people's lives. It cannot be a problem for a farmer to justify whether he is draining his field, cutting his hay or cutting a hedge. Having lived close to the Border, I do not support the amendment under any circumstances.

Lord Belstead

In reply to the noble Lord, Lord Holme of Cheltenham, I am not sure at what point earlier today I made remarks about "reasonable" except in the context of "reasonably necessary". My noble friend Lord Elton put his finger on the point. It is a pretty closely targeted offence. It has to take place within 200 yards of a border crossing. All that is being asked is an explanation for the equipment.

I am glad that my noble friend Lord Brookeborough explained the equipment to which we refer. It is invariably heavy equipment in the possession of that person. Under those circumstances, it is sensible to place the onus on the people concerned to give the explanation. Nobody else can. Only they can explain why they have that form of heavy machinery, hardcore or some such item. It should not be difficult for someone who is wholly innocent quickly to explain to anyone who wishes to listen why he should not come within the ambit of that offence.

Lord Prys-Davies

My noble friend Lady Phillips asked an important question: has this offence the potential to cause resentment among people living or working within 200 yards of road closure works? That question has not been addressed. If there is resentment, then the paramilitaries are likely to exploit it. If that happens, we are entitled to ask: what has been achieved by this new offence?

I believe still that the onus of proof should not be on the defendant. The noble Lord, Lord Hylton, suggested that perhaps we ought not to pursue this amendment but to bring forward a substitute for subsection (3) (a) (ii). That is a matter that I wish to consider. For that reason, I do not propose to ask the Committee for its opinion on this clause. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 25 agreed to.

Clause 26 [Supplementary provisions]:

Lord Belstead moved Amendment No. 17: Page 19, line 22, after ("aircraft") insert ("—

1. (a) the reference in subsection (6) of that section to the address of the premises, or a description of the place, where the document or record was found shall be construed as a reference to the location of the vehicle, vessel or aircraft when it was found together (in the case of a vehicle) with its registration number; and
2. (b)").

The noble Lord said: This is a minor consequential amendment to the record-keeping requirement provided for in Clause 22 so as to apply record keeping to examinations of documents during the search of a vehicle, vessel or aircraft. I beg to move.

Lord Prys-Davies

We are pleased to welcome the amendment.

On Question, amendment agreed to.

Lord Belstead moved Amendment No. 18: Page 19, line 48, at end insert: (" (6A) The requirement to make a record of a search under subsection (1) or (2) of section 19 above shall apply in the case of a vehicle, vessel or aircraft (other than one which is habitually stationary) searched by virtue of this section only where t tie search takes place after the vehicle, vessel or aircraft is removed for the purpose of the search by virtue of subsection (5) above; and in the case of such a search—

1. (a) the reference in subsection (7A) of that section to the address of the premises, or a description of the place, which is searched shall be construed as a reference to the location where the vehicle, vessel or aircraft is searched together (in the case of a vehicle) with its registration number; and
2. (b) the references in that section to the occupier of the premises or place searched shall be construed as references to the person in charge of the vehicle, vessel or aircraft.").

The noble Lord said: This amendment applies the same requirement to make a record during the search of a vehicle, vessel or aircraft as the requirement introduced for dwelling houses and premises under the government amendment to Clause 19. However, the requirement would apply only where a vehicle, vessel or aircraft was removed for the purposes of the search; for example, to a vehicle search centre.

The amendment provides that references in Clause 19 to the address and occupier of a premises shall be construed as references to the location where the vehicle. vessel or aircraft was searched and to the person in charge of the vehicle, vessel or aircraft. I beg to move.

On Question, amendment agreed to.

Clause 26, as amended, agreed to.

Clause 27 [Directing terrorist organization]:

Lord Holme of Cheltenham moved Amendment No. 19: Page 20, line 20, leave out ("at any level".).

The noble Lord said: Clause 27 relates to involvement in directing terrorist organisation. We on these Benches totally accept the desirability of a clause with the aim that it appears to have: to get at the "godfathers" who manipulate people, often young men, young zealots. They send them out to kill and to be killed, but such godfathers do not put themselves at risk. In a shadowy way they direct the activities of others. It is right that the Government should seek special powers to deal with such people.

I wish to speak to Amendments Nos. 19 and 20 together. They are designed to improve Clause 27 by making it more precise. I am anxious about the words: Any person who directs, at any level, the activities of an organisation which is concerned in the commission of acts of terrorism". My Amendment No. 19 proposes the deletion of the words "at any level". The words are vague and have the effect of diluting the meaning of the word "direct". "To direct" means being in charge and making the decisions that matter. In doing so one is shaping the course of events. However, the inclusion of the words "at any level" tends to make more vague a phrase that is intended to have a precise meaning.

When the amendment was debated in another place the Minister argued that the phrase "at any level"—be it at national, regional or local level—was meant to indicate the levels of organisational responsibility but was nevertheless giving direction. If that was the Government's intention it has not succeeded. The phrase "direct at any level" might, to take an extreme example, be applied to the activities of a cleaning lady who directs the washing up. In doing so she is directing at a level the activities of an organisation. I hope that in reply the Minister will not say that it is a matter of common sense. We are dealing with the law and with a precise targeting of action. I hope that he will be able to accept my argument.

The issue is even more serious because Clause 27 continues: the activities of an organisation which is concerned in the commission of acts of terrorism". Amendment No. 20 seeks to deal with that provision because it increases the vagueness. Why should it not simply relate to a prescribed organisation? What is the new category of, an organisation …concerned in the commission of acts of terrorism"? Perhaps the description contains a meaning that has eluded me and the Minister can enlighten the Committee.

As it stands the provision could apply to an animal rights organisation which deplorably decided to destroy cages of animals. That is an act of violence capable of being included in such terms. To torture my analogy, one could have a cleaning lady working for an animal rights organisation committed to destroying cages of animals. She would be a person directing at a level, the activities of an organisation…concerned in the commission of acts of terrorism".

I ask the Minister to look carefully at the wording of the clause. I hope that in doing so he will accept our wish to catch the planners and the directors who really do the harm. I beg to move.

5.30 p.m.

Lord Prys-Davies

I fully support the amendment moved by the noble Lord, Lord Holme. Clause 27 is important because it creates a new offence which can attract a sentence of life imprisonment. The offence is necessary, but it is important that the wording should be correct. If not, I fear that it will become a glorified source of litigation until its meaning is determined, probably by the judicial committee of this Chamber. I too had understood that the object of the clause was to target those involved in guiding the terrorist activities of a terrorist organisation. However, it appears to be targeted at every person who is directly or indirectly involved at any stage or at any level in the organisation. Is that its intention?

The clause is based on the verb "to direct". A director is a person who directs. In 1957 the noble and learned Lord, Lord Denning, gave judgment in the case of Bolton Engineering v. T. J. Graham & Sons. He used the vivid metaphor of a director being the brains and nerve centre of the company as contrasted with its hands which hold the tools and act in accordance with directions from the centre. The clause appears to be extended to include the hands which hold the tools. It would include the smallest cog, which is not directing the activities of the organisation but merely acting in accordance with the directions. The noble Lord, Lord Holme, gave a couple of illustrations to which I could add. Every organisation has a clerk. Is he to be treated as directing for the purposes of this clause because, for example, he addresses or directs an envelope?

I had considered tabling an additional amendment to insert the word "senior" before the word "level" so that the clause would deal with directing at a senior level. Will the Minister comment upon such an amendment? I support the amendment so ably moved by the noble Lord, Lord Holme.

Lord Colnbrook

I am confused about the issue which appears to depend on the meaning of the word "direct". The noble Lord, Lord Prys-Davies, quoted from a judgment which appeared to state that the director was the chap sitting at the top and that everyone else was not a director. By deleting the words "at any level" one is leaving out everyone except the boss. I suspect that in a terrorist organisation there are people at the centre planning all the activities. Certainly we wish to catch them.

However, the IRA, for instance, issues general directions to what it calls active service units, and other organisations have the same kind of bodies. Although there is someone in charge of that unit he may not press the trigger. He may be the man who says to his subordinates, "We have directions to cause trouble in Londonderry by shooting some policemen. You two are going to go and shoot that particular policeman". That man is a director but he has not pressed a trigger; he told someone else to do it. By deleting the words "at any level" one is running the risk of allowing such a man to say, "I was not directing; the director was my boss who lives in Dublin".

I am sure that that is not the intention of the amendment. I am as keen as other Members of the Committee to catch everyone directing an operation at any level, not only the man who pressed the trigger or put the bomb underneath the car. The issue depends on the interpretation of the word "direct". I am not a lawyer but I believe that the inclusion of the phrase "at any level" makes the provision more rather than less clear.

Lord Belstead

In moving the first of these amendments, the noble Lord, Lord Holme of Cheltenham, has made clear that he agrees with the principle and intent of a new offence of directing the activities of a terrorist organisation which is aimed at catching the godfathers of terrorism. However, the noble Lord is suspicious of the drafting.

The purpose of the noble Lord's amendment is to limit the extent of the new offence so that it applies only to those persons who direct the activities of terrorist organisations at the highest level. The basic criticism is that the inclusion of the phrase "at any level" makes the offence too wide, and therefore, too draconian in its effect.

Before turning to the specific amendment, I should like to remind the Committee precisely what this new provision is designed to achieve. It is not intended as a way of getting at people who can already be prosecuted in respect of their involvement in the commission of particular offences. It is, for example, already possible to charge with a conspiracy offence persons who have been engaged in the planning of an act of terrorism which they have played no part in carrying out. I emphasise that the new offence is aimed at those who it may not be possible to link evidentially with particular acts of terrorism, but against whom there is evidence that they are directing or controlling the terrorist organisations which claim responsibility for these acts. Such people are often referred to popularly as the godfathers of terrorism. They may not always get their own hands dirty, and, for that reason, they are at present difficult to make amenable before the law. The new clause is designed to make them open to prosecution.

In trying to do that the noble Lord has criticised as vague the phrase "at any level" and in speaking about Amendment No. 20 the noble Lord, Lord Prys-Davies, criticised the use of the word "directing". The phrase "at any level" has been included deliberately in this provision so as to make it clear that anyone who directs the activities of one of these organisations, whether at headquarters, regional or local level, is equally open to prosecution for the offence. I emphasised the word "directs", because of its importance in this short clause. Whatever the level within the organisation of the person charged, the court will have to be satisfied that he has been involved in directing the activities of that organisation. The Government are satisfied that the courts will give that word its ordinary, common sense meaning, which embraces the notion of a controlling influence on the activities in question. Those activities, I remind the Committee, must be the activities of an organisation involved in acts of terrorism". The noble Lord criticised that, but the phrase is important in this context. Directing, even at "any level", the activities of such an organisation involves, in common sense terms rather more than, as the noble Lord suggested, the cleaning lady who is invigilating the washing up or, as the noble Lord, Lord Prys-Davies, suggested, a clerk who is addressing an envelope.

But the expression "at any level" was also chosen for another importance reason: it gives specific recognition to the fact that some terrorist organisations have in place regional and other geographical structures. There are, of course, within those organisations, those who direct the terrorist campaign at the highest—the national—level. But below that, organisations may be sub-divided into regional or local commands. As my noble friend Lord Colnbrook said, it would of course be ludicrous if a senior figure at local level in a terrorist organisation could evade prosecution simply because he could claim that there were others higher up in the overall chain of command. Indeed, it would remove much of the effect of the clause.

We then moved on to the noble Lord, Lord Prys-Davies, speaking to Amendment No. 20 which seeks to insert the word "terrorist" because in order for a person to fall foul of this offence he must be directing the terrorist activities of an organisation. Although originally I was interested to read this amendment, I was even more interested to read the briefing which shows that quite inadvertently the amendment could make the clause of almost no effect. As presently drafted the clause will apply to any person who directs at any level the activities of a terrorist organisation. However, Amendment No. 20 would apply the offence only to those involved in directing the terrorist activities of such organisations. To prove that the person is responsible for directing the acts of terrorist activities, it will be necessary to show a connection between the accused person and particular terrorist acts. If such a connection could be shown the individual concerned could be found guilty of an offence under the existing law.

As I have already explained, the new offence is not intended as a way of getting at people who can already be prosecuted for their role in connection with particular acts of terrorism. It is aimed instead at those backroom organisers who it may not be possible to link with the planning or organisation of specific terrorist acts (although they may have been so involved), but who it can be shown are the directors or leaders of terrorist organisations, responsible for formulating the overall strategy of these organisations or otherwise engaged in their organisation and management at national, local or regional level.

There is another possible effect which also troubles me. Terrorist organisations are composed, to some extent, of different groups with different specialisations. In addition to those who actually plan and carry out acts of terrorism, there are others in the organisation who direct other functions such as intelligence gathering, recruitment and quartermastering and so on. Arguably, the carrying out of such functions represents terrorist activity. But would that necessarily be regarded as the case if this amendment was passed? I hope so, but I would not be sure. The new clause, which would increase the possibility that such persons might in future be more open to prosecution, could be fatally wounded if both amendments are accepted.

I am sorry to sound so downright on this point but I believe that in different ways these two amendments will unintentionally degut the clause. For that reason, I ask the Committee not to agree to either of them.

Lord Hylton

I invite the Minister to tell us whether the imprisonment for life provided by this clause is a maximum or mandatory sentence for anybody, whoever is convicted under it. As has been made clear, we must understand that this is a new type of offence.

Is the Minister able to say something about the meaning of "concerned"? It may be that that word has a very wide meaning and could embrace organisations or groups other than the principal terrorist organisations. If that is the case, a life sentence may be too great It may be the sort of offence which would normally attract one or two years' imprisonment.

Lord Belstead

It is proposed to be a maximum sentence.

Lord Blease

I do not wish to add to the confusion but in Northern Ireland in colloquial terms "terrorist" refers to one side of the community and "paramilitary" refers to the other. I should like to be sure that "terrorist" means any organisation carrying out acts of evil against the community.

Lord Belstead

That is one reason that we used the expression with which the noble Lord, Lord Holme, takes issue. We have not used the word "terrorist" but we have talked about organisations concerned in the commission of acts of terrorism.

Lord Holme of Cheltenham

I thank the Minister for the terms in which he has replied. As regards Amendment No. 19 he has not moved in the direction in which I hoped he would. However, I shall accept that his intention is the same as ours.

However, I urge on him the point made implicitly by the noble Lord, Lord Hylton, that an offence which carries a maximum sentence of life imprisonment is, by definition, extremely serious. Therefore, both in terms of the deterrent value and the effect of putting away for a very long time the godfathers and in terms of our concern that the wrong people should not be caught by this provision—the little fry rather than the big fish—I hope that the Government will continue to look hard at the matter throughout the passage of the Bill. The words "at any level" have created confusion on this side of the Committee and, therefore, the Minister must acknowledge it possible that they may do so among a wider constituency. Having said that, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 20 not moved.]

Clause 28 agreed to.

Schedule 2 agreed to.

Clause 29 agreed to.

Clause 30 [Possession of items intended for terrorist purposes]:

Lord Prys-Davies moved Amendment No. 21: Page 22, line 12, after ("if") insert ("when not at his place of abode").

The noble Lord said: Clause 30 stems from the recommendation of the noble Viscount, Lord Colville, who I am pleased to see is in his place this afternoon. The noble Viscount was told by the RUC and the armed forces that new offences were required to assist them in their work. In his report he said that he was satisfied that it should be possible to create an offence which would be closely related to that of going equipped for theft. A person would therefore be guilty of an offence if he was caught on his way to commit an act of terrorism and had with him an article to be used in connection with such an act.

We fully support the creation of such an offence. We support also the draft wording of the offence which appears in Appendix 2 of the report. However, Clause 30 goes much wider than the draft wording. Having called the noble Viscount, Lord Colville, in aid, I must acknowledge that he agreed in his report that the offence might be adapted to conditions and circumstances at the place of abode. As it stands the clause is a sweeping clause. It applies to any article present in a person's home and therefore it could cover a wide variety of everyday articles; for example, a clock, a torch or piping. The amendment states that the place of abode should be exempt from the operation of the clause.

We are concerned also about the burden of proof. Clause 30 must be read in conjunction with Clause 12. The virtue of Clause 12 is that, if any article and a person are both present in the premises or the premises are habitually used or occupied by that person, it will be for him to establish that he did not know of the presence of the article or that he had no control over it.

In our view Clause 30 is a complex clause. Our second amendment seeks to transfer the burden of proof only in those circumstances where the article had been adapted for use or was an article which could specifically be used for an act of terrorism. Only in those circumstances would the burden of proof be reversed. Therefore, if a detonator is found on premises or on a person, then the burden of establishing that it was held for innocent purposes or that it was not known that it was in the building would be on that person. If the article had been adapted for use in an act of terrorism—for example, if the person had an alarm clock and plugs had been soldered into it—it would be for him to establish that he had the clock for innocent purposes or that he did not know it was on the premises. In circumstances where the article had been made or adapted for use in connection with an act of terrorism, it is right that the duty should be on the individual to show that he was in innocent possession of that article.

We on this side have a fear, which emerged more than once in the course of the discussions this afternoon, that if the clause is not modified along the lines of the amendment it will leave wide open the opportunity for people to be harassed in relation to this specific offence. I beg to move.

Lord Renton

I believe that my noble friend would be in some difficulty if he accepted the amendment. Let us envisage this situation. Supposing there is a man whom the police know is in possession of a hand grenade. He is walking along the street on his way home. If they catch up with him before he reaches his home then he has committed an offence; but, if the amendment is accepted, as soon as he enters his home or place of abode no offence of possessing the hand grenade will be committed.

A further point arises. What is his place of abode? For example, does it include his garage? He may have a Kalashnikov rifle in his car waiting to be used as soon as he drives his car out. Is that man to be exempt? Normally one's place of abode includes one's garden. A garden could be very large and the man could be sitting in his garden with an offensive weapon ready to be used perhaps against anyone who passes along the hedge at the end of the garden or in the road. I find that idea very difficult.

It may reassure the noble Lord, Lord Prys-Davies, that the fears he expresses are to a considerable extent covered in subsection (2), which states, It is a defence for a person charged with an offence under this section to prove that at the time of the alleged offence the article in question was not in his possession for such a purpose as is mentioned in subsection (1)". In those circumstances it would be better to leave the clause as it stands without incorporating the two amendments.

Lord Elton

I endorse everything that my noble friend says and believe that the difficulty is perhaps narrower than he thinks. I strongly suspect that the possession anywhere of a hand grenade or a Kalashnikov rifle is an offence carrying a considerable penalty.

Clause 30 is aimed at lengths of control cable which may be alleged to be for lighting purposes, or radio transmitters which may be said to be controlling model aeroplanes. A judgment must be made as to whether they are in fact for the purposes of lighting an outdoor festival or controlling a model aeroplane, or, by one means or another, causing an explosion and the loss of life. If the latter then there is a certain absurdity in the amendment.

The amendment suggests that if the wire is coiled round the person's body as he walks down the street he is committing an offence, but if it is disguised as a washing line but is intended to be used for exactly the same purpose, then he is not. That is beyond reason and I hope that the amendment will be rejected.

6 p.m.

Lord Holme of Cheltenham

I rise at this point to support the amendment moved by the noble Lord, Lord Prys-Davies. I give advance notice also that I do not intend to press Amendments Nos. 22 and 23. Perhaps I may take this opportunity to speak to Clause 30 as a whole. For the reasons just given, the point made by the noble Lord, Lord Renton, is not strictly relevant. We are talking not about weapons but about everyday objects which may be found in the possession of anyone but which found in possession of the wrong person, with the wrong motives, lend themselves to reasonable suspicion that they are to be used for acts of terrorism.

Lord Elton

Or in combination with other objects.

Lord Renton

The clause is not confined to everyday objects. It refers to "any article" which may be used in the furtherance of aggressive purposes.

Lord Holme of Cheltenham

I am grateful for the instruction from noble Lords opposite.

Looked at as a whole the clause has three main problems. The first is that it can be used as regards a person's home. The Committee should start with the presumption that people's homes are their castles and there have to be very strong reasons for the arm of security to reach into people's homes. In that context I ask the Minister specifically why he did not take the advice of his noble friend Lord Colville, who has rightly been referred to often in respectful terms in the context of his report. This is an occasion when the Government have chosen to disregard not only the advice of the Standing Advisory Commission on Human Rights and other bodies concerned with these issues but specifically the views of the noble Viscount, Lord Colville, on the question of items within the home.

Secondly, the provision is imprecisely worded. Thirdly, there are very strong punishments. The three elements of reasonable suspicion are vague. The words "connected with" are coupled with the possession of "any article". We know that we are speaking about such things as clocks, maps, pliers, axes and other prosaic items which people will have. The combination of those items with the knowledge that they can be discovered in people's homes and the fact that "reasonable suspicion" is tenuously worded seems to make the provision very widely cast indeed. That gives rise to egitimate concern whether we are striking the correct balance between what we all want, which is the vigorous prosecution of those who threaten public safety, and the civil liberties which commend themselves to the community in Northern Ireland.

I support the amendment. The wording suggested by the noble Lord, Lord Prys-Davies, of, when not at his place of abode", is better than my words of "in a public place". I give advance notice of my intention to withdraw Amend ments Nos. 22 and 23.

Viscount Brookeborough

Perhaps I may first refer to the reasonable suspicion that something in a house may be used for terrorist activity. The provision would not apply quite so much to the individual article. The reasonable suspicion would have already been justified in the application for the search to be made in the first place. We are not talking about any house being entered at any time, when bits and pieces are lifted and the occupier is asked "Are you using this for terrorism?" and so forth. There is a reasonable justification in the first place for searching the house.

When we speak about the kit in the house or what might be used for terrorism, there is a difficulty. Many things are done by the terrorists at home. Mention has already been made of the grenade or the gun which quite clearly contravenes the firearms legislation. When the terrorist constructs a radio-controlled bomb or one of the terrible under-car booby traps, a great deal of mechanism is involved such as mercury tilt switches and timers. Such devices have to be made up very carefully. They cannot be put together beneath a bush on a hillside. They take time to put together and all the pieces have to be available. However, the one item that does not have to be in the house is the explosive. The bomb can be made up without the explosive.

A search may take place because it has been justified by the correct application having been made and the correct procedures followed. One may find in the house the items to which I have just referred. A tupperware box with a powerful magnet attached, with all the bits and pieces to blow up a car, bar the explosive, leaves no doubt what the object is to be used for. There is no charge to cover that situation. If the security forces search a house and find such bits and pieces at present they can do nothing with them so they have. to leave the house. We say to them, "Find the terrorists, find those who are operating these devices". They do so, and then we say, "You cannot touch these items; but go back home and look under your car. The item could be under your car tomorrow morning".

This provision cannot be compared with the Theft Act 1968. That Act is concerned with screwdrivers and other items commonly used about the home. The people concerned are going equipped for theft but not to commit the horrendous murders that take place in Northern Ireland.

Lord Fitt

I rise because of what has been said by the noble Lord, Lord Renton. He questioned the words, when not at his place of abode". The words are of tremendous importance in the Northern Ireland situation. The noble Lord questioned whether the garage is part of the home. For many people the garage is attached to the house or is an annex to it, but in Northern Ireland many people do not have a garage adjacent to their residence. On an estate with high-rise flats garages may be let out by the local authority. The terrorist may place the material in a garage and, if it is searched, the security forces may take it that the material is the responsibility of the garage occupier.

Throughout this debate it will be noted that I speak from experience. I have not gained my experience from a textbook. The incidents I relate took place during my political life in Belfast. In the early 1970s a friend of mine lived in a flat, with a garage for his van about 200 to 300 yards away. The security forces entered the garage and found bags of gelignite. They went to his home and arrested him. Fortunately, I was there and I was able to tell them that I knew him and in no way could he be involved in acts of terrorism.

That incident shows the validity of the words in the amendment. It should be a defence for those who own outlying stores or garages that they are not to be held responsible for material found in such circumstances.

Lord Hylton

Those of us who are associated with this amendment are not absolutely confident that the wording is right. The noble Lord, Lord Holme of Cheltenham, has suggested that it might be better to substitute words like "in a public place". I offer the suggestion "within his dwelling-house". These are fine points of detail but it is important that we get them right. The burden of the matter is that there are certain household goods normally found in people's houses such as sellotape, cooking gloves, fuse wire, switches, torches and scissors. We are trying to avoid innocent people being brought to court, harassed or unnecessarily interviewed simply for having such items in their homes. I am sure that is now clear to the Government.

Lord Skelmersdale

Does this not depend on where in the home the items are? We have had recent examples of hides being discovered in people's homes. If an industrial coffee grinder is found in a hide in a person's home, when tested forensically it will almost inevitably carry traces of fertiliser used for the preparation of explosives. For example, if I, with the full authorisation of my commanding officer, went into a house—whether it be in Londonderry, the Falls Road or wherever—and happened to look at a bookcase and take out the odd book but in doing so discover behind it a pair of washing-up gloves, a balaclava helmet and a screwdriver, I would say that those items were found in "suspicious circumstances". The idea that, in agreeing to this amendment, we should only condone the carrying of these items—that is, not the industrial coffee grinder—on the person, defies belief.

Lord Belstead

The purpose of these amendments is to limit the scope and indeed the penalty of the offence of possession of items intended for terrorist purposes. As all of us who have read the report of my noble friend Lord Colville will know, this is an extremely important clause which owes a great deal to my noble friend's fertile imagination and sense of inventiveness. That is truthfully the origin of the offence. At paragraph 2.7.3 of his report, my noble friend recorded the view that, There are now various articles which, though harmless in themselves, are so closely associated with terrorist activities that possession of them, in circumstances giving rise to reasonable suspicion of connection with terrorism, should be a new offence". Although I admit at once that the offence in Clause 30 differs from that which my noble friend Lord Colville proposed in his draft clause, it does however give effect to precisely that recommendation.

First, perhaps I may say that the offence as drafted is not out of line with that proposed by my noble friend in relation to the threat to which he drew attention. However, if Amendment No. 21 were to be accepted—I believe that the noble Lord, Lord Holme, said that he would not be moving Amendment No. 22—the offence would no longer apply as regards possession of items in the home. I acknowledge the fact that my noble friend's draft offence excluded possession of items at home.

The noble Lord, Lord Holme of Cheltenham, asked why we did not accept my noble friend's advice. My noble friend Lord Colville acknowledged that the offence could be extended in the way in which we have extended it. I refer Members of the Committee to paragraph 2.9.7 of his report. On mature consideration, we decided that it was right that the provision should apply to possession of items in the home. The security forces have all too ample evidence of homes being used for making improvised weapons and explosive devices. It would be a serious limitation of the offence were it not to apply to items which were uncovered by the security forces during a legitimate search for munitions and explosives.

Members of the Committee, especially the noble Lord, Lord Prys-Davies, made it quite clear that the concern about confining the provision to the home is attached to a worry about the onus of proof. Moreover, the noble Lord, Lord Hylton, referred to the dangers of harassment, as he saw it, in having the onus of proof reversed. Amendment No. 24 seeks to limit the scope of the reverse onus of proof in subsection (4) by providing that the onus should only be reversed where an article is proved to have been, made or adapted for use in connection with acts of terrorism". I put it to the Committee that it is well established in British law that a reverse onus of proof is justifiable where the accused is in an especially good position to give evidence about a particular matter. Mercury tilt switches, overalls, rubber gloves, balaclavas and coffee grinders are all innocuous items in the right hands; but, in the wrong hands, they can have very sinister applications.

It was interesting to note that my noble friend Lord Renton counselled caution in the matter. In such circumstances—and I believe that this is what was in my noble friend's mind—it is not unreasonable to require the accused to give an explanation or to show lack of knowledge. Indeed, the accused has only to discharge the burden of proof on the balance of probabilities. The prosecution would then have to discharge the overall burden of proof to the higher criminal standard; namely, beyond reasonable doubt. I put that to the noble Lord, Lord Hylton.

As my noble friend Lord Colville clearly indicated, in many cases the everyday items of which terrorists make use are not adapted in any way or in such fashion as to be clearly intended for terrorist purposes. Therefore, the provision in Clause 30 is not making an explicit distinction of that kind, although clearly where the prosecution could prove that items have been made or adapted specifically for a particular terrorist purpose the charge would be easier to prove.

The clause is terribly important in terms of running to earth munitions, weapons and ordinary things which can cost people their lives. The Government believe that a reverse onus is fully justified in this case.

Lord Prys-Davies

We have drawn attention to the two areas which appear to us to be a source of considerable concern in the Province. The matter has been fully discussed by Members of the Committee. I do not propose to press the amendment to a Division; neither do I propose to return to the matter at a later stage. In the circumstances, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 22 to 24 not moved.]

Clause 30 agreed to.

Clauses 31 to 33 agreed to.

6.15 p.m.

Clause 34 [Detention orders]:

On Question, Whether Clause 34 shall stand part of the Bill?

Lord Prys-Davies

We are much saddened by the fact that the Bill should re-enact the power to detain a citizen without charge or trial. That is a drastic departure from the rule of law. We have often heard it said in this Chamber that it is a fundamental principle of the system of justice in a civilised country that no citizen should be deprived of his liberty without charge and trial. If there is insufficient evidence to bring the citizen before the court on a charge which will deprive him of his liberty, he should not be put away by Executive action. We have also often heard in this place that that principle is not for compromise.

On Second Reading, I asked the noble Lord, Lord Belstead, whether it would be possible for him to arrange to place in the Library a list of the countries which still retain that harsh power. I have not seen such a list, but I have been handed a letter from the Minister which informs me that it is not possible to prepare a comprehensive list. That may be so. However, I should very much appreciate it if a list of the countries known to have retained the power could be placed in the Library. We could then draw our own conclusions. Of course, it may not be easy to draw such conclusions. I say that because we are not necessarily comparing like with like. But it would be helpful if we had such information before us.

On Second Reading the Minister was anxious to tell the Chamber that the power had been retained by the Republic of Ireland. I replied that two wrongs do not make a right. It is certainly not a source of pride that our penal code in this respect is in harmony with countries such as Cuba, Ethiopia and Burma.

The power to detain without charge or trial was granted to Stormont by the Civil Authorities (Special Powers) Act (Northern Ireland) 1922; but the power has not been used since 1975. It was phased out between 1971 and 1975. It is now agreed by Ministers —Ministers in this Government—that reliance on this power in the early 1970s was a huge mistake in that it led to an immediate and prolonged increase in violence and created further tension and hostility. If one detains 300 persons suspected of involvement in a terrorist organisation, the odds are that one will also detain people who are not involved in a terrorist organisation. If 300 people are interned, they will be replaced by another 300 people. Notwithstanding the historical record and the acknowledgment by Ministers that it was a huge mistake to apply this power between 1971 and 1975, I understand that there are still people who believe that detention without trial is necessary in order to maintain law and order. It was said in another place during a discussion of this clause that it should have been applied quickly and selectively in 1985 after the signing of the Anglo-Irish Agreement.

I mention that as evidence that the Secretary of State of the day could well be provoked into applying internment in response to the pressure of events of the passing hour, or in response to public anger. In our view a Secretary of State should not be placed in that intolerable position. I know of no good reason why this power should be re-enacted. Perhaps we shall hear from the Minister the reasons why this power should be in the Bill. I know of no good reason. On the other hand, there are very good reasons for saying that Northern Ireland has been scarred by the use of the power in the past and that we should now say that we are finished with it in Northern Ireland. The removal of this power from the Bill would signal more than any other decision we take today that the Committee believes that Northern Ireland should and can now move towards normality. I therefore urge the Government, even at this stage, to accept the advice of the noble Viscount, Lord Colville, that there should be no more detention. I oppose the Question that Clause 34 stand part of the Bill.

Lord Renton

The noble Lord, Lord Prys-Davies, is fully entitled to ask the Committee to consider whether the power of detention without trial should be continued. I remind the Committee that the power was introduced under an Act of 1978 which had been proposed by the previous Labour Government. The Conservative Government have asked Parliament to keep those provisions going since then. Although the noble Lord is fully justified in asking us to consider this matter, I doubt whether it is sensible that we should have to consider the powers in the light of similar powers being used—and very rarely used—in other countries. Each country must decide for itself on a vital principle of this kind. We must decide this in the light of our own standards—high standards—and traditions of justice. It is contrary to natural justice that we should detain people without trial; but we found that it was necessary to do so in Northern Ireland because, alas, innocent people were losing their lives because of acts of terrorism. It was extremely difficult to find the evidence to convict the terrorists, although the actions of particular people were well known to the police.

In order that we may judge whether these powers should be retained, as the Government now propose, I am sure my noble friend Lord Belstead will give us so far as he is able an account of what has been happening. It would be interesting to know, for example, what proportion of the people who were at first detained without trial were eventually brought to trial. That is the most important factor of all. There is also the power to release people who have been detained. There had to be such a power, and rightly so. It would be interesting to know what proportion of the people eventually could be released without trial. It is on matters such as those, and on other matters about which my noble friend will no doubt let us know, that our judgment will have to be based.

Lord Holme of Cheltenham

The noble Lord, Lord Renton, acknowledged that detention without trial is contrary to the principle of natural justice. It is also contrary to the provisions of the European Convention on Human Rights, to which this country is a signatory. On these Benches we oppose the Question that Clause 34 stand part of the Bill. We ask the Government to recognise that as long as in any part of the United Kingdom there is detention without trial—and may it be a very short time—we are flouting established principles of international law and the law of human rights. We are putting ourselves outside the European Convention and in the position of having to ask for derogation, which is unworthy of us. We oppose the Question that Clause 34 stand part of the Bill.

Lord Elton

Detention without trial is contrary to natural justice—but so is terrorism. The Province of Northern Ireland has been subject to the most appalling scourge of injustice for far too long. It is always a retreat in the face of terrorism if, in response to a terrorist attack on fundamental freedoms, one uses as a defence the withdrawal of one of those freedoms. Therefore what the Bill asks for is a power not lightly to be granted. It is a serious matter. Like my noble friend Lord Renton, I shall listen with great care to what my noble friend on the Front Bench has to say in support of the clause. In listening to him, I shall remember the injustice which is far greater, and under which far more people have been suffering for far longer, than the one which detention without trial can ever possibly deliver.

Lord Fitt

Since the creation of the Northern Ireland state, detention without trial (or internment as it was known) has been introduced on five different occasions under the Civil Authorities (Special Powers) Act (Northern Ireland). On four of those occasions, the persons about to be detained or interned were arrested by the forces of the RUC, the security forces of Northern Ireland. Although this was highly unacceptable, it was understood. In 1971 the Northern Ireland Parliament again sought the permission of the British Government to introduce internment for the fifth time. That time it was not the RUC or members of the special constabulary who arrested those about to be interned; it was members of the British Army.

One has to understand Northern Ireland to know what memories that action evoked: British soldiers in the uniform of the British Army going into nationalist areas and breaking down doors at four o'clock in the morning! I lived on the Antrim Road. At the back of my home was Sheridan Street. I could hear doors being kicked down by soldiers of the British Army. They had sought permission from the British Government to re-introduce internment.

One can recall the tremendous convulsion which overtook the nationalist community in Northern Ireland. One would have to be Irish and a member of that community to understand what happened to it; 400 to 500 people were arrested. Within the following months another 200 to 300 were arrested. Then, in 1972, under the premiership of Mr. Heath, the British Government abolished Stormont. The first Secretary of State for Northern Ireland, the noble Viscount, Lord Whitelaw, took over. Immediately he went there, one of the things that he did, as a Conservative—I might have expected this action from a Labour government, but this was a Conservative Secretary of State—was to look through the files of those who had been interned two to three months before and immediately release 300 to 400 of them. He was applying British standards as to who should be interned, if internment were accepted at all.

That fact gives an indication that men were arrested in the swoop of 9th August 1971 who should never have seen the inside of an internment camp. We are still living with the consequences of those acts of 1971. Anyone connected with Northern Ireland, especially the noble Viscount, Lord Colville, will remember the song which has worked itself into the psyche of the Irish Catholic and nationalist population. It is known as "The Men behind the Wire". There is a verse in it which goes: Through the little streets of Belfast, In the dark of early morn, British soldiers came marauding, Wrecking little homes with scorn". Another verse goes: Cromwell's men are here again". The song evokes the memory of the 16th and 17th centuries in the minds of nationalists in Northern Ireland.

It is all right in these august surroundings to ask why we talk about the 16th and 17th centuries and Cromwell, because we have all forgotten about it. But the people living in certain parts of Northern Ireland have not forgotten. It is part of their folklore, their mythology, their reason for being. We all know what happened in 1972, the year immediately following internment: 473 people were killed in Northern Ireland, all occasioned by the tremendous upsurge of emotional Irish nationalism which took place. Subsequently, the Labour Government abolished internment, but the fear remains.

Before deciding to go into the Lobby to support my noble friend, I agonised over this matter. I do not speak about such issues lightly, from a political point of view, or with a view to the next election. We do not do that in this place. If I thought that the threat of internment would deter terrorists, I would vote with the Government tonight, because I see terrorism as my enemy. It always has been. If I thought that the retention in the legislation of the power of internment would prevent terrorism, I would have no hesitation in going into the Government Lobby this evening.

The noble Viscount, Lord Brookeborough, has said in the past that there may be reasons for having selective detention. That means that we know everyone whom we are going to intern. The late Lord Faulkner, a former Northern Ireland Prime Minister, thought in 1971 that he knew everyone whom he was going to intern. He believed that the RUC files contained proof that everyone who was about to be detained had terrorist connections. When the noble Viscount, Lord Whitelaw, took over five months later, he found that the selection made in 1971 was not a selection at all; it had proved to be totally indiscriminate.

Again, that action involved the Irish Government. People in the Republic believed that internment was being used selectively against the Catholic nationalist population in Northern Ireland. No Protestants were arrested in the dawn swoop of 9th August 1971. It was clearly understood that internment was being used against the Catholic population. It led to massive demonstrations in the Republic, Northern Ireland and here in London. One does not have to have a long memory to recall the tremendous demonstration by those opposed to internment which took place in London.

Given those considerations, is it wise to retain on the statute book the power to order detention which would give rise to the same emotionalism that we had in 1971? My noble friend has said that two wrongs do not make a right, but it may be—I hope to God that it will not happen—that there is such an upsurge of terrorism in Northern Ireland, and so many people are killed in Northern Ireland, that the Government will have to react and introduce internment. I ask myself whether it would be justified in those circumstances. If it were justified, it would have to be introduced in the Republic of Ireland at the same time. We could not have detention introduced in Northern Ireland only, because people involved in the commission of terrorist acts would be able to escape over the border into the Republic. That happened in 1971, when many of the terrorists who would have been on everyone's selection list for detention escaped over the border into the Irish Republic.

Many aspects of the introduction of this power will have to be talked over with the people of the Irish Republic. They must recognise that a terrorist in Northern Ireland is a terrorist in the Republic and a terrorist all over the island of Ireland. If I believed that the retention of the clause would deter terrorists, I should be in the Lobby with the Government tonight, but I do not believe that that will be the effect of the clause.

Viscount Brookeborough

I do not like the principle of internment without trial, but nor do I like seeing so many people killed in Northern Ireland. I am sorry if I gave 1 he noble Lord, Lord Fitt, the impression that I knew of all the terrorists in Northern Ireland who should be interned. I do not, but the security forces know a great deal more than they did when internment was first introduced. I do not propose that internment should be reintroduced, but I sometimes wonder why internment remains on the statute book in the Republic of Ireland and in the Act here. Is it perhaps that the two governments have quietly agreed that one day they might both act, or, if they do not talk about it, do they one day hope that if it became necessary they would both be able to introduce it? I think that what the noble Lord, Lord Fitt, said is correct. If we were to reintroduce internment in Northern Ireland, we would have to impose it in the South; and, what is more, we would need to have total co-operation between the security forces so that people—even if they were not resident in the North or the South—could be picked up on the other side of the Border.

I take the noble Lord's point that previously internment was thought to be used selectively against the Roman Catholic community. However, after the recent horrifying Protestant-instigated terrorist acts, especially in the area of Craigavon and Portadown, I would hope that Protestant so-called Loyalist terrorists would be interned if we reintroduced internment. I do not necessarily want to see internment reintroduced; but if it became necessary, and if it, could be shown that it removed the top tier of terrorists and provided a long enough pause in terrorist activity in Northern Ireland to show everyone there what it was like to live without terrorism and therefore to reject any resurgence of it, I would support selective internment in those circumstances. I support the clause.

Lord Monson

Further to the intervention of the noble Lord, Lord Elton, I wish to put the following proposition to the noble Lord, Lord Prys-Davies, and those who support him on this matter. Although quite a considerable number of people have died as a result of terrorism in other democratic parts of Western Europe since World War II—for example, in Corsica, Spain, Italy and, to a lesser extent, West Germany—in no case has the number of deaths remotely approached the total in Northern Ireland, either absolutely or proportionately. That makes a difference to the situation. I suggest that if by any mischance proportionately as many people were killed in other countries of Europe as a result of increasing terrorism, those countries too might well consider the introduction of internment.

Lord Blease

The two lines of Clause 34 are the most controversial and the most difficult of this 79-page Bill. Sadly, dark days are still being experienced in the Province of Northern Ireland. Internment has had to be introduced in Northern Ireland on some five occasions. However, the occasion when it was introduced in 1971 stands out vividly in my mind. I agree with the principle that a person should not be imprisoned unless the due processes of the law have been followed.

I ask the Committee to turn to the four pages of Schedule 3. Paragraph 4 of Schedule 3 bears the heading "Interim custody orders". After the introduction of the legislation which introduced special powers, there was a period of detention before internment. It was during that period in 1971 that I pleaded for the detention period to be prolonged. I realised that would result in people being imprisoned for long periods without being charged.

I fear very much what may happen in the future. I realise that if an uprising occurs in either or both communities in Northern Ireland, the due processes of law cannot be administered in a normal manner by arresting and charging people. I feel that interim custody orders would be more acceptable than internment at the present time in Northern Ireland. It may be necessary to detain people under some form of custodial arrangement where the normal processes of law could not be followed in a manner that would conform to international agreements.

6.45 p.m.

Lord Skelmersdale

I spoke for quite long enough on this subject on Second Reading. I do not intend to rehearse the arguments that I used on that occasion. One of the advantages of being a Member of this Chamber is that one can learn from the experiences of people who have been born and bred in different parts of the British Isles. I refer to the noble Lords, Lord Fitt and Lord Blease, and to my noble friend Lord Brookeborough.

My experience of Northern Ireland is minuscule compared with that of those noble Lords. However, during my time in Northern Ireland the only time I heard executive detention being talked about was when I bullied people into responding to my questions on that subject. People had plenty of opportunities to mention that matter to me. I talked to many people all over Northern Ireland in hospitals, social security offices and on farms. They could have talked to me about any subject under the sun but they did not mention detention unless I asked them a specific question about it.

As my noble friend Lord Elton has said, this is a swingeing and unusual power. My noble friend did not express it quite like that. However, terrorism is a swingeing and unusual subject that we have to deal with. The speech of the noble Lord, Lord Fitt, left me with the impression that he has been asking himself the wrong question. Surely the question we should all be asking ourselves is what effect the removal of detention will have on terrorism and its hangers on in Northern Ireland. It is that matter that worries me.

Lord Morris of Castle Morris

I wish to oppose the Question that Clause 34 shall stand part of the Bill. I have added my name to the names of others who oppose that clause. I did so for four reasons. First, the presence of such a provision as this on the statute book is to my mind one of the biggest and perpetual indications of political failure in Northern Ireland. It is a sign of political abnormality and an admission that there is no end in sight to political violence in Northern Ireland.

Just outside Lampeter in West Wales someone had painted on a bridge the words, "Smash H Blocks: Britain's Belsen". I do not approve of graffiti; but that made me think. I tried to imagine what it would be like to have internment in Wales, even for people of whom I strongly disapprove. I simply cannot conceive of it there or in any other part of the United Kingdom.

Secondly, it provides the paramilitaries with a useful diversion from their own misdeeds. It can surely be no accident that after every major paramilitary atrocity their representatives leap to the media and spread around the rumour that internment is about to be re-introduced. By pointing to the abandonment by government of the rule of law, they are able to make extremely useful propaganda and to divert attention from their crimes.

Thirdly, because of its discriminatory aspect, internment is perpetually politically divisive. Rather than provide a period of calm, it inflames community tensions and reminds people that the previous use of internment in 1971 is still popularly associated with forms of ill-treatment which led to a condemnation of Britain by the European Court of Human Rights.

Fourthly, internment breeds violence. On the previous occasion that internment was used, the level of violence increased dramatically. In 1971, 173 people were killed. In the first full year after the introduction of internment in August 1971, 474 people were killed. Internment is therefore closely associated with a tripling of the rate of killing. The major fall in violence took place in 1977 once internment had been removed and the emphasis placed on securing convictions in a court of law. Internment is counter-productive to peace.

Throughout the last terrible decades internment has often provided what successive generations of IRA members have called the university of the revolution. That is one university, and the only university, that I should be delighted to see closed down.

Lord Belstead

I must begin by paying tribute to the cogent arguments put forward by my noble friend Lord Colville in his report advocating removal from this legislation of the provisions relating to executive detention. Although the conclusion which the Government have reached is different from that of my noble friend, that should not be taken to imply that we do not recognise and accept the strength of feeling about the powers in relation to the events of the early 1970s in some parts of the community in Northern Ireland. Many factors have changed since then but the lessons of the past should remain powerful in our memory.

That said, I very much respected the points made so clearly and eloquently on this Motion by the noble Lord, Lord Morris, in his first intervention in a Northern Ireland debate. However, in relation to the four points which he made, I should mention that we are not talking about internment, which was last used, as the noble Lord said, in the early 1970s. As the Committee will know, that was replaced at the time of the beginning of direct rule by a system of detention with an appeal tribunal and a regular review procedure. Those procedures were in turn replaced in 1975 as a result of the report of Lord Gardiner. Lord Gardiner's recommendations were included in the 1978 Act by the Government of noble Lords opposite and are now, to the greatest extent, replicated by what is Schedule 3 to the Bill. So, as my noble friend Lord Renton rightly said, we are talking about whether, by agreeing to Clause 34 and not agreeing to the Motion before us, we leave on the statute book procedures which originated in the report of Lord Gardiner and which are now in Schedule 3.

At the time of the Second Reading of the Bill, the noble Lord, Lord Prys-Davies, asked for a list of those countries which have powers similar to those in Clause 34 of the Bill. I must apologise that I was only very recently able to reply. I replied saying that practice and legal provision vary widely around the world, that no list that I could provide would be comprehensive and that I should not want unintentionally to mislead either the noble Lord or other noble Lords who see my letter, which has been deposited in the Library.

There are many countries which subject their citizens to administrative detention. However, in saying that, I must draw two important distinctions—first, between those countries which operate the power on a regular basis and those which preserve the power only for use in the gravest emergency; and, secondly, between the detention of those who seek to demonstrate political dissent from authoritarianism and the detention of individuals suspected of involvement or potential involvement in acts of murder and terrorism within a democratic society.

As my noble friend Lord Colville observed, it has been a matter for much rejoicing that countries which previously exercised powers of detention without trial against political dissidents have now abandoned those powers and resorted to the rule of law. Equally, it is important to observe that a number of democratic societies, faced with the threat of internal terrorism or similar threats to the integrity of society and human life, have powers similar to Clause 34 held in reserve. A very relevant example is the Republic of Ireland, which simply retains executive detention on its statute book.

Were we completely to remove the powers of detention from this legislation, we should effectively be forfeiting any possibility of using them, at any rate in a manner which might prove effective. Although, theoretically, new legislation could be introduced in an emergency, it could not possibly be introduced and debated without giving substantial forewarning to those who might otherwise risk being detained. Then, when looked for, the birds would have flown, and as my noble friend Lord Colville records in his report, extradition could not be used in a detention case to bring them back again.

We believe that, so long as we have to contemplate the outside possibility that the security situation in Northern Ireland might require that detention be used to prevent loss of life, it would be wrong and imprudent to sweep those powers from the statute book altogether. I remind the Committee that, in the event of the unthinkable and the power being used, the Government have to come to Parliament within 40 days for approval. That was a measure which was put on to the statute book when my noble friend Lord Colnbrook was Secretary of State for Northern Ireland

Therefore, for the reasons that I have given, I beg the Committee not to agree to the Motion. This is a Bill which, as I hope has become clear this afternoon, is full c f safeguards. However, it would not give the right signal to terrorists to sweep these particular powers away from the statute book for good and all at the present time.

Lord Prys-Davies

I should like to make it clear that we are not suggesting that we must decide this issue in the light of what is happening in other countries. I do not suggest that for one moment. However, we do suggest that it would be unwise to take the decision without being aware of what is happening in the civilised world and how other countries conduct their affairs when faced with internal threat to their existence. Indeed, it was the noble Viscount, Lord Colville, who reminded us in his review that he had met difficulty in raising human rights issues in the United Nations because of provisions in British law such as internment.

I have listened with considerable sadness to the Minister's words. I am saddened that the Government have not been persuaded to accept the wise recommendation of the noble Viscount, Lord Colville. I asked the Minister to spell out to the Committee why the Government wanted this harsh power and under what circumstances the power would be activated. The Minister has not specified a single condition which must be satisfied before the power can be activated.

The Committee should not derogate to the Secretary of State for Northern Ireland the power to activate internment without at least spelling out on the face of the Bill the conditions which must be satisfied before that power can be exercised. There is not a single condition on the face of the Bill. It is to be a policy option, to be applied as a kind of reserve power. But Parliament does not legislate for policy options, its legislation is based on policies which have already been formulated.

In our view there is no way that this power can be modified. However, if it is the intention of the Government, as it is, that this power should be re-enacted then that must be with the consent of this Committee.

6.59 p.m.

On Question, Whether Clause 34 shall stand part of the Bill?

Their Lordships divided: Contents, 87; Not-Contents, 38.

Division No. 1
CONTENTS
Aldington, L.	Ingrow, L.
Allenby of Megiddo, V.	Johnston of Rockport, L.
Arran, E.	Kinnoull, E.
Astor, V.	Lane of Horsell, L.
Auckland, L.	Lauderdale, E.
Belstead, L.	Long, V.
Bethell, L.	Lucas of Chilworth, L.
Blatch, B.	Mar, C.
Blyth, L.	Merrivale, L.
Brabazon of Tara, L.	Mersey, V.
Bridgeman, V.	Monson, L.
Brookeborough, V.	Moran, L.
Brougham and Vaux, L.	Munster, E.
Caithness, E.	Murton of Lindisfarne, L.
Campbell of Alloway, L.	Napier and Ettrick, L.
Campbell of Croy, L.	Nelson, E.
Carnegy of Lour, B.	Newall, L.
Carnock, L.	Orkney, E.
Cavendish of Furness, L.	Palmer, L.
Cochrane of Cults, L.	Pearson of Rannoch, L.
Coleraine, L.	Penrhyn, L.
Colnbrook, L.	Rankeillour, L.
Colwyn, L.	Reay, L.
Davidson, V. [Teller.]	Renton, L.
Denham, L. [Teller.]	St. John of Bletso, L.
Eccles of Moulton, B.	Sharples, B.
Elles, B.	Skelmersdale, L.
Elliot of Harwood, B.	Stockton, E.
Elliott of Morpeth, L.	Strange, B.
Elton, L.	Strathclyde, L.
Ferrers, E.	Strathcona and Mount Royal, L.
Flather, B.
Fraser of Carmyllie, L.	Strathmore and Kinghorne, E.
Glenarthur, L.	Sudeley, L.
Gray of Contin, L.	Swinfen, L
Greenway, L.	Trumpington, B
Gridley, L.	Ullswater, V.
Hanson, L.	Vaux of Harrowden, L
Harmar-Nicholls, L.	Waddington, L.
Harmsworth, L.	Wade of Chorlton, L
Henley, L.	Westbury, L.
Hives, L.	White of Hull, L
Hood, V.	Wise, L.
Hooper, B.	Wyatt of Weeford, L.

NOT-CONTENTS
Acton, L.	Gregson, L.
Attlee, E.	Hatch of Lusby, L.
Birk, B.	Hollis of Heigham, B.
Carmichael of Kelvingrove, L.	Holme of Cheltenham, L. [Teller.]
Cledwyn of Penrhos, L.
Clinton-Davis, L.	Houghton of Sowerby, L
Dean of Beswick, L.	Hylton, L.
Dormand of Easington, L.	Jenkins of Putney, L.
Falkland, V.	Lockwood, B.
Fisher of Rednal, B.	Longford, E.
Fitt, L.	Mayhew, L.
Gallacher, L.	Morris of Castle Morris, L.
Graham of Edmonton, L. [Teller.]	Nicol, B.
	Pitt of Hampstead. L.

Prys-Davies, L.	Turner of Camden, B.
Seear, B.	Underhill, L.
Sefton of Garston, L.	Walston, L.
Stoddart of Swindon, L.	White, B.
Taylor of Blackburn, L.	Winchilsea and Nottingham, E.
Thomson of Monifieth, L.	Winstanley, L.

Resolved in the affirmative, and Clause 34 agreed to accordingly.

Viscount Long

I beg to move that the House be resumed. In moving this Motion, perhaps I may suggest that the Committee stage begin again at five past eight.

Moved accordingly, and, on Question, Motion agreed to.

House resumed.