§ 9.5 p.m.
§ The Parliamentary Under-Secretary of State, Northern Ireland Office (Lord Dubs)
My Lords, I beg to move that the House do now resolve itself into Committee on this Bill.
§ Moved, That the House do now resolve itself into Committee.—(Lord Dubs.)
§ On Question, Motion agreed to.
§ House in Committee accordingly.
§ [The DEPUTY CHAIRMAN OF COMMITTEES (Lord Cocks of Hartcliffe) in the Chair.]1385
§ Clause 1 agreed to.
§ Clause 2 [Scheduled offences]:
§ Lord Cope of Berkeley moved Amendment No. 1:
§ Page 1, line 22, leave out subsection (2).
§ The noble Lord said: It is late in the day to be starting our detailed consideration of this important Bill, but that is the way it has turned out. The noble Lord, Lord Monson, apologised that after having put his name to some of the amendments he has been obliged to leave before we deal with them.
§ I rise to move Amendment No. 1. The Committee will know that some offences in Northern Ireland are called "scheduled offences" and special provisions apply. In particular, the trial for such offences takes place without a jury, but with extra safeguards such as automatic appeal. Such provisions are considered by everyone to be necessary in order to protect the public and to secure convictions.
§ Schedule 1 of the Northern Ireland (Emergency Provisions) Act 1996 lists the scheduled offences. They are of two types. They are what one might call the automatic scheduled offences, which are always automatically dealt with as terrorist offences with no jury, and presumed scheduled offences covered by note 1 of the schedule. These can be certified out by the Attorney-General and instead be dealt with by trial by jury.
§ This clause will give the Attorney-General the power to certify out more types of offences as not being terrorist offences. My amendment seeks to leave some of those offences as automatic scheduled offences. I am sure that we are all agreed that some offences should be automatically scheduled and some should be certified out. The question is which should be in the latter category.
§ These amendments propose that the following offences should continue to be treated as automatically scheduled offences. I shall not use legal language; in layman's language the offences are: causing an explosion or sending an explosive substance—that is to say, bombs and parcel bombs; making, possessing or throwing a petrol bomb; possessing or carrying a firearm with intent to endanger life; using or carrying a firearm to resist arrest; possessing a firearm in suspicious circumstances; causing, or conspiring to cause, an explosion likely to kill; and making or possessing explosives in suspicious circumstances.
§ I do not believe that those offences are ever likely to be committed in Northern Ireland in current circumstances except by terrorists. If the Minister is to justify the clause as it stands, he needs to tell us of offences falling into these categories which have been committed in Northern Ireland by what are politely known as "ordinary, decent criminals", in the jargon of the Province—that is, not by terrorists. I do not know how many petrol bombs have been thrown by people outside the terrorist context, but, in order to justify the clause, that is what the Minister needs to explain.
§ The importance of a particular terrorist offence being in the automatic category as a scheduled offence is that no specific action taken by a politician in a particular 1386 case causes that offence to be tried without a jury. I realise, of course, that the Attorney-General acts in a legal capacity, but he is a politician. That fact and the fact that he, as a politician, is the one who decides whether it is tried in a Diplock court, can lead to misunderstanding and certainly from time to time leads to misrepresentation. If there are extra offences of that kind it also leads to extra work in the Attorney-General's office as more cases will need to be considered for possible certifying out, although that fact does not seem to have been provided for in the Financial Memorandum to the Bill.
§ Some argue that there should be the minimum of automatic scheduled offences in the interests of natural justice and the normality of the judicial process. But the situation is not normal in Northern Ireland; if it were we would not need any of the emergency provisions. I want the minimum of political decision in settling which cases are tried without juries and the maximum of certainty. That is why I commend these amendments to the House. I beg to move.
§ Lord Dubs
The effect of these amendments would be that there would be no facility in any circumstances for the following offences to be certified out of the list of scheduled offences: Section 29 of the Offences Against the Person Act (NI)1861; that is: causing an explosion or sending an explosive substance or throwing corrosive liquid with intent to cause grievous bodily harm. Offences under Section 2 and Section 3 of the Protection of the Person and Property Act (NI) 1969; that is: making or possessing a petrol bomb etc., in suspicious circumstances; or throwing or using a petrol bomb, etc.
Offences under Articles 17, 18, 19 and 23 of the Firearms (Northern Ireland) Order 1981; that is: possessing a firearm or ammunition with intent to endanger life or to cause serious damage to property; use or the attempted use of firearm or imitation firearm to prevent arrest of self or another, etc.; carrying a firearm or imitation firearm with intent to commit an indictable offence or to prevent arrest of self or another; and possessing a firearm or ammunition in suspicious circumstances.
Offences under Sections 2, 3 and 4 of the Explosives Substances Act 1883; that is: causing an explosion likely to endanger life or damage property; intending or conspiring to cause any such explosion, and making or possessing an explosive with intent to endanger life or cause serious damage to property; and making or possessing explosives in suspicious circumstances.
In tabling these amendments, the noble Lord seeks to ensure that the offences I have listed are invariably treated as scheduled offences and subject to Diplock trial. The Bill, as presently worded, has the effect that the offences I have listed, among others, may be certified out in individual cases at the Attorney-General's discretion.
The Government's purpose in framing the Bill in this way is to seek to ensure that, where appropriate, a case which would otherwise be treated as a scheduled offence can be treated in the ordinary way. In order for that to 1387 happen, the Attorney-General would have to certify that it was to be so treated—in other words, that in his opinion it was not connected with the emergency.
A number of offences listed at Schedule 1 to the 1996 Act already are capable of being certified out: the Government's proposal is to extend that category.
The effect of the amendment would be to confine automatically to a Diplock court an offence involving an unprovoked attack in the street on a member of the public by criminal elements not connected with terrorism; for example, by the spraying of an individual with lighter fuel in order to steal his or her possessions. Similarly, a domestic crime involving possession of a firearm with intent to endanger life would automatically he tried by a Diplock court, as would the use of explosives by ordinary criminal elements to gain entry to, for example, a safe.
The Government are aware of the strength of feeling aroused following a recent case involving a number of defendants charged with robbery. The case was certified out as the law provides, but it was later shown to have a terrorist connection. I should say that over the considerable period of time the present system has been operating, this, to my knowledge, is the one and only example of a case having been certified out which ought, on reflection, to have come before a Diplock court. The Government's view is unaltered by the experience of this isolated case. They remain firmly of the view that it is fundamentally wrong not to make provision for an offence which has no terrorist connection to be subject to normal criminal procedures. The Government have examined carefully the category of offences they propose, by virtue of the Bill, to render capable of being certified out. They are satisfied that there could he circumstances in which offences in that category might be committed in a non-emergency context. In the interests of fairness and integrity of the system of scheduled offences, I ask the Committee to join me in rejecting these amendments.
§ 9.15 p.m.
§ Lord Alderdice
Perhaps I may make a few brief comments. It seems to me that in the fight against terrorism, it is important to ensure that there is as much normality as possible because if we deal with every matter as if it were a terrorist matter, we have effectively handed over to the terrorists and they will, in effect, be deciding how the community should be run.
In the Bill, as drafted, it is clear that in so far as a terrorist component is apparent, it can be dealt with appropriately through the Diplock courts which unfortunately in the current context we have to have. That has been the case for some time. However, where it is clear that there is no terrorist component, it seems appropriate that the normal procedures should apply.
Northern Ireland 20 or 30 years' ago was an extraordinarily law-abiding community. I refer to the notion that there might be "ordinary" criminals. I noted that the noble Lord, Lord Cope, introduced the word "decent", entirely in line with conventional speech in Northern Ireland at the moment. It would have been almost incomprehensible then that a "normal" criminal 1388 in Northern Ireland would have, for example, tossed corrosive liquid in the eyes of his victim. The use of fire-arms, too, would have been remarkable. It would have been unusual to use explosives in respect of a safe. It is a sad fact that, on our own side of the water as, indeed, on this side of the water, such behaviour has more and more become the normal pattern of behaviour for criminals, even those who are not involved in terrorist activity. It therefore seems unwise to assume that every time fire-arms, explosives, corrosive liquids and so on are used, there is terrorist intent. In parenthesis, I accept that there may be a slight difference with regard to petrol bombs. The amendments, however, are fairly wide-ranging and it seems inappropriate that we should insist that whenever such behaviour occurs, it is regarded as terrorist-related. That seems ill advised.
Indeed, during the past week there have been a number of explosions in telephone kiosks in south-east London. The general assumption is that young people are playing with chemicals. I have to say that the young people in Northern Ireland are no more immune to that form of experimentation than young people in south-east London. We would be ill advised to insist that all such young people will find themselves enclosed under the rubric of "terrorist".
Therefore, the Government's approach does not seem unreasonable. Although I understand the context in which the amendments have been tabled and the appropriateness of the thinking of those proposing them, I believe that it would be wise to stick with the proposition announced by the Government. We certainly find ourselves unable to support the amendments.
§ Lord Cope of Berkeley
The Minister has not attempted to give examples of cases covered by the categories of offences committed by ordinary criminals, if I may adjust my phraseology in response to the comment of the noble Lord, Lord Alderdice. The Minister has not made out the case for the involvement of the Attorney-General as well as I would have hoped. However, at this hour of the night I shall not press the matter. I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ [Amendment No. 2 not moved.]
§ Clause 2 agreed to.
§ On Question, Whether Clause 3 shall stand part of the Bill?
§ Lord Cope of Berkeley
I believe that this is the most important debate of the evening. We seek to delete Clause 3 and retain the possibility of internment. If the clause as it appears in the Bill were approved internment would no longer be possible in any circumstances. Surprise is essential for the effectiveness of internment, and if those powers are not on the statute book the Government are deprived of that weapon.
We all accept that internment was not effective and had some very damaging effects last time it was tried in the early 1970s. We can argue about the reasons for that, although I believe it to be generally accepted that the principal cause was that the intelligence on which arrests were made was very poor. However, that it did not work 1389 in that particular case should not blind us to the fact that internment has been used effectively both in the Republic of Ireland and in Northern Ireland, notably in response to the IRA border campaign in 1956. It is highly significant that the Republic of Ireland retains the power to introduce internment. Today's news from the talks is optimistic. We all hope that there will be a settlement and that there will be a great improvement in the security situation. But the news of the killings at Poyntzpass amply demonstrates that not everyone will accept whatever settlement can be reached. Irish history tells us that even if the main Sinn Fein/IRA leadership and the loyalist representatives agree to a settlement probably small groups at both ends of the spectrum will continue their struggle.
The Irish Government are perfectly well aware of that. They probably have more experience than us of fighting the IRA, and they have just as much reason to take tough measures for the protection of their society. Internment was used even in de Valera's time during the war when in the rather unusual circumstances existing at the Curragh there were IRA, German and British internees in pursuit of the neutrality of the Irish state. It would be a great irony if, following a settlement, the Irish Government wanted to reinforce that settlement by internment but the British Government had dispensed with the power by this clause in the Bill and took very high risks for their citizens and the settlement itself. For that reason, I believe that it is unwise to include Clause 3 in the Bill.
§ Lord Molyneaux of Killead
I too support the retention of the power to intern for the following reasons. I believe that internment should be selective and should be a clinical operation designed to break up the command and control structure of any terrorist organisation. That is the key to success at any time in the future. It will probably be exercised in future by an Irish government, as opposed to the rather hamfisted way that it was introduced under the Stormont regime. It is for that reason that successive Irish governments have retained the power to intern. It was said that when Irish governments exercised that power, their methods were excessively ruthless. Maybe it is because of that that they were effective. Despite that, they had public and universal support.
As the noble Lord, Lord Cope of Berkeley, has said, there is a general perception that Her Majesty's Government have parted company with the Irish Government and decided as a—and I quote the two fatal words—"confidence-building measure" to coincide with the major objective of militant republicanism. Considering that the two governments are co-operating in the so-called peace process, I find it very odd that the Irish Government did not feel that they too had to make a confidence -building concession.
If the Government contend that this move is not a so-called confidence-building measure, then the decision becomes even more baffling. It comes at a stage in the talks when there is a near farce being played out in the form of a little gentle tap on the wrist to those terrorist bodies who break the ceasefire. They find 1390 themselves suspended for a few days and then reinstated. This ludicrous practice has been labelled a revolving-door operation. It, more than anything, has damaged what I call the high-wire act, with which it has become the most entertaining feature. So much for the permanency of ceasefires.
There is a far more serious question. If, by a miracle, the whole apparatus provides some kind of agreement—and they all hope earnestly, against past experience, that some form of agreement can be reached—no matter how deviously worded an agreement were drafted, it would not be accepted by militant republicans, possibly not even by the main body, the IRA, and certainly not by the rapidly increasing number of sub-contractors to the IRA who will immediately return to full-scale murder.
The revolving door will then have been jammed and whatever sanctions the Government have at the moment to protect the trusting general public will have been removed. Do the Government then fall back on the discredited clap trap about bringing the murderers before the court—and how often have we heard that over all the years? If so, how long will it take, first of all, to find the guilty, and how many will they murder in the meantime?
In such a situation the two governments may consider isolating the godfathers, some of whom are posing as political leaders. The two governments might conclude that swift, selective internment might be necessary. We will then have a curious situation where the Irish Government can act, as the noble Lord, Lord Cope, has said, within a matter of hours; the British Government will have to introduce legislation and, while the parliamentary machine grinds slowly, terrorists could flee into the United Kingdom from the Irish Republic until the "Today in Parliament" programme informs them that it is no longer safe to stay in the North and they will have to go to a third country.
If that situation appears ludicrous and ridiculous, it will match the derision with which it will be viewed by the long-suffering public, not just in Northern Ireland but in the rest of the United Kingdom. Sad to say, they too will suffer from this lack of resolve.
In the light of that, I beg Her Majesty's Government to keep their options open during the period of the next few months because of dangers impending—words which are familiar to us as Peers.
§ 9.30 p.m.
§ Lord McConnell
It seems extraordinary to me that, in the face of what is happening and what may well happen in the future, the Irish Republic should retain its right to intern and the UK should abandon its right. It is, as has already been said. an essential part of internment that it be a surprise to those who are to be interned. One reason—it may not be the only reason—that it failed the last time it was put into effect was that the news leaked out, and the main people to be interned quickly left the jurisdiction before they could be collected.
To say, "Oh, if we ever need it, we will introduce legislation", is ridiculous. It would give months more notice that there was going to be a swoop to try to lift 1391 the people and intern them. They would not stay there. They would not sit there and wait to be interned. As soon as there was any word of legislation, they would take to their heels and depart. I hope that it will never be needed, but that does not mean to say that our protection should be taken away. In fact, it is much less likely to be needed if it is there than if there is no protection. I strongly support the Motion.
§ Lord Mayhew of Twysden
I can be brief because I agree with what has been said, and much of what has been said comprises all that can be said in support of the Motion. We all agree that the best hope for the future of the people in Northern Ireland and, indeed, in the whole of that island, lies in a fair political settlement, founded upon consent. All our hopes, and no doubt the prayers of many of us, are directed to that end.
But one would be rash to suppose, even if that long-desired outcome came about, that there would be an end thereafter to politically motivated violence in Northern Ireland. Terrorist crimes will surely be seen again. If there is no such settlement, one may suppose that the probability of that happening increases.
To retain the power to detain without trial is a legitimate weapon in the legislative armoury of any democratic state that is confronted with what confronts us in this country and in that part of this country which is Northern Ireland, because the ruthless terrorist, with ever-increasing destructive powers at his or her command, is always going to be at an advantage in any state which applies the rule of law to itself—an advantage which the terrorist can and does exploit with catastrophic consequences. No state should have to subject its citizens, year in and year out, to that.
If lawful detention without trial as a last resort can bring relief from that danger, then it should be retained as part of the armoury. I believe that it can bring relief, for it has long been more feared by terrorists than any other measure at Her Majesty's Government's disposal. I believe that Her Majesty's Government knows that. It is, at any rate, not established that it could not bring relief. If that is the case, any responsible government should retain that power.
However, as has been said already this evening, how significant it is that the Irish Government, who have had longer experience of the IRA even than ourselves, should be retaining that power. I am aware of no declaration that they, in their turn, wish or propose to get rid of it. They have had more experience of the IRA even than we have. We speak not only of the IRA, because it should not be forgotten that the largest single mass murder of a terrorist nature committed in the island of Ireland, at least in recent times, was at Loyalist hands near Dublin some 20 years or so ago.
I believe that the Irish Government have made more and better use of that power to detain than we have. They have given no indication that they will give it up. As has already been said, when it was last used in Northern Ireland, a mess was made of it. But that should not blind us to its value as a last and efficiently applied resort against intractable terrorists with increasing power to wreak terrible evil.
1392 If a political decision and settlement had been reached, then one could visualise more readily the Irish and British Governments wishing to make common cause of that last resort to pick out the command and control structures of those who would by then have shown themselves unwilling and, indeed, refusing to accept a democratic outcome and thus to have deprived themselves of what little support they have in this democracy at present. Unfortunately, the Bill deprives the British Government of that ability. That is why I support the Motion: it will keep open that option. I hope that the Government will consider this matter very carefully.
§ Viscount Brookeborough
After all those speeches, I merely wish to make one or two points. First, it is an inopportune moment to take this action, not only for the reasons we have heard but also because of the risk of terrorism. That is a threat to the peace process. That is quite the wrong signal to send.
It is true that internment failed when it was used previously. It is true also that the Irish Republic retains it. I am quite sure that there are many in the Government there who would prefer not to have it. That is a common feeling among all normal people. However, they do have it.
The circumstances which exist now are very different from when internment was used before, when it amounted to mass arrests. The intelligence was extremely difficult. It was amazing that the whole operation took place as calmly as it did, even though it may not have seemed that way. However, it was a very difficult operation to undertake, even if the information had been correct.
However, the fact is that internment could be used to give a breathing space at this important time. Everybody agrees that if the talks come to a conclusion that is what is required—a breathing space. But the threat to that is no longer mass terrorism. It is the LVF (the Loyalist Volunteer Force), which probably committed the two murders perpetrated yesterday or the day before, Continuity IRA or the Continuity Army Council (CAC), which seems to have two names and is a splinter group, and INLA. Those are sections of terrorist movements. They are break-away factions. Those movements are a threat to the process.
It is interesting also that Gerry Adams talks about them being a threat. Therefore, that is not only my point of view, which may be thought to be a Unionist point of view, or an SDLP point of view. It happens to be Gerry Adams' point of view and a PUP point of view that those factions are setting out to destroy the process. That is why the leaders of those groups have appealed to those factions to stop and for everybody else to stay in the talks. If the talks succeed, we want that breathing space. This is the one occasion where internment of a relatively small number of people, requiring less intensive intelligence, would work. Indeed, it would work if it was used. I am not advocating its immediate use. If the intelligence were correct, and if the time were deemed correct to do so, it would be possible to take these people out of circulation for a limited space of time. It would work, if you had the right people.
1393 However, even if you did not get all the right people, there would be so much disruption and much confusion with people not knowing who was talking about what or who gave the information in the first place, that you could almost guarantee that a breathing space would be given. I believe that to deprive ourselves of that power at present would be a very great folly.
I believe that I am right in saying that the Labour Government opposed, or did not support, the emergency provisions for so many years in the Commons, while we rarely had a vote here. They did not support it and they used internment as a basis for that lack of support. I sincerely hope that they are not proposing to take internment out purely on the basis that, for so many years, they used it as an excuse not to support the provisions. That would be folly for us in Northern Ireland.
§ Lord Alderdice
This is a serious debate at a crucial time in Northern Ireland. I almost hesitate to rise to my feet when we have already heard from speakers like the noble Lord, Lord Molyneaux, and the noble Lord, Lord McConnell, whose party was the one which shouldered the burden of internment in 1971. We have also heard from the noble Lord, Lord Cope, who of course was a Security Minister in Northern Ireland for a period of time and not least from the noble and learned Lord, Lord Mayhew, whose position and work in Northern Ireland remains one of profound respect and admiration from the community at large and, as he well knows, from me as an individual.
We must look carefully at some of the arguments that have been adduced. First, it has been suggested that the threat of internment is something that terrorists fear greatly. For those of us who are law-abiding citizens, so it may appear to be. But the threat of internment was available during the time not only of the current Secretary of State and the current Government but also during the time of the previous Secretary of State—the much admired noble and learned Lord, Lord Mayhew—and his predecessor; and, indeed his predecessor's predecessor, and before that.
All through those years, since there have been Secretaries of State, the power of internment has been available. I have to say that I have not noticed that that threat has in any way intimidated the terrorists. They have carried on with their nefarious business entirely setting to the side the threat that internment might be introduced. Therefore, while we as law-abiding citizens might regard the threat of internment as a serious intimidation, it has not been so in fact for terrorists for the past quarter of a century.
The question has been raised as to whether, in the current climate, it is foolhardy to set the matter aside. I should tell noble Lords—and some will know me as something of a cautious pessimist over the past few years about the prospects for political settlement—that I believe that there is now a real possibility that, not within years or months but within weeks, possibly even before Easter, we may be in a situation where the major 1394 parties of the broad centre, as I would describe them, and the two governments will be prepared to reach a political settlement. That is an extraordinary possibility.
In that context, as other noble Lords have said, might it not be possible that internment might be necessary? It is suggested that while the parties of the broad centre—the Unionists, the Alliance, the SDLP and perhaps even some others—and the two governments might agree, surely it is the case that those on the extremes will not agree. I am sure that that is true. I very much doubt that we shall find Dr. Ian Paisley and his colleagues saying yes. After all, they have never said yes to anything, not even sometimes to things that they have proposed themselves.
As regards whether the Republican movement will say yes, I have to say that I doubt it; indeed, I doubt it very much. The very best that we can hope for is a degree of acquiesence by Mr. Adams and his colleagues because perhaps it is the case that they would like to move into democratic politics. But I entirely subscribe to the view expressed by other noble Lords that on the republican side—whether it is the Continuity Army Council, or others—and on the loyalist side, there will be those so infected by the virus of terrorism that they will not give up.
There is then the question of how that may be dealt with. But surely we have learnt after all these years that it is not merely a matter of security operations; it is a matter of hearts and minds. If we can get a settlement that incorporates the overwhelming majority of people on both sides of the community and in the centre, that will be a tremendous weapon against those who wish to win the hearts and minds of people to the extremes.
It is said that what will be crucial is that suddenly and with surgical skill it will be possible to move in and deal with the command and control mechanisms of the terrorist organisations. Let me remind the House of what actually happened in 1971. When the Ulster Unionist Party was governing Northern Ireland and had full control of the security operation, there was no surgical strike. Those of us who recall even more recent events in respect of the Gulf only a few years ago and all the talk of high technology surgical strikes will be aware of how ineffectual that was. But let us go back to 1971.
I can recall that at the conference of my own party, the Alliance Party, in April 1971 my predecessor, Sir Oliver Napier, warned that the government of the day—the Ulster Unionist Party government—should not move to internment. Was he speaking about this because there was a total unawareness of what might arise? Of course not. It was the talk of everyone in the streets. By July, some three or four months later, he was consulting the Secretary of State, the noble Viscount, Lord Whitelaw, and advising him not just privately but publicly not to move to internment.
Why? There were two reasons. First, because there was a real issue of human rights. That could not easily be tossed aside. But, secondly, because in the context of Northern Ireland it would have been utterly counterproductive. Those noble Lords in the House who know Northern Ireland well and come from Northern Ireland may appreciate when I say that there is a degree 1395 of perversity in our fellow countrymen. They will understand that I am not being unflattering. Everyone on this side of the water knew that when it came to a requirement for soldiers from Ulster the worst thing that could have been done was to institute conscription. To say to people, "volunteer if you wish", would have ensured far more soldiers from Ulster than ever would have come from conscription. Similarly, to insist perforce that matters be done in Northern Ireland is to ensure a backlash. One of the reasons why my colleague insisted that internment would be counterproductive was that he believed, and rightly so, that it would be a recruiting sergeant for the IRA. Just look at what happened. In 1971 the IRA took off and violence erupted—not before internment. If we thought there was trouble before internment, look at what happened after it.
We must be extraordinarily careful that we learn the lesson of that. It is rather different in the Republic, and so when noble Lords refer to the situation in the Republic and to the fact that the government there have retained the power of internment, we know of the situation there. We know that the IRA regards the Dublin Government somewhat differently from how it regards the British Government, not altogether in unflattering terms, it has to be said, but nevertheless in different terms. If we look at the situation we have, I suggest it is crucial that we try to win hearts and minds. If we set to the side the power of internment at this point, we are saying to the people of Northern Ireland and to the world at large, "We are not trying to impose something on anyone". If it is the case that there is a settlement and there are those, as other noble Lords have said, who insist on resorting to violence, there will not be a question in any case of a sudden overnight administrative action of internment. Everyone will know in advance that it will happen. That is reality.
Her Majesty's Government—I submit, in this context there would be a powerful silence and no criticism from the Irish Government—will move through this Parliament to put in place the possibility of this or another administrative action which would deal with the problem. That would be a warning and a clear marker. Then, if it is necessary to move in some robust way to insist that the wishes of the people of Northern Ireland and of the island as a whole be respected, that matter will need to be faced when the time comes.
But we must appreciate the fact that here we are not simply discussing retaining a security power. We need to win the hearts and minds of those in Northern Ireland who are not unionists, not even pro-union people, but who also want to see peace and who do not in their hearts support violence. We are in the business of winning as many of those hearts and minds as is possible and not colluding inadvertently with any "recruiting sergeant" operation for the IRA or indeed for loyalists.
I plead with noble Lords to reject this provision, not because I believe it comes from malign motives and not because it comes from people who have no experience of the matter, but because I believe that like the internment of 1971 it is misconceived, ill advised, 1396 counter-productive and not likely to achieve the result that the Committee and those who wish Northern Ireland well sorely desire.
§ Baroness Denton of Wakefield
I shall be brief. The noble Lord, Lord Alderdice, has probably forgotten more about Northern Ireland than I will ever know and I have enormous respect for his views. We who base ourselves in London can never understand all about this matter. However, I believe there were matters of non-consequence in the noble Lord's speech. He said that internment was counter-productive as regards terrorism. How do we know how many terrorists were put off by the threat of detention? How do we know that the eruption into violence was because of detention and not because of a million other factors? There are always a million other factors in Northern Ireland. There is often an impression that human rights are a matter for terrorists. Human rights are a matter for innocent people too and they have a right to be protected. Those people in Northern Ireland who are innocent and wish to have peace and who are at risk—as we have seen again this week—have a right to be protected. At this stage I support the provision of my noble friend.
§ Lord Dubs
I acknowledge the emotions the issue of internment arouses. We have heard some powerful speeches this evening on both sides of the argument which clearly reflect the strength of emotion that the issue arouses. Those emotions are a reflection of the community divisions and the fears which exist in Northern Ireland. I have listened carefully to the arguments put forward passionately by those Members of the Committee who are in favour of retaining the provision. While the Government acknowledge the very real concerns of those who argue in favour of retaining the provision, we are not convinced that the case for retention is made. I have not been persuaded by the arguments we have heard this evening in favour of retention.
Clause 3 repeals the powers in Section 36 of, and Schedule 3 to, the 1996 Act to detain without trial persons suspected of being terrorists. The powers have existed in lapsed state since 1980 and have not been used since 1975. They involve a decision by government to deprive individuals of their liberty without trial and without the normal safeguards which the law provides for the protection of the accused. Their use would only ever have been justified as a last resort. The ability to detain people without trial has never been seen as a means of achieving stability within the community. The effect of using the powers would, I believe, be quite the reverse. It would increase community tension, and cause serious damage to respect for the rule of law. I believe that it would strengthen the terrorist organisations, as was said so elegantly by the noble Lord, Lord Alderdice. It would create in the minds of terrorists political prisoners. Ultimately I fear that it would prolong the very violence which it was intended to prevent or to lessen.
I have listened very hard. Let me refer to one or two of the comments made in the debate. I always listen to the noble and learned Lord, Lord Mayhew, with 1397 enormous respect because of the powerful reputation he has in Northern Ireland. He was Secretary of State for a number of years and has enormous knowledge of Northern Ireland. However, I take issue with him this evening. He suggested that the power to have detention has long been feared by terrorists. I suggest to the noble and learned Lord that there is little evidence to support that contention. Quite the reverse. I remember when internment was last used. In the newspapers over here and on television there were references to the way in which supporters of the IRA used metal dustbin lids to signal to the community that internment had started. I remember, like the noble Lord, Lord Alderdice, how the whole issue became a recruiting sergeant for the IRA.
I fear that if we were to use detention in the circumstances of Northern Ireland it would enormously strengthen the terrorist organisations which would depict themselves as martyrs. I doubt very much whether any democratic society can implement internment in such a way that it can be kept secret until the last minute, and that we can then somehow catch all the people that it is intended to catch. On pragmatic grounds I do not believe, frankly, that it has the potential to be effective.
There is the important argument that we are trying to set standards of human rights, standards of the rule of law, which would be negated if we went down that particular path. I fear very much that we would be helping the terrorists both on the republican and the loyalist side if we were to do that.
The noble Viscount, Lord Brookeborough, said that we might need some breathing space and might use internment during that breathing space. I find it hard to follow that argument. I fervently hope that the talks process will be successful. Yes, there are some terrorists in Northern Ireland who do not want an outcome and who use terrorism as a threat to the talks. Of course, it is a threat to the talks. But I do not believe that in the circumstances of a successful outcome to the talks, supported by the majority of people in Northern Ireland and. I hope, in the Republic, we would then consider using internment to catch the minority of those who were formerly terrorists and who still want to practise terrorism. I do not believe that that is the way we would go forward.
The noble Lord, Lord Molyneaux, referred to how long it would take to find the guilty. I do not think that he meant in the context of internment but in dealing with any possible resurgence of terrorism. If, in a system of the rule of law, it is hard to find the guilty, it is even harder to find the guilty in a swoop on people's homes at five o'clock in the morning in the hope of catching those people in bed. I fear for the effects it would have. I do not believe that it would protect us or the people of Northern Ireland in any sense. I believe that the minority of people there who support terrorism would take comfort from government measures such as that.
§ Viscount Brookeborough
My Lords, perhaps the Minister will give way. After the eloquent speech by the noble Lord, Lord Alderdice, and the points made by 1398 the noble Lord, it seems that a number of us are being labelled as advocating internment, whatever happens. The Minister could see no reason why the provision should remain. He could not justify that it should. Most of us feel that we cannot justify the reason for the change. I am sure that I speak for the remainder of those from Northern Ireland. We do not advocate using the provision and getting it going. The noble Lord himself said, "I believe", which in itself leaves a minor amount of doubt. He also used the phrase, "last resort". I say to him: please do not label any of us as having feelings for use of the provision, except as a last resort under certain circumstances.
The noble Lord, Lord Alderdice, gave the House a very good history lesson about how it all went wrong. Do we not all know that? But, as I said, the circumstances are different. The Minister finds the existing provision hard to justify. We cannot think what is the justification for removing it. As the noble Lord, Lord Alderdice, said, it did not stop terrorism over the past few years. If the threat of internment meant so little, it definitely did not increase terrorism. Therefore to keep the provision may not be to increase it. I merely want to make that point clear after what has been said.
§ 10 p.m.
§ Lord Dubs
I understand what the noble Viscount says. If I follow him accurately, he suggests that he does not advocate the use of internment but wishes to keep the power as a last resort. The point is that the Government believe very clearly that there are no circumstances in which we would wish to use the power of internment. Therefore no purpose is to be gained by keeping it on the statute book. It is a power that denies many of the traditions which characterise this country—the tradition of the rule of law, of a proper judicial system whereby people are found guilty through a process in the courts. It suggests that an arbitrary system can somehow achieve good. I repeat that the Government can see no circumstances in which we would wish to use these powers.
§ Lord Molyneaux of Killead
I apologise for interrupting the proceedings again. The noble Lord said that in no circumstances would the Government contemplate using this power. Does that mean that they would not contemplate coming back to Parliament for a restoration of the power?
§ Lord Dubs
That is rather a hypothetical question. It relates to what might happen in certain unforeseen circumstances. I prefer to consider the situation in Northern Ireland as it is now, and as it is likely to be in the near future. Let us leave the distant future to look after itself.
Yes, there have been some very tragic murders and bombings in recent weeks. They are to be absolutely condemned. But even in those circumstances, no one has seriously suggested that we should use the power of internment. I am absolutely certain, as are the 1399 Government as a whole, that internment is not the answer, and never will be. I urge the Committee to support Clause 3 and to allow it to stand part of the Bill.
§ Lord Cope of Berkeley
Our debate has been relatively brief, given the importance of the subject. However, it has shown the strength of feeling on this matter and the strength of the arguments against the clause.
In response to the noble Lord, Lord Alderdice, I did not, and would not, rely on the example of the 1970s. The example that I mentioned of the border campaign of 1956 is a much better example; but there are other, earlier examples, particularly from the Republic of Ireland. Those examples teach us, among other things, that one of the keys to the success of internment as a measure is the overwhelming support of public opinion. That is one of the key lessons to be learnt from the cases where it has been used successfully. That is why it was important that the loyalist terrorists were mentioned during the course of the debate. That would be a key in the sort of circumstances that we were outlining.
It was argued that the threat of internment has existed, but nevertheless terrorism has continued. Both those statements are correct. I do not think that any of us can say what the situation would have been like in relation to terrorism or how it would have been different had particular measures, including this one, not been on the statute book over the past few years. It is my firm belief that, particularly at times when internment has been one of the measures suggested for immediate use and when it has seemed at least possible that the Government might use it, it has disrupted the command and control of terrorism to a great degree, if only for a few weeks until the threat recedes. It certainly leads to terrorist commanders having to take measures, such as moving constantly and never sleeping in the same bed, which are extremely disruptive to their efforts.
As the debate has taken place so much later than was anticipated, I believe that we should not press the matter to a vote at this time. It may be that other Members of the Committee who cannot be here this evening may wish to join in the debate at a later stage of the Bill. I believe that it is premature to remove this power from the statute book.
§ Clause 3 agreed to.
§ Clause 4 agreed to.
§ Clause 5 [Audio recording of police interviews]:
§ Lord Cope of Berkeley moved Amendment No. 3:
§ Page 2, leave out lines 31 to 35.
§ The noble Lord said: In moving Amendment No. 3, I shall speak also to Amendments Nos. 4 and 5. Clause 5 provides for the audio recording of all terrorist and some other interrogations conducted by the police.
§ My reservations with regard to the clause stem from a concern for intelligence gathering. My experience of Northern Ireland—which is much less than that of many others in the House and elsewhere—and everything I have read about combating terrorism convinces me that intelligence gathering is the absolute core of anti-terrorist operations if they are to be successful. No 1400 one can be sure how much intelligence is likely to be deterred and will not come into the hands of the police if this provision for audio recording is put into effect. However, it is obvious that if a suspect thinks that at some stage in the future what he says to the police may be played back to the terrorist godfathers, he will shut up.
§ There is no doubt that members of terrorist gangs in Northern Ireland are comprehensively threatened by experts about what will happen to them if they leak. The godfathers ensure that there are exemplary and salutary cases of murder and maiming when anyone breaks their twisted faith. No one who is interrogated has any doubt about what will happen to him if the godfathers discover that he has leaked. He will also be aware of their great ability to discover all kinds of information which is supposed to be kept secret; they use intelligence, too.
§ We used to be told that the police were against audio recording, for the reasons I have set out. We are now told that the police favour it because of the protection which it undoubtedly would give, or could give, to police officers accused of falsifying evidence and because audio-taped evidence could not be argued against in court. I suppose the fact is that different police officers will make different judgments on these matters. I accept that both sides of the argument have force, but intelligence seems to me to be the priority.
§ Controls on what is allowed to happen to the tapes could give me some reassurance on the matter, provided those controls were believed and trusted by the potential informers. I understand that Mr. Louis Blom-Cooper has done some useful work on this, which Ministers may wish to draw on. If we are to go ahead with this provision, it is important that the Minister explains to us how the tapes will be controlled and whether parties acting for accused people may be able to get their hands on them, through discovery or some other legal means, and at what stage the tapes will be destroyed when no longer required.
§ To make clear that our amendments in this case are directed specifically at terrorist interrogations, we provided in Amendment No. 5 that the provision for audio recording could be triggered after 12 months of terrorist peace. If that were to be adopted, it could give those who make war on society a small additional encouragement to make peace. However, my main point is the argument I put forward in moving the amendment at the start of my remarks. I beg to move.
§ Lord Molyneaux of Killead
Whatever may be said for this practice in criminal cases, in the case of the interrogation of terrorists it is a highly dangerous suggestion—not least for the interviewee and his family.
When a terrorist subject is arrested and questioned, the first step taken by his terrorist associates is to find out exactly what he said and all that he said during the audio or video recorded interrogation. It is misleading to say that the recording would not become available. Normally a recording should be disclosed in discovery, and without a shadow of doubt it will become available to terrorists, and even sometimes to terrorists from opposing sides.
1401 As I said, the terrorists will not hesitate to eliminate an associate who is seen—and in this case heard as well—to have endangered the movement concerned. In another place my colleague sought to limit the danger by amending the legislation, and not merely amending the code of practice, to ensure that a copy of the recording was furnished by the police to the trial judge and to no one else. Amending the code of practice alone would not be a safeguard because it would not prevent the recording being discoverable.
If that legislative step is not taken, not only will the lives of those questioned be placed in jeopardy, but also their families, friends and associates will be attacked without mercy. It follows, therefore, that suspects—and this is the truth of the matter—will be prevented from giving even minimum assistance to the police.
§ Lord Alderdice
Let me say from the outset that I am unhappy about the amendments. I and my colleagues have for some time maintained the view that video and audio recording of such interviews is a positive and constructive contribution to the fight against terrorism.
Members of the Committee who spoke for the amendment indicated their concerns about the matter. It is said, first, that the crucial element is that of intelligence. Let me repeat in another form what I said at a previous intervention; that is, that the security component of the fight against terrorism is a crucial component, but it is only one of two. The other side is the question of hearts and minds or, if I might put it more crudely, the propaganda war.
There is no doubt that claims—some of them justified and others most certainly not—of certain activities by police officers in the course of interrogation have been extremely damaging in the fight against terrorism. When I look at the question of video and audio recording, therefore, I am looking not a little at the question of protecting the good name of those police officers who are involved in interrogations. Therefore, when claims are made that all sorts of dreadful things have happened, if they have happened then police officers should fall victim to the due process. But if they have not happened, there is currently no way of demonstrating that the claims made—some of them strident, outlandish and widely reported not only in Northern Ireland and this side of the water, but much more widely—are untrue; there is no way of effectively defending against them. Those Members of your Lordships' House who have travelled, not least on the other side of the Atlantic and in certain parts of the eastern and western seaboards, will know how significant such claims are in undermining the good name, and the rightfully good name, of the Royal Ulster Constabulary.
When I look at the matter my first concern is what this does to the propaganda campaign against terrorism, albeit an honest propaganda campaign. When it is clear that events have been recorded on video and, if necessary, on audio, it can be demonstrated whether or not there has been bad behaviour on the part of the 1402 police. If so, they should suffer. If there has not, adverse and ill-founded claims against them should not stand, and they can be demonstrated as such.
I entirely accept that there is another arm to the campaign against terrorism and that is the security arm. Intelligence plays a vital part in that. It is claimed that those who wish to speak need to be protected. I do not doubt that. However, I am not at all sure that, in the kangaroo courts operated by the Provisional IRA and indeed the loyalists, they calmly sit down, sift the evidence and require the proof that is available by due process and by audio recordings before they decide to inflict their own perverse form of judgment on those they deem to be the accused. It seems to me that they make their own decisions, often on the basis of nasty suspicion—and sometimes when there is barely even that—in order to enforce their own form of discipline in their own communities.
Of those who come forward with real information, the overwhelming majority, as I understand it, are rather well trained in order to ensure that they divulge nothing whatever during interrogations. They have made themselves familiar with a discipline before they are arrested and they carry themselves with appropriate imperviousness to any form of questioning.
The chief constable does not believe that this would have an adverse effect on the obtaining of intelligence material. The Minister in another place, Mr. Ingram, on 11th December 1997 at col. 1223, quoted him accurately. Indeed, interrogations have not been the route of most of the intelligence material. I rather suspect—and here I do not have the benefit of the experience of other noble Lords—that when really useful intelligence comes forward, it does not come forward in interrogation rooms; it is coming forward because it is being passed in other contexts and with other motives and perhaps sometimes with other rewards. I believe that the intelligence operation is important. but I suspect it is not in interrogation rooms that it finds its best base.
I would urge your Lordships to set aside these amendments because it seems to me that they are misguided. They judge the war against terrorism only from the pillar of security operations and even then I believe they are making a judgment on the basis of perhaps how things were when there was less sophistication from the terrorists and, thankfully, from our own intelligence operations. Therefore, they are a rather dated, if understandable, proposal for amendment. I find myself in agreement with the Bill as it stands.
§ 10.15 p.m.
§ Lord Dubs
My Lords, yet again, for the third time this evening, I am grateful to the noble Lord, Lord Alderdice, for putting the arguments so clearly, arguments with which I am in a very large measure of agreement.
The combined effect of these amendments is to defer the implementation of audio recording until a period of 12 months has elapsed during which no terrorist incidents have come to the notice of the RUC.
1403 Successive governments have consistently aimed to ensure that such emergency provisions that exist strike the appropriate balance between providing those counter terrorism measures which are necessary for the protection of the community and ensuring the protection of the rights of individuals against whom the measures are used. Where it is possible to normalise policy, practices and procedures, this Government will strive to achieve normalisation.
The question of audio recording in the police holding centres has a long history. It was previously resisted because of concerns on two counts: that it would inhibit interviewees from responding to questions and thus hinder the pursuit of terrorist crime; and that it could put lives at risk if tapes were later disclosed in court, as they invariably would be if a prosecution ensued.
The Government's view has consistently been that the many benefits attached to electronic recording, in particular audio recording, outweighed the potential difficulties. Audio recordings would provide the best available evidence in any proceedings. Their availability could also reduce the length of contested trials emerging from confessions in the holding centres and they would provide evidence to prove or disprove allegations of psychological abuse, as well as physical abuse. The Government's move to introduce audio recording therefore carries the full support of the chief constable.
The noble Lords seek to defer implementation of the change until terrorism has been non-existent for a full year. The Government's response to this is that there is absolutely no case for delaying the initiative. To defer introduction until there had been no terrorist incidents for 12 months would negate completely the purpose of this safeguard, since the holding centres themselves would not be being used in such circumstances. There is no reason to defer introducing audio recording and there are many sound reasons for pressing ahead. The noble Lord. Lord Molyneaux, asked a number of questions and I shall try to supply specific answers. As regards disclosure, audio tapes will be disclosable in the ordinary way as they will represent best evidence. They will not he disclosed otherwise. The codes of practice which will govern audio recording have not yet been prepared. The House will have the opportunity to consider the codes in the not-too-distant future. We may have a further debate on the detail of the proposal—
§ Lord Molyneaux of Killead
I ask the Minister's indulgence. When he refers to disclosure, does he include the existing situation as proposed; that there would be disclosure to the defence as well as to the judge?
§ Lord Dubs
I believe that the answer to that question is yes. However, much of the detail will be covered by the codes which we shall be debating at a later date. Therefore, I urge the noble Lord to keep some of his powder dry for that occasion. To repeat the answer to the question, my understanding is yes.
The noble Lord, Lord Alderdice, referred to the good name of the RUC. That is vitally important because we all know of too many occasions when a terrorist who has been arrested and interviewed claims that he was 1404 intimidated, harassed and not treated fairly and properly by the RUC. As the noble Lord said, such allegations are difficult to disprove. However, we would be in a better position to enable the RUC to retain its good name and to disprove such allegations made against it.
I urge the Committee to resist the amendments.
§ Lord Cope of Berkeley
At this stage, I shall not pursue the amendment. I entirely agree that the "hearts and minds" aspect of the struggle is of the greatest importance, as, obviously, are security measures. I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ [Amendments Nos. 4 and 5 not moved.]
§ Clause 5 agreed to.
§ Clause 6 agreed to.
Lord Cope of Berkeley moved Amendment No. 6:
After Clause 6, insert the following new clause—
§ EXCLUSION OF EVIDENCE
(" . In subsection (4) of section 9 of the Interception of Communications Act 1985, after paragraph (b) there shall be inserted—
(bb) an offence under the Northern Ireland (Emergency Provisions) Act 1996 including a scheduled offence within the meaning of section 1 of that Act;"").
§ The noble Lord said: This new clause is about telephone tapping. We have not had much success with the Minister so far this evening, but I hope that we shall have a little more success with this particular amendment judging by what was said in another place on a similar amendment.
§ The clause seeks to make evidence obtained by telephone intercepts admissible as evidence in court in a terrorist case. It seems to me now that a rather odd situation exists that evidence obtained from a bug hidden in a room or elsewhere can be used in court, but not evidence obtained from telephone tapping. Curiously, this restriction seems to be almost exclusive to the British jurisdiction. Other jurisdictions in the world rely on it heavily, as the noble and learned Lord, Lord Lloyd of Berwick, pointed out in his report. He recommended a clause on these lines. He could find no other jurisdiction in which there was such an exclusion.
§ We hear a lot about confidence-building in the course of these debates, by which is normally meant building up the confidence of the terrorist at the expense of the confidence of the law-abiding. I urge Members of the Committee to think what it does to the confidence and morale of an RUC officer to know from a telephone tap that a crime has been committed and who has committed it, but to be unable to tell the court of the evidence, which every other policeman in the world could do. One should also imagine an RUC policeman, perhaps visiting the other side of the Atlantic, as the noble Lord, Lord Alderdice, said earlier, or hearing, on the radio, British justice being criticised by an Irish American politician when the officer knows who committed an atrocity, but could not tell the court. He would also know that in the United States the FBI frequently relies on such evidence and sometimes, 1405 according to the noble and learned Lord, achieves guilty pleas in cases where convictions would otherwise have been unobtainable, because of the firmness of that particular type of evidence.
§ Of course, prosecutors will not always want to use the information obtained in this way because they wish to protect intelligence methods. But that is their choice in the course of pursuing a case in court. It is the kind of choice which they frequently have to make. So I do not believe that there is any specific danger from that.
§ Three months ago we were told by the Minister in another place that the Government were considering this matter: indeed, the Home Secretary said so in October. I hope that by now the Government have considered it further and will be able to tell us this evening that they are prepared to adopt this new clause or at least the thoughts that lie behind it. I beg to move.
§ Lord Molyneaux of Killead
I join with the noble Lord, Lord Cope, in expressing the hope that the Government will look favourably on this new clause in the light of the earlier announcement that there will be unified emergency legislation and acceptance that there will be a continuing need for emergency legislation throughout the whole of the United Kingdom. I gather that some thoughts were being directed to that end in the other place this afternoon.
The new clause would provide for the admissibility of wire tap evidence, and that proposal is based solidly on the conclusion of the inquiry of the noble and learned Lord, Lord Lloyd, that wire tap evidence is admissible in every country he had visited. He concluded with a one-liner, which I believe the noble Lord, Lord Cope, had in mind, when he said,The United Kingdom stands alone in excluding such material".I confess that I am somewhat confused by present attitudes, which are greatly at variance with what is happening here in the capital city, London. Very recently a learned judge in a London trial commended the police on their expertise in tapping telephones. He said, as regards the accused, that such valuable evidence could not have been obtained so accurately in any other way. Mainly as a result of that wire-tap evidence, all the accused were convicted.
The very fact that interception is accepted in so many cases makes the present situation unsustainable. I share the optimism of the noble Lord, Lord Cope, that the Government will see the wisdom of the new clause, especially as there appeared to be some flexibility in the Government's thinking before the Bill left another place.
§ 10.30 p.m.
§ Lord Mayhew of Twysden
I hope that the Government will accede to this amendment on this occasion. The power of intimidation is very well known—or at least, it should be—and that is why in so many cases of a terrorist character it is impossible to obtain witnesses who are prepared to go into court and say what they know so that the adducible evidence depends exclusively on, and is limited exclusively to, that of police officers and forensic experts. That is not 1406 to disparage them, but in many cases they simply are not in a position to say what actually happened whereas other witnesses are but are too frightened to do so. A civilian witness who gave truthful evidence for the prosecution in such a case would fear, reasonably, that in a very short space of time he would be dead.
It is worth making the point that telephone communications are intercepted only in accordance with a strict statutory code. The operation of the statute is supervised by an independent commissioner, one normally holding high judicial office. He reports annually to Parliament and the utmost care is taken, as I know, to observe the statutory rules. Any breaches that come to light are reported at once to the commissioner and by the commissioner ultimately in a report to Parliament.
It may very often be the case that evidence of a telephone conversation would be of critical importance to a prosecution and to the decision whether or not to prosecute. The Director of Public Prosecutions has to apply the ordinary test of whether there is a reasonable prospect of a conviction. Is it more likely than not that a conviction will follow? If it were possible to give evidence of what has been heard under lawful conditions in a telephone conversation, in many cases the director would find it his duty to direct a prosecution. In many cases, because that evidence is not admissible in court, he will have to direct that no prosecution shall ensue. That cannot be in the interests of justice.
I am glad that I was instrumental in the appointment of the noble and learned Lord, Lord Lloyd of Berwick, to his inquiry. His report has been widely acclaimed and notwithstanding that he was invited to report on the assumption that the ceasefires would continue, he nevertheless advised, quite uncompromisingly, that such intercepts should be admissible in evidence.
Let us suppose that the hideous events of three days ago at Poyntzpass had been preceded or followed by a telephone conversation of a significant character, properly known to the police—by which I mean, in accordance with the statutory code—and that the contents of that telephone conversation signified complicity on the part of one or all who took part in it, whose interests are served by keeping that conversation inadmissible and therefore keeping, as it may well be. a guilty person out of court and probably out of prison? Whose interests would be served, save those of the terrorists? I support the amendment.
§ Lord Alderdice
I believe that the arguments on this amendment are much more finely balanced than on some others and need to be sifted most carefully. Undoubtedly this is the only country where the position is as it is now, but I am sufficiently loyal to my country to maintain that there can be situations in which we may well be right and others wrong. While the position of other countries merits consideration it is not of itself a sufficient argument for changing our practice. When the question of wire-tapping and its use in other countries has been raised views have been divided. Those who are likely to be susceptible to the practice or who are breaking the law by doing it are unhappy about it but 1407 there has been a profound concern within the community as a whole. I think of the debate in Germany on this subject relatively recently. In this country the notion of telephone bugging or wire-tapping has not had an altogether happy reportage, not just in cases where the police may be using it under supervision but where all kinds of others are using it for other reasons.
It is somewhat dangerous at times to deal with hypothetical situations like that described by the noble and learned Lord, Lord Mayhew of Twysden. He asked whether, if prior to or just after the recent atrocity, there had been helpful material from a telephone tapping it would have been good to use it. If one follows his argument it is difficult to refute, except for one matter: it is entirely hypothetical. As far as we know, there is not material available from a telephone tapping that would convict in those circumstances. It is always dangerous to move from the particular that is hypothetical to the general that is not hypothetical.
Having said that, I am not aware that the Lloyd Report concluded that there was widespread scope for its use. I believe it concluded that there were limited contexts in which it would be a possibility. But if there was reason to believe that there would be real advantages to the police authorities in blocking the operations of terrorists or, if not blocking, at least bringing to justice those involved, that would merit serious consideration. But this is a serious development which merits full consideration.
I am not sure whether at this time of night, when even noble Lords have difficulty finding the time to debate all these amendments in their fullness, we can take a decision, although, if the Minister has given it full consideration and can respond positively, that may be an entirely different matter. However, if we are to move to a more thought-through, consolidated piece of legislation to deal with the terrorist threat which will unfortunately continue, even if we have peace in Northern Ireland, in the whole of the United Kingdom in respect of other terrorists, as well as those who remain in Ireland, then proper and due consideration of this matter should take place.
It is my view and, I believe, that of a number of my noble friends that this is a finely balanced argument that may come down on one side or the other. It is persuasive that in these days of telecommunication this facility should be available to the security services, but there is also the argument that at a time when people are becoming more and more concerned about the power of the state their due concerns merit consideration. It is a finely balanced argument, and I and my noble friends are not unwilling to explore the arguments to the point of being persuaded if they are powerful enough.
§ Viscount Brookeborough
I find it extraordinary that reasons can be found for not using bugging for evidence when clearly the telephone has been used a great deal by terrorists in Northern Ireland for conveying information. In many cases they use telephones rather than radios because of the technology available to pick up radio signals.
1408 In some of the other amendments this evening we have heard of different concerns for the welfare of the interviewers and the terrorists, and so on. In this case the allowing of the bugging of telephones or the use of what is found when the telephones are bugged is not a threat to anyone's welfare. By not using it we leave the innocent people that the terrorists prey on open to a very extensive terrorist threat of bombing and killing as they carry out their acts. It amazes me that even the noble Lord, Lord Alderdice, can say that there is no proof that this sort of evidence has helped within a prosecution.
Nobody in your Lordships' Chamber—apart from the noble Lord, Lord Mayhew, when he was Secretary of State—would be told whether there was information such as that as a result of bugging. Therefore we have to go to the experience of other people. We know that we are dealing with a Mafia-type organisation within the terrorist groups in Northern Ireland. It does not extend only to killing people, but money laundering, intimidation and all the other crimes that go on—the lot.
There are experts in this field, in America, Italy and many other countries. What is their experience? It is that the use of information gathered by bugging is of vital importance in combating organised crime. The sooner we live up to the fact that the terrorist campaign, in all the ways that it manifests itself, is not over, the sooner we will get to the bottom of it and use various methods which are no threat to anybody's civil liberties.
§ Lord Alderdice
Is the noble Lord saying that we should follow the examples of the successes of the United States and Italy in dealing with organised crime, as distinct from our own? Is he seriously suggesting that?
§ Viscount Brookeborough
I am suggesting that they do fight organised crime. Whether we think they are successful or not, they do have limited success from time to time. I do not know the details, but other countries use it and they find it extraordinary that we do not. For that reason, I support the amendment.
§ Lord Dubs
This new clause, if enacted, would have the effect of allowing evidence from intercepted material, acquired by virtue of a warrant issued under the Interception of Communications Act, to be adduced in court if it is related to an offence under the Northern Ireland Emergency Provisions Act 1996 including any scheduled offence within the terms of the 1996 Act.
The question of amending Section 9 of the Interception of Communications Act was raised by the noble Lord, Lord Molyneaux at Second Reading. I responded at that time by referring to comments made in another place in October last year by my right honourable friend the Home Secretary. He said on that occasion that there was much to be said on both sides of the argument about whether intercept evidence should be adduceable in court. That point was also made by the noble Lord, Lord Alderdice, when he said that the arguments were finely balanced.
1409 On the one hand, considerable difficulties exist in obtaining evidence on which to charge and convict terrorists, as many noble Lords have indicated. Many other countries use intercept material to prove guilt and to secure convictions otherwise unobtainable.
Eavesdropping evidence is admissible as evidence in criminal proceedings and this sits awkwardly against the fact that intercept material is not. On the other hand, if intercept material were used in court the interception capability would become exposed and, as a result, criminals—in this case terrorist criminals—would find ways to circumvent the interception methods. Also the use of intercept material would result in pressure for increased disclosure by the defence.
As I said at Second Reading, the Home Secretary has confirmed that the Government are considering the issue and I have explained that a review is under way. That remains the position. It would be premature to proceed with the proposals in this amendment given that the Home Secretary is considering the matter of the interception regime as it applies to the United Kingdom as a whole. That is necessarily a complex and comprehensive study. I am sure that the Committee would agree that it is not something that should be rushed. I hope therefore that the Committee can accept my assurance on that point, and that, in the circumstances, the noble Lord will agree to withdraw the amendment.
§ Lord Cope of Berkeley
We are asked to give more time for consideration. This was recommended after careful consideration by the noble and learned Lord, Lord Lloyd, in 1996, I think it was. It was considered initially by the previous government and subsequently by the present Government. The Home Secretary spoke about it in October. Three months ago we were told that the matter was still under consideration. Now we are told that it is still under consideration. That is better than being told it will not be done. For the moment, I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ Remaining clauses and schedules agreed to.
§ House resumed.
§ Bill reported without amendment.