HL Deb 17 March 1994 vol 553 cc468-90

8.50 p.m.

The Lord Advocate (Lord Rodger of Earlsferry) rose to move, That the draft order laid before the House on 14th February be approved [8th Report from the Joint Committee].

The noble and learned Lord said: My Lords, it is now 20 years since the first prevention of terrorism legislation was considered by this House. It was introduced as a temporary measure and, in he Government's view, should still be regarded as such, for we continue to cherish the hope that the day will dawn when the exceptional powers which it contains will no longer be necessary.

The Joint Declaration which was made by the Prime Minister and the Taioseach on 15th December offered new hope for peace in Northern Ireland. For that reason it was very widely welcomed in this country and in those many other parts of the world that take a close interest in Northern Ireland. It is therefore a cause of great disappointment that far from declaring a halt to their campaign of violence, the terrorists have continued to inflict suffering and misery on the people of Northern Ireland and Great Britain. In the period since the Joint Declaration was made on 15th December, nine people have died and 55 have been injured at the hands of terrorists. It is clear, therefore, that we need to maintain our defences against the terrorist threat. The Prevention of Terrorism Act forms an essential part of those defences throughout the United Kingdom.

Coming first to Northern Ireland, terrorism continues to cast a dark shadow over daily life. Eighty-four people were killed there in some 730 incidents last year, and 834 were injured. The high levels of sectarian violence which led to the frightful attack in the Shankhill Road in October, and the appalling massacre in Greysteel which was carried out in reprisal, are particularly worrying. In Great Britain we recall the terrorist outrage in Warrington last March which took the lives of two young children and caused terrible injuries to a number of other people simply going about their ordinary daily lives. Not long afterwards the bombing in the City of London claimed another life and yet more injuries and caused massive damage to property. Last year in Great Britain there were 49 terrorist incidents in total, in which three people died and 124 were injured. More recently, of course, there was the series of attacks on Heathrow Airport. This was a truly contemptible piece of work which simply served to show that the Provisional IRA are perfectly willing to carry out crimes which endanger the lives of ordinary people of all nationalities.

The police and the security forces in Great Britain and Northern Ireland have, however, achieved a considerable measure of success against the terrorists. In Northern Ireland this year alone, 70 people have been charged with serious terrorist offences, 18 of those with murder or attempted murder. During the course of last year nearly 400 people were charged with terrorist offences in the Province. The security forces also recovered more than 250 weapons and four tonnes of explosives. If that sounds a very large quantity of explosives, it is a sobering fact that more than six-and-a-half tonnes of explosive were made safe by bomb disposal officers.

In Great Britain, 22 people were charged with serious terrorist offences last year. Thirteen people were convicted of such offences and sentenced to very long terms of imprisonment. Several arrests during the year undoubtedly helped to disrupt terrorist activity on the mainland, and large quantities of weapons and explosives were discovered here too. Such achievements do not come easily. They are hard won by the courage, determination, skill and vigilance of the police and others upon whom we rely to protect us from the menace of terrorist crime. Fourteen members of the security forces lost their lives in the fight against terrorism last year. Many more were injured, some very seriously. We owe them all an immense debt of gratitude. We also owe it to them to ensure that they have at their disposal all the powers and resources which they need to carry out their difficult, and often dangerous work.

The powers which are available under the Prevention of Terrorism Act have continued to play a major part in the fight against terrorism. Without those powers the police would find it much more difficult to prevent attacks and to investigate terrorist crime. The provisions of the Act are, however—and I emphasise this—exceptional in nature. They give to the police and to the Secretary of State powers beyond those which could ever be justified in the absence of the exceptional threat from terrorism. For that reason it is particularly important that the operation of the Act is reviewed each year by a distinguished and independent person. His report greatly assists Parliament in its consideration of the continuance order. The House will know that this year the report by Mr. John Rowe, Queen's Counsel, was placed in the Library on 11th February. He was the distinguished chairman of the Bar Council and he follows in the footsteps of the noble Viscount, Lord Colville of Culross, to whom we continue to be indebted for discharging this responsibility in the previous seven years.

Mr. Rowe concluded, as did his predecessor, that the powers in the Act continue to be needed. Following a careful scrutiny, during which he had full access to all the records, including the intelligence material on which many decisions are based, he was satisfied that the powers had been exercised with great care and discretion. This will not come as any surprise to those of your Lordships who have followed these matters over the years. Only the highest standards are acceptable in the exercise of the exceptional powers contained in the Act. Two of those powers, however, have been criticised from time to time by those who maintain that they are not justified even as a response to the grave threat from terrorism. I refer to the powers of arrest and detention and the power of exclusion. I shall deal with them in turn.

The Act gives the police the power to arrest a person on reasonable suspicion that he or she is involved in terrorism. This power is not available, of course, in the Police and Criminal Evidence Act and the equivalent Acts in Scotland and Northern Ireland. Those Acts provide the power of arrest only when a specific, identifiable offence has been, is being or is about to be, committed. The Prevention of Terrorism Act, on the other hand, gives the police a pre-emptive power to arrest at the preparatory stage of the commission of terrorist crimes. This point is crucial to the understanding of the purpose of the Act. It is essentially a preventive measure. If the police had to wait until they had evidence that a specific, identifiable terrorist offence was planned, they would, in many cases, be too late and lives would be lost as a result.

A person who his been detained under the Act may be held for questioning by police for a maximum of 48 hours. If the police require more time to complete their investigation, they may apply to the Secretary of State who may authorise continued detention of up to a maximum of seven days in all. That is designed to allow the police enough time to determine whether sufficient admissible evidence can be assembled to convert the reasonable suspicion on which the arrest was based into a charge for a specific terrorist offence. Terrorist investigations are among the most complex which the police conduct. In his 1987 review, the noble Viscount, Lord Colville, published a list of grounds upon which extensions of detention may be justified. Forensic tests, for example, are particularly important in terrorist investigations. But they take some time to complete.

Your Lordships will be aware that the power to extend detention on the authority of the Secretary of State required the United Kingdom to derogate from Article 5(3) of the European Convention on Human Rights, following a ruling on the Brogan case that the convention would normally require a suspect to be brought before a judicial authority within four days. The Government took the step of derogation with very great reluctance and, having taken it, immediately proceeded to undertake a careful study of whether it would be possible to introduce a judicial element into the procedure for authorising extensions of detention. The object was to try to find a procedure which would be compatible with the provisions of the convention but which would not weaken the effectiveness of the response to terrorism.

Unfortunately, the Government were unable to identify a satisfactory procedure of that kind. We came up against the same problems which led each of the noble Lords who have in the past carried out major reviews of the Act—Lord Shackleton in 1978; Lord Jellicoe in 1983; and Lord Colville in 1987—to conclude that the issues involved are simply not justiciable. As my noble friend Lord Ferrers reported to this House in November 1989: Decisions to authorise the detention of terrorist suspects for periods beyond 48 hours may be, and often are, taken on the basis of information, the nature and source of which could not be revealed to a suspect or his legal adviser without serious risk to individuals assisting the police or the prospect of further valuable intelligence being lost. Any new procedure which avoided those dangers by allowing a court to make a decision on information not presented to the detainee or his legal adviser would represent a radical departure from the principles which govern judicial proceedings in this country and could seriously affect public trust and confidence in the independence of the judiciary. The Government would be most reluctant to introduce any new procedure which could have this effect. The Government concluded at that time that the present arrangements were the best that could be devised. Again, this reflected the conclusions which had already been reached separately by the noble Lords who, as I have already mentioned, carried out their own comprehensive reviews of the Act. In May last year, in the case of Brannigan v. McBride, the European Court of Human Rights upheld the right of the United Kingdom to derogate from Article 5(3) of the Convention in respect of Northern Irish terrorism.

The second of the Act's major powers which some would like to see ended, is the power of exclusion. At the end of 1993, 71 people were subject to an exclusion order made by the Home Secretary, a reduction of eight since 31st December 1992, and indeed the lowest figure at the end of any year since 1975. A further nine orders made by the Secretary of State for Northern Ireland were in force. In his report, Mr. Rowe rightly acknowledges that opinion as to the value of exclusion orders is not unanimous, but he also notes that there are strong arguments in favour of their retention. In the Government's view these are decisive.

The police regard exclusion as a useful preventive measure. It disrupts the movement of terrorists in both directions across the Irish Sea and it reduces the pool of personnel on whom the terrorists can safely draw. 'The police do not believe that the alternative measures that have been suggested—such as mounting surveillance operations on all those who would at present be excluded—are realistic.

In conclusion, I say to your Lordships that the Government will not shirk their responsibility to deal with terrorism. We simply must not give any ground for belief that we are weakening in our determination and resolve to stamp out terrorism. We are determined to ensure that the police and others engaged An the fight against terrorism have the powers that they need to do the work which we entrust to them. Those powers are contained in the Act which your Lordships are invited now to continue in force. I beg to move.

Moved, That the draft order laid before the House on 14th February be approved [8th Report from the Joint Committee].—(Lord Rodger of Earlsferry.)

9.4 p.m.

Lord Mason of Barnsley

My Lords, I support the continuation of the Prevention of Terrorism Act. Since our last debate on these orders there have been 730 terrorist incidents in Northern Ireland and 84 people have been killed and 826 injured; arid in over 55 incidents in Great Britain, three people have been killed and 124 injured.

I believe that the Prevention of Terrorism Act is totally necessary. Without it, terrorism by the Provisional IRA would run rife throughout the Province. More than likely the Protestant paramilitaries, under the umbrella of the Ulster Volunteer Force, would react. We have had a taste of that in recent times in Northern Ireland. The Prevention of Terrorism Act at least helps to keep a lid on that. Over 350 persons have been charged with terrorist related offences over the past 12 months; over 250 guns and rocket launchers have been recovered; and over 12,000 kilograms of explosives have been found and neutralised. thanks to the diligence of the security forces in the Province, backed by the provisions of the Act. One can just imagine what an escalation of terrorism there could be with those men, guns and explosives back on the streets. Even in Great Britain, 22 people have been charged with serious terrorist offences in the past year and large quantities of terrorist equipment have been discovered. In that regard perhaps the Minister will report upon the increasing liaison between MI5 and the Scotland Yard anti-terrorist squads in these operations and what one hopes is the creation of a network of intelligence gathering and joint operations.

I know that there is concern about the extension of time that a suspect can be held under these orders. But the results show that of those held for up to five or seven days, 25 per cent. in Northern Ireland were charged. Even in Great Britain, of those held 17 were charged with serious terrorist offences. Without the extension more terrorists would now be active. As one who has given consent to extensions—the Secretary of State is involved in each case—I am fully aware of the particular requirement of holding suspects for more than three days after interrogation to check forensic evidence. Time is needed to ascertain fingerprint evidence on arms and explosives used in terrorist activity to enable the charge to be laid. Even the exclusion orders enable the RUC to keep a watch on, and some control over, suspects, some of whom have been involved in terrorist related activity.

Some people complain about the orders. The libertarians complain that we have to seek derogation from the European convention on these matters. No doubt Spain, with the Basque terrorists, and Germany, with the Bader-Meinhof gang, would not have had any difficulty with the convention either. The libertarians must understand that we forfeit a little liberty to save and secure a lot of freedom. That is the crux of anti-terrorist legislation.

Even since the Downing Street declaration there have been over 140 terrorist incidents in Northern Ireland and Great Britain. There have been nine deaths and 55 people have been injured. It would have been hundreds more if the mortar bombs had exploded at Heathrow. The Provisional IRA no longer singles out members of the security forces and Government Crown buildings alone for death and destruction. The Heathrow attacks could have killed and maimed hundreds of innocent civilians. There have been attacks on places where hundreds of civilians congregate, any one of which could have involved mass murder: Victoria Station, the City and major airports. With such examples, how can we not support the PTA? Indeed, has not the time arrived to look afresh at what more can be done to deal more effectively with these crazed criminals? They have no political support. They have no backing from the public in Great Britain, Northern Ireland or the Republic. Politically, the Government have nothing to fear in taking a tougher line against terrorism.

Since the Joint Declaration, the Government may well have given the impression of adopting a laid back policy. The Provisional IRA has ignored their call to renounce violence and indeed has stepped up its activity. People believe that it has cocked a snook at both governments. Should it not now be shunned and progress be made on constitutional change? Should not we move ahead and totally ignore the Provisional Sinn Fein?

One course would be to announce that Dublin, Great Britain and Northern Ireland talks will re-commence —although I recognise the problems with the pending elections. There is a need for the smack of firm government in isolating the Provisional Sinn Fein now. To make political progress we cannot allow that insignificant political minority to hold to ransom the two governments. We do not have to abandon the Joint Declaration but we cannot have the continuation of a political vacuum.

Another course could be taken; namely, to give a clear indication to all the party leaders in the Province that there is no united Ireland in the offing and none in the foreseeable future. The Taoiseach knows that only too well. Her Majesty's Government could go ahead with talks on constitutional change involving more devolved democratic powers to local government within the Province. After all, it is part of the United Kingdom. The majority will decree that for years to come. So let us put it on the same democratic plane as Scotland and Wales. Indeed, the Northern Ireland Select Committee is a useful first step.

Meantime, why do we not step up anti-terrorist activity? I have always believed that the harassment of suspected terrorists pays. There should be frequent swoops on men and women known in the terrorist groups. We should use the extension powers to the full. Let their friends flee across the border. We can await their return and swoop again. If Dublin wants to help, let the Garda and Irish army co-operate with our security forces in each operation on the border. Meantime, internment is on the shelf, ready to be used. But selective detention is lawful within the PTA for three, five or seven days, and it should be extensively used.

I refer once again to an issue I have raised many times in this House. Let the Government consider introducing a national identity card scheme. Put a face to a name and a name to a face. The country is now prepared for it more than ever. In tackling terrorism, we should be using all the modern devices of our age. The police and the security forces would welcome its introduction. The innocent will not mind. Only the guilty will walk in fear. There is too much hesitation on these matters, considering how much more we could do to tackle terrorism seriously.

Finally, I should like to place on record my appreciation of the unstinting efforts of the Royal Ulster Constabulary—a dedicated team of officers and men without parallel in the police services of the world. For 25 years they have been combating terrorists within their own land. They are constantly under threat, suffering death and injuries year after year. Their morale and dedication to law and order have to be admired by all. We owe them a great debt.

The professionalism of our Armed Forces and all services has been superb. They have shown skill, fortitude and patience, constantly returning for tour after tour in the Province. I am pleased that their efforts are now being recognised with the minting of a new medal, the accumulated service medal, for which I have campaigned over many years. If the Minister can help, I should like to be brought up to date as to the position of the new medal and how many of our servicemen are likely to benefit. In that regard especially, I hope that the Royal Ulster Constabulary will be considered for some similar recognition for their years of service.

Mr. J. J. Rowe QC was the independent person called upon to examine the operations of the Act. He said that the Act should continue in force and added, "I have no doubt about that." That goes for me too.

9.15 p.m.

Viscount Colville of Culross

My Lords, I should like to mention how much I welcome the report by Mr. John Rowe. It has fulfilled all my expectations that a fresh pair of eyes would light upon new aspects of this subject; indeed there are matters contained in the report which I wish his predecessor had thought fit to explore. Now, noble Lords have the benefit of what he has done.

I wish to confine myself to one aspect, the first of the two major issues which the noble and learned Lord, Lord Rodger of Earlsferry, touched upon in his speech. I do not look upon this matter as one that should be brought into party politics: it is far too important. As far as I am concerned it is entirely coincidental that it was raised in a debate in another place on 9th March by the honourable gentleman the Member for Sedgefield. He wanted to involve the judiciary in the system of extensions of detention under the legislation. He stated that the purpose of an element of judicial control was not just to provide a process of legal reasoning or logic but that the judicial element would be independent of the executive and that the liberty of the subject should not be taken away by a politician but by the court. That was a point that was made very forcefully to me in 1987 when I carried out the major review of the Act. I found that view to be extraordinarily attractive. I therefore went back to first principles and, in the report that I wrote Command 264, I developed my own views on that matter in Chapter 12. I am afraid that I came to the same conclusion that has been reached by others, that it was not possible to do it. Then came the Brogan case and the Government also thought the matter through, from first principles. The noble and learned Lord, Lord Rodger, has quoted from the Written Answer in another place by the noble Lord, Lord Waddington (as he now is), about the position that the Government took after their re-examination.

I was disappointed that the Written Answer did not go into a little more detail. Therefore, in the report that I wrote on the Act in 1990, I looked at the United Kingdom legal systems because after a little research it seemed a very strange thing that we in this country should be rapped over the knuckles by the court in Strasbourg for keeping people in detention for up to seven days, when in France—and I have seen a number of different periods quoted—it is at least four months. As far as I know, the crew of the ship "Eksund", which brought from Libya most of the semtex which is still being used to blow us all up, and most of the ammunition, guns and other weapons which are being used to kill our security forces and our civilians, were held for the best part of two years before they were brought before the courts. Strasbourg has never said a word about that situation and I wondered what was different about the United Kingdom system.

I looked at the Scottish and the Channel Island systems of criminal justice, both of which have a strong civil law tradition. It appeared to me that, with a little adaptation, it would be possible to accommodate the system to what, in the eyes of Strasbourg, constitutes a court for the purposes of extensions of detention. However, I am bound to say that, when one came to the common law system in England, Wales and Northern Ireland, the exercise appeared to be quite hopeless. That, of course, is the situation as it is today, and it is the one with which we are still confronted.

I therefore wish to say a little more about the way in which the judges might be involved in this process and the reasons why I believe it would be wrong to do so. We are talking of the liberty of the subject, the point made in another place. We are talking about files which are brought forward by the police asking for extensions of detention. I am, I think, in the unique position of having for seven years seen all the files in England, in Scotland and in Northern Ireland by which these applications were made. That is not only the ones that succeeded, because they were not all followed through by extensions of detention. I do not think anyone else has seen all of the files. I shall certainly not say what is in them but I can tell your Lordships this much: they contain information about sources; about the progress of an investigation; about the leads which the police wish to follow up, all of which Mr. Rowe deals with on pages 10 and 11 of his report. Leaks or disclosure of this information could cause almost irrevocable damage to the police investigation and, further than that. real peril to people's lives.

If we are talking about putting that kind of material before the judiciary, we are talking about what is called an ex parte application, an application to the judge by one side which the other side does not know about. That is not an unknown matter in the English criminal justice system but it means that there can be no disclosure to the detainee's representative or, of course, to the detainee himself. It also means that there is no possibility of a judge giving a reasoned decision as to why he has granted an extension, if that is the power he is given. If he does not give a reasoned decision, no appeal is possible. One cannot get an appeal on its feet if one does not know upon what grounds the decision has been taken in the first place.

Secondly, that also means that one could not take a decision of this kind to judicial review because one would never be able to produce enough material to get leave from the single judge in the first instance on the ground that the person who took the decision was not being reasonable. People have tried judicial review on extensions of detention in the hands of the Home Secretary. They have not succeeded. Nor would they succeed if it was done by a judge.

In any event, if one looks at the context of a decision to extend detention, it seems highly undesirable that appeal procedures should intervene after the first 48 hours. What is supposed to happen? Are the police supposed to stop their investigation while the appeal is heard? Is the detainee supposed to be released so that he will have to be caught again, if necessary, if the appeal is finally rejected? The whole point is about liberty of the subject and it is about urgent investigations into what can turn into extremely serious criminal charges.

I can think of no other exercise of judicial discretion which is both heard in secret and is not at any suitable stage able to be looked at by way of an appeal. There are other examples in the criminal justice system whereby matters are dealt with on an ex parte application. For instance, the police may wish to use their powers to obtain financial information under the Drug Trafficking Offences Act or under this Act itself, the Prevention of Terrorism Act, or under other legislation which has just come into effect—the Criminal Justice Act 1993. Incidentally, some of the applications for financial information under this Act are of such a sensitive nature that under paragraph 8 of the seventh schedule they are not dealt with in front of the courts in Northern Ireland but by the executive there. There has never been any complaint about that.

But perhaps the most striking example where ex parte applications do come at the present moment before the judges is where public interest immunity is being claimed. I am not talking about the Matrix Churchill trial, although that is an extremely good example of what can happen. I am talking about the disclosure of material in quite humdrum cases in some instances which is in the prosecution's hands but which derives from surveillance—it gives details of how that was carried out or comes from informers. These matters can be so sensitive that the defence is not even informed in advance that the judge is being invited to rule that they shall not be disclosed by the prosecution to the defence.

On Tuesday of this week in the Court of Appeal there was a judgment given by the noble and learned Lord the Lord Chief Justice in the case of Keane. In that case, which is reported in The Times, he stressed that ex parte applications are, contrary to the general principle of open justice", in criminal trials. I commend that judgment to any of your Lordships who are interested in this subject.

In public interest immunity cases non-disclosure is open to review because it is only a provisional decision by the trial judge. He can change his mind at any stage of the trial, particularly if the defence discloses what is the line of defence that is being taken so that at last it is possible to see what is and what is not relevant to it in the material in the possession of the prosecution. Of course, the whole matter can be reviewed again at the stage when a conviction or sentence (particularly a conviction) is being considered on appeal by the Court of Appeal as in the Keane case.

Documents, television film of some incident and bank accounts are only evidence; they do not begin to go to the question of the liberty of the subject and neither do public interest immunity certificates or issues of that sort. Nobody loses their liberty, but in this case we are talking about somebody who will remain in detention if an extension of detention is granted.

This is a very uncomfortable job for a judge. He must act urgently, secretly and without consultation with anybody else. There is no expectation that he will ever get guidance from appeals in other cases. He is of course susceptible to criticism for decisions, as are all judges in all cases, but, unlike a Minister, he cannot answer it. He is not answerable anywhere at all for the decisions which he takes. That may not be a wholly satisfactory situation when one is dealing with the liberty of the subject.

I do not know which judges are going to be thought suitable for this work, but there are serious practical difficulties in involving the judiciary. It may not be particularly difficult in Scotland because these issues do not very often arise there. But, just as a matter of interest, let us suppose that this should occur in the island of North Unionist, which is not all that far from Ireland. The sheriff goes there only two days a week, weather permitting.

In Northern Ireland the entire judiciary—the High Court judges and the county court judges together—could not possibly be expected to cope with the volume of these applications. I was used to looking at between 500 and 600 files every year. I noticed that Mr. Rowe said that it was 455 applications actually granted in 1993 which he had seen. The police do not arrange their terrorist investigations so as conveniently to reach the end of the 48 hours at about 9.30 on a weekday morning; nor do they make their applications any earlier than they have to because they would be criticised if they did that. It might not turn out that they would be successful if they made them too early.

So what happens is that applications are made at all times of the day and night, on all days of the week and throughout the year. They have to be dealt with urgently —about 1.5 times a day or something of that order. I do not believe that the Northern Irish judiciary would be able to take on that extra burden. We should be aware that that is the sort of thing that we are talking about.

In England and Wales, the number of applications last year was smaller, at 39, but an application has to go before whichever judge is available. These things do not all happen in London. What would happen if, as has certainly been the case in the past, an extension of detention was required in relation to somebody in custody in Haverfordwest? Who would deal with that? It would have to be whichever judge was available. Hundreds of members of the judiciary might in general be candidates for the task. There is no reason to suppose that any of them would be at all familiar with the subject matter and, as I have already said, they would not be able to discuss it with anybody else.

There would then be at the very least major problems of consistency—and consistency is extremely important. At the present moment, there is consistency for this reason: submissions come from the police. They are filtered by the police. The police do not put forward every case that comes from the lower ranks. The submissions are then looked at by a small team of experienced officials in the three departments concerned. With the experience that they have obtained, those officials are able to question the police about the applications and to take note of points which I do not believe a judge would know about or be able to pick up.

There are occasions—this happens particularly in Northern Ireland—when the same person is detained under the Prevention of Terrorism Act three times in a year. Separate files are involved on each occasion. The Northern Ireland Office and the reviewer knows that the person concerned has been dealt with in that way on three separate occasions, but each involves a separate application. I see no reason to suppose that a judge would know that that person had been dealt with twice previously during the year. There would be no function for the expert team of civil servants who at present handle such matters with considerable skill.

There is also the whole question of whether the reviewer would be able to look at these matters. Judges would probably resent being overseen in that way. In addition, I am not in the least clear about the logistics of obtaining the files and the details of the judge's decision. A review is of some use. As Mr. Rowe mentioned in his report, it shows up patterns and the whole picture. I shall give two brief examples. The noble and learned Lord, Lord Rodger, has already referred to the catalogue that I made in 1987 of what was not: supposed to be an exhaustive list of the reasons on which could properly be founded an application for an extension of detention. There were certainly others, but those reasons have been used ever since. They were compiled from individual searches of the files. Each carne out of a real case which I thought properly exemplified the use of the power.

It was discovered that in Northern Ireland a number of people were being held at a stage when it seemed perfectly obvious that it would have been possible to charge them with a serious offence but when the police still wanted to question them about something else. It took me about three years to discover why that was happening. It transpired in the end that it was impossible for a Resident Magistrate in Northern Ireland to remand a person into police custody after that person had been charged with an offence—not even to enable the police to continue to question him or her about another totally unconnected affair. The reason was perfectly simple: the power in England and Wales, which is familiar to everyone, started under an Act of 1848 which, as it so happened, did not extend to Ireland. The power simply did not exist in Northern Ireland, which is the rump of all that is left of the island and is still within our jurisdiction. In 199 that was changed by the Criminal Justice (Northern Ireland) Order of that year, and the police now do take people before the courts, and then take them back for further investigations.

Finally, perhaps, there is this about overall patterns which involve the liberty of the subject and the way in which extensions of detention are handled; that is, that the reviewer is always invited to talk to officials and to Ministers. That is a less public arena in which to express views than the report itself, and I believe that it is valuable.

If, for the reasons that I have given—if they are at all convincing—it is not feasible to give the power to the ordinary judiciary, and yet one still wants to have a court for the purposes of Strasbourg, it will be necessary to invent some new judicial tribunal. It will have to sit in three divisions (Edinburgh, Belfast and London) for the reasons of urgency that I have given.

When that happens, no doubt those in the civil liberties lobbies will clap their hands with glee at the final conviction of the Government—that they have been wrong in the past—and the Government will make a pretty job with their cosmetics box and will put forward a tribunal which is, in the eyes of Strasbourg, a court. Yet another quango will have been set up with its attendant costs and all the manning that will be involved; and with the involvement of a quango or tribunal of that sort, or indeed of a judge, it would then become legitimate in the eyes of Strasbourg, and wholly respectable, to detain people for much longer than they can be detained under the Act as it now stands. We should not be arguing about the difference between four and five days and seven days; we should be arguing about the difference between, shall I say, two days and four months. That would be wholly within the European convention. So where will all that get the detainee whose liberty is at the basis of all this argument? How much good will it all do him or her?

I believe that a judge, if confronted with one of these applications, would find it very difficult indeed to refuse. Of course there is always the danger of aberration, but at present, as I have said, it goes through three tiers of checks—in the police, in the Civil Service, and by the Secretaries of State themselves, who do not always do what their civil servants advise. If this were handed to the judiciary, there would be only the police and whichever judge was brought in on that particular occasion, and with probably no review.

In practice, I believe that these applications are almost always unanswerable, although one must always be vigilant to see that they remain unanswerable. I suggest that the present system is more efficient in ensuring that they are validly founded and properly are the reason for the deprivation of liberty than anything that could be introduced by some judicial element in the process.

What I suggest is that, instead of attacking the matter in the way proposed, we should look at the liberty of the subject in terms of what happens to him 'when he is under detention. I have just been reading Sir Louis Blom-Cooper's first report on the holding centres in Northern Ireland and the way in which confessions may be obtained—audio and visual tapes being introduced with certain severe restrictions—and matters of that sort. The liberty of the subject ultimately is riot a matter of two or three days in the police cell, it is 25 years after conviction. Those are the points that need to be guarded against. If we stop applying our minds exclusively to what happens over a matter of a few days at the beginning of the process, and apply them instead to the way in which we ensure not just that someone is not forced into a confession by unfair means but that the police are protected against false accusations that they have done that—because both those are important aspects—we should do more for the liberty of the subject than we can do by pursuing this matter.

9.40 p.m.

Lord Cooke of Islandreagh

My Lords, I am at a considerable disadvantage in following the noble Lord, Lord Mason, who served as a Secretary of State in Northern Ireland and therefore has intimate knowledge of this Act and all matters of terrorism. I am also disadvantaged in following the noble Viscount, Lord Colville, who has performed a signal service in reviewing the provisions over seven years. I listened with great interest to his explanation of the problems relating to detention. I was glad to be able to do so because I had been unable to understand the problems.

I was pleased to hear his advice that the present arrangements should continue in the interests of the detainees as well as in the interests of justice. I hope that that can be the case because, as regards the outsider, the present arrangements are necessary and appear to work.

I am pleased that the renewal order is receiving support from all sides. Clearly, the Act is necessary so that the Government and the police have the powers to deal with terrorists. However, one or two issues need to be considered. For many years we have suffered terrorism in Great Britain and in Northern Ireland. Why is one Act needed for Great Britain and another for Northern Ireland? The problems are the same throughout the United Kingdom and I should have thought that they could have been dealt with in a single Act.

As regards exclusion orders, I am sure that they are necessary but the consequences of exclusion cause offence in Northern Ireland. If a terrorist is not acceptable in Great Britain why should Northern Ireland have to put up with him? I know that in the Northern Ireland order there is a reciprocal arrangement whereby terrorists can be excluded from Northern Ireland and sent to Great Britain. However, in the way of things, there is little reverse traffic. It is absurd that there appears to be satisfaction when a terrorist is excluded from Great Britain and sent back to Northern Ireland, where he is free to continue to do whatever he wishes.

One must ask whether the provisions in the order are adequate and sufficient to counter the schemes and devices that terrorists have developed over the years to defeat existing legislation. For instance, it seems a little odd that a terrorist suspect under interrogation can throughout remain silent, can look at the ceiling, can turn round and face the opposite wall, can sing or shout blasphemies. The fact that he does not answer a single question may not be taken into account in any way in subsequent court proceedings. On the other hand, a business person questioned by departmental officials on matters relating to VAT must give full and frank answers. Any person who refuses to do so may be sent to goal. The contrast is quite extraordinary.

That and other matters of a similar nature were raised by the chief constable of the Royal Ulster Constabulary when he introduced his annual report in May last year. He called for certain changes in the law on this and similar matters in order to reduce the handicap under which the police at present work. His comments are equally valid in Great Britain but to the best of my knowledge there has been no response to his remarks.

The whole question of terrorism in the United Kingdom is now at a critical stage. There is universal demand, or insistence, that it shall stop or be stopped. The Downing Street Declaration raised hopes of an early end to terrorism. I have not met anyone in Northern Ireland who thought that it would persuade the IRA to stop bombing and murdering but it was hoped that the Government knew more than the man in the street. That has not proved to be the case and I must advise your Lordships that there is widespread anxiety in Northern Ireland that the affair is being allowed to drag on, giving Sinn Fein, in the person of Mr. Adams, endless opportunity to confuse the public at large by claiming that the IRA is devoted to peace but is being obstructed by the negative attitude in Downing Street. In the meantime, the IRA continues to bomb and kill.

The time has come when governments, both here and in the Republic of Ireland, must face up to taking effective action. The Government may have to lean on the Government in Dublin to obtain their agreement and commitment to such action but they must not shy away from that. To us in Northern Ireland it has been clear since the start of talks about talks—that is now four years ago—that the efforts to deal with the IRA have been less than wholehearted. We can see that—or the lack of it—with our own eyes. When it was revealed that meetings and exchanges took place early last year between the IRA and the representatives of government, we were not amused.

The principal reason why the IRA and Sinn Fein have not given up is because they think they are winning. If I was in their shoes, I should think that I was winning. They have been given more than an inch or two by the two governments and Her Majesty's Government should know by now that, if terrorists are given anything, they will demand and expect more and more concessions. That must stop. In the coming months it must be made quite clear to Sinn Fein and the IRA that they are not winning and are not going to win. It is the responsibility of government to deal with terrorism—IRA, Loyalist or whatever—and all terrorism and violence must be firmly put down.

I listened carefully to the noble Lord, Lord Mason, and I thoroughly commend and approve most of what he said. He suggested that political talks should now get moving—because they have been stagnant. He asked why Northern Ireland cannot be ruled as another part of the United Kingdom, as is Scotland or Wales. If that were done, it would please the vast majority of people there and stop the indecision and vacillation.

The noble Lord, Lord Mason, paid a very well deserved tribute to the security forces. I wish to support that. Their bravery and perseverance in the face of danger has been quite remarkable. It cannot be fully appreciated by those who have not seen them in action. Members of the police reserve and part-time members of the Royal Irish Regiment deserve particular credit. They live at home and are constantly at risk. They accept great personal inconvenience in order to serve their country.

It is difficult for people in this country to understand what they have to do. Often they are not able to tell their employer that they are part of the special reserve for fear that somebody will finger them. They have to pretend that they are going on holiday when they are going on camp. They have to tell their children to be careful what they say to other children at sc. col when they ask where their parents are at night and why they are always out. They have to be careful which clothes they hang on the line outside; they have to dry their uniforms inside the house. When they come back from camp, a badge on the cap or beret which they wear may leave a mark on their forehead. They have to go to the chemist's shop to buy something to cover up that mark. Such matters, and all that flow from them, are difficult to understand. It is remarkable that those men and women continue to give such signal service.

I must also not forget the courage and determination of civilians, both Protestant and Catholic, who know that they are at particular risk. The community in Northern Ireland has suffered for far too long. I hope that the passing of the order and subsequent action by government will lift the threat of the bomb and bullet from us all in these islands.

9.50 p.m.

Lord Harris of Greenwich

My Lords, we were most fortunate to hear the speech of the noble Viscount, Lord Colville of Culross. I found his analysis of the problem of judicial intervention very powerful. I have certainly never considered the matter in as much detail as the noble Viscount clearly has. As I said, I found his argument most persuasive.

Before I come to the substance of what I have to say this evening, I should like to comment briefly on the remarks made by the noble Lord, Lord Mason, about identity cards. I certainly would have no objection to such cards if I believed—which I do not—that they would play a significant part in improving our arrangements for protecting members of the public in this country from terrorist violence.

The problem about identity cards can be stated very briefly. it would be immensely expensive; indeed, it would be a huge administrative problem if it was taken seriously and we had to establish procedures which made it virtually impossible for anyone to have a card which was not in reality properly his own. Of course, we know that it is almost inconceivable that we could make such arrangements. The fact is that the terrorists would have the most excellent identity cards, just as they have the most excellent fraudulent passports which are extremely difficult to detect. However, I do not dismiss the argument because I know that many people of good will hold it very strongly. But I am deeply sceptical and I would be very hesitant before I shared the noble Lord's enthusiasm for such cards.

I turn now to the order. My right honourable and honourable friends voted for the order in the other place. Of course, we have the same view on these Benches. As I explained in previous years, I believe that the array of powers contained within the legislation is essential in view of the terrorist threat to which our country is exposed. It is only right that we should review such powers annually because the provisions are exceptional. In circumstances where the powers are as substantial as they are, I do not believe that we can afford to be complacent, so long as they are needed on the statute book.

I introduced the original legislation in this House nearly 20 years ago. I believed then, as I believe now, that it is essential so long as we are confronted with extreme terrorist violence. I can certainly assure the House that, from my own direct knowledge, many of those who have been removed from the country as a result of exclusion orders would, if they had been permitted to remain within Great Britain., have been involved either in acts of terrorism or in close support for the terrorists. As a result, I believe that some of our fellow citizens are alive today who would not be if exclusion orders had not been introduced.

For that reason, I find it hard to believe that it would be acceptable to drop such powers at present. Quite apart from any other consideration, I believe that the general public would be quite astonished in the immediate aftermath of the IRA attack on Heathrow if the Government suddenly decided that it was a good idea to drop the prevention of terrorism order. The existence of such powers has led to a lessening of the extent of terrorist violence. We have certainly been exposed to a great deal of it. Nevertheless, without those powers, I am quite clear that the situation could have been infinitely worse.

Having said that, I should like to make one further comment. When the Leader of the Opposition in the other place asked to see the Prime Minister to discuss such matters, I find it deeply disturbing that full reports of those discussions subsequently appeared in the Sunday Express. I do not think there is doubt in many people's minds as to where these reports came from. I do not happen to share the views of the Labour Party on the prevention of terrorism order but I deplore the fact that confidential discussions between the Prime Minister and the Leader of the Opposition were leaked for reasons of party political advantage. As I have indicated, human lives are involved in this matter. It is wholly irresponsible for those who were involved in leaking this to the Sunday Express to have done so. I have worked for two leaders of the Opposition who had conversations with two Prime Ministers and I can recall no incident during that period when the conversations between them were leaked to newspapers. I very much hope that we will have no more of this in the future.

9.55 p.m.

Lord Williams of Mostyn

My Lords, I wish to take up that final point made by the noble Lord, Lord Harris of Greenwich. If ever I were to deal with the noble and learned Lord the Lord Advocate in a robing room in his jurisdiction, or he with me in mine, we would be able to deal with each other in complete confidence and confidentiality as members of the Bar. Whenever I have had conversations with the noble Earl, Lord Arran., or presently with the noble Baroness, Lady Denton of Wakefield, we all know that what we say in confidence will go no further.

One of the most dreary commentaries on modern standards in government seems to me to be that a private conversation between the Leader of the Opposition and the present Prime Minister was promptly leaked. I could not be stronger in my endorsement of the approach of the noble Viscount, Lord Colville of Culross. These matters are far too important for partisan advantage. This was a time of importance and delicacy. There was a genuine approach by the Leader of the Opposition looking for a consensus that was spurned, not, in my belief, by the Prime Minister but by others. It was spurned in the most discourteous and, even worse, the most irresponsible of ways.

I turn to our approach. Our general approach is that there is a point of high principle involved here. Civil rights should never be curtailed except in the most pressing emergency. But, if they are so curtailed, the limitation should be subject to judicial scrutiny and any invasion of civil rights ought to be kept to the minimum. If we do not attend to that principle, we give terrorists a victory and we should not overlook that.

As my noble and learned friend the Lord Advocate rightly assumed, I wish to deal with Part II and Part IV of the Act this evening. But before doing so, I wish to endorse the disappointment that has been mentioned as regards the response, or lack of it, of IRA and Sinn Fein to the Downing Street Declaration. As I have said in your Lordships' House before, that was a declaration of political courage on the part of our Prime Minister and the Taoiseach. I myself find it difficult, not to say deeply offensive, to hear Mr. Adams speaking for those he represents, and those he pretends he does not represent, and asking for clarification. If Mr. Adams and his colleagues, in the open or in secret, want clarification, might they not condescend to say what they want clarified? I, for one, have never heard that. Not long after the declaration, there was the recent mortar bombing of Heathrow and the particular consequent obscenity of Mr. Adams promising further spectaculars. That word "spectacular" will be a chicken that comes home to roost as far as Mr. Adams is concerned.

Of course we support—as noble Lords have already said—the security forces and their dedication and courage. They need our full support. I very much hope that they will not feel that in Northern Ireland the financial protection afforded to people in the security forces, in the RUC and to civilians by the Criminal Injuries Compensation Board will be taken away from them. I very much hope that we shall not hear in the next few months that that protection against injury and its consequences will be taken away from them. However, when I asked the noble Baroness, Lady Denton, about that recently, she said that it was under consideration. From all the discussions that I have had with those concerned in Northern Ireland, such a consequence would be met with bitterness.

As has been said, Part II of the Act allows, at the disposition of the Executive, what is in effect internal exile. I concede that that may be necessary in certain grave cases. But we ought to bear in mind the objection articulated this evening by the noble Lord, Lord Cooke of Islandreagh, which has also been expressed by others, such as Mr. Trimble and Mr. Taylor, neither of whom could be described as soft on terrorism. In fact, Mr. Taylor has been the object of a determined effort to murder him. They object to this concept of internal exile for precisely the reason specified by the noble Lord, Lord Cooke of Islandreagh. Too often it appears to people in Northern Ireland—it seems to me, with some justification—that Northern Ireland is regarded as a dustbin for those not wanted in Great Britain, because that exclusion or internal exile is substantially a one-way traffic.

It is our view that there should be a judicial component. Having listened with care and interest to the observations of the noble Viscount, it seems to me that it is possible to have one or two nominated High Court judges to deal with exclusion orders and arrest and detention orders. In England and Wales the numbers of cases are not enormous. Judges are regularly available at home at any time of the day or night, as anyone who practises at the Bar here knows. They are able to come to decisions very quickly. There would be infinitely more public confidence if a judge's fiat was required rather than an executive decision. Not only would there be a benefit to the system itself, but there would be the added benefit of a firming up of public support and confidence. After all, if people are wrongly treated with exclusion orders it may encourage them to bitterness and to extremism when that might otherwise not have been the case.

Part IV provides for arrest and detention up to seven days. Of course it is recognised that, for specific reasons which have already been mentioned—I shall not trouble your Lordships with the tedium of repeating them—there may be circumstances where extension is required. We are adamant that that should be on the basis of a judicial decision. Of course I endorse entirely what the noble Viscount said. Reasoned decision will not be available. Appeal will not be available, nor judicial review.

I simply pose this question. If any of us had a 20 year-old son or daughter who was likely to be detained for seven days —which is a very long time—and likely to be excluded, would we want that exclusion order or seven-day detention order brought about by the likes of that independent judge, Judge Smedley, or would we prefer it to be brought about by a member of the Executive, many of whom recently have been rather too free with public interest immunity certificates? If one puts the question in that way it will be seen that the involvement of the judiciary is essential, although that would be in difficult circumstances without the full apparatus of the law.

I agree entirely with the analysis of the noble Viscount. There would be constraints and difficulties. But, as he rightly said, there would be ex parte applications, which are well known in this class of criminal prosecution. I have dealt with them myself. As the noble Viscount said, they have recently been reviewed in the Court of Appeal.

Without detaining your Lordships too long, perhaps I may deal with one specific area—namely, the question of tape and/or video recording of interviews. That was dealt with as recently as 31st January this year at page 109 of Sir Louis Blom-Cooper's report. It was raised at page 14 of Mr. Rowe's report on 3rd February 1994 and it was extensively discussed in the noble Viscount's report of 20th May 1993. All those reporters—if I may put them in that general category—had serious questions about whether tape or video recordings should be carried out. Of course, it is quite impossible to deliver a tape or video recording to the suspect or his lawyer. Nevertheless, not least for the protection of the interviewing officers, as was mentioned earlier, the decision about taping or video recording needs to be reached as quickly as possible.

I suggest that there is reasonable ground for having a general judicial inquiry into the whole scheme and structure of the Act

I shall conclude with a personal word. I myself have prosecuted at the Bar as well as defending in terrorist cases. I have had personal experience of working with police forces, Special Branch and related authorities. From my experience, no one would sensibly object to reasonable powers which are required in terrorist cases. Those powers and any extension of them should be based on the principle which I sought to define earlier.

I cannot leave the subject without saying that I personally resent, and I know that my colleagues in the other place do so, the fact that a reasoned approach to the matter on the basis of a desire for consensus is turned somehow into an allegation that one political party or another is soft on terrorism. I know that that will not happen in your Lordships' House. That is a demeaning approach for a Secretary of State to adopt. I do not think that 1 should demean this House with any further consideration of that approach.

The matter was fully discussed in another place. As noble Lords know, there was a substantial majority in favour of the continuation of the Act and its provisions. Fundamentally, the provisions must continue. The approach that we adopt is that there should be a judicial involvement; it would be difficult, but it would be better.

10.7 p.m.

Lord Rodger of Earlsferry

My Lords, in the course of this debate, your Lordships have been privileged to hear contributions from speakers who have an enormous wealth of experience relevant to the subject.

In a powerful and authoritative speech, the noble Lord, Lord Mason, made several general political points. In particular, he urged the Government not to allow Sinn Fein to have a veto over political progress in Northern Ireland. I can give him an assurance that no such veto exists. The Prime Minister and the Taoiseach made it clear on 19th February that they intended to push forward with the political talks. Those who continue to advocate or support the use of violence for political ends can have no part in constitutional discussions within a democratic society.

I can say to the noble Lord, Lord Cooke, that there can be no question of concessions being made to violence. He also asked why, when we were dealing with Acts and orders, we had to have two rather than one. The Prevention of Terrorism (Temporary Provisions) Act which we are considering tonight applies throughout the United Kingdom, so the order which we are considering will secure the continuation of the necessary powers in Northern Ireland as well as Great Britain. I believe that the noble Lord referred to the additional powers which are contained in the Emergency Provisions (Northern Ireland) Act which will in due course be subject to a separate order which the House will debate in May or June. The reason for that separate legislation is that there are additional provisions—for example in relation to such matters as road closures—which have been thought to be particularly appropriate to the situation in Northern Ireland and which have therefore been made subject to that particular form of legislation.

The noble Lords, Lord Harris and Lord Williams of Mostyn, referred to the leaking of the confidential discussions between the Prime Minister and the Leader of the Opposition. Noble Lords would not expect me to do other than to deplore that leaking of discussions which took place plainly on Privy Council terms. But if I deplore that, it is only what my right honourable friends the Prime Minister and the Home Secretary have also said. They have deplored the fact that discussions became publicly known. Inquiries have been made, as noble Lords know, but they have not ascertained how the Sunday Express was able to print its story. For my part, I would reject the innuendos which were cast, as it seemed, upon particular Ministers.

The noble Lord, Lord Mason, raised three particular matters. He referred to the involvement of MI5 and the Security Service. As noble Lords know, since October 1992 the security services have had lead responsibility in Great Britain for the intelligence effort against Irish Republican terrorism.

I cannot comment on the operational matters involved. However, I can assure the noble Lord that the police and security services work very closely together at all levels to ensure that their combined resources are brought effectively to bear against the terrorists. It is a fact that a number of the recent successes have resulted from the combined work of the intelligence services and the Royal Ulster Constabulary in Northern Ireland and of the police here in Great Britain.

The noble Lord also raised the question of identity cards; and the noble Lord, Lord Harris of Greenwich, touched briefly on that matter. The Government share the view of the noble Lord, Lord Harris. Although there are indeed developments in technology, the Government are not convinced that such a scheme would of itself make a significant contribution to the fight against terrorism. As the noble Lord, Lord Harris, suggested, we believe that determined terrorists would not find it difficult to circumvent the system, either by fraudulently acquiring identity cards or by, for example, obtaining travel documents issued to citizens of other European Community countries, whose nationals have the right to travel freely to and within the United Kingdom.

Of course, police require proof of identity for routine counter-terrorist checks at ports. They already have the power under Schedule 5 to the Act to require travellers at ports to produce documentary evidence of their identity and nationality.

The other point which the noble Lord, Lord Mason, touched on was the question of recognition of the role of the services, and indeed of the Royal Ulster Constabulary. The accumulated campaign service medal will be issued in recognition of service in a number of theatres—including, but not solely, Northern Ireland. At first, most of the service personnel who will receive the medal when it is issued towards the end of the year, will be those who served in Northern Ireland. That is the theatre in which they will have had the opportunity to accumulate the length of service which the award requires. I cannot yet give the noble Lord the numbers of those who receive that medal. The medal is to be awarded to members of the armed services only and officers of the Royal Ulster Constabulary will not be eligible. In fact, the particular circumstances of the Royal Ulster Constabulary are recognised by the issue of special payments. However, I have noted what the noble Lord said.

In the end, among the noble Lords who spoke there was no difference about the regrettable necessity for the powers in this Act. But the noble Lord, Lord Williams of Mostyn, took the view that he would like a judicial element involved both in the matter of exclusion orders and in the matter of detention. In many ways the Government would also like such an element in an ideal world. But the fact of the matter is that this has been very carefully considered. I would certainly not presume to better the quite outstandingly authoritative account given to your Lordships this evening by the noble Viscount, Lord Colville of Culross, of the arguments that present themselves in this connection.

One must have regard to the fact that, as was said, so many of these situations would arise in Northern Ireland. One would therefore risk drawing the Royal Ulster Constabulary, which already has a hugely difficult task to perform, into what inevitably would be an area of great controversy. Because of the nature of the decisions involved, in many ways they are executive actions and should be taken by a member of the executive. The Government feel very strongly that it would be damaging to the status of the judiciary—that very important bulwark of independence—to ask it to take on this role which, as I said, would inevitably lead it into that area of controversy.

So, although it is with regret that we reached that conclusion, nonetheless we reached the view that that is the position. For those reasons we do not believe that there is some magic solution or indeed any solution which some kind of further inquiry in this matter would discover.

Having regard to all the circumstances, the Government believe that the legislation continues to be a most important element of our defence against terrorism. For that reason, I commend the order to the House.

On Question, Motion agreed to.

House adjourned at eighteen minutes past ten o'clock.